NUMB:
980680
VERS:
ORIGINAL
REF:
XXBY:
ALD. HENNINGSEN
TITL:
An ordinance relating to the procedure for vacating streets and alleys.
SECS:
81-49.5-4 rp
81-49.5-5 rn
81-116 rc
301-7 rc
308-28 cr
ANLS:
- Analysis -
This ordinance codifies, clarifies and simplifies the city's procedure for vacating a street or alley under its control.
Pursuant to state statutes, vacation of public right-of-way may be initiated by either the owners of abutting property or the common council. Under this ordinance, the common council may initiate a vacation only when the city or another governmental body owns abutting property or if the vacation is a necessary component of a publicly-supported project. An abutting property owner's preliminary vacation application or a vacation-initiating council resolution is filed with the department of city development (DCD).
Next, DCD prepares and submits for common council introduction a resolution to vacate the property in question and forwards the vacation application or council resolution to the department of public works (DPW). The department of public works proceeds to prepare a map and legal description of the area to be vacated, as well as a list of the names of owners of abutting property with spaces for property owner signatures. In addition, DPW notifies all private utilities of the proposed vacation and requests comments and cost information from each of its divisions and the fire department. A single, "coordinated report" on the proposed vacation is then prepared by DPW based on the comments and cost information it receives from its divisions and from the fire department. The map, legal description, list of property owner names (if required) and coordinated report are all transmitted to DCD upon completion.
If the vacation procedure has been initiated by an application from an abutting property owner, DCD provides the map, legal description and list of names to the applicant so that the applicant can obtain the signatures of all abutting property owners, as required by state statute to complete a vacation petition.
Upon receipt of the map, legal description and coordinated report from DPW (in the case of a vacation initiated by common council resolution) or the completed petition (in the case of a petitioner-initiated vacation), DCD proceeds to file a lis pendens with the Milwaukee county register of deeds and prepare a report for the common council and the city plan commission summarizing DPW's coordinated report and containing DCD's own evaluation regarding the proposed vacation. The vacation request shall not be scheduled for plan commission action until the petitioner has paid, in full, any benefit assessment or other vacation-related costs identified by DPW. If the common council adopts the vacation resolution, DCD shall proceed to record a certified copy of the resolution with the Milwaukee county register of deeds and mail a copy of the resolution to the petitioner.
This ordinance eliminates the existing $35 per hour "engineer service fee" for DPW-incurred costs relating to street and alley vacations. It also replaces the current, flat $218 vacation filing fee with the following graduated fee schedule:
a. Street vacations - $750 plus $100 for each 100 feet of street length or fraction thereof above 300 feet.
b. Vacations of alleys - $500 plus $70 for each 100 feet of alley or fraction thereof above 300 feet.
These fees are intended to cover both DCD's costs of administering the vacation procedure and DPW's costs of preparing maps, legal descriptions and coordinated reports on proposed vacations.
In addition to the graduated filing fees, this ordinance also requires the payment of benefit assessments and other vacation-related costs identified by the department of public works. For vacations initiated by common council resolutions, filing fees shall be waived in all cases, but benefit assessments and vacation-related costs may be waived only if the common council identifies specific alternative funding sources to cover the costs associated with the vacation.
BODY:
The Mayor and Common Council of the City of Milwaukee do ordain as follows:
Part 1. Section 81-49.5-4 of the code is repealed. (Note: The provision being repealed reads as follows:
81-49.5. Engineer Service Fees.
4. Preparation of a plan and review of a street or alley vacation: $35 per hour or fraction thereof.)
Part 2. Section 81-49.5-5 of the code is renumbered 81-49.5-4.
Part 3. Section 81-116 of the code is repealed and recreated to read:
81-116. Street and Alley Vacation Fees. 1. REQUIRED FEES. Street and alley vacations shall be subject to the following fees:
a. The fee for filing a preliminary application for vacation of a street shall be $750 plus $100 for each 100 feet of street length or fraction thereof above 300 feet. Of this fee, $200 is intended to cover the department of city development's costs for administering the vacation procedure, while the remainder is intended to cover the costs incurred by the department of public works in preparing a map, legal description and coordinated report for the proposed vacation pursuant to s. 308-28-4.
b. The fee for filing a preliminary application for vacation of an alley shall be $500 plus $70 for each 100 feet of alley length or fraction thereof above 300 feet. Of this fee, $200 is intended to cover the department of city development's costs for administering the vacation procedure, while the remainder is intended to cover the costs incurred by the department of public works in preparing a map, legal description and coordinated report for the proposed vacation pursuant to s. 308-28-4.
c. The benefit assessment and vacation-related costs for vacation of a street or alley shall be as identified by the department of public works pursuant to s. 308-28-4-d.
2. COUNCIL-INITIATED VACATIONS. The fees specified in sub. 1-a and b shall not be required for any vacation of a street or alley that is initiated by resolution of the common council pursuant to s. 308-28-1. The charges identified in sub. 1-c may be waived by the common council only if the council identifies a specific alternative funding source, including budgetary account number, to cover the costs associated with the vacation. (See s. 308-28.)
Part 4. Section 301-7 of the code is repealed and recreated to read:
301-7. Granting of Franchise or Special Privilege. 1. DEPOSIT REQUIRED. No resolution granting any franchise or special privilege shall be considered by the common council, nor shall any action be taken thereon, unless the person, firm or corporation in whose favor said resolution is proposed shall have first paid into the city treasury, for the purpose of defraying the printing and any other incidental expenses which the city may incur in the consideration of such resolution, the fee required in s. 81-57 or 81-115.
2. CITY CLERK TO VERIFY PAYMENT. The city clerk shall, before reading or presenting to the common council for its consideration any resolution granting a franchise or special privilege, obtain from the city treasurer a statement to the effect that the required amounts have been paid into the treasury, such statement to be included in the resolution presented to the common council and countersigned by the city comptroller.
3. DEPOSIT IN TREASURY. Fees collected pursuant to this section shall be deposited in the city treasury and credited to the general city fund.
Part 5. Section 308-28 of the code is created to read:
308-28. Procedure for Vacating a Street or Alley. 1. ABUTTING PROPERTY OWNERS OR COMMON COUNCIL TO INITIATE. Pursuant to s. 66.297(1), Wis. Stats., vacation of any street or alley under the control of the city may be initiated either by a petition to the common council signed by the owners of all property which abuts the street or alley proposed for vacation or by a resolution adopted by the common council. Vacation may be initiated by common council resolution only if the city, one of its affiliated agencies or another governmental unit is the owner of property abutting the street or alley proposed for vacation, or if the vacation is a necessary component of a publicly-supported project of the city, one of its affiliated agencies or another governmental unit.
2. FILING OR FORWARDING OF PRELIMINARY VACATION APPLICATION OR VACATION INITIATION RESOLUTION. A preliminary application for vacation of a street or alley may be submitted by any owner of property which abuts the street or alley proposed for vacation. Such application shall be filed with the department of city development and shall be accompanied by the appropriate fee specified in s. 81-116-1. Alternatively, whenever the common council adopts a resolution initiating vacation proceedings, the city clerk shall forward a copy of the resolution to the department of city development.
3. DEPARTMENT OF CITY DEVELOPMENT TASKS. Upon receipt of a preliminary application for vacation of a street or alley, or a resolution initiating a vacation, the department of city development shall:
a. Prepare and submit to the city clerk, for introduction by the common council, a resolution vacating the street or alley proposed for vacation. If the vacation was initiated by common council resolution and the council desires to waive the charges identified in s. 81-116-1-c, the vacation resolution shall identify a specific alternative funding source, including a budgetary account number, to cover the costs associated with the vacation.
b. Forward a copy of the application or resolution to the department of public works for completion of the tasks specified in sub. 4.
4. DEPARTMENT OF PUBLIC WORKS TASKS. Upon receipt of a preliminary vacation application, or resolution initiating a vacation, from the department of city development, the department of public works shall complete the following tasks:
a. Prepare a map and legal description of the area to be vacated, said map and description to be used in processing the vacation proposal. Such map shall also show the boundaries of all properties which abut the area to be vacated and the tax key numbers of such properties.
b. If the vacation procedure was initiated by an application from a property owner, attach to the map and legal description one or more separate sheets of paper that list all tax key numbers shown on the map, along with the names of the owners of record of the corresponding properties as specified in the records of the commissioner of assessments. Next to each name there shall be a space for the property owner's signature and a space for notarization of such signature. This combination of map, legal description and ownership information shall constitute a vacation petition.
c. Provide notice of the proposed vacation to each private utility serving the area in question.
d. Transmit copies of the map and legal description, along with a request for written comments on the proposed vacation, to each division of the department of public works and to the fire department. The department of public works shall prepare a single, coordinated report containing comments and other information provided by its divisions and the fire department. The coordinated report shall include a statement of the costs that will be incurred by the city as a result of the vacation, including, but not limited to, costs of easement preparation, pavement and light removal, closing of intersections, utility relocation or abandonment and equity in catch basins and street trees. In addition, the coordinated report shall include a benefit assessment for the proposed vacation prepared by the department of public works in accordance with s. 66.60, Wis. Stats.
e. Transmit the completed map, legal description, list of tax key numbers and property owner names (if required) and coordinated report to the department of city development. The department of public works shall make its best effort to provide all of these items to the department of city development within 30 days of receipt of the preliminary vacation application, and, in the case of a vacation initiated by an application from an abutting property owner, may transmit the vacation petition to the department of city development before transmitting the coordinated report so as to expedite the process of collecting signatures on the petition.
5. COMPLETION OF APPLICATION. If a vacation petition was prepared pursuant to sub. 4-b, the department of city development shall, upon receipt of such petition from the department of public works, provide a copy of the vacation petition to the person who submitted the application so that said person may collect the notarized signatures of all owners of abutting property. Once all signatures have been collected, they shall be submitted along with the map and legal description to the department of city development and shall constitute a completed application for vacation of a street or alley.
6. PROCESSING OF VACATION PROPOSAL. Upon receipt of the map, legal description and coordinated report from the department of public works (in the case of a vacation initiated by common council resolution) or the completed vacation application described in sub. 5 (in the case of a petitioner-initiated vacation), the department of city development shall proceed to perform each of the following:
a. File a notice of the pendency of the application or proposal for vacation in the office of the Milwaukee county register of deeds.
b. If the vacation proposal was initiated by common council resolution, prepare a written report on the proposed vacation and submit such report to the city plan commission and the common council. This report shall include a summary of the comments, easement requests and vacation-related costs, if any, identified in the coordinated report of the department of public works, as well as the department of city development's evaluation of whether the vacation would be detrimental or beneficial to the public and to the city in terms of such factors as property access, traffic circulation, future land development and future use of the street or alley to be vacated.
c. If the vacation was initiated by a petition signed by the owner or owners of abutting property, mail written notice to the petitioner of any benefit assessment and vacation-related costs for the proposed vacation, as identified by the department of public works pursuant to sub. 4-d. Such notice shall indicate that the department of city development will schedule a proposed vacation for city plan commission action only after it has received full payment from the petitioner of any benefit assessment and vacation-related costs. The department of city development shall forward the required payment to the department of public works. Following receipt of the required payment, the department of city development shall schedule the proposed vacation for plan commission action and prepare the report required by par. b. In the event that the common council does not adopt the resolution vacating the street or alley, the city clerk shall inform the department of public works of such fact and the department shall return such deposited monies to the petitioner.
7. NOTICE OF HEARING. Owners of record of all property which abuts upon the street or alley proposed for vacation shall be notified by the city clerk of the common council committee hearing in the manner specified in s. 66.297(2), Wis. Stats. If only a portion of a street or alley is proposed for vacation, the city clerk shall notify owners of record of all property in the block in which that portion of the street or alley is located. The city clerk shall use the most current property ownership information available from the commissioner of assessments.
8. RECORDING OF RESOLUTION. Whenever the common council has adopted a vacation resolution, the department of city development shall record a certified copy of the resolution, together with the map and legal description of the area vacated, with the Milwaukee county register of deeds and mail a copy of the resolution to the petitioner.
LRB:
APPROVED AS TO FORM
____________________________
Legislative Reference Bureau
Date: _____________________
CATT:
IT IS OUR OPINION THAT THE ORDINANCE
IS LEGAL AND ENFORCEABLE
____________________________
Office of the City Attorney
Date: _____________________
ZDPT:
DFTR:
LRB98080.1
JDO
8/28/98