I have a client that is a trustee for a parcel of land. The land has a city street along the west line and on the west side of that street a subdivision was created and the west 1/2 of the street was vacated and included into that subdivision(1979).
The city has just passed a law that charges a fee for a vacation on a per sq ft basis. What they want is an $80,000 fee to vacate the east 1/2 of the street (it's a long strip about 400'). I was just curious if this is common practice anywhere else.
By vacating half of the ROW does that leave a substandard width for a public street by the action of the vacation. If it does and the city does not own the street in fee, a suit should be brought to bring the street back up to code, pay rent for keeping the land tied up for a substandard ROW on a square foot basis matching the stated cost of vacation or they could choose to vacate at their own expence as they should anyway. Vacations need to be all or none and my feeling today is that no vacation of any public ROW or RR ROW should allowed because although we may be here today, we will be gone tomorrow and have no clue what the future needs may be. The one thing we do know is that as the population density increases, the cost and the difficulty of obtaining new ROW's increases, we need to think ahead and keep all of the existing routes available for future needs.
jud
I would do some research to see how the street was created and particularly whether it was originally obtained in fee simple by the city by purchase or as an easement. Also, how the other half of the street was vacated and whether the owner of the subdivision paid for it.
Basing the fee for the vacation proceedings on the square footage sure looks like a sale to me.
Jud, as I read it, the other half of the street has already been vacated so there is currently only 1/2 a right of way anyway.
The "street" was never built; it only exists as a dedication from a 1890 plat. The land the street crosses is a steep hillside that runs parallel with and under the remaining 30' wide street. To add to the problems with building this street are the two springs that keep this hillside sliding. Anyway, it is a useless right-of-way that doesn't go anywhere because of 1960 era flood control that cuts off the street as it heads north. The city is fine with vacating the east 1/2 of the street-they just want waaaaaay too much money. The landowners will continue to use the land but will not try to vacate it with an $80,000 price tag.
The vacation fee is brand new. The landowners have another parcel to the south and they recently vacated a street that also didn't service any land, again because of the geometry of the flood control. The city didn't charge for that vacation earlier this year, but now with the new law there is a charge and it sounds like a land sale to me also. Of course, the city can only vacate, they can't decide who receives the property that is controlled by reversionary rights.
The street was created by a plat dedication.
> The city has just passed a law that charges a fee for a vacation on a per sq ft basis. What they want is an $80,000 fee to vacate the east 1/2 of the street (it's a long strip about 400'). I was just curious if this is common practice anywhere else.
Yes, our local city wrote that into their code about 6 years ago (Vacation Code) and some other cities here in Orygun have done likewise. I think it stinks, but apparently it is legal. Or hasn’t been successfully challenged yet.
I'd be presenting the question to the client "Why bother?". The land is of no use to anybody, especially the city. It sounds more like a liability.
So just consider it a buffer and enjoy the view. When the road erosion starts affecting their property, then they can demand the city protect their land and the city can pay the $80K.
Why Pay ?
As long as city holds it as a street you have use of it. If they vacate it it must go to the adjoining owner, unless he refuses to accept it. They cannot just vacate it and sell to a third party, because the abbuter still has private rights of access. So in essence it has no value. In fact if they vacate it, the abbuter would begin paying taxes on it which is an advantage to the city.
For the city to charge anymore than the value of the vacation process is unconstitutional. By the filed map process the street was created to give access to the abbuting lots, thus making them more valuable. For the city to charge to reduce the value of land is an unconstitutional taking.
I am also of the belief that you cannot vacate half a street unless the remainder meets all the criteria of a street.
Paul in PA
Correct Solution Is A Reverse Condemnation Lawsuit
Since the city set the price at $80,000 and since it is an unconstitutional taking, I believe the proper amount to sue for is #240,000. Triple damages.
Paul in PA
That is how I read it Tyler, hence the all or none statement.
jud
Correct Solution Is A Reverse Condemnation Lawsuit
Reverse Condemnation
Paul, great term and what a concept. I've just never heard it before. Think of all the unused & undeveloped easements & r/w's out there, where the landowner could greatly benefit without having to go through all the abandonment & vacation process.
That $80K price tag seems absolutely absurd.
Would you rather give it away?
Here in Houston, the city has a fiduciary duty to the citizens to be good stewards of the public land. We have an ordinance (most cities and the state have the same law) that does not allow the city to give away public property. If you can prove that the land is surplus, you may acquire it at fair market value. Without these type of protective laws, I shudder to think of the abuse of our lands by politicians.
Would you rather give it away?
We call it a "gift of public funds" which can include something of value.
This can cause difficulty in settling boundary lawsuits because a settlement could be viewed as giving away land to the adjoiner (if we agree to a boundary line where it appears we are losing land).
That is why when I have the truck washed the tip comes out of my own pocket. A tip is a gift. This concept comes up constantly. Under certain circumstances a State credit card is used to purchase restaurant meals (only emergency incidents); the restaurant can assess a large group service charge (really a mandatory gratuity) but the credit card holder absolutely cannot volunteer to do it.
Feduciary Duty
The land was granted to the city for a public street. By failing to construct and maintain said street the city has failed in it's fiduciary duty.
By your interpretation the city could close all public streets to traffic and make them public parks or sell them for factories. Sorry there is right of access by the grantor attached to the streets. Fee simple land held for parks, schools etcetera is far different from streets.
Courts have recognized, at least in civil states, that roads are easements attached to the adjoining land, despite the form of land transfer. Fee simple ownership is restricted to interstate highways, etc. where access along the right of way is restricted or non existant. The state cannot sell them however for other uses but it appears the courts are allowing sales to private entities to operate same as toll roads.
Paul in PA
Not in our town or County. If it is to be vacated, it's done free. Any filing fees that may be necessary to put the action of record in the deed records are borne by the individual asking, but it's like $20. Most of the time, they don't get recorded unless it's a commissioners minutes and it's in the minutes of the meeting.
Would you rather give it away?
Without such laws, I can envision a crooked public employee or office holder visiting a restaurant where his favorite squeeze is the waitress/waiter and leaving sizeable “tips” on the public dime.
Which makes them very hard to find when you are researching them. Unless you have a clue about when it happened, it is page by page until found or you know nothing is in the records, then you then go to the governing body and ask them to take action and get that action in the record. Found many vacated streets being held in private occupation with vacations noted on the assessors map and no other record of the action or included within deed documents. Usually not a problem getting on the docket to get the proper action going to redo what has probably been done before, done again so that there is an official action in the record.
jud
I wonder if favorable political connection helps persuade a council to vacate land free of charge. I wonder if being the Mayor’s brother would influence the vacating of public lands “free of charge”. We all know how small towns are free of corruption (I’m done choking now). I prefer the fair market value approach.
Correct Solution Is A Reverse Condemnation Lawsuit
Throw in an argument for "unjust enrichment" as well. Also might argue "conversion" as well.
JBS
The public cannot vacate anything but use of lands owned by others and had been used or set aside for the public good. They seldom hold fee ownership in the underlying lands of right of ways. Almost put a political view in my response about the comments about corruption in small towns. So easy to slip.
jud