Article 10. Vacations and Corrections
19.10.1. Vacation of unrecorded plat.
A. Upon written request of the subdivider to the Planning Commission, a preliminary or final plat may be withdrawn from consideration either before or after approval by the Commission. Upon approval of the request by a motion of the Commission, the Zoning Administrator is automatically directed to remove the case file from the City records.
B. Upon written request of the subdivider to the Clerk, a final plat for which dedications, if any, have been accepted by the Governing Body may be vacated by motion of the Governing Body; provided, that (1) the plat has not been recorded; (2) no lots have been sold or transferred; and (3) no improvements have been installed. After the plat is vacated, the Manager shall see that all fiscal sureties are returned to the subdivider except for those expenditures which have been incurred by the City or County in administrative, legal or engineering costs prior to the date of the request for vacation. Upon the return of such sureties, the Zoning Administrator is automatically directed to remove the case file including any petitions from the City records.
C. Upon determining from the County Register of Deeds that a final plat has not been recorded within 60 days from its final acceptance by the Governing Body under the preconstruction procedures of Article 7, the Manager shall notify the subdivider that the plat is null and void and that the case file will be removed from the City records within 30 days unless a reapplication for platting is received during that time, unless time is tolled during pendency of litigation filed by a third party in a court of competent jurisdiction challenging any legal action by the City in relation to approval of such plat.
19.10.2. Vacation of recorded plat.
A. Recorded plats may be vacated by either replatting or directly vacated.
1. According to K.S.A. 12-512b, any recorded plat or part thereof or street, alley or other public reservation, including, without limitation, easements, dedicated building setback lines and access control, whether established by instrument, condemnation or earlier plats, shall be vacated both as to use and as to title without any further proceedings upon the filing and recording with the County Register of Deeds in accordance with K.S.A. 12-403, any plat or replat duly executed in accordance with these regulations which embraces the same lands as those heretofore embraced by the earlier plat or part thereof or street, alley or other public reservation. Streets, alleys or other public reservations which may be vacated shall revert, as provided for in K.S.A. 12-506, to abutting property owners according to their frontage thereon; provided, that such land to be reverted was derived directly or indirectly from the owner of the land from which such street, alley or public reservation was originally platted. The proper completion of the Owner's Certificate and Dedication as required by these Regulations shall constitute appropriate notice to all persons having property rights or interests affected by the above platting or replatting.
19.10.3. Correction of platting errors.
Pursuant to K.S.A. 12-420, procedures are provided to correct certain platting errors. If, after recording a final plat, an error is found in distances, angles, bearings, subdivision or street names, block or lot numbers, the computation of dimension or elevation or other details of the plat, except in connection with the outer boundaries of the plat, and if the property described in that part of the plat containing the error is under the ownership of the person who caused the plat to be prepared, the City or County Engineer, after substantiation of the existence of the error, may file an affidavit with the County Register of Deeds that the error was made. The affidavit shall describe the nature and extent of the error and the appropriate correction. The Register of Deeds shall record the affidavit and shall place in the margin of the recorded plat a notation that the affidavit has been filed, the date of filing and the book and page where it is recorded. The filing of the affidavit shall correct any such errors, but shall have no effect on the validity of the plat or any property interest recorded by reference thereto. A copy of the recorded affidavit shall be filed with the City Manager. The County will bill the person requesting the correction for engineering costs and recording fees.
19.10.4. Vacation of streets, alleys, easements and plats.
A. Pursuant to K.S.A. 12-504 and 12-505, the following procedures are provided to vacate streets, alleys or other public reservations such as, but not limited to public easements, dedicated building setback lines, access control, or a part thereof, and including all or parts of recorded plats:*
1. Petitions for vacations received from the Governing Body, the owner of platted land or the owner of land adjoining on both sides of any street, alley, easement or other public reservation may be filed with the City Clerk and transmitted to the Zoning Administrator for processing. Note: The same statutory procedure may be used to exclude a portion of land from the boundaries of the City, i.e., the Land could also be “deannexed”.
2. Application in writing for any proposed vacation of any easement, street, alley, or other public reservation located in the city shall be filed with the zoning administrator and accompanied by such data and information as may be prescribed by the planning commission so as to assure fullest possible presentation of facts for the permanent record. The application for vacation shall be designate by legal description the location of such requested vacation, and shall be accompanied by a certified list, prepared by an abstract company, of all owners of real property within 200 feet of the area proposed to be changed or reclassified, excepting public streets and ways, located within or without the corporate city limits of the city. If the proposed vacation is located adjacent to the city’s limits, the area of notification of the action shall be extended to at least 1,000 feet in the unincorporated area. This area shall be referred to as the notification area.
(a) Written notice. Written notice of such request for hearing before the Planning Commission shall be mailed by regular mail to all property owners who own property within the described notification area.
(b) Published notice. At least 20 days’ notice of the time and place of the public hearing shall be published in the official paper of the City of Bel Aire.
(c) All notices shall include a statement that a complete legal description is available for public inspection and shall indicate where such information is available.
(d) When the notice has been properly addressed and deposited in the mail, failure of a party to receive such notice shall not invalidate any subsequent action taken by the Planning Commission or the Governing Body.
3. Filing Fee. A filing fee and a publication fee shall be paid to the city clerk upon filing of each such application for each vacation of public reservation request included in the application for the purpose of defraying costs of the proceedings prescribed herein. A written receipt shall be issued to the persons making such payment and records thereof shall be kept in such a manner as prescribed by law.
4. Public Hearing Required For All Vacation of Public Reservation requests. No action on a requested vacation shall be taken until it has been submitted to the commission for report and recommendation following a public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard. At least 20 days’ notice of the time and place of such hearing shall be published in the official paper of the city.
B. Criteria for Review.
The Planning Commission shall hold a public hearing to consider a recommendation to the Governing Body as to whether the vacation should be approved or disapproved. At the hearing, the Planning Commission shall hear such testimony as may be presented or as may be required in order to fully understand the true nature of the petition and the propriety of recommending the same. If the Planning Commission determines from the testimony presented that:
1. due and legal notice has been given;
2. no private rights will be injured or endangered;
3. the public will suffer no loss or inconvenience; and
4. in justice to the petitioner(s) the vacation should be granted;
then the Planning Commission shall recommend that such vacation be approved and such decision shall be entered in the minutes, including an explanation of such decision, and a recommendation of approval shall be submitted to the Governing Body. Such recommendation may provide for the reservation to the City and/or the owners of any lesser property rights for public utilities, rights-of-way and easements for public service facilities originally located in such vacated land or planned for the future. The recommendation may be conditioned upon the petitioner's responsibility to remove or relocate all underground or surface utilities or paving in or on the vacated land.
C. The petition shall not be recommended by the Planning Commission nor granted by the Governing Body if a written objection is filed with the City Clerk, at or before the hearing, by any owner who would be a proper party to the petition, but has not joined therein. Furthermore, when only a portion of a street, alley or public reservation is proposed to be vacated, the petition shall not be recommended by the Planning Commission nor granted by the Governing Body if a written objection is filed with the City Clerk by any owner of lands which adjoin the portion to be vacated, including owners on the opposite side of the street from vacations of setbacks and access control.
D. Action of the Governing Body. If the governing body determines from the proofs and evidence presented that due and legal notice has been given by publication as required in this act, and:
1. that no private rights will be injured or endangered by such vacation or exclusion, and
2. that the public will suffer no loss or inconvenience thereby, and
3. that in justice to the petitioner or petitioners the prayer of the petitioner ought to be granted,
the governing body shall order that such vacation or exclusion, or both, be made. Any order approving a vacation of plat, street, alleys, easements or a public reservation shall provide for the reservation to the city and the owners of any lesser property rights for public utilities, rights-of-ways and easements for public service facilities originally held in such plat, street, alley, easement or public reservation then in existence and use.
E. Following the approval of the vacation by the Governing Body in the form of an order, the Clerk shall certify a copy of the order to the County Register of Deeds, however, such certification shall be withheld until such time as any conditions attached to the order have been satisfied.
F. The procedure for vacation and/or deannexation for areas within the extraterritorial subdivision jurisdiction area are governed by K.S.A. 58-2613 - 58-2615.