HomeMy WebLinkAbout1987-08-06 Letter, City Attorney Alley VacationMEMORANDUM uu�
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TO: Jeanne Mabusth, Bulling i Zoning Adzinistratgg— ....
FROM: KABlatz, City Attorney
RF.: Question of Orono City Staff as to Proposed Combination
of Public and Private Road.
DATE: August 6, 1987
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In a letter dated July 29, 1987, you asked if 33 feet
of undeveloped, dedicated public alley from an established plat
could be combined with 17 feet of proposed private road in a
proposed plat. You stated that vacating the 33 foot alley would
not "provide any advantage to this developer," because once
property is vacated the abutting property owners obtained the
land .p to the center point of the land which was vacated.
I will answer your questions in the order you proposed
in your July 29 letter.
1) Can the 33 feet of the public right -of -say be used
as art of a private roa . A mun cipa ty o►ns cna qua a cies
or terminable fee title to property dedicated to highway
purposes in trust for the people, and it can neither sell nor
devote it to a private use. State v. Marcks 36 4.W.24 549
(1949). After an alley has been dedicate and accepted a
municipality becomes a trustee and may not divest such public
rights without public consent or operation of law. Veill v.
Rake, 93 N.W.2d 821 (1958).
Your first question infers that there is 3 possibility
that the 33 feet of public road can be combined with the 17 feet
of private road. Based upon case law, it appears that the
combination of the two would create an awkward situation at
best, for both the City and the developer.
2) Can the developer exclude the use of roadby land
owners to the East? The operation a plat an the onations
to the public wit in the plat can not ex -:end beyond the use as
dedicated. Patterson v. City of Duluth, 21 Minn. 493 (1875).
The City is Fiofd'ing the an trust for the purposes for which
it was donated. It does not appear that the developer would
have any right to exclude the public from using the 33 feet of
property which was dedicated for alley. Again, referring to the
way you phrase your question, a combination of the two does not
appear to be possible since the 33 feet was dedicated for alley
purposes and the ad,litional 17 feet would be used for road
purposes.
T
The Minnesota Supreme Court in the case of Flynn v.
city of Worthington, 224 N.W. 254 (1929) makes a diSZ notion
between allevs and streets:
Alleys differ from streets. They are not intended
to convenience the public in the way that streets do.
They are more of a local convenience to the parts of
the block which they abut. . . They ire not thought
of as a street connecting with other streets and
supplying the municipality with a system .)f connecting
highways. An alley is not intended for such purpose.
While the public travels it, its use is local to
abutting property. A street is intended for general
public use and the general public have in it an
interest different from that which they have in an
alley. Flynn at 254, 255.
3) Is the city obli ated to maintain the road as a
ublic ad cause o t e use o t e est o ou is
n t-ow�ay roOnce property s dedicated to the public and
accepg ted by the public through the municipality, the City may
choose its own time to occupy and open the right-of-way. State
v. Marcks 36 N.W.2d 594 (1949). once the City has establia'Sea
rlg�T-_way, it must maintain it is it would any other
dedicated public right-of-way within the City.
You have informed this office that the plat containing
the dedicated alley, "Ottoville on Lake Minnetonka" was filed in
the early 1900s. You stated that the City had not maintained
the 33 feet of .alley. Also, you mentioned that a private garage
may be encroaching a portion of the dedicated alley.
Unless the City takes affirmative actions to assert
abandonment of a dedicated right-of-way, non-use and
obstructions over the right-of-way are insufficient to establish
abandonment and public rights cannot be divested without public
consent )r operation of law. Neill v. Hake, 93 14.W.2d 821
(1958).
Although it may not be to the developers benefit, in
order for the 33 feet of dedicated right-of-way to become
private property, the City must vacate the alley per its
procedures as outlined in Orono Municipal Code Section 10.12 and
Minnesota Statutes Section 412.851. Upon vacation, the abutting
property owners would obtain the vacated alley up to the center
line of that former alley. Should the developer to the west own
the property abutting the same .alley, the developer would obtain
an additional 16-1/2 feet to add to his proposed 17 feet of
private road. If not, the developer has the right to approach
the property owners and offer to purchase the vacated alley for
a negotiated price.
3379]
s 10.12
SEC. 10.12. VkCATION OF STREETS, ALLEYS AND PUBLIC GROUNDS.
acation of s s, alleys and public grounds shall follow the
p set forth in this Chapter, except that such vacation
shall require a petition by a majority of the landowners abutting
the property to be vacated, and a hearing preceded by two (2) weeks
published and posted notice, all as required by Minnesota Statutes,
Section 412.851. The Council may vacate any publicly owned utility
easement or boulevard reserve or any portion thereof, which are not
being used for sewer, drainage, electric, telegraph, telephone, gas
and steam purposes or for boulevard reserve purposes, in the same
manner as vacation proceedings are conducted for streets, alleys
and other public ways. A boulevard reserve means an easement
established adjacent to a dedicated street for the purpose of
establishing open space adjacent to the street and whic.� area is
designated on the recorded plat as "boulevard reserve".
Source: City Code
Effective Date: 4-1-84
SEC. 10.13. ENFORCING. In case any building or structure is
erected, constructed, reconstructed, altered, repaired, converted,
or maintained, or any building, structure or land is used in viola-
tion of this Zoning Chapter, the Zoning Administrator, in addition
to other remedies, may institute any proper action or proceedings
in the name of the City, and hereby shall have the powers of a
police officer to prevent such unlawful erection, construction,
reconstruction, alteration, repair, conversion, maintenance, or use
to restrain, correct or abate such violations, to prevent any
illegal act, conduct, business or use in or about said premises.
Source: Ordinance No. 172
Effective Date: 1-1-75
(Sections 10.15 and 10.15 reserved for future expansion.)
ORONO CC 275 (4-1-84)
/ t10ADa. Gcti[aAL noysrors Maio
/ IK2! vA 7ION OF rLKJC WAYS: EFFECT.
Su on I For purposes of this section the term "muntapalny" means
county or town The term '*public way" means am highwa%. road.
street. cartwa%. alley or lane or other pubbcl% owned interest .n real property
which is open to the free passage and use of the public.
Subd 2 In proceedings under statute or charter to %acate a public wa% or
portion thereof. a municipahh may specth the extent to which such %acauon
affects emsting easements therein and the extent to which the vaa.ion affrcts the
.mthont% of any person, corporation or municipality owning or controlling electric
or telephone poles and lines. gas and sewer lines. or water pipes. mains and
hydrants, thereon or thereunder. to continue maintaining the same or to enter
upon such way or portion thereof vacated to maintain. repair. replace. renwve or
otherwise attend thereto.
11blo : 19'1 c 161 s I.Z. 1973 c 123 art ? s
160.291 \1S 195 lRepealed. 1959 c 500 art 6 s 131
I"M 1\FOILMATION SIGNS FOR RESORTS A\'D RECREATIONAL
CAMNG AREA%: DEFINMONS.
Subdivision 1. For the purposes of sec:wns 160 _92 to 160296 the terms
Mined in this section have the meanings given them.
Subd. 2. "Specific service sten" means a rectangular sign panel not greater
than 1-1 2 feet by six feet dsplayng a motel. resort or recreational camping area
business name and. where appropriate. the direction to and distance to the
camping area. motel or resort.
Subd 3 "Specific service sign asscmbh" means a combination of specific
service sign panels not to exceed four panels lo, he placed within the right of way
on appropriate approaches to an intersection.
Subd. 4. -Specific service sign .luster" means a grouping of specific service
sign assemblies not exceeding two in number on appropriate approaches to an
intersection
Subd. 5 ••Yonfreewav tvpe htghwas" means all roadways with crossing
traffic at grade intersections except the roadway mai have an isolated interchange.
Subd. 6. "Rewe" has the meaning given it in section 15701
Subd. \doled" has the meaning given to the word "hotel" in section
15701
Subd 8 **Recreational camping area" has the meaning given it in section
32' 11, subdivision S.
Subd. 9 "Local road" means ani nontrunk highway
Subd. 10 "Speafic service" means motels. resorts or recreational camping
areas that provide sleeping accommodations for the recreational trawler.
Ililasy: 1980 c 113 s 1981 : 55 s I
14SJ93 INTENDED USE.
Subdivision 1, Pupae. Speafic service signs are to be used to create and
implement a %%stem of signing for the purpose of displaying motel. resort and
recreational camping area information to the traveling public on nonfreewar type
trunk highwa%s in rural areas.
Suhd. ' Specil{e service signs on tuiidree"y Iilo ys. A specific serviLe
sign may he erectcd at the intersection of a trunk highwav with a local road. on
bv`pas%es of outstare municipalities. and subject to prior approval of the federal
highwa% administration at the mtetsection of two trunk highways. A specific
412741 STATLIXMV CMIES 1414
the particular fund out of which the same is to he paid. and shall cause a suitable
notation to that effect to he made on each such contract The council ens hs
ordinance make further regulations for the safekeeping and disbursement of the
funds of the cats.
Hialwv: 1949 c I1s? s 90. 19-7 c 117 art 1 s I subd 1
412.751 E54ERGENn DEBT CERTIFICATES.
If in any year the receipts from taxes or other sources should from some
unforeseen cause become insufficient for the ordinary expenses of the can or of
ans calamity or am other public emergencs should subtect the cat% to the necessity
of making extraordman expenditures, the council oras authorize the sale M the
cats treasurer of emergency debt certificates to run not to exceed two yeah and to
bear interest at not more than seven percent per near .A tax sufficient to redeem
all such certificates at matunts shall be levied as pan of the budget for the
following year The authorization of an issue of such emereency debt certificates
shall he ga.en IN% an ordinance approved hs all the members of the council
Nissan : 1949 , 119 s 91. 1974 c .13" s 14
412.761
1Repealed. 1967 c 289 s 181
412.771
[Repealed. 1967 c 189 s 181
412.7.81
[Repealed. 1967 c 289 s 181
412.791
[Repealed. 1967 c 189 s 181
412.1111111
lRel-algid. 1967 c 189 s 181
412.811
[Repealed. 1967 c 289 at 181
412.921
1 Repealed. 1967 c 289 s 181
GENERAL AND %USCELLANEOL'S
412JOI OM(1AL NEWSPAPER.
The council shall. annually at its first meetingg of the sear. designate a legal
newspaper of general circulation in the cats as its officuil newspaper. in ..hich shall
he published such ordinances and other nutters as are required Ir last to he so
published and such other matters as the council may deem it advisable and in the
public interest to have published in this manner.
Mason: 1949 , 119 a 100. 19't c 12J art 1 s I suhd
epealed. 1976 c 44 s 701
412.951 VA TION OF STREETS.
ThSSswdcil may b� resolution sacate am street. alley. public grounds. public
meas. r6 any pan thereof. on its own motion air on petition of a mason" of the
owners of land abutting on the street. alley, public grounds. public was. or part
thereof to he vacated When there has been rats petition. the resolution mai% he
adopted only hs a vote of four-fifths of all members of the council. No such
s acation shall he made unless it appears in the interest of the public to du so after
a hearing preceded bs two weeks' published and posted notice. After a resolution
of vacation is adopted. the clerk shall prepare a notice of comfiknon of the
proceedings which shall contain the name of the cat V. an identification of the
sacation. a statement of the time of completion thereof and a description of the
real estate and lands affected thereby. The notice shall be presented to the coum%
auditor who shall enter the same in his transfer records and note upon the
instrument. mer his official signature. the words "entered in the transfer record"
The notice shall then be filed with the county recorder. Any failure to file the
notice shall not invalidate am such vacation proceedings.
History 1949 c 119 s 101: 1933 c 733 s 11: 1937 c 38.1 s 1. 1967 c 189 s 13.
1969 c g s 85: 1973 c 123 an 2 s I subd 2; 197.1 c 494 s/ 1: 1976 c 181 1 1
4M.I3 tNCIL MAY VACA7E STREETS IN CMF_S OF THE FORIRTl1
� CL
In am an of the fourth class organized under a home rule charter. the
coon i thereof shall have power by a majan;s sote of the council u, vacate am
street or htghwas. or ans pan of ans street or higon hwas therein. upthe petition
of all the owners of lands abutting both sides of the street or highwas. or pan
thereof. pnl+a sed to he vacated wherein one end of the Street or hnghwas. or part
thereof proposed to he vacated dans not connect with am other street or high%&%
Except as herein prostded all other pnantons of the home rule charter shall apph
to and gosern the pnreedirng.
Hislop: 1933 c 94 , I iIs_ I _t
440.1.45 VACATING STREETS, HOME MIT CIIARITR CIT! (* THE
THIRD CLASS.
Subdivision 1. Applieari iia. chis section applies to esers home rule charter
cats of the third cla
Subd C=MOIF saeale; candkimix. In addition to am other metho,1
prmided bs law. the council of such cin upon the pr tion and filing of a
verified petition signed by or on behalf of am owner ural s,r corporate. of am
real estate abutting thereon. mas vacate ams or segment of street o r am
portion of the width thereof within its geogr teal limns. prostded onh that the
street. segment. or portion thereof so vacand pursuant to such portion Shall not he
longer than the distance intervening between am two adjacent intersecting streets
Suhd 3 Certified cop) of retailurkia to be filed. Such action of such cawncil
mas be taken a• am regular or special meeting dul. called for such purpose and
shall he I+s resolution. and a cops of the re-.olution duh certified hs the can clerk
shall he recorded in the office of the counts recorder in the counts where such cit\
is bwaied before the action shall he effectoc
Subd 4 Nat to imerfem with yeciel hrymserrret rs. The sacation or ans
Street or segment thereof under this +tenon shall not destros or interfere with the
right of am person. corporation. or municipalit\ owning or hasmg control of :nt
electnchght or telerhone pole or lines existing upon such street at the time of the
sacation thereof or with an sewer or water pipesnsun, or hsdrants thereon o.
thereunder to enter uptn such street or portion thereof sa—ticd for the purpo,. of
repairing the same or otherwise attending thereto
HWon: 1W9 c L4: 1965 c 43 s <9. 1976 c 44 , 4-. ly'e /,I s -
440.14 C0ITRACTS FOR LIGHT\G STREETS.
In all cores of the first class. the council mas award. enter into. and let
contracts for lighting the cm streets. parks. and other public places. or either or
ans of the same. for ans term not exceeding two years under am one contract. It
Shall not he necessan. before awarding or entering into such contracts. that
prosision M budget appropriations or otherwise shall first have been made to meet
the indebtedness incurred hs these contracts. but provision for meeting the
obligation or indebtedness mai he made after the letting of the contracts
Hlatop: 1911 c 179 s 1 114791
440.15
1Repealed. 1976 c 44 it 701
410.16
Repealed. 1976 c 44 s 701
440.1-
[Repealed. 1976 c 44 it 701
440.19
lRelvaled. 1976 c 44 s 701
440.19
1Repealed. 1976 c 44 s 701
16.17 RATS: COOROINATWS: SURVEYS MIs
provided. that upon the failure of the pmernme ss d% of such statutor% tits oa
muniapaht% and the board of counts commissioners to concunenth approve and
adopt a plat of subdivision within cap days of the time or presentation to each
respective authonts the approval of the board of counts commissonm shall he
final The board of counts commissioners ma% extend the time for concurrent
approsal with respect w individual plats of subdivisions
Himcirr: 19?9 r _a s 1: 19'? i 12? art 4 s 7 !8'4.1 -It
!03.11 APPLICATION: UMITATION.
`nothing in sections ".0# to W.13 shall amend. repeal. tit affect Special
Laws 1889. Chapter 178.
Ivo c
�7the
ATION. application of the owner of land included in am plat. and upon
pro cif that all taxes assessed against such land have been paid. and the notice
hereinafter provided for given. the district court mai vacate or alter all. or am
part, of such plat. and adjudge the title to all streets. alle%s. and public grounds w
be in the persons entitled thereto. but streets or aIle%% connecting separate plats or
Icing between blocks or lots. shall not he %acated between such lots. blocks. or
plats as are not also vacated. unless it appear, that the street or aIle% or pan
thereof sought to be vacated is useless for the purpose for which it was laid out.
The petitioner shall cause two weeks published and posted nonce of such
application oto he given. the last publication to he at least ten da%s before the term
at which it shall he heard: and the petitioner sh..11 ale, serve perxmall%. or cause
to he served personall%. notice of such application. at least ten days before the
term at which the application shall he heard. upon the manor of the at%. the
president of the statutor, at%. or the chairman of the town board of the town
where such land is situated. the court shall hear all persons owning or occupyin
land that would he affected h% the proposed vacation, and if. m the judgment tit
the court. the same would he damaged. the court ma% determine the amount of
such damage and direct it% payment h% the applicant before the %acaucn or
alteration shall take effect. A certified cops of the order of the court shall be filed
with the count% auditor. and recorded h% the count% recorder The district avert
shall not vacate tar alter an% street. alle%. or public ground dedicated to the public
use in or by am such plat in an% at% or town organized under a charter or special
law which provides a method of procedure for the vacation of streets and public
grounds M the municipal authorities of such city or town.
HMwo : RL s3.169. 1909c spots 1. 1917c 38s 1. 1973c 113 art Ss 7:
1976 c 181 s : 18:431
SKIS CERTAIN PLATS VALIDATED.
In all case% where the record owner of real estate in this state has heretofore
conve%ed the same. or am part thereof. h% r%press reference in the instrument of
such come.%ance to a plat of such real estate on file in the office of the count%
recorder in the a ntv in which such real estate is situated. and a plat so referred
to to said come%ance is actuailh of record in such recorder's offi.e at the time
when such conve%ance n made. such record owner and all persom claiming under
%uch record owner. shall he fore%er estopped from questioning the %alidity of such
plat. notwithstanding that at the time of the execution and record thereof, title to
the premises covered thereto, appears of record to have been in the name of a
person other than the per,on who executed such plat as proprietor of the prenuives
covered therebs. and notwithstanding anv irregulaniv or mformalito in the e%ecti-