Note:  Below is the Report on City Alley that was submitted to the Mayor and City Council in December, 2003.  Several alleys are referred to in this report.  To get a better idea of where these alleys are, please refer click on this link:  Street Map.

December 10, 2003  

Report on City Alleys.

Dear Mayor and City Council,

            Earlier this year, the Council asked me to make a report by the end of 2003 on the status of alleys in Maquoketa.  The Council’s goal is to decide what policy best addresses the City’s objective of seeing that these properties are maintained.   

            The Council had a particular interest in knowing about “undeveloped” alleys, but this report will also mention some of our “developed” alleys in order to list possible policy options for the maintenance or disposition of each.  

            An inventory of these properties was suggested in response to complaints about grass (and snow) maintenance that were lodged by one or two parties over the last two years.  

            A list and description of our alleys and ROWs is needed for the Council to consider the viability of conveying these properties to the abutting private property owners.  However, such conveyance is only one of a few options offered within this report.   

            In using the terms “developed” and “undeveloped,” I am not attempting to use a legal term.  I am only using these terms as references within this report.  In other words, a “developed” alley refers to an alley that is used for vehicular traffic and is typically paved or graveled.  An “undeveloped” alley refers to an alley that is not paved and isn’t amenable to vehicular traffic, though such an alley may have an MMEU power pole line in it.  Unless otherwise noted, all alleys are 16 feet wide.  

Undeveloped Alleys.  

            Beginning on the next page is a list of the City’s undeveloped alleys.  Attached is a City Street Map that is highlighted and numbered to match each enumerated item within.   

            In some cases, I have made the comment that an alley might be a candidate for vacation, creation of a utility easement, and conveyance to the adjoining property owners.  

            If such conveyances are made, the County Auditor’s Office has indicated to the City Attorney that its staff would allow the conveyance of a vacated alley to the adjoining property owners, for example, to the mid-point of the vacated alley without a formal survey.  However, if a building exists in an alley and crosses its mid-point, for example, that particular part of the conveyance would have to be formally surveyed.  

            In some cases, I note that some undeveloped alleys were vacated several years ago, but were not conveyed to anyone.  Rather, these ordinances state that the alleys, while not to be publicly maintained, were left to allow access to other property owners.  However, these ordinances did not attempt to assign the maintenance (mowing of grass, for example) of these vacated alleys to the abutting property owners.  

            1.)  This is an undeveloped alley that is north of E Grove Street .  It runs roughly behind the lumber yard’s main showroom building.  An MMEU pole line is present.  This alley was vacated in 1982 by Ordinance 605.  The ordinance states that there is no longer a need to expend funds on further public maintenance, however, the ordinance did not convey the alley to any adjoining property owners.  It also didn’t create an easement for the power poles.  This alley has a lot of rough terrain, slope, and volunteer trees.  The further development of this area into a “thru alley” is not very feasible due to its south end.  This alley might be a candidate for conveying to the adjoining properties if a utility easement is created.  

            2.)  This is an undeveloped alley that is also north of E Grove, but one block to the east of #1.  It has less slope than the alley in #1.  It also has a pole line in it.  This alley would be more suited for development than #1 if needed someday.  But, it could also be a candidate for conveying to the adjoining properties if a utility easement is created.  

            3.)  This is an undeveloped alley that is north of E Grove and one more block east of the alley described in #2.  It has considerable slope.  It appears to have a building in it.  A pole line is present.  This might be a candidate for vacating and conveying the alley if a utility easement is established.  It would likely require a survey.  

            4.)  This alley is mostly undeveloped.  It is not a “thru” alley.  There appears to be a significantly-sized building in the alley.  A power pole line is present.  There’s also considerable overgrowth.  This isn’t a viable area for a developed “thru” alley.  Vacation, creation of a utility easement, and conveyance may be possible.  

            5.)  This is an undeveloped alley that lies north of First Ward Park.  It appears to be crowded with fences, retaining walls, and buildings.  It would not be possible to develop an alley here without considerable work.  There is a power pole line present.  Vacation, creation of a utility easement, and conveyance may be possible—but only after considerable survey work is done.  

            6.)  This is, more or less, a “semi-developed” alley that runs only about a half block.  I’m not sure as to why it isn’t platted as a “thru alley” that goes through the entire block.  The City snowplows this alley.  There is a power pole line present.  It would seem best to leave this alley as it is.  

            7.)  This is an undeveloped alley that is 13.5 feet wide.  It is not a “thru alley.”  It has the appearance of running into residential property and stopping.  There is a power pole line present.  This may be one of the better candidates for vacation, creation of a utility easement, and conveyance to adjoining properties.  

            8.)  This is an undeveloped alley that is only 12.5 feet wide.  A power pole line is present.  This may be one of the better candidates for vacation, creation of a utility easement, and conveyance to adjoining properties.  

            9.)  This appears as an alley on our Street Map, but it was actually vacated, replaced by a utility easement, and conveyed to the adjoining properties by Ordinance 356 in 1961.  

            10.)  This is shown on the Street Map as an alley.  A power pole line is also present.  I haven’t found any record that this has been vacated and conveyed.  However, City Hall has a copy of the County Auditor’s plat book that was copied for us in the mid-1990s.  The Auditor’s Office of that time appears to have placed “hooks” in the alley, showing that it was conveyed to the adjoining property owners.  This alley would need further investigation before a recommendation can be made for it.  For example, the property owners may have documentation that the City currently doesn’t have that may show that an easement was created and that the land was conveyed.  

            11.)  This is an alley that is located on the west side of the Mt Hope Cemetery.  It is 31.25 feet wide.  It appears to run about 650 feet south of E Summit.  It was vacated by Ordinance 356 in 1964.  The ordinance states that the alley was vacated and left for access so that neighboring properties could use it.  There is no power pole line present.  According to the plat book at City Hall, there are 8 abutting property owners on the west side of this alley.  This would be a good candidate for conveyance, if the adjoining owners are willing.  

            The Street Map indicates a westward turn in this alley, but the plat book suggests that this area was conveyed to the adjoining properties by showing us “hooks” in those properties.  However, I couldn’t find any City records to show that this land was conveyed.  

            12.)  This is an undeveloped alley that touches all or part of three blocks.  The most problematical area is at the south end where fences and buildings appear to be in the alley.  There is also a power pole line present in the southern two blocks of this alley.  The southern block of this alley doesn’t appear to be viable for a future developed alley.  The middle block has a lot of trees and slope.  Vacation, creation of a utility easement, and conveyance may be possible—especially in the northern block where there is only a partial or non-thru alley.  

            13.)  This is an undeveloped alley that also touches all or part of three blocks.  This alley doesn’t suffer the sort of congestion problems or slope problems that appear in the alley listed in #12.  There is also a power pole line present in the southern two blocks of this alley.  If one day needed or desired, a developed alley could be established here.  Vacation, creation of a utility easement, and conveyance may be possible.   

            14.)  I am not sure of the history of this alley.  It has a “semi-developed” look.  I have been told by our Public Works Dept that this alley has not been maintained or snowplowed for years, but, nonetheless, it appears to be used by vehicles.  There is no record that I can find that shows that the alley was vacated, etc.  There is a power pole line present.  Since the alley appears to be in use and free of structures, the City should try to get a better understanding of why it hasn’t been maintained like similar developed alleys.  

Developed Alleys.  

            While researching undeveloped alleys, I found this:  

            15.)  There is a developed alley generally behind Aldi’s.  The entire alley from S Jones Street going west was vacated by Ordinance 662 in 1988.  The City’s Water Main Map depicts a water main in this alley.  The City also patches and plows this alley.  There is no record that I can find that shows that the alley was conveyed to anyone or that it was replaced by a utility easement.  Since maintenance of the alley has continued, it begs the question as to why it was vacated.  Perhaps a title search on this area should be considered to see if a conveyance (that our records don’t show) might have taken place.   

ROWs.  

            16.)  Our Street Map doesn’t show all of our undeveloped right-of-way in this area, so it has been highlighted on the attached map.  This is a grouping of undeveloped sections of 60 foot wide ROW that are on the end of E Locust, E Judson, and a section of unvacated S Dearborn Street , which connects them.  In the past, the Council has declined offers from the abutting neighbor to convey them the land within the undeveloped ROW of E Locust.  The Council’s reason was due to the possibility that the Goodenow property to the east might someday develop, and a street access could be needed at some future point in time.  

            17.)  This stub of undeveloped ROW is 60’ wide.  It was vacated by Ordinance 401 in 1967.  However, it wasn’t conveyed to anyone.  It was determined to no longer need public maintenance, but was left in place to provide access to adjoining properties.  Utilities do not appear to be present here.   

City Attorney.  

            At the Nov 17, 2003 Council meeting, it was suggested during Council discussion that the City’s ordinance requiring the mowing of City boulevards by adjoining property owners also applied to situations such as undeveloped alleys.   

            This question had come up previously in 2002 concerning the undeveloped 60’ ROW of E Locust.  

            I have attached a copy of a letter that Mark Lawson wrote on Oct 16, 2002 which concerned the question of undeveloped ROW.  In reviewing this letter and after a recent follow-up discussion with Mark, I can report that Mark does not believe that the City’s “boulevard ordinance” covers alleys and street ROWs.  (Please see the analysis provided within Mr. Lawson’s letter of Oct 16, 2002 .)   

            Apparently, our boulevard ordinance is authorized by a state law that allows a city to assign the maintenance of a sidewalk and the mowing of the boulevard to the abutting property owner.  That law doesn't go as far as stating that an alley or undeveloped ROW can be similarly assigned.   

            If I understand Mark correctly, the City has to mow alleys and ROWs like the ones listed within or be in violation of its own mowing ordinance.   

            Though there is no current or specific Iowa law that allows a city to assign these particular maintenance responsibilities to private property owners, Mark said that the City could try to pass an ordinance that requires the mowing of alleys, for example, under our "home rule" authority, but he is pessimistic that such an ordinance would be upheld if challenged in court.  

            I would take this to mean that Mark wants the Council to fully understand that, if such a “home rule” ordinance is passed, it could be overturned "right out of the gate" if it is challenged the first time it is enforced, or it could stand for sometime if it is never challenged.  If challenged, whether overturned or not, the court costs for us might be a few thousand dollars.  There might also be a "credibility factor" to consider if it is overturned.  

            Additionally, it appears that the maintenance of undeveloped alleys might not be the only problem that we face.  For example, if our boulevard ordinance does not cover a 16’ wide grass area within an undeveloped alley, then it probably doesn’t cover the fringe areas that are left on the edges of developed alleys that might have a 10’ wide area of pavement and strips of about 3 feet of grass along abutting properties on either side.   

Policy Considerations.  

            This report was generated by questions about the future maintenance of, primarily, undeveloped City alleys, but there also appears to be a need to consider maintenance of undeveloped ROWs and even developed alleys pertaining, at least, to the mowing of grass.  

            As expected, nearly all of the undeveloped alleys have little current use, except to provide a path for electrical poles and a way to access them for maintenance.  

            But, we should also keep in mind that it is possible that some of these alleys may someday be candidates to have future utilities in them.   

            Truly, the Utilities Committee has talked about the use of alleys as a possible route for the water mains for the radium project.  And, in the case of Allen Street , who would have predicted only 5 years ago that the City would have a major water main going through the cemetery today? 

            If the City is constrained by current Iowa law and/or current City ordinance from assigning the maintenance of our alleys to the adjoining property owners, then what are the City’s options?  

            A.)  Most people mow or maintain small areas of adjoining city-owned grass simply because they are good citizens and think nothing of it.  This isn’t only true in Maquoketa--it is true in all towns.   

            So far, those requesting that the City mow either a ROW or an alley have done so out of a sense of frustration caused by other issues—namely, they wanted the City to sell or give them this land and when the City refused, they ended up complaining about grass mowing or snow removal at the properties they were interested in.   

            At this point in time, I am only aware of two such complaints.  They concern only a fraction of the area within #12 and #16 on the enclosed Street Map.  

            As the Mayor observed at the Nov 17, 2003 Council meeting, the City could simply mow the areas that have been complained about and hope that further, similar requests do not occur from others.  

            B.)  Another option, though it might be a long shot, would be to meet with one or both of our local legislators or contact the IA League of Cities and try to make a case to them to propose adding wording to the current state law so that it would authorize cities to assign the mowing of grass in alleys to the abutting property owners.  Since the 2004 legislative session will begin soon, a decision on whether or not to do this should be made within the next few weeks.  

            C.)  As I have mentioned, most people are agreeable to mowing a limited amount of adjoining city-owned grass and would never need an ordinance to tell them to do it.  

            But, some people need to see it in writing.   

            Therefore, I would suggest that, before pursuing any action set out in “D” below, the Council consider meeting with the City Attorney in a Street Committee setting to explore the possibility of the sort of home rule ordinance that was mentioned earlier.    

            Such a meeting would be a chance to ask questions and explore “what if” situations.  You might reflect on an ordinance that considers undeveloped alleys, developed alleys, and undeveloped ROWs.  You might, for example, consider assigning the abutting property owners a limited amount of grass maintenance such as no more than 8 feet of any abutting alley.  

            In the end, you might decide against pursuing such an ordinance, but I would recommend that this option be exhausted before moving to “D.”   

            I would suggest such a meeting after the Council of 2004 has taken office and after a new Street Committee has been appointed.   

            D.)  If you find that the other options are not viable, then as an alternative to having alleys, the City could give or sell undeveloped alleys to the property owners on either side, but we'd also have to do the work needed to replace the alleys with general utility easements.   

            As mentioned earlier, a formal survey would be needed if we are establishing a newly gerrymandered property line around a building that was placed in an alley.  Mark Lawson has previously told me that cities are not required to split an alley or ROW down the middle--counties do this, but cities aren’t required to.  Therefore, the City could split the area of an alley 50/50, sell or give all of this land to either one abutting property owner or the other, or split it as something other than a 50/50.  The degree of difficulty added to the splitting of the land would determine the need for a survey.  

            If an alley is replaced by an easement, the adjoining property owner would have no more right to built structures in the newly formed easement than he/she does now.  Any such existing structure, whether in an alley today or an easement tomorrow, would still be subject to removal, if necessary.   

            Any future building permit for a proposed structure will also have to be denied.   

            Regarding this, it is often the case that a person who applies for a building permit will describe his/her building as a “portable” building.  The idea is that, if they can move it anywhere and at any time, setbacks and/or placement in an easement or an alley do not matter.   

            But, aside from the fact that our zoning ordinance doesn’t create exemptions for “portable” buildings, the trouble with this line of thought is that, once placed, the property owner rarely considers the structure to be portable if asked to relocate it later.  In addition, such structures are not always readily portable.  

            It has also been suggested to the Council that, if existing buildings have been placed in an alley or easement, then future buildings should continue to be allowed to do this as well.  This line of thought would suggest that “two wrongs will make a right.”  And, such a policy would only serve to make an already complicated problem more complicated.  

            In the case of existing buildings that may be in alleys or easements, should the City order their wholesale removal?  This is truly a Council-level decision.  However, before going this route, the Council should consider what advantages this type of action would create as opposed to simply preserving the City’s right to have such buildings removed in the future if specific needs in specific locations are identified later.  

            When considering the option of vacating alleys, creating easements, and selling them to the adjoining property owners, I tend to wonder what a property owner’s motivation to accept such an offer might be if they are asked to:  

            --buy part of a vacated alley or, at least, reimburse a portion of the City’s expense for conveying an area of alley and/or turning it into an easement,  

            --become required to mow the vacated alley as their own property if they are not required to mow it now,  

            --still be prohibited from building in it because it is now an easement,   

            --be required to pay property taxes (though taxes may be minimal) on it as their property when they currently don't have to pay taxes on it as City property,  

            --and, in some cases, pay all or part of the cost of a survey to gerrymander around buildings and, while doing a survey, provide proof that they now have an existing building in the newly described easement.    

            Truly, different property owners will have different goals and motivations.  Some might jump at the chance to accept this land and, thereby, enlarge their yards.  Others may have no interest in it at all.  I’m not yet sure of what to do in the case of individual blocks that may contain a dozen or more property owners that abut the same alley and are split as to what they want to do as a block.    

            In the case of some alleys, like the one depicted on the Street Map as #5, I suppose the City could use the threat of legal action to force property owners to accept the conversion of an undeveloped alley into an easement.  I suppose the “threat” in this example would be to tell them that they will have to move their buildings, fences, and retaining walls if they don’t accept an easement.   

            But, is such a battle worth fighting?    

            In the end, my pessimism about the popularity of conveying city-owned land could prove wrong.  I suppose we will not know until we try.  If we were to try, then I’d suggest starting with the alleys listed as #7, #8, and #11.  However, I would predict that the property owners that live along these less complicated alleys will demand that properties along the more complicated alleys be treated with equal effort.  

            In my view, this overall option is the most potentially divisive of them all.  While it may work on some alleys, it also has the potential to set person against person or property owner against property owner.  It would cost time and money and result in little or no net change for anyone.      

            E.)  If option “D” is pursued…since nearly all alleys have MMEU power pole lines in them and since any vacation of an alley would still result in the need for a general utility easement for MMEU, the Council should consider bringing the electric utility into the process.  For example, MMEU’s staff could work with City staff to contact affected property owners or MMEU could share in the cost of paying for any easements that replace alleys.  

Conclusions.  

            It would seem that the situation that most people favor is the status quo or as close to it as we can stay.  I say this because people simply mow the adjoining grass in their backyards or side yards without complaint.  And, those who are pressing this as an issue haven’t based their complaints on the contention that mowing this grass is a burdensome chore.  Rather, this issue is being pushed as a means of “pay back” for other issues.    

            My advice, then, would be for the City to do as little as possible to address the immediate situation without affecting the rest of the status quo.  

            As described earlier, this might mean that the City can mow in some selected places in order to let life go on in all other places.  Or, it could mean asking our legislators to modify a state law that would require a tiny percentage of people to do what the vast majority volunteers to do.  Or, it might mean taking a chance on a home rule-based ordinance.  

            After those options are considered or exhausted, the Council could consider a more significant change to the status quo by turning toward the conversion of alleys into easements and attempting to proceed with the conveyance of this property.  

            Within this project, there are still several unanswered questions.  We don’t know how many total properties currently abut the enclosed list of alleys.  We also don’t know about the status of some alleys because the records that we currently have may be incomplete, and title searches may be needed.  In some cases, our records conflict with our copy of the County Auditor’s plat book.   

            But, most of all, we don’t know what the various reactions from various individual property owners might be if some of the options listed within are pursued.  

            Though this information within is imperfect, I hope that the Mayor and Council will have enough information to know either what steps you want to take next or what further questions you want to have answered.  

Sincerely,

Brian Wagner, City Manager