HomeMy WebLinkAboutA001 - Legal Opinion, June 28, 1973 y
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515 232-6210
CITY ATTORNZYS June 28 , 1973
John R. Klaus
Mark J. Nolan
Honorable Stuart N. Smith, Mayor
and Ames City Council Members
In re , Skeie-,Bel— . T2r�rrues t_ for A 1 ley 'C acat.ion Svu _ a`r t
Sou -
of Second between South Duff and Sumner.
As you may recall Item 7A of the agenda for the Council meeting
of June 26th was the recommendation of the City Plan Commission that
the request of A. O. Skeie and Melvin D. Bell for vacation of a
portion of the alley located south of Second Street -between South
Duff Avenue and Sumner Avenue be acted on favorable to the petitioners,
provided that an easement be retained for the City 's electric utility
transmission lines. The decision of the Ames City Plan Commission
that the subject alley should not be vacated except with the reser-
vation of an easement for utility purposes , raised in my mind a
legal question, which subsequent research has convinced me to be
serious enough to warrant Council consideration as to whether this
alley may be properly vacated at all.
In the case of Gable v. Cedar Ra)i.d_s , 1911 , 150 Iowa 108, 129
N.W. 737 , the Iowa Supreme Court held that a reservation of a right
to use a vacated street for water or sewer purposes , or other public
utilities , invalidated an attempted vacation of the street. In reach-
ing this decision, the Court enunciated the rule:
...f c 4..:, SaaJt..1u noL. be VaCuLeu nor t...cte. bc..stc._i
of private persons, when such vacation will in
all probability seriously inconvenience the
general public. "
The. Court went on to say:
"The very fact that it was considered necessary to
reserve to the city the use of these streets for
water and sewer pipes shows that they will also be
needed for the use of the general public. "
To paraphrase the dictum of the Court, ,the very fact that the
p:3 Cor bining -Education a,nd' Rulus:try u.1ith Hospitality
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June 28 , 1973
Honorable Stuart N. Smith, Mayor
and Ames City Council Members
Plan Commission deems it necessary to reserve a utility easement shows
that the alley may be needed for the use of the general public . There
are other matters which should be considered. I have discussed the
proposed vacation with Mr. Skeie, and he has indicated to me in a
telephone conversation held this date, that his plans are to acquire
the lots owned by Melvin Bell on the other side of the alley and
behind the Skeie auto dealership for the purpose of expanding the
building located on Tots 2 and 3 across the alley and into Lots 1
and 4 . Now, all of this indicates to me that there may be more in-
volved here than the mere vacating of an unused alley. It appears
to me that we may be confronted with what could be termed a re-platting
or re-subdivision of a downtown lot, and perhaps the Council would
wish to consider referring this matter back to the Plan Commission
for a broader and wore comprehensive study of the proposed development
and the interest of the City in this matter.
The City has title to its streets and alleys without regard to
how the streets and alleys were acquired, whether by dedication in
a plat or by acquisition by means of purchase or condemnation. . When
a street or alley is vacated or closed, the land is still under title
to the City. A fairly concise and good statement of the law effecting
this matter is to be found in the case of Walker v. City of Des Moines ,
1913 , 142 N. V. 51, in which the Court said :
"As the street and alleys are held by the city
in trust for the general public , it must in all
matters relating thereto act in behalf of the
public and may not dispose of them in disregard
of public good, in order to subserve the private
interests of the municipality or of others , unless
this be in recognition of a public purpose app-
roved by the Legislature. The sole inquiry should
be whether the way is necessary for public use
and convenience, and sufficiently traveled to
justify its maintenance at the public expense;
and tf-ie E,,ka'te:t of subsauuen-L dispO2,i+_-ic; i sii ulu
be postponed until the feasibility of vacation
has been settled, or at least treated as of
secondary consideration. If properly vacated,
the city may devote the ground to whatever leg-
itimate purpose it may elect, or otherwise dis.-
pose of the same. The use, then, to which the
(city) propose to make of the ground is material
only as it bears on the validity of the ordinance
effecting the vacation. "
Now, the City has undisputed authority and power to vacate
a street or alley, pursuant to the provision of Section 389 .1i .
Code of Iowa, 1973 , and then subsequent to the vacation and separate
apart from that vacation, dispose of the lands which formally
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01 ;
June 28 , 1973
Honorable Stuart N. Smith, Mayor
and Ames City Council Members
comprised that street or alley pursuant to the authority of Section
368 . 39, Code of Iowa, 1973 .
With regard to the City ' s authority to dispose of these lands,
however, there is one very importunt decision of the Iowa Supreme
Court,that of Gri,tton v. City of Des Moines , 1956, 247 Iowa 326,
73 N.W. 2d 813 , which has held that a city has no power to convey
to private interests property which the city held in governmental
capacity, except in return for payment of consideration at at least
approximating the propertys real value.
From my conversation with Mr. Skeie, I suspect that he was
under the misapprehension that the City could_ by vacating the
al.lev, ?rant him the tii-le to 1-he lancl. Th .s , of course , is
the case. . The disposition of the land is a separate matter, and .
I would recommend that before it be disposed of or conveyed to
Mr. Skeie or other abutting property owners , that some effort be
. made to determine .what the value of this land is .
With respect to preservation of the utility easement, I would
recommend . that the easement cannot be adequately preserved by att-
empting to vacate with such easement expressly reserved. In my
judgment, the City must either- not vacate the alley if it wishes
to protect its easement, or vacate the alley then sell the land
to Mr. Skeie or others with a specific reservation of the easement
in the deed of .conveyance.
I have advised Mr. Skeie that he should consult his attorney
to discuss this matter with me. further before T will recommend any
final action to the City Council . I also anticipate contacting
the Director of the City Plan Commission to obtain his views on
whether the interests of the City insofar as planning for -growth
and development in the downtown area should not be re-examined
in connection with the suggested plans of Mr. Skeie.
Respectfullyr submit.tPd ,
John R. Klaus"`
fw City Attorney
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