(A) “Special damages” defined. For the purpose of this section, the following definition shall apply unless the context clearly indicates or requires a different meaning.
SPECIAL DAMAGES. Only those losses, damages or injuries which a property owner suffers that are peculiar, special or unique to his or her property and which result from the governing body vacating a street, avenue, alley, lane or similar public way within the municipality, such as loss of ingress and egress to and from his or her property onto said vacated public way. SPECIAL DAMAGES shall not mean those losses, damages or injuries that a property owner suffers that are in common with the rest of the city or public at large, even though those losses, damages or injuries suffered by the property owner are greater in degree than the rest of the city or public at large.
(B) The measure of special damages. Owners of real estate abutting the vacated public way shall be entitled to recover as compensation for such vacation, the difference between the fair market value of such real estate immediately before and immediately after the vacating thereof. If there is no difference in value of the abutting owner’s real estate before and after the vacation, said owner shall receive no compensation for the vacation of said public way. No other method of ascertaining damages shall be utilized, and loss of anticipated profits from the continued operation of any business located upon real estate abutting the vacated public way shall not be considered as a separate element of damages for which compensation is paid.
(C) Procedure for vacating public ways. Whenever the governing body decides that is would be in the best interests of the municipality to vacate a street, avenue, alley, lane or similar public way, the governing body shall comply with the following procedure.
(1) Notice.
(a) Notice shall be given to all owners of property abutting the public way to be vacated either by first class mail to their last known address, or if there is no known address, then by publishing the notice two times in a newspaper that is in general circulation in the municipality. Notice shall be mailed to the abutting owners at least 14 days prior to the date of the hearing on special damages, and the last publication of notice of said hearing shall be at least three calendar days prior to said hearing.
(b) The notice shall name and/or otherwise identify the segment of street, avenue, alley, lane or other public way which is proposed to be vacated and shall advise said property owners that they have the right to appear before the governing body to be heard regarding any special damages to their property. The notice will show the date, time and place of the regular or special meeting at which the governing body will consider vacating such public way, and of the hearing to be held to ascertain special damages, if any, to owners of abutting property. The hearing on special damages may be held during the same meeting at which the vacation of the public way is taken up and may be continued from time to time by the governing body upon reasonable cause shown by an abuttting owner.
(2) Consent/waiver.
(a) The governing body may have all the abutting property owners sign a form stating that they consent to the action being taken by the governing body and waive their right of access. The signing of such form has no effect on claims for special damages, as defined herein, by the abutting property owners, but does create the presumption that the governing body’s action was proper.
(b) However, if all the abutting property owners do not sign the consent/waiver form, the governing body may still proceed with vacating such street, avenue, alley, lane or similar public way under the authority granted them by Neb. RS 17-558 and 17-559, in accordance with this section.
(3) Vacation and ascertainment of special damages.
(a) The governing body shall determine whether vacation of the public way in question is in the best interests of the municipality and expedient for the public good. If the governing body determines that the public way should be vacated, it shall proceed to consider all relevant evidence regarding special damages to owners of abutting property, and each such owner may present evidence in support of his or her claim for damages. The governing body may, but is not required to, obtain independent appraisals or commission the Municipal Engineer or other consultant to report on special damages incurred by owners or property abutting the vacated public way and may make a view of the property in question. Evidence of special damages may be presented in written or oral form, and the hearing on special damages may be recorded at the expense of the party requesting the record, and it may be continued from time to time upon reasonable cause shown. The Mayor shall preside over the hearing unless the governing body shall by majority vote appoint a special hearing officer to preside. The decision of the governing body regarding special damages shall be based upon all relevant evidence presented or obtained in regard thereto.
(b) Following the hearing on special damages, the governing body shall pass an ordinance which shall contain the following:
1. A declaration that the action is expedient for the public good and in the best interest of the municipality;
2. A statement that the municipality shall have an easement for maintaining all utilities;
3. A statement of the description and name of the segment or portion of public way vacated thereby;
4. A statement providing that one-half of such vacated public way shall revert to owners of real estate adjacent to said vacated public way; and
5. A specific finding of the special damages found to be suffered by each owner of real estate abutting the vacated public way, or a general finding that no special damages were incurred by any abutting property owner, and provision for the payment thereof, if applicable.
(4) Filing. The City Clerk shall file a certified copy of the ordinance with the County Register of Deeds to ensure that abutting property owners can gain title to their share of the vacated street, avenue, alley, lane or similar public way and so that such land will be drawn to the attention of the County Assessor.
(Prior Code, § 8-317) (Ord. 504, passed 11-4-1986)
Statutory reference:
Similar provisions, see Neb. RS 17-558 and 17-559