Pre-Design Site Planning

Herbert W. Stoughton

Introduction

	Do you remember this opening remark which paraphrases a popular television series?  “The project, if you choose to accept the assignment, is to prepare all documentation and reports necessary to complete the design, planning, and construction of ‘Project X’ ”.  Do these words bring back the opening scene for the  Paramount Television Productions’  “Mission Impossible” (in the late 1960's)?  As members of the engineering, surveying, architectural, and landscape architectural professions [hereafter known as the design professions], your assignment is to design, construct, operate, and maintain those physical facilities used to perform the functions and achieve the goals of your organization.  Although your organization may have different assignments and goals, requiring difference facilities, the underlying activities and duties are identical.  Every entity requires lands, buildings, and other physical facilities necessary to accomplish the daily activities performed by its members and staff.

	Whenever, a project is proposed, whether it be procurement of lands and other real property; demolition of existing facilities; remediation of existing facilities; design and construction of new facilities; regulatory compliance of the facilities’ integrity; etc., the design professions have a multitude of tasks related to design, regulatory guidance, maintenance matters, and liability.  Since World War II, these matters have become increasingly interdependent, and sometimes conflicting.  The reason for this philosophical change is predicated upon more active participation of individuals and organizations who may have personal agendas.  These factors may have diverse and conflicting intentions.  These individuals and organizations have a substantial effect on the development of the codes and regulations.  The officials who reviews and approves the development plans will be impacted by this external pressures which are not necessarily of his/her making or liking.

	The growth and expansion of communities from traditional cities and small communities, slowly started at the beginning of the twentieth century, to the “explosive land development” which has taken place almost continuously since World War II, have impacted the acquisition and development of church and religious order’s properties.  The “how-to text-book” for the activities associated with acquisition and development of real estate has been a constantly changing reference to the legal, regulatory, environmental, and special interest groups, and have seriously impacted development.  These societal activities may seem cumbersome, but since they have been enacted, it is our responsibility (as design professionals) to effectively address the matters in an expeditious manner.  Every region of this country has similar, but also uniquely formulated procedures of land development ordinances and regulations.  The first aspect to comprehend is the very diverse aspects of the law of real property (real estate) in this nation.

Real Property in the United States

	The legal definition of real property is broad, but for this discussion relates to the subject of real estate.  An interest into the title to real estate can pass between successive owners through numerous written, unwritten, and adjudicated legal actions.  The most common are through deeds of conveyance containing specific terms of responsibility by the grantor to the grantee (such as warranty of title, quit claim to any title right and interest, etc.); trustee/inheritance; court actions; and statutory conveyance, foreclosure for various liens, etc., which have been well defined and developed in English Common Law through more than five centuries.  The chain of title is the “record of successive conveyances, or other forms of alienation; affecting a particular parcel of land; and arranged chronologically from the time of establishment of ownership by the government (Crown) or original source of title down to the present holder.  In record form, the chain of title is published in an abstract of title.  This abstract should enumerate sequential transfers of title and any encumbrances which have become attached to a particular parcel of land that would affect the current owner from enjoying all the conveniences and/or resources of the property without restrictions.

	The history of real property title may seem to be a simple straight-forward concept, but in the United States, the actual origin of title (the Crown) results from a series of complex historical events.  In the original thirteen colonies, there are some geographic regions whose chains of title originated from pre American Revolution treaties of succession of small non England colonial settlements established therein.  The most familiar ones are the capitulation of New Sweden to New Amsterdam (circa 1650); New Amsterdam to England (1664 and 1670); and the Treaty of Paris of 1763 (French-Indian War or 100 Years War).  In each of these treaties of succession, the documents contained specific rights for the original settlers to retain title to their real estate, practice of their religion, and other community life activities for those settlers who decided not to return to their original homeland.  These same terms were enacted in the Treaty of Paris of 1783 terminating the American Revolution.  If the lands encompassed in the latter treaty were privately owned with supporting definitive evidence, then the title to those lands remained with the owners of record.  All remaining lands reverted to the ownership of the United States of America (now known as the Crown), and became identified as the Public Lands of the United States of America, and subsequently the Public Domain.  Also, between 1779 and about 1821 the original thirteen colonies negotiated and deeded or transferred their vested claims, based upon their royal colonial charters, to those lands generally west of the Allegheny Mountains with specific reservations.  These specific reservations (having previously been issued by the states and the Continental Congress) included the transfer of title to lands to individuals holding script and warrants for lands each containing a specific area issued to veterans of the American Revolution and various Indian wars in lieu of currency.  A vast majority of these warrants were issued for lands in Kentucky, Michigan, Ohio, Tennessee, with a smaller number of warrants/grants being issued in Missouri, Illinois, Indiana, and elsewhere.  In researching the chain of title of lands in Public Domain states, the U.S. letters patent (also called letters of patent, or simply patents) might identify the lands as a “Revolutionary War grant”; “War of 1812 grant”; “Indian Wars veteran”, etc.

	From the initial statutory organization of the Public Domain (1785), no patents could be issued by the Crown (the United States of America) until the lands had been surveyed and moneys paid.  It should be noted that a U.S. patent is similar to a quit-claim deed, in that the document does not guarantee any claims against the property’s title, but transfers only the rights and interests, if any, held by the grantor (the United States).  Until 1864 (the Homestead Act), there were numerous instances of settlement/occupation of lands (because they had not been surveyed prior to settlement) [generally in states east of the Mississippi, and all the states bordering the western shore of the Mississippi River].  The resulting patents were issued under numerous acts, mostly known as  preëmption acts.  From the American Civil War until World War I, real estate could be granted by out-right sale, home stead entry, Desert Land Entry, etc.  In all instances, the original surveys of the Public Domain had been approved.  In other areas of the Public Domain which may have been either surveyed or not surveyed, patents could have been issued for mineral claims, railroad grants, and numerous special conveyances authorized by Congressional fiat.  In remote areas which had never been surveyed (now mostly situated in national forest areas, national monuments, and national parks), homestead entries were established, because settlers had established small agricultural holdings (stipulated to be not larger than 160 acres) within these areas.  About 1901, a special act of Congress was passed which, after satisfying five basic residentially associated requirements, and for a maximum area of 160 acres of land, were identified, mapped, and a patent issued.  One Wyoming homestead entry was a ranch - hay farm established in about 1890.  The isolated parcel did not have the U.S. patent issued until 1918.  In the mean time, the owner had instituted legal actions to obtain a surface water right (required from the state engineer’s office to divert nearby surface waters for irrigation).  Prior to 1918, the original and a subsequent owner transferred ownership title by warranty deed (which guaranteed all title and interest) for this homestead entry lands prior to receiving a patent from the United States of America.  These matters concerning the title were rectified by judicial action in the following decades (an action to quiet title).  The undersigned decided to perform a complete historical (title) research of the chain of title for the entire homestead entry.  In 1970, the tract was subdivided into a series of residential lots.  Through 2013, the county clerk’s office contained over 850 documents related to the chain of title of lands contained in this single homestead entry.  Also, there were identified between thirty and fifty significant errors affecting titles to the real property contain therein.

	Since statutes required that the Public Domain be surveyed prior to disposal, the survey and mapping process was a complex process.  From shortly after the institution of the surveys and until 30 June 1910, the deputy surveyors authorized to execute the surveys were contract surveyors.  Until 1855, the surveyor general in each territory or Public Domain state could authorize specific surveying instructions predicated upon their personal interpretation of the enacted Congressional legislation.  Inspection of approximately 30 of these general instructions contain significant differences in survey procedures.  In 1855, after the Mexican-American conflict, and the Northwest cession (Washington, Oregon, Idaho, etc.), the General Land Office consolidated its administrative authority, and issued a number of general survey instructions (called manuals), with the last Manual being issued in 2009.

	In the states of Arizona, California, Colorado, and New Mexico, pre-treaty land titles originated from large and small (identified as “residential” land parcels) Spanish and Mexican land grants.  The larger grants were known as “Rancho Grants”.  In at least one instance, a major portion of a rancho was subsequently subdivided in the manner identical to that employed in the Public Domain.  However, survey retracements for chains of title in this latter portion of the rancho lands do not adhere to the classic retracement protocols for real estate boundaries contained within the Public Domain.

	The title to lands in Texas were never under the jurisdiction of the Public Domain, because Texas entered the United States as an equal, and all crown title origins originate under the treaty of succession and independence of Texas.  For the most part, all the real estate for reservations for Native Americans have separate, very distinct title origins, which are based upon formal treaties between the United States and the various tribes/nations.  However, in some locations around the United States, there were specific grants of land conveyed to individual Native Americans which were not authorized by formal treaty, or are governed by the negotiated U.S. - Native American treaties.  These latter types of conveyances are relatively few, but each must be carefully studied to understand the many title nuances.

	When a title search is performed, the history and tradition contained in the early generations of title transfer become manifest.  If a “title search” for a property is requested, the length, depth, and scope of the “research” varies.  Before the mid twentieth century, a significant percentage of the title searches originated with the original patent.  In lands where a larger property was subdivided, it has been the usual practice to “terminate” the original title record, and initiate a new title record commencing with the formal and legal authorization of the creation of the development (subdivision).  Usually, any encumbrances existing at the end of the old title search do not terminate but continue, and each incident must be carefully researched to validate its effects on the current title.  In the last several decades, when an original title search had not been previously compiled, the current title history frequently cites a history of four to six decades.  This time limit usually identifies significant discrepancies such as liens, tax delinquencies, mortgages, etc. for that period.  Unfortunately, for this abbreviated period, these title investigations fail to contain all the salient encumbrances as to permitted or restrictive usage of the real estate, which occurred earlier.  Many of these encumbrances refer to easements.  Easements may have either specific or open ended terms of existence (length of time), but can only be used for the intention/purpose mentioned in the granting document.  Even though an executed easement is not cited in subsequent title transfers of the real property, the courts have stated that the easement is not extinguished.  If subsequent easements cross a property and need to traverse existing easements (called senior easements), then the possessor of the senior easement must authorize the latter easement’s owner(s) rights to cross the former easement, and these rights are junior or subservient.  Owners of easements and owners of the encumbered lands over which easements exist, or their assigns in law, generally are the only parties who can terminate an easement.  However, easements can be terminated through legal action in the courts.  Easements can be created by unwritten means in a manner similar to use in the transfer of real property.  Both procedures are specifically described in the state’s annotated legal code.  Unless a length of time is stipulated in the easement (document) as mentioned earlier, non use of an easement usually does not terminate the easement.  In New England and the Central Atlantic States where hydro-power operated grist mill, saw mills, etc., existed, hundreds of easements from the eighteenth and nineteenth centuries for the flume and or canals/channels remain active easements.  In the Public Domain, there exist numerous easements granted for specific and general purposes in numerous Acts of Congress.  In one instance, and only in Colorado and Wyoming, Congress granted easements for oil pipelines (but did not stipulate their geographic locations).  Until near the end of the first decade in the twentieth century, Congress authorized the General Land Office to issue to specific irrigation districts easements for reservoirs and ditches.  There was also legislation enacted permitting counties to obtain easements over or through lands not conveyed from the Public Domain for the purpose of county roads (usually along section lines) without the county having to submit petitions or maps.  Considerable research of the statutes, land records, and administrative records (federal, state, county, and municipal) can provide invaluable information.  Another serious problem concerning locating the executed easement records, is that a significant portion of the documents have not been filed/recorded in the county clerks’ or county recorder of deeds’ offices.  Other locations for copies of these documents could be the lessee offices; the state or county engineers’ offices; state and county road department’s offices; private utilities’ offices; municipal and local government offices; etc.  Although these depositories are not the “official depository”, the executed documents are admissible evidence that an encumbrance exists.

	In recent decades, those lands which might previously have been created as easements, now have been created employing the legal principle of a license.  Licenses usually provide a more revocable right, privilege, or permission to enter upon or do acts upon another’s lands.  Licenses are usually temporary, may not be bought or sold, and are revocable at any time, and their creation is usually contained in a written record.  Although the legal concepts and philosophies of licenses are well established, their usage in real property matters have not been prominent.  In some instances, the document creating the right/interest to the property, has to be adjudicated as either a license or an easement.

	In recent times (the last several decades) a “blanket or encompassing” easement, has been created in law.  One of the most commonly identified blanket easement has been executed by rural electric associations.  These were expedient actions in which the land owner gave permission to enter their personal real property and place power poles and other electric distribution equipment to provide electric power.  These easements could encumber the owner of these lands from performing any permanent construction without the acquiescence of the easement holder, even though the improvement might not interfere with the lessee’s usage.  Also, lending institutions carefully inspect property (title history) for easements to determine potential conflicts.  Recently in Wyoming, a developer purchased a large parcel of land for subdivision development.  This parcel contained an REA blanket easement.  The lending institution was reticent to provide development funding.  Negotiations between the developer and REA ensued with REA releasing its blanket easement, and in return, the developer issued new easements for existing equipment.  Other easements have been created by actions or inactions of the parties.  Potential easements can be identified by careful on-the-ground research.  The REA and other blanket easements often are “headaches” to real property title examiners.  In many REA organizations, the executed easements were never recorded in the county clerk’s office.  In one REA office in western Nebraska and eastern Wyoming, all the executed easements have been placed in file folders in the organization’s central office (in a file cabinet).

	In western Public Domain states, some of the lands conveyed after the American Civil War were patented as “split estates”.  The “splits” are surface title, and subsurface title.  The subsurface title addresses title to mineral resources.  By having a split estate, there is automatically created the right of an access easement (not usually located) across the surface to gain access to the subsurface resources.  It is usually left to the owners of the two estates to negotiate access and subsequent damages.

	In recent years, some easements have been created by statute.  In western Wyoming, long existing wild life migration routes (of several hundred miles) between the winter and summer ranges have been identified and mapped.  Land developments across these routes have established impediments to safe and continuous migrations.  Therefore, easements have been drawn providing corridors for migration, and the owners of those lands must remove or minimize migration impediments.  Other easements have been created for solar radiation and scenic views.

	One topical area of real property title not presented in detail herein pertains to mineral lands.  Mineral land law is a specialized subset of real property law.  Where active mineral extraction and exploration has or is being performed in the Public Domain, a special land surveyor - known as the Federal Mineral Surveyor, who is registered under the U.S. Bureau of Land Management, and is not restricted to practice in a particular state - executes the surveys and assists in preparing the requisite plats and reports.  There are three general types of “land parcels” associated with this subject.  These are:  lode claim - pertains to mineral deposits in the form of veins in the parent rock; placer claims - pertains to mineral deposits placed on or near the earth’s surface due to erosion, water transportation, and alluvial action; and  mill sites - pertains to a small surface parcel of land upon which a stamp mill crushes the ore to form a concentrate which removes a majority of the non mineral bearing rock and extracts the desired minerals.  Since this is a relatively small professional practice activity, it is only mentioned, and shall not be discussed here.

Pre-Design Project Planning

	The background information about real property has been presented, because histories addressing this topic, fail to detail the continuity and intermingling of real property law; legislative fiat; administrative/regulatory procedures; common law; and “tradition” which have, for the most part, evolved from the fourteenth century (English), and in some locations French, Spanish, and Dutch, legal precedence.  Serious students should read The Common Law and The Collected Legal Papers by Oliver Wendell Holmes, Jr., which provide invaluable philosophical insight into the developments and nuances of the development of American law.  Unfortunately, many law schools do not require these works to be mandatory reading for aspiring attorneys-at -law.

	Projects are usually proposed and constructed based upon the professional, technical, and administrative elements required to plan, design, and build.  These elements may have technical oversights; federal, state, and local governmental statutes; federal, state, and local regulations; permitting and inspections; and final approvals for occupancy.  Design professionals address the design elements, which usually contain the technical oversights which are “design codes” containing minimum guidelines.

	If the project is an entirely new facility or a major addition, the first requirement is a boundary  - topographic map detailing the surface, subsurface and aerial (near ground) conditions.  If the property is not currently owned by the organization, this survey should be produced as part of the title closing.  This survey does not usually need to be performed to conform with the American Land Title Association (ALTA) requirements, as the ALTA product is extremely expensive, and many of the mapped components are not required.  Prior to the survey, a detailed title search should be initiated, or if existing, updated.  Remember, that in the eastern one-half of the United States, valid and active legal encumbrances can date as far back at the seventeenth century.  Environmental issues (surface and subsurface) are elements which must be identified, located, and addressed/mitigated.  In some jurisdictions, even small environmental problems can either terminate or delay development.  Also, the clean-up of environmental hazards may require years or decades.

	The information incorporated in this survey/map is listed below.
		a.	Boundary survey which depicts:
				i.	Dimensions (bearings/azimuths; horizontal distances; areas; etc.).
				ii.	The Liber (book) and page(s) of the latest deed or deeds for the entire property being mapped.
				iii.	Identity of current adjoiners, including deed/page of filing information in the county/parish repositories and/or county/municipal tax parcel identifier.  This includes the adjacent highways, streets, and alleys.
				iv.	Boundary corner monuments, or witnesses (with dimensions) to the actual corner locations.
		b.	All easements above, on, or below ground, which either serve the site or traverse the site and encumber the title of the property.  The official documents creating these easements shall be referenced on the map and in the Report of Survey.
		c.	Air rights or restrictions (e.g.: maximum height of building and/or scenic view easements).
		d.	Adjacent ingress/egress corridors to the site - roads/streets; alleys; green ways; access/egress easements; etc.  The survey should include the easement’s dimensions and location.  Also, the “owner and/or maintainer of the highways, roads/streets/alleys must be identified in order to acquire ingress/egress permits (curb cuts, permission to build in the easement, etc.).
		e.	All public and private utilities which could service the site (i.e.: gas lines; water lines; sanitary sewer; storm sewer or surface drainage; telephone lines; cable television service; electrical service; security service; hydrants; valve boxes; manholes; meter boxes; etc.
		f.	Any encumbrances which could affect site development (under-ground or above-ground transmission lines).
		g.	Flood plain locations and classifications (A-flood zone; 2-year; 5-year, etc.) must be identified.  If no flood plains cross or are near the site, then a statement is made (in “Remarks”).  All the sources for flood plain information are reviewed, the original date of the source and the surveyor’s date of review are cited.  Flood plain designations/determinations and modifications are constantly being revised and updated.  These flood plain maps are published by FEMA.  In one county of Wyoming, the original flood plain map was generated in 1976 as “preliminary”.  The maps were very crude tracings of the existing U.S.G.S. topographic maps with the designation “type ‘A’ flood plain” drawn employing a broad felt-tipped pen.  The demarcations did not follow the vertical aspects of the topography.  About eight years later, a one page letter was issued stating that the existing maps were to be upgraded to final flood plain maps by deleting the “preliminary” notation and referencing this one page letter.  In this one county, the annotation was never applied (implemented).  However, in the Wyoming State office of Homeland Security (location of the state FEMA coordinator) the same set of maps had been annotated.  Normally, it is the practice of researchers to go to the county files for the flood plain determination.  In this instance, reviewing the county files would have mislead the investigator.  The local offices for maintaining the flood plain maps varies in governmental entities.  The exact location of the flood plain is necessary to issue building permits and to obtain appropriate post construction flood insurance.  If the existing flood plain impacts the site, then redesigning the storm runoff channel necessary to move the improvements out of the flood plain and the preparing a FEMA flood plain modification application is usually a long term process (six months or even years).
		h.	Current zoning and land use parcel identifiers, including the source of the information and the date obtained.  This information is annotated on the map.  If these zoning and parcel identifiers are inappropriate for the future development, this knowledge provides ample opportunity to initiate applications for changes and variances.
		i.	Building code setbacks from the street, sidelines, and rear boundary are shown.  Also, if the setbacks existing on adjoiners and in the neighborhood vary from those for the lands being surveyed, they should be identified and noted.  If the area being developed has covenants which have more restrictive setback/side lot restriction, then these are shown or stated, and the less restrictive items are published in a footnote.
		j.	Location of soil samples and percolation test sites.
		k.	Location of existing foundations, wells, septic tanks and leach beds, “archaeological” sites, mines and borrow pits, hazardous chemical sites and dumps, etc.
		l.	Location of the services for water, gas, sewer, electricity, telephone, etc.  These include the service controls (valve boxes, meter boxes, sewer clean outs, etc.).  In many areas of the country, there are professional locator services who provide “locates” for design professionals.
		m.	If there are extensive and expensive irrigations systems (sprinkle systems) it might be appropriate to map these systems, including the control/meter boxes.
		n.	The frequency storm runoff is an important aspect of the design and construction.  Oversight agencies may have regulations concerning the increase of post construction storm runoff.  This means that the pre-design/construction topography must be adequately mapped to evaluate surface runoff, location and time of concentration, and current off-site drainage of the discharge.  After the design for construction (not the “abstract” design concept) is completed, engineers must determine the revised storm water hydrological model.  If there is a significant increase in the volume of the runoff due to construction, plans may be required to retain the excess runoff and reduce the rate of discharge into new or existing local/regional drainage systems.

Concluding Comments

	The pre design site plan is used by all the design professionals to layout, design, and construct the project.  Based upon the topics/issues contained in “Pre-Design Project Planning”, the resulting map product could be a single map, or several maps (layers), presenting all the cartographic information.  The number of maps produced depends upon the quantity of information presented.  It is possible that two to as many as five layers might be required for a project area.  The land surveyor and planner should work closely together to prepare a comprehensive and useful resource for the design team.  It is also the first opportunity to provide a thorough inventory of the site’s real property title conditions, encumbrances, and the conditions which could affect design and construction.  The site plan should be considered a part of the project design package, even though it may not be incorporated into the final construction plans.  The inclusion or exclusion of the site plan is the decision of the lead designer.  The site plan should always be considered a portion of the contract drawings and specifications.  As such, the pre-design site plan becomes a bona fide legal document accepted by the courts and regulators to ascertain compliance and responsibility when litigation results from disagreements between regulatory oversight organizations, design professionals, contractors and subcontractors, and owner(s).

	The information contained herein is not all-inclusive, but outlines historical background about real property titles, title encumbrances, and commonly required site information.  The owner and the design professionals must determine if, in the area of the construction, additional site information is required by various statutory or regulatory agencies.  Usually, the “Building Department”, who review the design drawings; issues construction permits; oversee construction inspection; collects materials check lists; and recommend compliance for issuance of certificate(s) of occupancy may have additional site plan needs.  

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About the Author:	Dr. Herbert W. Stoughton received his three engineering degrees in civil and geodetic engineering from the University of Michigan.  He has spent over fifty years in the engineering and surveying professions working for federal and municipal governmental agencies; teaching surveying and engineering at several post secondary academic institutions; and performing private consulting.   He currently serves as the chairman of the Building Commission for the Diocese of Cheyenne.

Memorandum for Record (MFR):  This background document was written for the Conference for Catholic Management, Tract 1604: “Pre-Design Site Planning” (Phoenix: 28 - 30 April 2016).   

file:	c:\my documents\diochey\sitedes2.wpd
date:	2 April 2016
author:	Herbert W. Stoughton, Ph.D., P.E., P.L.S., C.P.