Code can be confusing about required payments

By Marcy Stamper

When county roads are closed at the request of a property owner, the county code sets out ways for the county to be compensated for the value of the road.

But the Okanogan County code, which lists three categories of roads and multiples scenarios for compensation — or no compensation at all — can be confusing, according to Okanogan County Engineer Josh Thomson.

The code creates three categories of roads and corresponding compensation, whereas state law is more general about how to determine compensation for the value of a road, said Thomson. “It’s not to make it easier or harder to vacate a road, just to clear things up,” he said. “The code is kind of cumbersome, and maybe we can make it more clear.”

Thomson brought up the idea of simplifying the language in the code to the county commissioners at a meeting in early January. He will prepare an analysis for the commissioners to help them decide whether they want to address the matter, he said.

The county got roads in three main ways — by deed, dedication or prescription, said Thomson. Most deeded roads are old and were given to or purchased by the county. Dedicated roads generally came from subdividing an old ranch, in which a public right-of-way was created during the platting process along with private roads. Prescriptive roads are those the county has maintained for at least seven years.

The county code further classifies roads as those where public expenditures were used to acquire or maintain them; roads acquired by deed, dedication or prescription, regardless of expenditures for acquisition or maintenance; and roads donated to the county, where the original donor would benefit if the road were vacated.

The county code sets out two approaches for compensation — either 100 percent of the appraised road value or no compensation at all. When the county has spent money to acquire a road, the petitioner would have to reimburse the county, but when the road was donated and the donor would benefit from vacation, the code doesn’t require any compensation.

The county commissioners can also waive all or part of the compensation if the appraised value is “extraordinarily high.”

In the four years he’s been with the county, Thomson said he wasn’t aware of the county receiving any compensation for vacating a right-of-way.

State law addresses the matter differently and allows considerable latitude. It says the commissioners can require compensation both for roads on which the county has spent money and those on which the county hasn’t spent any money.

As of 2016, state law changed to allow county commissioners to adjust an appraisal to reflect the value or costs of vacation. That could include the value of transferring liability or risk for a road, the increased value to the public in property taxes, avoided maintenance costs, or limits on development or future public benefit. The amendment was intended to provide taxpayers with lower road-maintenance costs, according to Legislative records.

The basic vacation process is always the same. For any road to be closed to the public, property owners in the vicinity must petition the county and pay a $750 processing fee. The county commissioners can also propose vacation of a road that is no longer needed.

In all cases, vacating a road requires legal notice to the public, notices posted on the road itself, and a public hearing. The engineer must examine the road and determine its condition, whether it’s in use, if it’s advisable to preserve it for the future county road system, and whether the public would be benefited by the vacation.

Attracting interest

In the past 15 years, landowners have petitioned the county on several occasions to vacate roads, generally to protect their land from trespassing and vandalism. The county commissioners have also proposed closing roads to clean up their records.

Many of these proposed closures have generated opposition from people concerned that closing the roads would cut off access to public lands or to evacuation routes.

The 2015 decision by the county commissioners to close 3 miles of Three Devils Road at the request of adjacent property owner Gamble Land and Timber was challenged in court by residents of the Chiliwist, who said they used to road to get to public lands and as an emergency route. The courts found that the commissioners had the prerogative to close the road as part of their management of the county road system and the road was closed last year.

Half-a-dozen other roads have been vacated over the past 15 years at the request of members of Gebbers family or their businesses.

A lawsuit is currently in Okanogan County Superior Court over efforts to close 3 miles of French Creek Road, not by vacation but by the quiet-title process, which seeks to clear up ownership claims to the road. In that case, Gamble Land and Cascade Holdings Group, two adjacent property owners, are suing the county, claiming the public has no right to the road because the county never took action to establish or maintain it.

A citizens’ group, the Okanogan Open Roads Coalition, is challenging Gamble’s efforts in court, saying that the road has been used consistently by the public for more than a century. The next hearing in the case is Feb. 14.

The county has also been going over its 1955 road log and maps to be sure that all roads are properly described and that they actually exist. The commissioners vacated three roads last year that have no trace on the ground, but postponed action on eight others to gather more information about the history of the roads.

The county has been going through this process because it is required to keep an accurate inventory of all county roads, which includes determining whether the county had the right to claim them in the first place, said Thomson. The road list is used by the state to calculate the distribution of gas tax to counties.

Proposed change

The state Legislature is considering two bills that would amend a law that — except under limited circumstances — prevents the vacation of roads that lead to bodies of water. Those roads can only be vacated for a public use, such as a boat launch, park or educational use; or for industrial use.

The state House and Senate are considering two virtually identical bills (HB 2521 and SB 6152) that would amend that law. The proposed change would also allow county officials to close a road leading to water to protect public safety.

The proposed change stems from a situation in southwestern Washington, where people trespass on private land along the Lewis River and access a railroad bridge. There have been problems with trespassing and vandalism at an adjacent farm, as well as fatalities when individuals were struck by trains on the bridge or have jumped from the bridge.

American Whitewater, a nonprofit that works to protect rivers and enhance opportunities to enjoy them, said it shares these concerns about safety and protection of private property. But the group is concerned that the proposed legislation doesn’t adequately define public safety and could result in blocking access to rivers and shorelines across the state.