028-15 - Ordinance - Vacation of Streets, Alleys and Public PlacesIntroduced by: Development Director
Drafted by: City Attorney
Reviewed by: City Attorney
Introduced: November 24, 2015
Adopted: November 24, 2015
ORDINANCE NO.028-15
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PORT ORCHARD,
WASHINGTON, RELATING TO VACATION OF STREETS, ALLEYS, PUBLIC PLACES
OR PORTIONS THEREOF, DESCRIBING THE PROCESS FOR PETITIONING THE
COUNCIL FOR A STREET VACATION, INCLUDING THE REQUIREMENT FOR AN
APPRAISAL, NOTICE OF THE PUBLIC HEARING, DESCRIBING THE LEGISLATIVE
FACTORS INVOLVED IN THE DECISION TO VACATE, THE PROCEDURE FOR THE
PUBLIC HEARING, DESCRIBING CONDITIONS THAT MAY BE PLACED ON A
VACATION, DESCRIBING THE METHOD FOR DETERMINING COMPENSATION
FOR VACATIONS, LIMITING VACATIONS OF WATERFRONT STREETS,
ESTABLISHING A PROCEDURE FOR VACATION OF STREETS SUBJECT TO THE
NONUSER STATUTE, DESCRIBING THE PROCESS FOR RECORDING OF THE
VACATION ORDINANCE, AMENDING SECTIONS 12.08.010, 12.08.020,
12.08.030, 12.08.050, REPEALING SECTION 12.08.060 AND ADDING NEW
SECTIONS 12.08.015, 12.08.017, 12.08.060 AND 12.08.070 TO THE PORT
ORCHARD MUNICIPAL CODE.
WHEREAS, the effect of the dedication to the public of street in plats is to grant an
easement for purposes of public travel (RCW 58.08.050, 58.08.015, Burmeister v. Howard, 1
Wash. Terr. 207 (1867)); and
WHEREAS, owners of an interest in real estate abutting a street or alley that has been
dedicated in this manner may petition the City Council to vacate the easement for public travel
(chapter 35.79 RCW); and
WHEREAS, the City has adopted chapter 12.08 of the Port Orchard Municipal Code
(POMC) to address street vacations but the process in chapter 12.08 is incomplete, and
WHEREAS, the City desires to establish a process for street vacations to conform with
state law and to address situations involving street vacations that have occurred under the non-
user statute; and
WHEREAS, the SEPA Responsible Official has determined that this Ordinance is
categorically exempt under SEPA, WAC 197-11-800(19) as a program relating solely to
governmental procedures and containing no substantive standards respecting use or
modification of the environment; and
WHEREAS, the City Council considered this ordinance during its regular meeting of
November 24, 2015; Now, Therefore,
Ordinance No. 028-15
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THE CITY COUNCIL OF THE CITY OF PORT ORCHARD, WASHINGTON, DOES ORDAIN AS
FOLLOWS:
Section 1. Section 12.08.010 of the Port Orchard Municipal Code is hereby amended to
read as follows:
12.08.010 Petition for vacation.
A. 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 Section 12.08.060 of this Chapter. The
petition shall be filed with the City Clerk.
B. 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.
C. 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.
Section 2. A new Section 12.08.015 is hereby added to the Port Orchard Municipal
Code, which shall read as follows:
12.08.015 Petition fees.
A. 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.
B. Appraisal fee. If the City Council passes a Resolution as described in
Section 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
Ordinance No. 028-15
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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.
Section 3. A new Section 12.08.017 is hereby added to the Port Orchard Municipal
Code, which shall read as follows:
12.08.017 Appraisals.
A. If the City Council passes the Resolution described in Section 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 Section 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.
B. 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 Section 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.
Section 4. Section 12.08.020 of the Port Orchard Municipal Code is hereby amended to
read as follows:
12.08.020 Notice of Hearing
A. Notice to be Provided. Upon the passage of the Resolution described in
Section 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.
B. 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
Ordinance No. 028-15
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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 his or her objection prior to such hearing.
C. 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 Section 12.08.020(A) and
(B) above, at least fifteen 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.
Section 5. Section 12.08.030 of the Port Orchard Municipal Code is hereby amended to
read as follows:
12.08.030 Objections, Staff Report, Hearing
A. Objections — Council Prohibited from Proceeding. If fifty (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.
B. Staff Report. The staff shall prepare a report and recommendation on
the proposed vacation, which shall include: (1) 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; (2) a description of the
manner in which the area sought to be vacated was acquired (whether by
dedication, public expense, etc.); (3) a description of all utilities or other public
services that currently utilize the area sought to be vacated, whether by
easement or otherwise; (4) the staffs recommendation on the functionality of
the area sought to be vacated for public purposes; (5) references to any
planning document, such as the City's Comprehensive Plan, the Transportation
Element of the Comprehensive plan, the 6-Year Road Plan or the Capital
Facilities Element of the Comprehensive Plan that mention the area sought to
be vacated for any purpose; (6) the staffs 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).
C. 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
Ordinance No. 028-15
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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).
D. 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 Section
12.08.050.
E. 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.
F. 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.
Section 6. Section 12.08.050 of the Port Orchard Municipal Code shall be amended to
read as follows:
12.08.050 Compensation, In -Lieu Transfers of Property, Title to vacated
street or alley.
A. 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.
1. If the street, alley, public place or portion thereof has not been
part of a dedicated public right-of-way for twenty-five 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.
2. If the street, alley, public place or portion thereof has been part
of a dedicated public right-of-way for twenty-five 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.
3. 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 Section 12.08.040.
Ordinance No. 028-15
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B. 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 A(1) through (3) above shall be
credited to the required payment. When the value of the in -lieu parcel is less
than the payment required by subsection A(1) through (3) 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 A(1) through (3) 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.
C. 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.
Section 7. Section 12.08.060 of the Port Orchard Municipal Code is hereby
repealed.
Section 8. A new Section 12.08.060 is hereby added to the Port Orchard
Municipal Code, which shall read as follows:
12.08.060 Non -user Statute Vacations.
A. 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.
B. 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 Section 12.08.010 and
shall pay the administrative fee required by Section 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.
C. The City Clerk shall provide notice of the petition and public hearing as
required by Section 12.08.010 and .020. No appraisal or compensation shall be
required of the petitioners.
D. 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.
E. 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
Ordinance No. 028-15
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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 Section
12.08.070.
Section 9. A new Section 12.08.070 is hereby added to the Port Orchard Municipal
Code, which shall read as follows:
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 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
Section 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.
Section 10. Severability. If any section, sentence, clause or phrase of this Ordinance
should be held to be unconstitutional or unlawful by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity or constitutionality of any other
section, sentence, clause or phrase of this Ordinance.
Section 11. Publication. This Ordinance shall be published by an approved summary
consisting of the title.
Section 12. Effective Date. This Ordinance shall take effect and be in full force and
effect five days after publication, as provided by law.
PASSED by the City Council of Port Orchard, APPROVED by the Mayor and attested by
the Clerk in authentication of such passage this 24th day of November, 2015.
Timothy C. Mat hes, Mayor
ATTEST:
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Brandy Rinearson, CIVIC, City Clerk
APPR%% ''IZE AS TO FORM: ,��'Qti �e�P OR RC,SONSORED BY:
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Car A. Morris, City Attorney e �, , qi}e =Ashby, Councilmember
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NOTICE OF CITY OF PORT ORCHARD
ORDINANCE
The following is a summary of an Ordinance approved by the Port Orchard City Council at their regular Council
meeting held November 24, 2015.
ORDINANCE NO.028-15
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PORT ORCHARD,
WASHINGTON, RELATING TO VACATION OF STREETS, ALLEYS, PUBLIC PLACES OR
PORTIONS THEREOF, DESCRIBING THE PROCESS FOR PETITIONING THE COUNCIL FOR A
STREET VACATION, INCLUDING THE REQUIREMENT FOR AN APPRAISAL, NOTICE OF
THE PUBLIC HEARING, DESCRIBING THE LEGISLATIVE FACTORS INVOLVED IN THE
DECISION TO VACATE, THE PROCEDURE FOR THE PUBLIC HEARING, DESCRIBING
CONDITIONS THAT MAY BE PLACED ON A VACATION, DESCRIBING THE METHOD FOR
DETERMINING COMPENSATION FOR VACATIONS, LIMITING VACATIONS OF
WATERFRONT STREETS, ESTABLISHING A PROCEDURE FOR VACATION OF STREETS
SUBJECT TO THE NONUSER STATUTE, DESCRIBING THE PROCESS FOR RECORDING OF
THE VACATION ORDINANCE, AMENDING SECTIONS 12.08.010, 12.08.020, 12.08.030,
12.08.050, REPEALING SECTION 12.08.060 AND ADDING NEW SECTIONS 12.08.015,
12.08.017, 12.08.060 AND 12.08.070 TO THE PORT ORCHARD MUNICIPAL CODE.
Copies of Ordinance No. 028-15 are available for review at the office of the City Clerk of the City of Port Orchard.
Upon written request a statement of the full text of the Ordinance will be mailed to any interested person without
charge. Thirty days after publication, copies of Ordinance No. 028-15 will be provided at a nominal charge.
City of Port Orchard
Brandy Rinearson
City Clerk
Published: Friday, December 4, 2015