HOW TO HAVE A HAPPY VACATION: Vacating Roadways, , and Street Ends

Kinnon W. Williams and

Jacob J. Stillwell

I N S L E E B E S T D O E Z I E & R Y D E R, P. S. 10900 NE 4th Street, Suite 1500 | PO Box 90016 | Bellevue, WA 98009-9016 Tel + 425.450.4225 | Fax + 425.635.7720 | www.insleebest.com

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KINNON W. WILLIAMS focuses his law practice on , , and the representation of municipalities and special purpose districts. Rated “superb” by Avvo.com and a “Super Lawyer” Honoree (2013 - 2017) for his work in eminent domain, Mr. Williams is co-author of the WSBA Real Desk Book Chapter on Eminent Domain, and frequent speaker on eminent domain, easements, roadways, and impact fees. Mr. Williams most recently spoke at the American Law Institute/American Bar Association National Conference on Eminent Domain in Charlottesville, North Carolina in January on the subject of lenders rights in eminent domain proceedings and will be Chairing an annual seminar on eminent domain on May 18th at the Athletic Club in .

JACOB J. STILLWELL is an Associate at Inslee, Best, Doezie & Ryder, P.S. whose practice encompasses municipal, litigation, business and real estate law. Jacob holds a Masters of Laws (LL.M.) degree in Sustainable International Development from the University of Washington School of Law and graduated summa cum laude from Gonzaga University School of Law, where he served as editor-in-chief of the Gonzaga Law Review.

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HOW TO HAVE A HAPPY VACATION Vacating Roadways, Easements, and Street Ends

Kinnon W. Williams, Shareholder Jacob J. Stillwell, Associate Inslee Best Doezie & Ryder, P.S.

Introduction

Public streets are vital for bustling and robust cities. A variety of statutory and judicial

rules allow the public to use dedicated streets for transportation, utility lines, street lights, public

information, and landscaping. While incredibly vital to communities, once the public interest in

the street has diminished, the government or abutting property owners may vacate the street back

to a higher us under private , with the public retaining certain rights. This

ability to transfer property rights back and forth in a systematic way allows owners

and local governments to convey roadways in an efficient and practical manner. Knowing how to

convey interests in streets and roadways can mean the difference between preserving necessary

property rights and deeding them away. The difference between a having a valuable resource or

an albatross hanging on your communities neck.

The Mechanics of Street Vacations

Property owners who own real estate abutting a public street may petition their city council

to vacate the street.1 To do so, the owners of at least two-thirds of the abutting the street sought to be vacated must sign the petition, which must then be filed with the city clerk.2 The city

council must then pass a resolution scheduling the petition for a public hearing not more than sixty

1 RCW 35.79.010. 2 Id.

3 739924.1 - 099998 -0087 and not less than twenty days after the resolution passes.3 The hearing may be set before the city council, a committee thereof, or a hearing examiner.4

The city council may also initiate a street vacation by passing a resolution indicating an intent to vacate the street and setting the vacation proposal for a public hearing.5 As with the

petition procedure, the hearing on the resolution must be no more than sixty and no less than twenty

days after the resolution passes.

Upon passage of the resolution, regardless of whether initiated by the owners or the city

council, the clerk must provide twenty days’ notice of the hearing by posting notice in three of the

most public places in the city and in a conspicuous place on the street sought to be vacated.6 If the

proceeding is initiated by a city council resolution, then the city must also mail to the affected property owners a similar notice at least fifteen days prior to the hearing.7 If at least half of the

abutting property owners file written objections to the proposed vacation with the clerk prior to

the hearing, then the city shall be prohibited from proceeding with the resolution.8

If the hearing is before a committee or hearing examiner, after the hearing the committee or examiner must report its recommendation on the petition to the full city council, which may adopt or reject the recommendation without holding a subsequent hearing.9 Importantly, if the

hearing is before a hearing examiner who recommends denial, then the report must also include

an explanation of the facts and reasons underlying the recommendation.10

3 Id. 4 Id. 5 Id. 6 RCW 35.79.020. 7 Id. 8 Id. 9 RCW 35.79.030. 10 Id.

4 739924.1 - 099998 -0087 If the city council grants the vacation, it must pass an ordinance vacating the street.11 The

ordinance shall not become effective until the affected property owners compensate the city in an

amount which does not exceed one-half of the street’s appraised value, or its full value if the street

had been a dedicated public right-of-way for at least twenty-five years or if it was originally

acquired at public expense.12 The ordinance may also provide that the city retains an easement or

the right to exercise and grant easements in the vacated street for construction, repair, and

maintenance of public utilities and services.13 A certified copy of the ordinance must be recorded

with the clerk and county auditor.14 One-half of the revenue received by the city as compensation

for the vacation must be dedicated to the acquisition, improvement, development, and related

maintenance of public open space or transportation capital improvement projects within the city.15

Preservation of Easements

When a property owner who owns the land in fee dedicates the abutting street to the public, the public has only an easement in the street and the fee remains with the abutting owner.16 Upon

vacation of the street, “the public easement is extinguished and the abutting property owners regain

unencumbered to the center of the street.”17 However, this general rule “is subject to control

by the particular circumstances of the case when one abutting owner is shown to have had no fee

11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 16 See Holm v. Montgomery, 62 Wash. 398, 399 (1911) (“It has become the settled rule of this court that the public has only an easement of use in a public street or highway and that the fee rests in the abutting owner.”); see also Finch v. Matthews, 74 Wn.2d 161, 167-68 (1968) (“... the fee in a public street of highway remains in the owner of the abutting land, and the public acquires only the right of passage, with powers and privileges necessarily implied in the grant of the easement.”). 17 London v. Seattle, 93 Wn.2d 657, 666 (1980).

5 739924.1 - 099998 -0087 interest in the street and another the entire fee therein. In that instance, the abutter that had no

underlying fee interest does not take to the center of the street upon its vacation.”18

The best example of an abutting property owner having a full fee interest in a vacated street

is Rowe v. James.19 There, in 1882, George Werett platted a five acre tract of land, with a thirty- foot wide street as its eastern boundary that was dedicated to the City of Seattle.20 In March 1911,

the street was vacated upon the petition of the abutting property owners.21 The appellants argued

that they owned the entire street upon vacation because the entire street marked the original eastern boundary of Werett’s property.22 The Supreme Court agreed:

The fee in the street remained in Werett after the dedication, and passed to the appellants as an incident to their acquisition of the fee in all the abutting property that Werett had owned. None of the respondents’ grantors owned any part of the street. Their title reached only to its easterly line. As abutting owners, respondents had the easements of access, light, and air; but the vacation of the street, upon their petition, extinguished these rights, and, as their predecessors in title had never owned any part of the street, they could convey no part of the fee to the respondents. We think the correct view is that, when an owner plats land bounded by a street included in his plat, and owns nothing beyond the street, and conveys all his land abutting upon the street, without reservation, the purchaser acquires the fee to the entire street.23

The Court went on to state:

The vacation of a road does not take any person’s private property. It leaves the property of individuals just as though no road had ever been established. If a party owns the land over which the road runs, his rights and privileges are increased by the vacation of the road, instead of being diminished. If he does not own the land over which it runs, then, of course no property of his can be taken from him.24

The appellants, owners-in-interest with Werett, were entitled to the full fee of the vacated

street because Werett’s property encompassed the entire street when it was dedicated to the public.

18 Id. at 666-67. 19 71 Wash. 267 (1912). 20 Id. at 268-69. 21 Id. at 269. 22 Id. at 270. 23 Id. at 271. 24 Id. (citations omitted).

6 739924.1 - 099998 -0087 By contrast, the respondents never owned the land that became a public street, and therefore lost

the benefits of abutting a public road with no concomitant ownership rights upon vacation.

Determining whether an abutting property owner has an underlying fee interest in a vacated

street is dependent upon what can sometimes be a confusing fact pattern. In London v. Seattle, the

Washington Supreme Court justices debated, through responsive majority and concurring opinions, the preservation of an easement after vacation. There, in 1960, Goldie London acquired

property in Seattle fronting 17th Avenue to the east, and was otherwise surrounded by property

owned by Providence Medical Center (PMC). In 1963, PMC petitioned Seattle to vacate the

portion of 17th Avenue lying between London’s property and Cherry Street a block north. The

vacation was conditioned upon PMC dedicating land to extend James Street across what was now

the northern end of 17th Street. As a result, London’s property became a corner lot bounded by 17th

Avenue on the east and the newly created James Street extension on the north.

Then, in 1977, PMC petitioned Seattle to vacate that section of James Street intersecting at

17th Street, north of London’s property, a reversal of the earlier vacation in 1963. Because PMC owned more than two-thirds of the abutting land, London was unable to procedurally challenge

the vacation, however, that didn’t stop London from claiming part of the vacated road. One of the

issues on appeal was whether the original conveyance of James Street from PMC to Seattle conveyed the fee or an easement. This distinction was important because if the conveyance to

Seattle was for the full fee, then that would have created in London a corresponding ownership interest to the center of the street, for which she would be compensated in the vacation. By contrast, if the conveyance to Seattle was a mere easement right, then London’s damages would be reduced to only the loss of northbound access.

7 739924.1 - 099998 -0087 The majority cited affidavits from PMC representatives and Seattle officials involved in

the 1963 transaction asserting that the parties’ intention was to convey an easement: “Here, London

never possessed the underlying fee to any part of East James Street … it is clear the intent of both

parties, the city and PMC, was that PMC convey an easement for street purposes and nothing

more.”25

The concurring opinion argued that London had an ownership interest to the center of

James Street. The concurring justices, in an opinion authored by Chief Justice Utter, argued that rather than “look[ing] to the dedicator’s self-serving statements of intent in this case, out of context, as controlling on the court,” the Court should examine the language of the itself and the surrounding context.26 After engaging in this analysis, the concurring justices found that:

Although London could have sought damages for loss of her through access on 17th Avenue, it is logical to conclude one reason for not doing so was what appeared to be the dedication by PMC of a full fee interest in James Street to the city and a corresponding interest in the street to abutting owners in the event it was later vacated. To now have PMC deny her even a claim to a compensable interest in that fee on the basis of its undisclosed intent is to go too far … Here, it would be manifestly unfair for PMC to first obtain a vacation of 17th Avenue by granting what would only appear to London as a full fee interest in James Street, and then to take a different position when it was to PMC’s advantage. The Rowe [v. James, 71 Wash. 267 (1912)] case gives this court the flexibility to strike down such action regardless of what may have been PMC’s unstated intent to only grant an easement.27

The key term in this judicial debate is “unstated intent.” This dispute arose largely because

the parties were unclear regarding what interest was being conveyed when PMC dedicated 17th

Avenue to Seattle. While the general rule is that a dedication conveys an easement to the public,

the deed language suggested the parties intended to convey a full fee, which then vests ownership

25 Id. at 667. 26 Id. at 668 (Utter, C.J., concurring). 27 Id. at 669.

8 739924.1 - 099998 -0087 rights in abutting property owners. Clarity in purpose and in drafting is critical to ensuring that the

proper property interests are conveyed in street dedications and vacations.

Unique Issues Related to Vacating Street Ends

A city is prohibited from vacating a street end that abuts a body of water, unless one of

three exceptions apply. The first is if the vacation is sought to enable the city to acquire the property

for port, beach or water access, boat moorage or launching sites, park, public view, recreation,

educational, or other public uses.28

Second, street end vacation is permissible if by resolution the city council declares that the

street is not presently being used as a street and that the street is not suitable for port, beach or

water access, boat moorage, launching sites, park, public view, recreation, or education.29 Before

adopting the resolution, the city must compile an inventory of all rights-of-way within the city that

abut the body of water and determine if the street is suitable for boat moorage, launching sites, beach or water access, park, public view, recreation, or education.30 The city must hold a public

hearing in the same manner required by a traditional street vacation.31 However, in addition to the

standard requirements, the notice must indicate that the area is public access and that anyone

objecting to the proposed vacation should attend the public hearing or send a letter to a city official

indicating his or her objection.32 Lastly, the city must make a finding that vacation is in the public

interest.33

28 RCW 35.79.035(1)(a). 29 Id. at (1)(b). 30 Id. at (2)(a). 31 Id. at (2)(c). 32 Id. 33 Id. at 2(d).

9 739924.1 - 099998 -0087 Third, street end vacation is permissible if it is sought to enable the city to implement a

plan, adopted by resolution or ordinance, that provides comparable or improved public access to

the same shoreline area.34

No vacation under any of these three exceptions will be effective until the city is paid fair

market value for the street.35 Moneys received from the vacation can only be used by the city for

acquiring additional beach or water access, acquiring additional public view sites to a body of

water, or acquiring additional moorage or launching sites.36

Dedication of a Private Road for Public Use

Before a governmental body can vacate a street, it must first be dedicated to the public

from the original landowner.37 A dedication is “the dedication of land, or an easement on such

land, by the owner, for the use of the public, which has been accepted for use by or on behalf of

the public.”38 A dedication can be express or implied, but is typically evidenced by language on the face of a plat.39 Many local governments require the dedication of public roads as a condition

of approving platted subdivisions. The dedicating owner reserves no rights that would be

incompatible and interfere with the full public use of the road.40

Whether a conveyance of interest in a road is a public dedication or private easement

benefiting the dominant estate has practical consequences for the abutting property owners, in

addition to the public. For instance, in Richardson v. Cox, Robert Tippet surveyed a planned

residential subdivision near Pasco, but never formally platted the property.41 He did, however, file

34 Id. at (1)(c). 35 Id. at (3). 36 Id. 37 RCW 58.17.020(3). 38 Richardson v. Cox, 108 Wn. App. 881, 890 (2001). 39 Id. at 891. 40 Id. 41 Id. at 885.

10 739924.1 - 099998 -0087 covenants that created a thirty-foot road easement for ingress and egress on the

western boundary of what became William and Lila Mae Richardson’s property, which was

necessary to prevent the property from becoming landlocked.42

Harold and Bonnie Cox owned property immediately to the west of the Richardson’s

property.43 Harold Cox properly platted and dedicated to Franklin County a thirty-foot wide parcel of land on the eastern border of his property that abutted the thirty-foot road right of way easement on the edge of the Richardson’s property, contemplating a county road would be developed that could increase commercial traffic to the area and help his agricultural businesses.44 Working with

Cox, the county constructed a public road, which resulted in permanent damage to the Richardson

property.45 The Richardsons filed suit for damages, arguing the county road overburdened their

easement; the Coxes defended by arguing Tippet had actually dedicated the roadway to the public,

rather than created an easement.46

On appeal, the question was whether Tippet’s covenants reserved and dedicated a public

roadway, or if they reserved only an easement right for ingress and egress to benefit the abutting

property owners.47 The burden is on the party claiming a dedication exists, so Cox was required to present evidence of dedication. The court ruled that because Tippet’s subdivision was never formally platted or presented for county approval, there was no express evidence of a dedication.

Additionally, there was no evidence of an implied dedication because there was no record of the public using the roadway as a county road.48 By contrast, the court found that the covenant “clearly

contemplated future residential development and, as such, reserved the easement for ingress and

42 Id. at 885 – 86. 43 Id. at 886. 44 Id. 45 Id. at 887 – 888. 46 Id. at 888. 47 Id. at 890. 48 Id. at 892.

11 739924.1 - 099998 -0087 egress for other residential owners in the development to prevent the individual lots set forth in the

survey from becoming landlocked.”49 Having found that the covenant conveyed only an easement,

the county’s use of the road for heavy commercial and public traffic unreasonably overburdened

the easement, causing compensable damages to the Richardsons.50

Dedications to the public need to be clear and unambiguous, because public use of a road

can have detrimental impacts on abutting property owners’ private enjoyment of their land. Once

a dedication takes place, ownership interests revert back to the original owners upon vacation,

which is the primary subject of the remainder of this paper.

Special problems created by encroachments and abutting owners’ rights

As a general rule, neither the government nor the abutting owners may permanently

encroach on a dedicated public street for private use.51 However, the government may allow

private encroachment through permitting policies and regulations. Id. Municipalities should proceed cautiously when regulating permitted private activity that encroaches on public streets, because excessive fees could become illegal .

The line between permissible regulation and illegal revenue generation was ardently debated by the Washington Supreme Court justices in Baxter-Wyckoff Co. v. City of Seattle. There,

Southwest Florida Street was dedicated to public use and platted in 1887, and the area annexed to

Seattle in 1907.52 Seattle issued street use permits to the abutting property owners, two industrial

companies, to build and maintain in the public street permanent structures for use in the operation

of their private businesses.53 Seattle charged the companies permit fees based on square footage

49 Id. 50Id. 51 Baxter-Wyckoff Co. v. City of Seattle, 57 Wn.2d 555, 559 (1965). 52 Id. at 556. 53 Id. at 557.

12 739924.1 - 099998 -0087 of the encroaching structures, which resulted high fees relative to other use permits.54 In 1958, the

companies challenged the permit fees, arguing that they were unlawful taxes because they bore no

reasonable relationship to the cost of administration, inspection, or policing involved in the

issuance of the permits.55

The Washington Supreme Court described the general rule that an abutting property owner

has no legal right to use dedicated public streets “unless an ordinance expressly authorizes permits

for such use to be issued by the city, even though no member of the public is inconvenienced by

the private use.”56 Instead, “the rights of abutting property owners are limited to rights of ingress

and egress, light, air, water, and certain temporary or nonexclusive uses of the street right of

way.”57 The abutting owners were exercising privilege, not a right, in using the public street for private business. Therefore:

It seems clear to us … that the permit granted by the city to respondents in this case was the grant of a mere privilege, and that the use granted could be prohibited by the city absolutely or could be granted upon such terms and conditions as the city may see fit to impose. This is not a mere matter of municipal regulations. The conditions under which such a privilege will be granted by the city is a matter entirely within the discretion of the city council.58

Furthermore, because the permit was a discretionary political matter, “the courts have

never taken it upon themselves to review the appropriateness of imposing conditions on such a

privilege nor to substitute their judgment for that of the municipal authorities.”59 Because Seattle

had complete discretion over whether or not to allow the abutting property owners to use the public

streets for private use, the city council could impose whatever conditions it wanted on the use

54 Id. at 558. 55 Id. 56 Id. at 561. 57 Id. at 562 (citing McQuillin, Mun. Corp., 3rd Ed., s 30.73, p. 704). 58 Id. 59 Id.

13 739924.1 - 099998 -0087 permits, and the courts would not challenge such legislative decisions. The Court concluded that because

… the city has plenary power to refuse to permit any person to build or maintain, in a public street, a permanent structure for use in the conduct of his private business, it follows that the city may charge such fees and impose such other conditions with respect to such use as it deems proper. Consequently, the courts may not enjoin the collection of fees by the city therefore regardless of the amount thereof … If the ordinance [authorizing the use] is valid, the rates are valid.60

The dissenting justices took a different view:

There is no room for argument that the city, should it be so disposed, has the power to require the removal of the structures erected and maintained by the plaintiffs in the streets in question. However, the city has not seen fit to pursue such a course but has, instead, permitted the plaintiffs to continue their encroachments by the granting of licenses in the regulation of such use.61

Seattle could have prohibited private use in the public streets, but having allowed such use, it could not now impose unlawful taxes on the abutting property owners. It appeared to the dissenting justices that the abutting property owners should enjoy some protection from excessive fees associated with the exercise of even a mere privilege.

Baxter-Wyckoff is still good law, and therefore cities do have the discretionary authority to liberally regulate use permits for activities that encroach upon public streets. However, as the dissenting justices made clear, this is not a settled a debate, and legislative authorities should consider the perception that heavy permit regulation may be challenged as an unlawful .

Because they enjoy reversionary fee ownership interests in the public streets, abutting property owners face unique challenges when they encroach upon the public right of way. For instance, in Shaw v. City of Yakima, Emma Shaw owned property abutting a public street, with a reversionary ownership interest to the center line.62 Shaw planted a maple tree in the parking strip

60 Id. at 563, 64. 61 Id. at 566 (Hunter, J., dissenting). 62 183 Wash. 200, 201 (1935).

14 739924.1 - 099998 -0087 of her lot, which physically abutted the street, but was still her private property.63 Without her

permission, Yakima employees cut down the maple tree, alleging that it had become a traffic

hazard.64 Shaw argued that in removing the tree, Yakima had taken her property without just

compensation.65

The Supreme Court first addressed the inherent tension between the government’s right to

maintain a dedicated right of way and the abutting property owner’s right to maintain bordering

private property:

Of course, the ultimate title to that portion of street upon which the tree in question stood rested in respondent, subject to the city’s rights under the dedication of the land for street purposes. There rested also in respondent a qualified and restricted right to make reasonable use of that portion of her half of the street abutting on her property set aside as a parking strip, which respondent had the right to care for and beautify by planting grass, shrubs, or trees thereon, subject always to the paramount right of the city to maintain its streets in a safe condition for traffic and to maintain the paved portion of the street and sidewalk clear from obstructions and available for the use of the public. The city having so improved the street as to leave the vacant strip of land, respondent was clearly within her rights in planting the tree and maintaining the same in the position in which it grew, subject to the right of the city to abate the tree as a nuisance, if for any reason it should come within such a classification or if it should interfere with the improvement of the street area.

Yakima had the right to remove Shaw’s tree if it was in furtherance of the city’s police power to protect the safety of public roads. Paradoxically, in other words, Yakima’s easement rights eclipsed Shaw’s reversionary fee interest in the property on which the tree sat. Having determined the parties’ respective interests in the property, the Court next turned to whether

Yakima employees’ removal of the tree amounted to an unconstitutional taking:

The land embraced within the boundaries of the streets adjoining respondent’s property was dedicated for street purposes. While the ultimate reversion of the land so dedicated rested in the owners of the abutting property and while such owners had a qualified property right in certain appurtenances to the dedicated property, such as the tree with which we are here concerned, the city to which the land was

63 Id. 64 Id. 65 Id.

15 739924.1 - 099998 -0087 dedicated may and should properly improve the same for the benefit of the abutting owners and the public at large, and such an act as the cutting of the tree does not constitute a taking of respondent’s property within the constitutional provision … In the case at bar, there was no interference with the lots owned by respondent. Under certain circumstances, a city has the right, and it may well be its duty, to remove trees from land dedicated to public use as streets. The city must, of course, in accomplishing such a work, proceed in a lawful way, but the qualified ownership existing in the owners of abutting property in a tree standing in a street does not constitute private property in the sense that, before the city may interfere with such a tree, it must by legal proceedings condemn the right to do so.66

Interestingly, the Court ruled that Shaw could have succeeded in a tort claim against Yakima, but

did not file a timely complaint.67 But, nevertheless, the eminent domain action was meritless because Yakima was merely exercising its inherent police powers in removing what it considered

to be a nuisance from the public streets.

Conclusion

Once a street is dedicated the public, vacation can occur in numerous ways. Local policy

makers and legal counsel should be aware of the underlying conveyance documents to ensure the

public is vacating the correct property rights. Regardless of whether the vacation process is being initiated by the abutting owners or the government it is important to know what is being vacated and what should be retained. Does the street being vacated abut a body of water, and to what extent should easements for utilities and other services be preserved? Understanding these issues will help ensure a smooth transition of interest in the city’s streets and roadways.

66 Id. at 205. 67 Id.

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