A surveyor’s 10-foot error in 1906 led to a big-time snafu for the estate of Maynard and Helen Kern at their 402 Ocean Ave. property in Gearhart.

Because a surveyor erred in drawing property lines almost 110 years ago, heirs to the Kern family sought to untangle the legal limbo to facilitate a potential sale of the beachfront property as required by mortgage and title companies.

“For our family, it’s heartbreaking because we’re forced to sell our property,” Margaret Chapman said, in her application.

The Kern family came to the Planning Commission and City Council to request a street vacation to clear up the error, which designated a 30-foot setback rather than a 40-foot setback, as should have been identified.

They also sought a waiver of a compensation fee normally required for vacation of the land, in this case about $86,000.

“What we want to do is try to resolve the whole block,” said Dale Barrett of Otak, a consulting firm representing the estate and several neighbors. “I’ve talked to each of the owners, and hopefully we can do boundary-line agreements between all parties. The attempt to do the street vacation is the first step in that.”

“It’s all premised on a surveyor’s error,” said City Planner Carole Connell. “That had a domino effect of causing this house to be put into the right-of-way; the next house’s fence to be put in the applicant’s property; the next house in their neighbor’s property. It goes both sides of the street, and it goes all the way back to the birth of Gearhart. We’re looking to remove that possible claim of ownership of that extra 10 feet, the questionable area.”

“They want to get their house back legally on their property,” Connell said. “They believe it was a surveyor’s error and nothing more than that. This piece would be the beginning to correct the rest of the properties on Ocean Avenue between D and E and get everybody squared.”

A similar street vacation occurred in 1999, when the city vacated a 10-foot portion of D Street east of South Ocean Avenue for one block, Connell said.

Neighbors attending the meeting, including South Ocean Avenue and Marion Avenue property owners, said they supported the street vacation.

City Councilor John Duncan pointed to potential concerns. With the street vacation, a parkland dedication by a previous owner could be considered void, and heirs to the previous owners could seek that property back, now valued at $3 million.

In addition, since state laws say the city must retain a supply of 20 years of buildable lots, the street vacation could block potential development mandated by law.

“We went through work that said we had about 20 years’ supply right now,” Duncan said. “Based on the number of permits that have gone out, we’re approaching 20. How many years at 20 years does it take to use up the 200 lots we have right now? Ten years.”

Duncan proposed retaining an easement over the property being vacated by the city, which would protect the city should sidewalk or street improvements be required. “I can support a vacation if we keep an easement that allows existing home structures to stay in place,” he said. “I can’t support vacating that without retaining that easement.”

City Councilor Dan Jesse supported the street vacation. “It’s helping a whole block of property owners,” he said.

Councilor Sue Lorain said the city received land because of the error.

“Without all the science, without the ‘what if,’ what I heard happening was somebody screwed up the surveying way back when,” she said. “The city lucked out. We got 10 feet of land we really shouldn’t have gotten because of this mess-up. I don’t think we should go laughing, ‘Look what we got.’ I think they deserve to keep that 10 feet, as long as they are working with the rest of the neighborhood.”

Mayor Dianne Widdop called it “a major screw-up.”

“These people deserve to have the right to sell their property if they so desire and give clear title,” she said.

Councilors approved the street vacation and easement unanimously, which triggered the second part of the request, a waiver of the street vacation fee. Based on assessed value of the Ocean Avenue land, the fee was determined to be at least $86,000 and possibly much more.

Councilors Duncan and Jesse said they were concerned that a fee waiver could set a precedent for future applicants.

“They’re getting a lot of high-dollar property for nothing,” Duncan said. “Do we have to do this for all our citizens? Give all of our citizens $100-plus thousand dollars?”

“I take exception, I don’t think these folks have come up with a story,” said Lorain. “Maybe in the future someone will ‘come up with a story,’ but this group is one of the most prepared I’ve seen. I don’t think they should have to pay for something we’re controlling.”

The motion to waive the fee charge passed by a 3-2 vote, with Lorain, Jesse and Widdop voting on its behalf. Councilors Duncan and Kerry Smith voted against the proposal.

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