Chapter 12.34
VACATION OF STREETS AND ALLEYS
Sections:
12.34.010 Statement of purpose.
12.34.020 Initiation of vacation.
12.34.030 Petition for vacation.
12.34.050 Survey, vicinity map, plat map and legal description.
12.34.100 Hearing and committee report.
12.34.110 City council decision.
12.34.120 Vacation of waterfront streets.
12.34.130 Compensation for vacation.
12.34.135 Alternative compensation.
12.34.150 Payment of compensation for conveyance.
12.34.160 Recording of ordinance.
12.34.010 Statement of purpose.
The purpose of this chapter is to establish procedures, notice requirements and fees for the vacation of streets and alleys within the city. This chapter is intended to implement the authority granted to the city by Chapter 35.79 RCW and RCW 35A.47.020 and to conform to their provisions. In case of conflict between this chapter and those statutes, the statutory provisions shall be controlling. (Ord. 91-30 § 1, 1991)
12.34.020 Initiation of vacation.
The owners of an interest in any real property abutting upon any street or alley who may desire to vacate the street or alley, or any part thereof, may petition the city council. In the alternative, the city council may itself initiate a vacation by resolution. The petition or resolution shall be filed with the city clerk. (Ord. 91-30 § 1, 1991)
12.34.030 Petition for vacation.
The petition shall be in a form prescribed by the director of public works and shall contain a name, address and telephone number of a representative for the petitioners. The petition shall also discuss the criteria set forth in BIMC 12.34.110. The sufficiency of the petition shall be governed by RCW 35A.01.040. (Ord. 91-30 § 1, 1991)
12.34.040 Petition fees.
Every petition for the vacation of any street or alley or any part thereof, shall be accompanied by a fee in an amount established by resolution of the city to defray a portion of the administrative costs incurred in processing the petition and publishing, posting and mailing notices. The fees shall not be refunded under any circumstances. (Ord. 94-32 § 1, 1995; Ord. 91-30 § 1, 1991)
12.34.050 Survey, vicinity map, plat map and legal description.
A. Every petition shall be accompanied by: (1) a survey, (2) a vicinity map showing the general area of the proposed vacation, (3) a plat map prepared and sealed by a professional land surveyor, registered in the state of Washington, indicating the specific parcels abutting the proposed street or alley to be vacated, and (4) an exact legal description of the portion of road to be vacated prepared and sealed by a professional land surveyor, registered in the state of Washington.
B. Flagging which indicates the boundaries of the street or alley shall be installed when the survey is conducted. (Ord. 91-30 § 1, 1991)
12.34.060 Setting of hearing.
Upon receipt of the petition, the fee and all required documents, the city clerk shall forward the petition and required documents to the director of public works, or the director’s designee, who shall determine whether the petition has been signed by the owners of more than two-thirds of the property abutting the part of the street or alley to be vacated. If the petition has been signed by the requisite percentage of such owners, the director of public works, or the director’s designee, shall bring the petition before the city council within 30 days of receipt of the petition, and the city council shall by resolution fix the time when the petition will be heard by the city council, or a committee of the city council, which time shall not be more than 60 days nor less than 20 days after the adoption of the resolution. Where the city council initiates the vacation by resolution, that resolution shall fix the time when the proposed vacation will be heard by the city council or a committee of the city council. (Ord. 94-32 § 2, 1995; Ord. 91-30 § 1, 1991)
12.34.070 Staff report.
The public works department shall prepare a report concerning the proposed vacation, which report shall address the criteria (see BIMC 12.34.110) to be considered by the city council in determining whether to vacate the street or alley, and such other information as deemed appropriate by the public works department. In preparing the report, the public works department shall solicit comments from the department of planning and community development and the police department, and may solicit comments from other governmental agencies and utility companies having jurisdiction or utilities within the boundaries of the city. The report shall be submitted to the city council, or the city council committee hearing the matter and to the representative of the petitioners, not less than five days before the hearing. (Ord. 91-30 § 1, 1991)
12.34.080 Notice of hearing.
Upon the passage of the resolution fixing the time for hearing the petition or proposal for vacation, the city clerk, or the director of public works, acting under direction and supervision of the city clerk, shall give not less than 20 days’ notice of the time, place and purpose of the hearing by (1) publishing written notice once in the city’s official newspaper, (2) posting a placard in a conspicuous place at each end of the street or alley sought to be vacated, and (3) mailing written notice to all petitioners at the addresses on the petition and all owners of property abutting the street or alley proposed to be vacated, as shown on the records of the Kitsap County assessor. The public works department shall send the same written notice to the representative of the petitioners at the address on the petition. The placards shall be highly visible and at least 11 by 14 inches in size, and shall include a map showing the location of the street or alley proposed to be vacated. (Ord. 91-30 § 1, 1991)
12.34.090 Protest.
If 50 percent or more of the owners of the abutting property file written objections to a city council-initiated vacation with the city clerk, prior to the time of the hearing, the city shall be prohibited from proceeding with the vacation. (Ord. 91-30 § 1, 1991)
12.34.100 Hearing and committee report.
The hearing on the petition or proposal shall be held before the city council, or a committee of the city council, upon the day fixed by resolution or at the time to which a hearing may be adjourned. Following the hearing the committee shall report its recommendation on the petition or proposal to the city council, which may adopt or reject the recommendation. If a hearing is held before a committee, it shall not be necessary to hold a hearing before the city council. (Ord. 94-32 § 3, 1995; Ord. 91-30 § 1, 1991)
12.34.110 City council decision.
Following the hearing and receipt of the committee report, if applicable, the city council shall determine whether to vacate the street or alley. The determination shall include, but not be limited to, consideration of the following criteria:
A. Whether a change of use or vacation of the street or alley will better serve the public;
B. Whether the street or alley is no longer required for public use or public access;
C. Whether the substitution of a new and different public way would be more useful to the public;
D. Whether conditions may so change in the future as to provide a greater use or need than presently exists; and
E. Whether objections to the proposed vacation are made by owners of private property (exclusive of petitioners) abutting the street or alley or other governmental agencies or members of the general public.
If the city council determines to grant the vacation, the action shall be made by ordinance with such conditions or limitations as the city council deems necessary and proper to preserve any desired public use or benefit. The ordinance may contain a provision retaining or requiring conveyance of easements for construction, repair and maintenance of existing and future utilities and services. (Ord. 94-32 § 4, 1995; Ord. 91-30 § 1, 1991)
12.34.120 Vacation of waterfront streets.
A. The city shall not vacate a street or alley if any portion of the street or alley abuts a body of salt or fresh water unless:
1. The vacation is sought to enable the city to acquire the property for port purposes, beach or water access purposes, boat moorage or launching sites, park, public view, recreation, educational purposes, or other public uses;
2. The city council, by resolution, declares that the street or alley is not presently being used as a street or alley and that the street or alley is not suitable for any of the following purposes: port, beach or water access, boat moorage, launching sites, park, public view, recreation, or education; or
3. The vacation is sought to enable the city to implement a plan, adopted by resolution or ordinance, that provides comparable or improved public access to the same shoreline area to which the street or alley sought to be vacated abuts, had the properties included in the plan not been vacated.
B. Before adopting an ordinance vacating a street or alley under subsection (A)(2) of this section, the city council shall:
1. Cause an inventory to be compiled of all rights-of-way within the city that abut the same body of water that is abutted by the street or alley sought to be vacated;
2. Cause a study to be conducted to determine if the street or alley to be vacated is unsuitable for use by the city for any of the following purposes: port, boat moorage, launching sites, beach or water access, park, public view, recreation, or education;
3. Hold a public hearing on the proposed vacation in the manner required by Chapter 35.79 RCW and this chapter; and
4. Include in its written decision a finding that the street or alley sought to be vacated is not suitable for any other purposes listed under subsection (B)(2) of this section, and that the vacation is in the public’s interest.
C. Notice of the public hearing on the proposed vacation shall be provided in accordance with the notice provisions of BIMC 12.34.080; provided, that the city shall also post notice of the public hearing conspicuously on the street or alley sought to be vacated, which notice shall indicate that the area is a public access, that the street or alley is proposed to be vacated, and that anyone objecting to the proposed vacation should attend the public hearing or send a letter to the director of public works indicating the objection.
D. The city council shall not adopt an ordinance vacating a street or alley under subsection (A)(2) of this section until the fair market value of the street or alley to be vacated, plus the full cost of any physical closures and/or road repairs required by the director of public works, has been paid in accordance with BIMC 12.34.140 and 12.34.150, or a conveyance of real property in lieu of compensation has been effectuated in accordance with BIMC 12.34.135 and 12.34.150.
E. Moneys received from the vacation of a street or alley abutting a body of fresh or salt water may be used by the city only for the purpose of acquiring additional beach or water access, acquiring additional public view sites to a body of water, or acquiring additional moorage or launching sites. (Ord. 2001-07 § 1, 2001: Ord. 91-30 § 1, 1991)
12.34.130 Compensation for vacation.
A. Where a vacation for a street or alley which does not abut a body of fresh or salt water has been initiated by petition, the owners of the property abutting the area to be vacated shall pay to the city, prior to the passage of the ordinance vacating the area, the full cost of any physical closures and/or road repairs required by the director of public works and (1) one-half of the fair market value of the area to be vacated; or (2) if area was acquired at public expense or has been part of a dedicated public right-of-way for 25 years or more, the full fair market value of the area to be vacated.
B. Where a vacation for a street or alley which does not abut a body of fresh or salt water has been initiated by the city or has been required by the city as a condition to a permit approval, the owners of the property abutting the area to be vacated shall not be required to pay compensation for the area to be vacated. (Ord. 2002-13 § 1, 2002: Ord. 2001-07 § 2, 2001: Ord. 94-32 § 5, 1995; Ord. 91-30 § 1, 1991)
12.34.135 Alternative compensation.
A. Conveyance of other property acceptable to the city may be made in partial satisfaction of or in lieu of the required compensation for the vacation of a street or alley, whether the conveyance is required to mitigate adverse impacts of the vacation or otherwise.
B. Where the conveyance of real property is made for street purposes and in exchange for the vacation of a street or alley that does not abut a body of fresh or salt water, one-half of the fair market value of the property conveyed shall be credited to the required compensation payment for the area to be vacated. Where the conveyance is made in fee for purposes other than street purposes, the full fair market value of the property conveyed shall be credited to the required compensation payment for the area to be vacated.
C. Real property may be conveyed in exchange for the vacation of a street or alley that abuts a body of salt or fresh water only where the property to be conveyed is conveyed for port, beach, water access, park, public view, recreation or educational purposes, boat moorage or launching sites, or other public uses, in accordance with BIMC 12.34.120.A.1, or as part of a plan implemented by the city council pursuant to BIMC 12.34.120.A.3. Where such property is conveyed for street purposes, one-half of the fair market value of the property conveyed shall be credited to the required compensation payment for the area to be vacated. Where the conveyance is made in fee for purposes other than street purposes, the full fair market value of the property conveyed shall be credited to the required compensation payment for the area to be vacated.
D. Where the value of the conveyed property is less than the required compensation payment, the owners of the property abutting the property to be vacated shall pay the difference to the city. When the value of the conveyed property exceeds the required compensation payment, the city shall pay the difference to the owners of the conveyed property. (Ord. 2001-07 § 3, 2001)
12.34.140 Appraisals.
A. The director of public works shall determine the fair market value of the area to be vacated based upon an appraisal from a state-certified real estate appraiser who has an MAI or SRA designation from the Appraisal Institute. To obtain such appraisal, the director of public works shall present to the petitioners a list of three such certified and designated appraisers from which the petitioners shall select one appraiser. The petitioner shall pay all costs associated with the appraisal.
B. If the director of public works is not satisfied with the appraisal submitted by the petitioners under subsection A of this section, the director may order a second appraisal from a state-certified real estate appraiser who has an MAI or SRA designation from the Appraisal Institute. The city shall pay for this second appraisal. The director of public works shall use the appraisal having the highest value for the area vacated.
C. The director of public works shall determine the fair market value of the real property proposed to be granted or dedicated to the city in partial satisfaction of or in lieu of cash payment under BIMC 12.34.130 in accordance with the appraisal procedures set forth in this section. (Ord. 2001-07 § 4, 2001: Ord. 94-32 § 6, 1995; Ord. 91-30 § 1, 1991)
12.34.150 Payment of compensation for conveyance.
After the fair market value of the property to be vacated has been determined in accordance with BIMC 12.34.140, the director of public works shall notify the representative of the petitioners of the amount of compensation required for the area to be vacated. The required payment shall be delivered to the director of public works who, upon receipt of the payment, shall transmit it to the city treasurer.
At least one-half of the received compensation shall be dedicated to the acquisition, improvement, development and related maintenance of public open space and/or transportation capital projects within the city; provided, that all compensation for the vacation of streets and alleys which abut a body of water shall be deposited in a fund designated for the sole purpose of acquiring additional beach or water access, additional public view sites to a body of water, or additional moorage or launching sites. Any compensation received by the city which is not dedicated to public open space or transportation capital projects or to the acquisition of additional water access, view sites or launching sites, shall be deposited into the street fund. The city treasurer shall make a written report of the payment to the city council.
If the petitioners have been authorized to deliver an instrument granting or dedicating to the city property in addition to or in lieu of a cash payment pursuant to BIMC 12.34.135, the director of public works may, at the petitioner’s expense, obtain either a policy of title insurance insuring title of the conveyed property in the city, or a certificate of title as to the title thereof. Upon the director of public works’ receipt of such policy or certificate, the director of public works shall transmit the policy or certificate to the city council. (Ord. 2002-13 § 2, 2002: Ord. 2001-07 § 5, 2001: Ord. 94-32 § 7, 1995; Ord. 91-30 § 1, 1991)
12.34.160 Recording of ordinance.
A certified copy of the ordinance vacating a street or alley or part thereof, shall be recorded by the city clerk in the office of the Kitsap County auditor. (Ord. 91-30 § 1, 1991)