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Home My WebLink About1996.06.21 - Response to June 14 1996 Letter from Craddock Verser i . l : . . " - _ 4 r . ' ' ,1*-"' -r l' .r ---': ==-' J . - i - i v . . _ - \ t ' - ' . - - . ' i-t'-,;<: .--t'1,'- * i . : : ' t l . - : : - ' * : , siil-**'..ruo$-u;'' City of Port Townsend Office of the CitY AttorneY 540 Water Street Port Townsend, WA 98368 (360) 385-5991 Fax: (360) 385-5248 Timothy L. McMahan CitY AttorneY Mary A. Winters Assistant CitY AttorneY June 21, 1996 Mr. Craddock Verser Port of Port Townsend AttorneY PO Box 1180 Port Townsend, WA 983684624 RE:DraftComprehensivePlan-YourJuneL4,l996l-etter Dear Crad: I am writing in response to your June 14, 1996 letter' First' let me express my concern about the rather adversarial tone o.f your letter, t.*"11 as your cOnfuSion regarding some important aspecrs of Washington *uni.$ir-L*. d" 91{.,of Port Townsend and the Port of Port Townsend have traditiona'y benefitted from a cooperati.ve rerationship in the ownership and use of public propefly, and trre bity intenos io *n,inr" L facilitate that relitionship. your letter, and the positions you advocate in your l"tt";; J" *' help ii building intergovernmental cooperation' prease be advised that this letter ,"rponb, to the relal issuer *ir"a in your letter and should not be construed as a response from the city counc.rl reearding its legislitive prerogative to revise comprehensiroe ptan t"rap designation, in accordance with the Port's comments' The relevant definition in the Draft comprehensive plan addressing park/open space designations needsto be revised to incruoe rand ,contro[ed" by the city of port Townsend' while ttre city certainly understands and ;;;it supports the port's statutory objective to encourage economic growth, the City and the ;;;"*g"Aut"o u I€ase of the property at issue through the yar 2012, at nominal value' GiventhefactthatttreCityhascontroloverthepropertyasapublictenantthrough20t2' there is no legar ability for the port to"-g""it u, tr," ciry has affected a "taking' of Port property 'without compensation' by designating ihe property nlVopen space' The Port has no standing to raise an inverse condemnation "ral in *,is-matter because it has no conffol of the propefty' cannot make application for property;";"lop'"""t' and *iff not have control of the property 11til 2012. under the Growth tutun"g"*"nt i"t, the comprehensive Plan and all implementrng regurations w* ue reviewed on - -"rur uasis to consider alr requests for revisions' rezones' etc' IntheeventtheCitydoesnot*"int^incontrolofthepropertyatissueafter2012'Iwould anticipate that the port or port Townsend would ,.qu.ri an amendment in 2OL2 to revise the comprehensive plan designation and zoning, 1l.1T.llaiion of ttre nlllesaining control of the property. until that timel an inverse condemnation argument is nonsensical 1| t Mr. Craddock Verser Port of Port Townsend Attornev June 21, 1996 Page2 Even if a viable inverse condemnation argument could possibly be advanced, inverse condemnation does not occur until an actual, specific land use application has been filed by the property owner having control of the property, with a legal ability to perfect a permit once obained. An inverse condemnation claim is predicated upon that permit being denied, with the applicant exhausting all available administrative remedies. 7-oning alone generally does not suppoft a "takingsn argument, particularly where an opportunity is available to address the Comprehensive Plan and zoning designation when the Port regains property control. Please review the following cases: Bellevue 12Uh Assoc. v. The City of Bellevue, 65 Wn. App. 594 (L992); FJL,4ssoc-, Inc, v. Seafrle,6l Wn. App. 670 (191); Citizcnsfor Clean Air v. Spokane, 114 Wn.2d 20 (1990); Estate of Fietunan v. Picrce county, Il2wn.Zd. 68 (1989); NL Assoc., Inc. V. Kockarc, 52 Wn. App. 726 (1988); Del Monte Dunes at Monterey, Ltd. v City of Monlerey, 920 F.2d 1496 (9th Cir. 1990); F-recutive 7N), Inc. v. Martin County, 922 F.2d 1536 (1lth Cir. 1991); and Lake Nacimiento Ranch Company. v. County of San Luis Obisbo, 830 F.2d977 (9th Cir. 1987). I am particularly alarmed at your suggestion that RCW 43.09.210 precludes the City from renting the property from the Port of Port Townsend at a nominal lease value. As the Court in State-v.,G*y; Harbor County,98 Wn.2d 606,608 (1983) found, the language in RCW 43.W.210 is "ambiguous.n. Additionally, the statute is utterly inapplicabie to intergovernmental dispositions and purchases of property. Please review RCW 39.33.010, which provides the following: (1) The state or any municipality or any political subdivision thereof, may sell, transfer, exchange, lease or otherwise dispose of any property, real or personal, or property rights, including but not limited to the title to real property, to the state or any municipality or any political suMivision ttrereof, or the federal government, on such terms and conditio,ns.ls may be mutually agreed upon by the proper authorities of the sta:te an"d/or the subdivisions concerned. Bqtphasis mine.l The statute continues, providing that intergovernmental transfers made prior to the effective date of the statute (1972') are validated. Given your suggestion that the Port might consider intervention from the Washington State Auditor, I took the time to.call the Assistant Attorney General who advises the State Auditor in matters of this kind. If you have any lingering confusion about the law after reviewing this letter, I would encourage you to contact Assistant Attorney General Brian Bukholtz. Mr. Bukholtz told me that the Anorney General's Office interprets the scope of RCW 43.09.210 to be very limited, and looks to specific statutes to allow governments to contract with one another for the disposition駓 Mr- Craddock Verser Port ofPort Townsend Acornev Jrme 21, 1996 Page 3 of property on whatever terms and compensation local governments deem appropriate. The specific statute allowing the transaction on the Kah Tai property is RCW 39.33.010. Mr. Bukholtz advised me that he has never se€n an auditor finding, or advice from the Attorney General's Office, that the kind of transaction at issue here creates any legal problem for the jurisdictions. Mr. Bukholtz indicated that throughout the state, local governments routinely 'gift" public property to each other or convey property at nominal values. This effectuates important public policy objectives. Uoyd Catroon should recall that on numerous occasions I have advised the City council that the City has the legal authority to provide property and services to the Port 'free of charge.' According to the Attorney General's Office, the more specific state statutes control over the ambiguous, general language in RCW 43.09.210. If you believe an audit is necessary to further develop this matter, you are at liberfy to request State Auditor involvement. However, I would assume that the State Auditor wouid turn to their Assistant Attorney General (I\dr. Bul*roltz) to give them legal guidance in reviewing your question. You might also review AGO 1973 No. 18, which states a-s follows: '. . . finally, where the legislatr:re has authorized gifu of public property from one agency to another, it has done so by express statute. .See, RCW 39.33.010, . . .." What particularly alarms me about your allegation that the Kah Tai lease is invalid is that this office recently, in good faith, cooperated with you to complete the conveyance of the Quincy Street Dock -- coincidentally for $1.00. Obviously, this was a nominal conveyance to further important public policy objectives, pursuant to RCW 39.33.010. Assistant Attorney General Bul*rola advised me that, assuming the Port's argument conveyed in your June 14 letter could be correct, the City would have the legal authority to "unwind" that transaction, invalidate the purchase, and again assume and repossess control of the Quincy Street Dock. The Port recently approached the City for a reduction in permitting fees for the Heavy Haulout Project. Under your interpretation of RCW 43.09.210, that kind of intergovernmental_cooperation would be impossible, as would free police services to patrol Port-owned roadways. In short, the position you take in your June 14, 1996 letter opens a "Pandora's box" which would leave the Port in a very unforhrnate position, quite contrary to ia best interests and the best interests of our taxpayers and residents. Mr. Craddock Verser Port of Port Townsend Attorney June 21, 1996 Page 4 I hope this letter clarifies the Ciry's position in this matter. copy: Mayor Julie McCulloch Dave Robison, BCD Director [95-101]Let{Vers062 l.ltr}