May 2003

Statutory Vacations: Acquiring Title to Land Underlying Unused Public Roads, Streets and Alleys in Washington

by Bryan Otake

As Washington's population continues to expand, municipalities have come under increasing pressure to intensify or modify existing land uses. But in many areas, outdated public easements and little-used public roads, streets and alleys sever or crisscross communities. As a result, landowners and developers face considerable challenges when trying to consolidate adjacent lots in order to revitalize areas of urban decay or to construct neighborhood facilities that outstrip old plat designations.
  
The Washington Legislature has created a statutory scheme for the "vacation" (i.e., extinguishment) of public easements over unused public roads, streets and alleys,1 but few people are aware of its existence. 
In this article I will review the basic legal issues encountered by property owners attempting to acquire unencumbered title to land underlying old public thoroughfares. I hope this information will facilitate new and dynamic real estate projects in Washington.

The Interests and Rights of Abutting Landowners
Generally, the maintenance and administration of public thoroughfares is a governmental function.2 Nonetheless, when a strip of land is dedicated for use as a public road, street or alley, the public acquires only an easement for travel.3 Landowners on either side of a public street or road will retain title to the underlying fee up to the thoroughfare's centerline, subject only to the public easement.4 
 
Under the vacation procedures outlined in chapters 35.79 and 36.87 RCW, an abutting landowner may petition a municipality to extinguish the public's interest in a public thoroughfare and quiet title in his or her favor.5 The precise procedure will depend largely upon whether the thoroughfare is considered a "county" or a "city" road or street. A landowner should also reference any local ordinances affecting the vacation of local thoroughfares. However, a statutory vacation will not affect private easements over streets held by those who purchased neighboring plots of land in reliance on references in a plat.6 

County Roads
A property owner with a lot adjacent to a little-used county road may attempt to gain title to the underlying land by either petitioning the county government for a legislative vacation, or demonstrating that the road has been left unused by the public for a period of five years or more.

Legislative Vacation of County Roads
In unincorporated areas, property owners with lots adjacent to an unused county road may seek unencumbered title by filing a petition to vacate with the county's legislative authority, usually the board of county commissioners. Under RCW 36.87. 020, a majority of the landowners fronting the targeted county road must sign the petition. The petition must also list the affected properties and demonstrate both the proposed public benefit that would arise from the road's vacation and abandonment, and the road's current lack of utility to the public road system.7
 
After the petitioners post a bond or cash deposit to cover processing costs, a county board may then declare its intent to vacate the road and order the county road engineer to prepare a report on the petition's merits.8 The county government must hold a public hearing on the matter and provide at least 20 days' notice of the proposed land-use action to local residents.9 If approved by a majority of the board, the county road will then be vacated and abandoned to the abutting private landowners.10 In the absence of any collusion, fraud or interference with a vested right, a court will not generally override a board's legislative decision to vacate an unused county road.11 
 
Despite the existence of these statutory procedures, a legislative vacation may not always be a viable option for a planned development. Neighboring landowners may oppose the vacation and mount considerable political opposition. County roads near bodies of water usually cannot be vacated, unless the vacation would enable a public authority to open up the area for boat moorage, recreation, education, or other socially beneficial uses.12 Landowners and developers should closely examine surrounding natural features and carefully assess community sentiments toward any proposed construction or modification of land uses.

Automatic Vacation of County Roads Due to Public "Non-use"
In rare instances, landowners may also gain unencumbered title to old county roads by establishing their longstanding closure or abandonment under the Road Laws of 1890. Under these provisions, a county road which has remained closed to the traveling public for a period of five years or more will automatically revert to private ownership.13 But due to legislative amendment,14 this non-use statute will apply only to county roads and thoroughfares which have lain unopened to the public for the required five-year period and were dedicated by plat or deeded to a state or county before 1909.15 Any county road, street or alley dedicated or platted after 1909, or annexed by a town or city before the expiration of the five-year period, will not fall under the automatic vacation provisions.16 The non-use statute is therefore of relatively limited utility and will probably apply only to a relatively small number of old county roadways.17 

Vacation of City or Town Streets and Alleys
Developers and property owners in urban areas may likewise petition a local town or city government for the vacation of unused city streets and alleys under the procedures set forth in chapter 35.79 RCW. The statutory procedures outlined there are the "exclusive method" by which a property owner with land abutting a little-used city street or alley may extinguish the public's easement for travel.18 Any proposed vacation should provide a public benefit or serve a public purpose.19 However, the concept of "public benefit" is construed broadly and includes such things as the provision of desirable goods and services, the enlargement of municipal property tax revenues, and the enrichment of the local economy.20 
 
The statutory procedure for the vacation of city or town streets and alleys is similar to the one for county roads. Property owners seeking to acquire unencumbered title to land underlying a little-used street or alley must petition their city or town government. Under RCW 35.79.010, this petition must be signed by owners of two-thirds of the lots facing the targeted right-of-way. The city or town government will then hold a hearing on the proposed vacation and must provide at least 20 days' notice to the public.21 After fully reviewing the matter, the town or city's legislative authority may vacate the street or alley by local ordinance.22 Owners of lots on either side of a vacated city street or alley will split title to the abandoned land and take a one-half interest up to the centerline.23 However, failure to substantially comply with the petition and hearing requirements of chapter 35.79 RCW will invalidate a vacation.24 In addition, a town or city government may require a successful petitioner to pay the government all or part of the vacated land's appraised value as compensation.25 
 
Property owners and developers in incorporated areas should take special care when undertaking projects near bodies of fresh or salt water. As in the case of county roads, a town or city government may not generally abandon a street or alley that touches upon a body of water, unless the vacation would enable the city or town to acquire property for port purposes, boat moorage, recreation or educational purposes, or some other public use.26 
 
Washington's vacation statutes provide a powerful tool for land-use development and redevelopment. After extinguishing unneeded public right-of-ways and easements, a landowner or developer may readjust property lines or join disparate lots previously separated by public streets or roads. The vacation statutes have already been used to facilitate port and shipping development in the Seattle area.27 As Washington continues to grow, private citizens will undoubtedly make greater use of the statutory-vacation procedures to facilitate new and energetic real estate projects.

Bryan Otake is a staff attorney at the Washington State Supreme Court in the Office of the Commissioner. The opinions expressed herein are the author's and are not necessarily the official or unofficial positions of the Washington State Supreme Court.

NOTES
1. Chapters 36.87 and 35.79 RCW.
2. Yarrow First Assocs. v. Town of Clyde Hill, 66 Wn.2d 371, 375, 403 P.2d 49 (1965).
3. Bradley v. Spokane & Inland Empire R.R., 79 Wash. 455, 458, 140 P. 688 (1914).
4. Puget Sound Alumni of Kappa Sigma, Inc. v. City of Seattle, 70 Wn.2d 222, 226, 422 P.2d 799 (1967).
5. See London v. City of Seattle, 93 Wn.2d 657, 663-64, 611 P.2d 781 (1980); Thayer v. King County, 46 Wn. App. 734, 737-38, 731 P.2d 1167 (1987).
6. See Humphrey v. Jenks, 61 Wn.2d 565, 567, 379 P.2d 366 (1963).
7. See RCW 36.87.060(1).
8. RCW 36.87.010, .030.
9. RCW 36.87.050; Thayer, 46 Wn. App. at 738.
10. RCW 36.87.080.
11. See Thayer, 46 Wn. App. at 738.
12. RCW 36.87.130.
13. Laws of 1889-90, ch. 19, § 32, p. 603; Tamblin v. Crowley, 99 Wash. 133, 138, 168 P. 982 (1917). 
14. See Laws of 1909, ch. 90, § 1, p. 188-89, repealed in 1937 by the Washington State Aid Highway Act, Laws of 1937, ch. 187, § 70, p. 778, but re-enacted as part of the same act, Laws of 1937, chap. 187, § 52, p. 761-62 (current version at RCW 36.87.090). 
15. Gillis v. King County, 42 Wn.2d 373, 379, 255 P.2d 546 (1953); Real Progress, Inc. v. City of Seattle, 91 Wn. App. 833, 841, 963 P.2d 890 (1998).
16. See Gillis, 42 Wn.2d at 376-77; Northwestern Indus., Inc. v. City of Seattle, 33 Wn. App. 757, 760-61, 658 P.2d 24 (1983).
17. See William B. Stoebuck, The Law of Adverse Possession in Washington, 35 WASH. L. REV. 43, 56-57 (1960).    
18. Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 270, 937 P.2d 1082 (1997).
19. Banchero v. City Council of Seattle, 2 Wn. App. 519, 523-24, 468 P.2d 724 (1970).
20. Id. at 524. 
21. RCW 35.79.010, 020.
22. RCW 35.79.030.
23. RCW 35.79.040.
24. See Smith v. City of Centralia, 55 Wash. 573, 576-77, 104 P. 797 (1909).
25. RCW 35.79.030; see also Greater Harbor 2000, 132 Wn.2d at 274-75 n.15.
26. RCW 35.79.035.     
27. See Greater Washington 2000, 132 Wn.2d at 269-71.

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