Openings against a property line vs an access easement

[chrisrog]

I am working on a 5 story urban apartment building. The egress stairs are coming down adjacent to the exterior side wall, which its right up against the property line. The building owner has an access easement with the adjacent landowner. The resulting driveway is used to access the basement parking of our building. I this scenario, can we use an assumed property line equidistant between this building and the adjacent building as you would with two buildings on the same piece of property, or must we hold to the rules of the actual property line in regards to openings, wall ratings, etc.

Thanks!

 

[classicT]

I'd suggest holding to the actual property line. Easements have their ways of coming and going.

 

[chrisrog]

I'd suggest holding to the actual property line. Easements have their ways of coming and going.

I'm attempting to push for holding to the actual property line, but the owner is pushing for windows and doors on that side facade, so I need to bolster my argument to make certain I haven't missed an exception.

 

[chrisrog]

Can an Access Easement be considered a Public Way? The Definition of Public Way is: A street, alley, or other parcel of land open to the outside air leading to a street, that has been deeded, dedicated or otherwise permanently appropriated to the public for public use and which has a clear width and height of not less than 10 feet.

Seems to me that with the appropriate legal restrictions on the access easement located on the adjacent property we might gain some maneuvering room?

 

[classicT]

Can an Access Easement be considered a Public Way? The Definition of Public Way is: A street, alley, or other parcel of land open to the outside air leading to a street, that has been deeded, dedicated or otherwise permanently appropriated to the public for public use and which has a clear width and height of not less than 10 feet.

Seems to me that with the appropriate legal restrictions on the access easement located on the adjacent property we might gain some maneuvering room?

The trouble is in the "permanently appropriated to the public for public use". 99% of easements do not do this. Conventionally, easements are not permanent; upon agreement of the entitled parties, they can be revoked. And #2, easements do not typically benefit the public; they are typically granted by one party to another party, by either name, parcel ID, etc.

 

[ICE]

As I understand this, the building is now or will be placed on the property line. An easement has been obtained for the purpose of a driveway which provides access to a parking garage. If that is correct, the property line has not moved and the stairs and openings can't be there. That would include the opening to the parking garage.

 

[Yikes]

Note the definition of "lot" in IBC 202: "A portion or parcel of land considered as one unit".
In ownership legal theory, a well-crafted easement between two lots can allow the easement area to be considered as a "unit" for specific, defined purposes. For code purposes, the easement can be crafted such that assumed property line can be shifted to the easement line.

I have had a similar projects in the past where the building official approved an easement on an adjacent property for multiple code purposes, including opening protection, allowable area increase, exit discharge to a public right of way, and (zoning) parking lot access.

Essentially the OP is asking about a "no-build" easement for purposes of fire separation and egress with adjacent property, in perpetuity until the building is either demolished or altered to the satisfaction of the authorities having jurisdiction. The rationale must be clearly stated in the recorded easement documents.

Some here are expressing concern that "easements come and go", but you (or a good land use attorney) can craft the easement to make it ironclad.

 

[chrisrog]

As I understand this, the building is now or will be placed on the property line. An easement has been obtained for the purpose of a driveway which provides access to a parking garage. If that is correct, the property line has not moved and the stairs and openings can't be there. That would include the opening to the parking garage.

Correct, the building is on the side property line with the easement on the other side of the property line. The building is an L shape, with the ramp into the parking garage at a right angle to the access easement and parallel to the rear property line. The opening into the parking garage is at the bottom of the ramp through a wall that is perpendicular to the rear property line.

I wish there was a way to include photos or screen shots without having to have them hosted on a different website.

 

[ICE]

Note the definition of "lot" in IBC 202: "A portion or parcel of land considered as one unit".
In ownership legal theory, a well-crafted easement between two lots can allow the easement area to be considered as a "unit" for specific, defined purposes. For code purposes, the easement can be crafted such that assumed property line can be shifted to the easement line.

I have had a similar projects in the past where the building official approved an easement on an adjacent property for multiple code purposes, including opening protection, allowable area increase, exit discharge to a public right of way, and (zoning) parking lot access.

Essentially the OP is asking about a "no-build" easement for purposes of fire separation and egress with adjacent property, in perpetuity until the building is either demolished or altered to the satisfaction of the authorities having jurisdiction. The rationale must be clearly stated in the recorded easement documents.

Some here are expressing concern that "easements come and go", but you (or a good land use attorney) can craft the easement to make it ironclad.

That sounds like a lot line adjustment.

 

[chrisrog]

Note the definition of "lot" in IBC 202: "A portion or parcel of land considered as one unit".
In ownership legal theory, a well-crafted easement between two lots can allow the easement area to be considered as a "unit" for specific, defined purposes. For code purposes, the easement can be crafted such that assumed property line can be shifted to the easement line.

I have had a similar projects in the past where the building official approved an easement on an adjacent property for multiple code purposes, including opening protection, allowable area increase, exit discharge to a public right of way, and (zoning) parking lot access.

Essentially the OP is asking about a "no-build" easement for purposes of fire separation and egress with adjacent property, in perpetuity until the building is either demolished or altered to the satisfaction of the authorities having jurisdiction. The rationale must be clearly stated in the recorded easement documents.

Some here are expressing concern that "easements come and go", but you (or a good land use attorney) can craft the easement to make it ironclad.

It's sounds like I need to do a code study to see if running an assumed property line down the middle of the easement really gains adequate protection for the building, and if so, turn this back over to the owner's attorney to hash it out with the city.

 

[Yikes]

That sounds like a lot line adjustment.

It functions similar to a lot line adjustment, except that the underlying land ownership remains the unchanged.

Example:

An affordable senior housing project built next to another lot being used as on-grade, open-to-the-sky parking. The parking lot's drive aisle was next to the property line, and this aisle would also provide the 26' wide fire apparatus access road for the apartment.
Housing project also needed an allowable area (yard) increase, but the funders did not want to be responsible for ownership/operation/liability of the parking lot. Also, by keeping the apartment lot as small as possible, the housing project has a higher net density, which is more appealing to some affordable housing funding sources.
A no-build + access easement was recorded on the parking lot drive aisle, allowing the housing project to benefit form an assumed property line, while keeping the parking lot owner responsible for the day-to-day management of the parking lot and drive aisle.

 

[Mr. Inspector]

I wish there was a way to include photos or screen shots without having to have them hosted on a different website.

I'ts easy if you are a Sawhorse member

 

[chrisrog]

Following up on this one. The Code defines FIRE SEPARATION DISTANCE as: ...distance from building face to...2)...centerline of a PUBLIC WAY...
Code defines PUBLIC WAY as Street, alley or other parcel of land....that has been deeded, dedicated, or otherwise permanently appropriated to the public for public use...
Based on these definitions the owner has instructed me to design the building as if the access easement is an alley. I've told them they are responsible for getting written City agreement that the Building Official and Fire Marshall agree that the piece of property is properly encumbered to meet the intent of the Building Code.

 

[Yikes]

I don't know if this helps, but here's an excerpt from ICBO's old (1995) "Handbook To The Uniform Building Code", section 505.1 called "Yards and public ways - What can and can't be used." Look in the lower left corner, the paragraph that starts with the question, "why can't I use the big open field next door for area increases?"
Although this discussion is for purposes of area increases, it does touch upon the implications of relying on a neighbor's property for purposes of code compliance on your own property.

 

[chrisrog]

I don't know if this helps, but here's an excerpt from ICBO's old (1995) "Handbook To The Uniform Building Code", section 505.1 called "Yards and public ways - What can and can't be used." Look in the lower left corner, the paragraph that starts with the question, "why can't I use the big open field next door for area increases?"
Although this discussion is for purposes of area increases, it does touch upon the implications of relying on a neighbor's property for purposes of code compliance on your own property.

View attachment 8512

Thanks. This does seem to confirm that in the ICBO era our scenario was allowed, provided the space would legally remain open forever.