Memo - Property Vacation
Steve Stadler
.rom: Wynn Curtiss [wcurtiss@steinercurtiss.com]
ent: Thursday, November 04, 2004 10: 12
0: Jim A Genellie
Cc: Steve Stad ler
Subject: Re: Property Vacation memo
LTim,
Based on my research, my opinion is that a property owner can't refuse
to accept a vacated property. One issue that might drlse, however, could
be whether the vacated property would cause the property owner damages,
dup. to things like contamination or the like. r f not, the property owner
would not have the right to require the city to "maintain" the property.
One option to an objecting property owner would be to see if another
dbutting property owner would want the property. In that case, you might
transfer the property to the property owner who wants the property by an
alternative method, perhaps simply by a deed, rather than by vacating
it. Or, you could vacate it and let the abutting property owners
transfer it between themselves. Let me know if you have any other questions.
Wynn Curtiss
952-938-7635
Jim A. Genellie wrote:
>Wynn: r read your memo regarding vacation of City property. Your memo states
>the limited reasons for anyone to challenge the vacation.
>
4Ifcan I take from this that even if a property owner did not want the vacated
property, for example they might want the City to continue to maintain it,
>the property owner would have no choice but to have the vacated property
>attached to their existing property?
>
> Original Message-----
>From: Wynn Curtiss [mailto:wcurtiss@steinercurtiss.com]
>Sent: Wednesday, November 03, 2004 10:48 AM
>Tu: Steve Stadler
>Cc: Jim Genellie
>Subject: Property Vacation memo
>
>
>Steve,
>
>Attached is a draft memo to you regarding the legal standards and
>procedures tor vacating property. Let me know if you have any questions
>or need something additional.
>
>Wynn Curtiss
>952-938-7635
>
>
:>
:>
.
1
NOlJ-05-2004 10:38 LEHGUE OF MN CITIES 5512811235 P.02
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a research merno i:or city officials
5258.2
Revised August 1990
~: ~.~:;i'I' .:~~~~i; f,:';:':/;.i~ ~ ': I":: .:~;.~;;:;
Procedure for
Vacation of
Streets in Cities
Contents
Page
Statutory cities .. .......... .... .... .................. ........ .... ... .......... ... 3
Home rule charter cities .................................................... 3
Vacation and existing ea<;ernents ........................................ 4
Vacation by a COUlt ....... ....... ............ ............ .n................... 4
Minnesota Supreme Court decisions .................................. 4
Forms .. ................ ..... ........... .......... .......... ................ .......... 5
I_eag ue of ~Ainrlesota Cities
(612) 227-5600 [[lIS
183 University Ave. E., St. Paul, MN 55.\01
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NOIJ-05-2004 10:33 LERGUE OF MN ClTIES 551C:::l:lllO:::'::Ib r-.\:J~
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. @ 1990 League or Minnesota Cities
All rights reserved
Printed in the United States of America
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NOl)-05-2004 10:3g LEAGUE OF MN CITIES 55128112% P.04
Statutory cities land under the street goes to him or her, since "a deed of lots
convc-ycd as represented in a town plat is presumed to include
. Minnesota Statutes 412.851 governs the procedure!: for va cat- a grant of the soil to IDe center of tile sueet, and il passes as a
iog a street in a statutory city. The cHy council has the parcel oflhe land and not as an appurtenant." (In Re Robbins,
authority to vaClltc any stm\.:t. alley, public grounds, public 34Minn. 99.24 N.W. 356, 1885. See also, Whire v. Jefferson.
way, or any part of tllenl hy resolution, on its own motion, or 110 Minn. 276.125 N.W. 262, 1910; Steenerson v. Fontaine,
on a petition of a majority of the owners of land abntting the 106 Mino. 225,119 N.W. 400.1908; and Soutller v. NOr/h.
piece of property to be vacated. The requirement thai a western Telephone Exchange Company. 118 Minn. 102. 136
"majority of the owners of land" ~ign a petition has been inter- N.W. 571, 1912.)
preted as requiring signatures of a majorilY of individuals
h<lVllJg property interests in me land affected, not just a The pres\Unplioll that the abutting property owners receive
majority of the property affected. (State ex rel Beck v. City of title illlhe vacated property prevails, unless there is an express
Sf. Paul, 235 Minn. 56,50 N.W. 2d g I, 1951.) If lhe council statement in lhe decJica,ion reserving title in the original rc~
acts on its own motion, the resolution must have a four-fifths owner. Where the city actually owns the fee of tlle slreel
VOle for adoption. (which is an unusual case and docs not occur where the street
has heeo dedicaled by plat). the resolution vacating the strcet
No such vac;).\ion shall occur unless it appears in the interest of does not result in divesting tbe city of its rights to the property.
the public to do so after a bcaring prccctled by two weeks The cily may thereafic-r sell or otherwise dispose of the
published and posted notice. Thc council shall make sure writ- property on which thc vacated street was located.
ten llot;cc of tile hearing is mailed to each property owner
affected by the proposed vacation aL least 10 days before the An abutting owner who suffers peculiar damages from the
hearing. The notice musl cont.ain, al minimum, a copy of the ...-acalion of a ~treet is entitled to compe.nsation under the U.S.
petition or proposed resolution as well as the time, place. and z,nd Minnesota Constitutions. The payment of damages is nOt
dale of the hearing. a condition precedent to the vacation ofa SLrcet. however, and
the owncr must bring an action againsl the city for such
If the street. alley, public grounds. public way, or allY part damages. To recover damages for the obstruction or vacation
thereof terminates at or abuts upon any public waler, no of a street il is not essential that access to the property has been
vacarion can occur unless written notice of the {X:lition or entirely cui off; however, an owner cannot recover ifthe only
.proposed rcsolution is served by cenified mail upon the complaint is that IDe vacation or obstruction requires travelillg
cornmi~sioner of natural resources at least 30 days before the farther or ovcra poorer road in going to and from the property.
hearing on lhc maner. The nolice to Ihe commissioner of
nalural resources is for notiJic3tion purposes only and docs nOl Home rule charter cities
create a righl of intervention by the commiSSioner. Failure to
give proper notice and a hearing as required by statule invaH- Minn. Stat. 440.13 grants any city oflbe fourth class organized
dalcs ,my aelion the city council takes in reganl to the vacation under a home rule char.er lhe power to vacale any street or
ora stree\. (price v. Slagray, 68 Mich. 17,35 N.W. 815, 1888: highway by majorily vote of the council, U(X)11 the petitioD of
Ryn!!arsollv. UniOll Counry, 340re. 181, I02Pac. 785,1909: all the owners of lands abutting the streel to he vacated.
Seaboard Airline Ry. Co. v. Greenfield. 160 Ga. 407, 128 S.E. However, Ihe street must 001 connect with any other street al
430, 1925; and MiJler v. Town of Corinna. 42 Minll. 391, 44 the end to be vacated.
N.W. 117.1890.)
If any rart of the street or highway proposed to be ,-aeated
After adoption of the resolution, the city clerk must d(dft a tenninalcs at or abuts upon any public water. the petitioners
notice of completion of the proceedings which roust contain: shall serve notice of the petition by certified mail upon the
1) the name of the city, 2} an identificalion ofthe vacation, 3) commissioner ofnalural resources at least 30 days before the
a statement of the time of completion, and 4) a description of council hearing on the maller. The notice under this sulxlivi.
the real estate (lffected. The notice must be presented 10 the sion is for notification purpos.es only and does nol creare a
county auditor, who will enter it in the county transfer records right ofinterventioll by the commissionerofl13tural resources.
and upon the notice it<oelf. The notice: shall then be filed with Excepl as provided hy !he statute, all Olher provisions of the
lhe county recorder. Any failure to file the notice shall not home mle chaner shall apply to and govern the proceeding.
invalidate the vacalion proceedings.
Minn.Sld!. 440.135 grants any city of the third class organi7.cd
Where a street is lawfully vacalcd.lbe tille to Ibe land covered under a home rule charter the power \0 ...-acatc any strCCI
by the streel reverts 10 the owner of Ibe fee. When an abutting provided that the portion so vacated shall noL be longer than
. owner is the owner of lhe fee, the reversion is to him or her. If the distance intervening between any two adjacent intersect.
J landowner or the landowner's predecessor obtained an ing streets. The council can only acl upon the receipt of a
intL':rest in the affected property subsequent to the planing of petition from any abutting landowner. If any street. segment,
the street, there is a presumption mat on vacation the title to the or porlion thereof proposed to be vacated terminates at Or
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NOlJ-05-2004 10:39 LERGUE OF MN CITIES 551281129b P.DS
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ah~IS upon i:lny public waler, (h~ j"J.eMioncrs shJIl serve r.oUce v, Harvey, 277 N.\V.2;! 355, Mi[ln. 1919.; T!lc:cfore,acco~.:i-
of the pelition ~)y CClI1ificd IT!ail UPOII !hc commissioner of lug to the Mir.nesola Supreme Court, persona! notice must b~
natural resources at lcas~ 30 tJ~ys bcf()r.e 'lh~ council hearing 011 given !o all affected lai:Jacwne.rs WitIli!!'l t:IC :platted areJ ~i1
. the maller. The nclice under [his :mb<!ivision is for notification order for the procee[1il1g ~o meet due process requi.rement~.
purposcs only and does not create a right of imcrventiOll by the
commissioner-ofnatllral resources. Upon toe l;iluncil's adopt- The coun iu it.. procceding& must hear all [Y'"J30nS owning c:r
ing the resolution, the cit)' ck'rk mllst me a copy of it willi lhe occupying la~d ~hillt wouM Ix affected by lhe proposed 'Vj!C,:~.
county recorder hefore the 'VaC'-lI~UD can be efl'ec:ive. The tion, If in its judgment ;i per!iOn would be da.r!aaged by granti;!g
vacation of a street ~1l1t1~r this ~:aH1te sh.Gll! no~ interfere with the proposed vacalion" the court mtly l.\etemrine!he amount Df
the right to maimain any c:xisiirlg ~sements, such damagr: and dlrec! its payment by U-,e petilioners ~fm'~
Vacation and existing li::~scments the vacation or alteration shaH take effect. A certified copy or
the court's order must 1!Y~ fUed with 1he county auditor a~d
recorded by the county recorder. The district court sbaH n(lt
In proceedings under statute orch"mcno vacate a street, a dty vacate Or 3.iter any sareet aHey, or public ground dedicated 'cO
may s~ciry Ibe ex,;em \0 which such vacation affects existing the public l.lliC' ill orby :my !lUGn plat in any d~y org;Hlized \liricer
cascmcnts anti the extent to Wllld; ~hc v:ication affects the :I home rule: chz.r1erwhich provides;;l melhod ofpnxedlJre for
authority of any person, cOfl),."'uataolT1, 01 city cwnir.g or COfi- lhe vacation of litreets and public gruul'.Ids by the city cOI5!l1ciJ.
trolling electric, telephone. gas, sewer, or water Hoes on the
property to continue using or to cilter ~pon ioe: propetiy Minnesota SU;I;)reme Cmn1 dec~~hm5
vacated. in order to maintain, repair, replace. remove or
otherwise attend to them.. (M.S.-\ 6..').29, Slllxl. 2.) Under this Under Minn.Stilt SOL!. ~ 4, vacaHon of a fluhlUc Slreel musl b'~
scclion. <11 municipality Jl14iY vac.;lc a strcc~ and reserve the ill the public inierest ItmcSi be appavcalthat no plJb!ic intej'(;~:t
right to continue and mailll<l in uh!ilY easements. will be served by continuing the exiSle\l'lCC- of the street 2nd 1.1;<1\
vacating the street will Dc bcocfic:al to the public imcrem. ~~J
Vacation by a It:ouut DOC case, the Court rever.:ed zm order v;lc<lting: a mreet !e<'.di,J:'B
10 alakeshore in a (Owns!~ip. The street was originally uSC{l i;l
When a street is part of any plat, any owner of land included connection with a boat landing, but had later failen into diSllze
in such plat call apply to ule district court, and upon proof that and disrepair. The Court he!d th<l.t petitioners list! failed ',I,}
. illl taxes assessed against sll~h l.aaoowncr have been paid <In::!: meet their burden to prove ~!1at t!Ie strect was usekss for tt-,.;
notice given, the diSUitt comi rru:y Ir'<licatl':' or <liter any part or pur})Osc for which it was laid Ollt "Th]S plupOse cZlllnol ~.~
all of the plat. The courl may adjlldge lhe title to all streets. constmed as nafi'(l-wly !imi~e(\ no ust: in cOlli1lectjon Wil11 tn~
alleys. and puhlic gml;1lds 10 the pcrsmlil entitled to them~ bllt boat landii:lg there <lI1 the (,ime lhe Stt'':Cl was ~edic3.ted. its
streets or alleys connecting separate plals or lying between purpose was ratilcr 10 pvovide the public with access to lhe
blocks or lOB or provi(ling access for the public 10 any public lakcshore at th:!lt point fOT ;my proper acti vi1y." Evideuc;.:
waler, shall oot be ,'acilted ur.less ~t appears thaa the SlrCClor showing thai the street was not used is nm sufficient to
alley or pan thereoC sought to be vac;Med is useless for the demonstrate its uselessness for its iotended purpose, sioce it
purpose for WhICh it was laid out. does oct show ~f the Sbveet rnigbt be used iQ the fl.l!ure. The
CQurt ~1ressed the impOJl"tEllCC of lhe general p1Jblic's interest
If any part of a street, J,Uey, m puolic ground proposed for in access to the lake .;mo the fact tha~ ~he township itself did 11n~
vacation terminatcs a~ or liitnds t:pO[} any public walcr, the wam tbe eLrcet Vlicatel.l. (Krebs v. Town of NOrlhffr!l, lJellmmi
petitioner sball serve 11{Hice of Lhc pe(i,tioil by ccrtilied null County, 213 Min:-l. 344.6 N,W,2d g03, 1942: Church ofSaiim.
upon the corr,mi~s.ionCJ' of !t,HurdlE n~sources at le&st 30 dO!.ys Ptien:md POM! v. Township oj'lAke George, 252 Min~. 209, \\9
before the term at wbich il shalll:lc tc"rd. The ilotice undelrttris N.W.2d 70B, Ii9S8.)
subdivision is for llntificatioll p\.lr~ses only and docs not
create a right Of interve.o.tio(l by :hc commiss~cner of oatural In anmhcr case. lhe CQurt u\1crtunlea a township 'boani'3
reSOurces. decision to refuse to v..cate an unplatted road. There was ,l,rJ
open p!a~~ed road serving the l~ame lakeshore area plus tbe
The petitioners must give two weeks' [,)Osled ami published olner lots in the pl.at. but township officials said i~ was LOO .
nOlice, tile last publicillU)l): to ~)e at least 10 days before the costly to mai!l\2in and prc1"lZ'rr;;:d Ihe smaller and easier-to-
hearing, The petitioners must also give personal notice alleast maintain unplatted road. Tbe Court held that the board's
10 days before Rhe hearing to the mayoraf the city or lhe decision not to vacilte the \jl1plaued road (which. pi1lS1iOO ovc,
chainnan of me town board where Stich street is located. "In private land) wa.~ arbitr2.ry, since the townsh~p was still r~.
future proceedings under Sec. 505.14, it r.hou!d be kept in quired to maintain lne plaued road whClhcrthc unpl<:i.tt.ed one
. mind that adequate sel'"iiice ml~S[ be made upon the owners or was used or not, and no sound purpose would be served il:il
occupanls ofland within ~hc p~aneJ areil, and that scrvic;:e by mainr.ailling bOlh roads. (Kangas v. Township of liiuebO!rry,
lhe pubhcaW:m and !)(IlitH~g of \'1.O\~e oi the procedure, ll.S 264 N.W.2c.l 389, 197R.)
required ioSec, 505.~4, wm !)cdcerrl{;(Hnadcquate," {Batinich
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page 4 Procedure flGlf Vacation of Streets in CUies
NOLJ-05-2004 10:40 LERGUE OF MN CITIES 5512811295 P.05
No street can be vacated unless it appears \hat no public J.'ootnOle:
interest will be served by the COlltinued existence of the street
and thatvacation will be beneficial to public interests, particu- IThe description of the street to be vacated should be complete
earlY if the street is located on the shore of a lake open to the cnough to prevent any possible uncenainty or ambiguity. In
general public. (/n re Petition ofSdllJller, ] 93 Minn. 604, 259 some cases, a legal description of the property will be neees-
N.W. 534, 1935; Tn n! Application of Baldwin, 218 Minn. I I, sary,
15 N.W. 2d 184, 1944.) However. earlier cases have held that
a proper legislative .authority's determination that public inter-
ests justify vacation of a street is final and conclusive upon the
coum except when reviewed in the manner prescribed by law, II. Resolution Setting Hearing on Vacation
and will be preswned to have been based upon a consideration
of tbe pnblic interest Moreover, the fact that a street has not WHEREAS, a petition of propcny owners abutting
been used or maintained for some time does not necessarily SIreet in the City of , was received by the city clerk
mean toat the public no longer has an inlereSI in the street. on the day of . 19_ requesting that the
lRein v. Town of Spring Lake, 275 Minn. 79.145 N,W,2d537, City Council vacate street between streel
1966.) The Court in this case held that mere non-use for allY and _ street. 1
lcngth of lime. without affinnative acts indicative of an intent
10 abandon. does not constitute abandonment of a public slIeet NOW THEREFORE, BE IT RESOLVED BY THE CfTY
by a municipality. Presumably, street vacation proceedings COUNCIL OF . MINNESOTA:
would be necessary in such a case. (See also In re Road Areas
of Suburban ESIOleS v. County of Mower, 311 Minn. 446,250 1. The council will consider the vacation of such streel aDd a
N.W. 2d 827. 1977,) public hearing shall be held on such proposed vacation on
the day of . 19_, before the city council
ill the city ball at a.m. (p.m.), and the clerk shall gi ve
published and posted Dolice 3!; required by law,
Forms
Footnote:
J. Petition for Vacation
.PETITION FOR VACATION OF (PART OF) ll[the council initiate~ me vacalion proceedings, the follow-
ing language should be substituted for the "whereas" clause
STREET IN THE CITY OF a bove: WHEREAS, the Ci ly Council of the city of ,
Minnesota, has determined to vacate (that part 00 street, etc.
To the city council of . Minnesota:
The undersigned. a majority of the owners of property as sel
forth opposite their respective names. abutting on m. Notice of Hearingl
slIcet,! respectfully petition the cily council to vacate the
afores.aid (pan of) stree t. NOTICE OF HEARING ON VACATION OF (PART OF)
STREET
Names Description of Property
NOTICE ]5 HEREBY GIVEN that a hearing will be beld
- before \he City Council of at \he city hall on the
day of ,19_.at a.m. (p.m,) to
hear all persons present upon the proIXlsed (a petition of
property owners for the)2 vacation of {that part 00
street in the city of between street and
street, etc.
Dated this day of .19_.
Received 011 the day of .19_.
City Clerk
Clerk
. Footnotes:
lThc statule requires thaI t\110 wceks published and posted
notice be given of Lhc hearing on the proposed vacation. The
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League of Minnesota Cities page 5
NOlH35-2004 10:41 LE~GUE OF MN CITIES 55128112% P.0?
nolice should be published once <I week in the official news- Footnote:
paper for two consecutive weeks. with at least one week
. clap!iing between the date of the last publication and the date lA ccllificd copy of this resolution (or the resoluLio!i fonn in
of the hearing. The notice should also be posted at least 14days B. whichever is used) mu!.1 be tiled for reconl in the office nf
before the hearing in three of the most public places wilhin the the county recorder. First. however. it ~hould be presented to
city. Mailed notice should be given to all affected property the county auditor for notation in the county's transfer records.
owners at least 10 days before the hearing to insure I;ompli-
ance with due process requirements.
2This should be substituted for "the proposed" if lhc vacation B. For vacation in:tiat.ed by couDcll
has been initiated by a petition from property owners.
RESOLUTION FOR VACATING STREET
WHER.EAS. the City Council of has determilled to
IV. Resolution for Vacating Streett vacate (a part of) ___ strce1 between street
and street;
A. For vacation iniUated by petition
AND WHEREAS. a public hearing was held on ,
RESOLlITION FOR VACATING STREET. 19_ before the City COIDncil aD the city hall after due pub-
lished and po~tt:d notice had been given by the clerk on
WHEREAS, a majority of the owners of property abutting on .19 _' a reasonable allemptw<.ls made 10 give pc~-
(that part of) street between street and sonal notice to all affected property ownern, and all pcrsons
street. etc., have requested the City Council in a ~ntcrcSlcd were given an oppOltunity to be heard;
petition datc.d ,19_ to vacale such street according
to law; AND WHEREAS. any person, corporalion or city owning or
controlling casements contained upon the property vacated.
AND WHEREAS. a public hearing was held on . reserves the righllo continue maintaining 1he sa.'llC or to cn~el:
19_ before the City Council in the city hall on such petition lIpon such. way or portio1l1hercof vacated to maintain. repair,
. after due published and posted notice had been given, as well replace, remove or otherwise altend tllereto;
as personal notice to affected property ownerS by the clerk on
. 19_ and all persons interested were given an op- AND WHEREAS. it appears that it will be in Ole best blercM.
portuoity to be heard; of the city to vaC?te such street;
AND WHEREAS. any person, corporation. or city owning or AND WHEREAS. Cour.fifths of all members of the City
contIoning easemenl", contained upon the property vacated, Council concur in this resolution;
reserves the right to continue maintaining the same or 10 enter
upon such way or portion thereof vacated to maintain. repair, NOW, THEREFORE. BElT RESOLVED. that the street (pa.rt
replace, remove or otherwise attend thereto; uf the su-cet) described as follows is hereby vacated: (Ins~rt
description)
AND WHEREAS. it appetlJ"S that it will be in the best illlcrcst
of the cily to approve such petition; Adopted by the council this d<!y of ,
19 -
NOW. THEREFORE. BE IT RESOLVED. that such petition
is hereby gra.nted and the Sl1eet (part of the street) descri1:x:d as Approved:
follows is hereby vacated: (Insert description)
Adopted by the council Ibis day of Mayor
19 - -
Attest
Approved:
Clerk
. Mayor SRY:glb
A nest: 10/86
SR:gib
Clerk 8190
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page 6 Procedure for Vacation of Streets in Cities
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