HomeMy WebLinkAboutA001 - memo advising of steps to vacate platted street FILED
M E M O R A N D U M CnY OF AMESIOWA
TO: Paul D. Wiegand, Municipal Engineer MAY 1
4 1981
FROM: John R. Klaus, City Attorney
DATE: May 13, 1981
IN RE: Proceedings to Vacate Platted Stub Street and Sell Land,
North Side of Coy Street
This is in response to your memorandum of May, 7, 1981 pertaining to proce-
dures appropriate to vacate a platted street on the North side of Coy Street,
west of South Franklin Avenue, and located between lots four (4) and five (5)
of Vivian G. Coy Subdivision.
The first step is to vacate the street. It may be legally regarded as a
street, and abutting property owners may claim some beneficial rights with
respect to the street even though it has never been opened and improved for
use as a street. The stub street may be vacated by ordinance following notice
as required by Section 362.3, The Code. (See Sec. 364.12(2)(a)) A form of
notice for publication and form of ordinance to vacate the street are at-
tached hereto as Exhibits A and B respectively. As a matter of fairness and
precaution against any exotic claims by abutting property owners for whatever
special rights they may have, I suggest mailed notice to the record title
holders and any record contract purchaser of Lots 5 and 4.
Unless there is some covenant or reservation with respect to the dedication
and platting of the Street, the City will have fee title to the land which
can be sold once the street is vacated. The procedures for sale and the
proceedings to vacate the street can be overlapped so long as the street gets
vacated by publication of the ordinance prior to execution and delivery of
the deed.
As to the deed, a decision should be made early on as to whether to use a
"Quit Claim Deed" or a "Warranty Deed" . I prefer the former because it does
not require the city to make an abstract of title, guarantee the title, and
worry about satisfying any title objection that may be raised by the pur-
chaser. The Quit Claim Deed simply conveys whatever rights the city may have
in the land. However, using a Quit Claim Deed instead of a Warranty Deed
may, to some extent, depress the price the city can obtain for the land. A
real estate appraiser could perhaps advise on that issue.
Appraising the value of the subject land is necessary since the city is
prohibited by statute and Supreme Court decision from conveying ownership in
land without receiving a consideration substantially equivalent to its market
value. The tract in question is of the size and shape to be a buildable lot
and will, therefore, be valued as such.
It is legal for the city to proceed to sell the land by adopting a resolution
proposing to sell to the highest bidder over a base price and setting a date
for opening bids, holding a hearing and approving the sale. That is essen-
tially what was done in selling the two lots the city platted off the excess
right-of way for Meadow Lane. (See copy of notice attached. ) However, that
process is very risky from the standpoint of potential legal problems, and
although we got through it okay once, I would not like to ever run those
risks again. The city does not need to sell its land at auction or to the
highest bidder. As long as the sale price is substantially equivalent to
market value the city can negotiate the sale and be influenced in its de-
cision by factors other than price, (e.g. financing arrangements, anticipated
land use, etc. ) . The auction concept for finding a buyer runs the risk of
exposing the city to difficulties with someone who has made the highest bid
but is financially irresponsible or an undesirable purchaser for some other
reason.
A better approach to finding a good transaction for the city is to let it be
known, by advertisement and/or other means, that the city will entertain, for
discussion and negotiations, proposals and inquiries from persons interested
in acquiring, by Quit Claim Deed, the city' s right, title and interest in the
described land.
Once a proposal has been refined to a transaction which both the potential
purchaser and the city wish to pursue to closing, the ritual procedures of
Section 364.7, The Code, come into play. This is essentially a two-step
process. First the City Council adopts a resolution proposing the trans-
action. This Resolution sets out the essential elements in terms of to what,
to whom and for how much. It also sets a date of public hearing on the
proposal and directs the City Clerk to publish the required notice of hear-
ing. A form of resolution and a notice for the subject transaction is at-
tached hereto as Exhibits C and D. The second step is to hold the hearing at
the appointed time and place and then adopt a resolution approving the con-
veyance. See Exhibit E attached.
After the transaction is finally approved by the City Council it remains only
for the purchaser to make payment and the Mayor to execute and deliver the
deed. It may be desirable to preserve or obtain certain easements for uti-
lity, storm water drainage or other public purposes on the subject land.
This should be taken care of by an easement-back document from the purchaser
to the city. After that all notices, resolutions, deeds and easements are
recorded in the County Recorder's office and the transaction is complete.
Incidentally, it would probably be desirable to survey and check the measure-
ments on the tract and have a metes and bounds description made.
If you have any other questions on the proposed transaction do not hesitate
to call. This office ought to be a part of the process of implementing the
proposed dispostion of the subject land to insure that there are no legal
difficulties. Please keep me informed of developments and offer an oppor-
tunity for legal department review and comment before the matter goes to the
City Council for action. These documents are standard forms stored on our
Word Processing machine. Please do not retype. This office will prepare the
final documents with any changes as you direct.
cc J.Elwell
G. Bicknese