Chapter 17.18
PROCEDURES FOR VACATING CITY RIGHTS-OF-WAY OR PORTIONS THEREOF
Sections:
17.18.010 Statement of policy on right-of-way vacations.
17.18.020 Authorized interested persons – Written application.
17.18.040 Acceptance of application – Planning Commission review.
17.18.055 Expedited review in instances of error, safety or hardship.
17.18.060 City Council procedure.
17.18.010 Statement of policy on right-of-way vacations.
Allowing limited, conditional, private use of public right-of-way property through the encroachment permit process set forth in Chapter 17.16 SMC and other City laws is favored over the vacation of the City’s legal interest in such property. Further, the public use of pedestrian stairway and pathway rights-of-way shall be respected in considering requests for vacation. [Ord. 1150 § 2, 2000.]
17.18.020 Authorized interested persons – Written application.
Requests that the City vacate all or part of a public right-of-way shall be made exclusively through written application to the City’s Community Development Director by interested persons. “Interested persons” are defined as the owner(s), or their authorized representative(s), of a parcel or parcels which are contiguous to the part of the public right-of-way sought to be vacated. Each written application shall include, at a minimum, the following information:
A. A general and legal description of the right-of-way, or portion thereof, proposed to be vacated together with a map or plan which illustrates the extent of the vacation in relation to the right-of-way, public service easements, if any, and the contiguous properties.
B. An independent, written title report to determine ownership interests in the right-of-way, or portion thereof, proposed to be vacated, and the contiguous property or properties. The title report shall be issued by a title insurance company licensed and admitted to conduct business by the State of California.
C. A statement describing how the right-of-way sought to be vacated is unnecessary for present or prospective public use.
D. A deposit of the fee required pursuant to SMC 17.18.030.
E. If applicable, a statement and any accompanying documentary proof that the request for vacation is prompted by error, safety or hardship as described in SMC 17.18.055, and is eligible for expedited review under that section. [Ord. 1150 § 2, 2000.]
17.18.030 Fee required.
A processing fee representing the estimate of the reasonable City costs incurred in processing the application shall be required to be deposited with the City in order for the application to be complete. The amount of the fee shall be established by resolution of the City Council adopted from time to time. [Ord. 1150 § 2, 2000.]
17.18.040 Acceptance of application – Planning Commission review.
The City’s Community Development Director, the City Engineer and other staff shall review the application for completeness. The City shall seek input from the holders of any public service easements to determine if there are any adverse effects of the requested vacation upon these public service easements and the City may make changes or conditions to the requested vacation accordingly. Environmental inspections and/or review, if required, shall be conducted. Once the application is determined complete by City staff, it shall be submitted to the City Clerk. The City Clerk shall set the matter for consideration by the Planning Commission solely to determine if the location, purpose and extent of the vacation conforms with the City’s general plan under Government Code Section 65402. The date the Planning Commission renders its determination shall initiate the proceedings for purposes of taking the vacation request to the City Council. At the Community Development Director’s discretion, the City may combine several vacation applications and present them to the Planning Commission or City Council in the same proceeding. At the conclusion of the Planning Commission proceedings, the City Clerk shall set the City Council public hearing date and follow the procedures set forth in SMC 17.18.060. [Ord. 1150 § 2, 2000.]
17.18.050 Appraisal required.
Unless exempt pursuant to SMC 17.18.055, an independent, written appraisal to determine the value of the right-of-way, or portion thereof, proposed to be vacated shall be obtained by the City prior to consideration of the request to vacate by the City Council. The right-of-way shall be valued at the same unit value of the contiguous property or properties for its highest and best use as if both the right-of-way to be vacated and the contiguous property or properties are vacant. That is, the appraisal shall consider the value of the right-of-way to be vacated irrespective of the existence of any improvements or structures. The applicant shall bear the cost of the appraisal. The City may combine several vacation applications in order to reduce and distribute the appraisal cost among several applicants. [Ord. 1150 § 2, 2000.]
17.18.055 Expedited review in instances of error, safety or hardship.
Expedited review of vacation applications means the application, once complete, proceeds directly to the Planning Commission under SMC 17.18.040 and is exempt from the appraisal requirement under SMC 17.18.050.
In order to qualify for expedited review, the application must demonstrate to the satisfaction of the City Engineer that one or more of the following conditions exists:
A. An error exists in title to the right-of-way proposed for vacation. An “error” is defined as a mistake in the legal description of the right-of-way, in the chain of title to the right-of-way, or in the property boundaries of the right-of-way, for example, by conflicts between metes and bounds descriptions, physical monuments, recorded maps or deeds or other recorded instruments. The error may be shown by a survey prepared at the sole cost of the applicant by a surveyor licensed by the State of California Board of Registration for Professional Engineers and Land Surveyors. The error must be described in detail and substantiated in writing by an opinion of a title insurance company licensed to do business in the State of California.
B. The existence of the right-of-way proposed for vacation poses a serious, hazardous threat to the safety of the public or to the safety of the persons or property upon the property or properties. The safety hazards must be described in detail and attested in writing by the applicant under penalty of perjury. An example of a serious safety hazard would be a landslide or an imminent landslide.
C. The existence of the right-of-way proposed for vacation poses an unreasonable hardship on the applicants if the vacation were not granted by the City. The instances of hardship must be described in detail and attested in writing by the applicant under penalty of perjury. An example of a hardship would be proof of substantial economic loss and/or unreasonable restraint against alienation if the vacation were not granted, and no other reasonable alternative exists such as issuance of an encroachment permit. [Ord. 1150 § 2, 2000.]
17.18.060 City Council procedure.
The Community Development Director shall comply with the State law procedures for vacations, including without limitation the procedures set forth in the public streets, highways, and service easements vacation law (California Streets and Highways Code Sections 8300 and following). A public hearing is required before the City Council, and the City Clerk shall cause legal notice to be provided. Notice shall include mailed notice to all properties within 300 feet of the right-of-way proposed to be vacated providing two weeks’ notice of the public hearing date. At the Community Development Director’s discretion, the City may combine several vacation applications and present them to the City Council in the same proceeding. [Ord. 1150 § 2, 2000.]
17.18.070 Findings required.
The City Council shall not adopt a resolution approving a vacation unless it finds as follows:
A. The right-of-way to be vacated, or portion thereof, is unnecessary for present or prospective public use.
B. The vacation conforms to the City’s general plan, including the circulation element.
C. The vacation serves the public interests to a degree greater than if the private use of the right-of-way was conferred by encroachment permit.
D. Adequate consideration has been offered in exchange for vacating the public’s interest in the affected right-of-way. The adequacy of the consideration is not limited to monetary remuneration and is to be determined on a case-by-case basis at the sole discretion of the City Council. The Council may consider such factors as the appraised value of the vacated right-of-way, the use which the applicant is to make of the vacated right-of-way, and whether the loss of the public’s interest in the vacated right-of-way is offset by the increase in the public’s welfare, health or safety attributable to the applicant’s combined use of the vacated right-of-way and the properties contiguous to it.
E. On a case-by-case basis, the Council may determine that the vacated right-of-way shall not be used by the applicant or its successor to satisfy any development or building requirements associated with the contiguous parcel or parcels, for example to increase the development potential of the contiguous parcel or parcels, such as an increase in floor area ratio or lot coverage.
F. The vacation shall not unreasonably interfere with the viability of the remaining right-of-way nor public service easements in proximity thereto.
G. In order to render any one or more of the findings in this section, the Council may impose conditions upon the vacation, including without limitation the requirement of the applicant to pay compensation; the requirement that the applicant release and indemnify the City from liability, including environmental liability, and liability which may relate to neighboring properties; the requirement that the applicant maintain the vacated property; and the requirement that the vacation is subject to certain defined reservations and exceptions. [Ord. 1150 § 2, 2000.]
17.18.080 Record of vacation.
To the extent the Council approves or conditionally approves the vacation, the decision shall be made by resolution and shall be recorded in the Marin County Recorder’s office together with any deeds or other instruments which may be required by law. The property vacated shall not be considered surplus property of the City. [Ord. 1150 § 2, 2000.]