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HomeMy WebLinkAboutOrdinance No 11-09-115STATE OF GEORGIA COUNTY OF FULTON ORDINANCE NO. 11-09-115 AN ORDINANCE TO AMEND CHAPTER 48 - STREETS, SIDEWALKS AND OTHER PUBLIC PLACES, ARTICLE III - RIGHT-OF-WAY MANAGEMENT, DIVISION 2 - ACCEPTANCE AND ABANDONMENT POLICY, SECTION 48-168 - METHODS, AND CHAPTER 48 - STREETS, SIDEWALKS AND OTHER PUBLIC PLACES, ARTICLE III - RIGHT-OF-WAY MANAGEMENT, DIVISION 3 — PRIVATIZATION POLICY OF THE CITY OF MILTON CODE OF ORDINANCES TO MODIFY THE POLICIES AND METHODS FOR ACCEPTANCE, ABANDONMENT AND PRIVITIZATION OF RIGHT-OF-WAY; TO PROVIDE FOR THE REPEAL OF CONFLICTING ORDINANCES; TO PROVIDE AN EFFECTIVE DATE; AND FOR OTHER LAWFUL PURPOSES. WHEREAS, Chapter 48 of the City of Milton Code of Ordinances regulates streets, sidewalks and other public places within the City of Milton; and WHEREAS, Chapter 48, Article 3, Division 2, Section 48-168 of the City of Milton Code of Ordinances provides for the policies and methods for acceptance and abandonment of right-of- way in the City of Milton; and WHEREAS, Chapter 48, Article 3, Division 3 of the City of Milton Code of Ordinances provides for the policies and methods for privatization of right-of-way in the City of Milton; and WHEREAS, the Mayor and Council have therefore determined that it is in the best interest of the City's residents to amend Chapter 48, Article 3, Division 2, Section 48-168 and amend Chapter 48, Article 3, Division 3 to modify the policies and methods for acceptance, abandonment and privatization of right-of-way in the City of Milton. THE COUNCIL OF THE CITY OF MILTON HEREBY ORDAINS, while in a Regular called Council meeting on the 19th day of September, 2011 at 6 p.m. as follows: SECTION 1. That Chapter 48, Article 3, Division 2, Section 48-168 of the City of Milton Code of Ordinances relating to the methods for acceptance and abandonment of right-of- way within the City of Milton shall be stricken it its entirety and replaced with the Ordinance attached hereto as if fully set forth herein. SECTION 2. That Chapter 48, Article 3, Division 3 of the City of Milton Code of Ordinances relating to the privatization policy of right-of-way within the City of Milton shall be stricken it its entirety. SECTION 3. That all Ordinances, parts of Ordinances, or regulations in conflict herewith are hereby repealed. SECTION 4. This Ordinance shall become effective upon its adoption. ORDAINED this the 19th day of September, 2011. Approved: F Joe Lockwood, I\m / r Attest: a Sudie AM Gordon, Ci Clerk CHAPTER 48 — STREETS, SIDEWALKS AND OTHER PUBLIC PLACES ARTICLE III. RIGHT-OF-WAY MANAGEMENT DIVISION 2. ACCEPTANCE AND ABANDONMENT POLICY Sec. 48-168. Methods. (a) Roadway Abandonment (1) Legal Compliance a. Municipal streets belong to the general public. Since the control and general supervision of municipal streets is conferred upon the City, the City holds those streets in trust for the convenience and use of the public at large. It correspondingly becomes the City's duty to keep them in a safe and suitable condition for the passage of persons and transportation of commodities. The basic principles of law regarding streets are pronounced in at least two cases, Jones, et al. v. City of Moultrie, et al., 196 Ga. 526 (1943); Accord: Soles v. City of Vidalia, 92 Ga. App. 839 (1955): A highway is a public way open and free to anyone who has occasion to pass along it on foot or with any kind of vehicle. The streets of a city belong to the public, and are primarily for the use of the public in the ordinary way. The primary object of streets is for public passage. They should be kept open and unobstructed for that purpose. The streets of the city are peculiarly within the police control for the purpose of preserving and protecting their use by the public as thoroughfares. b. Roadway abandonment is governed by the Official Code of Georgia Annotated, Title 32- 7-2(c): When it is determined that a section of the municipal street system has for any reason ceased to be used by the public to the extent that no substantial public purpose is served by it or that its removal from the municipal street system is otherwise in the best public interest, the municipality, by certification recorded in its minutes, accompanied by a plat or sketch, and after notice to property owners located thereon, may declare that section of street shall no longer be a part of the municipal street system and the rights of the public in and to that section of street as a public street shall cease. The property may be disposed of by the municipality as provided in Code Section 32-7-4. (2) Procedure a. Abandonment is defined as the intentional and permanent relinquishment of claim and title to real property that forms a segment of the City of Milton's roadway network or was acquired or held for future use as a portion of the roadway network. b. Abandonment of a road or right of way requires that the City Council make a finding of one of the following with respect to the roadway in question: 1. That no substantial public purpose is served by it; or, 2. That its removal from the municipal street system is in the best public interest. Requests for abandonment of roads within the City of Milton roadway network shall be made to the Department of Public Works by a homeowner association (HOA) or, if no HOA exists, an individual or group of individuals whose property adjoins or is accessed by the public right of way being considered for abandonment (referred to herein as "Applicant"). The Department of Public Works or the City Council may initiate abandonment requests. In the event the Department of Public Works or the City Council initiate an abandonment request, only those procedural requirements set forth in pertinent State law shall be observed. d. The Applicant shall be required to submit documentation establishing the factual basis upon which the request for abandonment is made. The Applicant shall be required to provide all necessary information demonstrating compliance with the requirements of this section and all applicable State laws prior to the initial public hearing. e. The Department of Public Works will not support the abandonment of any road that connects two or more collector roads without sufficient supporting documentation to demonstrate that the abandonment will not negatively affect surrounding roadways. For the purposes of this policy, a collector road is defined as any road that the Department of Public Works has given a functional classification of collector or higher. f. The abandonment of any street within the City of Milton roadway network should not be inconsistent with any programmed capital projects and should otherwise conform to any approved local, regional or state transportation plans and the City of Milton Comprehensive Plan. Approval by the Director of Public Works and the Director of Community Development is required to indicate conformity. g. Prior to the initial public hearing on abandonment, the Applicant shall provide documentation demonstrating contact and coordination with pertinent emergency service providers, utility providers, Fulton County Schools, and the Postmaster to ensure that said services can be accommodated and that such vital public services will not be significantly impaired. h. For Applicant initiated abandonments, the City of Milton will accept input from the community related to their support or opposition to an abandonment. For the purposes of this section, the "community" shall be defined as all of those owners whose property adjoins or whose property is accessed by the right of way to be abandoned. Prior to the final public hearing before the Mayor and City Council to consider an application for abandonment a completed formal petition and all supporting forms and documentation shall be submitted to the Department of Public Works. The formal petition submitted on behalf of the community shall comply with the minimum numerical standards set forth Table 1. 4 Table 1. — Required Percent Approval to Process Abandonment Petition Number of Lots Required % Approval ** 20 or less 100% 21-90 75% 91 or more 67% "Note: Compliance with the required approval percentage rates is in no way determinative of the city's intent to abandon any right of way. The required approval percentage is merely one component of the process, state law considerations shall prevail. All property owners in the community shall be contacted by the Applicant via certified mail prior to the initial public hearing. Notice must be mailed by the Applicant to the community members no less than thirty days prior to the initial public hearing date. In the case where a community association has initiated the petition process no notification will be required for any person who has previously signed the petition in favor of abandonment. Each lot within the community shall be given an opportunity to sign a petition, expressing their opinion in favor of or in opposition to the abandonment. Any abstention, non response or indication other than a "yes" by community members will be considered a "no." Signatures on the petition shall not be considered valid after a period of one year from the date of signing. k. Percentages will be calculated based on the number of lots expressing an affirmative or "yes" vote in favor of the abandonment, divided by the total number of lots in the community. Each lot counts as a single unit regardless of the number of owners signing. Where a community has a homeowner association or other legal entity that is authorized to act on behalf of its members and that may utilize percentages different than those in Table 1, such a mechanism shall not replace the petition process. 1. Compliance with the application procedures is in no way determinative with respect to the city's authority or decision to abandon a roadway. The City Council shall retain full legislative discretion to authorize or deny abandonment based upon controlling legal standards and State law. in. After the final public hearing and an affirmative action by the Mayor and City Council to abandon any right of way, the right of way shall be disposed of in accordance with O.C.G.A. 32-7-3, 32-7-4, and 36-37-6. The Applicant will file a revised plat, legal description(s) indicating the new dispensation of the property or any other required documentation. Any expenses or fees incurred in the filing will be the sole responsibility of the Applicant. n. The Applicant will grant the city, county or other utility permanent easements as may be required for the entirety of the existing right of way, or as may be needed, at no cost as a condition of abandonment prior to final dispensation of the property. o. Any abandonment request that is denied by the Mayor and City Council may not be resubmitted for a period of one year following the date of denial. p. After abandonment, the right of way shall become privately owned and the city shall no longer maintain the roadway or accept any liability for the roadway or any area within the private right of way. Any maintenance, such as, but not limited to, resurfacing, stormwater management, sinkhole repair, shall be the responsibility of the owner(s). q. Any access control, such as a gate, that the property owner(s) wish to install shall conform in design and construction to all relevant city standards, regulations, and processes, and must meet emergency access requirements. All access controls shall conform to city standards as if it was newly constructed. Recent abandonment will not be accepted as a justification for any exemptions or variances to these standards. (3) Privatization For the purposes of this ordinance, privatization of a roadway shall mean the abandonment of the right of way to a community for the purposes of converting a public road to a private road while continuing to maintain access to the properties within the community. As a condition of approval for the privatization of any right of way the community shall continue to provide access to all properties previously served by the public road. In addition to the criteria established for the abandonment of any right of way, as outlined in Sections (1) and (2), privatization shall meet the following requirements: a. The Department of Public Works will not support a request for privatization of any local road that connects two or more collector roads without sufficient supporting documentation to demonstrate that the abandonment will not negatively affect surrounding roadways. For the purposes of this ordinance a local road is defined as those roads built as part of a platted residential development. b. The applicant for any privatization request shall be a homeowner association or other legal entity established with the authority to act on behalf of all of the members of the defined community. The applicant is required to meet all of the application requirements provided by the city including the minimum percentage approval rates established for the formal petition for abandonment prior to the final public hearing. c. In the case of a road privatization the "community" shall be defined as all of those owners whose property adjoins the right of way or whose sole access is provided by the right of way to be abandoned or that may incur a financial obligation for the maintenance and preservation of the right of way should the abandonment resolution be approved. d. The applicant shall file financial statements reflecting assets similar to what is required for a homeowner association to finance a line of credit for capital assets. This information will not be made public to the fullest extent allowed by the Open Records Act and is only to insure solvency and to further demonstrate that the applicant has the financial means to fund those future costs associated with maintaining the asset. e. It is hereby the expressed declaration of the governing authority of the City of Milton that obtaining documented support from the community that an abandonment application is supported by a certain percentage of those affected is a material, though not dispositive, 2 component in determining whether an abandonment serves the public interest. At the request of the applicant, an application for abandonment under this section may delay tendering formal petitions until such time as the Council has adopted a resolution conditionally approving an abandonment. Any such conditional abandonment shall be for the express purpose of allowing the applicant sufficient time to secure all necessary formal petitions with the knowledge that the Council has exercised its discretion and preliminarily sanctioned the abandonment. The resolution of conditional abandonment will expressly provide that upon the applicant tendering a formal petition meeting the percentage requirements in Section 2, Table 1, the abandonment petition shall be placed upon a future Council consent agenda for final ratification of the abandonment. Upon approval of a resolution of conditional abandonment, the applicant will be notified of same and will be advised that submission of a formal petition meeting the percentage requirements in Section 2, Table 1 will be the final step in the abandonment process prior to placement on the consent agenda. The applicant will further be advised that the formal petition must be tendered to the Council within six (6) months of the resolution of conditional abandonment having been approved, and that a failure to tender the petitions within this period shall result in the abandonment request being deemed withdrawn. The Director of Public Works may grant one extension of up to 90 days in his/her reasonable discretion. The above notwithstanding, at any point during the abandonment process up through and including the point when the abandonment becomes subject to ratification on the consent agenda, the City Council shall be authorized to exercise its discretion and determine that a particular abandonment does not serve the public interest and thereby deny same. f. After the public hearing process and an affirmative action by the mayor and city council to privatize any right of way, the right of way must remain private for a minimum of five years before being eligible to submit for public status again. If, after five years, a right of way is submitted for public acceptance the road shall be required to meet the construction and testing standards established by the City of Milton. (4) Hearing Process a. Once it has been determined that the initial application is complete and conforms to the requirements of the City of Milton, the application will be placed on the City Council agenda for initial consideration. At that time, the council will determine whether to accept the application for further processing or to reject the application outright. Acceptance of the application by the council does not constitute final approval of the application or the abandonment of the public road or right of way, or any portion thereof. Upon a determination by the Mayor and City Council to accept the application for further processing, the applicant shall be duly notified. The applicant shall also be required to pay all required fees and comply with the requirements of this ordinance and applicable State law prior to the initial public hearing. Any application that is not accepted for further processing by the council shall not be re -filed for a period of one (1) year from the date that the application was rejected. b. Two public hearings shall be held before the Mayor and City Council; provided, however, the second public hearing shall not occur on the same day as the first. However, if 100% approval is obtained by the community prior to the initial public hearing, the second public hearing will not be required. c. If, after the final public hearing, the Mayor and City Council finds that no substantial public purpose is served by the right-of-way or that the removal of the right-of-way from 7 the municipal street system is otherwise in the best public interest, it may approve a resolution authorizing the abandonment of the public right of way. Such approval may be conditioned on the submittal of a signed petition meeting the approval percentages provided in Section 2, Table 1. If the Mayor and City Council approve such a resolution then the right of way shall be considered surplus property and disposed of in accordance with O.C.G.A. 32-7-3, 32-7-4, and 36-37-6.