September 20, 2001
You have the following question: Does the city have the right to sell the right of way to a street that it plans to close?
Under the facts you relate to me, the answer is no, unless the city owns the fee to the street (which it probably does not).
The facts you relate indicate the city obtained the street by virtue of grant rather than a deed. Actually, even where a city obtains a street by deed, the deed will be considered to convey only an easement, unless it specifically conveys the fee.
I do not know the facts in the case to which you refer. But if the city deeded a street to a church, I can see that under at least some circumstances that would raise some Separation of Church and State issues. However, it is clearly the law that where a city closes a street to which it owns only an easement (again, virtually all of them), the property automatically reverts to the property owners, a presumption being that they are the abutting property owners to the center line of the street. With respect to the church being a beneficiary of the closing of that street, I cannot see where that would be a problem if the church is only one of the beneficiaries, and there are otherwise good reasons for closing it. The closing of a street cannot be arbitrary and capricious, but proving that a street closing is arbitrary and capricious is extremely difficult.
You properly point out your belief that a city cannot sell a street unless it owns it. I cannot see that a prior paving assessment would do anything to change that rule.
I am enclosing my recent treatise on streets which MTAS will publish as soon as I can find the time to make certain additions. This is the version I used at a seminar I taught last year. I think it probably addresses most of your questions, and contains the supporting law.
Sidney D. Hemsley
Senior Law Consultant