AGO 1964 No. 84 - Feb 10 1964
CITIES AND TOWNS ‑- THIRD CLASS CITY ‑- PUBLIC STREETS ‑- VACATION ‑- PETITION SIGNED BY ALL ABUTTING OWNERS ‑- SUBJECT TO CERTAIN QUALIFICATIONS.
A city of the third class has the statutory power to vacate a platted city street in public use upon petition of all abutting property owners provided no vested rights are affected.
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February 10, 1964
Honorable Marshall A. Neill
State Senator, 9th District
414 Dexter Street
Cite as: AGO 63-64 No. 84
By letter previously acknowledged you have requested an opinion of this office on the following question:
Does a city of the third class have legal power to vacate a platted city street in public use upon a petition signed by all abutting property owners?
We answer your question in the affirmative, subject to certain qualifications set forth in our analysis.
The specific authority of the governing body of a third class city to vacate streets is found in RCW 35.24.290, which reads as follows:
"The city council of each third class city shall have power:
". . .
"(3) To establish, build and repair bridges, to establish, lay out, alter, keep open, open, widen, vacate, improve and repair streets, sidewalks, alleys, squares and other public highways and places within the city. . . ." (Emphasis supplied.)
[[Orig. Op. Page 2]]
The general procedures to be followed are set forth in chapter 35.79 RCW. Specifically, RCW 35.79.010 provides:
"The owners of an interest in any real estate abutting upon any street or alley who may desire to vacate the street or alley, or any part thereof, may petition the legislative authority to make vacation, giving a description of the property to be vacated, or the legislative authority may itself initiate by resolution such vacation procedure. The petition or resolution shall be filed with the city or town clerk, and, if the petition is signed by the owners of more than two-thirds of the property abutting upon the part of such street or alley sought to be vacated, legislative authority by resolution shall fix a time when the petition will be heard and determined by such authority or a committee thereof, which time shall not be more than sixty days nor less than twenty days after the date of the passage of such resolution."
RCW 35.79.020 provides in material part:
"Upon the passage of the resolution the city or town clerk shall give twenty days' notice of the pendency of the petition by a written notice posted in three of the most public places in the city or town and a like notice in a conspicuous place on the street or alley sought to be vacated. The said notice shall contain a statement that a petition has been filed to vacate the street or alley described in the notice, together with a statement of the time and place fixed for the hearing of the petition. . . ."
Next, RCW 35.79.030 provides:
"The hearing on such petition may be held before the legislative authority, or before a committee thereof upon the date fixed by resolution or at the time said hearing may be adjourned to. If the hearing is before such a committee the same shall, following the hearing, report its recommendation on the petition to the legislative authority which may adopt or reject the recommendation. If such [[Orig. Op. Page 3]] hearing be held before such a committee it shall not be necessary to hold a hearing on the petition before such legislative authority. If the legislative authority determines to grant said petition or any part thereof, such city or town shall be authorized and have authority by ordinance to vacate such street, or alley, or any part thereof: Provided, That such ordinance may provide that the city retain an easement or the right to exercise and grant easements in respect to the vacated land for the construction, repair, and maintenance of public utilities and services."
The status of ownership of the property within the vacated area is covered by RCW 35.79.040, which provides:
"If any street or alley in any city or town is vacated by the city or town council, the property within the limits so vacated shall belong to the abutting property owners one‑half to each."
However, RCW 35.79.050 contains the following limitation:
"No vested rights shall be affected by the provisions of this chapter."
Furthermore, all of these statutes must be read in the light of Article I, § 16 (Amendment 9), of the Washington Constitution, which provides:
"Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be ascertained by a jury, unless a jury be [[Orig. Op. Page 4]] waived, as in other civil cases in courts of record, in the manner prescribed by law. Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question, and determined as such, without regard to any legislative assertion that the use is public: Provided, that the taking of private property by the state for land reclamation and settlement purposes is hereby declared to be for public use."
Consequently it is to be seen that while power has been granted to cities (including cities of the third class) to vacate streets upon petition of the abutting landowners, there exist both statutory and constitutional limitations on the exercise of that power. Basically this means that:
(1) In all instances the order of vacation must have some element of public purpose. Young v. Nichols, 152 Wash. 306, 278 Pac. 159 (1929); and
(2) Any landowner, abutting or otherwise, whose rights of access are specially damaged by a street vacation may complain and receive "just compensation" for such damage. Smith v. Centralia, 55 Wash. 573, 104 Pac. 797 (1909). Compare, however,Ponischil v. Hoquiam Sash & Door Co., 41 Wash. 303, 83 Pac. 316 (1906);Mottman v. Olympia, 45 Wash. 361, 88 Pac. 579 (1907);Freeman v. Centralia, 67 Wash. 142, 120 Pac. 886 (1912); andTaft v. Washington Mutual Savings Bank, 127 Wash. 503, 221 Pac. 604 (1923); which hold that mere inconvenience resulting from circuity of approach (as distinguished from the deprivation of a landowner's only reasonable means of access) is noncompensable. In addition, seeFry v. O'Leary, 141 Wash. 465, 252 Pac. 111 (1927), in which our court held that:
"There can be no question but what, under our decisions, the power of vacation of streets and alleys or portions thereof belongs to the municipal authorities, and the exercise of that power is a political function which, in the absence of collusion, fraud,or the interference with a vested right, will not be reviewed by the court; and that one who suffers damages similar to those sustained by the public generally will not be heard to complain. . . ." (Emphasis supplied.) (p. 469.)
[[Orig. Op. Page 5]]
We do not view these several concepts to have been altered by the recent decision of our court inCapitol Hill Methodist Church v. Seattle, 52 Wn.2d 359, 324 P.2d 1113 (1958), to which you have referred. The significant portion of the court's opinion in that case appeared on page 368 as follows:
"The appellants contend further that the vacation of the street is for a private use and should be enjoined on this ground. They argue that vacation of a public streetsolely for a private purpose is illegal in this jurisdiction, and citeYoung v. Nichols, 152 Wash. 306, 278 Pac. 159 (1929) andFry v. O'Leary, 141 Wash. 465, 252 Pac. 111, 49 A.L.R. 1249 (1927), in support thereof. We agree with this statement of the law, but it is of no assistance to the appellants in this case. The rule is clearly stated in the Fry case,supra, as follows:
"'There can be no question but what, under our decisions, the power of vacation of streets and alleys or portions thereof belongs to the municipal authorities, and the exercise of that power is a political function which,in the absence of collusion, fraud, or the interference with a vested right, will not be reviewed by the court; and that one who suffers damages similar to those sustained by the public generally will not be heard to complain. Ponischil v. Hoquiam Sash etc. Co., 41 Wash. 303, 83 Pac. 316;Freeman v. Centralia, 67 Wash. 142, 120 Pac. 886;Taft v. Washington Mutual Savings Bank, 127 Wash. 503, 221 Pac. 604.' (Italics ours.)
"See, also,Mottman v. Olympia, supra.
"The appellants do not claim that the vacation of east John street was the result of collusion or fraud, and we have previously concluded that their access has not been destroyed, or substantially affected, which would constitute an 'interference with a vested right' under our holding in the Taft case, supra. Therefore, the appellants, whose properties do not abut on the portion of the street vacated,have no standing to question the purpose for which the city council granted the vacation." (Double emphasis ours.)
[[Orig. Op. Page 6]]
The practical consequence of this decision, then, is that where all persons, including abutting owners, whose rights are substantially affected by the vacation of a street have consented thereto (as by signing the petition therefor) the question of whether the vacation serves a public purpose will never be reached because no one will have standing to raise the issue. Your question, as stated at the outset, assumes unanimous approval of the vacation by all abutting owners. Therefore, the vacation ordinance will be beyond challenge unless the vacation also affects the vested rights of a nonabutting property owner by destroying or substantially affecting his means of access.
In summary, then, we answer your question as follows:
A city of the third class does have statutory authority to vacate a platted city street upon petition signed by all abutting owners, with title to the area vacated to be held by the abutting owners. However, if the vacation will deprive a nonabutting owner of his only reasonable means of access such owner may complain and attempt to prevent the vacation for absence of a "public purpose" or, in any event, claim just compensation from the city for the damaging of his right of access.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
PHILIP H. AUSTIN
Assistant Attorney General