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Entity Staff Report - 10/8/2021CITY COUNCIL OF SALT LAKE CITY 451 SOUTH STATE STREET, ROOM 304 P.O. BOX 145476, SALT LAKE CITY, UTAH 84114-5476 SLCCOUNCIL.COM TEL 801-535-7600 FAX 801-535-7651 COUNCIL STAFF REPORT CITY COUNCIL of SALT LAKE CITY TO:City Council Members FROM:Brian Fullmer, Policy Analyst DATE:September 21, 2021 RE: ORDINANCE TO VACATE A PORTION OF H STREET ADJACENT TO THE PROPERTY AT 538 EAST 14TH AVENUE (PLNPCM2018-00561) ISSUE AT-A-GLANCE The Council will be briefed about a proposal to vacate the public right-of-way (park strip) on the H Street side adjacent to the home located at 538 East 14th Avenue. In 2006 applicants Justin and Jodi Miller received a revocable permit from the City allowing them to replace a fence encroaching into the public right-of-way on the east side of their lot. At the time, these permits were no cost and for a ten-year period. When the permit expired the applicants learned the City changed its policy regarding exclusive use of City property to align with State statute and is now charging for this use. The applicants were offered terms to lease the City right-of-way. Rather than enter into a lease agreement, the applicants are requesting the City vacate the subject right-of-way and sell it to them at fair market value. The applicants originally submitted an application to purchase an area measuring 22.5’ by 50’ (1125 square feet) which is enclosed by their fence as shown in the image below. During City department reviews, the Engineering and Transportation divisions advised against selling land that would preclude the City from installing a sidewalk in the park strip on the east side of the applicants’ property at some point in the future. Both divisions would support the vacation if six feet measured from the back of the curb was reserved for this potential future use. This would result in an area 16.5’ x 50’ (825 square feet) being vacated (also shown in the image below). The applicants agreed and reduced the area they are requesting to be vacated. During the April 10, 2019 Planning Commission meeting, Commissioner Lyon made a motion adding a request that the City Council and staff explore the possibility of vacating the original area requested (1,125 square feet versus 825 square feet) and placing an easement over the area where the City may, at some point, construct a sidewalk on the west side of H Street. This would allow the applicants to retain their existing fence and Item Schedule: Briefing: September 21, 2021 Set Date: September 21, 2021 Public Hearing: October 19, 2021 Potential Action: November 9, 2021 Page | 2 landscaping until the City chose to add a sidewalk. Commissioner Lyon stated the Commission would also support the request to vacate a revised area of 825 square feet. Council staff checked with the Attorney’s Office about placing an easement over the potential sidewalk area. They indicated that, while unusual, the Council could include an easement on the property reserving the right to build a sidewalk at some point in the future as a condition of vacation. Under such an agreement, the existing fence and landscaping could remain in place until the City chose to install a sidewalk in this location. However, the Attorney’s Office recommended the Council not impose the condition. They stated the easement would create a right to public to use and the public would have the right to conduct First Amendment expressive activities behind the property owners’ fence. As owners of the property, the applicants would pay taxes on the subject property if approved by the Council. An email outlining the Attorney’s Office concerns is included as attachment A to this memo. If either the 825 or 1,125 square foot vacation is approved by the City Council, the applicants would purchase the land at fair market value. The Planning Commission was supportive of either the 825 or 1,125 square foot closure area depending on the Council’s decision whether to include an easement for a potential future sidewalk. The Commission forwarded a unanimous positive recommendation to the City Council. Current encroachment area outlined in yellow. Proposed boundary shown in red. Goal of the briefing: To review the proposed street closure, address questions Council Members may have and prepare for a public hearing. Page | 3 POLICY QUESTIONS 1. Is the Council supportive of closing the subject section (park strip) of H Street? 2. If so, does the Council support closing the larger, 1,125 square foot or smaller 825 square foot area? ADDITIONAL INFORMATION Attachment D of the Administration’s transmittal (pages 25-26) is an analysis of factors related to the City’s street closure policy. A summary is provided below. For the complete analysis, please refer to the transmittal. It is the policy of the City Council to close public streets and sell the underlying property. The Council does not close streets when the action would deny all access to other property. o Finding: The proposed vacation would not deny vehicular or pedestrian access to any adjacent properties. The general policy when closing a street is to obtain fair market value for the land, whether the abutting property is residential, commercial or industrial. o Finding: The City would give up ownership of this property and obtain fair market value for sale of the property to the applicant. There should be sufficient public policy reason that justify the sale and/or closure of a public street and it should be sufficiently demonstrated by the applicant that the sale and/or closure of the street will accomplish the stated public policy reasons. o Finding: The proposed right-of-way vacation does not conflict with the Avenues Master Plan, but does not result in a direct public benefit as outlined in the Salt Lake City Urban Design Element. However, the Administration stated the property isn’t needed for a public purpose and the City will benefit from the land sale, proceeds from which will go to the General Fund. The City Council should determine whether the stated public policy reasons outweigh alternatives to the closure of the street. o Finding: Alternatives to the requested vacation maintain City ownership and require the applicant to enter into a lease agreement for the encroachment, or relocate the existing fence and landscaping in the park strip area. Planning staff found the right-or-way is very wide in this portion of the upper Avenues, which does not experience significant traffic volume. They suggest it is unlikely this portion of H Street will ever need to be widened. In addition, the City would reserve a 6 foot section in the event a sidewalk is constructed at some point. Aerial images show improvements encroached into this area for at least 20 years. The City now has an opportunity to benefit financially from this occupation. PUBLIC PROCESS A notice of the petition and request for review was emailed to the Greater Avenues Community Council Chair August 10, 2018. No response was received. Letters were mailed to nearby property owners and tenants August 10, 2018. One inquiry was received by Planning staff, but no comment was provided. The Planning Commission held a public hearing April 10, 2019. No public comments were provided at the hearing. The Commission voted unanimously to forward a positive recommendation for the street closure, with a suggested option to sell the full, originally requested area as noted above. STREET CLOSURE PROCESS Street closure process is dictated by Section 10-9a-609.5 Utah State Code which is included below for reference. 10-9a-609.5. Petition to vacate a public street. Page | 4 (1)In lieu of vacating some or all of a public street through a plat or amended plat in accordance with Sections 10-9a-603 through 10-9a-609, a legislative body may approve a petition to vacate a public street in accordance with this section. (2)A petition to vacate some or all of a public street or municipal utility easement shall include: (a)the name and address of each owner of record of land that is: (i)adjacent to the public street or municipal utility easement between the two nearest public street intersections; or (ii)accessed exclusively by or within 300 feet of the public street or municipal utility easement; (b)proof of written notice to operators of utilities located within the bounds of the public street or municipal utility easement sought to be vacated; and (c)the signature of each owner under Subsection (2)(a) who consents to the vacation. (3)If a petition is submitted containing a request to vacate some or all of a public street or municipal utility easement, the legislative body shall hold a public hearing in accordance with Section 10-9a-208 and determine whether: (a)good cause exists for the vacation; and (b)the public interest or any person will be materially injured by the proposed vacation. (4)The legislative body may adopt an ordinance granting a petition to vacate some or all of a public street or municipal utility easement if the legislative body finds that: (a)good cause exists for the vacation; and (b)neither the public interest nor any person will be materially injured by the vacation. (5)If the legislative body adopts an ordinance vacating some or all of a public street or municipal utility easement, the legislative body shall ensure that one or both of the following is recorded in the office of the recorder of the county in which the land is located: (a)a plat reflecting the vacation; or (b)(i)an ordinance described in Subsection (4); and (ii)a legal description of the public street to be vacated. (6)The action of the legislative body vacating some or all of a public street or municipal utility easement that has been dedicated to public use: (a)operates to the extent to which it is vacated, upon the effective date of the recorded plat or ordinance, as a revocation of the acceptance of and the relinquishment of the municipality's fee in the vacated public street or municipal utility easement; and (b)may not be construed to impair: (i)any right-of-way or easement of any lot owner; or (ii)the rights of any public utility. (7)(a)A municipality may submit a petition, in accordance with Subsection (2), and initiate and complete a process to vacate some or all of a public street. (b)If a municipality submits a petition and initiates a process under Subsection (7)(a): (i)the legislative body shall hold a public hearing; (ii)the petition and process may not apply to or affect a public utility easement, except to the extent: (A)the easement is not a protected utility easement as defined in Section 54-3-27; (B)the easement is included within the public street; and (C)the notice to vacate the public street also contains a notice to vacate the easement; and (iii)a recorded ordinance to vacate a public street has the same legal effect as vacating a public street through a recorded plat or amended plat. Attachment A From: Nielson, Paul Sent: Thursday, September 02, 2021 4:08 PM To: Fullmer, Brian <Brian.Fullmer@slcgov.com>; Crump, Olga <olga.crump@slcgov.com>; Garback, Robert <Robert.Garback@slcgov.com> Page | 5 Cc: Rip, Daniel <Daniel.Rip@slcgov.com>; Finan, Shellie <Shellie.Finan@slcgov.com> Subject: RE: 538 East 14th Avenue Apologies to all for my office letting this get stale. In conversations I had with an attorney in my office who formerly represented Real Estate Services, we agreed that the suggestion made by a planning commission member to vacate the portion of the street and have the city retain an access easement behind the fence would be problematic. A public access easement would not only create the right to use by the public, but also would be an area where the public would have the right to conduct First Amendment expressive activities. You can imagine how problematic it would be if members of the public claimed they were being deprived of a right to engage in First Amendment activities in an area behind a fence. While I recognize that the planning commission member who suggested the idea of conditioning the partial street vacation on the city receiving a public access easement was trying to offer a helpful solution, I would strongly recommend that the council not impose that condition if it were to approve the partial street vacation for the concerns expressed herein regarding potential impingement of First Amendment rights. Thanks. Paul C. Nielson Senior City Attorney 801.535.7216 IMPORTANT: E-mail from the City Attorney's Office is likely to contain confidential and privileged material for the sole use of the intended recipient. The use, distribution, transmittal or re-transmittal of any such communication is prohibited without the express approval of the City Attorney or a Deputy City Attorney in writing or by e-mail. If you are not the intended recipient, please contact the sender and delete all copies.