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HomeMy WebLinkAboutThrower 2204141 ___________________________________ AARON M. HEFFINGTON | ATTORNEY EMAIL: HEFFINGTON@GILL-LAW.COM April 14, 2022 lrzoning@littlerock.gov; tthrower@littlerock.gov Torrence Thrower, Development Specialist City of Little Rock Planning Department VIA E-MAIL Re: 1901 Leander Dr., Little Rock, AR 72204 Petition for abandonment of right of way Mr. Thrower: Please allow this correspondence to briefly address Mr. Francis’ response to my initial objection. I. Mr. Tice’s Access to the Property. Mr. Tice does not dispute that there are additional streets platted in the Blankenship Addition. However, as a practical matter, 19th Street, is most viable point of access. While platted, Caruth St. does not physically exist—nor do 17th,18th, and 20th Streets exist east of Leander Drive. See Satellite Images enclosed herewith. Perhaps more importantly, power lines have been constructed down the center of the entire Caruth St. right of way to a point at least past the 18th Street right of way, making development along Caruth St. to the 18th Street right of way practically impossible. See Satellite Images, page 5. Even if Caruth St. could be developed north from the Property to 18th Street, Mr. Tice would be forced to construct a minimum additional 300 feet of street to the City’s standards at an approximate additional cost of $500,000.00 to develop access.1 Also, if Mr. Tice were to develop the 20th Street Right of Way, the City would require a second access point from the Property to Leander Drive, which (i) again is practically impossible given the power lines, and (ii) even if it were possible, would still require the expense of developing access via 18th Street. See Replat of Blankenship Addition, Block 4 enclosed herewith, wherein the city required streets on both the north and south sides to be platted with additional rights of way dedicated, as indicated by the cross-hatched area bordering abutting Leander Drive, 17th Street and 18th Street.2 The ROW is critical to Mr. Tice’s access to the Property. As a result, abandoning the ROW would result in substantial hardship and damages to Mr. Tice. In Arkansas, cities “may abandon or vacate the public use 1 Estimation provided by Michael Marlar, PE, PLS, CFM; Halff & Marlar Engineers. 2 These rights of way have not been developed. Presumably because only those Lots directly abutting Leander Drive were developed. GILL RAGON OWEN, P.A. ATTORNEYS AT LAW 425 WEST CAPITOL AVENUE, SUITE 3801 LITTLE ROCK, ARKANSAS 72201 TELEPHONE 501.376.3800 FACSIMILE 501.372.3359 www.gill-law.com 2 of a street, but it may not extinguish without compensation appellant's property right of ingress and egress.” Wright v. City of Monticello, 345 Ark. 420, 430 (2001). II. Mr. Tice’s consent is necessary under Ark. Code Ann. § 14-301-303. Petitioners have argued that the portion of the ROW they have requested the City to abandon does not directly abut the Property and, therefore, the City does not need Mr. Tice’s consent to abandon the ROW. While it may or may not be true that the Property does not directly abut this portion of the ROW, the Supreme Court of Arkansas has made it clear that Mr. Tice’s consent is still necessary under Ark. Code Ann. § 14-301-303. Specifically, the Court’s 1959 decision in Roberts v. Pace, 230 Ark. 280, is controlling. In Roberts, as in this case, the petitioners sought the abandonment of only a portion of an alley. Id. at 282- 83. Also similar to this case, the petitioners in Roberts argued that it was only necessary to have the written consent of those property owners abutting the portion of the alley to be abandoned. Id. at 283. In evaluating this argument, the Court directly noted that the petitioner’s contention was based on the “peculiar wording” of Ark. Code Ann. § 14-301-303 (then Ark. Stat. 19-3827). Id. Notwithstanding the petitioner’s identical argument to the Petitioners here however, the Court found that although only a portion of the alley was the subject of the petition, abandoning that portion “from a practical standpoint, particularly as regards to [the objecting party’s] right of ingress and egress,” was equivalent to closing the entire alley. Id. at 284. As a result, the Court found that the City erred in abandoning the alley without the consent of all property owners affected. Id. In interpreting and summarizing the Roberts ruling, our Court of Appeals has specifically held: Although the statute does not define the term "abutting," the supreme court's decision in Roberts v. Pace, 230 Ark. 280, 322 S.W.2d 75 (1959), provides guidance on this issue. In that case, the appellants' property did not actually touch the portion of the alley the city board had closed, but the closing of a part of the alley adversely affected the use of their property. The supreme court held that, because of this adverse effect, the appellants were abutting property owners whose written consent was required before the alley could be closed. . . . Roberts v. Pace does not hold as a matter of law that a property owner's ingress and egress must be blocked before he will be deemed to have the status of an abutting property owner whose consent is required. Instead, the basis of the supreme court's decision in that case was the extent of the adverse effect that the abandonment would have on the parties challenging it. . . . Holliman v. Liles, 72 Ark. App. 169, 173-74 (2000). Here, abandoning the requested portion of the ROW will cut off the Property’s access to Leander Drive via 19th Street, which, practically speaking, would close all of 19th Street east of Leander, adversely affecting Mr. Tice’s Property. Accordingly, Mr. Tice’s written consent is necessary for the City to abandon the ROW. See Id. (ruling that a city “cannot give away a city’s streets without consent of abutting owners . . . any attempt to do so is ultra vires. . . . Any substantial doubt as to the existence of a power in a municipal corporation must be resolved against it.”) 3 III. Petitioners’ use of the ROW. Petitioners have admitted that the house and other improvements encroach the ROW. This is likely the impetus for their request for abandonment. Arkansas law is clear that Petitioners’ use of the ROW has no bearing on the City’s right to use the ROW as a street. Specifically, the Supreme Court of Arkansas has held that a city is not barred from opening a dedicated street where the owners of lots abutting the right of way had encroached because: The owners of lots abutting on the platted street had notice of the dedication, and are presumed to have had knowledge of the city's right to proceed in its own time to open the street. They could therefore, build up no right to continued occupancy of the dedicated strip on account of delay in opening the street to public use." The dedication of it as a public way has now become irrevocable, and the city can accept it at anytime. Meanwhile the public has the right to use it, and the plaintiff has no right to obstruct it. Thomas v. City of Little Rock, 52 Ark. App. 24, 27-28 (1996) quoting Bushmiaer v. City of Little Rock, 231 Ark. 848 (1960). The Petitioners’ desire to remedy their encroachment on the ROW does not outweigh the public’s right and ability to use the ROW—as Petitioners have aptly quoted—“as a way, free to all.” Thank you again for your attention in this matter. I have enclosed copies of all cases cited herein for your reference. Cordially, Aaron M. Heffington cc: Monte Moore via email to mmoore@littlerock.gov Romie Price via email to rprice@littlerock.gov Andrew V. Francis via email to avfpa@sbcglobal.net