|
September 30, 1929
<br />
<br />At a special meeting of the City Council held September 30th
<br />
<br />~essrs-- Vernon Broo~s, j. G. Dunford, E. W: ~aupin, Jr.,
<br /> J~'~AldenOast, J.- R. S~ew~.t, Archibald Ogg, 6.
<br /> Also the City Man,ger.
<br />
<br />there were present:
<br />
<br />The following directions were read for the ~pecis~ meeting.
<br />
<br />Mr. L. C. Brinson,
<br />City Clerk,
<br />Portsmouth, Va.
<br />
<br />~Portsmouth,
<br />
<br />Va., September 27, 1929.
<br />
<br />Dear Sir:~
<br />
<br /> You will please call a special meeting of the City Oouncil, in the Council 0hamber,
<br />Monday, September 30th, at 8 o'clock p. m., to consider:
<br />
<br /> lst.. Report from the City 'Manager and City Attorney with reference to petition from the
<br />Old D~minion Tabl~Works that the ~ity close~ por2ion~of~t~e atIey :b~ck~of ths£r fe~tory
<br />(factory located on the block south of CommeToe St. between Mt. Vernon ~nd Broad St.) to enable
<br />them to build their factory, from Mt. Vernon Avenue to Broad St.
<br />
<br /> 2nd. The following ordinance which was placed on first reading by Oo'mucil September 24th:
<br />'An Ordinance to Close that Portion of the Alley lying-between Broad Street .and Mount Vernon
<br />Avenue extending from Portland Street to a point 200 feet south from the south side of Commerce
<br />Street.,
<br />
<br />Very truly yours,
<br />
<br /> The "call" having been read,
<br />
<br />Hon. Oity 0ouncil,
<br />Portsmouth, Va.
<br />
<br />Vernon A. Brooks, President."
<br />the following report was read from the 0ity Attorney:
<br />
<br /> "Portsmouth, Va., September 30, 1929.
<br />
<br />Gentlemen:
<br />
<br /> Ooncerning the ~qoplication of Old Dominion Table Works to close a portion of the
<br />alley running from Commerce to Portland Streets, between Mount Vernon Avenue and Broad Streets,
<br />I beg to say:
<br />
<br /> Section 23 of the City Charter, relating to the powers of the 0ity Council, pro-
<br />vides: 'It shell likewise have the power to make such ordinances, by-laws, orders, and re-
<br />gulations as it may deem desirable to carry out the following powers which are hereby veste~
<br />in it:
<br />
<br /> 'Seventh: To close or extend, widen or nsurrow, lay out or ~rade, pave ~ud other-
<br />wise improve, streets ~ud public ~lleys in the City, and have them properly light, ed ~ud kept
<br />in order; and it may m~ke or constr~ct sewers or ducts ~hrough the streets or public grounds
<br />of the City, and through any place or places whatsoever; it shall have over ~uy street or alle~
<br />in the City, which has been or may be ceded to the City, like authority as over ot~er streets
<br />and alleys, etc.~
<br />
<br /> Section 5220 of the Code of 1919 provides that City Councils may close streets
<br />in the ssme mar~uer that the Board of Supervisors may close co~uty roads, but such power shall
<br />be in addition to that conferred by city charters.
<br />
<br /> T~e case of Oity of Lynchburg v. Peters, 133 S.E. 674, decided in 1926 held
<br />the word~close, in the Lynchburg charter was equivalent to the word 'vacate~ ~nd that the City
<br />of h ' ~
<br /> Lync burg could close Court Str~e~,wnmch h~d exmsted over one hundred years, ~u~ whmch was
<br />ls~id off on a plat, where the public ~eoessity and convenience dem~uded it. (This case also
<br />held that a person whose lot did not ~ront on that portzon of the street to be closed had no
<br />property rights in the street as distinguished from the rights the public held generally, ~nd
<br />that he could not claim compensation for the closing of the street. This street was closed
<br />to provide for an athletic field and play-ground.
<br />
<br /> On the other h~ud the courts have held that a street ¢~nnot be closed for the
<br />benefit of a private interest only. The Lynohburg case lays down this doctrine ~ud cites a
<br />number of Virgini~ oases ~eBi~in~ the principle. See also Pence v. Bry~ut ~6 B. E. 2~5 (West
<br />Va. case), (23 L.R.A. 393, ~mith v. McDowell.)
<br />
<br /> MoQuillin in his work on Municipal Corporations, Section 1403 states three rules
<br />in reEa~rd to the purpose ~nd motive for vacating a street and the powers of the court to in-
<br />vestigate the motives or, interfere with the discretion of the municipal authorities in regard
<br />thereto·
<br /> The first rule is that ~ street or s~lley can not be vacated for a private use;
<br />that is for the purpose of devoting it to the exclusive use ~ud benefit of a private person
<br />or corporation, but it may only be vacated to promote the p~olic welfare.
<br />
<br /> The second rule is that the motives of the munioips~l authorities in vaoatin~ ~.
<br />~articular street or alley cannot be inquired in~. But while the 0ourts cannot incuire into
<br />Z~e motives of the council in vacating a street, they m~y consider the purpose accomplished
<br />by the ~aoating ordinance, ~nd if the purpose is illegal the vacation may be set aside.
<br />
<br />
<br />
|