HomeMy Public PortalAbout11-20-1980 BOARD OF PUBLIC WORKS AND SAFETY OF THE
CITY OF RICHMOND, INDIANA, NOVEMBER 20, 1980
1 The Board of Public Works and Safety of the City of Richmond, Indiana, met
2 in regular session November 20, 1980 at the hour of 9:00 a.m. in the Municipal
3 Building in said City. Mr. Meredith presided with Mr. Anderson and Mr. Webb
4 present. The following business was had, to-wit:
5
6 APPROVAL OF MINUTES OF NOVEMBER 13, 1980
7
III8 Mr. Webb moved to approve the minutes of the previous meeting as prepared,
9 seconded by Mr. Anderson and on unanimous voice vote the motion was carried.
10
11 CHANGE DATE OF NEXT BOARD OF WORKS MEETING
12
13 Mr. Meredith stated the next meeting of the Board of Works will be Wednesday,
14 November 26 at 9:00 a.m. due to Thanksgiving Day.
15
16 REQUEST TO CHANGE LIGHTS ON WHITEWATER BLVD.
17
18 Mr. Webb presented a request from R. L. Rees, Commercial Manager of RP&L
19 proposing to remove the present 250 watt mercury vapor street lights and replace
20 them with 250 watt sodium street lights due to deterioration of present street
21 lights on Whitewater Blvd. from National Road to S. W. "G" Street. This will
22 produce higher levels of illumination and provide more even distribution of
23 light due to higher moun,ting .of., lights. It is estimated that this will reduce
24 present billing to the City by $49.05 per month. Mr. Rees was present and
25 stated there will be fourteen (14) fewer lights but with higher intensity.
26 There are presently forty-eight (48) lights and he is requesting replacement with
27 thirty-four(34) .
28
29 Mr. Webb moved for approval of the subject request, seconded by Mr. Anderson
30 and on unanimous voice vote the motion was carried.
31
32 PETITION FOR VACATION OF ALLEY FOR PRIMEX PLASTICS
111 33
34 Mr. Anderson stated the Board has before it what appears to be a petition to
35 vacate an alley even though it has been labeled "order vacating an alley".
36 The Attorney who has submitted the petition has been advised of the Board's
37 procedure, which is to refer it to the Plan Commission for a public hearing.
38
39 Mr. Anderson moved the petition of Primex Plastics Corporation to vacate an
40 alley as shown on the attached plat of such petition be submitted to the Plan
41 Commission for public hearing and with its recommendation back to the Board,
42 seconded by Mr. Webb. This alley is located between 12th and 13th just south
43 of North "F". Primex Plastics owns all land that is contiguous. On unanimous
44 voice vote the motion was carried.
45
46 REQUEST FOR "NO PARKING" SIGNS IN 200 BLOCK OF S.W. "D" WEST OF ALLEY
47
48 Traffic Capt. Dan Wogoman presented this request for the north side of S. W. "D".
49 The purpose is to restrict parking of vehicles by high school students for
50 loitering. This creates a traffic congestion which further creates a traffic
51 hazard. The owner and operator of Wards Grocery, located at 349 S. W. 3rd
52 Street is in full agreement that this area is a definite problem. The recom-
53_ mendation is restriction only for the time period of 8:00 a.m. to 3:00 p.m.
54 with exceptions of Saturdays, Sundays and holidays. This request is also
55 above the signature of Juvenile Division Capt. Terry LaFuze.
56 ,
57 Mr. Anderson moved for acceptance of the recommendation, seconded by Mr. Webb
58 and on unanimous voice vote the motion was carried.
59
60 CITY ATTORNEY'S OPINION ON RIVER COURT
61
62 Mr. Anderson stated the Board has before it a petition from certain residents
63 of River Court requesting fences be removed from the right-of-way. It had to
64 be determined first if this was a street to know if these fences where protruding
65 into the right-of-way. It is his finding that River Court is a street.
•
Board of Works Minutes Cont'd.
November 20, 1980
Page 2
1 Mr. Anderson moved a copy of his opinion be made part of these minutes,
2 seconded by Mr. Webb. Mr. Anderson noted there has been no formal dedication
3 or acceptance but by use this has become a street and has the character of a
4 street. On unanimous voice vote the motion was carried.
5
6 MEMORANDUM
7
8 TO: Donald E. Meredith and George Webb
9
10 FROM: Edward N. Anderson
11
12 DATE: November 17, 1980
13
14 REF: Street Definition - Applicability to RIVER COURT
15
16 There appears no statutory or universal common law definition of a
17 "street". Whether a particular roadway or arterial traffic route is
18 to be regarded as a street must be resolved by construction. Shannon
19 vs. Martin; 164 Ga. 872, 139 AE 671, 54 ALR 1246.
20
21 Strictly speaking, a street is a public thoroughfare in an urban
22 community and not ordinarily applicable to roads and highways out-
23 side municipalities. 39 AM Jun 2nd, Highways, Streets and Bridges,
24 Sec. 8, Page 406.
25
26 Although a street, in common usage, is equivalent to a highway, it
27 is usually specifically denominated by its own proper appellation;
28 Shannon vs. Martin; supra. Some authorities take the view that the
29 term street is generic, embracing all urban ways which can be, and
30 are generally, used for ordinary purposes of travel. Carlin vs.City
31 of Chicago, 262 Ill. 564, 104 NE 905. Other authorities, however,
32 limit the application of the term to thoroughfares in the more
33 populated portions of the urban territory.
34
35 The more narrow question perhaps in the issue now under consideration
36 is what in fact establishes the existence of a street.
37
38 It has generally been held by most authorities that streets may be
39 established by three methods:
40
41 (a) by dedication,
42 (b) by prescription or user, and
43 (c) by direct action of the public authority.
44
45 Landowners singularly cannot create streets without cooperation and
46 assent of the public; they may lay out a proposed highway or street,
47 grade it and offer it to the public use but it does not become a
48 highway or street until it is accepted as such. Buffalo vs. Delaware,
49 LW&R Co. 190 NY 84, 82 NE, 513.
50
51 Acquisition by dedication is generally statutory. Most local govern-
52 ments are regularly empowered to acquire streets by dedication. The
53 possiblility of a common law dedication exists everywhere unless a
54 statute provides an exclusive form of dedication. The Indiana Statute
55 pertaining to street dedication is contained in IC 18-5-10-33 setting
56 forth the procedure for street dedication and the acknowledgement of
57 recorded plats. This statute is not exclusionary in nature and common
58 law dedication can exist in Indiana.
59
60 Generally speaking, Common law dedication requires proof of an
61 intention on the part of the owner of the land to denote the
62 same to local government, and an acceptance thereof by the
63 municipality. McKinney vs. Ruderman, 203 Cal. App. 2nd. 109,
64 21 Cal. RPTR 263 (1962) and City of Chicago vs. Borden, 190
65 Ill. 430, 60 NE 915 (1901) .
•
Board of Works Minutes ContY'd.
November 20, 1980
Page 3
1 Acquisition of streets by prescription or user has the more probative
2 effect upon the issues now under consideration.
3
4 The rule prevailing in most jurisdictions is that a public, as well as
5 a private, right to use a roadway may be established by the use of land
6 for that purpose for the prescriptive period, under and in accordance
7 with the rules governing the acquisition of title by prescription
8 generally. This rule is subject in some jurisdictions to the qualifi-
9 cation that such user, without affirmative recognition or the exercise of
III 10 control by the public authority, cannot impose upon such authority the
11 duty of maintenance or repair.
12
13 In order to constitute a street by prescription against the owner of the
14 property over which it is claimed, the use, as in other cases generally
15 must have been adverse, continuous and uninterrupted and exclusive
16 throughout the prescriptive period. District of Columbia vs. Robinson,
17 180 US 92, 45 L.Ed. 440, 21 S.Ct. 283; and 39 AM Jun 2nd, Highways,
18 Streets and Bridges, Sec. 26, page 421.
19
20 For the user theory to prevail, the use of a street must be actual,
21 physical and general public use. A Missouri Court ruled that a munici-
22 pality had taken a street by prescription when it had:used it for a
23 traveled area for ten years, spent public funds on its upkeep, graded it,
24 oiled it, exercised control over it. Terry vs. Town of Independence,
25 388 SW 2nd, 769 (1965) .
26
27 The use must be visible and notorious. Under some authorities the user
28 must be accompanied by some act so open, notorious and hostile as to
29 be noticed to the landowner that his title is denied. The user must
30 be continuous and uninterrupted as well as exclusive. Prescriptive
31 and adverse possession to roadways cannot be made out by inference or
32 implication for the presumptions all favor the owner and the proof to
33 establish prescription must be strict, clear and positive and unequivocal.
111 34 Although taking streets by prescription of by user are not favored in
35 the law, they are generally more common in urban areas rather than un-
36 populated, and uncultivated rural areas.
37
38 It is the conclusion of this writer that the use of the undedicated
39 street called River Court can be construed to be taken by prescription
40 or user pursuantto the authority cited herein. The only qualification
41 is that the Indiana prescriptive easement statute would be applicable
42 requiring an open, notorious, continuous and adverse use for twenty
43 (20) years.
44
45 It is also noteworthy that a local municipality can be prevented from
46 denying the dedication of a certain street by the doctrine of estoppel.
47 A member of American Courts will apply the doctrine of estoppel against
48 local municipalities to prevent them denying that a tract is a public
49 ,street when their official previous conduct has led others to deal with
50 it as a dedicated street. This occurs most frequently in personal injury
51 suits against local governments. In a Washington case where a munici-
52 pality did not volitionally accept a tract as a public street, it was
53 held estopped to deny that it was a public street when it has made
54 repairs and improvements thereon, and allowed the public to travel upon
55 the street for .a period of twelve to fifteen years prior to the accident.
56 Spencer vs. Arlington, 49 Wash. 121, 94 P.904, (1908) ; Carb vs. Belling-
57 ham, 61 Wash. 2nd 214, 377 P 2nd 984 (1963) .
58
59 Submitted as part of this memorandum is the opinion of the writer pre-
60 viously given in BZA-80-13. The same theories expressed in that opinion
61 are applicable here and draws upon many of the same sources cited in
62 this memorandum. The adoption of any theory must be based upon the
63 surrounding facts as determined by a government fact-finding body.
✓� ti
Board of Works Minutes Cont'd.
November 20, 1980
Page 4, 1980
1 It would be this writer's opinion that River Court could be construed
2 to be a public street under any of the authorities or reasons cited
3 above.
4
5 Respectfully submitted,
6
7 /s/ Edward N. Anderson, Attorney
8 for the City of Richmond
9
10 Mr. Anderson feels the Board should direct the City Attorney with the City
11 Engineer to prepare a dedication and acceptance for the City to execute and
12 such documents be recorded. Mr. Anderson so moved, seconded by Mr. Webb and
13 on unanimous voice vote the motion was carried.
14
15 Mr. Anderson suggested the President be directed to send a letter to the
16 residents advising them that they should remove the fences. Mr. Meredith noted
17 there was no legal description and the fences may not be on the street. Mr.
18 Anderson suggested the City Engineer should check as to the exact boundaries
19 of what the right-of-way is and then the Board could take action to know
20 definitely where these fences are.
21
22 The matter will remain under advisement as far as the petition is concerned.
23
24 REPORT BY•MAYOR DICKMAN - STATEMENT TO DOG OWNERS
25
26 STATEMENT TO BOARD OF WORKS BY MAYOR DICKMAN NOVEMBER 20, 1980
27
28 Every owner must obtain a license and tag attached to each dog. License
29 must be renewed annually.
30
31 No owner of a dog shall allow a dog to run at large within the city.
32
33 No owner shall allow any dog to disturb the peace and quiet of any
34 person within the city by barking, howling, biting or in any other
111
35 manner-.
36
37 It is the duty of the dog catcher to apprehend any dog running at
38 large and impound it in the Animal Shelter.
39
40 No dog house, kennel or pen may be nearer than 30 feet to any dwelling
41 other than that of the owner.
42
43 Please have respect for your neighbors and properly care for your dog
44 and its premises.
45
46 . EAST MAIN STREET
47
48 Mayor Dickman stated he has learned yesterday that the improvement of East Main
49 Street, which was assumed to be moving along very well, is in a state of limbo.
50 It is one of three hundred projects not receiving funding, but remaining on a
51 list should funds become available. The Mayor stated a traffic count was to
52 begin soon at the intersection of Elks Road and Main Street for a traffic
53 signal. The State indicated they see no problem with this light at this time.
54
55 PUBLIC HEARING UNDER SECTION 18 FOR BUS GRANT - 10:00 a.m.
56
57 Attendance: Ed Anderson, George Webb, Jo Trimble, Fred Lord, Mayor Dickman,
58 Matt Nepote, Jean Mills, Ann Brown, Ed Peterson
59
60 Mr. Anderson announced this is the public hearing on the City's application
61 for Section 18 Funds. The notice of the public hearing has been advertised
62 and Mr. Anderson moved it be accepted, seconded by Mr. Webb. Mr. Anderson
63 asked Mr. Nepote to explain this project. Mr. Nepote stated the purpose of
64 the hearing is to afford interested persons or agencies an opportunity to be
65 heard in relation to social, environmental and economic aspects of the project.
Board of Works Minutes Cont'd.
November 20, 1980
Page 5
1 This gives the City an opportunity (which would be the third year) to apply
2 for operating assistance from the Federal Highway Commission. This time we
3 are applying for in the vicinity for $245,000. $140,000 of that would be
4 Federal, $69,000 State and the balance of $35,000 local. The Feds pick up
5 80% of the administrative overhead and 50% of operating and the rest is shared
6 between the State and local. The State picks up 2/3rds of that. Without this
7 it would be very doubtful that the CORTA buses could operate.
8
9 Mr. Anderson noted there were three (3) persons in the audience and asked
10 if anybody would like to offer any input or discuss this application. Mr.
11 Ed Peterson, Executive Director of the United Way of Wayne County, asked
12 how this tied in with one of the major agencies of the United Way providing
13 transportation to senior citizens and that is Family Service RSVP. Mr.
14 Peterson and Ms. Brown spoke to the services being provided by both RSVP and
15 RAT Express. Mr. Anderson stated this hearing is for assistance to operate
16 the CORTA bus lines only. Mr. Nepote concurred. Mayor Dickman noted that the
17 public transportation in the City of Richmond is still on the brink of disaster.
18 Ridership is only approximately 800 people and 400 of those are the same faces,
19 this making about 1% of our total population. We are subsidizing $100,000 to
20 $125,000 a year.
21
22 Mr. Anderson closed the public hearing.
23
24 There being no further business the meeting was adjourned.
25
26 Ed Anderson
27 President
28
29 ATTEST: JoEllen Trimble
30 Clerk of the Board