Advisory Opinion 166

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Parties: South Salt Lake City, Les Olson Company

Issued:  January 15, 2016

 

TOPIC CATEGORIES:

Compliance with Mandatory Land Use Ordinances

Municipalities are afforded broad discretion, pursuant to their legislative authority, to determine whether and to what extent to vacate a public street. Nevertheless, for a street vacation to be valid and final, a City must strictly follow applicable laws and procedures.

The submitted materials do not indicate whether South Salt Lake City completed the steps to formally vacate Eldredge Avenue. If South Salt Lake City completed formal procedures to vacate the entire width of the right-of-way in 2007, then the City must convey the remaining half of Eldredge Avenue to the abutting property owner, Mr. Stillman. If proper procedures were not followed, the City must complete the vacation procedures before any part of the vacation can be considered legal and final.

The South Salt Lake City Council did not and does not have the option to vacate only half of Eldredge Avenue, because the City Code does not allow for the creation of half streets. Thus, if the 2007 action was completed but vacated only half of the street, that vacation violates the local ordinance and was illegal.

  

DISCLAIMER

The Office of the Property Rights Ombudsman makes every effort to ensure that the legal analysis of each Advisory Opinion is based on a correct application of statutes and cases in existence when the Opinion was prepared.  Over time, however, the analysis of an Advisory Opinion may be altered because of statutory changes or new interpretations issued by appellate courts.  Readers should be advised that Advisory Opinions provide general guidance and information on legal protections afforded to private property, but an Opinion should not be considered legal advice. Specific questions should be directed to an attorney to be analyzed according to current laws.

  

Advisory Opinion

 

Advisory Opinion Requested By:                  Les Olson Company

Local Government Entity:                             South Salt Lake City

Applicant for Land Use Approval:                 Les Olson Company

Type of Property:                                          Public Right-of-Way

Date of this Advisory Opinion:                      January 15, 2016

Opinion Authored By:                                   Jordan S. Cullimore

.                                                                    Office of the Property Rights Ombudsman

 

Issue

Is South Salt Lake City obligated to convey half of the land underlying Eldredge Avenue, a public street, to the abutting property owner, Gary Stillman, as a result of the City Council’s 2007 decision to vacate a portion of the street?

 

Summary of Advisory Opinion

Municipalities are afforded broad discretion, pursuant to their legislative authority, to determine whether and to what extent to vacate a public street. Nevertheless, for a street vacation to be valid and final, a City must strictly follow applicable laws and procedures.

The submitted materials do not indicate whether South Salt Lake City completed the steps to formally vacate Eldredge Avenue. If formal procedures to vacate the entire width of the right-of-way were followed and completed in 2007, then the City must convey the remaining half of Eldredge Avenue to the abutting property owner, Mr. Stillman. If proper procedures were not followed, the City must complete the vacation procedures before any part of the vacation can be considered legal and final.

The South Salt Lake City Council did not and does not have the option to vacate only half of Eldredge Avenue, because the City Code does not allow for the creation of half streets. Thus, if the 2007 action was completed but vacated only half of the street, that vacation violates the local ordinance and was illegal. Only the full width vacation is possible.

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Review

A Request for an Advisory Opinion may be filed at any time prior to the rendering of a final decision by a local land use appeal authority under the provisions of  Utah Code § 13-43-205.  An advisory opinion is meant to provide an early review, before any duty to exhaust administrative remedies, of significant land use questions so that those involved in a land use application or other specific land use disputes can have an independent review of an issue. It is hoped that such a review can help the parties avoid litigation, resolve differences in a fair and neutral forum, and understand the relevant law. The decision is not binding, but, as explained at the end of this opinion, may have some effect on the long-term cost of resolving such issues in the courts.

A Request for an Advisory Opinion was received from Benjamin P. Thomas, Attorney for Les Olson Company, on June 22, 2015.  A copy of that request was sent via certified mail to South Salt Lake City, Attn: Craig D. Burton, City Recorder, at 220 East Morris Avenue, South Salt Lake, UT, 84115. According to the return receipt, South Salt Lake City received the Request on June 24, 2015.

 

Evidence

The Ombudsman’s Office reviewed the following relevant documents and information prior to completing this Advisory Opinion:

  1. Request for an Advisory Opinion, with attachments, submitted by Benjamin P. Thomas, Attorney for Les Olson Company, on June 22, 2015.
  2. Response from Jody K. Burnett, Attorney for South Salt Lake City, received August 6, 2015.
  3. Response from Adam C. Dunn, Attorney for the Gary O. Stillman Family Limited Partnership, owner of property on the east side of Eldredge Avenue, received August 6, 2015.
  4. Reply submitted by Mr. Thomas, received August 25, 2015.
  5. Additional reply submitted by Mr. Thomas, received August 31, 2015.
  6. Reply submitted by Mr. Dunn, received September 14, 2015.
  7. South Salt Lake City Code of Ordinances, found at https://www.municode.com/library/ut/south_salt_lake/codes/code_of_ordinances.

 

Background

On June 14, 2007, Les Olson Company (“LOC”) submitted to South Salt Lake City (the “City”) a petition to vacate a portion of Eldredge Avenue, a public street that runs along the western property line of Les Olson Company’s headquarters at 3244 South 300 West in South Salt Lake City. LOC sought vacation of the street to accommodate anticipated growth of its business to the west and north of the existing LOC site. An I-15 improvement project completed prior to the 2002 Salt Lake Winter Olympics acquired approximately 1.5 acres of property that LOC had anticipated using for expansion of the business. This prompted LOC to explore other expansion options, which led to the vacation request. The I-15 expansion project also eliminated access to Eldredge Avenue from 3300 South and turned Eldredge Avenue into a dead-end street terminating at LOC’s parking lot.

After receiving LOC’s petition to vacate, and pursuant to statutory requirements, the City published notice of its intent to hold public hearings to consider LOC’s petition to vacate Eldredge Avenue. The Planning Commission considered the request and recommended to the City Council that the right-of-way be vacated. The City Council subsequently considered the petition and directed City staff to formally initiate procedures to vacate the subject portion of Eldredge Avenue.

The documents submitted by the parties do not definitively outline subsequent steps taken by the City to transfer the property underlying Eldredge Avenue to private ownership. The submitted materials indicate, and a visual inspection of Salt Lake County’s online parcel map confirms, that the eastern half of the subject portion of Eldredge Avenue has been conveyed to LOC while the western half remains designated as public right-of-way.

Recently, Gary Stillman, representative for the Gary O. Stillman Limited Partnership that currently owns the property (“Stillman property”) abutting the western half of Eldredge Avenue, has requested that the vacation process be completed, and that the remaining half of Eldredge Avenue be added to his property. Mr. Stillman did not own the Stillman property when the Council directed staff to move forward with the vacation process, although he was involved in the public meetings as an interested party. At that time, the property was owned by David Anderson, who later sold the property to Mr. Stillman in 2008.

Mr. Stillman’s request is the focus of the present dispute. LOC asserts that the original decision of the City Council in 2007 to vacate a portion of Eldredge Avenue involved only the eastern half of the street, which abutted LOC’s property. LOC argues that the intent of the City Council was to preserve the western half of street as a public thoroughfare. South Salt Lake City and Mr. Stillman assert that the 2007 decision to vacate Eldredge Avenue contemplated vacating the entire width of the street, that Mr. Stillman now has a vested right to the property underlying the subject portion of Eldredge Avenue, and that the City is now obligated to complete the vacation process by deeding the western half of the street to the Stillman property.

 

Analysis

I.     South Salt Lake City Possesses Broad Discretion in Determining Whether, and to What Extent, It Will Vacate Public Streets, as Long as It Follows Applicable Laws and Procedures.

A.     Authority to Vacate a Public Right-of-Way.

“The authority to vacate streets, when exercised in the general public interest, is a legislative power vested in municipal corporations.” Sears v. Ogden City Board of Education, 572 P.2d 1359, 1361 (Utah 1977). When a municipality makes a land use decision pursuant to its legislative authority, a court will uphold the decision as long as the decision is not “arbitrary, capricious, or illegal.” Bradley v. Payson City, 2003 UT 16 ¶ 10, 70 P.3d 47. See also Utah Code Ann. § 10-9a-801(3).

A legislative decision is not arbitrary or capricious “so long as the grounds for the decision are ‘reasonably debatable.’” Id. A decision is proper as long as it “could promote the general welfare; or even if it is reasonably debatable that it is in the interest of the general welfare.” Bradley, 2003 UT 16 ¶ 14, 70 P.3d 47.

This standard is highly deferential to the legislative body making the decision, and “[t]he selection of one method of solving [a] problem in preference to another is entirely within the discretion of the city.” Id. This means that the legislative body has broad discretion in determining whether it is in the public interest to vacate a public right-of-way.

Nevertheless, while discretionary legislative decisions are afforded a great deal of deference, the decision may not be illegal. Standards and rules set forth by applicable law must be followed. A municipality is “bound by the terms and standards of applicable land use ordinances and shall comply with mandatory provisions of those ordinances.” Utah Code Ann. § 10-9a-509(2). If a “decision [or] ordinance…violates a law, statute, or ordinance in effect at the time the decision was made or the ordinance…adopted,” then the decision or ordinance will be deemed illegal. Utah Code Ann. § 10-9a-801(3)(d).

B.     Laws Governing the Formal Vacation Process

The applicable statutory law governing a municipality’s ability to vacate a public street is found in section 72-5-105 of the Utah Transportation Code and section 10-9a-609.5 of the Municipal Land Use, Development, and Management Act. Section 72-5-105 states that a public street once established shall continue to be a public street until formally vacated by “written order, resolution, or ordinance resolution of a highway authority having jurisdiction or by court decree.” Utah Code Ann. § 72-5-105(1). The Utah Supreme Court “has interpreted the language of [section 72-5-105] to require strict compliance with statutory procedures to effect [a]…vacation of a public road by the government.” Fries v. Martin, 2006 UT App 514 ¶ 8, 154 P.3d 184 (quoting Wasatch County v. Okelberry, 2006 UT App 473 ¶ 26, 153 P.3d 745).

To begin the formal vacation process, section 10-9a-609.5 states that a municipality’s legislative body must provide proper notice and hold a public hearing after which it may adopt an ordinance granting a petition to vacate some or all of a public street…if the legislative body finds that: (a) good cause exists for the vacation, and (b) neither the public interest nor any person will be materially injured by the vacation.” Utah Code Ann. § 10-9a-609.5(2)-(3). Upon making such findings and adopting the ordinance vacating “some or all of a public street,” the municipality must record either a plat reflecting the vacation or the text of the ordinance vacating the public street in the applicable county recorder’s office.[1] Utah Code Ann. § 10-9a-609.5(4).

Once a city has completed each of these steps, the public’s interest in the right-of-way is relinquished and the vacated right-of-way returns to private ownership. See Utah Code Ann. § 10-9a-609.5(5)(a). Subsection 72-5-105(2)(a) provides, as a general rule, that “upon the recordation of an order executed by the proper authority with the county recorder’s office, title to the vacated…street…shall vest to the adjoining record owners, with one-half of the width of the…street…assessed to each of the adjoining owners.” Utah Code Ann. § 72-5-105(2)(a). This is known as the center-of-the-highway rule.

The Utah Court of Appeals, in Nelson v. Provo City, explained that “this center-of-the-highway rule has been applied in Utah when a local governmental entity has ‘but a determinable fee and does not own the underlying fee simple.’” Nelson v. Provo City, 2000 UT App 204 ¶ 12, 6 P.3d 567. A municipality typically obtains a determinable fee in a street when the street is accepted by the municipality “pursuant to the final approval of a subdivision plat.” Id. “[W]hen a municipality has a determinable fee[2] in a roadway, common law provides that the limited fee ends when the roadway is vacated,” which results in the “fee reverting to the abutting landowners.” Id.

If the municipality holds the land underlying the street in fee simple absolute, the center-of-the-highway rule does not apply. The municipality may convey that land, after the street is vacated, as it sees fit insofar as it accords with the public interest. See Nelson, 2000 UT App 204 ¶¶ 16-18, 6 P.3d 567. Alternatively, Utah Code subsection 72-5-105(2)(b), states that  if a “description of an owner of record extend[s] into the vacated or abandoned…street…that  portion of the vacated or abandoned …street…shall vest in the record owner, with the remainder of the…street…vested as otherwise provided” in Utah Code subsection 72-5-105(2)(a) outlined above. Utah Code Ann. § 72-5-105(2)(b).

II.   It is Not Clear Whether South Salt Lake City Completed the Street Vacation Process, but Vacating Only Half of the Street Would Have Violated City Ordinances. 

A.     Vacating Eldredge Avenue

The present issues concern whether the City Council intended to vacate all or only half of Eldredge Avenue, and how the underlying land should be allocated between LOC’s property and the Stillman Property.  The parties dispute whether the City Council actually intended to vacate the entire width of the subject portion of Eldredge Avenue when it directed city staff to move forward with the formal vacation process.

Although the parties provided no evidence to show that the required steps to finalize the vacation and transfer of property were completed, sufficient evidence exists in the materials to convince a neutral third party that the City Council intended to vacate the entire width of Eldredge Avenue. The submitted documents indicate that the item for City Council consideration, as identified in the public notices distributed for the public hearings, was whether to vacate “the entire southern portion of Eldredge Avenue.” Accompanying illustrations in the City’s staff report also indicate that the request involved the entire width of the street. Moreover, the submitted transcript of the City Council meeting in which the Council directed staff to move forward with the vacation process provides assurances that the City Council intended to vacate the entire width of Eldredge Avenue, and that representatives of LOC understood the Council’s intent. See submitted Transcript of South Salt Lake City Council Meeting, Sept. 5, 2007, pg. 5, lines 1-23; pg. 11, lines 10-18.

Most convincing of the City’s intent to vacate the entire width, however, is the fact that vacating only half of Eldridge Avenue would have violated the City ordinance, and thus would have been illegal. The Salt Lake City Code does not, and did not at the time the vacation, allow the City Council to create half streets. The City Code’s definition of a half street explicitly states that “half streets are not allowed in South Salt Lake City.” South Salt Lake City Code § 15.12.040 (emphasis added).[3] Since the City is bound to follow its own ordinances, see Utah Code Ann. § 10-9a-509(2), the City did not, and currently does not, have the authority to leave the subject portion of Eldredge Avenue partially vacated.

As has been noted, it is unclear from the materials submitted whether the City took the necessary steps to finalize the formal vacation process. The submitted materials confirm that the land was conveyed to LOC, but the materials do not indicate whether the land was conveyed subsequent to the approval and recordation of an ordinance or plat necessary to complete the statutorily required vacation process.

Determining whether these formal steps were completed is critical. If the formal vacation process described above was never completed, then nothing has been vacated. The entire width of Eldredge Avenue, regardless of current ownership, remains as public right-of-way. See State v. Harvey Real Estate, 2002 UT 107, ¶ 17, 57 P.3d 1088; Fries v. Martin, 2006 UT App 514 ¶ 8, 154 P.3d 184. If this is the case, the current City Council needs to determine, under its legislative authority, whether, and how, to complete the vacation of Eldredge Avenue.

Alternatively, if the formal vacation process was properly followed in 2007, and an ordinance vacating the entire width of Eldredge Avenue was passed and subsequently recorded pursuant to statutory requirements, the City could record a plat reflecting the decision to vacate the entire width of Eldredge Avenue.

If the formal vacation process was only completed for half of Eldredge Avenue, then the decision was illegal. The existing Council must determine how to legalize the decision to vacate. See South Salt Lake City Code § 15.12.040 (defining “half street”).

B.     Proper Allocation of the Property Underlying Eldredge Avenue.

As indicated above, the general rule governing the allocation of property after a street is vacated is that the land is conveyed to the abutting property owners to the centerline of the street. This is the rule applied when the municipality holds a fee simple determinable interest in the dedicated street, which is typically obtained when a subdivision plat dedicating right-of-way is recorded.

The submitted information does not provide details regarding how Eldredge Avenue was created, but it appears from the legal descriptions of the LOC property and the Stillman property that the roads serving the lots were laid out by subdivision plat. If this is the case, then if and when Eldredge Avenue is fully vacated the underlying land should be conveyed to each of the abutting property owners to the centerline of the street in accordance with Utah Code 10-9a-609.5(5)(a).

C.     Material Injury and Impairment of Existing Easements.

In determining whether, and to what extent, Eldredge Avenue should be formally vacated, the City must make its decision subject to requirements in Utah Code subsection 10-9a-609.5, which states that the vacation of a public street may not materially injure any person, Utah Code Ann. § 10-9a-609.5(2)(b), or impair a right-of-way or easement of any lot owner. Utah Code Ann. § 10-9a-609.5(5)(b)(i). The Utah Supreme Court has explained that “an abutting landowner has a private easement of ingress and egress to existing public highways.” Mason v. State, 656 P.2d 465, 468 (Utah 1982). “This private easement of access has been held to survive the…vacation…of [a] public highway.” Id.

The Court in Mason explained that, as a threshold to establishing the existence of such an access easement, an affected landowner must show that the vacation of a street establishes “such a special damage as is different in kind and not merely in degree from that which will be suffered by the general public.” Mason, 656 P.2d at 469. Once such damage is established, the nature and extent of the easement will be determined by the necessity of the easement for ingress and egress to the owner’s property. The landowner does not need to show that there is “no other means of access, only that the alternative access [will impose] measureable hardship that [is] unreasonable under the circumstances.” Id.

This standard comes with the caveat that “an abutting property owner cannot recover damages for deprivation of access to a public way so long as there is some alternative means of access to his property that is ‘adequate and reasonable’.” Id. A property owner “has the right to reasonable access to the public streets, but no property right that his travel from his land to his destination…shall be in the most direct route possible.” Id. Moreover, this right to “preserve the status quo on access to and over abutting highways must be qualified by the public interest in…facilitating the return of land to productive purposes.” Id. Consequently, “the abutting property owner has an easement over the abandoned highway only where (and to the extent that) it is ‘necessary for ingress and egress’ to and from the property under the standard” articulated above. Id.

LOC asserts that if the City vacates the entire width of Eldredge Avenue, LOC will be materially injured because it will lose legal access to its loading docks. Because of this, LOC also asserts that regardless of the City’s actions its lot will nonetheless retain a right to an easement for ingress and egress to the business’s loading docks. This Office lacks authority to determine the existence, nature, and extent of a property owner’s easement interest, but if LOC has no other reasonable means of access to its loading docks, a court could find the existence of an access easement in favor of LOC. Accordingly, it is in the best interest of all parties involved to negotiate an arrangement in which the land underlying the vacated street can be legally conveyed to the abutting property owners, while maintain reasonable and necessary access to all affected properties for current and proposed business operations.

III.       The Ombudsman’s Office Does Not Have Authority to Determine Ownership of the Western Half of Eldredge Avenue.

On August 31, 2015, LOC submitted a copy of a quit claim deed executed on August 26, 2015 by the prior owner of the Stillman Property, David Anderson, granting to LOC his interest, if any, in the subject portion of Eldredge Avenue. Mr. Anderson asserts that when he sold the property to Mr. Stillman in 2008 he was unaware that he was also conveying land underlying the street. Our Office does not have authority to determine what interest Mr. Anderson may still have in the land underlying Eldredge Avenue, but, in the interests of providing a starting point, we would refer the parties to Fenton v. Cedar Lumber & Hardware Co., 404 P.2d 966 (Utah 1965), for guidance. The court in Fenton stated that “a private conveyance of land bounded by or abutting on a highway, the fee to which belongs to the abutting owners, is presumed to convey the fee to the highway to the center line thereof. This presumption is rebutted only by clear evidence that the grantor did not intend to convey his interest in the highway.” Id. at 968.[4]

 

Conclusion

We have not received sufficient information to determine the legal status of Eldredge Avenue. Accordingly, we list here several conclusions that will depend upon which scenario is verified.

If the formal vacation process described above was never completed, then no vacation has taken place, and the entire width of Eldredge Avenue remains a public right-of-way. Strict adherence to the statutory vacation procedures is necessary to vacate a road. If this is the case, the current City Council needs to determine whether, and how, to complete the vacation of Eldredge Avenue. In making that determination, the Council should apply the standard in Utah Code § 10-9a-609.5, that the vacation of a public street may not materially injure any person or impair a right-of-way or easement of any lot owner.

If the formal vacation process was completed in 2007, and an ordinance vacating the entire width[5]of Eldredge Avenue was passed and subsequently recorded pursuant to statutory requirements, then it appears that the City should complete the conveyance of one-half of the width of Eldredge Avenue to Mr. Stillman.

If the formal vacation process was only completed for half of Eldredge Avenue, then the decision was illegal. The City Code does not allow for the creation of half streets. The existing Council must legalize the decision to vacate, and vacate the entire width. See South Salt Lake City Code § 15.12.040 (defining “half street”).

 

 

Brent N. Bateman, Lead Attorney

Office of the Property Rights Ombudsman

 

NOTE:

This is an advisory opinion as defined in § 13-43-205 of the Utah Code.  It does not constitute legal advice, and is not to be construed as reflecting the opinions or policy of the State of Utah or the Department of Commerce.  The opinions expressed are arrived at based on a summary review of the factual situation involved in this specific matter, and may or may not reflect the opinion that might be expressed in another matter where the facts and circumstances are different or where the relevant law may have changed. 

While the author is an attorney and has prepared this opinion in light of his understanding of the relevant law, he does not represent anyone involved in this matter.  Anyone with an interest in these issues who must protect that interest should seek the advice of his or her own legal counsel and not rely on this document as a definitive statement of how to protect or advance his interest. 

An advisory opinion issued by the Office of the Property Rights Ombudsman is not binding on any party to a dispute involving land use law.  If the same issue that is the subject of an advisory opinion is listed as a cause of action in litigation, and that cause of action is litigated on the same facts and circumstances and is resolved consistent with the advisory opinion, the substantially prevailing party on that cause of action may collect reasonable attorney fees and court costs pertaining to the development of that cause of action from the date of the delivery of the advisory opinion to the date of the court’s resolution.

Evidence of a review by the Office of the Property Rights Ombudsman and the opinions, writings, findings, and determinations of the Office of the Property Rights Ombudsman are not admissible as evidence in a judicial action, except in small claims court, a judicial review of arbitration, or in determining costs and legal fees as explained above.

The Advisory Opinion process is an alternative dispute resolution process. Advisory Opinions are intended to assist parties to resolve disputes and avoid litigation. All of the statutory procedures in place for Advisory Opinions, as well as the internal policies of the Office of the Property Rights Ombudsman, are designed to maximize the opportunity to resolve disputes in a friendly and mutually beneficial manner. The Advisory Opinion attorney fees provisions, found in Utah Code § 13-43-206, are also designed to encourage dispute resolution. By statute they are awarded in very narrow circumstances, and even if those circumstances are met, the judge maintains discretion regarding whether to award them.

 

 

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Endnotes

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[1] See also Utah Code Ann. § 72-5-105(1), which reiterates that, to be effective, the order, resolution, ordinance, or court decree must be “recorded in the office of the recorder of the county…where the street…is located.” Utah Code Ann. § 72-5-105(1).

[2] “[A] fee simple determinable expires automatically on the occurrence of a stated event.” Nelson v. Provo City, 2000 UT App 204 ¶ 12, 6 P.3d 567.

[3]  Section 15.12.040 of the South Salt Lake City Code defines a “half street” as “the portion of a street within a development comprising at least one-half of the minimum required right-of-way on which improvements are constructed and in accord with one-half of an approved typical street section.”

[4] See also Utah Code Ann. § 72-5-103(3) (“A transfer of land bounded by a highway on a right-of-way for which the public has only an easement passes the title of the person whose estate is transferred to the middle of the highway.”)

[5] The intent to vacate the entire width of the road appears in the documents provided to be most likely.