Motor Vehicles; Public Vehicular Area

Subject:

Motor Vehicles; Public Vehicular Area; Application of G.S. 20-166 and G.S. 20-166.1 to Areas Other Than Public Vehicular Areas.

Requested By:

John V. Matthews, Jr. County Attorney Perquimans County

Questions:

1. Would the streets in a private subdivision which has recorded plats in the Register of Deeds Office filed prior to October 1, 1975, in which the streets have not been dedicated to the public nor open to the public as a matter of right be considered public vehicular areas?

2. Do G.S. 20-166(a), (b) and (c) and G.S. 20-166.1(a) and (b) apply to accidents that occur only on public vehicular areas and streets or highways?

Conclusions:

1. No.

2. No.

1. G.S. 20-4.01(32) reads in pertinent part:

"The term "public vehicular area" shall also include any street opened to vehicular traffic within a subdivision which has been offered for dedication to the public by the filing of a map, plat or written instrument in the office of the Register of Deeds; provided however a public authority (i) has not accepted the dedication of the street, and (ii) a public authority has not assumed control over the street."

"Street" is defined in G.S. 20-4.01(46) as:

"The entire width between property or right-of-way lines of every way or place of whatever nature, when any part thereof is open to the use of the public as a matter of right for the purposes of vehicular traffic. The terms "highway" or "street" or a combination of the two terms shall be used synonomously."

G.S. 136-102.6 reads in pertinent part:

"(a) The owner of a tract or parcel of land which is subdivided from and after October 1, 1975, into two or more lots, building sites, or other divisions for sale or building development for residential purposes, where such subdivision includes a new street or the changing of an existing street, shall record a map or plat of the subdivision with the register of deeds of the county in which the land is located. The map or plat shall be recorded prior to any conveyance of a portion of said land, by reference to said map or plat.

(b) The right-of-way of any new street or change in an existing street shall be delineated upon the map or plat with particularity and such streets shall be designated to be either public or private. Any street designated on the plat or map as public shall be conclusively presumed to be an offer of dedication to the public of such street."

. . . .

"(f) Prior to entering an agreement or any conveyance with any prospective buyer, the developer and seller shall prepare and sign, and the buyer of the subject real estate shall receive and sign an acknowledgment of receipt of a separate instrument known as the subdivision streets disclosure statement (hereinafter referred to as disclosure statement). Said disclosure statement shall fully and completely disclose the status (whether public or private) of the street upon which the house or lot fronts. If the street is designated by the developer and seller shall certify that the right-ofway and design of the street has been approved by the Division of Highways, and that the street has been or will be constructed by the developer and seller in accordance with the standards of subdivision streets adopted by the Board of Transportation for acceptance on the highway system. If the street is designated by the developer and seller shall include in the disclosure statement an explanation of the consequences and responsibility as to maintenance of a private street, and shall fully and accurately disclose the party or parties upon whom responsibility for construction and maintenance of such street or streets shall rest, and shall further disclose that the street or streets will not be constructed to minimum standards, sufficient to allow their inclusion on the State highway system for maintenance. The disclosure statement shall contain a duplicate original which shall be given to the buyer. Written acknowledgment of receipt of the disclosure statement by the buyer shall be conclusive proof of the delivery thereof."

The effective date of G.S. 136-102.6 was October 1, 1975 and does not apply to subdivisions which were platted prior to October 1, 1975. After October 1, 1975, the subdivision plat must indicate thereon if a private subdivision.

When the definitions of "public vehicular area" and "street" are applied to this question, in light of G.S. 136-102.6, it is apparent that though a subdivision may have recorded plats filed in the office of the Register of Deeds, if filed prior to October 1, 1975, or if after that date, was designated a private subdivision and the streets have not been offered for dedication nor opened to the public as a matter of right, such "streets" do not constitute a street or public vehicular area under the statutes. The definition in G.S. 20-4.01(32) requires both the offer for dedication to the public and that the offer be by the filing of a map, plat or written instrument in the office of the Register of Deeds. G.S. 20-20-4.01(46) requires that the area be open to the public as a matter of right in order to be considered a street under Chapter 20.

2. G.S. 20-166(a), (b) and (c) and G.S. 20-166.1(a) and (b) make no reference to street, highway or public vehicular area. The statues merely refer to the "scene" of the accident. Under either statute, a conviction does not require that the State establish the location of the accident. The offenses under each subsection are not limited to streets or highways. State v. Smith, 264 N.C. 575, 142 S.E. 2d 149 (1965).

If an accident in which death, personal injury or property damage exceeding $200.00 occurs, G.S. 20-166.1(a) requires the driver to give notice to the sheriff or other qualified rural police by the quickest means if the accident occurred outside a municipality. In the subdivision described in Question 1, G.S. 20-166.1(e) places the duty to investigate accidents occurring within its boundaries on the sheriff or other appropriate law enforcement agency.

Rufus L. Edmisten Attorney General

William W. Melvin Deputy Attorney General

Jane P. Gray Associate Attorney