Chapter 12.08
VACATIONS*
Sections:
12.08.010 Petition for vacation.
12.08.030 Objections, staff report, hearing.
12.08.040 Limitations on vacation of streets abutting bodies of water – Procedure.
12.08.050 Compensation, in-lieu transfers of property, title to vacated street or alley.
12.08.060 Nonuser statute vacations.
* Prior legislation: Ords. 861, 886 and 1130.
12.08.010 Petition for vacation.
(1) Petitions by Abutting Owners. The owners of an interest in real estate abutting upon any street, alley, public place or portion thereof created by easement may petition the city council for a vacation of such area. The petition shall include a description of the property to be vacated, as prepared by a licensed surveyor. In addition, the petitioners shall provide evidence that the public has an easement upon such street or alley (and that the property is not owned in fee by the city). Property owners seeking a vacation to clear title under 1889-90 Laws of Washington, Chapter 19, Section 32 (non-user statute) shall follow the procedure set forth in POMC 12.08.060. The petition shall be filed with the city clerk.
(2) Council Resolution. The city council may propose a vacation of a street, alley, public place or portion thereof, without requiring that the abutting property owners make payment to the city for such vacation, where the city council has made a preliminary determination that the street, alley or public place is not needed for public travel now or in the foreseeable future.
(3) Notice of Proposed Vacation. If a 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, or after the city council’s own motion and resolution for a vacation, the city council shall adopt a resolution fixing a time when the petition will be heard and determined. The time set for hearing shall not be more than 60 days nor less than 20 days after the date of the passage of the resolution. (Ord. 028-15 § 1; Ord. 013-14 § 2).
12.08.015 Petition fees.
(1) Prehearing Fee. Every petition for the vacation of any street, alley or public place, or any portion thereof, shall be accompanied by a nonrefundable fee, as established by the city council in its fee resolution. This fee is for the purpose of defraying the administrative costs associated with the processing of the vacation petitions.
(2) Appraisal Fee. If the city council passes a resolution as described in POMC 12.08.010, setting the date for a public hearing for a petition initiated by the abutting owners, the petitioners shall deposit sufficient funds to cover the city’s estimated cost of a full appraisal of the subject street, alley, public place or portion thereof to be vacated. In the event that the appraisal cost is less than the amount deposited, the vacation compensation paid by the petitioners 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 the actual cost of the appraisal is more than the amount deposited, the vacation compensation payable to the city by the petitioners shall be increased by the difference between the deposit and the actual appraisal cost. (Ord. 028-15 § 2).
12.08.017 Appraisals.
(1) If the city council passes the resolution described in POMC 12.08.010 pursuant to a petition by the abutting property owners, the public works director is authorized to obtain appraisals from qualified, independent appraisers for the fair market value of such streets, alleys or public places. The director is also authorized to obtain appraisals from qualified, independent real estate appraisers for the fair market value of alternate right-of-way land proposed to be granted or dedicated to the city in lieu of a cash payment, as described in POMC 12.08.050. For appraisals of alternate right-of-way land, an additional appraisal deposit fee shall be paid for the appraisal of such property.
(2) After the appraisal has been performed, the public works director shall notify the petitioner of the amount of compensation required, based on the criteria in POMC 12.08.050, deducting therefrom any remaining appraisal fee deposit. The payment shall be delivered by the property owner(s) to the finance director for deposit. (Ord. 028-15 § 3).
12.08.020 Notice of hearing.
(1) Notice to Be Provided. Upon the passage of the resolution described in POMC 12.08.010, the city clerk shall give 20 days’ notice of the pendency of the petition by a written notice posted in three of the most public places in the city, and a like notice in a conspicuous place on the street, alley or public place sought to be vacated. The city clerk shall also post notice of the petition on the city’s website.
(2) Elements of Notice When Petition Initiated by Abutters. The 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 by the city council for the hearing on the petition. The notice will state that the council shall hold a public hearing on the proposed vacation in the manner required by this chapter. In addition, the notice posted on the alley or street identified in the petition shall indicate that the easement for public travel in such area is proposed to be vacated, and that anyone objecting to the proposed vacation should attend the public hearing or submit written testimony to the city council indicating their objection prior to such hearing.
(3) Elements of Notice When Petition Initiated by City Council. When the proceeding is initiated by resolution of the city council without a petition having been signed by the abutting property owners, the city clerk shall provide by mail, written notice with the elements described in subsections (1) and (2) of this section, at least 15 days before the date fixed for the hearing, to the owners or reputed owners of all lots, tracts or parcels of land or other property abutting upon any street, alley or any part thereof sought to be vacated, as shown on the rolls of the county treasurer, directed to the address thereon shown. (Ord. 017-23 § 1 (Exh. A); Ord. 028-15 § 4; Ord. 013-14 § 2).
12.08.030 Objections, staff report, hearing.
(1) Objections – Council Prohibited from Proceeding. If 50 percent of the owners of property abutting the street, alley, public place or portion thereof subject to the vacation petition or council resolution for vacation file written objections to the proposed vacation with the city clerk, prior to the time of the public hearing, the city shall be prohibited from proceeding with the vacation.
(2) Staff Report. The staff shall prepare a report and recommendation on the proposed vacation, which shall include: (a) the history of private and public use of the area sought to be vacated, including the type of use (pedestrian, vehicular, etc.) and length of time such use has occurred; (b) a description of the manner in which the area sought to be vacated was acquired (whether by dedication, public expense, etc.); (c) a description of all utilities or other public services that currently utilize the area sought to be vacated, whether by easement or otherwise; (d) the staff’s recommendation on the functionality of the area sought to be vacated for public purposes; (e) references to any planning document, such as the city’s comprehensive plan, the transportation element of the comprehensive plan, the six-year road plan or the capital facilities element of the comprehensive plan that mention the area sought to be vacated for any purpose; (f) the staff’s recommendation whether the area sought to be vacated will be needed in the future as part of the city’s transportation system (pedestrian, bicycle or vehicular).
(3) Hearing. The city council shall hold a public hearing on the proposed vacation and consider the written recommendations of staff, abutters, the public and all testimony provided at the hearing. The city council shall determine whether the public interest is served by such vacation and either grant the vacation or deny it. Written findings and conclusions shall be adopted by the council to support its decision (which may incorporate the staff report).
(4) Ordinance. If the city council decides to grant a vacation petition, the ordinance granting such vacation shall provide that it shall not become effective until the owners of property abutting upon the street or alley, or part thereof so vacated, have compensated the city for such vacation as provided in POMC 12.08.050.
(5) The ordinance may provide that the city (or other utility providers) shall retain an easement or the right to exercise and grant easements with respect to the vacated land for the construction, repair, and maintenance of public utilities and services.
(6) Use of Proceeds. One-half of the revenue received by the city as compensation for the area vacated must be dedicated to the acquisition, improvement, development and related maintenance of public open space or transportation capital improvements in the city. (Ord. 028-15 § 5; Ord. 013-14 § 2).
12.08.040 Limitations on vacation of streets abutting bodies of water – Procedure.
(1) No street or alley may be vacated if any portion of the street or alley abuts a body of fresh or salt water unless:
(a) 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, or educational purposes, or other public uses;
(b) The city, by resolution of the city council, 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
(c) 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 streets or alleys sought to be vacated abut, had the properties included in the plan not been vacated.
(2) Before adopting a resolution vacating a street or alley under subsection (1)(b) of this section, the city shall:
(a) Compile an inventory 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;
(b) Conduct a study to determine if the street or alley to be vacated is suitable 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;
(c) 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 their objection; and
(d) Make a finding that the street or alley sought to be vacated is not suitable for any of the purposes listed under subsection (2)(b) of this section, and that the vacation is in the public interest.
(3) 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 city 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. 017-23 § 1 (Exh. A); Ord. 013-14 § 2).
12.08.050 Compensation, in-lieu transfers of property, title to vacated street or alley.
(1) Ordinances vacating any street, alley, public place or portion thereof shall not be adopted by the city council until the owners of the property abutting such area shall compensate the city in the amount required by this section.
(a) If the street, alley, public place or portion thereof has not been part of a dedicated public right-of-way for 25 years or more, or if the subject property to be vacated was not acquired at public expense, the owners of property abutting the street shall compensate the city in an amount that does not exceed one-half of the appraised value of the street.
(b) If the street, alley, public place or portion thereof has been part of a dedicated public right-of-way for 25 years or more, or if the subject property to be vacated was acquired at public expense, the city may require the owners of the property abutting the street to compensate the city in an amount that does not exceed the full appraised value of the area vacated.
(c) The full fair market value, as shown on the appraisal, shall be paid upon vacation of any streets, alleys or public places abutting upon bodies of water, as provided in POMC 12.08.040.
(2) In-Lieu Transfers of Property. Conveyances of other property acceptable to the city may be made in lieu of the payment required by this section, whether required to mitigate adverse impacts of the vacation or otherwise. When such a transfer is proposed for street purposes, the value of the property (as determined in subsections (1)(a) through (c) of this section) shall be credited to the required payment. When the value of the in-lieu parcel is less than the payment required by subsection (1)(a) through (c) of this section, the petitioners shall pay the difference to the city. When the value of the in-lieu parcel exceeds the payment required by subsections (1)(a) through (c) of this section, the city shall pay the difference to the petitioner. In addition, the petitioner shall be responsible for all costs associated with this transfer, in the same manner as a property purchase, including but not limited to, title insurance, attorney review of the title, hazardous materials/waste testing, etc.
(3) Title. If any street or alley is vacated by the city, the property within the limits so vacated shall belong to the abutting owners, one-half to each. No vested rights shall be affected by the provisions of this chapter. (Ord. 028-15 § 6; Ord. 013-14 § 2).
12.08.060 Nonuser statute vacations.
(1) Vacations of streets subject to 1889-90 Laws of Washington, Chapter 19, Section 32 (the non-user statute) shall be processed as set forth in this section.
(2) The property owner(s) abutting the street or alley area proposed to be vacated shall submit a petition to the city as set forth in POMC 12.08.010 and shall pay the administrative fee required by POMC 12.08.015 and any fees incurred by the city to research the issue to confirm that the area has vacated by lapse of time under the non-user statute.
(3) The city clerk shall provide notice of the petition and public hearing as required by POMC 12.08.010 and 12.08.020. No appraisal or compensation shall be required of the petitioners.
(4) The staff report shall document the facts supporting a conclusion that the area proposed in the street vacation petition has vacated by lapse of time under the non-user statute, and that the city has no legal interest in this street area.
(5) The city council shall hold a public hearing and if the council determines that the area proposed for vacation has been vacated by lapse of time under the non-user statute, it shall approve the vacation ordinance. The city clerk shall file the vacation ordinance for recording as required by POMC 12.08.070. (Ord. 028-15 § 8).
12.08.070 Recording.
Posting and mailing of the notices described in this chapter shall be the responsibility of the city clerk. As required by RCW 35A.47.020 and 35.79.030, a certified copy of the ordinance vacating the street, alley, public place or portion thereof shall be sent to office of the Kitsap County auditor, for recording, after the petitioners have paid all fees and the value of the property, as determined in POMC 12.08.050, to the city. In addition, a copy of the ordinance shall be provided to the county assessor, so that the property may be added to the county’s tax rolls. (Ord. 050-17 § 1; Ord. 028-15 § 9).