So, Just What is The Sign Telling The Intrepid Surveyor?
The case involved a monument sign in a commercial development that was believed to encroach on a road right-of-way. A complaint was lodged with the county planning and zoning department. The client met with a county planner and was told that “something called an ILC” was required from a professional land surveyor. The client did not say that the planner had assured the improvement location certificate (ILC) would be inexpensive. (They are produced for as little as $200 in this area.) I knew the expectations based on my reading-between-the-lines expertise and repeated experience.
I replied to the email informing the client that the ILC was not the best approach. I attached Colorado Revised Statute 38-51-108, Improvement Location Certificates, and said I would phone the planner to clarify the requirements. I sent the email, phoned the county planner and left a message.
The client replied the next afternoon. I was instructed that the planner had been “very clear” an ILC (read: $200) was “the very most” (read: maybe less than $200) required. I was also informed that the further conversation with the planner was both unnecessary and unwelcome. Condescension had given way to indignation.
So what exactly is an improvement location certificate? One good definition is that an ILC is a map certified by a registered land surveyor that depicts site improvements. But that definition is for a better world. In the real world, things get more complicated.
ILCs are routinely requested by property owners, planning and building officials, lending officers, realtors and other land survey illiterates. The general comprehension doesn’t typically extend much beyond the knowledge that ILCs are cheap maps. Excuse me, I should say cheap maps certified by a professional land surveyor.
C.R.S. 38-51-108 provides a two-paragraph certification. The first paragraph reads:
“I hereby certify that this improvement location certificate was prepared for ... (individual or firm) ..., that it is not a land survey plat or improvement survey plat, and that it is not to be relied upon for the establishment of fence, building, or other future improvement lines.”
That tells us the surveyor does not certify that the depicted lines are necessarily the property lines. That makes sense since the lines are purportedly based solely on the improvements or, in the survey term of art, lines of occupation. No problem there. That comes in the second paragraph:
“I further certify that the improvements on the above described parcel on this date, .... (insert date) ...., except utility connections, are entirely within the boundaries of the parcel, except as shown, that there are no encroachments upon the described premises by improvements on any adjoining premises, except as indicated, and that there is no apparent evidence or sign of any easement crossing or burdening any part of said parcel, except as noted.”
No one has ever asked how I can certify there are no encroachments (except as shown) based on the depicted lines, but those same lines cannot be relied upon for future improvements. I’m glad no one has asked; I don’t have an answer. By statute, the lines are:
“… based upon the professional land surveyor’s general knowledge of land boundaries and monuments in a given area …”
What on earth is that supposed to mean? In Colorado, the surveyor can look for guidance to The State Board of Licensure “Bylaws and Rules”, Section 6.6 - Minimum Standards for Improvement Location Certificates, as follows:
“A diligent search for existing control shall be made by field crews and the highest order of control available shall be used.”
OK, good. The instruction “shall be” is clear and unambiguous. The ILC is not based on “general knowledge” but on specific knowledge about relevant property or aliquot corners. But hang on, the very next sentence reads:
“The professional land surveyor must use such control as is necessary to accurately locate all lines, structures, and topographic features shown on the ILC.”
So which is it? Does a diligent search for the highest order control constitute the minimum requirement? Or is the minimum required control what the surveyor judges “as is necessary?” In practice, the former is largely ignored and the latter is standard procedure.
In the case of the encroaching sign, I might use the roadway curbs to establish the right-of-way line. The distance from the curb to the sign could be quickly taped and sketched by hand using information shown on the site plan. That approach would meet the client’s expectations (read: $200). However, it is not true that the curb was located by a “diligent search” or represents the “highest order of control available.”
Alternatively I might analyze the plat, set up search coordinates, conduct a field survey that diligently searched for and located the highest order of control, tie out the sign and prepare a drawing. That approach would disappoint the client’s expectations (read: a whole lot more than $200). That is probably more effort than required or expected. But, there is another problem with both approaches.
Based on my experience, there is maybe a 50/50 chance that either work product would be accepted by the county planner. After all, an ILC was the county’s expectation. Bureaucracies are not known for flexibility.
So why fight the battle? I could tape the building, parking lot, sign, fences, etc., and submit a standard ILC for the full site. That would marginally exceed the client’s expectations (read: in my office closer to $500) but would satisfy the planner. But offering a standard ILC is not a possibility. That would be unethical. I don’t have the planner’s excuse; I know better.
Here’s the official conundrum:
According to the statute, the lines depicted on the ILC can be relied upon — except when they can’t. According to the rule, a diligent search and the highest order of control is the minimum requirement — except when it isn’t.
But the point of the discussion is not to criticize the state’s incoherent statute or the board’s ambiguous rule. The larger point goes to the heart of the question surveyors ask endlessly, “Why aren’t surveyors held in the same regard as other professionals?” Consider the medical profession.
Imagine a patient who describes symptoms to a physician who in turn prescribes treatment by citing the Colorado Revised Statutes. Preposterous — could never happen. That’s true, but that is where we are as land surveyors.
There are many occasions when a simple map based entirely on the improvements is sufficient. (The case of the resale of a single family residence on a platted lot leaps to mind.) Why does the land surveyor need instruction from the state legislature on how to put that, or any other, reality into practice? Apparently, the thinking is that land surveyors can’t be trusted. That thinking is the problem.
Professional standing is founded in trust, not just for surveyors but for any profession. Once institutional trust is established, it’s the responsibility of the surveyor to earn individual trust through professional practice. The state undermines institutional trust when it replaces professional expertise with a statute.
The default position has become unknowing individuals calling for an ILC to address any of a host of different property issues. The result is a one-size-fits-all survey work product that is almost universally misunderstood, which brings me back to my client.
I replied to the email politely declining engagement and assuring that nothing about ILCs would be said to the planner. There are two reasons for declining the work. First, it is not good business practice to contract where only in the best-case scenario would the fee cover just the costs. Second, it is highly unlikely that a client relationship that begins in condescension and subsequently grows to indignation will then go on to anything good. It is next to impossible for the surveyor to earn individual trust against a backdrop of institutional mistrust.
The more pertinent question is, “Where is the land survey profession headed?” In the day of GIS and LiDAR that question grows in urgency. The answer requires first understanding where we have been. An assessment of where we are will then help us find the way forward. That topic will have to be left to a future discussion.
For the purpose of this discussion, I did research the history of the ILC statute hoping to learn what land surveyors might have done to jeopardize the public trust. I didn’t turn up much. Perhaps the reader can fill me in. The source of the board rule is obvious and that leads to the hunch I’d rather not know the source of the statute.
The circumstances suggest the wisdom of Walter Kelly’s comic strip character Pogo: “Yep son, we have met the enemy and he is us.”
James T. Jones is in private practice in Denver. He has practiced land surveying and civil engineering in Colorado since 1971. His focus is on the legal aspects of land surveying with the goal of enhancing the status of the profession with both colleagues and the general public.