A Proposal To Improve Institutional Control Effectiveness Through Better Mapping

IC ProposalTry to read a typical institutional control (IC) and locate its boundaries. We bet you can’t. You will find a complicated legal description referring to metes and bounds, but not a map of the restricted areas that you can actually see and understand. Only licensed surveyors can decipher these legal descriptions, but all the parties who need to comply with the restrictions – developers, excavators, well drillers, etc. as well as environmental agencies and others who want to build online maps cannot readily know the area where the IC’s health and safety precautions apply.

Consistent with common environmental compliance practice, IC practitioners routinely recognize that communicating ICs to affected parties is the key to success. And at the core of communication is easy access to IC boundary location. Without IC boundary maps, an IC could inadvertently be breached causing health impact or remedy damage. The lack of IC maps weakens the force of ICs and undermines future IC compliance.

In this post, we propose a process for supplementing conventional legal descriptions with the addition of information describing a geographic map, including latitude and longitudes, of IC boundaries. This proposal would not impact the longstanding requirements for legal descriptions, but rather would add the requirement that all recorded ICs also include IC boundary location in a geographic map format. This would enormously improve the ability of environmental agencies and others to make online IC maps widely accessible – a key component for improved IC compliance.

Proprietary Institutional Controls and the Land Recording Process

The subset of ICs called proprietary controls is the most common. These controls are typically short documents that describe restrictions related to environmental contamination, and they are always recorded in the official land records against the property they affect. Common types include environmental covenants and environmental easements and many use the umbrella term “deed restrictions” to describe proprietary controls. These controls “run with the land” – which means they pass from one owner to the next and in the most common situation they can be enforced by environmental regulatory agencies. However, other parties including prior owners, local governments and others can often enforce these controls as well. (See Chapter 1 of Implementing Institutional Controls at Brownfields and Other Contaminated Sites edited by Amy Edwards for a thorough overview of proprietary controls.)

Proprietary controls sometimes affect the entire parcel to which they attach, and sometimes they affect only portions of a parcel. In either case, complicated legal descriptions meaning long paragraphs filled with references to metes, bounds, northing, easting, etc. – describe the area restricted. ICs do not ordinarily include latitude/longitude coordinates to describe the area impacted, nor other types of maps. As a result, the many environmental agencies who build online systems to depict ICs have not been able to map the IC boundaries. Instead, you’ll find point locations estimating IC locations, and in some cases links to the IC where you’ll be lead to complex legal descriptions describing the impacted area.

Why don’t ICs include useful maps? In short, because a maps showing IC boundaries are not required when recording proprietary controls in the land records. The IC recording process abides by the longstanding process (dating back hundreds of years) for recording property rights, and this process relies on legal descriptions. For ICs, the process involves the party agreeing to restrict property (grantor) and the party who can enforce the restriction (grantee) recording their agreed restriction at the County recorder. The County recorder indexes the agreement in a grantor-grantee index. The recorder’s index is not a map-based index, but rather an index of recording parties that allows for searching of all recorded instrument (including ICs) based on the names of the grantor and grantees and the various dates of instrument filings. A title company in a real estate transaction commonly will use these indexes to make sure that new buyers are notified of the ICs. Once identified, land surveyors can then resolve the exact location of the recorded IC based on its legal description. These county-level grantor-grantee indexes maintain a property record system that works even as lots subdivide or join or the land is no longer recognizable to the land at the time of recording. Therefore, the grantor and grantee do not need maps to generate the restriction, merely a description of the property that a surveyor could draw based on metes and bound statements.

This longstanding process serves the legal need to provide “constructive notice” for new purchasers as to the existence of an IC which is the primary purpose of land recording. But ICs pose additional challenges. For ICs, the historical recording process doesn’t serve the need for communicating and notifying the various parties who may perform land activities during the intervening years between transactions we need maps to serve that need.

Multiple institutional controls in Palo Alto, California.

Geographic Mapping vs. a Legal Description

Including maps with ICs would support the public interest to protect health and the environment in areas encumbered by the IC. A geographic map carries latitudes and longitudes. As noted, the inclusion of a map exceeds the minimum obligations that the grantor and grantee must meet to record the covenant. However, providing a geographic description inside the IC would allow the boundaries to be viewed readily in public mapping systems. Planners, excavators and the public then be able to understand the boundaries of an IC or an assemblage of ICs in a city. For example, shown here to the right are ICs in Palo Alto California, where geographic descriptions of ICs enabled a city-wide IC map. With a good IC map, local planners can make decisions informed by the restrictions in separate ICs. IC boundaries are often complex, and may not coincide to the parcel boundary. This map reveals the advantage of showing the area encumbered by an IC rather than a single point. Also agencies can better inspect an IC if they understand its boundaries. A remote landowner may also take comfort that a local government might detect tenant improvements or development activities that would be impacted by ICs.

A Quick Exercise to Map an Institutional Control

This example compares to the legal and geographic descriptions of an IC. Mosts ICs are mapped in legal descriptions with a Point of Beginning (POB). From the POB, metes and bounds describe the area encompassed by the IC. A geographic description contains latitude and longitude. Compare the locational description for the institutional control for United Heckathorn:

  • POB Using Legal Description: “Beginning on the south line of the 3.39 acre strip of land described in the deed to the City of Richmond, recorded August 11, 1948, Book 1272, Official records, page 161, at the northwest corner of the 8.938 acre parcel…”
  • POB Using Geographic Description: “37.92500, -122.36308”

The general public is at an immediate disadvantage with the Legal Description. Book 1272 is not available online, and a copy must be requested from the county recorder. The maps are not free with fees of $50 to $200 to obtain the copies of the underlying tract maps. By comparison, placing the latitudes and longitudes into Google Maps quickly resolves the location of the POB.

A Proposal for Geographic Institutional Control Derivations

We propose: Any IC recorded shall carry a supplemental attachment describing latitude and longitudinal derivation and include a map. This attachment is called a Geographic Institutional Control Description (GICD). Geographic implies a latitude/longitudinal basis to the description as opposed to a legal description. The GICD would augment the covenant and its legal description; the legal force of the covenant remains embedded in the body of the IC.

LatLongPost

The elements of a GICD supplement are as follows:

GICD UnitedHeckathorn

A representative Geographic Institutional Control Description for United Heckathorn made long after the original recording.Terradex has been generating GICD retroactively as we interpret ICs for clients.

  • Latitude/Longitude String. The points are enumerated in decimal latitude and longitude using the WGS84 geographic standard. A minimum of 5 decimal point precision should be applied. With five decimal points, the error in a decimal latitude and longitude point is about 3 feet, a precision adequate to alert a developer, excavator or public of the hazard. The WGS84 projection applicable globally, and should be applied in lieu of state plane mapping coordinate systems.
  • Map. The map clearly delineates the IC boundary with annotation for each of the points. Points on a curve are typically listed at 20 foot intervals.
  • Basis. This is a reference to the authoritative documents for the institutional control and the legal description. The basis varies from conversion of metes and bounds when the POB is known, conversion of metes and bounds with the POB is estimated, matching parcel boundaries when relying on the county recorder maps, assuming an alignment to mapping within environmental documents to the legal descriptions.
  • Derivation. The derivation is a statement of how the map was converted from the authoritative documents to the latitude and longitudinal string. This provides the references to the data standards. Some derivations may be made by placing boundaries shown in remedial documents into the map, with the concurrence of the project manager.
  • Limitations. The legal description remains as the authoritative source of boundary information and supersedes the illustration provided in the geographic description.

The level of effort to make GICD attachments varies. When prepared concurrent with the drafting of the IC and by the same land surveyor that drafts the legal description, the effort to derive latitude and longitudes is minimal compared to preparation of the legal description. The same software that generates legal descriptions also exports latitude and longitude strings. When done retroactively, the level-of-effort increases. Most of Terradex’s GICDs have been prepared long after the IC was recorded. The generation of a “forensic” GICD may require two to twelve hours depending on the site complexity, the nature of legal descriptions, the availability of parties with direct recollection, and access to relied upon tract maps.

Adopting Recommendations for Geographic Descriptions

We believe this GICD proposal could be put into affect immediately by environmental agencies, without the need for any additional legislation. In UECA states, for example, the model Uniform Environmental Covenants Act (UECA) does require deed restrictions to include legally sufficient description of the property.” See UECA 4. However, the UECA statute does not limit the covenant to only that. The UECA statute provides that an environmental covenant may contain other information …” and the explanatory notes specifically describe the use of GICD information (which they refer to as “geospatial data”) for describing areas impacted. With something as simple as the issuance of administrative guidance, environmental agencies could require GICD information as part of recorded ICs.

Agency guidance in at least one state, Colorado, addressed the use of GICD maps though in this case the agency addressed whether GICD information could be used in place of (rather than in addition to) legal descriptions. The Colorado Department of Public Health and Environment in their Institutional Controls Implementation Guidance ( page 13) explained that “[c]reating a valid legal description using GPS technology, instead of using a licensed professional surveyor, is fraught with difficulty,” and instead, favored the legal description approach. While recognizing that GICD information could define IC boundaries, they based their conclusion disfavoring this approach largely on the fact that GICD information is not as precise as metes and bounds-based legal descriptions.

Our proposal, as noted, would retain the precision of legal descriptions while adding supplemental GICD information. This Terradex proposal arose from our experience mapping ICs, where we came to learn first-hand how time intensive and tortuous of a process this can be. In LandWatch, we monitor institutional controls across the US to avert an IC breach. Knowing the location and restriction of an IC is prerequisite to monitoring for a breach. A GICD would enable rapid mapping, and then monitoring of IC effectiveness. As Terradex would benefit, responsible parties, landowners, agencies, developers and the public would also enjoy more reliable and effective ICs, and the derived health, environmental and remedy protection benefits.

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2 Comments

  1. Posted April 21, 2015 at 12:23 pm | Permalink

    Joel Hennessy, U.S. Environmental Protection Agency, Region 3, shared a link and his insights to mapping ICs. Joel and I have been distant colleagues in this mapping effort for many years:

    This is what we have been recommending for years, but we don’t always get it. It can get quite complicated. Here is a link to an environmental covenant for a portion of one of our RCRA Corrective Action sites in Richmond, VA:

    http://www.epa.gov/reg3wcmd/ca/va/covenants/ec_vad066000993.pdf

    The original manufacturing buildings and process long ago ceased, and now it’s a shopping center and is being subdivided. Eventually we will get covenants for all the subdivided parcels. This one was the first, and covers the largest parcel. It opened my eyes to the length and complexity of property descriptions. The property description describes two parcels (Tract 1 and Tract 2). Tract 1 is fairly small. Tract 2 is large, with many curves, and with three exceptions (“holes”) in the parcel (other properties with different ownership that lie completely within Tract 2).

    I ended up being the one to map the parcels from the metes and bounds and create the exhibits for the covenant. My format is similar to yours (a list of lat/lon with point IDs). You can see in the list how I deal with curves. Since I made the polygon shapes in ArcMap using the COGO tool, all the curves were drawn correctly (created in the VA State Plane coordinate system). To get the coordinate list, I exported as a KML, which provides lon/lat in WGS84. In the export process, ArcMap automatically generated the points along the curve at what seemed to be a good spacing to represent the curve (I didn’t have any way to control the spacing but was happy with the result).

    Because of the number of vertices, the coordinate lists could not all fit on the map, so we made the lists separate exhibits.

    I am not pleased with how the maps look in the exhibits as they ended up. They started in color, on a color air photo base, and looked very nice. What happens to exhibits once they get into the hands of lawyers and county clerks, is they are copied and copied over and over, printed or copied in black and white, scanned in B/W to put on a web service. The result (in this case) is that you can barely see the boundary lines because the color photo base becomes very dark. What I do now, is make the background very transparent (like 75%) so that a subsequent B/W copy doesn’t get dark. All lines are black. All vertices labeled clearly. After making an exhibit, I copy in black and white a few times. If I can still pull relevant info off, can read legends and values, and can still clearly see boundaries or other control areas, then the exhibit is good enough. The simpler the better.

    Another thing I created was a guidance we hand out to facilities to help them understand how we want the coordinate data and why:

    http://www.epa.gov/reg3wcmd/ca/pdf/RCRA_Mapping_of_Institutional_and_Engineering_Controls.pdf

    Despite this, we have found that we need to be very careful to QA the geographic data sent to us. It seems that some folks don’t check to see if the coordinates they provide are in the right place. One site in Pennsylvania gave us a lovely map with lat/lons at each property corner. The latitudes were just above the equator and the site mapped in Columbia, South America. Others have attached the wrong metes & bounds to the covenant – lawyers just check to see it’s there, not that it’s right. Others provide coordinates that plotted about a mile from the actual location. A surveyor provided coordinates that were off around 200 feet – he was surveying off a monument, but had the wrong coordinates for the monument, so all subsequent calculated coordinates were wrong.

    One other thing I didn’t mention, is that we collect this data to put in our database for RCRA Correction (RCRAInfo) which has the ability to store polygon GIS data as lists of lat/lon of polygon vertices, exactly what you are doing. Right now it’s something we’re doing in Region 3, but we are trying to get other regions doing this as well. Other things we are creating are geospatial PDFs and other mobile GIS maps so we can take maps of control areas to the field for inspection. The geospatial PDF is a product you can easily export from ArcMap, and it (and other types of mobile GIS maps) show where you are as you move around the facility using a smart phone, or other GPS enabled device (such as a Garmin Monterra which runs Android).

  2. admin
    Posted April 27, 2015 at 10:12 am | Permalink

    New Jersey Practice: Though not part of the drafting of an institutional control, New Jersey maintains a process where by institutional controls are mapped consistent with the recommendations. See http://www.nj.gov/dep/srp/gis/. The polygons must be submitted as either an ArcGis polygon shape file or CAD dwg file. This format evades a simple latitude and longitude string, but still marks the direction that this post set. I appreciate the input of Bob Soboleski of New Jersey Department of Environmental Protection.

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