Monterey County Municipal Code Ch. 16.80 Regulations Relating to Applications Involving Use of Private Roads

The purpose of this Chapter is to establish regulations relating to the issuance of certain discretionary permits or entitlements pursuant to Titles 20 or 21 of this Code that may result in the intensification of use of a privately-owned road.

(Ord. No. 5318, § 2, 9-17-2019)

These regulations apply to the unincorporated area of Monterey County. Where a conflict exists between the provisions of this Chapter and other provisions of the Monterey County Code, the provisions of this Chapter shall prevail.

(Ord. No. 5318, § 2, 9-17-2019)

The following definitions shall apply to this Chapter:

A. "Applicant" means the person or entity who submits an application to the County for a discretionary permit pursuant to Titles 19, 20 or 21 of this Code.

B. "Application" means an application for a land use project requiring a discretionary permit.

C. "Appropriate Authority" means that person, official, or body designated to hear, grant, deny, modify, condition, revoke or otherwise act on permits required by Titles 20 and 21 of this Code.

D. "County" means the County of Monterey.

E. "Final settlement or final judicial determination" means a written agreement between interested parties resolved personally or through other avenues, including but not limited to mediation, arbitration, or a document evidencing a binding arbitration decision or final court judgment.

F. "Interested party" means any person or entity that owns property abutting a private road, but that is not a party to a private road.

G. "Notice" means written notice of an application provided to all parties to a private road and interested parties that will be used to access a project, such notice to be personally delivered or deposited in the United States Mail, first class postage pre-paid.

H. "Party to a private road" means:

1. Any person or entity that owns the underlying fee interest in land that is subject to and burdened by a private road, such as the servient tenement in the case of an easement; and

2. Any person or entity that holds an interest in the private road and benefits from it, such as the dominant tenement in the case of an easement.

I. "Private road" means any travelled way, avenue, place, drive, lane, street, boulevard, highway, easement, or alley not owned, maintained, nor required to be maintained by the state, County, incorporated city, or other public agency, except that the term "private road" for purposes of this Chapter shall include quasi-private roads that have all of the following characteristics: the road is under the jurisdiction of a federal governmental agency; it lies on national forest or private land; it is open to public use; and private users bear or contribute directly to the cost of maintenance.

J. "Private road agreement" means any document of record, properly executed and recorded, that is an agreement between parties concerning the right to use private property as access to another parcel of private property. A private road agreement may include, without limitation, a written contract, an easement, grant deed, reservation or a designation on a final subdivision map. A private road agreement also includes a final court judgment documenting an easement or other right of access.

K. "Private road maintenance agreement" means a document of record, properly executed and recorded, that is an agreement between parties to a private road concerning the costs and responsibilities of those parties for upkeep and repair of the private road.

L. "Project" means:

1. A use for which a discretionary permit, license or other entitlement from the County is required; or a change in land use from an agricultural designation (Farmland, Permanent Grazing, Rural Grazing) to a non-agricultural designation; and

2. In either case, where access to the property from a public road is, or will be, provided either primarily or subordinately by a private road.

M. "Proof of access" means one or more of the following:

1. Written concurrence of all parties to a private road;

2. Existence of a final settlement or final judicial determination that the private road may be used to access the project; or

3. A properly executed private road agreement.

(Ord. No. 5318, § 2, 9-17-2019)

A. An applicant shall provide the following, if applicable, with any application submitted pursuant to Titles 19, 20 or 21 of this Code, and an application will not be deemed complete until the information or documentation required is provided:

1. A copy of the private road agreement;

2. A copy of the private road maintenance agreement;

3. Written permission to use a private road for the project from a private road governing structure; and

4. A site plan that includes, but is not limited to, documentation showing existing access limits and minimum access requirements from the project to the primary public road or right-of-way. If access does not meet minimum requirements of the local Fire Authority and Monterey County Resource Management Agency, the applicant must demonstrate the ability to meet the minimum level of improvements required.

B. Upon submittal of an application, the Chief of Planning, or his or her designee, shall:

1. Provide notice pursuant to Subsection C of this Section;

2. Review the application to determine if the project is exempt pursuant to Subsection D of this Section;

3. If the application is not exempt pursuant to Subsection D, the Chief of Planning, or his or her designee, shall classify the project as belonging within one of the following categories:

a. Tier 1: the project is not subject to a private road agreement or a private road maintenance agreement;

b. Tier 2: the project is not subject to a private road agreement, but is subject to a private road maintenance agreement;

c. Tier 3: the project is subject to a private road agreement, but not a private road maintenance agreement; or

d. Tier 4: the project is subject to a private road agreement and a private road maintenance agreement.

C. Upon submittal of an application, the Chief of Planning, or his or her designee, shall meet the following notice requirements:

1. Provide notice of a project to all parties to a private road and interested parties within ten (10) working days of submittal of an application for a project, except notice is not required for the following types of projects:

a. The first single family dwelling on a legal lot of record;

b. Any action authorized by an emergency permit issued pursuant to Chapters 20.79 or 21.75 of this Code, provided that such action exists or occurs only so long as the emergency permit is effective;

c. Projects with access via public road(s) only;

d. Projects whose use of a private road is limited to emergency access only;

e. Routine and ongoing agricultural uses;

f. Accessory dwelling units, guesthouses, and/or other subordinate uses that are accessory to the primary use of the property; and

g. Projects with access via a private road(s) that are subject to a legally established private road governing structure such as a homeowners' association or similar organization where said governing structure is authorized to make determinations regarding the use, maintenance, and related matters regarding the private road(s) and where such governing structure has provided written permission to use the private road(s) for the project. Examples of projects within this exception may include but are not limited to projects considered allowed uses within the Del Monte Forest area, the Monterra and Tehama subdivisions, and similar subdivisions with previously contemplated allowed uses and private road governing structures. This exemption does not apply if access to the private road(s) subject to the governing structure is accessed by another private road(s) not subject to the governing structure. In such a case, notice shall be provided to interested parties outside of the jurisdiction of the governing structure.

2. The notice shall provide the opportunity for any party to a private road to object to the use of the private road, for purposes of the project, within thirty (30) days from the mailing of the notice. The purpose of this notice and objection is to provide an opportunity for resolution of disputes prior to consideration of the project by the Appropriate Authority, or for staff to consider a recommendation following the provisions of this Chapter. For the purposes of this Chapter, objections from interested parties who own land abutting a private road shall be considered on a case by case basis. Objections from interested parties shall not provide a basis for applying the conditions described in Section 16.80.060 of this Chapter.

3. The notice may include notification of the Land Use Advisory Committee meeting where the project will be considered if such consideration is required pursuant to the Land Use Advisory Committee Procedures adopted by the Board of Supervisors.

D. The following types of projects shall be exempt from the regulations contained in Sections 16.80.050 and 16.80.060 of this Chapter:

1. The first single family dwelling on a legal lot of record;

2. Any action authorized by an emergency permit issued pursuant to Chapters 20.79 or 21.75 of this Code, provided that such action exists or occurs only so long as the emergency permit is effective;

3. Projects with access via public road(s) only;

4. Projects whose use of a private road is limited to emergency access only;

5. Projects that, in the opinion of the Chief of Planning, do not result in intensification of the use of a private road(s);

6. Projects with access via a private road(s) that are subject to a legally established private road governing structure such as a homeowners' association or similar organization where said governing structure is authorized to make determinations regarding the use, maintenance, and related matters regarding the private road(s) and where such governing structure has provided written permission to use the private road(s) for the project. This exemption does not apply if access to the private road(s) subject to the governing structure is accessed by another private road(s) not subject to the governing structure. In such a case, the project is not exempt from the regulations contained in Sections 16.80.050 and 16.80.060 of this Chapter;

7. Routine and ongoing agricultural uses;

8. Accessory dwelling units, guesthouses, and/or other subordinate uses that are accessory to the primary use of the property; and

9. A federal project on a private road.

E. In all cases, applicants are encouraged to provide early notification of a project to interested parties and parties to the private road and to work collaboratively with all parties to resolve issues. For projects falling within Tier 1, Tier 2, or Tier 3, applicants are encouraged to prepare or cause to be prepared, executed and recorded, private road agreements and/or private road maintenance agreements, as the case may be.

(Ord. No. 5318, § 2, 9-17-2019)

For all nonexempt projects, the following standards, based on substantial evidence in the record, shall apply:

A. Tier 1 Projects: the Appropriate Authority shall consider any objection from a party to a private road regarding access a substantive dispute and shall either deny the project on that basis or approve the project subject to the proof of access condition and/or the private road maintenance condition described in Section 16.80.060 of this Chapter.

B. Tier 2 Projects: the Appropriate Authority shall consider any objection from a party to a private road regarding the legal rights to use a private road for the project a substantive dispute and shall either deny the project on that basis or approve the project subject to the proof of access condition described in Section 16.80.060 of this Chapter. Matters of proportionate costs for repair and maintenance of such roads shall be subject to the terms of the private road maintenance agreement.

C. Tier 3 Projects: the Appropriate Authority shall rely on the plain language of the private road agreement regarding rights of access. If an objection is made involving proportionate costs for repair and maintenance of the private road(s), the Appropriate Authority shall consider an objection of fifty percent (50%) or more of the parties to a private road agreement a substantive dispute and in this case, shall either deny the project on that basis or approve the project subject to the private road maintenance condition described in Section 16.80.060 of this Chapter. An objection of fifty percent (50%) or more of the parties to a private road agreement shall be determined on a one vote per lot basis.

D. Tier 4 Projects: the Appropriate Authority shall rely on the plain language of the private road agreement and private road maintenance agreement regarding rights of access and proportionate costs for repair and maintenance. Unless a project proposes a use that is clearly inconsistent with the plain language of the agreements, the Appropriate Authority may approve a project without applying conditions to the project outlined in this Chapter.

E. The "Tiers" described above are intended to provide standards that the Appropriate Authority will apply when considering an application for a project that is not exempt from the requirements of this Chapter pursuant to Section 16.80.040 and that involves a substantive dispute over the private road as described within the applicable Tier. Generally, where a legally executed document exists, the County will consider such documentation to be adequate evidence to demonstrate access for the purposes of this Chapter and conditions of approval will not typically be warranted where such documentation exists. In all cases, regardless of whether the Appropriate Authority elects to apply a condition of approval to a project, interested parties, parties to a private road, and/or applicants may have legal rights under the California Civil Code, and nothing in this Chapter is intended to preclude their exercise of rights under the California Civil Code.

(Ord. No. 5318, § 2, 9-17-2019)

A. If the Appropriate Authority finds, based on substantial evidence in the record, that a substantive dispute exists regarding the use of a private road for a project, said authority may approve the project but shall require as a condition of project approval that the applicant provide the County with proof of access demonstrating that the dispute has been satisfactorily resolved, in accordance with the Tier standards set forth above.

B. If the Appropriate Authority finds, based on substantial evidence in the record and in accordance with the Tier standards set forth above, that a substantive dispute exists regarding the costs of repairing or maintaining a private road as it relates to a project, said authority may approve the project but shall require as a condition of project approval that the applicant provide the County with adequate documentation demonstrating that the dispute has been satisfactorily resolved. For the purposes of this Chapter, adequate documentation may include written withdrawal of objections, a properly executed private road maintenance agreement, a final settlement or final judicial determination, or written documentation showing that a majority of the parties to a private road have agreed to repair and maintenance terms in light of the project.

C. Maintenance of any private road will be subject to a private road maintenance agreement, or if no such agreement exists, then County recognizes that parties may have recourse pursuant to California Civil Code Section 845. The County is not a party to such private road maintenance agreement and does not interpret or enforce their terms and conditions, nor does the County have jurisdiction to adjudicate a dispute among the parties as to the maintenance of any private road.

D. If a condition of approval is added to a project pursuant to this Chapter, said condition shall be satisfied prior to issuance of any other permits in furtherance of the project or recordation of a final map, whichever occurs first and as applicable.

E. If a project is approved subject to one or more of the conditions provided in this Chapter, the Chief of Planning shall, in his or her discretion, have the authority to stay the expiration of the entitlement for the project for a period no greater than the number of days from initial filing of judicial proceedings to the final judicial determination or settlement regarding the access dispute.

(Ord. No. 5318, § 2, 9-17-2019)

A. Nothing in this Chapter affects the authority of the County to exercise the power of eminent domain pursuant to Government Code section 66462.5 of the California Subdivision Map Act.

B. Nothing in this Chapter diminishes or in any way alters or lessens the effect of the California Civil Code. Where a conflict exists between these provisions and the provisions of state or federal laws, the state or federal law shall prevail.

(Ord. No. 5318, § 2, 9-17-2019)