HomeMy WebLinkAbout2001-023 Mavis Avenue & Knobel Street Right-of-Way Vacation (Living Care Centers) ORDINANCE NO. 2001- 23
AN ORDINANCE vacating portions of Mavis Avenue and Knobel Street.
WHEREAS, Ankrom Moisan Associated Architects on behalf of Living Care Centers,
Inc. (hereafter referred to as the "Petitioner") has, pursuant to chapter 35.79 RCW
and by Petition No. 00 -04, under City of Yakima Department of Community and
Economic Development ( "DCED ") file UAZO R/W Vac #01 -00, petitioned for
vacation of portions of Mavis Avenue and Knobel Street as described in the Exhibit
A attached hereto; and
WHEREAS, the City of Yakima Hearing Examiner, after conducting public hearings
on September 14, 2000, and after considering the contents of the file and statements
of interested persons at the public hearing, issued his Examiner's Recommendation
(Examiner No. IY00 -8 -21) dated September 21, 2001, and recommended approval of
the requested right -of -way vacation subject relocation of all existing utilities at
Petitioner's expense and also subject to payment of compensation of $74,500.00 to the
City prior to or concurrent with execution of the vacation ordinance; and,
WHEREAS, the City Council considered the requested right -of -way vacation and
the Hearing Examiner's Recommendation at regular public meetings on November
7, 2000 and May 1, 2001; and
WHEREAS, after considering the Hearing Examiner's Recommendation, the
contents of the file, and the statements of interested persons, the City Council finds
with respect to the requested right -of -way vacation that:
1. Vacation of the right -of -way will not deprive any property of sole access;
and
2. The right-of-way proposed to be vacated is not essential to other City
plans; and
3. The proposed right -of -way vacation is consistent with other plans and
policies of the City; and
4. Based on zoning, current use and long -range plans, the proposed right -of-
way vacation is compatible with existing and anticipated development in
the area; and
5. The proposed right-of-way vacation does not adversely affect existing or
future public utilities; and
6. The proposed right -of -way vacation is consistent with the requirements of
chapter 35.79 RCW and with City of Yakima Ordinance No. D -5630; and
C: \WINDOWS \TEMP \ord row vac 5- 10.doc, May 10, 2001, 5:19 PM
Living Care Centers
Mavis Avenue and Knobel Street
Right of Way Vacation Ordinance Page 1
WHEREAS, the City Council considered the recommended compensation of $74,500
and determined that compensation of $22,500 is appropriate in this case; and
WHEREAS, no public purpose would be served by retaining the subject right -of-
way and it is in the best interests of the City and its people to grant the petition;
now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF YAKIMA,
WASHINGTON:
Section 1. The Yakima City Council adopts and incorporates by reference the
Findings and Conclusions of the Hearing Examiner's Recommendations, Examiner
No. IU00 -8 -21, City No. UAZO R/W Vac #01 -00, dated September 21, 2000 and the
Amended Hearing Examiner's Recommendation, Examiner No. IU00 -8 -21, City
No. UAZO R/W Vac #01 -00 dated February 22, 2001, which are incorporated by
reference, except that the amount of compensation that shall be required is $22,500
paid to the City prior to or concurrent with execution of this ordinance.
Section 2. The City of Yakima vacates its right -of -way interest over the following
real property described in Exhibit A (hereafter the "Subject Right-of-Way").
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. The clerk of
the City Council shall record a certified copy of this ordinance in the office of the
Yakima County Auditor.
PASSED BY THE CITY COUNCIL, at a regular meeting and signed and approved
this J.5 of May 2001.
4,7 /9
ff� Mary Place, Mayor
ATTEST:
City Clerk
Publication Date: 1
Effective Date: Co —1 c00
C: \WINDOWS \TEMP \ord row vac 5- 10.doc, May 10, 2001, 5:19 PM
Living Care Centers
Mavis Avenue and Knobel Street
Right of Way Vacation Ordinance Page 2
LIVING CARE CENTERS
Mavis Avenue and Knobel Street Right-of-Way Vacation Ordinance
LEGAL DESCRIPTION:
Parcel A (Mavis Avenue) All of Mavis Avenue as shown on
the Plat of Mollett's Addition as recorded in volume "G" of
Plats, page 2, records of Yakima County, Washington,
Except that portion lying within the West 50 feet of the SW
1 /4 of the NE 1 /4 of Section 22, Township 13 North, Range 18
EWM.
Parcel B (Knobel Street) Beginning at the NW corner of Lot 10
of Crescent Hill Homes as recorded in Volume. "J" of Plats,
page 29, records of Yakima County, Washington; thence
North along the West line of said Lot 10 extended, 40 feet to
the South line of Lot 16 of said plat; thence East along the
South line of Lots 16, 17 and 18 of said plat to the SE corner
of said Lot 18; thence South along the East line of said Lot
18 extended, 40 feet to the North line of Lot 8 of said plat;
thence West along the North line of Lots 8, 9 and 10 of said
plat to point of beginning.
•
EXHIBIT A
RECEIVED
STATE OF WASHINGTON
CITY OF YAKIMA CITY OF YAKIMA
OFFICE OF HEARING EXAMINER PLANNING DIV.
Petition to Vacate Right of Way ) AMENDED EXAMINER'S
By Living Care Centers, Inc., Re ) RECOMMENDATION AFTER
Mavis Avenue and Knobel Street ) REMAND BY CITY COUNCIL
City No. R/W VAC #1 -00
)
EXAMINER NO. IU00 -8 -21
The Examiner's original recommendation, dated September 21,
2000, was remanded by the City Council to the Examiner to further
consider the issue of compensation for the vacated right of way.
The remand hearing was conducted December 14, 2000.
Mr. Crowell, Mr. Wishert and attorney Carmody attended on
behalf of Living Care Centers.
Additional evidence includes Mr. Carmody's letter of November
7, 2000 to the City Council; Mr. Wishert's memo from PSLA dated
September 28, 2000 to the Council; Ordinance No. 378, adopted
September 24, 1962 concerning creating an RID for Mavis Avenue;
Ordinance 673 dated July 19, 1965 concerning creating an RID for
Knobel Avenue; and Joan Davenport's letter to Louie Wishert dated
September 15, 2000 dealing with City maintenance of Knobel and
Mavis Avenues. In addition, the record for this hearing includes
all evidence received at the prior hearing.
SUMMARY OF DECISION. This recommendation deals only with the
issue of compensation. The City's policy requires meeting all of
several factors in order to avoid payment for vacated right of
way. The City has made modest improvements, and therefore
compensation is required.
AMENDED EXAMINER'S RECOMMENDATION - 1
Living Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
Based upon review of all of the evidence, as well as
applicable state and local law, the Examiner makes the following:
FINDINGS
1. Prior Recommendation. The findings of the prior
recommendation are adopted and incorporated by reference, except
for section 8, entitled Compensation, which is replaced in its
entirety by this document.
As a point of information,-practically all of the prior
text concerning compensation in the first recommendation is set
forth below, together with additional material responsive to the
remand issue and new evidence submitted at the second hearing.
8. Compensation.
8.1 Prior Findings (slightly modified) .
YMC 14.20.230, entitled Final Plat - Street Vacations, is
the municipal section dealing with vacation of streets, and refers
to City policies concerning compensation. The City policy on
compensation is set forth in Resolution D -5630, dated September
12, 1989. Both the municipal ordinance section and the
compensation resolution are attached as exhibits to this decision
(1 and 2, respectively).
The resolution states that compensation in the amount
of one -half of the appraised value shall be paid to the city on
the vacation of any public street unless the right of way is
unimproved or not maintained, or the city has purchased the right
of way at public expense. Korn's Appraisal Service prepared an
appraisal, valuing the land at $5.00 per square foot based on
comparable sales. •
The summary appraisal, located at Document Index No. 8
in the hearing packet, makes a price adjustment for retained
easements. Mr. Wishert at the hearing indicated that there would
not be any retained easements. The original appraisal found that
AMENDED EXAMINER'S RECOMMENDATION - 2
Living Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
there were 14,353 square feet, at $5.00 per square foot, with
' retained easement areas totaling another 10,789 square feet,
valued at $2.50 per square foot.
Based upon the revised facts as established at the
hearing, the total square footage is 25,042, at $5.00 per square
foot, for a total of $125,210.00 for the underlying land. The
value of the improvements (paving, curb, and gutter) is valued at
$24,107.00, for a total overall value of $149,317.00. This total
is more than the $122,000.00 found by the appraisal, because of
the adjustment making a deduction for easements. One -half of
$149,000.00 is $74,500.00.
Although not now an issue in this case, this is the
first instance that this Examiner, in 14 years, has seen an
appraisal which makes an adjustment in value for right of way
burdened by a retained easement. It certainly has not been the
practice in the past to further reduce property value because of
easements, although there may certainly be occasional instances in
which an easement substantially diminishes the value of the
encumbered property.
Mr. Wishert argued that since this property was platted
prior to annexation by the city, and since there are no records
concerning whether the city or a developer originally paved the
streets, that the petitioner should not be required to pay
compensation. The representatives of Living Care Center testified
that in their approximately 20 years of experience with this
property the city has never, to their knowledge, cleared the
streets or performed any maintenance on the pavement.
The issue for consideration by the Council concerns
Section lb of Resolution D -5630. The general rule in Section la
is that one -half of the appraised value of right of way must be
paid by the petitioner unless certain exceptions apply.
Subparagraph lb is the relevant exception, and states:
AMENDED EXAMINER'S RECOMMENDATION - 3
i Living Care Centers, Inc. -
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
No compensation shall be required to be paid to the city
on the vacation of a right of way which the city has not
purchased, maintained, nor made any improvements to and
no planned or anticipated public purpose exists for
maintaining the right of way.
Mr. Wishert makes the point that all street vacations
processed by this Examiner and the city in the last two years
have, for a variety of reasons, not required payment of any
compensation. Some of these vacations have dealt with
unimproved, undeveloped right of way. The Shields vacation
concerning Rock Avenue was based upon specific evidence,
consisting of actual carbon copies of Gene Shields' letters at
the time his company purchased the land which ultimately formed
Rock Avenue, that he was going to build Rock Avenue at his
expense, subject to City approval, which he in fact obtained.
-Most recently the alley on the block owned by St.
Joseph's Catholic Church has been vacated, without compensation,
upon showing that it has been fenced for private use for many •
years, not subject to public access, and that that portion
constituting the alley has in fact been developed and utilized as
a parking lot for the church complex for many years.
Mr. Skone testified that although there is apparently no
direct evidence of city expenditures on the street, that the city
has had an ongoing liability for these streets, including a
contingent maintenance obligation. In the event of a substantial
problem with the street, such as a sink hole, the city would have
stepped in and made the necessary repairs at public expense. As
local access streets, these are some of the' many streets which do
not receive routine snow removal services.
The city policy is consistent with state law (RCW
35.79). The city is exercising its right to charge 50% of the
value, based upon the fact situations described in the resolution.
AMENDED EXAMINER'S RECOMMENDATION - 4
Living Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
The petitioner in a right of way vacation has the
burden of proof. However, the city is perhaps in the best
position to provide direct evidence of expenditures concerning a
city asset, such as these streets.
I find that the controlling factor is that these are
public streets, that they are and have been a continuing
obligation of the city, and that the absence of any evidence as to
direct expenditures is immaterial. The only rights of way
'typically vacated by the city are alleys or local access streets,
neither of which receive routine cleaning, repair or snow removal.
If actual evidence of expenditures on a given right of way must be
produced by the city in order to require compensation, it is
highly unlikely that compensation will ever be required.
In order to give the language of this resolution
meaning, and to implement the perceived intent of the City
Council, I find that the existence of an improved public street is
prima facie evidence of the obligation to pay compensation upon
its vacation, in the absence of direct evidence such as that
produced by Gene Shields concerning Rock Avenue.
Accordingly, the required compensation, rounded, is
$74,500.00, which should be paid concurrently with or prior to
executing the ordinance of vacation.
A secondary issue, raised by Mr. Wishert, is that in
conjunction with Living Care's redevelopment of this property,
additional right of way is being required by the city, pursuant to
Title 12 development standards, on both Summitview and North 40
Avenue, and that the petitioner will also be providing a new bus
pullout. He argues that the value of that right of way equals or
exceeds the right of way being vacated. Mr. Wishert, to his
credit, recognizes that those requirements would be imposed
whether or not this right of way is vacated. Although he would
like to argue that they should be offset, he simply raised the
point in an effort to elicit some mercy from the powers that be.
AMENDED EXAMINER'S RECOMMENDATION - 5
Living Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
8.2 New Findings.
At the second hearing, Mr. Wishert submitted evidence
represented by the ordinances identified above, that the relevant
portions of both Mavis and Knobel Avenues were improved with
pavement, curb, and gutter by road or local improvement districts,
whereby the property owners financed the physical improvement of
the streets. This is not controverted.
Supervising Traffic Engineer Joan Davenport's letter
identified the various maintenance issues the City has incurred
with respect to Knobel and Mavis.
Mr. Carmody's September 7 letter to Council accurately
sets forth the facts surrounding original improvement of Mavis and
Knobel, and identifies the applicable local ordinances and Council
policy.
The evidence now in this record is that the right of way
was not acquired or improved at public expense. As identified in
Ms. Davenport's letter, there has been some minimal expenditure by
the City for signing, lighting, and related issues.
Since these are not arterials, the City has probably not
incurred significant expenditures with respect to, for example,
snow removal. Adjacent property owners assert that they have
taken care of snow removal in recent years. In any event, it is
difficult for the City to identify specific maintenance actions
that may have occurred from time to time on these streets, such as
seal coating, sweeping, or snow removal. Unless site specific
expenditures are incurred, it is probable that the City does not
maintain these types of records. To do so would create a nearly
impossible administrative burden.
8.3 Legal Analysis. The City has adopted a policy,
represented by Resolution No. D -5630. As a resolution, this
policy does not have the force of law an ordinance does, but it
does reflect the City's intent.
AMENDED EXAMINER'S RECOMMENDATION - 6
Living Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
Mr. Carmody's letter identifies a number of recent
vacation actions in which compensation was required. His
recitation of cases is correct. In several of these instances,
the right of way existed but no street had ever been created.
This is the case with McGuire Lumber, Deborah Potter, and Stelzer
and Downing. The only instance cited where a street has actually
existed is the Rock Avenue vacation for Shields Bag and Printing,
in which original correspondence was introduced in the record
indicating that Gene Shields was responsible for paving the
street.
There is no significant difference between an individual
such as Mr. Shields or his company, and creation of an LID to
improve the street. With respect to the Rock Avenue vacation, no
effort was made by the City to establish maintenance expenditures.
Routine maintenance expenditures by the City for a
given stretch of street are probably far less than the initial
construction of the street or later repavement. Neither has
occurred in this instance. Based upon this record, the City's
acknowledged expenditures on these side streets have been de
minimus, although the City has obviously had a contingent
liability that in the event of a major disaster, the City would be
responsible for reconstruction of the street.
The relevant exception in Resolution No. D -5630 reads:
No compensation shall be required to be paid to the
City on the vacation of a right of way which the City
has not purchased, maintained, nor made any
improvements to and no planned or anticipated public
purpose exists for maintaining the right of way.
In this instance the City has not purchased the right of
way. The improvements that the City has made, as reflected in Ms.
Davenport's letter, are relatively minor, and the maintenance is
•
hard to quantify. Certainly the City has spent some money on
maintenance and improvements on these streets. The question is
whether de minimus improvements, perhaps amounting to a few
AMENDED EXAMINER'S RECOMMENDATION - 7
i Living Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
hundred dollars, negates the exception, thus requiring
compensation.
In the Shields /Rock Avenue vacation, the evidence did
not include anything from the City that any improvements or
maintenance had ever been made to Rock Avenue. Accordingly, this
Examiner recommended that no compensation be paid, since the
evidence was clear that Mr. Shields had originally paid for
improving Rock Avenue.
In the instant case, there is some evidence that the
City has made improvements. Accordingly, without any
consideration of balancing the relative expenditures, and without
any consideration of fairness issues, the clear language of the
exception is that compensation is required.
This will be seen as a harsh result for Living Care
Centers, but is consistent with existing City policy and recent
vacation decisions. The Council, not this Examiner, is the
appropriate body to consider whether current policy is
appropriate.
2. Notice. Notice of this 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. The original recommendation by the Examiner, dated
September 21, 2000 is not changed, is adopted by reference, and
set forth below.
Based upon the foregoing Findings and Conclusions, the
Examiner submits to the Yakima City Council the following:
AMENDED EXAMINER'S RECOMMENDATION - 8
Living Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
RECOMMENDATION
•
Approve vacating the Mavis Avenue and Knobel Street rights of
way, as described in the petition, subject to the following
conditions:
1. Relocation of all existing utilities, at the
petitioner's expense.
2. Payment of compensation of $74,500.00 to the City of
• Yakima, prior to or concurrently with execution of the vacation
ordinance.
DATED this _-2_ 2 —day of February 2001.
Philip A. Lamb
Hearing Examiner
•
•
•
•
•
AMENDED EXAMINER'S RECOMMENDATION - 9
Living Care Centers, Inc. •
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKIMA
POST OFFICE BOX 4
• YAKIMA, WASHINGTON 98907
(509) 248 -0706
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMIENT
ITEM NO. * ;"41
FOR MEETING OF: May 15, 2001
ITEM TITLE: Consideration of the right of way vacation ordinance for Living Care
Center Inc.
SUBMITTED BY: i liam Cook, Director of Community & Economic Development
CONTACT PERSON / TELEPHONE: Dan Valoff, Associate Planner, 575 -6163
SUMMARY EXPLANATION:
On May 1, 2001 the City Council conducted a public hearing to consider the Hearing
Examiner's recommendation on the compensation issue by Living Care Center Inc. to
vacate a portion of Knobel Street and Mavis Avenue.
The Council approved compensation in the amount of $22,500 for the vacation of
Knobel Street and Mavis Avenue.
Resolutions Ordinance X Contract Other (Specify)
Funding Source �
APPROVAL FOR SUBMITTAL: � ����
City ana•er
STAFF RECOMMENDATION: Approve the vacation ordinance.
BOARD RECOMMENDATION: Hearing Examiner recommends that $74,500 be paid
to the City for the proposed right of way vacation
COUNCIL ACTION: Ordinance passed. ORDINANCE NO. 2001 -23
Return To:
Yakima City Clerk
129 North Second Street
Yakima, WA 98901
Document Title: Ordinance No. 2001 -23
(R/W Vac #1 -00 / Mavis Avenue & Knobel Street)
Grantor: City of Yakima
Grantee: Living Care Centers, Inc.
LEGAL DESCRIPTION:
Parcel A (Mavis Avenue) All of Mavis Avenue as shown on the Plat of
Mollett's Addition as recorded in volume "G" of Plats, page 2, records of
Yakima County, Washington,
Except that portion lying within the West 50 feet of the SW 1 /4 of the NE
1 /4 of Section 22, Township 13 North, Range 18 EWM.
Parcel B (Knobel Street) Beginning at the NW corner of Lot 10 of Crescent
Hill Homes as recorded in Volume "J" of Plats, page 29, records of
Yakima County, Washington; thence North along the West line of said
Lot 10 extended, 40 feet to the South line of Lot 16 of said plat; thence
East along the South line of Lots 16, 17 and 18 of said plat to the SE
corner of said Lot 18; thence South along the East line of said Lot 18
extended, 40 feet to the North line of Lot 8 of said plat; thence West along
the North line of Lots 8, 9 and 10 of said plat to point of beginning.
Parcel Number: 181322 (Portion)
11111 1111E11111E1111111111111111 7324601
Page: 1 of 13
03/26/2003 03 :30P
YAKIMA CITY CLERK ORD 0111 Yakima Co, WA
ORDINANCE NO. 2001- 23
AN ORDINANCE vacating portions of Mavis Avenue and Knobel Street
WHEREAS, Ankrom Moisan Associated Architects on behalf of Living Care Centers,
Inc. (hereafter referred to as the "Petitioner") has, pursuant to chapter 35.79 RCW
and by Petition No. 00 -04, under City of Yakima Department of Community and
Economic Development ( "DCED ") file UAZO R/W Vac #01 -00, petitioned for
vacation of portions of Mavis Avenue and Knobel Street as described in the Exhibit
A attached hereto; and
WHEREAS, the City of Yakima Hearing Examiner, after conducting public hearings
on September 14, 2000, and after considering the contents of the file and statements
of interested persons at the public hearing, issued his Examiner's Recommendation
(Examiner No. IY00 -8 -21) dated September 21, 2001, and recommended approval of
the requested right -of -way vacation subject relocation of all existing utilities at
Petitioner's expense and also subject to payment of compensation of $74,500.00 to the
City prior to or concurrent with execution of the vacation ordinance; and,
WHEREAS, the City Council considered the requested right -of -way vacation and
the Hearing Examiner's Recommendation at regular public meetings on November
7, 2000 and May 1, 2001; and
WHEREAS, after considering the Hearing Examiner's Recommendation, the
contents of the file, and the statements of interested persons, the City Council finds
with respect to the requested right -of -way vacation that
1. Vacation of the right -of -way will not deprive any property of sole access;
and
2. The right -of -way proposed to be vacated is not essential to other City
plans; and
3. The proposed right -of -way vacation is consistent with other plans and
policies of the City; and
4. Based on zoning, current use and long -range plans, the proposed right -of-
way vacation is compatible with existing and anticipated development in
the area; and
5. The proposed right -of -way vacation does not adversely affect existing or
future public utilities; and
6. The proposed right-of-way vacation is consistent with the requirements of
chapter 35.79 RCW and with City of Yakima Ordinance No. D -5630; and
C: \WINDOWS \TEMP \ord row vac 5- 10.doc, May 10, 2001, 5:19 PM
Living Care Centers
Mavis Avenue and Knobel Street
Right of Way Vacation Ordinance Page 1
111 11111 I I 11111 111 1111 I 111 7324601
Page 2 of 13
63/26/2803 93:36P
YAKIMR CITY CLERK OR D $31,88 Yakima Co, WA
WHEREAS, the City Council considered the recommended compensation of $74,500
and determined that compensation of $22,500 is appropriate in this case; and •
WHEREAS, no public purpose would be served by retaining the subject right -of-
way and it is in the best interests of the City and its people to grant the petition;
now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF YAKIMA,
WASHINGTON:
Section 1. The Yakima City Council adopts and incorporates by reference the
Findings and Conclusions of the Hearing Examiner's Recommendations, Examiner
No. IU00 -8 -21, City No. UAZO R/W Vac #01 -00, dated September 21, 2000 and the
Amended Hearing Examiner's Recommendation, Examiner No. 11100 -8 -21, City
No. UAZO R/W Vac #01 -00 dated February 22, 2001, which are incorporated by
reference, except that the amount of compensation that shall be required is $22,500
paid to the City prior to or concurrent with execution of this ordinance.
Section 2. The City of Yakima vacates its right -of -way interest over the following
real property described in Exhibit A (hereafter the "Subject Right -of- Way ").
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. The clerk of
the City Council shall record a certified copy of this ordinance in the office of the
Yakima County Auditor.
PASSED BY THE CITY COUNCIL, at a regular rneeting and signed and approved
this 15 day of May 2001.
S/ MARY PLACE
Mary Place, Mayor
ATTEST:
is/ KAREN S. ROBERTS, CMC
City Clerk
Publication Date: 5 -18 -2001 Certified to be a true and correct copy of tlh_
original filed in ray office. 3- a 6—o3
Effective Date: 6 -17 -2001
CITY CLERK
lay
i
f l SEAL C: \WIl�TDOWS \ TEMP \ord row vac 5- 10.doc, May 10, 2001, 5:19 PM SEA
• ohs
Living Care Centers
Mavis Avenue and Knobel Street
Right of Way Vacation Ordinance Page 2
101111111 1 10E110 11111 11
7324601
Page: 3 of 13
YRKIMA CITY CLERK Y
ORD !31.60 Yakima '36P
inaCo, WA
LIVING CARE CENTERS
Mavis Avenue and Knobel Street Right -of -Way Vacation Ordinance
LEGAL DESCRIPTION:
Parcel A (Mavis Avenue) All of Mavis Avenue as shown on
the Plat of Mollett's Addition as recorded in volume "G" of
Plats, page 2, records of Yakima County, Washington,
Except that portion lying within the West 50 feet of the SW
1 /4 of the NE 1 /4 of Section 22, Township 13 North, Range 18
EWM.
Parcel B (Knobel Street) Beginning at the NW corner of Lot 10
of Crescent Hill Homes as recorded in Volume "3" of Plats,
page 29, records of Yakima County, Washington; thence
North along the West line of said Lot 10 extended, 40 feet to
the South line of Lot 16 of said plat; thence East along the
South line of Lots 16, 17 and 18 of said plat to the SE corner
of said Lot 18; thence South along the East line of said Lot
18 extended, 40 feet to the North line of Lot 8 of said plat;
thence West along the North line of Lots 8, 9 and 10 of said
plat to point of beginning.
EXHIBIT A
11 1111 1111 111 1111 7324601
Page: 4 of 13
YAKIMA CITY CLERK 63 / 2 612963 03:3 @P
ORD ell AA
STATE OF WASHINGTON
CITY OF YAKIMA
OFFICE OF HEARING EXAMINER
Petition to Vacate Right of Way ) AMENDED EXAMINER'S
By Living Care Centers, Inc., Re ) RECOMMENDATION AFTER
Mavis Avenue and Knobel Street ) REMAND BY CITY COUNCIL
)
City No. R/W VAC #1 -00
) EXAMINER NO. IU00 -8 -21
The Examiner's original recommendation, dated September 21,
2000, was remanded by the City Council to the Examiner to further
consider the issue of compensation for the vacated right of way.
The remand hearing was conducted December 14, 2000.
Mr. Crowell, Mr. Wishert and attorney Carmody attended on
behalf of Living Care Centers.
Additional evidence includes Mr. Carmody's letter of November
7, 2000 to the City Council; Mr. Wishert's memo from PSLA dated
September 28, 2000 to the Council; Ordinance No. 378, adopted
September 24, 1962 concerning creating an RID for Mavis Avenue;
Ordinance 673 dated July 19, 1965 concerning creating an RID for
Knobel Avenue; and Joan Davenport's letter to Louie Wishert dated
September 15, 2000 dealing with City maintenance of Knobel and
Mavis Avenues. In addition, the record for this hearing includes
all evidence received at the prior hearing.
SUMMARY OF DECISION. This recommendation deals only with the
issue of compensation. The City's policy requires meeting all of
several factors in order to avoid payment for vacated right of
way. The City has made modest improvements, and therefore
compensation is required.
AMENDED EXAMINER'S RECOMMENDATION - 1
Living Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY ANO COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
11111 II 11111111111 7324601
Page: 5 of 13
93/26/2993 93:39P
YRKIMR CITY CLERK ORD $31.99 Yakima Co, WA
Based upon review of all of the evidence, as well as
applicable state and local law, the Examiner makes the following:
FINDINGS,
1. Prior Recommendation. The findings of the prior
recommendation are adopted and incorporated by reference, except
for section 8, entitled Compensation, which is replaced in its
entirety by this document. •
As a point of information,•practically all of the prior
text concerning compensation in the first recommendation is set
forth below, together with additional material responsive to the
remand issue and new evidence submitted at the second hearing.
8. Compensation.
8.1 Prior Findings (slightly modified).
YMC 14.20.230, entitled Final Plat- Street Vacations, is
the municipal section dealing with vacation of streets, and refers
to City policies concerning compensation. The City policy on
compensation is set forth in Resolution D -5630, dated September'
12, 1989. Both the municipal ordinance section and the
compensation resolution are attached as exhibits to this decision
(1 and 2, respectively).
The resolution states that compensation in the amount
of one -half of the appraised value shall be paid to the city on
the vacation of any public street unless the right of way is
unimproved or not maintained, or the city has purchased the right
of way at public expense. Korn's Appraisal Service prepared an
appraisal, valuing the land at $5.00 per square foot based on
comparable sales. •
The summary appraisal, located at Document Index No. 8
in the hearing packet, makes a price adjustment for retained
easements. Mr. Wishert at the hearing indicated that there would
not be any retained easements. The original appraisal found that
AMENDED EXAMINER'S RECOMMENDATION - 2
Living Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKIMA
POST OFFICE 80X 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
I 11E1 1111 1101 111 0111 1111 1111 7324601
Page 6 of 13
YAKIMA CITY CLERK ORD X31.00 /6/299
Yakima 3 $
i there were 14,353 square feet, at $5.00 per square foot, with
retained easement areas totaling another 10,789 square feet,
valued at $2.50 per square foot.
Based upon the revised facts as established at the
hearing, the total square footage is 25,042, at $5.00 per square
foot, for a total of $125,210.00 for the underlying land. The
value of the improvements (paving, curb, and gutter) is valued at
$24;107.00, for a total overall value of $149,317.00. This total
is more than the $122,000.00 found by the appraisal, because of
the adjustment making a deduction for easements. One -half of
$149,000.00 is $74,500.00.
Although not now an issue in this case, this is the
first instance that this. Examiner, in 14 years, has seen an
appraisal which makes an adjustment in value for right of way
burdened by a retained easement. It certainly has not been the
practice in the past to further reduce property value because of
easements, although there may certainly be occasional instances in
which an easement substantially diminishes the value of the
encumbered property.
Mr. Wishert argued that since this property was platted
prior to annexation by the city, and since there are no records
concerning whether the city or a developer originally paved the
streets, that the petitioner should not be required to pay
compensation. The representatives of Living Care Center testified
that in their approximately 20 years of experience with this
property the city has never, to their knowledge, cleared the
streets or performed any maintenance on the pavement.
The issue for consideration by the Council concerns
Section lb of Resolution D- 5630. The general rule in Section la
is that one -half of the appraised value of right of way must be
paid by the petitioner unless certain exceptions apply.
Subparagraph lb is the relevant exception, and states:
AMENDED EXAMINER'S RECOMMENDATION - 3
) Living Care Centers, Inc.
Examiner No. IU00 -8 -21
WEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKIMA
POST OFFICE 80X 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
ons
1111111 11111101 iN 1111 701
Page 7 of 13
83Ie612 3 38P
YAKIMR CITY CLERK ORD $31.88 Yakima Co, WA
No compensation shall be required to be paid to the city
on the vacation of a right of way which the city has not
purchased, maintained, nor made any improvements to and
no planned or anticipated public purpose exists for
maintaining the right of way.
Mr. Wishert makes the point that all street vacations •
processed by this Examiner and the city in the last two years
have, for a variety of reasons, not required payment of any
compensation. Some of these vacations have dealt with
unimproved, undeveloped right of way. The Shields vacation
concerning Rock Avenue was based upon specific evidence,
consisting of actual carbon copies of Gene Shields' letters at
the time his company purchased the land which ultimately formed
Rock Avenue, that he was going to build Rock Avenue at his
expense, subject to City approval, which he in fact obtained.
Most recently the alley on the block owned by St.
Joseph's Catholic Church has been vacated, without compensation,
upon showing that it has been fenced for private use for many
years, not subject to public access, and that that portion
constituting the alley has in fact been developed and utilized as '
a parking lot for the church complex for many years.
Mr. Skone testified that although there is apparently no
direct evidence of city expenditures on the street, that the city
has had an ongoing liability for these streets, including a
contingent maintenance obligation. In the event of a substantial
problem with the street, such as a sink hole, the city would have
stepped in and made the necessary repairs at public expense. As
local access streets, these are some of the many streets which do
not receive routine snow removal services.
The city policy is consistent with state law (RCW
35.79). The city is exercising its right to charge 50% of the
value, based upon the fact situations described in the resolution.
AMENDED EXAMINER'S RECOMMENDATION - 4
Living Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKim,
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
7324
page 0 of '
6312612993 A:
YAKIMA CITY CLERK ORO $31,99 Yakima Co, WF
The petitioner in a right of way vacation has the
burden of proof. However, the city is perhaps in the best
position to provide direct evidence of expenditures concerning a
city asset, such as these streets.
I find that the controlling factor is that these are
public streets, that they are and have been a continuing
obligation of the city, and that the absence of any:evidence as to
direct expenditures is immaterial. The only rights of way
typically vacated by the city are alleys or local access streets,
neither of which receive routine cleaning, repair or snow removal.
If actual evidence of expenditures on a given right of way must be
produced by the city in order to require compensation, it is
highly unlikely that compensation will ever be required.
In order to give the language of this resolution
meaning, and to implement the perceived intent of the City
Council, I find that the existence of an improved public street is
prima facie evidence of the obligation to pay compensation upon
its vacation, in the absence of direct evidence such as that
produced by Gene Shields concerning Rock Avenue.
Accordingly, the required compensation, rounded, is
$74,500.00, which should be paid concurrently with or prior to
executing the ordinance of vacation.
A secondary issue, raised by Mr. Wishert, is that in
conjunction with Living Care's redevelopment of this property,
additional right of way is being required by the city, pursuant to
Title 12 development standards, on both Summitview and North 40
Avenue, and that the petitioner will also be providing a new bus
pullout. He argues that the value of that right of way equals or
exceeds the right of way being vacated. Mr. Wishert, to his
credit, recognizes that those requirements would be imposed •
whether or not this right of way is vacated. Although he would
like to argue that they should be offset, he simply raised the
point in an effort to elicit some mercy from the powers that be..
AMENDED EXAMINER'S RECOMMENDATION - 5
Living. Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CRY AND COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
11111 111 II 111 111 7324601
Pagel 9 of 13
03/26/2003
YRKIMR CITY CLERK ORD $31.88 Yak2
maC, WA 93:39
8.2 New Findings.
At the second hearing, Mr. Wishert submitted evidence
represented by the ordinances identified above, that the relevant
portions of both Mavis and Knobel Avenues were improved with
pavement, curb, and gutter by road or local improvement districts,
whereby the property owners financed the physical improvement of
the streets. This is not controverted.
Supervising Traffic Engineer Joan Davenport's letter
identified the various maintenance issues the City has incurred
with respect to Knobel and Mavis.
Mr. Carmody's September 7 letter to Council accurately
sets forth the facts surrounding original improvement of Mavis and
Knobel, and identifies the applicable local ordinances and Council
policy.
The evidence now in this record is that the right of way
was not acquired or improved at public expense. As identified in
Ms. Davenport's letter, there has been some minimal expenditure by
the City for signing, lighting, and related issues.
Since these are not arterials, the City has probably not
incurred significant expenditures with respect to, for example,
snow removal. Adjacent property owners'assert that they have
taken care of snow removal in recent years. In any event, it is
difficult for the City to identify specific maintenance actions
that may have occurred from time to time on these streets, such as
seal coating, sweeping, or snow removal. Unless site specific
expenditures are incurred, it is probable that the City does not
maintain these types of records. To do so would create a nearly
impossible administrative burden.
8.3 Legal Analysis. The City has adopted a policy,
represented by Resolution No D -5630. As a resolution, this
policy does not have the force of law an ordinance does, but it
does reflect the City's intent. •
AMENDED EXAMINER'S RECOMMENDATION - 6
Living Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
X509) 248 -0706
IN III 1E111 732460
Page 10 1 of 13
YAKIMR CITY CL ERK ORD X31.00 0 2 633 :36P WA
Mr. Carmody's letter identifies a number of recent
vacation actions in which compensation was required. His •
recitation of cases is correct. In several of these instances,
the right of way existed but no street had ever been created.
This is the case with McGuire Lumber, Deborah Potter, and Stelzer
and Downing. The only instance cited where a street has actually
existed is the Rock Avenue vacation for Shields Bag and Printing,
in which original correspondence was introduced in the record
indicating that Gene Shields was responsible for paving the
street.
There is no significant difference between an individual .
such as Mr. Shields .for his company, and creation of an LID to
improve the street. With respect to the Rock Avenue vacation, no
effort was made by the City to establish maintenance expenditures.
Routine maintenance expenditures by the City for a
given stretch of street are probably far :Less than the initial
construction of the street or later repavemer_t. Neither has
occurred in this instance. Based upon this record, the City's
acknowledged expenditures on these side streets have been de
minimus, although the City has obviously had a contingent
liability that in the event of a major disaster, the City would be
responsible for reconstruction of the street. •
The relevant exception in Resolution No. D -5630 reads:
No compensation shall be required to be paid to the
City on the vacation of a right of way which the City
has not purchased, maintained, nor made any
improvements to and no planned or anticipated public
purpose exists for maintaining the right of way.
In this instance the City has not purchased the right of
way. The improvements that the City has made, as reflected in Ms.
Davenport's letter, are relatively minor, and the maintenance is
hard to quantify. Certainly the City has spent some money on
maintenance and improvements on these streets. The question is
whether de minimus improvements, perhaps amounting to a few
AMENDED EXAMINER'S RECOMMENDATION - 7
Living Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
CITY AND COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
I
I
YRKIMA C CLERK I ag 4
: 601
ORD 1f
$31, 96 ak im �Co 3 WR 63:38P
hundred dollars, negates the exception, thus requiring
compensation.
In the Shields /Rock Avenue vacation, the evidence did
not include anything from the City that any improvements or
maintenance had ever been made to Rock Avenue. Accordingly, this
. Examiner recommended that no compensation be paid, since the
evidence was clear that Mr. Shields had originally paid for
improving Rock Avenue.
In the instant case, there is some evidence that the
City has made improvements. Accordingly, without any
consideration of balancing the relative expenditures, and without
any consideration of fairness issues, the clear language of the
exception is that compensation is required.
This will be seen as a harsh result for Living Care
Centers, but is consistent with existing City policy and recent
vacation decisions. The Council, not this Examiner, is the
appropriate body to consider whether current policy is
appropriate.
2. Notice. Notice of this 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. The original recommendation by the Examiner, dated
September 21, 2000 is not changed, is adopted by reference, and
set forth.below.
Based upon the foregoing Findings and Conclusions,.the
Examiner submits to the Yakima City Council the following:
AMENDED EXAMINER'S RECOMMENDATION - 8
Living Care Centers, Inc.
Examiner No. IU00 -8 -21
HEARING EXAMINER
FOR THE
•
CITY AND COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
(509) 248 -0706
II 11 II 1101E11 1111 732460
Page 1 2 of 1;
03/26/2603 63:3
YRKIMR CITY CLERK ORD $3116 Yakima Co, WA
RECOMMEENDATION
Approve vacating the Mavis Avenue and Knobel Street rights of
way, as described in the petition, subject to the following
conditions: •
1. Relocation of all existing utilities, at the
petitioner's expense.
2. Payment of compensation of $74,500.00 to the City of
Yakima, prior to or concurrently with execution of the vacation
ordinance.
•
DATED this 7_'z day of February 2001.
•
Philip A. Lamb
Hearing Examiner
•
•
•
•
•
•
AMENDED EXAMINER'S RECOMMENDATION - 9 •
Living Care Centers, Inc.
Examiner No. IU00 -8-21
•
HEARING EXAMINER
FOR THE
CITY ANO COUNTY OF YAKIMA
POST OFFICE BOX 4
YAKIMA, WASHINGTON 98907
7324601
U\\ ;:3arii/a2scle.
YAKIMA CITY CLERK ORD $31,66