Chapter 12.20
RIGHT-OF-WAY VACATIONS
Sections:
12.20.010 Petitions – Initiation – Survey requirements – Preliminary findings.
12.20.020 Hearing time fixed, petition and resolution methods.
12.20.030 Public notice, petition and resolution methods.
12.20.040 Council may not proceed if property owners object.
12.20.050 Report, investigations and recommendations to City Council.
12.20.060 Criteria for Council decision.
12.20.070 City Council decision.
12.20.080 Granting – Conditions.
12.20.100 Trade in lieu of compensation.
12.20.110 Waiving compensation – Other governmental agencies, entities, jurisdictions.
12.20.120 Notice to County Auditor, Assessor and Engineer.
12.20.010 Petitions – Initiation – Survey requirements – Preliminary findings.
A. Who May Initiate. Vacation of public right-of-way or easements may be initiated by filing with the City Clerk a properly completed petition by the owners of more than two-thirds of the property abutting the portion of the street or alley sought to be vacated, or by resolution of the City Council in accordance with the procedures described in Chapters 35.79 and 35A.47 RCW. “Abutting property” for purposes of this procedure means property which touches, adjoins, or is contiguous to the street or alley, or portion thereof, sought to be vacated.
B. When Petitions May Be Filed. The City Council may, by resolution, limit the times of year or months during which it will accept petitions for right-of-way vacations.
C. Form. All petitions shall be in such form as may be prescribed by the City and shall be in substantial conformance with the form approved by the City Council containing the information required in RCW 35.79.010. At a minimum, the petition shall contain a full and correct legal description of the property sought to be vacated, the typed street addresses of abutting properties and names of the owners of the abutting properties, and the names, addresses, and signatures of property owners requesting the vacation. The petition shall be accompanied by a copy of the current Whatcom County Assessor’s parcel map indicating the right-of-way proposed for vacation.
D. Fees and Associated Costs. Any petition for vacation of a previously dedicated right-of-way shall be accompanied by an application fee as established by the City Council. Petitioner(s) shall also be liable to the City for all actual expenses incurred in processing the petition in excess of the normal costs intended to be covered by the petition fee, including legal and engineering fees. At the time a petition is accepted as complete and legally sufficient, the City Clerk shall provide the petitioner with an estimate of such additional expenses as may then be anticipated by staff. As a condition precedent to the City’s consideration of a resolution setting a date for a public hearing on the question of whether a City street should be vacated, the petitioner therefor shall pay to the City in the amount set by City Council resolution an amount equal to the cost of preparation of an appraisal of the area proposed to be vacated. Upon receipt of the payment from the petitioner, the City shall order such appraisal. An appraisal, and payment therefor, may not be required when, in the judgment of the Public Works Supervisor or the City Administrator, it is not needed to determine the fair market value of the area to be vacated.
E. Sufficiency of Signature. Prior to forwarding the petition to Public Works staff for findings, the City Clerk or designee shall certify the sufficiency of signatures on the petition following these guidelines:
1. Where property is subject to a mortgage or deed of trust, the signature of the buyer shall be sufficient.
2. In the case of ownership by partnership or corporation, the signature of any officer authorized by the bylaws or resolution of the partners or board of directors shall be sufficient when evidenced by a copy of the section of bylaws or resolution granting such authority.
3. Where property is subject to a lease, the signature of the lessor shall be required.
4. In the case of property subject to a life estate, the signature of the holder of the life estate shall be sufficient.
5. The signature of an owner, as determined by the records of the County Assessor, shall be sufficient without the signature of his or her spouse.
F. Representation by Abutting Property Owners. On receipt of a petition for vacation and confirmation that signatures thereon are sufficient as provided at subsection E of this section, the City Clerk shall forward the petition to Public Works staff for confirmation that these signatures represent ownership of more than two-thirds of the property abutting the right-of-way or easement requested for vacation. Any petition failing to meet this criterion shall be returned to petitioner(s) by the City Clerk, along with a brief explanation of this determination. Petitioner(s) shall have 15 days from the date the petition is returned to respond with a revised petition. If no response is received within that time, the petition shall be null and void, and the petition fee minus all expenses incurred by the City shall be refunded to the petitioner.
G. Referral to Public Works Supervisor – Survey Requirements. The City Clerk shall notify the Public Works Supervisor of all proposed vacations. It shall be the duty of the Public Works Supervisor to determine whether the location and legal description of the proposed vacation of the street or alley proposed for vacation are sufficiently known to the City so that an accurate legal description of the proposed vacation may be made, and so that the location of the property proposed for vacation can be known with certainty. If the Public Works Supervisor determines that these matters are not known or are not accurately known, then the City shall notify the petitioner(s) of the necessity of having an accurate, professional survey of the property marked upon the ground and an accurate legal description of the proposed vacation to be furnished to the City. The City shall not proceed with processing the vacation until such a survey has been done and the legal description received.
H. Right-of-Way Defined. “Right-of-way” means land, including without limitation a strip or parcel of land, dedicated by any legal means to the City for purposes of public uses, public circulation and/or utilities, including without limitation street, mass transit, bicycle, and pedestrian uses as well as emergency access, utility, drainage, vegetation management, view corridor or other necessary public uses on a portion of which a street or alley is built. [Ord. 676 § 2, 2008.]
12.20.020 Hearing time fixed, petition and resolution methods.
Upon receipt of a petition meeting minimum requirements for signatures and property ownership described in EMC 12.20.010(E), (F) and (G), the City Clerk shall forward the petition to the City Council for setting a public hearing. For both petition and Council-initiated vacations proposed for public hearing, the Council shall adopt a resolution setting a time for the hearing, which is not less than 20 nor more than 60 days from the date of passage of the resolution setting the date for the public hearing. [Ord. 676 § 2, 2008.]
12.20.030 Public notice, petition and resolution methods.
A. At least 20 days prior to the hearing on the proposed street or alley vacation, the City Clerk shall issue written notice of hearing which shall be:
1. Posted in Everson City Hall;
2. Posted in three conspicuous places on that portion of the street or alley sought to be vacated, or at a nearby location that can be viewed by the public; and
3. Published in the official newspaper for the City of Everson.
B. In addition to the general posting and publication above, the City Clerk, at least 15 days prior to the date fixed for the hearing, shall mail hearing notices directly to owners of all property abutting or across the street or alley from those portions of the street or alley proposed for vacation. This mailing shall be by certified or registered mail with a return receipt. [Ord. 676 § 2, 2008.]
12.20.040 Council may not proceed if property owners object.
In all cases, the City shall be prohibited from proceeding further with the process if 50 percent or more of the abutting property owners file written objections to the proposed vacation with the City Clerk prior to the time of hearing. [Ord. 676 § 2, 2008.]
12.20.050 Report, investigations and recommendations to City Council.
Upon resolution of the City Council to set a public hearing to consider a petition, all requests for street vacation, whether by petition or by Council initiation, shall be submitted to the Public Works Supervisor or his/her designee who shall coordinate staff preparation of a report and recommendations to the City Council. The staff shall investigate and report on at least the following:
A. Ownership of the property abutting on the street or portion sought to be vacated. Proof of ownership of abutting property by the title insurance or certificates may be required, such proof to be furnished by, and at the expense of, the petitioners upon request of the City Clerk;
B. Whether and in what respect the public may benefit or be harmed by the vacation;
C. Whether the public benefit of the area’s use is insufficient to justify the cost of maintenance;
D. Which property or properties will directly benefit from or be adversely affected by the vacation, and in what way;
E. What effect the vacation will or may have upon property served or which might be served by the proposed vacated street, and whether the proposed vacated street has been opened or constructed, and if so, to what standard;
F. How the street relates to other streets and highways, and whether other portions of the subject street or alley have already been vacated;
G. Whether the substitution of an alternate way would be more useful to the public;
H. Whether future changes in conditions may increase public use or need;
I. How the street or alley sought to be vacated became a public right-of-way;
J. Whether any utilities now exist in the street, or whether such street may be reasonably necessary for future utility uses;
K. The necessity or desirability of the City retaining an easement or the right to exercise and grant easements for emergency vehicle access and construction, repair and maintenance of public utilities and services over the land sought to be vacated. [Ord. 676 § 2, 2008.]
12.20.060 Criteria for Council decision.
A. In the event that the right-of-way abuts any body of water, the City Council shall not vacate any street, alley or parts thereof if any portion thereof unless and until the City and/or the petitioner complies with all requirements of RCW 35.79.035 prior to the hearing.
B. The City shall not vacate any previously dedicated right-of-way unless, upon all the facts presented in public hearing, it concludes that vacation is in compliance with all criteria set forth in State law (Chapter 35.79 RCW) and is in the best interest of the City. Factors to consider in evaluation of whether the vacation is in the best interest of the City include the following:
1. Granting the vacation will not conflict with the general purpose and objectives of the City’s comprehensive plans for land use, transportation, utilities, drainage, parks, trails and open space; and
2. The vacation will provide a public benefit or be for a public purpose; and
3. Vacation of the right-of-way will not adversely affect the street pattern or circulation of the immediate area or the community as a whole; and
4. The right-of-way to be vacated is not contemplated or needed for future public use; and
5. There is at least one alternate mode of ingress and egress meeting City standards for emergency services available to all abutting owners, even if less convenient than the existing right-of-way; and
6. Provision has been made for utility easements where needed for the right to construct, repair and maintain public utilities and services; and
7. The request for vacation was not initiated to correct a condition created by the applicant in violation of City ordinance; and
8. The vacation will maintain or create straight and continuous right-of-way lines on at least one side for the full block. [Ord. 676 § 2, 2008.]
12.20.070 City Council decision.
At the conclusion of the public hearing, the City Council may take the following action:
A. Pass a motion of intent to vacate all or a portion of the requested vacation stating that the City Council will, by ordinance, grant the vacation with no conditions; or
B. Pass a motion of intent to vacate all or a portion of the requested vacation stating that the City Council will, by ordinance, grant the vacation by means of an ordinance to be effective upon payment of fees and satisfaction by the applicant of all other stated conditions within specified time periods; or
C. Pass a motion denying the proposed vacation. [Ord. 676 § 2, 2008.]
12.20.080 Granting – Conditions.
If the City Council decides to grant all or a portion of the vacation, such 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, benefit or interest, such as, but not limited to, reserving within the portion of the street or alley which is vacated: (A) easements for access, construction, repair and maintenance of public utilities, (B) easements for trails, and (C) easements for other public needs. Such conditions are in addition to the conditions set forth in EMC 12.20.090. [Ord. 676 § 2, 2008.]
12.20.090 All vacations may be conditioned on compensation to City for value of property vacated – Appraisal required.
A. All ordinances vacating any right-of-way, or portion thereof, may provide for and require that the abutting property owners or the petitioners make a payment to the City as compensation for the area to be vacated.
B. The vacation ordinance shall provide that it shall not become effective until the owners of property abutting upon the street or alley, or part thereof so vacated, or the petitioners shall compensate the City in an amount which does not exceed one-half the appraised value of the area so vacated; provided, however, 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 City shall require the owners of the property abutting the street or alley to compensate the City or town in an amount that does not exceed the full appraised value of the area vacated.
C. The City Council shall have final authority to determine the appraised value.
D. In no event shall such vacation request and the final vacation ordinance come before the City Council for final consideration until such amount has been computed, incorporated into the ordinance, and deposited with the Clerk-Treasurer.
E. In the event that final passage of the ordinance is not granted, the deposited amount (exclusive of the application fee and appraisal fee) shall be refunded to the petitioner. [Ord. 676 § 2, 2008.]
12.20.100 Trade in lieu of compensation.
In lieu of payment of monetary compensation, petitioner(s) may grant or dedicate to the City for street purposes real property useful for that purpose where the property to be acquired by such exchange has a fair market value at least equal to the amount of cash compensation that would otherwise be required. The City shall not be obligated to accept such an exchange and the decision of the City Council on the acceptability of the alternate property offered shall be final. [Ord. 676 § 2, 2008.]
12.20.110 Waiving compensation – Other governmental agencies, entities, jurisdictions.
Where vacation or transfer of a public way is applied for by or on behalf of a nonprofit entity or another governmental agency, entity or jurisdiction, or where the City Council finds that approval of the vacation provides substantial public benefit, it may waive any compensation except filing fees normally required by this chapter. A transfer or vacation of property on which compensation has been waived under this section shall be accompanied by a covenant providing that the City shall be compensated at current fair market value at the time of any future sale or lease of the subject property by such other governmental agency, entity or jurisdiction. [Ord. 676 § 2, 2008.]
12.20.120 Notice to County Auditor, Assessor and Engineer.
A certified copy of the ordinance vacating any right-of-way shall be filed by the City Clerk with the County Auditor, County Assessor, and County Engineer. [Ord. 676 § 2, 2008.]