Platted easement vacation?

From Plat, and noted as: hereby dedicate to the public forever without reservation or restriction the easements and street shown for said purposes respectively.

Are the easements labeled Utility Easements or is it assumed. Suspect that every existing utility, maybe future utilities also, has an interest in the easement, a replat would require a release of any claims by those utility companies to remove or move that easement, city can vacate their claim to that easement, but until all who may have rights vacate their rights, the easement remains as platted. Might be easier to go to the city and all utilities and create a document that provides the right to trespass until time or rebuilding takes place. What does the City Attorney say? Might encourage the city to obtain an opinion from him, it is a legal question and with that opinion you could advise your client and co-op with the city for all involved do what is needed to protect themselves and any private or public interest.
jud

> From Plat, and noted as: hereby dedicate to the public forever without reservation or restriction the easements and street shown for said purposes respectively.
>
> Are the easements labeled Utility Easements or is it assumed. Suspect that every existing utility, maybe future utilities also, has an interest in the easement, a replat would require a release of any claims by those utility companies to remove or move that easement, city can vacate their claim to that easement, but until all who may have rights vacate their rights, the easement remains as platted. Might be easier to go to the city and all utilities and create a document that provides the right to trespass until time or rebuilding takes place. What does the City Attorney say? Might encourage the city to obtain an opinion from him, it is a legal question and with that opinion you could advise your client and co-op with the city for all involved do what is needed to protect themselves and any private or public interest.
> jud

The easements on the plat are actually noted as "public utility easements".

The city had offered up a "revocable license" to occupy the easement until such time as the building is "substantially rebuilt" and the footing is moved out of the easement. Financing said "NO" we want the easement vacated. I suggested a "Permit" to occupy the right of way (same conditions), No..... Release of all interested parties, sure, still the Financing has heartburn until it's vacated.... Keep in mind they want to do this by Metes and Bounds on a platted partition?

> The sun rises on a sleepy little town in Oregon..... begin.
Raining Here pretty good. No Sunshine in sight.:-D
> Partition Plat from the mid 1990s with easements along the road right of way.
>
> From Plat, and noted as: hereby dedicate to the public forever without reservation or restriction the easements and street shown for said purposes respectively.
>
> Fast forward to today, DISCOVERED, roughly half foot encroachment into the easement by a structure that was built roughly the same time as the platting.
OK...
> Re-finance coming up and ALTA reveals said encroachment.
> This creates a request for the vacation of a "portion" of the easement, of course.
Oy-vey. Attorneys will ask for anything. But that is their job. The Title Co will just take exception to it (as they do with just about anything they can try and get out of covering) if simply showing the encroachment. (Without expressing a legal opinion as to the ownership or nature of the potential encroachment.)
> Oregon has some fairly stringent statutes for Re-platting to re-configure the
> elements of a previous plat. 92.185 comes to mind.
Yep, those procedures are not cheap either.
> So, does the reconfiguration of the platted easement (no original, metes and bounds description) constitute a re-plat to change the lines on the plat?
NO. as you note below, per 92.190
> Now the fun part, city land development code "defines" Public Utility Easements (PUE) [now never mind that ORS does not, I believe define PUE, just utility easements] for franchise utilities operating within the city.
OK, fairly standard language to allow the non-pub utils to place lines within the public ways.
> Vacating of Public Lands and Plats -
> City Development Code: The city does not consider PUE's to be public places for the purposes of ORS 271, as amended.
>
> Yet, Per ORS "92.190 Effect of replat; operation of other statutes; use of alternate procedures. (1) The replat of a portion of a recorded plat shall not act to vacate any recorded covenants or restrictions.
>
> (2) Nothing in ORS 92.180 to 92.190 is intended to prevent the operation of vacation actions by statutes in ORS chapter 271 or 368."
>
> Yet, the city itself "does not consider PUE's to be public places for the purposes of ORS 271,as amended".... Yet noted above, the plat itself calls out the easements as public in the dedication of the plat.

PUE's are an easement for utility purposes only, Not a Fee title strip of land for the public that could be used for other public purposes. This is generally why I would interpret a city does not constitute a pue as a public place such a a park or a public right-of-way.

> Can a city simply ignore an easement as being public when noted so on the face of a plat and vacate away without changing the plat?

Unless the plat says something different, I don't believe the intention was to dedicate the PUE as fee title for any public use. Simply to allow for public utilities and as per city code, franchise utilities to place lines within said strip.

Since a replat can not reconfigure or change easements as noted in 92.190, then the method of vacation or reconfiguration goes down by other methods. Most times a simple deed document will cover this unless a city process is different. This is only for PUE's though as a Street vacation must go through a completely separate process.

> Can the city simply "Vacate" a public easement on a plat without requiring the filing of a replat in the face of the sections of ORS as noted?

Yes, as noted above.
> There we go, a little something to have fun with!
>
> And.... go!

"PUE's are an easement for utility purposes only, Not a Fee title strip of land for the public that could be used for other public purposes. This is generally why I would interpret a city does not constitute a pue as a public place such a a park or a public right-of-way."

I think this may be why Grant's Pass refers to them as CUE's City Utility Easements.

Would a temporary vacation of the building footprint within the Easement fly? Upon reconstruction or other trigger, the vacation would become null and void. I have seen some find other financiers that will work with them, other than the expense of the hoops already jumped through for the current application, do well. Have seen buildings have corners removed or exterior wall moved, that is a bit much except in the very few places where clearance is critical. Sounds like this will take time to resolve.
jud

I have in the past and at the request of the client prepared a drawing and legal description for an Encroachment License. This would be granted to the building owner and remain in effect for as long as the building stood. It maintains the integrity of the easement. It should be recorded so it goes in the public record along with the deed. Google "Encroachment License" for more. It's a commonly used remedy.

> > The sun rises on a sleepy little town in Oregon..... begin.
> Raining Here pretty good. No Sunshine in sight.:-D
> > Partition Plat from the mid 1990s with easements along the road right of way.
> >
> > From Plat, and noted as: hereby dedicate to the public forever without reservation or restriction the easements and street shown for said purposes respectively.
> >
> > Fast forward to today, DISCOVERED, roughly half foot encroachment into the easement by a structure that was built roughly the same time as the platting.
> OK...
> > Re-finance coming up and ALTA reveals said encroachment.
> > This creates a request for the vacation of a "portion" of the easement, of course.
> Oy-vey. Attorneys will ask for anything. But that is their job. The Title Co will just take exception to it (as they do with just about anything they can try and get out of covering) if simply showing the encroachment. (Without expressing a legal opinion as to the ownership or nature of the potential encroachment.)
> > Oregon has some fairly stringent statutes for Re-platting to re-configure the
> > elements of a previous plat. 92.185 comes to mind.
> Yep, those procedures are not cheap either.
> > So, does the reconfiguration of the platted easement (no original, metes and bounds description) constitute a re-plat to change the lines on the plat?
> NO. as you note below, per 92.190

I'm seeing 92.190 as being applied mainly to property line adjustments, and not addressing easements. Yet, the law lays out the definitions in 92.010 (13) (19) and it seems to point to the act of replatting as a way to reconfigure easements?

(19) “Utility easement” means an easement noted on a subdivision plat or partition plat for the purpose of installing or maintaining public or private utility infrastructure for the provision of water, power, heat or telecommunications to the public.

> > Now the fun part, city land development code "defines" Public Utility Easements (PUE) [now never mind that ORS does not, I believe define PUE, just utility easements] for franchise utilities operating within the city.
> OK, fairly standard language to allow the non-pub utils to place lines within the public ways.
> > Vacating of Public Lands and Plats -
> > City Development Code: The city does not consider PUE's to be public places for the purposes of ORS 271, as amended.
> >
> > Yet, Per ORS "92.190 Effect of replat; operation of other statutes; use of alternate procedures. (1) The replat of a portion of a recorded plat shall not act to vacate any recorded covenants or restrictions.
> >
> > (2) Nothing in ORS 92.180 to 92.190 is intended to prevent the operation of vacation actions by statutes in ORS chapter 271 or 368."
> >
> > Yet, the city itself "does not consider PUE's to be public places for the purposes of ORS 271,as amended".... Yet noted above, the plat itself calls out the easements as public in the dedication of the plat.
>
> PUE's are an easement for utility purposes only, Not a Fee title strip of land for the public that could be used for other public purposes. This is generally why I would interpret a city does not constitute a pue as a public place such a a park or a public right-of-way.
>
> > Can a city simply ignore an easement as being public when noted so on the face of a plat and vacate away without changing the plat?
>
> Unless the plat says something different, I don't believe the intention was to dedicate the PUE as fee title for any public use. Simply to allow for public utilities and as per city code, franchise utilities to place lines within said strip.
>
> Since a replat can not reconfigure or change easements as noted in 92.190, then the method of vacation or reconfiguration goes down by other methods. Most times a simple deed document will cover this unless a city process is different. This is only for PUE's though as a Street vacation must go through a completely separate process.
>
> > Can the city simply "Vacate" a public easement on a plat without requiring the filing of a replat in the face of the sections of ORS as noted?
>
> Yes, as noted above.
> > There we go, a little something to have fun with!
> >
> > And.... go!

Awwww! And here I thought you were

gonna tell us about some secluded place where you sojourn when you are not at work!

Awwww! And here I thought you were

> gonna tell us about some secluded place where you sojourn when you are not at work!

I do return to visit one of my favorite job sites on occasion...I was there about 2 years, while the construction company I worked for rebuilt the dam to raise the pool elevation about 25 feet. It really changed the area of the reservoir, try the "historic photo" toolbar in google earth and slide it back in time... it's quite a difference........ it sits at the top of the coastal mountain range between the Willamette Valley and the Coast.

45°17'55.27" N 123°23'58.27" W

Pop this into the google earth search engine...

It is at the peak of the range, it's natural flow is to the west, and the ocean.
The city of McMinnville to the east has water rights and diverts some of the outflow of this reservoir to the north east and Haskins reservoir. They sit prety low in the range around 1900' or so, but I asked one of the rep's from the water dept. and he told me the whole town only has one pump station... it's all gravity flow from the reservoirs.

As a drinking water reservoir... no fishing, or boating allowed... ususally nice and quite up there.... well there are some old rock pits that make passable shooting ranges for doing a little sighting in... B-)