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40-39 Opening and Vacating Streets, Alleys, and Public Places

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CHAPTER 40-39OPENING AND VACATING STREETS, ALLEYS, AND PUBLIC PLACES40-39-01.Survey, plat, and estimate made by city engineer.Whenever thegoverning body of a municipality shall deem it necessary to open, lay out, widen, or enlarge any<br>street, alley, or public place within the municipality, it shall cause an accurate survey and plat to<br>be made by the city engineer, county surveyor, or other competent civil engineer, with an<br>estimate of the probable cost of the improvement.Such engineer or surveyor shall file thesurvey, plat, and estimate in the office of the city auditor and shall retain an office copy.40-39-02.Taking private property by purchase or eminent domain - Specialassessments levied - Limitation on general tax. If it is necessary to take private property in<br>order to open, lay out, widen, or enlarge any street or alley in any incorporated municipality, it<br>shall be done by purchase or, subject to chapter 32-15, by the exercise of the right of eminent<br>domain. When property is purchased or a judgment for damages is entered for property taken<br>for any such improvement, the governing body shall certify the purchase or judgment to the<br>special assessment commission, which shall levy special assessments upon the property<br>benefited to pay such judgment or the purchase price.Not more than three-fourths of thepurchase price or judgment may be paid by the levy of a general tax upon all the taxable property<br>in a city.40-39-03.Grades of streets, alleys, and sidewalks - Established - Record -Changing - Liability. The governing body, by ordinance, may establish the grade of all streets,<br>alleys, and sidewalks in the municipality as the convenience of its inhabitants may require. A<br>record of the grades, together with a profile thereof, shall be kept in the office of the city engineer,<br>or of the city auditor, if the city has no engineer. If the municipality changes the grade of any<br>street after it has been established, it shall be liable to the abutting property owners for any<br>damage they may sustain by reason of any permanent improvements made by them to conform<br>to the grade as first established.40-39-04. Vacation of streets and alleys where sewers, water mains, pipes, andlines located - Conditions. No public grounds, streets, alleys, or parts thereof over, under, or<br>through which have been constructed, lengthwise, any sewers, water mains, gas, or other pipes,<br>or telephone, electric, or cable television lines, of the municipality or the municipality's grantees<br>of the right of way therefor, may be vacated unless the sewers, mains, pipes, or lines have been<br>abandoned and are not in use, or unless the grantee consents thereto, or unless perpetual<br>easements for the maintenance of the sewers, water mains, gas, or other pipes, or telephone,<br>electric, or cable television lines have been given. Any vacation of areas within which are located<br>electric facilities, whether underground or aboveground, is subject to the continued right of<br>location of such electric facilities in the vacated areas.40-39-05. Petition for vacation of streets, alleys, or public grounds - Contents -Verification. No public grounds, streets, alleys, or parts thereof within a municipality shall be<br>vacated or discontinued by the governing body except on a petition signed by all of the owners of<br>the property adjoining the plat to be vacated. Such petition shall set forth the facts and reasons<br>for such vacation, shall be accompanied by a plat of such public grounds, streets, or alleys<br>proposed to be vacated, and shall be verified by the oath of at least one petitioner.40-39-06. Petition filed with city auditor - Notice published - Contents of notice. Ifthe governing body finds that the petition for vacation is in proper form and contains the requisite<br>signatures, and if it deems it expedient to consider such petition, it shall order the petition to be<br>filed with the city auditor who shall give notice by publication in the official newspaper of the<br>municipality at least once each week for four weeks. The notice shall state that a petition has<br>been filed and the object thereof, and that it will be heard and considered by the governing body<br>or a committee thereof on a certain specified day which shall be not less than thirty days after the<br>first publication of the notice.Page No. 140-39-07.Hearing on petition - Passage of resolution declaring vacation bygoverning body. The governing body, or such committee as may be appointed by it, shall<br>investigate and consider the matter set forth in the petition specified in section 40-39-05 and, at<br>the time and place specified in the notice, shall hear the testimony and evidence of persons<br>interested.After hearing the testimony and evidence or upon the report of the committeefavoring the granting of the petition, the governing body, by a resolution passed by a two-thirds<br>vote of all its members, may declare the public grounds, streets, alleys, or highways described in<br>the petition vacated upon such terms and conditions as it shall deem just and reasonable.40-39-08.Resolution to be published, filed, and recorded - Effect.Before theresolution declaring the vacation of a public ground, street, or alley shall go into effect, it shall be<br>published as in the case of ordinances. A transcript of the resolution, duly certified by the city<br>auditor, shall be filed for record and duly recorded in the office of the recorder of the county in<br>which the municipality is situated, and such resolution thereafter shall have the effect of<br>conveying to the abutting property owners all of the right, title, and interest of the municipality to<br>the property vacated.40-39-09.Expenses for vacating streets, alleys, and public ways - Depositrequired. All expenses incurred in vacating any public grounds, street, or alley shall be paid by<br>the petitioners, who shall deposit with the city auditor such sum as may be necessary before any<br>such expense is incurred. The amount to be deposited shall be determined by the governing<br>body, and any part thereof not used for such expenses shall be returned.40-39-10. Aggrieved person may appeal to district court. Any person aggrieved bythe decision of the governing body granting the vacation of any public grounds, street, or alley,<br>within fifteen days after the publication of the resolution, may appeal to the district court of the<br>county in accordance with the procedure provided in section 28-34-01. The judgment of the<br>court therein is final.Page No. 2Document Outlinechapter 40-39 opening and vacating streets, alleys, and public places