HomeMy WebLinkAbout1995-037 Vacation - portion unnamed alley ORDINANCE NO. 95- 37
AN ORDINANCE vacating an alley right -of -way between 5507 and 5513
Englewood Hill Drive.
WHEREAS, Charles and Karen Bohlke and Katherine Carpenter have, under City of
Yakima Department of Community and Economic Development file UAZO R/W Vac #4-
94, duly petitioned for vacation of an alley right -of -way between 5507 and 5513
Englewood Hill Drive; and
WHEREAS, the Council of the City of Yakima finds that the alley right -of -way
proposed to be vacated provides no benefit to the public; and
WHEREAS, the Council of the City of Yakima finds that the proposed alley right -of-
way vacation does not deprive any property of sole access; and
WHEREAS, the Council of the City of Yakima finds that the subject alley right -of -way
is not essential to other City plans; and
WHEREAS, the Council of the City of Yakima finds that the proposed alley vacation is
consistent with other plans and policies of the City; and
WHEREAS, the Council of the City of Yakima finds, based on zoning, current use and
long range plans, that the proposed alley right -of -way vacation is compatible with
existing and anticipated development in the area, and
0 WHEREAS, the Council of the City of Yakima finds that the proposed alley right -of-
way vacation does not affect existing or future public utilities; and
WHEREAS, the Council of the City of Yakima finds that the proposed alley right -of-
way vacation is consistent with the requirements of chapter 35 79 RCW and City of
Yakima Ordinance No. D- 5630; and
WHEREAS, the City of Yakima Hearing Examiner, after conducting a duly convened
public hearing and considering the contents of the file and statements of interested
persons at the public hearing, has recommended that the proposed alley right -of-
way vacation be granted, and
WHEREAS, no public purpose would be served by retaining the subject alley right -of-
way and it is in the best interests of the City and its people to grant the petition,
subject to the condition that the applicants and their successors in interest not
interfere with a utility easement in favor of Cascade Natural Gas recommended by the
Hearing Examiner, now therefore
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF YAKIMA, WASHINGTON:
Section 1. The Yakima City Council hereby adopts and incorporates herein by refer-
ence the Findings and Conclusions of the Hearing Examiner's Amended
Recommendation, Examiner's No. I948 -12, City No UAZO R/W #4-94, issued June 15,
1995 (but incorrectly dated June 15, 1994), a true copy of which is attached hereto as
iip Exhibit A. Furthermore, City Council also hereby adopts and incorporates herein by
reference the Findings and Conclusions of the Hearing Examiner's Recommendation,
lap /land use /street vacation/bohlke- carpenter ord 7/21/95 1 12 PM
ORDINANCE: BOHLKE/CARPENTER — ALLEY RIGHT -OF -WAY VACATION
UAZO R/W VAC #4-94 — Page 1
Examiner's No. I94 -8 -12, City No. UAZO R/W #4 -94, issued December 5, 1994, a true
copy of which is attached hereto as Exhibit B, except insofar as such Findings and
Conclusions may conflict with the Hearing Examiner's Amended Recommendation, in
which event the Findings and Conclusions of the Amended Recommendation prevail.
Section 2. The City of Yakima alley right -of -way over the following described real
property (hereafter the "Subject Property").
The west eighteen feet of the real property described as follows:
Parcel A.
Lot 2, Englewood Hill, recorded in Volume "P" of Plats, page 40, records of
Yakima County, Washington.
Assessor's Parcel No. 181316 - 43415 -6
Parcel B:
Lot 3, Englewood Hill, recorded in Volume "P" of Plats, page 40, records of
Yakima County, Washington.
Assessor's Parcel No. 181316 - 43416 -4
shall be vacated upon satisfaction of the condition precedent set forth in Section 3
below
Section 3. This right -of -way vacation is expressly made subject to the condition pre-
cedent that the applicants and their successors in interest not interfere with the
utility easement in favor of Cascade Natural Gas over the Subject Property In the
event the foregoing condition precedent is not satisfied, then this ordinance shall be
deemed to have no legal force and effect, and the right -of -way vacation provided for
herein shall not be effective.
Section 4 This ordinance shall be in full force and effect 30 days after its passage,
approval, and publication as provided by law and by the City Charter
PASSED BY THE CITY COUNCIL, at a regular meeting and signed and approved
this day of 5�� , 1995
Mayor
ATTEST
City Clerk
Publication Date: `7- a9, -O\5
Effective Date: 9 - - ° •
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ORDINANCE BOHLKE/CARPENTER — ALLEY RIGHT -OF -WAY VACATION
UAZO R/W VAC #4-94 — Page 2
ISSUED: JUNE 15, 1994
Application to Vacate ) EXAMINER'S AMENDED
RECOMMENDATION
Right -of -Way by )
) CITY NO. UAZO R/W VAC #4 -94
BOHLKE AND CARPENTER )
) Examiner No. 194 -8 -12
in the 5500 Block of )
Englewood Hill Drive )
1. - PROCEDURAL BACKGROUND. I filed a Recommendation to deny
vacating the alley, dated December 5, 1994. Subsequent to that
time the attorneys for the various property owners have resolved
their issues concerning access and entered into a settlement
agreement executed during March, 1995. The settlement agreement
and joint letter addressed to me from the attorneys is attached as
Exhibit "A" to this Amended Recommendation and incorporated by
reference. In response to that settlement agreement, I wrote
counsel indicating that the second or rear Bohlke parcel also needs
an access easement, as does the Carpenter parcel. Those access
issues have been resolved by execution of easement deeds. Exhibit
"B" hereto deals with the Carpenter access. Exhibit "C" attached
hereto deals with the Bohlke access.
The basis for the prior recommendation for denial was due
to the unresolved access issues reflected in the original
recommendation. Those issues have now been resolved.
2. ACCESS. The original recommendation, paragraph 7.2, is
no longer valid. All parcels now have access as a result of the
settlement agreement and easement deeds.
3. PUBLIC BENEFIT. With the access issues resolved, there
is no remaining public benefit in keeping the alley.
From the foregoing findings, the Examiner makes the
following:
EXAMINER'S AMENDED RECOMMENDATION - 1
HEARING EXAMINER
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ORDINANCE BOHLKE/CARPENTER - ALLEY RIGHT -OF -WAY VACATION CITY POOS O CO UN OF OX a `"tA
UAZO R/W VAC #4-94 - Exhibit A YAKMA. WASHINGTON 98907
MO9) 248 -0706
I
CONCLUSIONS
'o
(The following conclusions and recommendation replace in their
entirety the conclusions and recommendation contained in the prior
decision dated December 5, 1994).
1. The Examiner has jurisdiction.
2. All notice provisions have been complied with.
3. As a result of the execution of appropriate access and
settlement agreements, vacation of this right -of -way is consistent
with RCW 35.79 and Yakima City Ordinance No. D -5630.
Based upon the foregoing findings and conclusions, the
Examiner submits to the Yakima City Council the following:
RECOMMENDATION
Vacate the alley right -of -way, subject to maintaining a
utility easement for Cascade Natural Gas.
DATED this 15th day of June, 1995.
0-c,..144
PHILIP A. LAMB
Hearing Examiner
EXAMINER'S AMENDED RECOMMENDATION - 2
HEARING EXAMINE
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ORDINANCE BOHLKE/CARPENTER - ALLEY RIGHT -OF -WAY VACATION CITY AND COUNTY OF YAKMA
POST OFFICE BOX 4
UAZO R/W VAC #4-94 - Exhibit A YAKMA. WASHINGTON 98907
(509) 248 -0706
411 ISSUED: DECEMBER 5, 1994
Application to Vacate ) EXAMINER'S RECOMMENDATION
Right -of -Way by )
CITY NO. UAZO R/W VAC #4 -94
BOHLKE AND CARPENTER )
) Examiner No. I94 -8 -12
in the 5500 Block of )
Englewood Hill Drive )
The Examiner conducted a public hearing on July 14, 1994. The
staff report presented by Bruce Benson recommended approval of the
right -of -way vacation. Attorney Jerry Aiken represented the
applicants. Attorney Max Vincent represented adjacent property
owners who are opposed, specifically the Merriman, Kerns, and
Gilbert families. The Examiner inspected the property prior to the
hearing.
1111 SUMMARY OF RECOMMENDATION.
From the view of the site, the matters contained in the
official record, including the staff report, a review of both the -
Yakima Urban Area Comprehensive Plan and the Yakima Urban Area
Zoning Ordinance, and from evidence received at the hearing, the
Examiner makes the following:
FINDINGS
1. Applicants. Charles and Karen Bohlke and Katharine
Carpenter.
2. Location. This is an alley which lies directly west of
lot 2 and lot 3, Assessor's parcel numbers 181316- 43415 -6, and
181316- 43416 -4. (The Bohlke property at 5507 Englewood Hill
Drive). Mrs. Katharine Carpenter lives directly west of the
Bohlke's at 5513 Englewood Hill Drive. What appears as a private
driveway between the Bohlkes and Carpenters is the alley in
• question. It extends from Englewood Hill Drive to the canal. The
EXAMINER'S RECOMMENDATION - 1
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ORDINANCE BOHLKE/CARPENTER - ALLEY RIGHT -OF -WAY VACATION FOR THE
CITY AND COUNTY OF YA PA*
UAZO R/W VAC #4 -94 - EXHIBIT B POST OFFICE BOX4
YAKMA. WASHINGTON 98907
(509) 248 -0706
northern terminus of the alley apparently terminates at, the south
side of the canal right -of -way, which has since been abandoned.
Due to the release of the right -of -way by the canal company, it is
possible that the alley right -of -way now terminates at the midline
of the former canal right -of -way. The legal description is set
forth in the application and adopted by reference.
3. Application. Vacation of public right -of -way.
4. Current Zoning and Use. Everything in the area is zoned
single - family residential (R -1). East and West of the alley the
property is built out with single family homes. North of the
alley, across the abandoned canal, is the recently removed orchard
which has been recently short platted for single family homes. The
single family homes have not yet been built.
5. Factual Background. Nobody cared whether this was an
alley or not until Bob Lynch sold his orchard to some of his
neighbors. The Gilberts, Kerns, and Merrimans applied to the city
for a short plat of the orchard. Their objective was to create
four single family residential lots. Apparently all three families
contemplate building on the lots, and selling the fourth lot. •
Things started heating up when preliminary short plat No.
2 -94 indicated that the alley would be the sole access for one of
the lots. The City said no, and approved the short plat on
condition that Marilane provide access to all four lots. Marilane
is a dead end public road located west of the short plat site. The
short plat, with primary access from Marilane, was approved by the
City. The plat makes no reference to the alley, except to show it
as terminating on or near the boundary line of lot 4 of the new
plat.
The original Lynch property consisted of three parcels,
including the Lynch orchard, homestead, and a small defunct
warehouse in the southeast corner. The warehouse property was its
own parcel, and apparently was landlocked in terms of having access
to a public right -of -way.
A Short Subdivision Exemption (SSE) was processed prior to the
plat. The resulting boundary reconfiguration enlarged the •
EXAMINER'S RECOMMENDATION - 2
HEARING EXAMINER
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ORDINANCE BOHLKE/CARPENTER -- ALLEY RIGHT -OF -WAY VACATION cmE �z BOX UAZO R/W VAC #4-94 - EXHIBIT B YAK
IAA. WASHINGTON 98907
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warehouse parcel to become the easterly most parcel, adjacent to
the current Gilbert residence. It still did not have access to a
public right -of -way. The Lynch homestead became its own parcel,
and the remaining orchard became the third parcel which was then
short platted into four lots. Neither the short subdivision
exemption, realigning the original parcel boundaries, nor the short
plat dealt with the alley issue.
Concern about potential expansion of the use of the alley by
future occupants of the short plat lots generated this vacation
petition. Cragg Gilbert is concerned that if the alley is vacated
he will lose his access rights to the warehouse parcel. Based on
hearing testimony, the Kerns, owners of new short plat lot 3, and
perhaps the Merrimans, owners of new short plat lot 2, are
concerned that if the alley is vacated they will not be able to use
it for occasional refuse removal, such as yard clippings. Their
intention is to utilize the abandoned Tieton canal right -of -way to
access the alley.
The Tieton canal right -of -way was abandoned when the canal was
4111 pressurized. Apparently the effect of that abandonment is to
revert the property lines to the centerline of the canal.
The alley was created by the Englewood Hill long plat on
August 10, 1953. It created a 20 foot alley running from Englewood
Hill Drive to the canal. The Bohlke lots on the west side of the
alley were also created as part of that plat. Lot 2 is the
northerly lot next to the canal. Lot 3 borders both the alley and
Englewood Avenue. The alley was clearly needed to serve lot 2,
since it had no other public access. The alley was created
completely from Englewood Hill plat, which did not involve the
Carpenter property to the west. As a result, under Washington law,
if vacated the alley right -of -way will revert completely to the
Bohlke properties. Any right that the Carpenter lot has to use
that alley for access will be eliminated, absent private
arrangements to the contrary.
Although there was an indication during the hearing that the
lb two Bohlke lots had been merged, apparently they have only been
EXAMINER'S RECOMMENDATION - 3
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ORDINANCE BOHLKE/CARPENTER - ALLEY RIGHT -OF -WAY VACATION cm AND COUNTY of YAKMA
UAZO R/W VAC #4 -94 - EXHIBIT B POST OFFICE BOX 4
YAKIMA. WASHINGTON 98907
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merged as a practical reality. The Yakima County Assessor's
records, as of late November, 1994, reflected the continued
existence of two separate tax parcels, lots 2 and 3, with no
pending application to merge them into one parcel.
As it currently stands, therefore, if the alley were vacated
lot 2 would be landlocked, and the Carpenter lot would lose any
right of access to the alley. The Carpenter property relies upon
the alley as its driveway. Both of these issues could be resolved
by the Bohlke's and Mrs. Carpenter by Bohlke's merging their two
lots into one, and extending the Carpenter lot an access easement
from Englewood Hill Drive.
The warehouse property has utilized this alley for occasional
access for decades. The origin of that use predates the 1953
Englewood Hill plat. When Lynch's bought the property in 1968 from
Yeaman, that November 12, 1968 deed referred to an easement for
road purposes as now located near the west line of Tract 46 from
the south line of said premises to Englewood Avenue. This 1968
Yeaman deed apparently relates to an October 22, 1945 Warranty Deed
running from Frank and Florence Erbland to Rodney and Veronica
Dunning, Auditor's File No. 1102758. The microfiche reproduction
of this deed is nearly impossible to read. However, it conveys a
portion of Tract 47 subject to an access easement. As best as can
be made out, the second to last paragraph of page 1 contains an
exception concerning among other things an easement for road
purposes "... along and over that certain private road now leading
from the bridge across said Tieton Canal Lateral to the fruit
warehouse upon said one -third acre tract, which warehouse is the
property of said grantors; ... ".
This document was unearthed by the Examiner after the hearing,
and is attached, as best it can be reproduced, as Exhibit "A" to
this recommendation. The warehouse parcel, prior to the SSE, was
.33 acre according to the plat maps. _
The private road, at least in 1945, apparently went across
what is now lot 4 of the new short plat, and across the canal
bridge. At that point there was apparently no need to extend the 1110
EXAMINER'S RECOMMENDATION - 4
HEARING EXAMINER
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ORDINANCE BOHLKE/CARPENTER - ALLEY RIGHT -OF -WAY VACATION Cm AND COUNTY OF YAKMA
UAZO R/W VAC #4 -94 - EXHIBIT B POST OFFICE BOX 4
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III private road any further, which assumes the existence of some other
established access running from Englewood Hill Drive to the canal.
The nature of that access has not been determined. Whether the
alley right -of -way that was created in the 1953 plat supersedes any
original access rights is undetermined. At this point, it is clear
that the warehouse parcel has an access right across lot 4, and
across the canal connecting to the alley. It is also clear that
_the warehouse parcel does not connect with Ramona Drive, a public
right -of -way near the north end of the reconfigured warehouse
parcel.
For purposes of this recommendation, lot 4 is deemed to
connect to this alley, notwithstanding the confusion as to whether
the alley extends to the centerline of the Tieton canal right -of-
way or not. At this point, the alley therefore services the
warehouse property, lot 4, the two Bohlke parcels, and the
Carpenter parcel. Vacation of the alley under the current facts
would landlock the warehouse parcel, Bohlke's lot 2, and eliminate
Mrs. Carpenter's current driveway access. Her lot would continue
III to have frontage on Englewood, but the terrain is not conducive to
reconfiguring the driveway.
Lots 1, 2 and 3 of the short plat do not connect to the alley,
and have no right to traverse lot 4 to get to the alley. If an
easement across lot 4 and /or across lot 3 were created by those lot
owners, then parcels 2 and 3 would have the right to get to and
thus use the alley.
If the alley were vacated, the Gilbert parcel would be
landlocked unless the nature of the original access right to
Englewood Hill Drive could be identified and resurrected.
6. Public Use of the Right- of -Way. Public use of the right -
of -way, and the access of adjacent land owners to the right -of -way,
has been identified in Section 5 above.
7. Criteria for Right -of -Way Vacation. City policy
identifies five criteria for consideration. Each of the criteria
have in effect been reviewed above, but conclusions concerning the
41111 various criteria are set forth below.
EXAMINER S RECOMMENDATION - 5
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ORDINANCE: BOHLKE/CARPENTER - ALLEY RIGHT -OF -WAY VACATION C AND CO iNTY OF YNCItA
UAZO R/W VAC #4 -94 - E(HIBIT B POST OFFICE eoX 4
YAKMA. WASHINGTON 98907
1509) 248 -0706
1
7.1 Public Benefit. The public which is benefitted from
this alley is essentially limited to the adjacent landowners.
There is also a general benefit to the city in maintaining access
to all parcels, including fire protection and emergency vehicle
access. Vacating the alley does not significantly benefit the
public, and creates a quagmire of private access issues as outlined
above. From a municipal liability standpoint, the city would be
better off without the alley, but the fact is that it exists, that
it is an historical anomaly, and that its vacation creates more
problems than it solves.
7.2 Denial of Access. The access issues are outlined
above. One way this could be vacated without eliminating access is
if the Gilbert warehouse parcel were merged with the Gilbert
residential parcel; the two Bohlke parcels were merged, and the
Bohlke parcels gave an access easement to the Carpenter parcel.
Neither this Examiner nor the City of Yakima has jurisdiction
over these private legal issues.
7.3 Consistency with Transportation Plans. This alley •
has nothing to do with any transportation plans.
7.4 Consistency with Existing and Anticipated
Development and Zoning. The short plat results in the final
division of the orchard. The Gilbert warehouse parcel is not part
of the short plat and apparently could be built with a house
utilizing the alley as its primary access. As a practical matter,
any house on that parcel will probably gain access to Ramona Drive
on the north by virtue of creating an access easement over the
adjacent Gilbert or Lynch parcels. Lot 4 is required by the short
plat to have its primary access off Marilane. No easements are
created in the plat giving lots 2 or 3 access to the alley,
although that could be done by recorded alley access agreements
created in the future, burdening lot 4, and lot 3 with respect to
lot 2. This alley is an historical anomaly which has developed
into a neighborhood quagmire. Its vacation is not beneficial to
the city, and in fact would require private contractual resolution
of existing access rights. 41111
EXAMINER'S RECOMMENDATION - 6
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ORDINANCE BOHLKE/CARPENTER - ALLEY RIGHT -OF -WAY VACATION FOR THE
CRY AND COUNTY OF YAKMA
UAZO R/W VAC #4 -94 - EXHIBIT B POST OFFICE BOX 4
YAK MA. WASHNGTON 9890
(509) 248 -0706
t4
III/ The alley has not been a surprise to anyone. The history
concerning the alley is a matter of public record. The individuals
who purchased the property from Mr. and Mrs. Lynch, as well as the
Carpenters and the Bohlkes, have all had an opportunity to deal
with all of these issues during the platting process.
Unfortunately, neither the individuals nor the city dealt with the
impact of the alley on the final short plat. The city clearly made
the right decision to require primary access to all lots off
Marilane. It is clear from hearing testimony, however, that some
of the individuals involved in the orchard purchase assumed,
without appropriate foundation, that they would automatically be
entitled to access the alley from their lot. That is not the case.
Furthermore, there is no evidence in the record concerning the
available building envelope on lot 4 after taking account of the
access right to the warehouse parcel. That is an issue which
should have been dealt with in the plat process too, but was not.
Another issue which was not dealt with in the SSE was whether
III dramatically expanding the size of the warehouse parcel, originally
one -third of an acre, entitled the remainder of the new parcel
created by the SSE to also utilize the warehouse access easement.
Presumably the easement was created for an intended use dealing
with orchard warehouse activities, and has been used for that
purpose for a number of years. Whether it was created with the
intention to be used for a residence for a parcel several times
larger than the original parcel is something which fortunately
neither this Examiner nor the City Council has to decide. In any
event, the use of SSE's to gerrymander parcel lines, without close
consideration of access issues, should be of concern to the city.
7.5 Relocation of Utilities. A Cascade Gas utility
easement would have to be maintained if the vacation were granted.
8. Compensation. Compensation is not an issue.
9. Environmental Review. Street vacations are categorically
exempt from State Environmental Policy Act review pursuant to YMC
Chapter 6.88.
•
EXAMINER'S RECOMMENDATION - 7
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ORDINANCE BOHLKE/CARPENTER - ALLEY RIGHT -OF -WAY VACATION FOR THE
CITY AND COUNTY OF YAKMA
UAZO R/W VAC #4-94 - EXHIBIT B POST OFFICE BOX 4
YAKMA. WASHINGTON 98907
(509) 248 -0706
10. Public Notice. Public notice of the hearing was provided
•
in accordance with the ordinance.
From the foregoing Findings, the Examiner makes the following:
CONCLUSIONS
1. The Examiner has jurisdiction.
2. All notice provisions have been complied with.
3. Vacation of this right -of -way is not consistent with
RCW Chapter 35.79 and Yakima City Ordinance No. D -5630.
Based upon the foregoing Findings and Conclusions, the
Examiner submits to the Yakima City Council the following:
RECOMMENDATION
Deny vacation of the alley right -of -way.
III
tt....,
DATED this 5th day of December, 19 .
LA k 71.-,-,A---
PHILIP A. LAMB
Hearing Examiner
•
EXAMINER'S RECOMMENDATION - 8
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OR THE
ORDINANCE: BOHLKE/CARPENTER — ALLEY RIGHT -OF -WAY VACATION C D P O F Y M A
UAZO R/W VAC #4 -94 — EXHIBIT B POST OFFICE BOX 4
YAKIMA. WASHINGTON 98907
(509) 248 -0706