Chapter 12.06
STREET AND ALLEY VACATING PROCEDURES
Sections:
12.06.030 Petition – Filing fee.
12.06.050 Limitations on vacations of streets abutting bodies of water – Procedure.
12.06.060 Title to vacated street or alley.
12.06.010 Definition.
The term “owner of an interest in real estate” means the owners of fee title, mortgagors, and contract vendees. (Ord. 2005-07, 2005).
12.06.020 Petition by owners.
A. The owners of an interest in any real estate abutting upon any street or alley who may desire to vacate the street or alley, or any part thereof, may petition the town council to make vacation, giving a description of the property to be vacated, or the town council may itself initiate by resolution such vacation procedure. The petition or resolution shall be filed with the town clerk.
B. For the purpose of determining the sufficiency of signatures of owners of private property on the petition or consent to vacate, the following rules shall govern:
1. The signature of owner, as determined by the records section of the Department of Records and Elections.
2. In the case of property subject to a contract of purchase, the signatures of the contract vendor and vendee shall be required.
3. In the case of ownership by corporation, the signature of any officer authorized by the bylaws or resolution of the board of directors shall be sufficient when evidenced by an excerpt of the bylaws of the resolution, certified by the secretary of the corporation, granting such authority.
4. In the case of property owned by the estate of a decedent or incompetent, the signature of the duly qualified administrator or executor or guardian shall be equivalent to the signature of the owner of the property.
C. A petition will be deemed sufficient if the petition is signed by the owners of more than two-thirds of the property abutting upon the part of the street or alley sought to be vacated.
D. No petitioner may withdraw his petition or consent after the town council has set a time for hearing, although the petitioners may be heard at the public hearing to present any information which bears upon the public advantage to be served or harmed by the proposed vacation. (Ord. 2005-07, 2005).
12.06.030 Petition – Filing fee.
A. The petition properly signed shall be filed with the town clerk upon payment of a filing and appraisal fee, which shall be paid into the general fund of the town to aid in defraying expenses incurred by the town in appraising the property, checking the sufficiency of such petition and investigating or reporting the facts and shall not be returned to the petitioners, regardless of the town council’s action on such petition. The amount of the fee shall be determined as follows:
1. One to five separate ownerships abutting the proposed vacation: a minimum fee of $150.00.
B. The minimum appraisal fee shall be $1,000.
C. In the event that the filing and appraisal fee, computed on petitioner’s estimate, proves to be insufficient, as evidenced by the town’s investigation, the balance of the fee shall be paid by the petitioner before notices of hearing are mailed. (Ord. 2005-07, 2005).
12.06.040 Public hearing.
A. Once the petition is determined to be sufficient, the town council by resolution shall fix a time when the petition will be heard and determined by such authority or a committee thereof, which time shall not be more than 60 days nor less than 20 days after the date of the passage of such resolution.
B. Upon the passage of the resolution the town clerk shall give 20 days’ notice of the pending petition by a written notice posted in three of the most public places in the town and a like notice in a conspicuous place on the street or alley sought to be vacated. The said notice shall contain a statement that a petition has been filed to vacate the street or alley described in the notice, together with a statement of the time and place fixed for the hearing of the petition. In all cases where the proceeding is initiated by resolution of the town council or similar town council without a petition having been signed by the owners of more than two-thirds of the property abutting upon the part of the street or alley sought to be vacated, in addition to the notice hereinabove required, there shall be given by mail at least 15 days before the date fixed for the hearing, a similar notice to the owners or reputed owners of all lots, tracts or parcels of land or other property abutting upon any street or alley or any part thereof sought to be vacated, as shown on the rolls of the county treasurer, directed to the address thereon shown; provided, that if 50 percent of the abutting property owners file a written objection to the proposed vacation with the clerk, prior to the time of hearing, the town shall be prohibited from proceeding with the resolution.
C. The hearing on such petition may be held before the town council, or before a committee thereof, upon the date fixed by resolution or at the time said hearing may be adjourned to. If the hearing is before such a committee the same shall, following the hearing, report its recommendation on the petition to the town council, which may adopt or reject the recommendation. If such hearing be held before such a committee it shall not be necessary to hold a hearing on the petition before the town council. If the town council determines to grant said petition or any part thereof, the town shall be authorized and have authority by ordinance to vacate such street or alley, or any part thereof, and the ordinance may provide that it shall not become effective until the owners of property abutting upon the street or alley, or part thereof so vacated, shall compensate the town in an amount which does not exceed one-half the appraised value of the area so vacated. If the street or alley has been part of a dedicated public right-of-way for 25 years or more, or if the subject property or portions thereof were acquired at public expense, the town may require the owners of the property abutting the street or alley to compensate the town in an amount that does not exceed the full appraised value of the area vacated. The ordinance may provide that the town retain an easement or the right to exercise and grant easements in respect to the vacated land for the construction, repair, and maintenance of public utilities and services. A certified copy of such ordinance shall be recorded by the clerk of the town and in the office of the auditor of the county in which the vacated land is located. One-half of the revenue received as compensation for the area vacated must be dedicated to the acquisition, improvement, development, and related maintenance of public open space or transportation capital projects. (Ord. 2005-07, 2005).
12.06.050 Limitations on vacations of streets abutting bodies of water – Procedure.
A. If any portion of a street or alley abuts a body of fresh or salt water it shall not be vacated unless:
1. The vacation is sought to enable the acquisition of property for port purposes, beach or water access purposes, boat moorage or launching sites, park, public view, recreation, or educational purposes, or other public uses;
2. By resolution, the town 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 implementation of a plan, adopted by resolution or ordinance, that provides comparable or improved public access to the same shoreline area to which the streets or alleys sought to be vacated abut, had the properties included in the plan not been vacated.
B. Before adopting a resolution vacating a street or alley under subsection (A)(2) of this section, the town shall:
1. Compile an inventory of all rights-of-way within the town that abut the same body of water that is abutted by the street or alley sought to be vacated;
2. Conduct a study to determine if the street or alley to be vacated is suitable for use by the town 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 this chapter, where in addition to the normal requirements for publishing notice, notice of the public hearing is posted conspicuously on the street or alley sought to be vacated, which posted notice indicates that the area is public access, it is proposed to be vacated, and that anyone objecting to the proposed vacation should attend the public hearing or send a letter to a particular official indicating his or her objection; and
4. Make a finding that the street or alley sought to be vacated is not suitable for any of the purposes listed under subsection (B)(2) of this section, and that the vacation is in the public interest.
C. No vacation shall be effective until the fair market value has been paid for the street or alley that is vacated. Moneys received from the vacation may be used by the town only for acquiring additional beach or water access, acquiring additional public view sites to a body of water, or acquiring additional moorage or launching sites. (Ord. 2005-07, 2005).
12.06.060 Title to vacated street or alley.
If any street or alley in any city or town is vacated by the town council, the property within the limits so vacated shall belong to the abutting property owners, one-half to each, unless otherwise provided by law. (Ord. 2005-07, 2005).