Memo - Vacation of Unimproved alley Right of Ways
Public Warks Department
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Memorandum
To: Honorable Mayor and Members of the City Council
Copy: Jim Genellie, Acting City Manager ,)(;7
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From: Steven J. Stadler, Public Works Director
Date: November 5, 2004
Subject: Vacation of unimproved alley right of ways
The purpose of this Council Worksession item is to discuss the possibility of vacating
certain unimproved alley right of ways. Staff would like City Council to consider
vacating the right of ways along the south side of Excelsior Boulevard from Monroe
Avenue to Harrison Avenue and also the alley right of ways between 2nd and 3rd Streets
. North and between 19th and 21st Avenues. The attached aerial photographs show
these unimproved ROWs. There are also corresponding photographs of these areas.
The numbers on the aerial photograph correspond to the numbers on the photographs.
Also attached are a City Attorney memo and a LMC document covering vacation
procedures.
The City and other utility companies would retain utility easements.
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. DRAFT 11.3.04
TO: Steve Stadler, Hopkins Public Works Director
Jim Genellie, Acting City Manager
FROM: WYNN CURTISS, CITY ATTORNEY
DATE: November 3, 2004
RE: Standards to vacate city-owned streets/property.
The purpose ofthis memo is to address (1) the legal standards for vacating streets, alleys,
rights of way and other city-owned property and 2) the procedure for vacating streets, alleys, rights
of way and other city-owned property
APPLICABLE LAWS
Hopkins Charter Section 12.06 establishes a procedure for vacating a "street, avenue,
alley or other thoroughfare." This Section is not the exclusive procedure and specifically states
that it is intended to supplement any statutory procedure. Several Minnesota Statutes include
. provisions for vacating streets and other similar property as well as other interests owned by a
city. The Charter and statutory provisions are not always identical and should be read together to
assure compliance with the requirements of both.
HOPKINS CHARTER
Section 12.06 of the Hopkins Charter reads as follows:
"No street, avenue, alley or other thoroughfare within the City shall be vacated except by
ordinance approved by a four-fifths vote of the Council. Such ordinance, if enacted, shall
be adopted after a public hearing upon one week's published notice containing the test of
the proposed vacating ordinance or containing in summary the exact location or other
description of the thoroughfare, street, avenue or alley proposed to be vacated. A record
of such vacation shan be made in the office of the Register of Deeds of the Registrar of
Titles of the County. This section is intended to be an addition or supplement to any other
method of such vacating as may be provided in the general statutes."
This provision is not as comprehensive as the primary statute for vacating streets, Minn.
Stat. Sect. 412.851. For example, M. S. 412.851 requires more extensive notice provisions that
probably should be followed to avoid any procedural objections.
. MINNESOTA STATUTES
Minn. Stat. Sect. 412.851 reads in part as follows;
. "Vacation ofstreets. The council may be resolution vacate any street, alley, public
ground, public way or any part thereof, on its own motion or on petition of a majority of
the owners ofland abutting on the street, alley, public ground, public way, or part thereof
to be vacated. When there has been no petition, the resolution may be adopted only by a
vote of four-fifths of all members of the council. No such vacation shall be made unless it
appears in the interest of the public to do so after a hearing preceded by two weeks'
published and posted notice. The council shall cause written notice of the hearing to be
mailed to each property owner affected by the proposed vacation at least ten days before
the hearing. The notice must contain, at a minimum, a copy of the petition or proposed
resolution as well as the time, place and date of the hearing. . ."
This provision expands the requirements set forth in the Charter.
First, the Council may initiate a vacation or accept a citizen petition to vacate a property.
While the Charter requires the Council to approve a vacation resolution by a four-fifths vote, the
statute seems to allow the Council to approve a citizen-initiated vacation petition by a simple
majority.
Second, the statute requires that the Council make a finding that vacating the property is
in the "public's best interest," a requirement not included in the Charter. This finding, however,
. is one in which the Council actually decides whether it would be detrimental to the general
public to vacate public property. If the property has no real value to the public, this finding is
rather easy to make.
Third, the publication requirement is two weeks rather than one week and includes direct
notice to all affected property owners of the public hearing.
Fourth, if any part of the property to be vacated abuts a public water, there must be notice
to the Department of Natural Resources not less than 30 days before the public hearing.
Assuming the vacation resolution is approved, the statute establishes the procedure for
recording the decision with the appropriate county land officials.
The statute does not provide a mechanism for appealing the Council's decision to the
courts. Arguably, there could be grounds for challenging a decision if the council (1) fails to
obtain the required number of citizen signatures on a petition; (2) fails to provide the proper
notice of the public hearing; (3) fails to make a finding that the vacation was in the public's best
interest; (4) fails to have sufficient evidence that the vacation was in the public's best interest or
other similar procedural defects. The most likely scenario would be a court action seeking to
enjoin the city from proceeding with the vacation for failure to comply with some procedural
requirement.
. Minn. Stat. Sect. 440.135 sets forth a procedure for vacating streets in a home rule
charter city ofthe third class. The statute reads, in part, as follows:
. "In addition to any other method provided by law, the council of such city, upon
presentation and filing of a verified petition signed by or on behalf of any owner, natural
or corporate, of any real estate abutting thereon, may vacate any street or segment of
street or any portion of the width thereof within its geographical limits, provided only that
the street, segment, or portion thereof so vacated pursuant to such petition shall not be
longer than the distance intervening between any two adjacent intersecting streets..."
"The vacation of any street or segment thereof under this section shall not destroy or
interfere with the right of any person, corporation, or municipality owning or having
control of any electric light or telephone pole or lines existing upon such street at the time
of the vacation thereof or with any sewer or water pipes, mains or hydrants thereon or
thereunder to enter upon such street or portion thereof vacated for the purpose of
repairing the same or otherwise attending thereto."
There are no procedural standards in this statute. It is unclear whether the Council must
follow the standards in the Charter ofM.S.412.851 regarding the number of votes needed to
approve the vacation and the nature and extent of the notice required for the public hearing.
Given that this section provides for a petition by a single property owner rather than the majority
called for in M.S. 412.851, it would be prudent for the Council to require approval of such a
petition by a four-fifths vote after following the more comprehensive notice and publication
. provisions of M.S. 412.851.
It should be noted that this section does not apply to vacating an alley, as the Attorney
General has issued an opinion that an "alley" is not a street for purposes of this section. Also, it
should be noted that the city can retain whatever utility easements it possesses on the property
even if the property is vacated.
Minn. Stat. Sect. 462.358 subd. 7 authorizes a city to vacate any utility easement or
boulevard reserve and reads, in part, as follows:
"The governing body of a municipality may vacate any publicly owned utility easement
or boulevard reserve or any portion thereof, which are not being used for sewer, drainage,
electric, telegraph, telephone, gas and steam purposes or for boulevard reserve purposes,
in the same manner as vacation proceedings are conducted for streets, alleys or other
public ways under a home rule charter or other provisions of law.
A boulevard reserve means an easement established adjacent to a dedicated street for the
purpose of establishing open space adjacent to the street and which area is designated on
the recorded plat as 'boulevard reserve"'.
OWNERSHIP OF VACATED PROPERTY
. When a street is vacated, the landowners abutting the vacated property receive title to a
portion of the vacated property. Unless special circumstances dictate otherwise, the vacated
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. property is divided equally between the landowners on either side of the vacated street up the lot
lines of their properties.
DAMAGES ARISING FROM V ACA TING PROPERTY
An abutting property owner who suffers specific and unique damages as the result of
vacating a street might be entitled to damages, but no damages are awarded if the vacation
merely requires the property owner to travel a farther route to access his property or over an
inferior road.
SUMMARY
While the Charter and state statute both provide procedures and standards for vacating
property, the statutory provisions are more comprehensive regarding notice to affected property
owners and probably should be followed as the difference is not burdensome for the city. Damages
arising 'from vacating property are very rare. Affected property owners likely do not have a
substantive basis for objecting to or appealing from the Council's decision. Rather, the likely appeal
to court would be a request to enjoin a proposed vacation for failure to follow the procedural
requirements. Generally the vacated property is divided equally among the abutting property owners,
who take title free from any easement other than existing utility-related easement the city intends to
retain.
. If you have any questions or wish to discuss the matter further, please call.
WC
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