February 5, 1976

Mr. Robert J. Wagner
City Attorney
Watertown, South Dakota 57201

OFFICIAL OPINION NO. 76-15

Vacation of municipal property dedicated to public purpose

Dear Mr. Wagner:

You have requested an opinion based on the following factual situation:

In connection with the annexation of the Lake Kampeska area by the City of Watertown, it was discovered that a number of walkways, ranging in width from five to sixteen feet, had been so dedicated for public purposes over the years. It was the decision of the city council and city planning commission that said walkways were of little public use as access areas because of their limited size.

I have advised that the available procedure for removing said areas from the public access rolls would be a vacation procedure resulting in reversion of the property to the adjoining landowners.

The question was then raised as to whether the city has authority to receive consideration therefor from the adjoining landowners, either in the form of money or an exchange of property to be used as new public access areas.

Your specific question is whether the city may condition the vacation of property dedicated for public purpose on the receipt of consideration from abutting landowners.

First, I am in agreement that the proper procedure to accomplish the in­tended purpose is a vacation of the walkways pursuant to the provisions of SDCL 9-45-7 to 9-45-13, inclusive. The vacation procedure, of course, must be initiated by petition of the adjoining landowners and not by the city council.

With regard to your specific question, South Dakota law does not address the issue. The vacation statutes hereinbefore cited are basically of a pro­cedural nature and provide few guidelines for the governing body. SDCL 9-45-9 provides that the governing body or committee appointed by it shall investigate the petition, hear evidence and testimony, and if so inclined, declare by resolution that the ground is vacated. SDCL 9-45-8 merely states that the petition set forth the facts and reasons for the vacation.

Courts in a number of other states have interpreted similar statutory provi­sions as authorizing local governing bodies to reasonably condition vaca­tions of publicly dedicated property~ However, such conditions must be justifiable as necessary to serve the general public interest. Palisades Prop­erties v. Brunetti, 207 A. 2d 522 (1965). This logic is consistent with the general proposition that property dedicated to public use may be vacated only when it is in the best interest of the general public.

However, the majority view with regard to requiring compensation from abutting landowners is that such a condition precedent, in the absence of ex­press statutory authority, is not an inherent power of a local governing body. 11 McQuillan, Municipal Corporations, §30.189.

In the case of Puget Sound Alumni of Kappa Sigma v. City of Seattle, 422 P. 2d 799 (1976), the Supreme Court of Washington held that the Seattle ci­ty council was without authority to require compensation of petitioners seeking to vacate a street. The Court summarized its position as follows:

A municipality is not entitled to compensation for loss of a public easement in streets in which it does not own the fee. It thus follows, where a street is vacated by a court on the application of abutting landowners, the municipality has no such proprietary interest therein as to entitle it to compensation.

The legislative powers of a city must be exercised for the public benefit, but that does not authorize a municipality to sell or bargain legislation as a means of obtaining revenue. It would be a novel proposition to hold that a city, as a condition precedent to the exer­cise of its lawful power and authority to vacate a street or alley no longer needed for public use, could demand and receive from private parties a sum of money for its action. Such a holding would be dangerous in principle, contrary to good morals, and against public policy.

It is my opinion that a municipal governing body in acting on a petition for vacation has no inherent authority to request and receive consideration of the petitioners. As stated in City of Seattle such a condition precedent, even if agreeable to all parties, is contrary to the purposes and intents of vaca­tion. The attachment of this condition to a declaration of vacation could too easily be misconstrued as coercion or bad faith bargaining on the part of the city council and not consistent with the public interest doctrine.

Obviously, municipalities have the authority to enter into agreements with property owners to take, by gift or otherwise, private property for public use. Subdivision (2) of SDCL 9-12-1 provides:

9-12-1. Every municipality shall have power:

(1) . . .
(2) To acquire by lease, purchase, gift, condemnation, or other lawful means and. hold in its corporate name or use and con­trol as provided by law both real and personal property and easements and rights of way within or without the corporate limits for all purposes authorized by law or necessary to the exercise of any power granted;

Therefore, the city is not without power to implement its intended plans.

However, for the reasons herein stated, it is my opinion that such negotia­tions and agreements must be totally divorced from vacation procedures.

Respectfully submitted,

WILLIAM J. JANKLOW
ATTORNEY GENERAL

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