Loading...
HomeMy WebLinkAbout06/18/2024 08.A. Public hearing and Ordinance to consider the Hearing Examiner's recommendation regarding a right-of-way petition submitted by Hordan Planning Services on behalf of Corporation of the Catholic Bishop of Yakima to vacate a portion of N. 4th `y s ljlt 14:4•Arg&r<- 11 11 . \i!!!t,,:ooR;}• •0 D_1f BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 8.A. For Meeting of: June 18, 2024 ITEM TITLE: Public hearing and Ordinance to consider the Hearing Examiner's recommendation regarding a right-of-way petition submitted by Hordan Planning Services on behalf of Corporation of the Catholic Bishop of Yakima to vacate a portion of N. 4th St. between Martin Luther King Jr. Blvd. and E. Lincoln Ave SUBMITTED BY: Trevor Martin, Planning Manager *Eric Crowell, Senior Planner SUMMARY EXPLANATION: On November 14, 2023, Hordan Planning Services submitted a petition (Petition 23-04, RWV#001-23) on behalf of the Corporation of the Catholic Bishop of Yakima to vacate a portion of N. 4th St. between Martin Luther King Jr. Blvd. and E. Lincoln Ave. This request aims to provide safety to students, staff, parishioners, and others that cross the street from St. Joseph-Marquette school and church campus on the west side of N. 4th St. to the newly constructed gymnasium on the east side of N. 4th St. On April 12, 2024, the Hearing Examiner Pro-Tem for the City of Yakima conducted an open-record public hearing regarding the requested right-of-way vacation. On April 23, 2024, the Hearing Examiner issued a recommendation stating that the right-of-way be vacated pending City Council approval. The complete hearing record was distributed to City Council in the agenda packet on June 4, 2024 and can be found online at: https://www.yakimawa.gov/council/agendas-and-minutes/ To participate in this public hearing please refer to the Public Comment Guidelines at: https://www.yakimawa.gov/council/public-comment/ ITEM BUDGETED: N/A STRATEGIC PRIORITY: N/A RECOMMENDATION: Conduct hearing and take appropriate action. ATTACHMENTS: Ordinance 65 ORDINANCE NO. 2024- AN ORDINANCE relating to land use; vacating N. 4th St. right-of-way between E. Lincoln Ave. and E. Martin Luther King Jr. Blvd. in the City of Yakima, Washington. WHEREAS, by petition dated November 14, 2023 (Petition #23-04), which included signatures of the owners of more than two-thirds of the parcels abutting the property proposed to be vacated, Hordan Planning Services, on behalf of Corporation of the Catholic Bishop of Yakima, requested to vacate a portion of platted City of Yakima right-of-way more particularly described in Exhibit "A", attached hereto and incorporated herein by this reference generally known as the block of North 4th Street between East Martin Luther King Jr. Boulevard and East Lincoln Avenue, in Yakima; and WHEREAS, the City of Yakima has evaluated the location of the right-of-way and determined that it is appropriate to vacate the right-of-way as there are no future plans to further develop or improve said right-of-way and there are multiple other methods to get to locations within that portion of the City which do not necessitate the use of this block of North 4th Street; and WHEREAS, on April 12, 2024, the Hearing Examiner for the City of Yakima conducted an open-record public hearing regarding the requested right-of-way vacation, and, heard from both the City and the applicant, as well as the public through written and oral public testimony; and WHEREAS, on April 22, 2024, the Hearing Examiner issued his Recommendation regarding RWV#001-23, recommending that the platted street right-of-way be vacated, upon fulfillment of certain conditions which recommendation is attached hereto and incorporated herein by this reference as Exhibit "B"; and WHEREAS, at an open-record public hearing held on June 18, 2024, the City Council considered the requested right-of-way vacation, including the documents and other evidence which comprise the record developed before the Hearing Examiner, the Hearing Examiner's Recommendation, additional statements by the petitioners and city staff, and the statements and comments provided during public testimony; and WHEREAS, as stated in the Hearing Examiner's recommendation, compensation to the City is necessary for this right-of-way vacation due it being part of a dedicated public right-of-way for twenty-five years of more, in accordance with YMC§ 14.21.070, which states that the applicant shall compensate the city the full amount of the appraised value if the property has been part of a public right-of-way for more than 25 years, and because the applicant does not fall under the exceptions to the full compensation requirement; and WHEREAS, the City Council finds that the considerations of the Hearing Examiner in response to the requirements and criteria of RCW Chapter 35.79, together with the City of Yakima street vacation ordinance, Yakima Municipal Code Chapter 14.21, are correct and appropriate, and that the same should be adopted by the City Council as its findings herein; and 1 66 WHEREAS, the City Council finds that it is in the best interest of the City and its residents to vacate the right-of-way described in Exhibit A attached hereto and fully incorporated here pursuant to the Hearing Examiner's recommendation and conditions and to enact the following to approve the requested right-of-way vacation; now, therefore: BE IT ORDAINED BY THE CITY OF YAKIMA: Section 1. The North 4th St. right-of-way running approximately 400 feet from E. Lincoln Ave. to E. Martin Luther King Jr. Blvd. in the City of Yakima,Washington, more particularly described in Exhibit "A", attached hereto and incorporated herein by this reference, is hereby vacated by the City of Yakima subject to the conditions herein to the abutting property owners, one-half to each. Section 2. The findings, conclusions and conditions within the April 22, 2024 Hearing Examiner's Recommendation (RWV#001-23), regarding this right-of-way vacation are hereby adopted by the City Council as its findings, conclusions and conditions in support hereof, pursuant to Yakima Municipal Code Chapter 14.21 and RCW Chapter 35.79, and are incorporated herein by this reference as if fully set forth herein. Section 3. The right-of-way vacation granted by this ordinance is expressly conditioned on, and will not be effective until, the Corporation of the Catholic Bishop of Yakima's satisfaction of the following conditions, as stated on page 8 and 9 of the Hearing Examiner's Recommendation: 1. Access to the City's water, wastewater and stormwater facilities shall be maintained at all times. 2. The City shall have and retain, and the abutting property owners shall grant, an easement for water, wastewater, and stormwater facilities over, underneath, through and across the vacated right-of-way, legally described in Exhibit A and fully incorporated herein, for operation, construction, access, and maintenance of the City's water, wastewater and stormwater facilities. This ordinance enacted by the Yakima City Council to vacate shall not become effective until all easement documents have been executed. 3. The amount of$252,000.00 shall be paid to the City of Yakima to compensate the City for the vacated right-of-way, pursuant to YMC 14.21.070. This ordinance enacted by the Yakima City Council to vacate shall not become effective until payment has been received. 4. Pursuant to YMC 14.21.100, applicant shall pay the City the full costs associated with recording this Ordinance with the Yakima County Auditor's Office, in advance of recording. Pursuant to YMC 14.21.120, the City retains control of the proposed vacated public right-of-way until all payment is received. Section 4. Pursuant to YMC 14.21.090, the City designates the zoning district of the vacated right-of-way to be General Commercial, inclusive of the applicable zoning district 2 67 designations, and the right-of-way vacated shall now and henceforth be subject to all regulations of the General Commercial zoning district. Section 5. Following vacation, any proposed improvements to the vacated property shall go through the proper land use review pursuant to the Yakima Municipal Code and as determined by the Planning Division. Section 6. After the City Council passes this Ordinance and prior to the City recording it with the Yakima County Auditor, applicant shall submit to the administrative official a record of survey prepared by a registered surveyor of the exact metes and bounds and any and all easements for existing and future utilities and services pursuant to YMC 14.21.110. Section 7. Severability: If any section, subsection, paragraph, sentence, clause or phrase of this ordinance is declared invalid or unconstitutional for any reason, such decision shall not affect the validity of the remaining portions of this ordinance. Section 8. 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, and the vacation approved herein shall be effective upon recording with the Yakima County Auditor. The City Clerk is hereby authorized and directed to file a certified copy of this ordinance with the Yakima County Auditor. PASSED BY THE CITY COUNCIL at a regular meeting and signed and approved this 18th day of June, 2024. ATTEST: Patricia Byers, Mayor Brandy Bradford, Deputy City Clerk Publication Date: June 22, 2024 Effective Date: July 22, 2024 3 68 EXHIBIT "A" LEGAL DESCRIPTION NORTH 4TH STREET VACATION THAT PORTION OF NOR FI 41 'STREET LYING NORTH OF TI-H NORTH RIGHT-OP-WAY LINE OF EAST MARTIN LUTHER KING JR. BOULEVARD AND SOUTH OF THE SOUTH RIGHT-OF- WAY LINE OF EAST LINCOLN AVENUE. • 69 RFCFI►1ED EXHIBIT "B" APR 2 fl 2124 CITY OF YAKIMA HEARING EXAMINER t;)F Y 0t Yeti iia t, PLANNING 1DI '. IN THE MATTER OF ) RECOMMENDED FINDINGS OF ) FACT,RECOMMENDED ) CONCLUSIONS OF LAW, ) AND RECOMMENDED DECISION RW V001-23 ) RIGHT-OF-WAY VACATION ) THIS MATTER having come on for hearing in front of the City of Yakima Hearing Examiner on April 12, 2024, the Hearing Examiner having taken evidence hereby submits the following Recommended Findings of Fact,Recommended Conclusions of Law,and Recommended Decision as follows: 1. RECOMMENDED FINDINGS OF FACT I. Description of Request:Proposal to vacate right-of-way at N.4th St.between E.Lincoln Ave. and E.Martin Luther King Jr.Blvd 2. Background:On November 14,2023,the City of Yakima Department of Community Development received a petition from Hordan Planning Services on behalf of the Catholic Bishop of Yakima Corp.for the vacation of a portion of right-of-way.The proponent has requested this vacation for the purpose of owning and maintaining the right-of-way for the purpose of on-campus traffic management and student safety. 3_ Hearing Examiner Authority:The Hearing Examiner has jurisdiction to conduct public hearings on petitions and resolutiois to vacate streets and public right-of-way pursuant to RCW Ch. 35.79.Decisions of the examiner on such matters shall constitute a recommendation to the City Council(YMC§ 1.43.0$0(I-1)). 4. Urban A ca Zoning Ordinance:Technically,street rights-of-way are not designated with an underlying zoning district.However,upon vacation they become zoned the same as the properties to which they are immediately contiguous_in this case,the contiguous zoning is General Commercial(GC).The entire portion ofN.4th St.to be vacated will be zoned GC upon vacation,consistent with the zoning that is currently located along the right-of-way. 5. Yakima Comprehensive Plan 2040:Street rights-of-way do not contain an underlying Comprehensive Plan designation,Upon vacation they will obtain the same Comprehensive Plan designation as the properties to which they are immediately contiguous.The subject portions of right-of-way,once vacated,will have a Future Land Use Designation of Commercial Mixed- Use. 6. Revised Code of Washington(BCW)35.79:This chapter of state law stipulates the state's requirements for the process of vacating street right-of-way.All requirements of this chapter that can be accomplished prior to the public hearing have been fulfilled.State law provides that the property within the limits to he vacated shall belong to the owners of the lots abutting each RWV 001-23 Right-Of-Way Vacation Page 1 of 9 70 '7CFIVED 3 2024 side of the vacated area,one-half to the owners on each side of the vacated area(RCW§ II °� $- Yf4ftP r'� 35,79.040). E'f A�1M1l�G DIV. 7. The property being vacated is considered public right-of-way and surrounding properties have the following characteristics: 8. Direction-Zoning-Land Use 8.1. North: Zoning:none. Land Use: Public Right-of-Way 8.2. 5oath: Zoning:none. Land Use:Public Right-of-Way 8,3. East: Zoning:General Commercial(GC) Land Use:Offices and Clinics, Parking Lot,Vacant Land 8.4, West: Zoning:General Commercial(GC) Land Use:Church,Elementary and Middle School 9. On December 19,2023,a DST meeting was held to discuss the possible impacts of this vacation. The following comments were received from public agencies and private companies with an interest in the development herein being reviewed 9.1.Surface Water:The City ofYakima has storm drain pipes in the east and west sides of 4th Street within this block.These pipes are part of a system that conveys stonnwater to the Yakima River. 9.2.Traf iic,ngineering:Traffic volumes on this section of 4th St are low,and arc almost all generated by school business. By vacating the right of way on this block,it will allow the St. Joe/Marquette school to create a traffic pattern for student drop off and pick up that will reduce and/or eliminate the vehicle backups that currently block 3rd Street. 9,3.Wagtewatcr: 'Thera is an active City Sewer mainline in this portion of N 4th St.If street is vacated,there will need to be a recorded easement for sewer line per YMC requirements. Full access shall be provided to the existing wastewater facilities for operation,maintenance and repairs, 9.4.Water/Irrigation:The following are general comments regarding the existing site conditions for the above referenced project: 9.4.1.There's an existing looped eight-inch cast iron waterline in N.4th St. 9.4.2.There are numerous existing water service to the parcels along this portion of N.4th St. 9.4.3.Therc's an existing fire hydrant off of the looped eight-inch waterline at the southeast corner of N.4th St.and E.Lincoln Ave. 9.4.4.A 16-foot easement shall be provided for all existing water facilities within the vacated portion of N.4th St.No structures,trees or permanent ground features that would obstruct access to the existing,water facilities shall be installed within the proposed easement.Full access shall be provided to the existing water facilities for operation, maintenance and repairs.See attached proposed easement document.Easement document shall be executed by the applicant,approved by City and recorded. RWV 001-23 Right-Of-Way Vacation Page 2 of 9 71 ,` f, D APR `' 3 2024 ail I t' ttr Yetdtt,e PLANNING DIV. 9.4.5.Given the age and material type of the waterline(1940's era cast iron),applicant should consider replacement of the existing waterline to avoid future damage to improvements within the area of the requested vacation due to possible waterline breaks. 10. Public Use Of The Right-Of-Way:The subject portion of N.41h St,to be vacated is currently improved and maintained by the City of Yakima,and includes curb,gutter,and sidewalk on both sides of the street. 11. Criteria For Vacation Of Right-Of-Way:YMC Ch. 14.21 provides specific guidelines for right- of-way vacations,These guidelines include five criteria that must be met in the granting of vacation petitions.They are as follows: 12. The.pee lion must explain the public benefit of the project,the reasoning of the proposed vacation,and the limits of the vacation.The purpose of the proposed vacation is to assemble commonly owned properties into a single contiguous parcel to provide safety and security to students and parishioners of St.Joseph-Marquette school and St.Joseph church. In November of 2021,the Corporation of the Catholic Bishop of Yakima had the opportunity to purchase a vacant 1.03 acre parcel of property near its 2.50 acre school and church campus.The vacant 1.03 acre parcel was purchased and has since had a new gymnasium constructed on it.Unfortunately,the new gymnasium lies east of North 4th Street,while the school and church campus lies west of North 4th Street.Thus,the individual structures and land that make up the total campus are bisected by North 4th Street. This application requests the right-of-way vacation of North 4th Street from Martin Luther King Boulevard,north,to East Lincoln Avenue.There are two property owners with direct frontage on both sides of this section of North 4th Street.One being the applicant(Corporation of the Catholic Bishop of Yakima),and the other being M&G Property Partners, which has enjoined in this application. The safety and security of stud its,staff,parishioners and others on the campus are paramount to the Corporation of the Catholic Bishop of Yakima_The vacation of the North 4th Street right- of-way would permit students,staff and others,at the St.Joseph Marquette school,to walk from the existing school and church campus directly to the gymnasium without having to cross South 4th Street.The right-of-way vacation would provide the safety needed to protect those walking between the school and church campus,to the gymnasium,by completely removing pedestrian-vehicle interaction.Alleviating this pedestrian-vehicle interaction is the primary goal of this right-of-way request Currently,students and staff,cross North 4th Street approximately 16 times per weekday during the school year.North 4th Street has traffic traveling both north and south,as well as vehicles that park along North 4th Street,and then back into the North 4th Street right-of-way.These two factors create a dangerous situation,especially for young students.Vacating the right-of-way separates the pedestrian-vehicle interaction and removes the risk of an accident. 12.1, Hearing Examiner Recommended Finding: Vacating this portion of N.4th St.will benefit the public by allowing the St,Joseph campus to control traffic circulation and protect students and other pedestrians accessing properties adjacent to the length of the vacation taking place. RWV 001-23 Right-Of-Way Vacation Page 3 of 9 72 prCEI EL) A,PR g .•il'l1 31024 f yi•kkhioi/Y ANMNG OW 13.The vacation of right-of-wav does not deny sole access to any property.The vacation of the right- of-way permits the property owner with an opportunity to control access to the school and church campus by installing fencing and gates around all improvements to help ensure security.As part of the right-of-way vacation project, it is proposed that one private main entrance to the campus be established at the current intersection of North 4th Street and East Lincoln Avenue.Creating this main entrance provides an opportunity to reroute vehicle traffic,primarily associated with the school,in a new circulation pattern.The new pattern will reduce traffic congestion,currently encountered on North 3rd Street,by permitting substantial off-street vehicle stacking within the vacated North 4th Street right-of-way. 13.1. Hearing Examiner Recommended Finding:It has been determined that no sole access will be prohibited due to this right-of-way vacation.While this section of N.4th St.is currently used as a public street,vacation of the right-of-way will maintain vehicular access for all adjacent property owners via W.Lincoln Ave,This rerouting of traffic benefits both cross streets,as with this change backups will no longer occur on Martin Luther King Jr. Blvd. 14. Petitions shotthi_be consistent with the Six-Year Transportation Improvement Plan,Urban Men Com re s'v hey official eit lens and lie. A portion of the vacated right-of- way is proposed to be reserved as an open grass area.Currently,the St.Joseph Marquette school has no substantial grass or landscaped areas on its campus.This is primarily due to its urban setting and lack of space for such improvements. It is intended that a large area near the intersection of North 4th Street and MLK Jr.Boulevard be reserved for that purpose.This will provide an area for reflection and recreational purposes. There are many public benefits to this proposal.The project is intended to create a safe and secure setting for students,teachers,parishioners and others within the campus boundaries which is located within the downtown Yakima urban setting.Urban settings present many challenges. Some challenges are predictable,while others are not.This proposal provides the applicants an opportunity to assemble their properties into a single campus and secure the facility with perimeter fencing to help prevent unpredictable challenges. 14.1. Hearing Examiner Recommended Finding:The current Transportation Improvement Plan(FIR)indicates no planned improvements are to be done to the right-of-way that is to be vacated. It is currently designated as a Local Access street which experiences a minimal amount of daily traffic. 15. Yacation requests should be appropriate with existing and anticipated development in the area, based on zoning.current use and long range plans,The public benefits by eliminating the danger of pedestrian-vehicle interaction and provides safety to all pedestrians and drivers.A new on-site transportation circulation pattern has been established to correct existing off-site traffic congestion which currently occurs on North 3rd and North 4th Streets between MLK Jr. Boulevard and East Lincoln Avenue. 15.1. Hearing Examiner Recommended Finding:In recent years the main school building has been renovated and a new gymnasium is being constructed.The vacation of N.4th St. will allow the church and school uses on both sides of the street to be unified into a pedestrian-friendly campus. RWV 001-23 Right-Of-Way Vacation Page4 of 9 73 APR 3 3 2024 1 f Y OF Y AMNIA 16. Are there anypublieor franchised utilities in the right-of-way to be vacated oral if so,will they lbe"1 AJi\li s!G OW. relocate?Access to existing City of Yakima water mains,sewer mains and storm water facilities will be preserved in the form of an casement which will cover the entire right-of-way vacation area.Thus,City maintenance crews will be able to maintain anther replace those facilities as necessary. For the reasons stated above,a wide variety of public benefits arc accomplished by this right-of- way vacation_ 16.I. Hearing Examiner Recommended Finding:Access to the City's sewer and water casements shall be maintained at all times. 17. Compensation: 17.1. Y MC§ 14.21.070(A)states, `The applicant shall compensate the city in an amount which does not exceed one-half the appraised value of the area so vacated.If a public right- of-way has been part of a dedicated public right-of-way for twenty-five years or more,or if the subject property or portions thereof were acquired at public expense,the city may require the owns of the property abutting the public right-of-way to compensate the city in an amount that does not exceed the full appraised value of the area vacated." 17,2. The right-of-way proposed to be vacated was dedicated 25 years ago or more,and the applicant had it appraised at$252,000.00.The full amount shall be compensated to the City of Yakima in exchange for the vacation of the right-of-way. 17.3. Pursuant to RCW 35.79.030,one-half of the revenue received as compensation for the area vacated must be dedicated to the acquisition,improvement,development,and related maintenance of public open space or transportation capital projects within the city. 18. Traffic Study: 18.1. The City of Yakima Traffic Engineer has determined that a traffic study is not required for this right-of-way vacation. 19, Environmental review: 19.1. Street vacations are categorically exempt from SEPA review(WAC 197-11-800(2)(i) and YMC Ch.6.88). 20. The Yakima City Council set the date of this public hearing for street vacation on March 5,2024, by Resolution No.R-2024-035,in accordance with RCW 35.79.010.Other notices of this hearing wore provided for in the following manner: 20.1. Adjoining property owners notified March 12,2024 20.2, Legal ad published March 12,2024 20.3. Posting of right-of-way March 13,2024 20.4. Posting in three public places March 13,2024 RWV 001-23 Right-Of-Way Vacation Page 5 of 9 74 LAI y t Y+shi;llai,i 21. A total of 16 comments were received from the public as of April 5,2024,all in favor of the PL.ANNINI DIV. right-of-way vacation,noting potential improvements to pedestrian and traffic safety,along with the potential for securing and enhancing the campus. 22. Petition signatures for this vacation were obtained from the necessary two-thirds of the property owners fronting this vacation. 23. The subject right-of-way was dedicated as part of the Plat of the Town ofNorth Yakima, recorded February 29, 1885. 24. 1f this request is approved,the vacated right-of-way will be zoned GC. 25_ No properties will be denied sole access to the public street system by vacating this right-of-way. 26, The petition for vacation of this public right-of way does not conflict with any planned street improvement projects or other plans or projects of the City of Yakima. 27. The intended use of the property,once vacated,will benefit the general public.as it will improve pedestrian and traffic safety across the church and school campus,along with the potential for improved open space. 28. A traffic study for this proposal was not required but was done. 29. Ali necessary requirements for street vacations in RCW 35,79 are met. 30. In accordance with YMC§ 14.21.070(A),due to the right-of-way being dedicated for 25 years or more,full compensation to the City is required for this vacation. 31. No letters were received in opposition to this proposal. 32. An open record public hearing after due legal notice was held on April 12,2024."I ite Hearing Examiner attended this meeting by video teleconference, 33. Admitted into the records were the following exhibits: 33.1. Ex.A. Staff report, 33.2. Ex.B. Maps, 33.3. Ex.C. Site Plan. 33.4. Ex.D. DST Review, 33.5. Ex.E. Applications, 33.6. Ex.F. Public Notices, 33.7. Ex.G. Agency/Public Comments. 34. Appearing on behalf of the Applicant were James Carmody,Bill Hordan,and David Brown. Mr. Carmody testified that he was the attorney for the Applicant.Ile was not placed under oath.He provided argument based upon facts in the record. 35. Bill Hordan testified that he was an agent authorized to appear and speak on behalf of the Applicant and property owner.He was testifying as to issues within his areas of expertise as a planner and hearing examiner.He submitted the following exhibits into the record: RWV 001-23 Right-Of-Way Vacation Page 6 of 9 75 RECEIVED APR 2 3 Z024 35.1. EL H. Supplement to criteria to support public benefits analysis, apt ofYA1��1�i 35.2. Ex. I. Draft Right-of-Way Easement, PLANNING DIV. 35.3. Ex.J. Requirements for Right-of-Way Vacation Application, 35,4. Ex. K. Six(6)Aerial Photographs. 36. Mr.Hordan generally testified that the application met all ot'the requirements of the Yakima Municipal Code. 37. David Brown testified on behalf of the Applicant. He testified that he was an agent authorized to appear and speak on behalf of the Applicant and property owner.He testified as to increased safety that would result from this vacation.He offered Exhibit L,that was admitted into the record. Exhibit L is a Site Diagram of the on-site circulation. 38. Mr.C;armody's argument conformed with the written materials. His primary argument was based upon the compensation that should be paid by the Applicant to the City.He generally argued that the requested fair market appraised value,in full,is not fair to this applicant. He argued that a lesser amount,no more than one half of the assessed value,down to zero(0),be required by the City to acquire this right-of-way.His argument was that the code requirement in Yakima Municipal Code,YMC 14.21.070,that one hundred(1 00)percent value must be paid if the right of way is twenty-five(25)years older or more,does not make sense to the applicant. 39, The Hearing Examiner would find,based upon the testimony that was presented at the hearing, that the applicant will obtain a significant economic value by the vacation of this right-of-way. First of all,it would eliminate a public road way and combine two(2)parcels that are currently separated by that roadway.Although the students can currently safely cross North 4'h Street utilizing sidewalks,vacating this right-of-way will not only create greater safety for students on- site as they travel between their classrooms and the gymnasium,but also will allow green space to be developed,which currently,apparently,can not be developed because of the road bisecting the two parcels.The testimony was significant that this new greenspace will add significant value to the applicant. 40. The Hearing Examiner finds that the code provision of payment of the full apprased value for the vacated area,is appropriate. 41. Testifying from the public were the following individuals: 41.1. Tony Counev:Mr.Courcy testified that the crosswalk that was put in on North 411` Street did not work. 41.2. Max Neufeld. Mr.Neufeld is a seventh-grad student at the school that is located on- site. He testified that removing the roadway would make the site safer for students. 41.3. Abigail Wiatertield:Ms. Winterfield is a fourth-grade student at the school that is located on-site.She stated that there is a crosswalk and a speedbump that currently exists, but that parked cars on North 4`"Street impact the view of oncoming traffic when trying to cross the road. 41.4. Father Quiroga:Father Quiroga is the Parochial Vicar and Chaplain of the school.He also testified about the impact of funerals that are held at the church and school activities and that this vacation would lessen those impacts. RWV 001-23 Right-Of-Way Vacation Page 7 of 9 76 RECEIVED AP1 2 3 ?Y14 f Y (.il• 41.5. :Mr.Mann is a Yakima downtown business property owner. He indicate-Alli a ti p that he agreed with the vacation. 41.6. Johanna Thielan: Ms.Thielan testified that she has two(2)children that attend the school and that this vacation would relieve some safety concerns that she has. II.RECOMMENDED CONCLUSIONS OF LAW I. Petition signatures for this vacation were obtained from the necessary two-thirds of the property owners fronting this vacation, 2. The subject right-of-way was dedicated as part of the Plat of the Town of North Yakima, recorded February 29, 1885. 3. If this request is approved,the vacated right-of-way will be zoned GC. 4. No properties will be denied sole access to the public street system by vacating this right-of-way, 5. The petition for vacation of this public right-of way does not conflict with any planned street improvement projects or other plans or projects of the City of Yakima. 6. The intended use of the property,once vacated,will benefit the general public as it will improve pedestrian and traffic safety across the church and school campus, along with the potential for improved open space. 7. A traffic study for this proposal wits not required,but was done. 8. All necessary requirements for street vacations in RCW 35.79 are met. 9. In accordance with YMC§ 14.21.070(A),due to the right-of-way being dedicated for 25 years or more,full compensation to the City is required for this vacation. 10. No letters were received in opposition to this proposal III. RECOMMENDED DECISION Based on the above Recommended Findings of Fact and Conclusions of Law, the Hearing Examiner recommends that the vacation of platted right-of-way adjacent to land owned by the Catholic Bishop of Yakima Corp.and M&G Property Partners be APPROVED. IV.RECOMMENDED CONDITIONS OF APPROVAL 1. The vacated right-of-way shall be zoned GC, 2. Access to the City's sewer and water easements shall be maintained at all times, RWV 001-23 Right-Of-Way Vacation Page 8 of 9 77 ¶CEW ED APR 2 3 2024 (Ali( OF Yflitir.i. 3_ A water easement shall be recorded with the City of Yakima, PLANNING WV. 4. An ordinance enacted by the Yakima City Council to vacate this public right-or-way shall not become effective until the applicant or the owners of the property abutting it have compensated the City in the amount of$252,000.00, 5. Following vacation,any proposed improvements to the property shall go through proper land use review as determined by the Planning Division_ Dated this la ay of April,2024. CITY OF YAKIMA HEARING EXAMINER A w L.Kottkamp RWV 001-23 Right-Of-Way Vacation Page 9 of 9 78 Distributed at th Meeting t 7 COMPENSATION SUMMARY VACATION OF FOURTH STREET RCW 35.79.030. If the legislative authority determines to grant the petition or any part thereof, such city or town shall be authorized and have authority by ordinance to vacate such street, or alley, or any part thereof, and the ordinance may provide that it shall not become effective until the owners of property abutting upon the street or alley, or part thereof so vacated, shall compensate such city or town in an amount which does not exceed one-half the a raised value of the area so vacated. If the street or alley has been part of a de ica a 'pu Ic"rig it=o -way or twentyive years or more, or if the subject property or portions thereof were acquired at public expense, the city or town may require the owners of the property abutting the street or alley to compensate the city or town in an amount that does not exceed the praised value of the area vacated. Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 937 P.2d 1082 (1997) (Holding that City Council had discretion to waive compensation under RCW 35.79.030). RCW 35.79.030 grants municipal corporations the authority to vacate streets and those municipal corporations are authorized to require compensation for street vacations. The authority to require compensation is permissive. Nothing in the statue makes is obligatory for cities or towns to require compensation for street cations. YMC 14.21.070 Compensation. The applicant shall compensate the city in an amount which does not exceed one- half the a raised value of the area so vacated. =.11ToAMErs bean d pailiE right-of-way for twy-five years or more, or if the suIdi property or portions thereof were acquired at public expense, the city or town require the owners of the property abutting the street or alley to compensate the city or town in an amount that does not exceed the full appraised value of the area vacated. 35.79.030. Hearing--Ordinance of vacation, WA ST 35.79.030 West's Revised Code of Washington Annotated Title 35.Cities and Towns(Refs&Annos) Chapter 35.79.Stteets--Vacation(Refs&Annos) West's RCWA 35.79.030 35.79.030.Hearing--Ordinance of vacation Effective:July 22,2011 Currentness The hearing on such petition may be held before the legislative authority, before a committee thereof, or before a hearing examiner,upon the date fixed by resolution or at the time the hearing may be adjourned to.If the hearing is before a committee the same shall, following the hearing,report its recommendation on the petition to the legislative authority which may adopt or reject the recommendation. If the hearing is held before a committee it shall not be necessary to hold a hearing on the petition before the legislative authority. If the hearing is before a hearing examiner,the hearing examiner shall,following the hearing,report its recommendation on the petition to the legislative authority,which may adopt or reject the recommendation: PROVIDED,That the hearing examiner must include in its report to the legislative authority an explanation of the facts and reasoning underlying a recommendation to deny a petition.If a hearing is held before a hearing examiner,it shall not be necessary to hold a hearing on the petition before the legislative authority. If the legislative authority determines to grant the petition or any part thereof, such city or town shall be authorized and have authority by ordinance to vacate such street, or alley, or any part thereof, and the ordinance may provide that it shall not become effective until the owners of property abutting upon the street or alley,or part thereof so vacated,shall compensate such city or town in an amount which does not exceed one-half the appraised value of the area so vacated. If the street or alley has been part of a dedicated public right-of-way for twenty-five years or more,or if the subject property or portions thereof were acquired at public expense,the city or town may require the owners of the property abutting the street or alley to compensate the city or town in an amount that does not exceed the full appraised value of the area vacated. The ordinance may provide that the city retain an easement or the right to exercise and grant easements in respect to the vacated land for the construction,repair, and maintenance of public utilities and services.A certified copy of such ordinance shall be recorded by the clerk of the legislative authority and in the office of the auditor of the county in which the vacated land is located. One-half of the revenue received by the city or town as compensation for the area vacated must be dedicated to the acquisition, improvement,development, and related maintenance of public open space or transportation capital projects within the city or town. Credits [2011 c 130§ I,eff.July 22,2011;2002 c 55§ 1;2001 c 202§ 1; 1987 c 228§ 1; 1985 c 254§ 1; 1969 c 28§4.Prior: 1967 ex.s. c 129§ 1; 1967 c 123 § 1; 1965 c 7§35.79.030;prior: 1957 c 156§4; 1949 c 14§ 1; 1901 c 84§2;Rem.Supp. 1949§9298.] Notes of Decisions(10) West's RCWA 35.79.030,WA ST 35.79.030 Current with effective legislation from the 2024 Regular Session of the Washington Legislature. Some statute sections may be more current,see credits for details. End of Document ©2024 Thomson Reuters.No claim to original U.S.Government Works. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 1 Greater Harbor 2000 v.City of Seattle, 132 Wash.2d 267(1997) 937 P.2d 1082 -KeyCite Yellow Flag-Negative Treatment — West Headnotes(14) Disagreement Recognized by Kightlinger v. Public Utility Dist.No. 1 of Clark County, Wash.App.Div.2, December 16,2003 [1] Municipal Corporations Vacation or 132 Wash.2d 267 Abandonment Supreme Court of Washington,En Banc. "Vacation of streets" is exclusive method by which owners of properties abutting street may GREATER HARBOR 2000,A Washington Non— petition legislative authority of city to extinguish Profit Corporation;Gary Ogden;George A.Wade; public's easement for public travel on street's Arlene Wade;William Owchar;Ann Owchar;Michael right-of-way and allow title to underlying street J.Reberg; Gerald Kingen;James Paul Kinch;Theda property to be vested in abutting property N.Brentson;and John P.Kennedy,on their own owners. West's RCWA 35.79.010 et seq. behalf and on behalf of and as class representatives 3 Cases that cite this headnote for all other persons similarly situated,Appellants, v. CITY OF SEATTLE,a Washington Municipal [2] Appeal and Error •* Review using standard Corporation and Port of Seattle,a Washington applied below Municipal Corporation,Respondents. When reviewing summary judgment, Supreme Court engages in same inquiry as trial court; No.63644-3 it will affirm summary judgment if no genuine I issue of material fact exists and moving party is Argued Nov. 19, 1996. entitled to judgment as matter of law. CR 56(c). Decided June 5, 1997. 44 Cases that cite this headnote Synopsis [3] Summary Judgment i+ What Constitutes Nonprofit corporation of citizen taxpayers brought action to "Material"Fact challenge city's preliminary approval of port district's petition to vacate streets and alley in redevelopment project. The "Material fact" precluding summary judgment Superior Court,King County,entered summary judgment in is one of such nature that it affects outcome of favor of city and port district.Direct review was granted.The litigation. CR 56(c). Supreme Court,Smith,J.,held that corporation lacked abutter 50 Cases that cite this headnote standing or taxpayer standing to challenge city's decision. Affirmed. [4] Summary Judgment i* Burden of Proof Burden of showing there is no issue of material Johnson,J.,concurred in result and filed opinion. fact falls upon party moving for summary judgment. CR 56(c). Madsen, J., dissented in part, concurred in result, and filed opinion. 9 Cases that cite this headnote Sanders,J.,dissented and filed opinion. [5] Summary Judgment 6.0 Genuine Issue or Dispute as to Material Fact Procedural Posture(s):Motion for Summary Judgment. Summary Judgment •+ Shifting burden Only after moving party has met its burden of producing factual evidence showing it is entitled to judgment as matter of law does burden shift to WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 1 Greater Harbor 2000 v.City of Seattle,132 Wash.2d 267(1997) 937 P.2d 1082 nonmoving party to set forth facts showing that there is genuine issue of material fact.CR 56(c). [10] Municipal Corporations Nature and scope in general 18 Cases that cite this headnote Municipal Corporations •+ Conditions precedent in general [6] Summary Judgment O., Favoring "Taxpayer standing" requires taxpayer request nonmovant;disfavoring movant for action first by Attorney General, refusal of Supreme Court must consider all facts and that request before action is begun by taxpayer, inferences in light most favorable to nonmoving and showing of violation of unique right or party,and motion for summary judgment should interest. be granted only if,from all evidence,reasonable persons could reach but one conclusion. CR 10 Cases that cite this headnote 56(c). [11] Municipal Corporations Capacity to 15 Cases that cite this headnote contract in general Public Contracts i+ Authority and capacity [7] Appeal and Error ti'. De novo review of particular governmental bodies to contract All questions of law are reviewed de novo. Municipal corporation is permitted to enter into contracts which are proper and reasonably necessary to enable it to perform functions [8] Municipal Corporations 6+ Petition, expressly conferred and essential to enable it to consent,or remonstrance of property owners perform fully duties of local government. Municipal Corporations •* Contesting validity of municipal ordinances or acts Nonprofit corporation of citizen taxpayers [12] Municipal Corporations Vacation or lacked abutter standing or taxpayer standing Abandonment to challenge city's preliminary approval of Authority of municipal corporation to require port district's petition to vacate streets in compensation for vacating streets is permissive. redevelopment project; corporation's members West's RCWA 35.79.030. were not abutting property owners on streets, and corporation failed to establish unique legal right or privilege violated by city's decision [13] Municipal Corporations P+ Vacation or and failed to establish violation of Municipal Abandonment Code in failing to require compensation from City's general ordinance providing for street port district at preliminary stage. West's RCWA vacation and compensation did not need to 35.79.030; Seattle, Wash., Municipal Code Ch. control petition for vacating streets, if city 15.62; Seattle, Wash., City Ordinances 109139, council,by resolution,determined otherwise. 114876. 11 Cases that cite this headnote [14] Municipal Corporations i+ Nature and requisites in general [9] Action i+ Persons entitled to sue Documents such as agreements may be adopted "Standing doctrine"prohibits litigant who is not and enacted as ordinances where documents adversely affected by public act or statute from adopted are sufficiently identified and made part asserting legal rights of another. of public record so there is no uncertainty about them. 6 Cases that cite this headnote WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 2 Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267 (1997) 937 P.2d 1082 The Port is a major developer of the Southwest Attorneys and Law Firms Harbor Redevelopment Project (Project), a comprehensive remediation and marine redevelopment project of about 190 "1084 "268 Helsell, Fetterman, Martin, Todd & acres of industrial land in the Duwamish Industrial Arca Hokanson, Peter J. Eglick, Jonathan P. Meier, Seattle, and of Seattle. The Project has several purposes: (1) to clean Bob C. Sterbank,Federal Way,for Appellants. up contaminated industrial land; (2) to expand the existing container ship facility; and (3) to develop an intermodal Mark Sidran, Seattle City Attorney, Judith B. Barbour, rail yard within the container ship facility. The Project site Asst. City Attorney; and Tracy M. Goodwin, Seattle, for originally was under multiple ownership and fragmented by Respondents. several intervening streets,but the Port has acquired most of the tracts of land and is in process of completing acquisition Opinion of the remaining tracts.2 The site is *270 currently devoid SMITH,Justice. **1085 of any public access areas or amenities.3 Appellants t seek direct review of a decision of the King The Port conducted over 200 meetings with members of the County Superior Court which on summary judgment denied community to obtain their reaction to the design of proposed their petition for declaratory and injunctive relief,mandamus mitigation measures and public amenities for the Project.The and writs of review to set aside acceptance by the Seattle City Port sponsored a design workshop,issued Project newsletters Council of a recommendation of the Council's Transportation 4 and sent mailings to more than 75,000 people. Committee to grant preliminary approval of a petition by the Port of Seattle to vacate 15.2 acres of public streets and an [1] The Port of Seattle on October 7, 1994 submitted to the alley located in the Port's Southwest Harbor Redevelopment City of Seattle a petition to vacate several streets located in Project.We granted review.We affirm. the Project site to permit the Port to incorporate the property underlying those streets into the Project. The "vacation" of streets is an exclusive method by which the owners QUESTIONS PRESENTED of properties abutting a street may petition the legislative authority of a city to extinguish the public's easement for The questions presented in this case are(1)whether Appellant public travel on a street's right-of-way and allow title to *269 Greater Harbor 2000 has standing to challenge a the underlying street property to be vested in the abutting decision by the City of Seattle to grant preliminary approval 5 property owners. of a petition by the Port of Seattle to vacate 15.2 acres of public streets; and (2) whether a prior agreement between the Port of Seattle and the City of Seattle can exempt the The Port sought vacation of the following streets in Seattle: Port of Seattle from complying with the Municipal West Marginal Way Southwest; Southwest Florida Street; Code requirement for compensation to the City for Street 26th Avenue Southwest;29th Avenue Southwest;and an alley between Southwest Spokane Street and West Marginal Way vacations. Southwest.Vacation of those four streets and the alley would result in elimination of 15.2 acres of public rights-of-way. STATEMENT OF FACTS The®promised, as a condition for approval of the Ena petition, to dedicate to the City of Seattle 15.1 Respondent Port of Seattle(Port) is a municipal corporation acres of land and public improvements valued at about$10 created in 1911 under RCW 53.04 to enhance and manage 6 the flow of water and air passenger traffic, cargo and goods million. The Port has spent $67 million on environmental through King County. The Port accomplishes its mission by cleanup and$18.5 million on urban impact mitigation, with a total expenditure for public use *271 improvements and planning and developing marine terminal and airport facilities for use by private industry and the public.Under RCW 53.08 environmental benefits being$95.5 million.7 the Port is given the necessary powers to accomplish its purposes. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 3 Greater Harbor 2000 v.City of Seattle, 132 Wash.2d 267(1997) 937 P.2d 1082 Appellant Greater Harbor 2000 (Greater Harbor) is a private interest group consisting of a Washington nonprofit WHEREAS, the City is in the process of completing the corporation and individual taxpayers in the City of Seattle: vacation of approximately acres of-street area,the Gary Ogden, George A. Wade, Arlene Wade, William fair market value of which is conservatively estimated Owchar, Ann Owchar, Michael J. Rcbcrg, Gcrald Kingcn, to be $6.5 million, to enable the Port to proceed with James Paul Kinch, Theda N. Brentson, and John P. the development of its Southwest Harbor Project, which 8 project includes substantial mitigation of its impacts Kennedy. Neither the corporation nor the individuals own together with public use improvements,but for which no tracts within or contiguous to the Project.9 Appellant Greater street vacation fees except administrative costs have been Harbor participated in public hearings and submitted written required;and comments to the Seattle Street Use Appeals Board and the Seattle City Council relating to the petition of the Port for WHEREAS, the City Council believes that the Central the Project street vacations. 10 Waterfront Agreement, which has no term prescribing its length or duration,has been in effect for a reasonable time, On September 11, 1995,after extensive discussion and public that the purposes of the agreement have been fulfilled,and response during seven public committee meetings following that the Port has received the benefit of its bargain;and the June 28, 1995 filing of the recommendation of Seattle' WHEREAS, in 1985 the Port and the City completed a Street Use Appeal Board,the Seattle City Council voted 8-0 joint planning effort which culminated in the adoption of to accept the recommendation of the Council's Transportation the Comprehensive Public Access Plan for the Duwamish Committee to grant preliminary approval of the petition by Waterway("Duwamish Plan"),and; the Port for vacation of the fa= t 1 WHEREAS, circumstances have changed over the ten **1086 The challenged action of the Council is years since the Duwamish Plan's adoption, with some memorialized in Resolution 29295 which reads in its entirety: of the development proposed in the Plan having been accomplished, and some now appearing to be rendered A RESOLUTION relating to intergovernmental relations obsolete by a more rapid shift to containerization than was *272 between the City of Seattle and the Port of expected;and Seattle, calling for a like resolution from the Port of Seattle Commission signifying its willingness to enter *273 WHEREAS, the Port is contemplating substantial into negotiations to amend or modify the Port—City redevelopment of Harbor Island in a manner that appears to agreement, entered into in connection with the Port's be substantially different from that envisioned in the 1985 Central Waterfront Project and authorized by Ordinance Plan,and which will require the vacation of more street area 114876, and the Public Access Plan for the Duwamish than was contemplated by the City and the Port, either in Waterway, adopted by the City by Resolution 27127 and the Duwamish Plan or the Central Waterfront Agreement; by the Port by Resolution 2949. and WHEREAS, on December 27, 1989 the Port of Seattle WHEREAS, the Harbor Island redevelopment process and The City of Seattle entered into an agreement would benefit from a comprehensive, joint planning ("Central Waterfront Agreement")relating to the vacation process similar to that engaged in for the Duwamish Plan; of portions of certain downtown its,to enable the Port NOW,THEREFORE, to proceed with its Central Waterfront Project;and BE IT RESOLVED BY THE CITY COUNCIL OF THE WHEREAS, the Central Waterfront Agreement contains CITY OF SEATTLE: a term by which the City agreed that any future street vacations granted to the Port would be at no cost to the Port The City Council calls on the Port of Seattle Commission (except administrative costs) and would not include any to adopt a resolution directing Port staff to meet and confer payment based on the fair market value of the area vacated; with City staff for the purpose of identifying amendments and and modifications to the Central Waterfront Agreement and the Duwamish Plan,in order to plan for orderly and rational WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 4 Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267(1997) 937 P.2d 1082 development of Harbor Island and the vacation of any the City to waive payment for all future street vacations streets thereon. requested by the P . 14 The City Council further calls on the Mayor of Seattle to direct City staff to meet and confer with Port staff for the Appellant Greater Harbor contends Seattle Municipal Code same purpose. Chapter 15.621' required the Port to pay the City an *275 amount equal to at least one-half of the appraised value of ADOPTED by the City Council of the City of Seattle this the streets to be vacated,or convey Port property to the City 11 day of September, 1995, and signed by me in open appraised at least at half the fair market value of the land being session in authentication of its adoption this 11 day of vacated.16 September. 1995. s/Jim Street The King County Superior Court, the Honorable Charles V. President of the City Council Johnson,on November 29, 1995 granted summary judgment to Respondents Port of Seattle and City of Seattle and denied **1087 Filed by me this 11 day of September, 1995. summary judgment to Appellant Greater Harbor. The court s/Judith E.Pippin determined that no genuine issue of material fact existed on City Clerk any of the causes of action in the complaint of Appellant Greater Harbor. 17 The Order on Summary Judgment read: On September 25, 1995 Appellant Greater Harbor filed in the King County Superior Court this class action petition This matter comes before the Court on the motions of 2 defendants Port of Seattle and Port [sic] of Seattle for for declaratory and injunctive relief, mandamus and *274 an Order Granting Port of Seattle's and City of Seattle's statutory and constitutional writs of review on behalf of themselves and"on behalf of and as class representatives for Motions for Summary Judgment and Denying Greater Harbor 2000's (GH2) Motion for Summary Judgment, all other persons similarly situated" in the City of Seattle. granting Port of Seattle's Motion to Strike in part portions They sought to set aside the preliminary approval by the City Council of the Street vacation unless the Port of plaintiffs declarations and ... GH2's motion to strike compensates the City in the amount of at least one-half the Port of Seattle's supplemental brief and Dismissing GH2's appraised value of the streets vacated or unless the Port Complaint with prejudice. The Court heard oral argument conveys to the City property equal in value to the vacated of counsel for plaintiffs GH2, Helsell,Fetterman, Martin, property under authority of RCW 35.79.030 and Seattle Todd and Hokanson by Peter J.Eglick,;for defendant Port of Seattle,Traci M.Goodwin,Port Counsel;for defendant Municipal Code Chapter 15.62. 12 City of Seattle,Judith B.Barbour,Assistant City Attorney, and considered the following pleadings and evidence: In its complaint, Appellant Greater Harbor contended the Seattle City Council did not comply with applicable NM **1088 1. Plaintiff's Motion for Partial Summary Municipal Code provisions which required payment of Judgment; compensation when the Council unanimously approved the recommendation to grant the petition of the Port for vacation 2.Declaration of Jonathan P.Meier; of the streets and alley.13 3.Defendant Port of Seattle's Motion and Memorandum for Summary Judgment Dismissing Plaintiffs Complaint and Appellant Greater Harbor also contends the Seattle City Response to GH2's Motion for Partial Summary Judgment; Council improperly accepted the port's claim that under the terms of two interlocal agreements between the City and the 4.Declaration of Charles Sheldon; ®(the 1980 West Seattle Bridge Agreement and the 1989 Central Waterfront Agreement)the®was not required to 5.Declaration of Ruth Strawser; pay compensation or to convey property for the specific street *276 6.Declaration of Traci Goodwin; • in the Project because the two agreements required WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 5 Greater Harbor 2000 v.City of Seattle, 132 Wash.2d 267(1997) 937 P.2d 1082 7. City of Seattle's Motion for Summary Judgment 28. [Stricken] Dismissing Complaint; 29. [Stricken] 8. Declaration of Judith Barbour in Support of City of Seattle's Motion for Summary Judgment; and having reviewed the flcs and Te..oidb in-this case and based on the argument of counsel and the evidence 9.Declaration of Tom Tierney in Support of Defendant City presented,the Court finds that no genuine issue of material of Seattle's Motion for Summary Judgment; fact on any of the causes of action in GH2's complaint and that defendants Port of Seattle and City of Seattle are 10.Declaration of Beverly Barnett in Support of Defendant entitled to judgment as a matter of law. City of Seattle's Motion for Summary Judgment; Based on the above findings it is hereby ORDERED: 11. City of Seattle's Response to plaintiffs Motion for Partial Summary Judgment; 1. Defendants Port of Seattle and City of Seattle Motions for Summary Judgment Dismissing GH2's Complaint are 12. Plaintiffs Response to Defendant's Motions for granted; Summary Judgment; 2.GH2's Motion for Partial Summary Judgment is Denied 13.Declaration of Jessica Rifts; 3. Defendant Port of Seattle's Motion to strike portions of 14.Declaration of Jonathan P.Meier; Plaintiffs Declarations is granted in part; 15.Reply Brief of Plaintiffs; 4. Plaintiff GH2's Motion to Strike Port of Seattle 16. Supplemental Declaration of Jonathan P.Meier; Supplemental Brief is granted;and 17. Defendant POS Reply to Plaintiffs Response to 5. Judgment shall be entered in favor of defendants Port Defendant's Motions for Summary Judgment; of Seattle and City of Seattle dismissing GH2's complaint with prejudice. 18.Declaration of Ruth Strawser; ORDERED this 15 day of December, 1995 19. City of Seattle's Reply to Plaintiffs Response to s/Charles V.Johnson Defendants'Motions for Summary Judgment; Judge Charles V.Johnson 20.Affidavit of Kerin R. Steele; In issuing the order on summary judgment, Judge Johnson 21. Port of Seattle's Motion to Strike Portions of GH2's made the following comment: 18 Declarations; 22. [Stricken] [T]he court is satisfied that the Plaintiffs in this matter do not have standing to challenge the actions of the City 23. Plaintiffs Response to Defendant's Motion to Strike Council *278 in this matter.... [T]hey are not property Portions of Greater Harbor 2000's Declarations; owners that abut to it,at least the streets that are involved in this matter.They certainly have no problems as it relates 24.Plaintiffs Motion to Shorten Time; **1089 to access. They are not at all disturbed in their access and they suffer no financial injuries. 25. Plaintiffs Motion to Strike Supplemental Brief of Defendant POS and Declaration of Frank S.Yanigamachi Without standing, the Plaintiffs in this matter are not and for Sanctions Pursuant to CR 11 and LR 56(b); entitled to relief. There is no material issue of fact that's before the Court which should be considered. Therefore, *277 26. Port of Seattle's Reply on Motion to Strike , I m going to deny the Plaintiffs Motion for Summary Portions of Declarations; Judgment in this matter. 27. [Stricken] WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 6 Greater Harbor 2000 v.City of Seattle,132 Wash.2d 267(1997) 937 P.2d 1082 On December 21, 1995 Appellant Greater Harbor sought judgment to Respondents is supported by the uncontroverted direct review by this court of the decision of the King County conclusion there is no genuine issue of material fact in the Superior-Court:We granted review on Rune 4,19-93. case. *280 Appellant Greater Harbor nevertheless contends the -- DISCUSSION record reveals"genuine issues of material fact"entitling it to a trial on the merits. It argues that genuine issues of material Respondents Port of Seattle and City of Seattle contend fact are raised in the pleadings and **1090 affidavits, but Appellant Greater Harbor has made no specific assignments does not otherwise identify those issues of material fact. of error, but has merely objected generally to the decision of the trial court denying its motion for partial summary [8] Appellant contends the trial court was in error in judgment and granting summary judgment to Respondents denying it standing to challenge the decision by the Seattle City of Seattle and Port of Seattle. City Council approving the recommendation to grant the street vacation petition of the Port because Appellant did [2] Summary judgment is appropriate "if the pleadings, not satisfy the abutter standing rule. Appellant contends depositions, answers to interrogatories, and admissions on that London v. City of Seattle 28 limits the rule of abutter file, together with the affidavits, if any, show that there is standing to "procedurally correct" vacations, arguing that no genuine issue as to any material fact and that the moving because the City of Seattle did not comply with the party is entitled to a judgment as a matter of law."19 When Seattle Municipal Code requirement of compensation for reviewing an order on summary judgment,this court engages street vacations Appellant need not comply with the abutter 20 standing rule. Appellant also contends that taxpayers who in the same inquiry as the trial court. This court will affirm summary judgment if no genuine issue of *279 material fact allege a generalized injury to all taxpayers indeed have exists and the moving party is then entitled to judgment as a standing to challenge any illegal act of their government. matter of law.21 Appellant contends that the 1980 agreement and the 1989 agreement between the Port of Seattle and the City of Seattle [3] [4] [5] A material fact is one of such nature that and resulting ordinances could not exempt the Port from it affects the outcome of the litigation.22 The burden of compensating the City for street vacationif as required by showing there is no issue of material fact falls upon the party the Seattle Municipal Code. Appellant contends the City of moving for summary judgment.23 Only after the moving Seattle violated its own Municipal Code when it enacted party has met its burden of producing factual evidence agreements as"special ordinances"to override the"general" showing it is entitled to judgment as a matter of law does the Seattle Municipal Code requirement of compensation for burden shift to the nonmoving party to set forth facts showing street vacations. that there is a genuine issue of material fact.24 Respondent City of Seattle contends that prior cases have [6] [7] This court must consider all facts and inferences established the abutter standing rule that property owners in the light most favorable to the nonmoving party, and the whose property does not abut upon a portion of a street motion should be granted only if, from all the evidence, proposed to be vacated do not have the right to contest the vacation unless there is interference with their access reasonable persons could reach but one conclusion.25 All to the property or other vested right. Respondent *281 questions of law are reviewed de novo.26 City of Seattle argues that because Appellant does not own any property within or contiguous to the Southwest Harbor Appellant Greater Harbor did not assign error to the finding Project land tract it thus does not have the right to contest by the trial court that "no genuine issue of material vacation of streets in the Project. Respondent Port of Seattle fact [existed] on any of the causes in General Harbor's asserts that Appellant is relying upon mere dictum in London complaint." "It is elementary that the lack of argument, the v. City of Seattle to support its claim of standing to challenge lack of citation to the record, and lack of any authorities the Council's decision. preclude consideration of those assignments.The findings are verities."27 The order of the trial court granting summary WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 7 Greater Harbor 2000 v.City of Seattle, 132 Wash.2d 267(1997) 937 P.2d 1082 [9] [10] The standing doctrine prohibits a litigant who compensation is permissive.Nothing in the statute makes it is not adversely affected by a public act or statute from obligatory *283 for cities or towns to require compensation asserting the legal rights of another.29 "one is to say for street vacation who is not adversely affected by a statute may not question its James S Camody validity."Yet this court has in some cases recognized standing CATHOLIC DIOCESE I 4/12/2024 07:09:57 to challenge governmental acts based solely upon the litigant's status as a taxpayer.30 The recognition of taxpayer standing Permissive has been given freely in the interest of providing a judicial forum for citizens to contest the legality of official acts of their s. The City of Seattle has enacted a general ordinance first providing for street vacation and compensation.39 That government.31 Under this circumstance a taxpayer must request action by the Attorney General and that request must ordinance need not control a petition for vacation by the be refused before action is begun by the taxpayer. 32 Port of Seattle if the Seattle City Council, by resolution, determines otherwise.Indeed,under the Seattle City Charter, "The mere fact that a taxpayer disagrees with a discretionary the Council may by resolution"determine otherwise."40 decision of the city provides no basis for a suit challenging that decision.... In order to maintain an action, the taxpayer [14] The City of Seattle entered into agreements with must show ... a unique right or interest that is being the ME of Seattle (the 1980 West Seattle Freeway violated,in a manner special and different from the rights of Interlocal Agreement and the 1989 Central Waterfront Project 33 Agreement) for Street vacations.The Port paid $10 million other taxpayers. The taxpayer must show that the action cash and $1.3 million in property in 1980 and $5.8 million complained of interferes with *282 the taxpayer's legal cash in 1988 and 1989 under those contracts. The City rights or privileges. If not, the taxpayer has no standing to exercised its legislative authority over street vacations by challenge the action.34 executing the 1980 and 1989 street vacation agreements with the Port and confirming them by ordinance or resolution.41 **1091 Apparently Greater Harbor did bring this matter to the attention of the Attorney General as one based upon Documents such as agreements may be adopted and enacted as ordinances where the documents adopted are sufficiently Appellant's status as taxpayers.35 Appellant has presented identified and made a part of the public record so there is no no argument establishing that it has a unique legal right uncertainty about them.42 or privilege which was violated by the decision of the Seattle City Council to accept the recommendation of its Transportation Committee to grant preliminary approval of Appellant Greater Harbor has not sufficiently established the petition of the Port of Seattle to vacate the streets its contention the City of violated the Seattle in the Southwest Harbor Redevelopment Project. At most Municipal Code requiring compensation for street vacations by its decision to accept the recommendation of the Appellant merely disagrees with the decision based upon Transportation Committee to grant preliminary approval of its interpretation of the Seattle Municipal Code. This is not the petition of the Port of Seattle to vacate streets in a sufficient basis for clothing Appellant with standing to the Southwest Harbor Redevelopment Project. Appellant challenge the Council in a legal action at this stage of the **1092 *284 merely disagrees with that decision and process. contends, without substantiation, that the City has illegally [11] [12] [13] A municipal corporation is permitted waived compensation from the Port for the street vacation. to enter into contracts which are proper and reasonably The record before us does not indicate the City has taken any necessary to enable it to perform functions expressly final action on the petition, although its preliminary action conferred and essential to enable it to perform fully the does point in that direction.We cannot assume that the Seattle City Council will commit an illegal act in whatever action it duties of a local government.36 The City of Seattle has may finally take on the Port's petition, although that action authority to enter into contracts.37 RCW 35.79.030 grants predictably may be final approval. municipal corporations the authority to vacate streets and those municipal corporations are authorized to require compensation for street vacations.38 The authority to require WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 8 Greater Harbor 2000 v.City of Seattle, 132 Wash.2d 267 (1997) 937 P.2d 1082 Exam'rfor Seattle Landmarks Preservation Bd., 129 Wash.2d SUMMARY AND_COYCLU&1OIYS 238,244-45,916 P.2d 374(1996). Appellant Greater Harbor did not assign any error to the This case concerns the preliminary approval of the street finding by the trial court ttrat-no genuine issue of material vacation. As noted by the majority, the resolution passed by fact existed on any of the causes in Appellant's complaint,but the Seattle City Council granted preliminary approval only assigned error only to the dismissal on summary judgment. to vacate the streets at issue. Majority at 1085. Additionally, The order of the trial court granting summary judgment both the majority and dissenting opinions recognize the City's to Respondents and dismissing Appellant's complaint is authority under article XXII, section 2 of the Seattle City supported by the uncontroverted conclusion from the record Charter to suspend by ordinance the operation of the code that there is no genuine issue of material fact in the case. provision mandating compensation for vacation of a street. Thus,regardless of whether the majority's or dissent's analysis Appellant Greater Harbor has no standing to bring this action. of the legality of the proposed vacation is correct, if the Its members, while taxpayers, are not abutting property Seattle City Council's final ordinance authorizing vacation owners. Appellant has not established that it has a unique of the streets in this case makes a specific reference to the legal right or privilege that was violated by the decision of Seattle Municipal Code section relating to compensation and the Seattle City Council to accept the recommendation of its suspends its provisions,the street vacation would be"legal." Transportation Committee to grant preliminary approval of the petition of the Port of Seattle to vacate the streets in the In sum, there is nothing for us to review. The controversy Southwest Harbor Redevelopment Project.Appellant has not presented is hypothetical and speculative, and may be established that the City of Seattle has at this stage of the rendered moot. Absent the enactment of a final ordinance by process violated the Seattle Municipal Code. the City, Appellants have failed to present an issue ripe for review by this or any court.Based on ripeness,I would affirm We affirm the decision of the King County Superior Court the trial court's grant of summary judgment in favor of the granting summary judgment to Respondents Port of Seattle City. and City of Seattle,denying summary judgment to Appellant Greater Harbor and dismissing its petition for lack of standing. *286 DURHAM,C.J.,and TALMADGE,J.,concur. **1093 MADSEN,Justice(concurring/dissenting). DOLLIVER,J.,concurs. The trial court erroneously granted summary judgment of *285 JOHNSON,Justice(concurring). dismissal in favor of the City of Seattle on the ground that I concur with the result reached by the majority,namely,that all the Appellants lack standing,and the majority erroneously summary judgment was properly granted in favor of the City affirms this ruling. However, I concur with the majority's Ci however,I would do so on the basis that the ultimate conclusion on the merits that at this stage of the of Seattle (City); proceedings there has been no violation of Seattle Municipal argument of the Appellants is premature. Code (SMC) 15.62.090 by the City of Seattle. Accordingly, The proper doctrine on which to resolve this case is that Appellants are not entitled to relief. of ripeness. While the majority implicitly recognizes that a determination on the legality of the proposed street vacation is premature, it fails to resolve the case on that basis. See Standing majority at 1085 n. 11.We do not resolve issues of law absent "an actual,present and existing dispute,or the mature seeds of A landowner whose property abuts a street or a portion of one,as distinguished from a possible,dormant,hypothetical, a street sought to be vacated or a non abutting landowner who suffers special injury has standing to challenge a street speculative, or moot disagreement." IIIIDiversified Indus. vacation. London v. City of Seattle, 93 Wash.2d 657, 660— Dev. Corp. v. Ripley, 82 Wash.2d 811, 815, 514 P.2d 137 61,611 P.2d 781 (1980);see PmYarrow First Assocs.v Town (1973);accord illFirst United Methodist Church v. Hearing of Clyde Hill, 66 Wash.2d 371, 374, 403 P.2d 49 (1965) WESTLAW 0 2024 Thomson Reuters. No claim to original U.S. Government Works. 9 Greater Harbor 2000 v.City of Seattle,132 Wash.2d 267(1997) 937 P.2d 1082 (town's plan to landlock property through street vacation compensation shall be paid to the city or town by the abutting created a special damage supporting the property owner's landowners as a prerequisite to vacation. challenge to attempted vacation). The issue here is 1 ether taxpayer standing provides an independent basis to challenge an allegedly illegal street vacation, and, if so, whether the Whether SMC 15.62.090 Violated taxpayer must suffer some particularized injury greater than that suffered by other taxpayers before he or she may bring The next question is whether the City of Seattle has suit. The majority concludes that such particularized injury unlawfully violated SMC 15.62.090 by vacating streets must be shown. I disagree. *288 without requiring that the abutting landowner,the Port of Seattle, pay one-half of the appraised value. At the time As the cases cited by the majority suggest,the parameters of Appellants brought this suit, the City Council had passed taxpayer standard are not entirely clear.Nonetheless, this is Resolution 29195,voting to accept the recommendation of its an appropriate case in which to recognize taxpayer standing. Transportation Committee to grant preliminary approval of RCW 35.79.030 provides that a city or town may provide the Port of Seattle's petition to vacate the streets at issue.That by ordinance that a street vacation will not be effective until resolution refers to the 1989 contract between the City and the abutting landowners compensate the city or town.Pursuant to Port and its terms **1094 providing that no payment would the state statute, SMC 15.62.090(A) mandates that the City be due from the Port upon future vacation of streets requested "shall not" pass any ordinance vacating any street or alley by the Port. until the city collects *287 one-half of the appraised value of the property to be vacated from the abutting landowners. l Initially, the 1989 contract and the accompanying 1989 Thus,the City's income is impacted when a street is vacated. ordinance did not amend SMC 15.62.090. A contract Here, over $3 million is at stake. Taxpayers clearly should plainly cannot amend an ordinance.The accompanying 1989 have standing to complain about the legality of the City's ordinance authorizing the mayor to execute the contract governmental act if the City proceeds to vacate streets while with the Port stated that future street vacations would not disregarding SMC 15.62.090. require payment, but did not comply with state and local law concerning the procedures required for amending another "The recognition of taxpayer standing has been given freely ordinance,as Justice Sanders'dissent explains.Thus,the 1989 in the interest of providing a judicial forum when this ordinance did not amend SMC 15.62.090. state's citizens contest the legality of official acts of their government." State ex reL Boyles v. Whatcom County Further,the 1989 ordinance did not suspend SMC 15.62.090, Superior Court, 103 Wash.2d 610, 614, 694 P.2d 27 (1985). contrary to the City's argument. That ordinance makes no Taxpayer standing is particularly appropriate in the context mention of SMC 15.62.090 and does not indicate it operated of this case where intergovernmental agreements provide for to suspend SMC 15.62.090. At a minimum, an ordinance street vacations and the sole abutting landowner and the only suspending the operation of another ordinance should plainly directly affected entity is the Port,a party to those agreements. indicate the suspension. Otherwise, neither those voting on Absent taxpayer standing,no one is in a position to complain the ordinance providing for suspension nor the public will about the allegedly illegal street vacations. have notice that an existing ordinance is being suspended. Accordingly,this court should follow those cases holding that The 1989 contract does not otherwise justify ignoring the taxpayer standing to challenge governmental acts does not payment requirements of SMC 15.62.090. First, as Justice Sanders explains in his dissent, the City's contract is require alleging a personal stake in the matter. Walker v. illegal insofar as it requires performance in violation of the Munro, 124 Wash.2d 402,419,879 P.2d 920(1994);PIState ordinance. Second, under the express terms of the Seattle ex rel.Boyles, 103 Wash.2d at 614-15,694 P.2d 27.The court City Charter art. XXII, § 2, the City could suspend *289 should recognize that,in addition to the standing conferred on operation of SMC 15.62.090 only by ordinance. It could not abutting landowners and non abutting landowners suffering do so by contract.2 special injury,taxpayer standing to challenge street vacations as illegal may be found where a city or town has enacted an However, Appellants' argument that the City has violated ordinance pursuant to RCW 35.79.030 which provides that SMC 15.62.090 because the Council passed the resolution is WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 10 Greater Harbor 2000 v.City of Seattle,132 Wash.2d 267(1997) 937 P.2d 1082 without merit as well. The resolution is not an ordinance at abutting property owners as a condition precedent to street all, and thus, not an ordinance vacating the streets without vacation. l Use of the word shall in an ordinance imposes payment. While Resolution 29195 might suggest plans to bypass the requirements of SMC 15.62.090, so far the City an imperative, rather than permissive, duty. Singleton v. has not violated that ordinance. Accordingly, Appellants are Frost, 108 Wash.2d 723,728,742 P.2d 1224(1987). not entitled to any relief as no violation has occurred. In 1994 the Port of Seattle, a municipal corporation and Finally, to the extent Appellants' argument is that the City the abutting landowner, petitioned the City of Seattle to has violated its charter by trying to amend or suspend SMC vacate 15 acres of streets in West Seattle to enable the 15.62.090 by way of Resolution 29195,the argument should Port to expand a container shipping terminal. The City be rejected.Under the Seattle City Charter art.XXII,§2,the conservatively estimated the value of the vacated streets at City could amend or suspend the operation of SMC 15.62.090 $6.5 million.The Port is the only abutting property owner and vis a vis the Port only by ordinance.The City could not and requested the vacations. did not amend or suspend SMC 15.62.090 by resolution.3 Although the Port is a municipal corporation, it is not *291 exempt from the payment requirement. Municipal I would hold that taxpayers have standing to challenge the corporations such as the Port were at one time exempt from legality of a street vacation where a city or town has enacted an ordinance pursuant to RCW 35.79.030 which provides paying street vacation fees.2 However, in 1983 the city that compensation shall be paid to the city or town by the council formally amended the prior ordinance to remove the abutting landowners before the street is vacated. However, exemption for municipal corporations.Seattle City Ordinance while Appellants have standing to bring suit, they are not 111076, § 1 (1983). Consequently from 1983 to date the entitled to relief because,as of this point in time,the City has ordinance has required municipal corporations to pay for not violated its ordinance,SMC 15.62.090. street vacations as would any private person.3 Despite the 1983 ordinance amendment the Seattle City Council granted the Port's request that the streets be vacated GUY,J.,concurs. without charge to the Port. See Clerk's Papers (CP) at 120 (Seattle City Council Resolution 29195 (Sept. 11, 1995) SANDERS,Justice(dissenting). ("the City is in the process of completing the vacation of We must determine two issues: *290 (1)whether the City of approximately 14.52 acres of street area...to enable the Port Seattle is bound by its own general ordinances, and, if it is, to proceed with the development of its Southwest Harbor (2)whether a group of citizens may bring a taxpayer suit to Project ... for which no street vacation fees ... have been enforce the law.The majority says no,no. I say yes,yes and required....")). accordingly dissent. The critical question is whether ordinance 111076 (1983) applies in this case.The City and Port argue(and the majority Did Seattle violate its own ordinance by agrees) this ordinance does not control for a variety of vacating streets without requiring adjacent reasons. landowners to pay one-half the value? First, Justice Smith's opinion identifies a 1989 contract Yes.The City of Seattle had a mandatory duty to collect from (CP at 276-80) and accompanying ordinance 114876 (Dec. the abutting landowner one-half the fair market value of all 27, 1989) (CP at 274) as authority to disregard ordinance streets vacated.The taxpayers assert the law clearly **1095 111076(1983).The 1989 contract concerned the Port's central mandates such collection and that even the city government waterfront project to revamp Seattle's downtown waterfront. is not above the law. The contract specifically listed certain streets to be vacated in downtown Seattle for which the Port gave consideration.The The applicable ordinance, Seattle City Ordinance 111076 contract also stated any future street vacations requested by (Mar. 28, 1983), unambiguously mandates the City "shall the Port would be made without requiring payment. " collect one-half the property's appraised value from the WEST LAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 11 Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267(1997) 937 P.2d 1082 *292 Ordinance 114876 (1989) also authorized the Mayor that objective. Failure to follow that procedure renders the to execute the contract with the Port. Ordinance 114876 attempted amendment void. This is the scenario here. The provided: "[T]he1vIayor is hereby authorized to execute an 1989 ordinance (I14876) did not comply with mandatory Agreement[with the Port]...establishing that any future street form and procedure and, thus, did not lawfully amend the vacations petitions ... would not require a payment based 1983 ordinance(111076). upon the fair market value of the area vacated...."CP at 274 (Seattle City Ordinance 114876, § 1 (1989)).This ordinance, State law requires amendments to ordinances may be however, made no mention of or reference to the general accomplished only by ordinance and further requires the fee requirement previously established by ordinance 111076 amending ordinance "shall set forth in full the section or (1983). sections, or subsection or subsections of the [municipal] codification being amended...." RCW 35.21.560. Similarly, The opinion of Justice Smith claims the 1989 contract in the Seattle City Charter mandates no ordinance may be itself authorizes the free vacations,even absent an ordinance, revised or amended except by re-enacting the new ordinance under a contract theory. It reasons cities have authority both at length as revised or amended.Seattle City Charter art.IV,§ to enter contracts and to require **1096 compensation and 9.4 The Seattle Municipal Code(SMC)also unambiguously therefore can enter a contract not requiring compensation. declares "new, amendatory or other materials altering the Smith op. at 1091. However a contract cannot lawfully Seattle Municipal Code shall be adopted by the City's violate an applicable municipal ordinance. Any contract legislative authority as separate ordinances .... [and] shall requiring performance in violation of an applicable ordinance set forth in full the section or sections, or subsection or is illegal and void even if made by the city. Mincks a subsections of the codification being amended...." SMC § City of Everett, 4 Wash.App. 68, 73, 480 P.2d 230(holding 1.01.030(Seattle City Ordinance 109560, § 3 (1980)).Thus, void and unenforceable a city contract because it violated a state statute, city charter, and city ordinance all set forth city ordinance),review denied, 79 Wash.2d 1002(1971); 10 mandatory procedures to amend an ordinance.None of them, Eugene McQuillin, The Law of Municipal Corporations § however,was followed here. 29.06, at 280(3d rev. ed. 1990)("A contract of a municipal corporation is ordinarily invalid if it is prohibited by, or Municipalities must comply with state and municipal *294 clearly in violation of duly enacted municipal ordinances...."). law. In cases where municipal government fails to comply in substance or form the attempted legislative act is invalid. The City next argues (and the opinion of Justice Smith again agrees) the 1989 ordinance authorizing the contract For example, in Savage v. City of Tacoma, 61 Wash. 1, was"special legislation"which"silently"amended ordinance 112 P. 78 (1910), this court struck a city ordinance because 111076(1983). Smith op.at 1091-92.However,we question its adoption was procedurally flawed. We declared "where whether the city council lawfully is entitled to amend a a municipal charter prescribes a definite method for the enactment of ordinances, such requirements are mandatory, generally applicable ordinance in this fashion. and no authority is vested in the lawmaking body of the First the 1989 ordinance must amend the 1983 ordinance to municipality to pass ordinances except in the manner required accomplish its objective. The test for determining whether a by the charter." f—.�Id. at 6, 112 P. 78. See also Puget legislative act attempts to amend an earlier act is: "Would a Sound Alumni of Kappa Sigma, Inc. v City of Seattle, 70 straightforward determination of the scope of rights or duties Wash.2d 222, 227, 422 P.2d 799 (1967) (holding a Seattle under the existing statutes be rendered *293 erroneous by City Council legislative act void for failure to comply with the new enactment?" IIIWashington Educ. Ass`n v. State, Seattle City Charter requirement that all legislative acts be by 93 Wash.2d 37, 41, 604 P.2d 950 (1980). Were the 1989 ordinance); Tennent v City of Seattle, 83 Wash. 108, 111-12, ordinance effective it would clearly conflict with the 1983 145 P. 83 (1914) (holding a Seattle City Council ordinance ordinance requirement that all abutting landowners must pay. invalid for failing to comply with charter requirement that no And if it were effective the 1989 ordinance would constitute nonappropriation ordinance shall be **1097 passed at the an amendment to the 1983 ordinance. same meeting it is introduced);In re Eng, 113 Wash.2d 178, 191,776 P.2d 1336(1989). In order for the City to amend an ordinance, however, it must follow a strict procedure to lawfully accomplish WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 12 Greater Harbor 2000 v.City of Seattle, 132 Wash.2d 267(1997) 937 P.2d 1082 Ordinance 114876(1989)was not enacted in appropriate form authorizing the vacation. It states the 1983 "ordinance need and thus cannot amend ordinance 111076(1983)because the not control a petition for vacation ... if the Seattle City 1989 ordinance did not set forth inIull ordinance 111076,nor Council, by resolution, determines otherwise."-Smith op. at did it re-enact it as amended. The 1989 ordinance does not 1091. even reference ordinance 111076 (1983). Further, no party claims the relevant portion of ordinance 111076 has been However it is elementary that a resolution cannot trump an amended since its 1983 enactment. ordinance.8 As discussed above, only a properly adopted ordinance may amend the directives of another ordinance. Such legal requirements to amend ordinances are designed See Seattle City Charter art. XXII, § 2 ("No privilege shall to provide specific notice to all citizens of any change in the be granted that suspends or conflicts with any ordinance, law.5 However, any citizen examining the SMC after the except by ordinance."); Seattle City Charter art. IV, § 7 1989 ordinance was adopted,much less the ordinance itself, ("Every legislative act of said City shall be by ordinance."). could not conclude the 1983 ordinance was amended. A resolution is not an ordinance but rather an expression of opinion without legislative effect. See Baker v. Lake City *295 PiFlanders v. Morris, 88 Wash.2d 183,558 P.2d 769 Sewer Dist., 30 Wash.2d 510, 518, 191 P.2d 844 (1948) (1977) vacated a state appropriation because it was never ("The term `resolution' as **1098 applied to the act of an properly codified and no one examining the code could know official body such as a city council or a board of county of its existence.The fatal flaw was that"[o]ne seeking the law commissioners ordinarily denotes something less solemn or on the subject would have to know one must look under an formal than the term`ordinance,' and,generally speaking,is `appropriations'title in the uncodified session laws to find the simply an expression of the opinion or mind of the official body...."). amendment." at 189,558 P.2d 769.The purported 1989 amendment to SMC 15.62.090 is similarly defective. In summary, the 1983 ordinance clearly requires the Port, as an abutting property owner,to pay one-half the appraised Nor is it claimed that the 1983 ordinance removing the value of the streets as a condition to street vacation. This municipal corporation exemption is invalid.6 If the City ordinance has not been repealed or lawfully amended. The wishes to once again exempt municipal corporations such as Port has not paid. The City has no intention to collect. The the Port it must do so openly, deliberately, and properly by City cannot lawfully act in disregard of its own ordinances. amending the prior ordinance in the form and by the method Our nation is built upon the principle that citizen and state otherwise required by law. alike are under the law and bound by it. IIIIMarbury v. Madison, 5 U.S.(1 Cranch) 137, 163,2 L.Ed.60(1803)(ours To further justify its holding the majority references a is a"government of laws, and not of men"); Thomas Paine, 1980 contract between the City and Port, also ratified Common Sense and Other Political Writings 32 (Nelson F. by ordinance 109135 (June 20, 1980). CP at 248. Such Adkins ed., 1953)("in America *297 the law is king").It is ordinance, however, was consistent with the then-existing the function of this court to keep it so. ordinance which exempted municipal corporations from vacation payment. Further,the 1980 contract in itself has no bearing whatsoever on this case because it has long since expired. The 1980 contract was the "West Seattle Freeway Standing Bridge Interlocal Agreement" and pertained to building that bridge. While that agreement referenced street vacations, it The opinion of Justice Smith considers taxpayer standing specifically limited any vacations to those requested"during and concludes there is none. This is error.9 As a leading the term of th[e]Agreement."CP at 254-55.7 The term of the scholar on municipal law explains, "[f]or at least a hundred contract was specifically limited to the removal of the existing years,the clear weight of authority has permitted citizens and bridge and construction of a new one.When the West Seattle taxpayers to sue their public servants for the performance Bridge was completed years ago,the 1980 agreement expired. of duties imposed by law upon the latter." 2 Chester James Antieau, Municipal Corporation Law § 16.58, at 16-118 *296 Justice Smith then opines ordinance 111076 (1983) (1991).The law clearly imposes a duty upon the city council was overridden by the 1996 city council resolution to collect monetary consideration in this case, but the city WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 13 Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267 (1997) council ignores its duty.Vacating the streets without requiring challenging"a discretionary decision of the city"must allege payment amounts to an illegal disposition. "Taxpayers have a particular injury and that general taxpayer status alone will standing to protest the illegal disposition of mumcipai not suffice to confer standing.Smith op. at 1090.Whit his properties."2 Antieau,supra§ 16.51,at 16-110. is correct as to challenges of discretionary,and legal, acts,it is not the rulc for challenging nondiscretionary, illegal ones. As a preliminary matter, taxpayer standing serves to check We held in 1985, prior to Walla Walla, no particularized governmental lawlessness. lliState ex rel. Boyles, 103 injury need be alleged to confer standing to challenge illegal Wash.2d 610, 614, 694 P.2d 27 (1985) (acknowledging the government acts. See 11111*299 State ex rel. Boyles, 103 high value placed on taxpayer suits which are allowed in"the Wash.2d at 614, 694 P.2d 27. We have continued to adhere interest of providing a judicial forum"for citizens to"contest to that rule after Walla Walla. SeePil Walker, 124 Wash.2d the legality of official acts of their government."). at 419-20, 879 P.2d 920 (decided in 1994). The opinion of Justice Smith does not distinguish these cases; it cites From the earliest days of statehood we have allowed citizens them and ignores their holdings. See Smith op. at 1090— to bring suit against the government to enforce the law solely 91 ("this court has in some cases recognized standing to on the basis of their status as taxpayers. PiTimes Publ'g Co. challenge governmental acts based solely upon the litigant's v. City of Everett, 9 Wash. 518, 37 P. 695 (1894) (allowing status as a taxpayer.") (citing IIIIState ex rel. Boyles, 103 taxpayer suit to force the PliCity of Everett to abide by the Wash.2d at 614, 694 P.2d 27). The result of the majority's city code); State ex rel. Boyles, 103 Wash.2d at 614, 694 mistaken holding may be the end of taxpayer standing in P.2d 27("This court recognizes litigant standing to challenge Washington. 11 governmental acts on the basis of status as a taxpayer."). Any taxpayer suit challenging an alleged illegal act must The opinion of Justice Smith suggests before a taxpayer meet two requirements: "the complaint must allege both *298 may bring suit he must show some particularized a taxpayer's cause of action and facts supporting taxpayer injury greater than that suffered by other taxpayers. Smith op. at 1090. While this may be an accurate statement of status." Dick Enters., Inc. v. Metropolitan/King County, 10 83 Wash.App. 566, 572-73, 922 P.2d 184 (1996). These federal law, it is simply not the law in Washington.We have plaintiffs have stated a valid taxpayer's cause of action and repeatedly held"a taxpayer need not allege a personal stake in have alleged facts supporting their status as taxpayers. the matter,but may bring a claim on behalf of all taxpayers...." Walker v. Munro, 124 Wash.2d 402, 419-20, 879 P.2d In 11111Barnett v.Lincoln, 162 Wash. 613,299 P. 392(1931)a 920 (1994) (citation omitted);see alsoril City of Tacoma v. taxpayer brought suit alleging that a city corporation executed O'Brien,85 Wash.2d 266,269,534 P.2d 114(1975)("It is well a contract without requiring a bond from the other party settled that taxpayers,in order to obtain standing to challenge as required by law. This court recognized taxpayer standing the act of a public official, need allege no direct, special or because "the risk of loss resulting from noncompliance or MN pecuniary interest in the outcome of their action...."); breach of the contract would fall upon the taxpaying public. **1099 State ex rel. Boyles, 103 Wash.2d at 614, 694 P.2d The■. assumption of this risk constitutes a general damage. 27(taxpayer has standing even though the only injury alleged f Id. at 622,299 P. 392.The court noted when a municipal was "one common to all citizens."); Kenneth R. Bjorge, corporation violates the law "it is a fair presumption that Standing to Sue in the Public Interest: The Requirements to every taxpayer will be injured in some degree by such Challenge Statutes and Acts ofAdministrative Agencies in the illegal act" even if no pecuniary harm can be shown. �Id. State of Washington, 14 Gonz. L.Rev. 141, 155-56 (1978) at 623, 299 P. 392. See also State v. Morgan, 131 Wash. ("In Washington,however,a taxpayer need allege no special 145, 148, 229 P. 309 (1924) (illegal expenditure of state interest to have standing."). funds constitutes sufficient harm to supply taxpayer standing because he loses"the benefit which he would otherwise have Justice Smith's opinion mistakenly relies upon III1American received....");PoState ex rel. Gebhardt v. Superior Court for Legion Post No. 32 v. City of Walla Walla, 116 Wash.2d 1, King County, 15 Wash.2d 673,680,131 P.2d 943(1942)("[A] 7, 802 P.2d 784 (1991) for the proposition that a taxpayer taxpayer may seek relief in equity against a *300 public WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 14 Greater Harbor 2000 v.City of Seattle, 132 Wash.2d 267(1997) 937 P.2d 1082 __��.____-...��.._._.... . .,�,_...,.w_....,_..._._.. wrong which results in imposing an additional burden on the vacation, he must allege a particular injury such as loss taxpayers."). 12 Here Seattle taxpayers suffered a$3 million of access or abutter status. See 1111Yarrow First Assocs. u loss. This loss is much greater than the risk of loss faced Town of Clyde Hill, 66 Wash.2d 371, 403 P.2d 49 (1965) in Barnett which we nevertheless found sufficient to confer (landlocked abutting property owner successfully challenged standing. town decision to vacate street on abuse of discretion grounds). However, when the plaintiff challenges the legality of a However, we still allow taxpayer suits to go forward even governmental act and not the wisdom behind *301 the absent a showing that the taxpayers as a whole will face exercise of discretion, he may do so as a taxpayer without alleging loss of access, other particular injury, or abutter a monetary loss. See rillState ex rel. Lemon v. Langlie, 45 status. See London, 93 Wash.2d at 660,611 P.2d 781. Wash.2d 82, 273 P.2d 464 (1954) (allowing a taxpayer suit alleging Seattle location of executive offices contravenes constitution which required them to be in Olympia even though no monetary loss to taxpayer was alleged). **1100 Conclusion In such case, the injury that must be alleged is that the These taxpayers allege the City violated its own ordinance at government is violating the law. 13 a cost to the taxpayers in excess of$3 million. The taxpayers have standing and they are correct the City acted in violation Justice Smith's opinion also makes passing reference to the of its own ordinance. Summary judgment in the taxpayers' so-called"abutting property owners"rule. Smith op.at 1092. favor on standing and the merits is appropriate. I dissent. That rule is inapplicable. In London v City of Seattle, 93 Wash.2d 657, 660, 611 P.2d 781 (1980)this court held a non abutting property owner "may not question a procedurally correct vacation or the purpose therefor."(Emphasis added.) ALEXANDER,J.,concurs. Here,however,the procedure was not correct. MI Citations It is no doubt trae that when a litigant challenges the exercise 132 Wash.2d 267,937 P.2d 1082 of discretion to effect a procedurally correct, legal street Footnotes 1 Appellants consist of Greater Harbor 2000, a Washington nonprofit corporation, and 10 individual citizen taxpayers. For editorial convenience we refer to appellants collectively in the singular as"Greater Harbor." 2 Port of Seattle Final Environmental Impact Statement (Nov. 1994), Clerk's Papers at 96. RCW 53.04.010 provides: "Port districts are ... authorized ... for the purposes of acquisition, construction, maintenance, operation, development and regulation ... of harbor improvements, rail or motor vehicle transfer and terminal facilities, water transfer and terminal facilities, air transfer and terminal facilities, or any combination of such transfer and terminal facilities, and other commercial transportation, transfer, handling, storage and terminal facilities, and industrial improvements." 3 Id. at 100. 4 Resp't Port of Seattle's Mot. for Summ. J. Dismissing Appellant's Compl. and Resp. to Appellant's Mot. for Partial Summ. J., Clerk's Papers at 333. 5 RCW Chapter 35.79 WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 15 Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267(1997) 937 P.2d 1082 _.._._..._-.........._....� _.._._.. , .�._.,._._-. ,W.._m, ..-.,..,.�.-. 6 Br. Resp't Port of Seattle at 4. Clerk's Papers at 762. 7 Id. at 758, 762. 8 Appellant Greater Harbor 2000's Compl. for Declaratory and Injunctive Relief and Pets. for Mandamus and for Statutory and Constitutional Writs of Review, Clerk's Papers at 6. 9 Southwest Harbor Redevelopment Project Map, Clerk's Papers at 673. 10 Resp't Port of Seattle's Answer, Affirmative Defenses and Counterclaim, Clerk's Papers at 186. 11 The streets at issue have not yet been vacated. Preliminary approval gives the Council authority to vacate the streets by passage of an ordinance. RCW 35.79.030. Typically a Seattle street vacation ordinance is not passed until all conditions of the preliminary approval have been met, which may include such things as substantial relocation of utilities or reconstruction of utilities located in the vacated rights-of-way, grants of easements, construction of required replacement streets and public amenities. Resp't City of Seattle's Mot. for Summ. J. Dismissing Compl., Clerk's papers at 299. 12 Appellant Greater Harbor 2000's Compl. for Declaratory and Injunctive Relief and Pets. for Mandamus and for Statutory and Constitutional Writs of Review, Clerk's Papers at 21-23. 13 Id. at 11. 14 Id. at 11. 15 The Seattle Municipal Code establishes requirements for vacation of Seattle streets. It requires all petitioners to pay one half of the appraised value of property to be vacated, or to convey real property to the City of a comparable value. Seattle Municipal Code §§ 15.62.030, .090, .100, and .110 set forth procedures for preparation of appraisals, submission of appraisal cost deposits, and inclusion of appraisal information in the City's decision record on a street vacation petition. 16 Appellant Greater Harbor 2000's Compl. for Declaratory and Injunctive Relief and Pets. for Mandamus and for Statutory and Constitutional Writs of Review, Clerk's Papers at 11. 17 Order Granting Port of Seattle's Mot.for Summ.J.and Denying Greater Harbor 2000's Mot.for Partial Summ. J., Clerk's Papers at 578-584. 18 Transcript of Summ. J. Decision, 66-67. See App., Br. of Resp't Port of Seattle. 19 CR 56(c). 20 �Malnar v. Carlson, 128 Wash.2d 521, 534, 910 P.2d 455 (1996); Mountain Park Homeowners Assn. v. Tydings 125 Wash.2d 337, 883 P.2d 1383 (1994); Syrovy v. Alpine Resources, Inc., 122 Wash.2d 544, 859 P.2d 51 (1993). 21 CR 56(c). 22 �Malnar, 128 Wash.2d at 535, 910 P.2d 455; IIIIHash v. Children's Orthopedic Hosp. & Med. Ctr., 110 Wash.2d 912, 915,757 P.2d 507(1988); Barrie v. Hosts of Am., Inc., 94 Wash.2d 640,618 P.2d 96(1980). 23 �Malnar, 128 Wash.2d at 535, 910 P.2d 455. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 16 Greater Harbor 2000 v.City of Seattle, 132 Wash.2d 267(1997) 937 P.2d 1082 24 III 110 Wash.2d at 915, 757 P.2d 507; IIIIBarrie, 94 Wash.2d 640, 618 P.2d 96 25 —Main ar, 128 Wash.2d at 535, 910 P.2d 455; Marincovich v. Tarabochia, 114 Wash.2d 271, 787 P.2d 562 (1990); Syrovy, 122 Wash.2d 544, 859 P.2d 51; Wilson v. Steinbach, 98 Wash2d 434, 656 P2d 1030 (1982). 26 Syrovy, 122 Wash.2d 544, 859 P.2d 51 FkiHoffer v. State, 110 Wash.2d 415, 755 P.2d 781 (1988). 27 1-Henderson Homes, Inc. v. City of Bothell, 124 Wash.2d 240, 244, 877 P.2d 176 (1994); IIIIICowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 809, 828 P.2d 549 (1992); PkiAmerican Legion Post No. 32 v. Walla Walla, 116 Wash.2d 1, 7, 802 P.2d 784 (1991). 28 93 Wn.2d 657,660,611 P.2d 781 (1980)(A landowner whose property does not abut on the street or portions sought to be vacated or a non abutting landowner who does not suffer special injury may not question a procedurally correct vacation or its purpose.). 29 Ilk Walker v. Munro, 124 Wash.2d 402, 419, 879 P.2d 920 (1994). 30 MIState ex rel. Boyles v. Whatcorn County Superior Court, 103 Wash.2d 610, 614, 694 P.2d 27 (1985). 31 I-Id. at 614, 694 P.2d 27. 32 Id. See City of Tacoma v. O'Brien, 85 Wash.2d 266, 269, 534 P.2d 114 (1975); PtiFarris v. Munro, 99 Wash.2d 326, 329, 662 P.2d 821 (1983). 33 American Legion Post No. 32 v. City of Walla Walla, 116 Wash.2d 1, 7, 802 P.2d 784 (1991); In re Bellingham, 52 Wash.2d 497, 499, 326 P.2d 741 (1958). 34 1-American Legion, 116 Wash.2d 1, 802 P.2d 784 35 During oral argument counsel for Appellant, in response to a question from the Court, asserted there was in the Clerk's Papers correspondence on this subject between Appellant and the Attorney General. See letter of October 4, 1995 from the Solicitor General to Bob C. Sterbank. Clerk's Papers at 461. 36 10 Eugene McQuillin, The Law of Municipal Corporations, § 29.05, at 263 3d ed. rev. (1990). 37 RCW 39.34.080. "Any one or more public agencies may contract with any one or more other public agencies to perform any governmental service, activity, or undertaking which each public agency entering into the contract is authorized by law to perform...." 38 RCW 35.79.030."If the legislative authority determines to grant[a petition for vacation in whole or in part,the] city or town shall be authorized and have authority by ordinance to vacate [the] street ... and the ordinance may provide that it shall not become effective until the owners of the property abutting upon the street ... shall compensate [the] city or town in an amount which does not exceed one-half the appraised value of the area so vacated...." 39 Seattle Municipal Code Chapter 15.62. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 17 Greater Harbor 2000 v.City of Seattle, 132 Wash.2d 267(1997) 937 P.2d 1082 40 City of Seattle Charter, Art. XXII § 2 ("PRIVILEGES GRANTED BY ORDINANCE: No privilege shall be granted that suspends or conflicts with any ordinance, except by ordinance.") (emphasis added). 41 See Seattle City Ordinance 114876 (Dec. 27, 1989). See Seattle City Ordinance 109139 (June 20, 1980). See Seattle Council Resolution 29195 (Sept. 11, 1996). 42PliFriedman v. Goodman, 219 Ga. 152, 132 S.E.2d 60 (1963). See Scott Paper Co. v. City of Anacortes, 90 Wash.2d 19, 578 P.2d 1292 (1978). 1 SMC 15.62.090(B)allows conveyance of other property to the City in lieu of this payment. 2 The 1980 contract, also relied upon by the City, is irrelevant to this action because it expired by its own terms before the present dispute arose and it does not pertain to the proposed street vacations at issue in this case. 3 I express no opinion at this point as to the outcome if the City, in the future, attempts to suspend operation of SMC 15.62.090 by ordinance. An opinion on this issue, at this time, by this court, would be a prohibited advisory opinion. See Walker v. Munro, 124 Wash.2d 402, 411-12, 879 P.2d 920 (1994); FoDiversified Indus. Dev. Corp. v. Ripley, 82 Wash.2d 811, 815, 514 P.2d 137 (1973). 1 Ordinance 111076 (Mar. 28, 1983) (codified at Seattle Municipal Code (SMC) 15.62.090) mandates in relevant part: A. Ordinances vacating any street or alley or part thereof shall not be passed by the City Council until a sum equal to one-half(1/2) of the appraised value of the area vacated is paid to the city.... B. Conveyance of other property acceptable to the City may be made in lieu of the payment required by subsection A.... (Emphasis added.) 2 Former SMC 15.62.090(Seattle City Ordinance 109740, § 1 (1981))stated street vacation "compensation ... shall not be required in connection with the vacation of any street, alley or public place, or any part thereof, which has been requested only by ... municipal corporations...." 3 For example, in 1992, Harborview Medical Center, a public hospital, sought a street vacation to expand its facility. Despite the urgings of two council members to bypass the compensation requirement, Harborview was required to pay $500,000 in kind pursuant to SMC 15.62.090. 4 The full text reads: "No ordinance shall be revised, re-enacted, or amended by reference to its title; but the ordinance to be revised or re-enacted or the section thereof amended,shall be re-enacted at length as revised or amended." Seattle City Charter art. IV, § 9. 5 In addition to the above-mentioned requirements for amendments, each ordinance must have a clear title, may not cover more than one subject, cannot be passed at the meeting where it is first introduced, and must be subsequently published. Seattle City Charter art. IV, §§ 7, 8, 13. 6 The 1983 amendment is an example of a properly adopted amending ordinance. It begins by stating that SMC 15.62.090"is amended to read as follows: ...."and then it re-enacts SMC 15.62.090(B)in its entirety showing added and deleted language. Seattle City Ordinance 111076, § 1 (1983). Further, the 1983 amendment is now codified as part of SMC 15.62.090. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 18 Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267(1997) 937 P.2d 1082 7 I also note that while the Port was exempt from the payment requirement under the then-existing ordinance it gave consideration anyway for the streets then vacated. 8 Curiously, the majority cites authority establishing a resolution is not legally binding but holds the opposite! See Smith op. at 1091 n.40. 9 Further, if there really is no standing, why does the majority reach the merits and discuss whether or not the City violated the law? See PhiFlast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968) ("The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a ... court and not on the issues he wishes to have adjudicated."). 10 See, e.g., FIASARCO Inc. v. Kadish, 490 U.S. 605, 613-14, 109 S.Ct. 2037, 2043-44, 104 L.Ed.2d 696 (1989) (citing IlliDoremus v. Board of Educ. of Borough of Hawthorne, 342 U.S. 429, 434, 72 S.Ct. 394, 397, 96 L.Ed. 475 (1952)). However, the Supreme Court has acknowledged that even the stringent federal standing requirement is relaxed at the municipal level to allow ordinary taxpayer standing. MASARCO, 490 U.S. at 613-14, 109 S.Ct. at 2043-44(citing PMFrothingham v. Mellon, 262 U.S. 447, 486-87, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923) ("The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate.")). 11 The essence of taxpayer standing is that one's status as taxpayer is sufficient to challenge illegal government dispositions. Requiring a litigant to allege a particularized injury is no longer standing based on taxpayer status. 12 Accord filHarman v. City& County of San Francisco, 7 Cal.3d 150, 496 P.2d 1248, 1254, 101 Cal.Rptr.880 (1972)("Plaintiff, as a municipal taxpayer seeking to avoid the waste of municipal assets[resulting from city's failure to collect full value of streets vacated], falls into the category of a type of claimant long recognized to possess a sufficiently intense interest in his claim to establish his 'standing' to enter the courtroom."). 13 While the necessity of requesting the state attorney general to sue a municipality over a matter of municipal (not state)law is doubtful, it need not be addressed here because the request was clearly made in any event. End of Document ©2024 Thomson Reuters. No claim to original U.S.Government Works. WESTLAW ©2024 Thomson Reuters. No claim to original U.S. Government Works. 19 b/IWL4, 1E:SUV VII LIIG IIGQIIIIL UIG Qui1111I1.7L1aUVG Vm9i9FBfa147dIQNIVIWP-g71GT6MYLIVNA.FIMNNII recommendation to the city council for an open record public hearing at a regularly city council scheduled meeting. (Ord. 2016-028 § 1 (part), 2016). 14.21.060 City shall retain easements. The city shall retain easements and/or the rights to exercise and grant easements in respect to any vacated property for the construction, repair, and maintenance of public or private utilities or services. (Ord. 2016-028 § 1 (part), 2016). 14.21.070 Compensation. A. The applicant shall compensate the city in an amount which does not exceed one-half the appraised value of the area so vacated. If a public right-of-way has been part of a dedicated public right-of-way for twenty-five years or more, or if the subject property or portions thereof were acquired at public expense, the city may require the owners of the property abutting the public right-of-way to compensate the city in an amount that does not exceed the full appraised value of the area vacated. 1. The value of the vacated property shall be determined by an independent appraisal of the vacated property, paid for by the applicant, in the event the value of the vacated property exceeds twenty thousand dollars. The value of the vacated property may be determined by an independent appraisal of the vacated property, paid for by the applicant, if the value of the property does not exceed twenty thousand dollars. All appraisals shall take into consideration the public improvements within the right-of-way to be vacated, according to their original or depreciated value as may be appropriate in the judgment of the appraiser. 2. If the applicant does not choose to have an independent appraisal, and the value of the vacated property does not exceed twenty thousand dollars, the value shall be determined by the planning division's valuation. The planning division's valuation shall be one hundred ten percent of the planning division's valuation of said public right-of-way or any portion thereof based on Yakima County assessor's market land value of the properties directly surrounding the area of the proposed vacated property. 3. No compensation shall be required if a public right-of-way is vacated and the ownership reverts to the state of Washington, city of Yakima, Yakima County or any public school district. 4. No compensation may be required if the city has not purchased, maintained, or made any improvements to the public right-of-way, there is no planned or anticipated public purpose existing for maintaining the public right-of-way as determined by the planning commission or https://www.codepub!ishing.com/NA/Yakima/#!/Yakimal4/Yakima1421.html#14.21 5/7 vi ui�-r, It4$erwr............ ..... ........ ........ ....� , ........ v...vKsor-aar ..SP•I �... -. ...J..a�a .r... ..r - I in the city for at least five years. B. Every ordinance hereinafter enacted by the city council to vacate any public right-of-way, or any portion thereof, shall provide that such ordinance shall not become effective until the applicant or the owners of the property_abutting upon the public right-of-way, or portion thereof, so vacated, have compensated the city in the amount required as part of the vacation. (Ord. 2016-028 § 1 (part), 2016). 14.21.080 City council decision. A. Following consideration of all evidence and testimony at the meeting, the city council may adopt or reject the examiner's recommendation, or remand to the examiner for additional public testimony, in accordance with the following: 1. If the city council determines to grant the vacation, the action shall be made by ordinance with such conditions or limitations as the city council deems necessary and proper to preserve any desired public use or benefit. The ordinance shall contain a provision retaining or requiring conveyance of easements for construction, repair and maintenance of existing and future utilities and services, and any other requirements of this chapter. 2. The city council, in approving a vacation request, shall specify that the vacated portion of the public right-of-way shall belong to the abutting property owners, one-half to each, unless factual circumstances otherwise dictate a different division and distribution of the public right-of-way to be vacated. 3. If the city council denies the vacation, it will adopt a resolution supporting such decision with appropriate findings of fact. 4. If the city council desires additional public testimony and/or evidence, it may remand the matter to the examiner with instructions concerning the particular matters or issues for which it desires additional public testimony and evidence. (Ord. 2016-028 § 1 (part), 2016). 14.21.090 Application of zoning district designation. The zoning district designation of the properties adjoining each side of the public right-of-way to be vacated shall be assigned based on the zoning district of the abutting property to which ownership of the vacated property will revert, and all areas included in the vacation shall then and henceforth be subject to all regulations of the extended districts. The adopting ordinance shall specify this zoning district extension inclusive of the applicable zoning district designations. (Ord. 2016-028 § 1 (part), 2016). https://www.codepubiishing.com/WA/Yakima/#!/Yakimal4/Yakima1421.html#14.21 6/7 Distributed t the Meeting L/ 4 2 FOURTH STREET VACATION APPRAISAL SUMMARY/ISSUES Davis Appraisal S252,000 One-half of Appraised Value S 126,000 Summary of St. Joseph Improvements Demo of sidewalk and asphalt: 6,655.04 Cutting curb, base, asphalt: 46,891.73 Sidewalk install: 19,033.00 Speedbump: 1,685.00 Striping (parking/speedbump): 876.00 S75,140.77 Davis Appraisal Company 103 S. 10TH STREET • SELAH, WA 98942 •PHONE 509-930-0007 September 15,2023 Mr. Bill Hordan Hordan Planning Services 410 N. 2nd Street Yakima, WA 98901 Dear Mr. Hordan: Pursuant to your request, I have completed an appraisal of the proposed vacation of North 4th Street in Yakima,WA located between E. Lincoln Avenue and Martin Luther King Junior Boulevard. I have prepared an appraisal which conforms to the provisions set forth by Uniform Standards of Professional Appraisal Practice. The purpose of this appraisal is to estimate and report my opinion of the market value of the subject property in terms of the price,which would be agreed upon by a willing and well-informed seller and a willing and well-informed buyer, in the absence of any unusual compulsion,and after reasonable exposure on the open market. In order to make this appraisal, I have inspected the site and have also observed land uses and trends of land uses in the immediate and surrounding areas. Sales, and other pertinent data of comparable and competitive properties were also investigated. Based upon the investigation and appraisal techniques described within the report and in accordance with Uniform Standards of Professional Appraisal Practice, it is my opinion that the market value of the property being appraised as of August 28, 2023, is$252,000. TWO HUNDRED FIFTY-TWO THOUSAND DOLLARS The undersigned has no personal interest in the subject property and certifies that no fee or the employment of his services is in any way contingent upon the opinion reported. Respectfully submitted, DAVIS APPRAISAL COMPANY Larry D. Davis Certified General Real Estate Appraiser DAVIS APPRAISAL COMPANY