Chapter 12.37
VACATION OF RIGHTS-OF-WAY (STREETS, ALLEYS AND PUBLIC PLACES)1
Sections:
12.37.030 Request to vacate property – Process.
12.37.040 City Council criteria for consideration and required findings.
12.37.050 Compensation for vacation.
12.37.070 Payment of compensation or conveyance.
12.37.080 Posting and mailing notices – Recording ordinance.
12.37.010 Definitions.
“Right-of-way” means that area of land, property, or interest therein, usually in a strip, acquired for or devoted as a street, road or public way for the purposes of vehicular travel. For the purpose of this chapter, “right-of-way” shall include, but not be limited to, all streets, alleys and public spaces. (Ord. 1962 § 1 (Att. 1), 2016)
12.37.020 Purpose and intent.
A. It is the purpose of this chapter to identify the procedures, notice requirements and fees through which a request to vacate a street or other public property will be processed by the City of Ferndale, and to establish the criteria that will be used by the City Council in evaluating such requests.
B. It is the purpose of this chapter to establish the City of Ferndale’s policy that public rights-of-way and public property in public or private ownership should be retained by the City unless it can be demonstrated that there is no public interest in retaining such property at present or in the foreseeable future, or that vacation of the property in trade for other property or for the purpose of meeting the requirements of the Comprehensive Plan is necessary.
C. It is the purpose of this chapter to establish the City of Ferndale’s policy that public rights-of-way and public property in public ownership should not be vacated without a clear public benefit and must not constitute a gift of public funds to private property owners. (Ord. 1962 § 1 (Att. 1), 2016)
12.37.030 Request to vacate property – Process.
A. The City or a private property owner with interest in real estate abutting public property may submit a formal petition to vacate public property to the Public Works Director of the City of Ferndale as per Chapter 35.79 RCW.
1. Every petition for the vacation of any street, alley or public place, or any part thereof, shall be accompanied by an initial payment to the City of a pre-hearing fee of $450.00 to defray a portion of the administrative costs incurred in processing such vacation petitions. Subsequent fees for post-hearing activities shall be $150.00 for single-family residential zoned land, and $300.00 for all other right-of-way vacation petitions. Such fees shall not be refunded under any circumstances and shall not include the costs for publishing notices in the newspaper of record or postage costs associated with public notification, which are the responsibility of the petitioner. In addition, at the time the City Council recommends granting a vacation, the petitioner shall deposit an amount determined by the Director of Public Works to be the Director’s best estimate of the cost of an appraisal of the land. In the event an appraisal cost is less than the amount deposited, the vacation compensation payable to the City shall be reduced by the difference between the deposit and the actual cost or, in the alternative, such difference shall be refunded. In the event an appraisal cost is more than the amount deposited, the vacation compensation payable to the City shall be increased by the difference between the deposit and the actual cost, or, in the alternative, such difference shall be separately billed and paid prior to final approval of the vacation.
2. The petition shall include the following information:
a. The specific location of the right-of-way;
b. The planned use for the right-of-way;
c. The size of the right-of-way requested for vacation;
d. The number of adjoining property owners that would be affected by the vacation;
e. The number of properties which utilize the right-of-way, if different from subsection (A)(2)(d) of this section;
f. The manner in which the vacation will benefit the public interest;
g. How the proposed vacation will impact traffic circulation, levels of service, access, emergency services, utility facilities or other similar right-of-way purposes;
h. The manner in which the proposed vacation contributes to the development potential of the site;
i. The manner in which the proposed vacation is consistent with City land use policies for the area; and
j. The environmental impacts that could result from the vacation.
B. Upon receiving the request, the City Clerk shall place an agenda item on the next available Council agenda to adopt a resolution to consider the request at a public hearing to be scheduled for not more than 60 days nor less than 20 days after the date of the passage of such resolution.
C. Following the adoption of the resolution, the City Clerk shall schedule a public hearing for consideration of the vacation request, and shall provide notice of the public hearing to all owners of property abutting the area of the vacation. It shall be the responsibility of the petitioner to place notices on at least two locations within the proposed vacation area, pursuant to Chapter 14.15 FMC.
1. It shall be the responsibility of the Public Works Department to confirm the following:
a. Notice of the public hearing is published in the newspaper of record once a week for four consecutive weeks. The Public Works Department shall cause said notice to be published, at cost to the petitioner.
b. A copy of the notice is posted at City Hall and the Ferndale Public Library. The petitioner shall be responsible for such postings.
c. A copy of the notice is served by U.S. mail at least 30 days prior to the scheduled meeting on all abutting property owners. The Public Works Department shall be responsible for such mailings at cost to the petitioner pursuant to FMC 14.15.050 and the City’s Unified Fee Schedule.
d. A copy of the notice is served by U.S. mail at least 30 days prior to the scheduled meeting on any entity known to have facilities or equipment such as utility lines, both aerial or buried, within the right-of-way to be vacated.
e. The notice describes the street, alley, highway, or portion thereof proposed to be vacated and gives the date, time, and location of the City Council meeting at which the public hearing will be held and the proposed vacation is scheduled to be addressed.
2. Any citizen may submit written comments to the City Council prior and up to the close of the public hearing and may request an opportunity to be heard at the public hearing.
3. Should 50 percent or more of abutting property owners file written objections to the proposed vacation prior to the hearing, the City shall be prohibited from proceeding with the vacation.
a. If abutting property owners meet the objection threshold described in subsection (C)(3) of this section, the City shall make an announcement cancelling the public hearing at the beginning of the City Council meeting for which the hearing was originally scheduled.
D. The Public Works Director shall make a recommendation to the City Council in the form of a written staff report concerning the vacation request, based upon this chapter and other applicable provisions of the Ferndale Municipal Code, the Ferndale Development Standards, Ferndale Comprehensive Plan and consultation with City staff and professional consultants.
E. The City Council shall consider the recommendation of the Public Works Director as well as written and oral testimony provided by the proponent and any members of the public and shall make a decision to grant the petition with or without conditions, or may deny the petition.
1. If the City Council approves the petition to vacate a public right-of-way, such approval requires an ordinance signed by the City Clerk and Mayor.
2. The ordinance vacating the public right-of-way may contain a provision retaining or requiring conveyance of easement for construction, repair and maintenance of existing and future public utilities and services. However, in no case may the City allow the vacation of a right-of-way in trade for an easement in the same location, when utilities currently exist within the right-of-way.
3. If any street or alley is vacated by the City Council, the property within the limits so vacated shall return to the abutting property owners, one-half to each, unless it can be demonstrated that the original ownership of the public property was held by one property owner.
4. The City Council’s decision approving or denying the petition is final and is not subject to appeal.
5. The City Council is under no obligation to vacate a road or public property at any time, for any reason. (Ord. 1962 § 1 (Att. 1), 2016)
12.37.040 City Council criteria for consideration and required findings.
The City Council shall balance the vacation request against the following criteria, and shall make findings as provided below.
A. The road or property to be vacated has no present use value to the public and has no foreseeable public use or value in the future, whether for its present use or any future public use.
B. The proposed vacation request has followed the process established by this chapter and is consistent with the process established in Chapter 35.79 RCW.
C. The City has determined a fair market value for the property and the petitioner(s) are prepared to pay these costs; or the City has waived an evaluation of fair market value for the purposes of trading property or surplusing property.
D. Neither the City’s Comprehensive Plan or six-year plans identify a future public use for the subject property, either in its current use or any future use.
E. Adjacent property owners have been notified of the date, time, and place of the meeting.
F. Appropriate conditions restricting or describing the use of the vacated right-of-way have been identified.
G. Existing utilities have been identified, and can be relocated or adequately served by an easement at cost to the applicant.
H. The right-of-way has no use for the Ferndale School District, and has no use as either a park or a trail.
I. The vacation of the right-of-way will not have a significant impact on views or access to sunlight currently enjoyed by abutting properties.
J. The petitioner has demonstrated that the increase in development potential associated with the right-of-way is consistent with City land use policies for the area in which the right-of-way is located.
K. The manner in which the public will benefit from the vacation. For the purposes of this chapter, public benefit shall not be measured by the ability to mitigate the impacts of the vacation, but rather the extent to which the vacation itself will have a public benefit.
L. That the proposed vacation will not be detrimental to traffic circulation, levels of service, access, emergency services, utility facilities or other similar right-of-way purposes.
M. That the proposed vacation will not be detrimental to the environment.
N. That the purpose of the vacation is not only to make the petitioner’s property more valuable or easier to develop.
O. The extent of traffic impacts (if any), and measures necessary to mitigate those impacts as found in FMC 12.37.030(A)(2)(g). (Ord. 1962 § 1 (Att. 1), 2016)
12.37.050 Compensation for vacation.
A. Ordinances vacating any street or alley or part thereof shall not go into effect until the full amount of the appraised value of the area vacated is paid to the City. In certain circumstances, provision of other valuable consideration acceptable to the City may be made in lieu of up to one-half of the payment; provided, that such consideration shall not be acceptable if it is required for the street vacation, it is considered a public benefit to meet the public benefit requirements of the street vacation, or it is required by other regulatory action. Acceptable consideration shall be quantified in dollars which shall then be credited to the required payment. City, state and federal agencies shall be exempt from such payment, but shall pay to the City all costs incurred by the City in processing the vacation request. As contemplated by RCW 35.79.035(3), the full market value shall be paid upon vacation of streets abutting upon bodies of water.
B. Conveyance of other property acceptable to the City may be made in lieu of the payment required by subsection (A) of this section, whether required to mitigate adverse impacts of the vacation or otherwise. The full appraised value of the land conveyed shall be credited to the required payment. When the value of the in-lieu parcel is less than the payment required by subsection (A) of this section, the petitioner shall pay the difference to the City. When the value of the in-lieu parcel exceeds the payment required by subsection (A) of this section, the City shall pay the difference to petitioner. (Ord. 1962 § 1 (Att. 1), 2016)
12.37.060 Appraisals.
A. The Public Works Director is authorized to obtain appraisals from qualified, independent appraisers after hearing by the City Council, and is further authorized to obtain appraisals from qualified independent real estate appraisers of the fair market value of the alternate right-of-way of land proposed to be granted or dedicated to the City for street or alley purposes in lieu of a cash payment in the manner contemplated by FMC 12.37.050 and in such instance an additional appraisal deposit fee shall be paid for the appraisal of such parcel or parcels, and according to the fee and time schedule provided for in FMC 12.37.030.
B. Unless otherwise directed by the Public Works Director, appraisals shall be based on “highest and best use” given the surrounding zoning and existing uses. (Ord. 1962 § 1 (Att. 1), 2016)
12.37.070 Payment of compensation or conveyance.
A. Following approval of an ordinance vacating a street, but prior to the effective date of the ordinance, the City shall receive payment of compensation and conveyance. Upon securing an appraisal of the value of the street or alley area to be vacated as provided in this chapter, the Public Works Director shall notify the petitioner of the amount of compensation, deducting therefrom any remaining appraisal fee deposit not previously refunded to petitioner. The payment shall be delivered to the Public Works Director who, upon receipt of any such payment, shall forthwith transmit the same to the Director of Finance for deposit in the Street Fund and shall make a written report of such payment to the City Council. In the event that the petitioner has received approval of delivery of an instrument granting or dedicating to the City a parcel or parcels of land in lieu of a cash payment as contemplated by FMC 12.37.050, the Public Works Director, in his or her discretion, at the applicant’s expense shall obtain either a policy of American Land Title Association (ALTA) title insurance insuring title thereto in the City, or a certificate of title as to the title thereof, and upon receipt of such policy or certificate shall transmit the same to the City Council for inclusion in the appropriate file.
B. In the event that a petitioner fails to provide payment of compensation or conveyance within 30 days of being notified of the amount of compensation in subsection (A) of this section, the ordinance shall expire without action and the petitioner shall be required to reapply no sooner than 90 calendar days following expiration. Reapplication shall require the resubmittal of all fees and application materials. (Ord. 1962 § 1 (Att. 1), 2016)
12.37.080 Posting and mailing notices – Recording ordinance.
Posting and mailing of the notices provided for in this chapter shall be the responsibility of the City Clerk, who shall have the discretion to permit the Public Works Director or his/her designee to post and mail the notices under the supervision of the City Clerk. As required by RCW 35.79.030, a certified copy of the ordinance vacating a street, alley or public place, or part thereof, shall be recorded by the City Clerk and in the office of the Whatcom County Auditor. (Ord. 1962 § 1 (Att. 1), 2016)
12.37.085 Effect of denial.
Should a request to vacate a public street, alley or public property be denied, no request to vacate all or a portion of the property proposed for vacation shall be submitted to the City for at least 90 calendar days. (Ord. 1962 § 1 (Att. 1), 2016)
Code reviser’s note: Ord. 1962 adds this chapter as Chapter 12.36. It has been editorially renumbered to avoid duplication of numbering.