HomeMy WebLinkAboutOrdinance 5017 Doc ID : 011206010003 TVDe : REL
Recorded : 06/01/2007 at 01 : 16 : 01 PM
Fee Amt : $14 . 00 Paoe 1 of 3
Mashlnoton Countv . AR
Bette StamoS Circuit Clerk '
Flle2007-00020890
t
ORDINANCE NO, 5017
AN ORDINANCE APPROVING VAC 07-2519 SUBMITTEDBY
MILVER INVESTMENTS, LLC FOR PROPERTY LOCATED
AT 500 WEST PRAIRIE STREET, VACATING AN UN-
CONSTRUCTED RIGHT-OF-WAY ALONG THE WEST SIDE
OF WEST AVENUE AND UN-CONSTRUCTED RIGHT-OF-
WAY BISECTING THE SUBJECT PROPERTY.
WHEREAS, the City Council has the authority under A.C.A. § 14-54-104 to vacate
public grounds or portions thereof which are not required for corporate purposes; and
WHEREAS, the City Council has determined that the following described portion of the
platted right-of-way is not required for corporate purposes;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1 : That the City Council of the City of Fayetteville, Arkansas hereby vacates and
abandons the following described platted right-of-way:
See Exhibit "B" attached hereto and made a part hereof.
Section 2 : That a copy of this Ordinance duly certified by the City Clerk along with the
map attached hereto and labeled Exhibit "A" shall be filed in the office of the Recorder of the
County and recorded in the Deed Records of the County.
Section 3 : That this vacation approval is subject to the Conditions of Approval as
follows, and shall not be in effect until all conditions are met herein.
1 . Any relocation of existing utilities shall be at the owner/developer's
expense. �YJTRqltt,
PASSED and APPROVED this 15w day of May, 2007. = U; FAYETTEVILLEli '
APPROVE ATTEST: '9s'9RkgN5P�J2'
�''0i„NGTON
G r
By: BY:
DAN COODY, Mayo SO NRA E. SMITH, Ci yCi Clerk/T
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EXHIBIT `B"
VAC 07-2519
A PART OF LOT NUMBERED THREE (3) IN BLOCK NUMBERED TWENTY-TWO (22)
IN FERGUSON'S ADDITION TO THE CITY OF FAYETTEVILLE, ARKANSAS, BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A SET 1 /2" IRON
REBAR WHICH IS S00°05' 12"W 178.00 FEET FROM THE NORTHEAST CORNER OF
SAID LOT THREE (3), SAID POINT BEING FORTY (40) FEET WEST OF THE EAST
RIGHT OF WAY LINE OF WEST AVENUE; THENCE S00°05 ' 12"W 180.62 FEET TO A
SET %:" IRON REBAR ON THE NORTH RIGHT OF WAY LINE OF PRAIRIE STREET;
THENCE S89008 '205'W 31 .28 FEET ALONG SAID RIGHT OF WAY LINE TO A POINT ON
THE WEST BOUNDARY OF A THIRTY (30) FOOT WIDE PUBLIC RIGHT OF WAY,
THENCE LEAVING THE NORTH RIGHT OF WAY LINE OF PRAIRIE STREET,
N16001 '30"W 188.43 FEET ALONG THE WEST BOUNDARY OF SAID THIRTY (30)
FOOT WIDE PUBLIC RIGHT OF WAY TO A POINT WHICH IS 178 .00 FEET SOUTH OF
THE NORTH LINE OF SAID LOT THREE (3); THENCE S89°59' 19"E 31 .21 FEET TO A
POINT ON THE EAST BOUNDARY OF SAID THIRTY (30) FOOT WIDE PUBLIC RIGHT
OF WAY; THENCE S16001 '30"E 116.60 FEET ALONG THE EAST BOUNDARY OF SAID
THIRTY (30) FOOT WIDE PUBLIC RIGHT OF WAY TO A POINT ON THE PLATTED
WEST RIGHT OF WAY LINE OF WEST AVENUE AS SHOWN ON THE PLAT OF
FERGUSON'S ADDITION; THENCE N00°05 ' 12"E 112.08 FEET ALONG THE PLATTED
WEST RIGHT OF WAY LINE OF WEST AVENUE TO A POINT WHICH IS 178 .00 FEET
SOUTH OF THE NORTH LINE OF SAID LOT THREE (3); THENCE S89°59' 19"E 20.00
FEET TO THE POINT OF BEGINNING, CONTAINING .20 ACRES, MORE OR LESS,
FAYETTEVILLE, WASHINGTON CONTY, ARKANSAS.
Washington County, AR
1 certify this instrument was filed on '
1 06/01/2007 01 :18:01 PM
and recorded in Real Estate
File Number 2007-0002089
A Bette Stamps - Circuit 1 P
!
! by
6P�
y City of Fayetteville S� f 507
Staff Review Form �' D l 7
City Council Agenda Items
°r Vic orl- .251
Contracts
tlve✓-T
15-May-o7
City Council Meeting Date
Jeremy Pate Planning Operations
Submitted By Division Department
Action Required:
VAC 07-2519: (Milver Investments, 523): Submitted by Milver Investments, LLC for property located at 500 west Prairie
Street. The property is zoned DG, Downtown General and contains 0.20 acres. The request is to vacate un-constructed right-of
way along the west side of West Avenue and un-constructed right-of-way bisecting the subject property.
$0.00 n/a n/a
Cost of this request Category/Project Budget Program Category / Project Name
n/a n/a n/a
Account Number Funds Used to Date Program / Project Category Name'
n/a n/a n/a
Project Number Remaining Balance Fund Name
Budgeted Item Budget Adjustment Attached
Previous Ordinance or Resolution # n/a
/De-pa'r mmee�irector Date Original Contract Date: n/a
Original Contract Number: n/a
v/ y- zr o7
City A
Received in City ClerOffice
�o A . pw7� " %L.6-7ENTERED
Finance and Internal Service Director Date
Received in Mayor's Office E
a7 d
Mayor a \
Comments:
City Council Meeting of May 15, 2007
Agenda Item Number
CITY COUNCIL AGENDA MEMO
To: Mayor and City Council
Thru: Gary Dumas, Director of Operations `o
From: Jeremy C. Pate, Director of Current Planning �+
Date: April 24, 2007
Subject: Right-of-way Vacation for Milver (VAC 07-2519)
RECOMMENDATION
The Planning Commission and staff recommend approval of an ordinance vacating
unconstructed right-of-way located on the west side of Gregg Avenue, and un-constructed
right-of-way bisecting the subject property at 500 Prairie Street.
BACKGROUND
This property is located at the northwest corner of West Avenue and Prairie Street, Block
22 of Ferguson's Addition, and is adjacent to the City's Frisco Trail. This property was
originally developed in the 1920's by the American Milling Company. The old mill 'and
grain buildings have been recently torn down. There is excess right-of-way along the
property's West Avenue frontage, and an un-built street right-of-way bisecting : the
property. These areas of right-of-way are proposed to be vacated in order to redevelop
the property. The subject area of right-of-way is not anticipated to be needed by the City for
transportation purposes because 40' of required right-of-way for West Avenue would remain
in accordance with the Master Street Plan's designation of the West Avenue as an ST-40
Street. The un-constructed right-of-way bisecting the property is not feasible for a street
connection along any point of this block because of existing development.
The applicant requests the City to vacate 0.20 acres of right-of-way at 500 West Prairie
Street, as indicated in the attached maps and legal description.
DISCUSSION
The Planning Commission voted 9-0-0 to forward this item to the City Council with a
recommendation for approval. Notification was provided to all appropriate utility
representatives and property owners. Consent forms to vacate the subject right-of-way were
signed by all property owners on the block that would be affected by the vacation.
BUDGETIMPACT
None.
ORDINANCE NO.
AN ORDINANCE APPROVING VAC 07-2519 SUBMITTED
BY MILVER INVESTMENTS, LLC FOR PROPERTY LOCATED AT 500
WEST PRAIRIE STREET, VACATING AN UN-CONSTRUCTED RIGHT-OF-
WAY ALONG THE WEST SIDE OF WEST AVENUE AND UN-
CONSTRUCTED RIGHT-OF-WAY BISECTING THE SUBJECT PROPERTY.
WHEREAS, the City Council has the authority under A.C.A. § 14-54- 104 to vacate
public grounds or portions thereof which are not required for corporate purposes; and
WHEREAS, the City Council has determined that the following described portion of the
platted right-of-way is not required for corporate purposes;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FAYETTEVILLE, ARKANSAS:
Section 1 : That the City Council of the City of Fayetteville, Arkansas hereby vacates and
abandons the following described platted right-of-way:
See Exhibit `B" attached hereto and made a part hereof.
Section 2: That a copy of this Ordinance duly certified by the City Clerk along with the
map attached hereto and labeled Exhibit "A" shall be filed in the office of the Recorder of the
County and recorded in the Deed Records of the County.
Section 3 : That this vacation approval is subject to the Conditions of Approval as
follows, and shall not be in effect until all conditions are met herein.
1 . Any relocation of existing utilities shall be at the owner/developer's expense.
PASSED and APPROVED this day of 2007.
APPROVED: ATTEST:
By: By:
DAN COODY, Mayor SONDRA SMITH, City Clerk/Treasurer
EXHIBIT `B"
VAC 07-2519
A PART OF LOT NUMBERED THREE (3) IN BLOCK NUMBERED TWENTY-TWO (22)
IN FERGUSON' S ADDITION TO THE CITY OF.FAYETTEVILLE, ARKANSAS, BEING
MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A SET 1 /2" IRON
REBAR WHICH IS S00°05 ' 12"W 178.00 FEET FROM THE NORTHEAST CORNER OF
SAID LOT THREE (3), SAID POINT BEING FORTY (40) FEET WEST OF THE EAST
RIGHT OF WAY LINE OF WEST AVENUE; THENCE S00°05 ' 12"W 180.62 FEET TO A
SET '/2" IRON REBAR ON THE NORTH RIGHT OF WAY LINE OF PRAIRIE STREET;
THENCE S89008 '20"W 31 .28 FEET ALONG SAID RIGHT OF WAY LINE TO A POINT ON
THE WEST BOUNDARY OF A THIRTY (30) FOOT WIDE PUBLIC RIGHT OF WAY,
THENCE LEAVING THE NORTH RIGHT OF WAY LINE OF PRAIRIE STREET,
N16001 '30"W 188.43 FEET ALONG THE WEST BOUNDARY OF SAID THIRTY (30)
FOOT WIDE PUBLIC RIGHT OF WAY TO A POINT WHICH IS 178.00 FEET SOUTH OF
THE NORTH LINE OF SAID LOT THREE (3); THENCE S89°59' 19"E 31 .21 FEET TO A
POINT ON THE EAST BOUNDARY OF SAID THIRTY (30) FOOT WIDE PUBLIC RIGHT
OF WAY; THENCE S16001130"E 116.60 FEET ALONG THE EAST BOUNDARY OF SAID
THIRTY (30) FOOT WIDE PUBLIC RIGHT OF WAY TO A POINT ON THE PLATTED
WEST RIGHT OF WAY LINE OF WEST AVENUE AS SHOWN ON THE PLAT OF
FERGUSON' S ADDITION; THENCE N00°05' 12"E 112.08 FEET ALONG THE PLATTED
WEST RIGHT OF WAY LINE OF WEST AVENUE TO A POINT WHICH IS 178.00 FEET
SOUTH OF THE NORTH LINE OF SAID LOT THREE (3); THENCE S89°.59' 19"E 20.00
FEET TO THE POINT OF BEGINNING, CONTAINING .20 ACRES, MORE OR LESS,
FAYETTEVILLE, WASHINGTON CONTY, 'ARKANSAS.
w
PC Meeting of April 23 , 2007 .
ARKANSAS
THE CITY OF FAYETTEVILLE, ARKANSAS
125 W. Mountain SL
Fayetteville, AR 72701
PLANNING DIVISION CORRESPONDENCE Telephone: (479) 575-8267
TO: Fayetteville Planning Commission
FROM: Andrew Garner, Senior Planner
Matt Casey, Assistant City Engineer
THRU: Jeremy Pate, Director of Current Planning
DATE: Aprik"-, 2007 Updated April 24, 2007
VAC 07-2519: (MILVER INVESTMENTS, 523): Submitted by MILVER
INVESTMENTS, LLC for property located at 500 WEST PRAIRIE STREET. The
property is zoned DG, DOWNTOWN GENERAL and contains approximately 0.20
acres. The request is to vacate un-constructed right-of-way along the west side of West
Avenue and un-constructed right-of-way bisecting the subject property.
Property Owner: Milver Investments, LLC
Planner: Andrew Gamer
Findings:
April 24, 2007 Update: On the day of the April 23 2007 Planning Commission meetin
the applicant provided all of the necessary consent signatures from adjacent property
owners. These consent documents have been attached to this report
Update: At the time of publication of this report, the applicant had yet to obtain all the
necessary consent signatures from adjacent property owners in order to meet the
requirements as noted in the attached documents. Having received no objections, staff
would recommend approval of the vacation request, in accordance with the reviews
conducted by all utility representatives and no concerns being noted. However, absent all
consent forms, the City Attorney has stated this is "fatal" to a vacation application. Staff
recommends tabling this item indefinitely, until such time as the applicant or the City is
able to acquire consent signatures to the vacation from request from all affected property
owners on the subject block.
Property Description and Background: This property is located at the northwest corner
of West Avenue and Prairie Street, Block 22 of Ferguson's Addition, and is adjacent to
the City's Frisco Trail. This property was originally developed in the 1920's by the
American Milling Company. The old mill and grain buildings have been recently tom
down. There is excess right-of-way along the property's West Avenue frontage, and an
un-built street right-of-way bisecting the property. These areas of right-of-way are
proposed to be vacated in order to redevelop the property. A conceptual site plan for this
KARcports\2007U°C Reports\04-23-07WAC 07-2519 (Milver Investments).doe
redevelopment along with architectural renderings of the proposed buildings has been
submitted by the applicant and is attached to this report.
(1 ) The West Avenue right-of-way is located north of Prairie Street on the west side
of West Avenue in front of properties formerly addressed 500 Prairie Street and
309 West Avenue. This right-of-way is an approximately 20' wide and 170' long
strip of un-constructed right-of-way adjacent to the existing West Avenue (see
attached exhibit).
(2) The un-constructed right-of-way bisecting the subject property was originally
platted to be a 30' wide street. This street was never built and now bisects a block
of residences and the subject property. The .right-of-way enters the property at the
corner of West and Prairie and traverses in a northwestern angle from the corner
approximately 178' across the property (see attached exhibit).
The total acreage of the two areas of right-of-way is 0.20 acres. Neither of these areas is
anticipated to be needed by the City for transportation purposes because:
(1 ) 40' of required right-of-way for West Avenue would remain in accordance with
the Master Street Plan's designation of the street as an ST-40 street; and
(2) the un-constructed right-of-way bisecting the property is not a feasible for
reasonable street connection along any point of this block because of existing
development.
Request The applicant is requesting to vacate 0.20' acres of right-of-way within Block
22 of Ferguson's Addition.
The applicant has submitted the required notification forms to the utility companies and
to the City with the result summarized below.
UTILFFIES RESPONSE
Ozarks Electric No Objections
Cox Communications No Objections
Southwestern Electric Power Company No Objections
Arkansas Western Gas No Objections
Southwestern Bell Telephone Relocation of existing utilities shall
be at the owner/developer's expense
including the possible need for utility
easements.
CITY OF FAYETTEVILLE: RESPONSE
KAReports\2MAK Rcports\04-23-01wAC 07-2519 (Milve inveshnents)-doc
Water/Sewer No Objections
Transportation No Objections
Solid Waste No Objections
Engineering No Objections
Public Comment: No objections to the project have been received.
Recommendation: Staff does not have an objection to the requested right-of-way
vacation based on the responses noted above. However, as discussed in the attached
memorandum from the City Attorney, written consent should be provided from all
property owners that would be directly affected from the loss of right to ingress and
egress their property from a right-of-way vacation request. The applicant has not
provided written consent from all of the owners directly adjacent to the un-constructed
rigbt-of-way bisecting the property and continuing north to South Street.
Staff recommends tabling (VAC 07-2519) until such a time that the applicant provides
written consent to vacate the subject right-of-way from all property owners on this block
with direct access to the subject right-of-way.
Should the applicant desire to proceed without written consent from all adjacent property
owners having direct access to this right-of-way staff recommends denial of the vacation
request based on the memorandum and recommendation from the City Attorney.
Staff has discussed this issue with the applicant who indicated that they have not been
able to contact all adjacent property owners, some of whom are businesses from out of
state.
CITY COUNCIL ACTION: Required PLANNING COMMISSION ACTION: Required
Planning Commission Action: X Forwarded ❑ Denied ❑ Tabled
Date: April 23, 2007
Motion: Lack
Second: Graves
Vote: 9-0
Comments:
The "CONDITIONS OF APPROVAL", as stated in this report, are accepted in total
Without exception by the entity requesting approval of this development item.
By
Title
Date
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Property Sear Results Page I of I
Search Results
Record 1 to 1 of 1
Parcel : 765-05526-000 S-T-R: 21 -16-30 Type: RI Assessed Value: 69830
Location Address: 301 WEST AVE FAYETTEVILLE
1 Owner Name: KOVACH, DUANE K. & ELIZABETH R.
Mailing Address: 1744 Green Aci res Cir Springdale AR 72764-0204
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i
f
http:// www.co,washington.ar.us/PropertySearch/SearchResults.asp?FS= I &LU=042007&N... 4/23/2007
ADJACENT PROPERTY OWNER NOTIFICATION FORM
FOR RIGHT- OF- WAY, ALLEY, AND
EASEMENT VACATION REQUESTS
Date: T—\0'61
Address / location of vacation: co O U) . rc : r. e
Adjacent property address: T b \ t ebk
Lot: Block: Subdivision:
REQUESTED VACATION:
I have been notified of the petition to vacate the following (alley, easement, right-of-way), described as follows:
(Include legal description and graphic representation of what is being vacated)
ADJACENT PROPERTY OWNERS COMMENTS:
❑ 1 have been notified of the requested vacation and decline to comment.
I do not object to the vacation described above.
❑ I do object to the requested vacation because:
of Adjacent Propelty Owner
Signature of Adjacent Property Owner f
utsr,�
Applicant Name
February 2006
Page 6
Property Search Results
Page I of I
Search Results
Record Ito lot I
Parcel: 765_05527_000 S -T -R: 21-16-30 Type: RI Assessed Value: 7,410
Location Address: 303 S WEST AVE FAYETTEVILLE
Owner Name: HARRIS, RAYMOND E. & BOBBIE JEAN
Mailing Address: 14979 Joline Rd Fayetteville AR 72701-0393
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ADJACENT PROPERTY OWNER NOTIFICATION FORM
FOR RIGHT- OF- WAY, ALLEY, AND
EASEMENT VACATION REQUESTS
Date: l ). — 07
Address / location of vacation: 5 OO
Adjacent property address: 3 o 3 5 V e St
Lot: Block: Subdivision:
REQUESTED VACATION:
I have been notified of the petition to vacate the following (alley, easement, right-of-way), described as foliov
s:
(Include legal description and graphic representation of what is being vacated)
ADJACENT PROPERTY OWNERS COMMENTS:
o I have been notified of the requested vacation and decline to comment.
I do not object to the vacation described above.
❑ I do object to the requested vacation because:
3 . parr,
Name of Adjacent Property Owner (printed)
RLg 4&AC+ cS/J 4L9
Signatu e of Adjacent Property Owner
Applicant Name
Febru ry 2006
Page 6
Property Search Results Page l of I
Search Results
Record 1 to I oil
Parcel: 765-05529-000 S -T -R: 21-16-30 Type: RI Assessed Value: 10,890
Location Address: 305 WEST AVE FAYETTEVILLE
1 Owner Name: BALL, KATHY L.
Mailing Address: CIO ARVEST MTG CO. PO BOX 399 LOWELL AR 72745
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ADJACENT PROPERTY OWNER NOTIFICATION FORM
FOR RIGHT- OF- WAY, ALLEY, AND
EASEMENT VACATION REQUESTS
Date: J
Address i'location of vacation: SOO LJ. 1 Ya: ►ti`
Adjacent property address: 3 0 c v e s
Lot: Block: Subdivision:
REQUESTED VACATION:
I have been notified of the petition to vacate the following (alley, easement, right-of-way), described as follows:
(Include legal description and graphic representation of what is being vacated)
ADJACENT PROPERTY OWNERS' COMMENTS:
❑ I have been notified of the requested vacation and decline to comment.
/
De I do not object to the vacation described above.
❑ 1 do object to the requested vacation because:
ka�y b0.�1.
Name of Adjacent Property Owner (pri7ted)
Signature of Adjacent•Property Owner
Rwrf Nok, M.oerJa�Ptar v �f
Applicant Name
./7cbru1 ry 2006
Page 6
Property Search Results Page 1 of I
Search. Results
Record Ito 1 of 1
Parcel: 765-05532-000 S -T -R: 21-16-30 Type: RI Assessed Value: 6,955
Location Address: 327 WEST AVE FAYETTEVILLE
1 Owner Name: KELLEY, DOROTHY
Mailing Address: 26 Palmer Fayetteville AR 72701
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ADJACENT PROPERTY OWNER NOTIFICATION FORM
FOR RIGHT- OF -WAY, ALLEY, AND
EASEMENT. VACATION REQUESTS
Date: — O
Address / location of vacation: So O t,.-' .p S Ya r ; C
Adjacent property address: '3 a C S4
Lot: YoBlock: Subdivision: Q?l!ll l !/
REQUESTED VACATION:
I have been notified of the petition to vacate the following (alley, easement, right-of-way), described as follows:
(Include legal description and graphic representation of what is being vacated)
ADJACENT PROPERTY OWNERS COMMENTS:
0 I have been notified of the requested vacation and decline to comment.
z" I do not object to the vacation described above.
❑ I do object to the requested vacation because:
Name of Adjacent
Signature of Adjace
Applicant Name
February 20045
Page 6
Property Search Results Page 1 of I
• Search Results
Record Ito 1 of 1
Parcel: 765-05530-000 S -T -R: 21-16-30 Type: RI Assessed Value: 5,989
Location Address: 357 S WEST AVE FAYETTEVILLE
•Owner Name: JOHNSTON, DAVID A
Mailing Address: 357 S West Ave Fayetteville AR 72701-5849
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ADJACENT PROPERTY OWNER NOTIFICATION FORM
• FOR RIGHT- OF- WAY, ALLEY, AND
• EASEMENT VACATION REQUESTS
• Date:
Address / location of vacation Soo • Adjacent property address: 3 S) S, t o e A
Lot: Block: Subdivision:
REQUESTED VACATION:
1 have been notified of the petition to vacate the following (alley, easement, right-of-way), described as follows:
(Include legal description and graphic representation of what is being vacated)
ADJACENT DJPROPERTY OWNERS COMMENTS:
t�+ I have been notified of the requested vacation and decline to comment.
❑ 1 do not object to the vacation described above.
Cl 1 do object to the requested vacation because:
AV r h AL/U/ J 0t+N5I v /
(printed)
" a.
Signature of Adjacent Proo.erty Owner
J "' VIe"�n.yt�InPq,�
Applicant Name
Feb nary 2006
Page 6
TO: Dan Coody, Mayor
City Council
CC: Jeremy Pate, Director of Current Planning
FROM: Kit Williams, City Attorney
DATE: April 3, 2007
RE: Vacations of streets and alleys
I am sorry that.I did not see that
only failed to consent in writing to the .pro d
alley abutting his property, but actually o
consent by an abutting property owner is fatal to
ing property owner had not
vacation of a portion of the:
Led. This lack- of written
acation request.
"The Supreme Court held that because of the adverse
effect, the appellants were abutting property owners
written consent was required before the alley
could be closed ...." Holliman v. Liles, 72 Ark. App.
169,35 S.W. 34369, 372 (2000). (emphasis added)
• Na,
hed is a copy my two page memo of May 3, 2005 to you and
the Plg Commiss' ` about the limitation on the City's power to vacate
alleysets. attached is my five page (more in depth) memo to
Tim ConlcliWjthtW City Planner) of February 6, 2003, concerning legal
restrictions on alley and street vacations.
I Krr WILLIAMS, CITY ATTORNEY
DAVID WHrrAKER, ASST. CITY ATTORNEY
DEPARTMENTAL CORRESPONDE
LEGAL DEPARTMENT
TO: Jeremy Pate, City Planner
FROM: Kit Williams, City Attorney
DATE: May 2, 2005
RE: Statutory Vacation of dedicated streets and alleys
Attached is my memo to Tim on this subject dated February 6, 2003.
When drafting vacation of dedicated streets or alleys, I recommend you use
the language in the ordinance you drafted for VAC 05-1.453 (St. James
Missionary Baptist).
We may have the statutory power to vacate streets or alleys through.
A.C.A. §14-54-104 "not for the time being by required for corporate
purposes ...." However, in light of the unpublished Bateman v. City of
Paragould case, I would use the procedure in A.C.A. §14-301-301 et. seq.
whenever possible. Then the ordinance could refer to both A.C.A. sections
and their appropriate language.
,s
THE OTT -OF FAYETTEVILLE. ARKANSAS - -�
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST. CETY ATTORNEY
LEGAL DEPARTMENT
DEPARTMENTAL CORRESPONDENCE
TO: Tim Conklin, Planning Department
FROM: Kit Williams, City Attorney i_ :--_— --
DATE: February 6, 2003
RE: Vacation of dedicated streets and alleys
As you know, the legislature has provided two statutes which
both refer to a city's power to "vacate" streets and alleys. The one you
have uniformly used is A.C.A. §14-54-104 Additional powers of cities
of the first class. This statute provides power "to vacate or lease out
such portions thereof as may not for the time being be required for
corporate purposes .... " No notice or consent of abutting owners is
required or even mentioned. -
The other statute is A.C.A. §14-301-301, et seq. Power and
authority to vacate. (Copies of both statutes are attached.)
In a recent, unpublished case decided by the Arkansas Court of
Appeal, Bateman v. City of Paragou1d1 2000 WL 17832 (Ark. App.
2000), the Court of Appeals upheld the Chancellor's decision that "a
city of the first class could only abandon a dedicated easement by
following methods set forth in A.C.A. §14-301-301 (1997)." (emphasis
added) The Court of Appeals specifically held:
"The Arkansas General Assembly has set out the
procedure for vacating or abandoning an easement
in cases such as the one now before us. See Ark.
Code Ann. §14-301-301. That procedure is binding
on appellants, the City of Paragould, and the courts.
Absent compliance with that procedure whereby the
town council vacates or abandons the street, we
cannot hold that appellants' arguments on appeal
warrant reversal." (emphasis added)
Unpublished opinions are not controlling precedent in later cases.
Other published decisions have affirmed vacation of streets pursuant to
A.C.A. §14-54-104 (2) as we have done. Thus, there is not a crystal clear
resolution of what we must do.
The Supreme Court on June 28, 2001, reversed a trial judge who
had upheld a city ordinance based upon A.C.A. §14-54-104 (2) to vacate
an unpaved segment of street. Although not stating that cities could
not use this statute to vacate streets, the Supreme Court stated:
We note that nothing in this statute provides that a
right of ingress or egress across the property being
vacated can be extinguished or taken without
compensation." Wright v. City of Monticello, 345 Ark.
420, 47 S.W. 3� 851, 856 (2001).
Monticello had vacated one end of an unpaved city street.
returning it to its abutting owners. Plaintiff Wright was an abutting
owner along. the street past where it had been vacated. Wright sued for
an injunction and for a constitutional taking of her interest in the street.
The local judge ruled against her, but the Supreme Court reversed.
"The legislature granted the City the authority to
abandon or vacate roads or streets. However, the
City exceeded that authority when it enacted ordinance
number 700 for the purpose of extinguishing appellant's
right of ingress and egress through the vacated street."
Id. at 857.
The case really did not turn on whether the city could use A.CA.
§14-54-104 (2) which was quoted by the Court and implicitly
sanctioned as a manner to vacate a street. The main issue was the
takings issue which the court ruled in favor of the upstreet, abutting
owner. Unless we use A.C.A. §14-301-301 and specifically §14-301-303
which requires "written consent of the owners of all lots abutting the
street or alley, or the portion thereof, to be vacated," we could face a
takings claim in which the City would have to pay non -consenting,
abutting owners damages.
"(A)ppellant, as an abutting landowner with a
property right of ingress and egress, has an
independent right to use Browning Road as a means
of accessing her property. We have held that the
owner of property abutting upon a street has an
easement in such street for the purpose of ingress
and egress which attaches to his property and in
which he has a right of property as fully as in the lot
itself_ Flake v. Thompson, Inc. 249 Ark. 713 460 S.W. 2d
789 (1970). We have also noted that this property right
is not diminished merely because the property owner
has alternative means of ingress and egress." Wright
v. City of Monticello, 345 Ark. 420,47 S.W. 3rd 851, 857.
The Arkansas Court of Appeals has held:
"A city's governing board cannot give away a
city's streets without the consent of abutting
owners or without statutory authority; any
attempt to do so is ultra vires. Freeze v. Jones,
260 Ark. 193, 539 S.W_ 2d 425 (1976)." Holliman
v. Liles, 72 Ark. App. 169,35 S.W. 3rd 369,372
(2000).
3
"A conveyance to the only abutting owner is
• not prohibited. Barbee, v. Carpenter, 223 Ark.
660, 267 S.W. 2d 768. Nor is a vacation of a
• street for the benefit of the abutting owner if
• the street is not needed for corporate purposes."
Freeze v. Tones, 260 Ark. 193, 539 S.W. 2d 425,
• 429 (1976).
The Supreme Court's specific reference to "the street is not
needed for corporate purposes" harkens back to the language of A.C.A
§14-54-104(2) so that statute appears still somewhat available for
vacation of alleys. However, a literal reading of A.C.A. §14-301-301
speaks in all-inclusive terms. "In all cases where the owner of property
__. shall have dedicated ... by platting the property ..., the city or town
council shallhave the power to vacate and abandon the street or alley,
or any portion thereof, by proceeding in the manner set forth in this
subchapter_" (emphasis added)
CONCLUSION
I believe it will be better in the future to use the procedures
outlined in A.C.A. §14-301-301 et. seq. when a property owner seeks a
vacation of a platted street or alley. This procedure (by requiring
consent of all abutting owners) should protect the City from any
takings challenges and potential damages. I would not only follow
A.C.A. §14-301-301, but continue to require utility companies to
consent and include a finding in the ordinance that the street or alley is
not needed for corporate purposes (so we get the benefit of A.C.A. §14-
54-104 (2) if we are ever legally challenged).
"(N)one of the appellants were abutting landowners
to the closed portion of Kemp Road...." Id. at 65
More recently, the Supreme Court has acknowledged that an
owner up the road that was being closed was "an abutting landowner
with a property right of ingress and egress." Wright v. City of
Monticello, supra.
The Court has shown a willingness to extend the definition (and
legal protection) of "abutting owners" beyond that portion of the street
or alley being vacated. `
"In that case, the appellants' property did not
actually touch the portion of the alley the city
• board had closed, but the closing of a part of
the alley adversely affected the use of their
property. The supreme court held that,
because of this adverse effect, the appellants
were abutting property owners whose written
consent was required before the alley could be
closed .... " Holliman v. Liles, 72 Ark. App. 169,
35 S.W. 3m! 369,372 (2000).
In Holliman, the alley was only narrowed by vacating half its
width to the abutting owner. The Supreme Court reversed the
summary judgment for the City (Quitman) by stating that an owner's
ingress and egress does NOT have to be blocked before the owner must
consent to a vacation. The key issue was the extent of adverse affect
the vacation would inflict upon the owner's property. Adverse effect
justified making an owner an "abutting owner" whose written consent
to ,the vacation was required.
FEB-23-2007 FRI 11:56 AM
N. Ul
DATE: 1/29/07
UTILITY APPROVAL FORM
FOR RICHT- OF- WAY, ALLEY, AND
UTILITY EASEMENT VACATIONS
UTILITY COMPANY: Ozarks Electric
APPLICANT NAME: Stan Johnson APPLICANT PHONE: (479) 442-5287
REQUESTED VACATION:
I I Utility Easement
X Right-of-way for alley or streets and all utility easements located within the vacated
right- of- way.
❑ Alley
X Street right-of-way
[have been notified of the petition to vacate the following (alley, easement, right-of-
way), described as follows:
General location / Address (referring to attached document- must be completed**)
Westside of Gregg Ave. between 6fh St. and Prairie St.
s*
(ATTACHlegal description and eraphic representation of what is being vacated
-
SURVEY)
UTILITY COMPANY COMMENTS:
No objections to the vacation(s) described above.
No objections to the vacation(s) described above, provided following described
easements are retained. (State the location, dimensions, and purpose below.)
No objections provided the following conditions are met:
m4 Pte'`
Signature of Utility Company Representative
£jSItr czvtie %e
Title
4794425957
AMERICAN MLLLIN'i UJ
UTILITY APPROVAL FORM
FOR RIGHT- OF- WAY, ALLEY, AND
I rTILITY EASEMF.N1' VACATIONS
nA IT.: fcfo
UTII.TTY COMPANY: ( o C a
APPLICANT NAME: tyre by. :lyrr -GPs � PUCANTPHONE: J)7'
REQUESTED VACATION (applicant mu`scheeck all that apply):
Utility Easement
ORight-of-way for alley or streets and all utility easements located within the vacated right- of- way.
Alley
Street right-of-way
I have been notified of the petition to vacate the following (alley, easement, right+of-o( described as
General location / Address (referring to attached document- must be completed't)
(A7t1CW legal description amid geophic representation of what is being vacated-JYINVE1)
UTILITY COMPANY COMMENTS:
No objections to fire varatinn(s) described ahove-
No objections to the vacation(s) described above, provided following described casements
(State the location, dimensions, and purpose below.)
No objections provided the following conditions arc met
Signahnc of Utility Company Representative
Sc4'tiy�r
Title
/7006
„r.• s
e2Feb.20. 2007: 9:02AM7944FAYSC,CUST SVC AMERICAN MILLING 'V No. 1317
IITIERY APPROVAL. FORM
FOR RIGHT- OF- WAY, ALLEY, AND
UTILITY EASELtNT VACATIONS
DATE:
UTU,ITYC0MPANY!
P N _1 % __ APLICANT PRONE;
APPLICANT NAME twri _ ax vet- iw�¢5�
AFQiIFSTFD VACATION (avrplican( man check aft that agrply)
P. 1I 02
%r.�7
Utility Easement
Right-of-way for alley or streets and all utility casements located within the vacated right- of- way.
Alley
Street right-of-way
I have been notified of the petition to vacate the fallowing (alley, easement, right-of-way), described as
General�location
`I Address (rcfetring to attached document- must be compllleted••)
(
(A7TAt legal description and graphic representation of what is being vacated -SURVEY)
UTILITY COMPANY COMMENTS:
No objections to the vacation(a) dcsodbed above.
No objections to the vacation(s) described above, provided following described easements are
(State the location, dimensions, and purpose below.)
No objections provided the Following conditions arc nsot:
Signature of/tltility Company Representative
Pare $
2-14-O7; 12:53PM;ARKANSAS WESTERN GAS
02/02/2007 14:49 47944r.
;4795828258
AMERICAN MILL? `. 'J
a 3/ 4
PAGE 02
DATE:
UTILITY APPROVAL. FORM
FOR RIGHT- OF- WAY, ALLEY, AND
V1'IL1'1'Y EASEMENT VACATIONS
UTILITY COMPANY: s es3?P' (Vxi S
^� p, <
APPLICANT NAME:. 4\ k d cc " M . � yr r -4.+� %'Fn.O.�sAN APPLICT PHONE: � 7' 1 '
I1LQUESTFD VACATION (applicant mast chat%ate( Mad apply):
UtilityrEascment -
ORight -of -fly for alley or streets and all utility easements located within the vacated right- of- way.
- Alley
Street Tight -of way
I have been notified oldie petition to vacate the foitowiny (alley. easemen4 righl-of-way), described as follo%
General location / Address (referring to attached document- must be completed*)
(A77s W legal description and graphic representation of whet is being vacatedSURVEI9
UTILITYYCCOMPANY COMMENTS
- ✓ 1`to objections to the vacation(s) described above.
No objections to the vacation(s) described above, provided following described easements are
(State the location, dimensions, and purpose below,)
No objections provided the following conditions arc met:
Signature
Rcprcscntativc
2g
s
raMcxttavv
Mlt_L;
A
PAGE
02
UtILITY APPROVAL. FORM
FOR RIGHT- OF- WAY, 4LLEY, AND
UTILITY CASEMENT VACATIONS
DATE: o
UTILITY COMPANY:: S LJ 1a t O 9
APPLICANT NAME: t.� (V� .1 \uet t Tti�. S� APPLICANT PHONEa: 3 O REQUESTED VACATION (applicant mu yt check all that
anplv):
Utility Easement
Right -Of -way for alley or strecta and all utility easements located Within the vacated right- of way.
Alley
Street rirA.ht-of-way
I have been notified of the petition to vacate the following (alley, easement, right-qf way). described as
General location I Address (referring to attached document- must be eotnpletedts)
.. S` co �..1 . Pry: rt '1' U e.. di
1 1f1
(A Tin CH legal de_ccrOt(On and grerphic representation of what it being vacated-SUR 'ET)
UTILITY COMPANY COMMENTS:
Na objecti<..ie t0 the vacation(s) described above.
No objections to the vacation(s) described above, provided following described casements are
(State the location, dimensions, and purpose below,)
No objections provided the following conditions are met:
(P ' tJEE R/2 (AT)L_afl{
KQJTs-L
Signature of Utility Company Represcntadvc
�lPr1RGEi°, EaIC� il�Cl (,ICI
Tide
2006
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03/06/2007 12:40 4794426867 AMERICAN MILLINr-,CO PAGE 02
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9
iaiw A"AQVAL Fom%1
F0* EIGHT.. OF- WAY. ALLEYt AND
Ui7LiTy F,A91?nTYA4`AT[ON$
DATE- 9127/07
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Tide_. .........-- - -.......... . ._._. -- ...
02/28/2007 16:35 FAX 4794443490 COF TRANSPORTATION DIVIS , -..
II
UTILITY APPROVAL FORD(
FOR RIGHT- OF- WAY, ALLEY, AND
TITHdTY EASEMENT VACATIONS
DATE: 2x27/07
UTILITY COMPANY: Tnn fltjonDivision/C' of Fayetteville
APPLICANT NAME: _Burt Box/DTilver Investmentss APPLICANT PHONE: _283-3279
REQUESTED VACATION (applicant must check all that apply): .
0 Utility Easement
JOR7 Right-of-way for alley or streets and all utility easements located within the vacated right- of- way.
O Alley
❑ Street right-of-way
I have been notified of the petition to vacate the following (alley, easement, right-of-way), descrbed as
follows:
General location / Address (referring to attached document- must be completed**)
•*500 W. Prairie
(ATTACH legal Aetcripgaa and graphk represenlWlan of what is being vacated.SURVEP)
��LClY COMPANY COMMENTS:
/)wo objections to the vacations) described above.
• No objections to the vacation(s) described above, provided following described easements are retained (State the location, dimensions, and propose below.)
• No objections provided the following conditions are met
true
�` -- 515Szz7
-'--
02/27/2007 TUE.16:24 FAX 479 444 3478 COF SOLID WASTE & RECYCL
002/002
UTILITY APPROVAL FORM
FOR RIGHT- OF- WAY, ALLEY, AND
UTILITY EASEMENT VACATIONS
DATE: 2/27/07
UTILITY COMPANY: Solid Waste Division of Cityof Fayetteville
APPLICANT NAME: _Burt Box/Milver Investments_ APPLICANT PHONE: _283-3279
REQUESTED VACATION (applicant must check all that apply):
Utility Easement
XX— Right-of-way for alley or streets and all utility easements located within the vacated right- of- way.
Alley
Streetrightof-way
I have been notified of the petition to vacate the following (alley, easement, right-of-way), described as
follows:
General location / Address (referring to attached document- must be completed**)
**500 W. Prairie
(ATTACH legal description and graphic representation of what is being vacated -SURVEY)
&No
UTTILITY COMPANY COMMENTS:
objections to the vacation(s) described above.
• No objections to the vacation(s) described above, provided following described easements are retained.
(State the location, dimensions, and purpose below.)
• No objections provided the following conditions are met
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,(5.16-07) Clarice Pearman -VAC 2519 —
Page 1 j
From: Clarice Pearman
To: Pate, Jeremy
Date: 5.16.07 4:10 PM
Subject: VAC 2519
Jeremy,
The Exhibit A you emailed me is different from the Ex. A in the packet. Whidi one of the two are the correct one?
Thanks.
Carice
(5.18.07 Clarice Pearman - Re: VAC 2519 Page 1
From: Jeremy Pate
To: Pearman, Clarice
Date: 5.18.07 11:10 AM
Subject: Re: VAC 2519
The one in the packet, sorry about that. If you need a clean copy of the PDF, just let me know.
thanks,
Jeremy
>>> Clarice Pearman 5/16/2007 4:10 PM >>>
Jeremy,
The Exhibit A you emailed me is different from the Ex. A in the packet. Which one of the two are the correct one?
Thanks.
Clarice
(5.2307) Clarice Pearman - Ords. 5016, 5017 & 5018 Page 1
From: Clarice Pearman
To: Pate, Jeremy
Date: 5.23.07 1:18 PM
Subject: Ords. 5016, 5017 & 5018
Attachments: 5017 VAC 07-2519.pdf; 5016 RZN 07-2520.pdf; 5018 VAC 07-2573.pdf
CC: Audit; GIS
Jeremy,
Attached are the above ordinances approved by City Council, May 15, 2007. If anything else is need please let me know. Have a
good day.
Thanks.
Clarice
b
NORTHWEST ARKANSAS EDITION
•
Benton County Daily Record
P. O. BOX 1607
FAYETTEVILLE, AR 72702
PHONE: 479-571-6421
AFFIDAVIT OF PUBLICATION
I, Nathan Bogart, do solemnly swear that I am Legal Clerk of the Arkansas
Democrat Gazette newspaper. Printed and published in Benton County
Arkansas, (Lowell) and that from my own personal knowledge and
reference to the files of said publication, the advertisement of:
Ordinance no. 5017
MAY 31, 2007
Was inserted in the Regular Editions:
Publication Charge: $126.60
Subscribed and sworn to before me
This 3 day of , 2007.
Notary Public
My Commissior
Do not pay fror
sent
Thursday, May 31, 2007
IDINANCE APPROVING VAC 07
)BY MILVER INVESTMENTS, LLC
LOCATED AT 500 WEST. PRAIF
ING AN UNCONSTRUCTED RIO
3 THE WEST SIDE OF WEST A\
WAY [ a e evl le
70P-
IEET,
AND ARKANSAS
riNr;
WHEREAS, the City Council has the authority under A.C.A. § 14.54-104 to vacate public grounds
or portions thereof which are not required for corporate purposes', and
WHEREASO-1he City Council has determined that the following described portion of the platted
right-of-way is not required for corporate purposes:
NOW THEREFORE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby vacates and abandons
the following described platted rlght-of-way
See Exhibit -B' attached hereto and made a part hereof..
Section 2: That a copy of this Ord'mance duly certified by the City Clerk along with the map attached
hereto and labeled Exhibit A" shall be filed In the office of the Recorderof the County and record-
ed in the Deed Records of the County -
,
Section 3: That this vacation approval is subject to the Conditions of Approval as follows. and shall
not be in effect until all conditions are met herein.
1. Any relocation of existing utilities shall be at the owner1developer5 expense.
PASSED and APPROVED this 15th day of May. 2007.
APPROVED: - ATTEST.
By: By :_ -
DAN DAN GOODY, Mayor SONDRA E. SMITH, CRT CleMreafuror
Exhibit A is a map and may be viewed in the office of the city clerkAreasurer during normal business
hours.
EXHIBIT'S'
VAC 07-2519
A PART OF LOT NUMBERED THREE (3) IN BLOCK NUMBERED TWENTY-TWO (22) IN FERGU-
SON'S ADDITION TO THE CITY OF FAYETTEVILLE, ARKANSAS. BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS: BEGINNING AT A SET 12' IRON REBAR WHICH IS S00°0512`W
178.00 FEET FROM'THE NORTHEAST CORNER OF SAID LOT THREE (3), SAID POINT BEING
FORTY (40) FEET. WEST OF THE EAST RIGHT OF WAY LINE OF WEST AVENUE; THENCE
S00°0512'W 160.62 FEET TO A SET 1!2' IRON REBAR ON THE NORTH RIGHT OF WAY LINE OF
PRAIRIE STREET; THENCE S89°0820 -W 31.28 FEET ALONG SAID RIGHT OF WAY LINE TO A
POINT ON THE WEST BOUNDARY OF A THIRTY (30) FOOT WIDE PUBLIC RIGHT OF WAY, THENCE
LEAVING THE NORTH RIGHT OF WAY LINE OF PRAIRIE STREET. N16°01'30'W 18843 FEET
ALONG
WHICH S 1 8.00 FEET SOUTHT BOUNDARY OD FHTHE NORT(30) H NE OT F SAIDE BLIC LOTRIGHT OF WAY THEE (3):HENOCE
S89°5919'E 31.21 FEET TO A POINT ON THE EAST BOUNDARY OF SAID THIRTY (30) FOOT WIDE
PUBLIC RIGHT OF WAY: THENCE S16°01'30E 116.60 FEET ALONG THE EAST BOUNDARY OF
SAID THIRTY (30) FOOT WIDE RIGHT OF WAY LINEOF PUBLIC WAY POINT
WEST AVENUE SHOWN AS ON THE PLAT OF FERGUSON'S ADDITION: ST WAY LINE OF WEST
AVENUE TOGA POINT WHICH S 178.00 FEET SOUTH OF°OS'12E 112.08 FEALONG ThE DTHE NORTHRIGHT OF
ThENCE LINE OF SAID LOT THREE
(3); THENCE S89°5919 -E 20.00 FEET TO THE POINT OF BEGINNING, CONTAINING 20 ACRES.
MORE OR LESS, FAYETTEVILLE, WASHINGTON CONTY, ARKANSAS.