skip navigation

Understanding Municipal Rights-of-Way: From Centerline to Edge (Part 1)


September 27, 2017 by Oskar Rey
Category: Streets and Sidewalks

Understanding Municipal Rights-of-Way: From Centerline to Edge (Part 1)

MRSC gets a lot of inquiries about street rights-of-way. Over the years, we have touched on specific aspects of rights-of-way on our website and in blog articles. In this two part series, I will try to cover the fundamentals of rights-of-way and the duties of local governments and abutting owners. This article will cover right-of-way fundamentals and the issues presented by use of rights-of-way for travel. The next article will cover sidewalks, utilities, trees and unused portions of the right-of-way.   

Fundamentals: What is a right-of-way and what can be done with it?

It is a common misconception that rights-of-way are owned by local government. In fact, the general rule is that city or county rights-of-way are easements for public travel and other secondary street purposes (such as utilities). This is the reason why streets, when vacated, generally become the property of the abutting owners to the centerline of the right-of-way. Here are links to more detailed information on the nature of right-of-way and street vacation

Despite its easement status, municipalities have broad authority to manage and regulate the rights-of-way. That authority stems from the police power under the Washington State Constitution (Article XI, Section 11), as well as statutes such as RCW 35A.11.020, which provides code cities with broad power “in regard to the acquisition, sale, ownership, improvement, maintenance, protection, restoration, regulation, use, leasing, disposition, vacation, abandonment or beautification of public ways.” Other municipal entities also have broad authority: counties (RCW 36.75.050); first class cities (RCW 35.22.280(7) and (8)); second class cities (RCW 35.23.440(33)); and towns (RCW 35.27.370(4)).

Washington cases have observed that the primary purpose of a right-of-way is public travel. However, municipalities may authorize other incidental uses of rights-of-way, including private uses, which do not unreasonably interfere with public travel. See, e.g., Winkenwerder v. City of Yakima, (upholding ordinance allowing placement of advertising on top of parking meters). The circumstances under which such incidental uses may be authorized is a legislative decision for the municipality, not a judicial question. Additional information can be found on MRSC’s Right-of-Way Use Permit webpage. 

Use of right-of-way for travel—municipal duties

A municipality has a duty to exercise ordinary care in the construction, repair, and maintenance of its public streets to keep them in a reasonably safe condition for ordinary travel. Keller v. City of Spokane. In addition to motor vehicles, this duty extends to bicycles and pedestrians. The Keller case ruled that while a municipality is not an insurer, its duty extends to all right-of-way users, even those whose negligence may have contributed to their injuries.    

Sometimes dangerous conditions, such as a potholes (see Figure 1), may occur in a street. If the dangerous condition was not caused by the municipality, the municipality may still be liable for it if: (a) it has notice of the dangerous condition; and (b) reasonable opportunity to correct it. O’Neill v. City of Port Orchard. Notice of the dangerous condition may be actual or constructive. Actual knowledge may occur when a city crew observes a dangerous condition in the right-of-way or when a citizen reports it to the city. “Constructive knowledge” means that a municipality should have known of a dangerous condition, even if it did not have actual knowledge. In some cases, constructive knowledge may be inferred from the amount of time a dangerous condition exists prior to an accident. Nguyen v City of Seattle.


Municipalities also need to be aware that they can face liability for roadside vegetation that creates sight obstructions for right-of-way users (see Figure 2). This is the case even if the vegetation is not part of the roadway. In Wuthrich v. King County, the Washington Supreme Court held that “whether a condition is inherently dangerous does not depend on whether the condition exists in the roadway itself.” In other words, a municipality can be held liable for sight obstructions created by vegetation that is not in the improved portion of the roadway. MRSC published a blog article about the Wuthrich case shortly after it was decided last year.

Municipalities should have procedures for documenting and responding to dangerous right-of-way conditions in timely fashion. With respect to vegetation, many municipalities use “trim letters” to inform abutting property owners of their responsibility to keep the right-of-way free from sight obstructions. Based on Wuthrich and the speed with which blackberries grow in this region, municipalities should also monitor and take necessary action in areas where vegetation may create sight obstructions.

Please stay tuned for Part 2 of this blog series!

Questions? Comments?

If you have questions about rights-of-way or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post or other topics you would like us to write about, please email me directly.

About Oskar Rey

Oskar Rey has practiced municipal law since 1995 and served as Assistant City Attorney for the City of Kirkland from 2005 to 2016, where he worked on a wide range of municipal topics, including land use, public records, and public works. Oskar is a life-long resident of Washington and graduated from the University of Washington School of Law in 1992.

VIEW ALL POSTS BY Oskar Rey

Leave a Comment

* Required field

Security code

Comments

"In general, I would consider the shoulder of a street to be part of the opened right of way, especially if the area is open to the public for parking. Washington case law provides that government has the right to regulate parking in street rights of way and that parking on a street is a privilege, not a right. See Galvis v Department of Transportation and cases cited in paragraph 32 of that decision. However, the facts of each individual situation vary, so I can’t comment on the specific position taken by your jurisdiction."

Oskar Rey on Oct 6, 2017 11:58 AM

"When does the edge of the right of way in Washington State become unused right of way that adjacent property owners can use to permanently park a cargo trailer? I have been told that the shoulder of the road in one area of our city is unused public right of way despite the presence of three public venues, two that border the sides of the street and one that is kitty corner from that stretch of road, These venues do not have sufficient off street parking for their events, the shoulders become quite busy at those times."

Charles Lie on Oct 5, 2017 6:31 PM

"I had a several years conversation on this topic in Southern California, Municipality right of ways to the center line to the street. Its clearly identified on my housing tract property map, as not on my property line, This is still a major issue in California, who owns it, controls it, receives gas tax dollars to maintain it, who is responsible to maintain the public right of ways in housing tracts. No one talks about the dedication of property signed by the Board of Supervisors in General Law Counties, as to what this requires a Municipality to do, once it accepted in the public road system, the right of way in housing tracts. California law requires the Counties to maintain the rights of way (all public streets, parkways, sidewalks) dedicated from developer to the County. Municipalities here, who collect gas taxes, have decided they dont want to maintain public right of ways in housing tracts, create Ordinance to subvert dedications they signed and California law ( previous Judges decisions). The question of ownership of right of ways is quite interesting. My County wrote an Ordinance in 1968, stating that they own everything on the parkway, to include parkway trees, roots, shrubs, plants, etc. It maintained the parkways for 30 years, then decided one day they did not want to do it anymore. The County permitted and planted the large liquid amber trees on a 4" wide parkway. After 30 plus years, the hugh tree roots, without installing a root barrier or trimming back the roots, grow underneath the public sidewalks , controlled by the County, also private property, cracking, twisting them public sidewalks, raising them to become dangerous to public ingress and egress, children and adults are getting hurt. So on 23 Dec 2006, the Board of Supervisors decided to write a new Ordinance, holding the adjacent property owners accountable and liable for 50 years of neglect on County planted, permitted, controlled, owned and maintained parkway trees, while still collecting gas users taxes, that they do today. They use the 1911 Improvement Act, SHC 5600-5630 as their authority. This was written for towns with a business in 1911, never intended for a housing tracts in California with signed dedications. SHC 941a and 1806 were written specifically for governments that approve dedicated properties in housing tracts, they are ignored by this Municipality. Municipalities position is that can use gas taxes (50M in reserve) for maintenance of their own public parkway trees and sidewalks, or not, can transfer 100% of this liability for 50 years of neglect to adjacent property owners. So they are taking out the parkway trees, repairing their public sidewalks and billing the adjacent property owners txice for their own failure to maintain their own property, as identified in their own Ordinance 2041. That is why the rights of ways is such an interesting topic, both politically and legally."

Barry Gabrielson on Sep 27, 2017 12:45 PM

3 comments on Understanding Municipal Rights-of-Way: From Centerline to Edge (Part 1)

 more

Blog Archives

GO

Follow Our Blog