AFTER RECORDING RETURN DOCUMENT TO:

City of Bell ingham - Planning Department

210 Lottie Street

Bellingham, WA 98225

DOCUMENT TITLE: Street Vacation Ordinance

Whatcom County, WA 2017-0801966 Total:$88.00 Pgs=15

0811712017 10:06 AM

ORD Request of: CITY OF BELLINGHAM

IIIIIIIII Ill llllllllll 1111111 1111111111111 ll II Ill 00090917201708019660150151

REFERENCE NUMBER OF RELATED DOCUMENT: VAC2016-0004

GRANTOR(S): City of Bellingham

GRANTEE(S): Barry Arps and Christina Hoyer

ASSESSOR'S TAX/PARCEL NUMBER($): 370212 440357 0000

" ABBREVIATED LEGAL DESCRIPTION: The southerly 20 feet of Cody Avenue abutting Lot A of the Arps-Hoyer Lot Line Adjustment recorded under Whatcom County Auditor File #1990501123 situate in Whatcom County, WA.

ORDINANCE NO. 2017-07-021

AN ORDINANCE RELATING TO THE VACATION OF THE SOUTHERLY 20 FEET OF CODY AVENUE ABUTTING LOT A OF THE ARPS-HOYER LOT LINE ADJUSTMENT GENERALLY LOCATED BETWEEN 20TH AND 22N° STREETS WITHIN THE CITY OF BELLINGHAM

WHEREAS, on February 24, 2016, the City's Technical Review Committee considered and

recommended approval of the petition to vacate the subject right-of-way as shown and

described on Exhibit A, which is attached hereto and incorporated herein; and

WHEREAS, the Hearing Examiner held a public hearing on the subject petition on April 121h

at 6:00 PM in the City Council chambers at 210 Lottie Street in Bellingham; and

WHEREAS, the Hearing Examiner recommended approval of the subject vacation petition

within the Findings of Fact, Conclusions and Recommendation as attached hereto and

incorporated herein as Exhibit B and that the City Council adopts these findings of fact and

conclusions of law, and ;

WHEREAS, an appraisal was not conducted because the petition does not increase

development rights or density on the subject property and therefore the Planning Director

determined that using assessed land va lues of abutting properties was appropriate in order

to determine adequate compensation for the subject right-of-way, and;

WHEREAS, all the jurisdictional steps preliminary to the vacation have been taken as

provided by law.

NOW THEREFORE,

THE CITY OF BELLINGHAM DOES ORDAIN:

Section 1. The subject right-of-way as described and shown on Exhibit A is hereby vacated

and the Hearing Examiner's Findings of Fact, Conclusions of Law and Recommendation as

provided on Exhibit B, are hereby incorporated herein and adopted.

Section 2. No damage shall result to any person or persons or to any property by reason

of the vacation of said right-of-way. If reconfiguration of existing utilities is necessary it shall be

at the sole expense of the petitioner.

Section 3. An easement for private utilities shall be reserved within the entire portion of

the vacated right-of-way except for that portion of right-of-way where the existing single

family structure is located.

Section 4. Payment of $23,836.00 was remitted to the City of Bellingham's Finance

Department on June 9, 2017.

VAC2016-0004

City of Bellingham CITY ATTORNEY

2 10 Lottie Street Bellingham, Washington 98225

Telephone (360) 778-8270

PASSED by the Council this 24th day of July, 2017.

Office of the City Attorney

Published:_---=-Ju=I..Ly-=2=8..,_, 2=0=-1.:....:7 _____ _

VAC2016-0004

City of Bellingham CITY ATTORNEY

2 10 Lottie Street Bellingham, Washington 98225

Telephone (360) 778-8270

I EXHIBIT Al ARPS- HOYER LOT LINE ADJUSTMENT LOTS 21-24, BLOCK 4, DIFFENBACHERS ADDITION TO FAIRHAVEN

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EXHIBIT B

THE HEARING EXAMINER OF THE CITY OF BELLINGHAM WHATCOM COUNTY, WASHINGTON

INRE:

BARRY ARPS and CHRISTINE HOYER, Petitioners Southerly 20' of Cody Avenue abutting Lot A of the Arps-Hoyer LLA

VAC2016-0004 / Street Vacation

HE-l 7-PL-008

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

SHARON RICE, HEARING EXAMINER

SUMMARY OF RECOMMENDATION The Hearing Examiner recommends to the City Council that the requested vacation of the southerly 20 feet of Cody Avenue abutting Lot A of the Arps-Hoyer Lot Line Adjustment generally located between 20th and 22nd Streets should be GRANTED.

SUMMARY OF RECORD Request: Barry Arps and Christine Hoyer (Petitioners) requested vacation of the southerly 20 feet of Cody A venue abutting Lot A of the Arps-Hoyer Lot Line Adjustment generally located at the western terminus of Cody A venue between 201h and 22nd Streets. The Petitioners desires to legitimize a portion of the existing single-family residence that encroaches into the Cody A venue right-of-way.

Hearing Date: The Bellingham Hearing Examiner conducted an open record hearing on the request on April 12, 2017.

Testimony: At the hearing the following individuals presented testimony under oath:

Steve Sundin, Senior Planner

FINDINGS, CONCLUSIONS AND RECOMMENDATION PAGE I H:/DATA/HEARING EXAMINER/DECISIONS/Arps Cody Ave. VAC Recommendation

OFFICE OF THE HEARING EXAMINER C ITY OF BELLINGHAM

21 0 LOTTIE STREET BELLINGHAM, WA 98225

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Barry Arps, Petitioner

Exhibits: At the open record hearing, the following exhibits were considered by the undersigned, and are hereby admitted into evidence:

Exhibit A Staff Report to the Examiner with the following attachments: 1. Vacation Area 2. Vicinity Map 3. TRC Letter to Petitioner 4. Vacation Petition 5. Aerial Photograph 6. Private Utility Facilities 7. Draft Ordinance

Exhibit B Email with attachments from Thom McLaughlin, dated April 11, 2017

Upon consideration of the testimony and exhibits submitted, the Hearing Examiner enters the following findings and conclusions:

1.

2.

FINDINGS Petitioners requested vacation of 2,360 square feet (20 by 118 feet), consisting of the southed y 20 feet of Cody A venue abutting Lot A of the Arps-Hoyer Lot Line Adjustment generally located between 201h and 22nd Streets. The Petitioners own the abutting parcel at 2100 Cody A venue; a deed was provided with the application.1 Exhibits A and A.3.

In 1998, the petitioner received permits for a remodel of the existing single­family house (CMB98-00365), which at that time already encroached across the northern property boundary into the Cody Avenue right-of-way. This encroachment existed when the Petitioners purchased the property. In 2003, the petitioner obtained permits for an addition to the residence; the addition is wholly located within the subject property and complies with zoning setbacks (CMB2003-00415). Then, in 2005, the petitioner received approval to convert the original residence into an accessory dwelling unit (ADU2005-00001 ). Exhibit A; Arps Testimony.

1 The property in question is known as Lots 23 and 24, Block 4, of Diffenbachers Addition to Fairhaven. Exhibit A. 1.

FfNDfNGS, CONCLUSIONS AND RECOMMENDATION PAGE2 H:/DATA/HEARfNG EXAMINER/DECISIONS/Arps Cody Ave. VAC Recommendation

OFFICE OF THE HEARING EXAMI ER CITY OF BELLINGHAM

210 LOTTIE STREET B ELLINGHAM, WA 98225

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Presently, the Petitioners desire to refinance the residence but are unable to do so because the existing residence is not confined to the subject property. The proposed right-of-way vacation petition would alleviate this obstacle for the property owner. Exhibits A and A. 4; Arps Testimony. The purpose of the proposed vacation is to legitimatize the existing structure located partially within the right-of-way. Planning Staff submitted the position that this purpose was consistent with the public interest. Exhibit A; Sundin Testimony.

The portion of right-of-way proposed for vacation abuts only the Petitioners' parcel and no other property. Exhibits A and A. I .

The proposed vacation would not land lock any parcels. Cody A venue dead ends at the subject property. All other parcels on this segment of Cody Avenue would retain their access to Cody, and properties south of 2100 Cody Avenue would retain access from the alley between Cody and South A venue. The parcel addressed as 2000 Connelly Avenue has existing access via a driveway stemming off of Lindsay A venue, two blocks north of Cody A venue. Exhibit A.

The portion of Cody A venue proposed to be vacated abuts the northern comer of Fairhaven Park; however, this area of Fairhaven Park does not have any formal access. If formalized access (a trail) were proposed in the future, the instant vacation would not preclude it. The Parks Department has recommended approval of the vacation request. Exhibits A and A.5.

The City's Technical Review Committee (TRC) recommended that the subject right-of-way is not necessary for vehicular or pedestrian circulation needs within the immediate vicinity and neighborhood. Exhibit A ; Sundin Testimony .

The right-of-way proposed for vacation does not abut fresh or salt-water. Exhibits A and A.5.

There are no public utilities within the right-of-way proposed for vacation. Should public utilities need to extend down Cody A venue in the future, the proposed vacation would leave sufficient width to allow such extension, although the TRC did not identify any future demand. Planning Staff sent private utility providers notice of the vacation petition. Puget Sound Energy and Cascade Natural Gas both responded that they have utility faci lities within or abutting the vacation area and would coordinate with the property owner to obtain easements. City Planning Staff recommended a condition of vacation approval requiring easements to be retained within the vacated area for private utilities. Exhibits A and A. 6.

FfNDINGS, CONCLUSIONS AND RECOMMENDATION PAGE3

OFFIC E OF THE HEARING EXAMINER CITY OF BELLINGHAM

210 LOTTIE STREET BELLINGHAM, WA 98225

H:/DATNHEARfNG EXAMINER/DECISIONS/Arps Cody Ave. VAC Recommendation

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Pursuant to WAC 197-11-800 (2)(i); the requested vacation does not trigger SEPA review. The subject right-of-way may be located within the regulated buffer of an off-site wetland located to the west, but the vacation would result in development within the vacated area. Under current zoning, front yard and side flanking street (20th Street) setbacks would not allow future development in the vacated right-of-way, so approval would not result in potential impacts to wetland buffers. Exhibit A.

Planning Staff and the Technical Review Committee recommend approval of the vacation petition. The TRC recommended that an assessed value be utilized to determine appropriate payment for the vacated right-of-way. Planning Staff recommended a condition of approval requiring the Petitioners to pay $23,836 for the vacated area, based on an average of the assessed values of three immediately adjacent parcels. Exhibits A, A.3, and A. 7.

On March 13, 2017, the Bellingham City Council approved a resolution setting a public hearing date of April 12, 2017 before the Hearing Examiner to conduct the fact finding hearing on the vacation request. a Notice of the public hearing was published in the Sunday edition of the Bellingham Herald on March 19, 2017. Written notice of hearing was mailed to all property owners on Cody Avenue between 20th and 22nd Streets on March 20, 2017. Notice of hearing was posted on-site on March 22, 2017. No public comments were submitted. Exhibit A; Sundin Testimony.

The Petitioner attended the public hearing and waived objection to the recommended conditions of approval. Arps Testimony.

CONCLUSIONS Jurisdiction The Hearing Examiner is granted authority to hold hearings and make recommendations to City Council on right-of-way vacation requests pursuant to RCW 35.79.030.

Criteria for Review

City Vacation Regulations BMC 13.48.010 - Hearing - Application Fee As a condition precedent to the city's consideration of a resolution setting a date for a public hearing on the question of whether a city street should be vacated, the petitioner therefor shall submit an application accompanied by a fee in the amount set by city council resolution and the petitioner shall pay to the city an amount equal to the cost of

FINDINGS, CONCLUSIONS AND RECOMMENDATION PAGE 4 H:/DATNHEARING EXAMlNER/DECISIONS/Arps Cody Ave. VAC Recommendation

OFFIC E OF T HE HEARING EXAMI ER CITY OF BELLINGHAM

2 10 LOTTIE STREET B ELLINGHAM. WA 98225

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preparation of an appraisal of the area proposed to be vacated and the city shall order such appraisal. An appraisal, and payment therefor, may not be required when, in the judgment of the director of plallling and community development, it is not needed to determine the fair market value of the area to be vacated.

BMC 13.48.020 Payment for vacation Unless otherwise specifically provided by the city council in the street vacation ordinance, such ordinance shall provide for the payment of compensation by the petitioner of an amount equal to one-half the appraised value of the area proposed for vacation. The city council shall have final authority to determine the appraised value. In no event shall such vacation request come before the city council for final consideration until such amount has been computed, incorporated into the ordinance, and deposited with the finance director. In the event that final passage of the ordinance is not granted, the deposited amount (exclusive of the application fee and appraisal fee) shall be refunded to the petitioner.

State Street Vacation Requirements RCW 35.79.010 Petition by owners - Fixing time for hearing. The owners of an interest in any real estate abutting upon any street or alley who may desire to vacate the street or alley, or any part thereof, may petition the legislative authority to make vacation, giving a description of the property to be vacated, or the legislative authority may itself initiate by resolution such vacation procedure. The petition or resolution shall be filed with the city or town clerk, and, if the petition is signed by the owners of more than two-thirds of the property abutting upon the part of such street or alley sought to be vacated, legislative authority by resolution shall fix a time when the petition will be heard and determined by such authority or a committee thereof, which time shall not be more than sixty days nor less than twenty days after the date of the passage of such resolution.

RCW 35.79.020 Notice of hearing - Objections prior to hearing. Upon the passage of the resolution the city or town clerk shall give twenty days' notice of the pendency of the petition by a written notice posted in three of the most public places in the city or town and a like notice in a conspicuous place on the street or alley sought to be vacated. The said notice shall contain a statement that a petition has been filed to vacate the street or alley described in the notice, together with a statement of the time and place fixed for the hearing of the petition. In all cases where the proceeding is initiated by resolution of the city or town council or similar legislative authority without a petition having been signed by the owners of more than two-thirds of the property abutting upon the part of the street or alley sought to be vacated, in addition to the notice hereinabove required, there shall be given by mail at least fifteen days before the date fixed for the hearing, a similar notice to the owners or reputed owners of all lots,

FfNDfNGS, CONCLUSIONS AND RECOMMENDATION PAGE S H:/DATA/HEARfNG EXAMfNER/DECISIONS/Arps Cody Ave. VAC Recommendation

OFFICE OF THE H EARING EXAMINER CITY OF B ELLINGHAM

210 LOTTIE STREET BELLINGHAM, WA 98225

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tracts or parcels of land or other property abutting upon any street or alley or any part thereof sought to be vacated, as shown on the rolls of the county treasurer, directed to the address thereon shown: PROVIDED, That if fifty percent of the abutting property owners file written objection to the proposed vacation with the clerk, prior to the time of hearing, the city shall be prohibited from proceeding with the resolution.

RCW 35.79.030 Hearing-Ordinance of vacation. 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. (emphasis added)

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 one­half 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.

FINDINGS, CONCLUSlONS AND RECOMMENDATION PAGE6 H:/DATA/H EARING EXAMINER/DECISIONS/Arps Cody Ave . VAC Recommendation

OFFICE OF THE HEARING EXAMINER CITY OF BELLINGHAM

2 IO LOTTIE STREET BELUNGHAM, WA 98225

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RCW 35.79.035 Limitations on vacations of streets abutting bodies of water -Procedure. 1) A city or town shall not vacate a street or alley if any portion of the street or

alley abuts a body of fresh or salt water unless:

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a) The vacation is sought to enable the city or town to acquire the property for port purposes, beach or water access purposes, boat moorage or launching sites, park, public view, recreation, or educational purposes, or other public uses;

b) The city or town, by resolution of its legislative authority, declares that the street or alley is not presently being used as a street or alley and that the street or alley is not suitable for any of the following purposes: Port, beach or water access, boat moorage, launching sites, park, public view, recreation, or education; or

c) The vacation is sought to enable a city or town to implement a plan, adopted by resolution or ordinance, that provides comparable or improved public access to the same shoreline area to which the streets or alleys sought to be vacated abut, had the properties included in the plan not been vacated.

Before adopting a resolution vacating a street or alley under subsection (l)(b) of this section, the city or town shall: a) Compile an inventory of all rights-of-way within the city or town that abut

the same body of water that is abutted by the street or alley sought to be vacated;

b) Conduct a study to determine if the street or alley to be vacated is suitable for use by the city or town for any of the following purposes: Port, boat moorage, launching sites, beach or water access, park, public view, recreation, or education;

c) Hold a public hearing on the proposed vacation in the manner required by this chapter, where in addition to the normal requirements for publishing notice, notice of the public hearing is posted conspicuously on the street or alley sought to be vacated, which posted notice indicates that the area is public access, it is proposed to be vacated, and that anyone objecting to the proposed vacation should attend the public hearing or send a letter to a particular official indicating his or her objection; and

d) Make a finding that the street or alley sought to be vacated is not suitable for any of the purposes listed under (b) of this subsection, and that the vacation is in the public interest.

No vacation shall be effective until the fair market value has been paid for the street or alley that is vacated. Moneys received from the vacation may be used by the city or town only for acquiring additional beach or water access,

FINDINGS, CONCLUSIONS AND RECOMMENDATION PAGE 7

OFFICE OF THE HEARING EXAl\11NER CITY OF B ELLINGHAM

210 LOTTIE STREET BELLINGHAM, WA 98225

H:/DATA/HEARING EXAMINER/DECISIONS/Arps Cody Ave. VAC Recommendation

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acquiring additional public view sites to a body of water, or acquiring additional moorage or launching sites.

RCW 35.79.040 Title to vacated street or alley. If any street or alley in any city or town is vacated by the city or town council, the property within the limits so vacated shall belong to the abutting property owners, one­half to each.

RCW 35.79.050 Vested rights not affected. No vested rights shall be affected by the provisions of this chapter.

Adopted Bellingham City Council Vacation Policies It is the policy of the City of Bellingham to grant vacation of street right of ways when it is determined that such right of way is not needed presently or in the future for public access including vehicular, pedestrian, and visual access.

12 1. The right of way must be determined to be of no value to the circulation plan of the City either now or in the foreseeable future . The circulation plan is assumed to include vehicular, pedestrian, or other modes of transportation.

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No vacation will be allowed if such action land locks any existing parcel, lot of record, or tract. Access to a right of way of less than 30 feet in width does not constitute adequate access. One ownership of all the lots on a right of way does not circumvent this policy and in this it will be necessary to vacate lots prior or together with the vacation action.

State law (R.C.W. 35.79). "No city or town shall be authorized to have authority to vacate such street, or alley, or any parts thereof if any portion thereof abuts on a body of salt or fresh water unless such vacation be sought to enable the city, town, port district, or state to acquire the property for port purposes, boat moorage, or launching sites, park, viewpoint, recreational, or educational purposes, or other public uses. This provision shall not apply to industrial zoned property".

Right of way adjacent or leading to any park, open space, view, natural area, or any other natural or man-made attraction should not be vacated.

The proposed vacation should be determined to be necessary to the public good either in terms of needed development or when such vacation will result in a better or more desirable situation. In some instances a more desirable situation

FfNDfNGS, CONCLUSIONS AND RECOMMENDATION PAGES

OFFICE OF THE HEARi G EXAMINER CITY OF BELLTNGHAM

2 10 LoTTIE STREET BELLTNGHAM, WA 98225

H:/DA T NHEARfNG EXAMfNER/DECISIONS/ Arps Cody Ave. VAC Recommendation

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may be a better road pattern in terms of safety, or when an exorbitant amount of land is devoted to unneeded right of way.

Notification of street vacation requests will be sent to the Hearing Examiner. The Examiner will schedule review. The Examiner will hold a public hearing and make recommendations to the City Council. The City Council makes the final decision.

The petition should contain the approval of all the abutting property owners and proof of ownership must accompany the petition.

Vacation is not mandatory even though 100% of the abutting owners request the vacation. ( 100% submittal)

Proposed or possible use of the vacated right of way is not relevant to City action ( court opinion).

Easements for utilities will be retained as a matter of procedure unless such easement is specifically requested by the petitioners and approved by the City Engineer.

Conclusions Based on Findings 1. All procedural requirements for signatures, notices, Technical Review

Committee review and recommendation, and hearing for the proposed vacation were satisfied. Findings 11 and 12.

19 2. The proposed vacation is not prohibited by RCW 35 .79. The affected road does not abut a body of water. The request is supported by 100% of abutting property owners, consisting solely of the Petitioners as evidenced by the submitted property deed. Findings 1, 4, and 8.

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3. The proposed vacation is consistent with the City Council's vacation policies. The affected portion of Cody A venue is not needed for circulation, for public utilities, or for access to Fairhaven Park. The Cody A venue right-of-way that would remain after vacation approval is wide enough in case of future utility or park access extension. A recommended condition of approval would ensure appropriate private utility easements are provided. No parcels would be land locked by approval. As conditioned, approval would provide a public benefit by facilitating the highest use of the abutting property and providing payment to the City for the sale of the right-of-way. Findings 1, 3, 5, 6, 7, and 9.

FIN DINGS, CONCLUSIONS AND RECOMMENDATION PAGE9

OFFICE OF THE HEARi G EXAMI ER CITY OF BELLINGHAM

21 0 LOTTIE STREET BELLINGHAM, WA 98225

H:/DA TA/HEARING EXAMlNER/DECISIONS/Arps Cody Ave. VAC Recommendation

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4. Although it is for the City Council to determine whether, and what amount of, monetary compensation is required for a street vacation, the TRC recommended and the Petitioners agreed to the payment of a sum calculated based on the assessed value of three adjacent parcels. A recommended condition of approval would ensure the City is compensated. Findings 11 and 13.

RECOMMENDATION

Based upon the preceding findings and conclusions, the Hearing Examiner recommends to City Council that the requested vacation of the southerly 20 feet of Cody A venue abutting Lot A of the Arps-Hoyer Lot Line Adjustment generally located between 20th and 22nd Streets should be APPROVED subject to the following conditions:

1. Payment of $23,836 shall be made to the City of Bellingham prior to third and final reading ( approval) of the vacation ordinance.

2. Appropriate and specific easements shall be retained within the vacated right-of­way for private utilities.

Recommended April 26, 2017.

FINDINGS, CONCLUSIONS AND RECOMMENDATION PAGE IO

BELLINGHAM HEARING EXAMINER

~~&~ Sh ce

H:/DATA/HEARING EXAMINER/DECISIONS/Arps Cody Ave. VAC Recommendation

OFFICE OF THE HEARING EXAMINER CITY OF BELLINGHAM

210 LoTTIE STREET B ELLINGHAM, WA 98225