Loading...
HomeMy WebLinkAbout2011.01.26 - Port of Port Townsend Letter from Attorney PORT OF P O . B o x 1 1 8 0 . Administration: (360) 385-0656 PORT TOWIVSEIVI) Port Townsend, Washington 98368-4624 Operations: (360) 385-2355 Fax: (360) 385-3988 January 26,2011 Mr. David Timmons City Manager 250 Madison Street Port Townsend, WA 98368 Re: Kah Tai Dear David, Please find attached, a copy of the letter our attorney sent to Jim Anest at the State's Recreation and Conservation Office. I wanted you to have a copy so you were up to date on the latest information. Please share the letter with John Watts. Our attorney has also put together a large indexed book of many of the documents which were used to reach the conclusion as noted in Vl of the attached letter. lf you would like to review these documents - let me know and I can make a copy available. We reviewed almost 1000 documents during this process. Jim Anest has acknowledged receipt of the letter but we have not heard what his next steps will be. I imagine this could still take some time. Sincerely, Larry Crockett Executive Director e-rnaii Info@portofp1.com websiie, www, portofpt.com GOODSTEIN LAW GROUP PLLC 501 S. G Street Tacoma, WA 98405 Fax: (253) 779-4411 Tel: (253) 779-4000 January 2L,2orl- Jim Anest Conversion Specialist Washington State Parks and Recreation Office Sent by email: Re: Port of Port Tovmsend Properties & Kah Tai Lagoon Park Dear Mr Anest: On behalf of the Port of Port Tor,msend, this Law Firm has been asked to analyze whether any encumbrances exist which impair the Port's ownership interest in certain parcels which were leased to the City, and which are located in the area of the Kah Tai Lagoon.l Questions have been raised by various parties which imply and in some cases assert that continuing obligations or deed restrictions exist beyond the current lease expiration (zotz), including allegations that the Port's ownership interest was somehow transferred, and or is impaired by an obligation to remain in park use in perpetuity. I. Description of Research As part of our analysis, we reviewed the Port's files and all available records. One set of documents included within our review was the June 3, 2o1o letter and multiple attachments sent to you, prepared by Port Management. To ensure we were informed of the full complement of available information, we also submitted Washington State Public Record Act requests to the City of Port Tornmsend, and Washington State entities, including your agency. We additionally pursued a FOIA (Freedom of Information Request) at the Federal level, and obtained the original grant file and other relevant historical records from the U.S. National Park Service. In total, nearly one thousand records related to these properties and the grants were reviewed. Last, we applied this factual information to the relevant legal standards which govern real property conveyances and dedications/e ncumbrances. II. Question Presented The Port, City, State and National Park Service share the daunting challenge of reconstructing facts over an extended term of years, with sometime a less than complete record. The State rThe specific properties are those describe in Jefferson County recorded records Volume 208, page 225.PRR 14, Jefferson County recorded records Volume 208, page 219-224, PRR 15, and lst Amendment to Lease, Jefferson County recorded records Volume 208" page 227.PRR 16. Carolyn A. Lake Aftorney at Law cl a ke @ goo d stei n I aw. co m I I 0 l20.ltr.state parks.doc 47801 Jim Anest. RCO January 22,2011 Page 2 Port and National Park Service also share the common goal of correctly determining the status of the Port's and other entities' real property interests. i.ll parties are iaced with reiching this determination in the context of a motivitedand active com^munity, competing potential f,rture property uses, all juxtaposed against the Port's duty to be a resporisible .t"*uid of its public assets, and which is further complicated by the intioduction of*urrive anecdotal coniments, recollections, and desires. In order to focus with greater clarity on the true determinative factors, we first summarize several basjg legal requirements applicable to real property conveyances. Second, we next apply the facts which are relevant to theie legal standardi, to reach a deiermination. It's important to review the law at the outset, as these legal standards provide the correct filter to be applied to the mountain of records in order to accu"rately distill *ttut facts really matter and are controlling when determining the overarching issues: r. Is there any legal basis to conclude that Port propefties are subject to continuing obligations or deed restrictions, including any obligation to remain in park use in " perpetuity beyond the current city lease expiration (zorz), and or z. Is there any legal support to establish that the Port's or*nership interest was conveyed? Below is our analvsis. III. Analysis A. Requirements for conveyance of Real property Interest Statute of Frauds requires Writing to Conueg or lrnpair ReoJ Propertg Interests The Statute of Frauds exp_resses a policy that transactions involving interests in land should be in writing, or be evidenced in writing, and signed. The vwiting requlred by the Statute of Frauds must meet the same standards of identification and descripti6n ai those applied to instruments transferring estates in land. The instrument must identifrihe parties, including the thira_party beneficiaries, it must describe the burdened estate, u.rd it must set forth tli'e nature of the servitude, or the essential terms of the obligation. These requirements serve evidentiary, protective, and channeling functions. The w,ritten instrument provides reliable evidence of the existence and terms of the conveyance or contract. The signature authenticates the document and indicates that the grantor or piomisor intends the writing to be effective, not merely tentative or exploratory. Usi of a written instrument tends 19 Sive land transactions a distinctive form which is easily recognized and recordable in the public land records. The Statute of Frauds also provided, in Section 4, that no action should be brought on any contract for the sale of any interest in land, or on any agreement that is not to bE performld I I 0 l20.ltr.state parks.doc湂 Jim Anest, RCO January 22,2011 Page 3 within one year, unless the agreement, or some memorandum or note thereof, was in rrwiting signed by the party to be charged. Stqtute of Frauds CotnplianceAlso Required to CresteSeruitudes The Statute of Frauds requirements apply even when less that the entire (fee) real property ownership interest is to be conveyed, i.e., creation of a servitude. "Servitudes", like estates, are real proper[y interests of potentially long duration that affect successive land or,mers and occupiers. Although medieval law required different formalities for creating estates and servitudes, modern law treats them alike. There is no substantive difference between estates and servitudes that requires greater or different formalities for the creation of servitudes. Covenants burden titles as effectively as easements and should be created with the same formalities, whether the covenant is affirmative or negative, and whether it calls for payment of money or some other performance. Although the Statutes of Frauds adopted in the various states differ in their wording and stated coverage, judicial construction has tended to eliminate the differences among them as they apply to servitude creation. The basic requirements that conveyances intended to create servitudes be in writing signed by the grantor, and contracts to create servitudes either be in writing, or be evidenced by a written memorandum signed by the party to be charged, are now so pervasive as to have become part of American common law. If these requirements are not met, servitudes are terminable at will or unenforceable unless an exemption or exception to the Statute of Frauds applies, which is not present here. Servitudes are often created by first recording a declaration of servitudes that describes the encumbrance and properties subject to the declaration/ encumbrance, and then conveying lots or units subject to the recorded declaration. Washing t on Lstts C onsistent Washington law requires compliance with the Statute of Frauds. RCW 64.o4.oto, "Conveyances and encumbrances to be by deed," states: Every conveyance of real estate, or any interest therein, and every contract creating or evidencing any encumbrance upon real estate, shall be by deed: PROVIDED, [a number of circumstances relating to real estate held in trustl. The deed memorializing the conveyance of the encumbrance upon real estate must meet the statutory elements of a deed. "Every deed shall be in writing, signed by the parry bound thereby, and acknowledged by the parry before some person authorized by "this act to take I I 0 I 20.ltr.state parks.docǃ Jim Anest, RCO January 22,2011 Page 4 acknowledgments of deeds"." RCW 64.o4.oto. Acknowledgment may not be proven by parol evidence. Forcester u. Reliable Transfer Co., Sg Wash. 86, 94 (Washington 1910). Washington jurisprudence consistently extols the protections afforded by the Statute of Frauds as the Statute pertains to transfers of interests in real estate. Losh Family, LLC u. Kertsman, r55 Wash. App. +SB (Div. 1 2o1o) (The purpose of the statute of frauds is the prevention of fraud arising from uncertainty inherent in oral contractual undertakings); Richordson u. Cox, ro8 Wash. App. BBr,Bgo (Div. r 2oo1) (Real Estate Statute of Frauds also serves a cautionary function); HoueII u. Inland Empire Paper Co, zB Wash. App. 494, +gB (Division 3 rg8r) (The purpose of the statute of frauds is to prevent fraud arising from uncertain agreements). Recording of Deed Also Required Washington also requires that any conveyance3 of an interest in real property4 be recorded. RCW 65.o8.o7o. "Every such conveyance not so recorded is void as against any subsequent purchaser or mortgagee in good faith and for a valuable consideration ..." Id. An instrument is deemed recorded the minute it is filed for record. Id. Specific to the Port as a municipal corporation, RCW 64.o8.o95 also requires that: Every conveyance of fee title to real property hereafter executed by the state or by any political subdivision or municipal corporation thereof shall be recorded by the grantor, after having been reviewed as to form by the grantee, at the expense of the grantee at the time of delivery to the grantee, and shall constitute legal delivery at the time of filing for record. Emphasis added. Burd"en of ProofWhen Disputed Finally, Washington law also addresses the burden of proof when a conveyance of a real property interest is in dispute. Washington requires that a party seeking specific enforcement of an interest in real estate "must prove by clear and unequivocal evidence the existence and all the terms of the contract." Berg u. Ttng, rz5 Wash.zd 544, S6r (rgqS). Persuasive, ' *Rewiser's note: The language "this act" appears in r9z9 c a3, which is codified in RCW 64.o4.oto- 64.o 4.o5o, 64.oB.oro- 64.o8.o7o, 64.tz.ozo, and 65.o8.ogo. RCW 6 4.o 4.oto. 3 "The term "conveyance" includes every written instrument by which any estate or interest in real property is created, transferred, mortgaged or assigned or by which the title to any real property may be affected, including an instrument in execution of a power, although the power be one of revocation only, and an instrument releasing in whole or in part, postponing or subordinating a mortgage or other lien; except a will, a lease for a term of not exceeding two years, and an instrument granting a power to convey real property as the agent or attorney for the owner ofthe property. "To convey" is to execute a "conveyance" as defined in this subdivision" RCW 6S.o8.o6o(S). c Real property is defined as "lands, tenements and hereditaments and chattels real and mortgage liens thereon except a leasehold for a term not exceeding two years". RCW 6S.oB.o6o(r). I l0 l20.ltr.state parks.doc$ Jim Anest, RCO January 22,2011 Page 5 unpublished authority establishes an ertraordinary burden of proof is required to be met to enforce a claimed conveyance, when the requirements of the Statute are not met.b fV. Executive Summary As applied to the present situation, Washington law makes clear the following: r. The burden of proving that the PorL's property is impaired after its lease with the city expires in zotz, or that the Port's interest in the real properly was conveyed to another entity is borne by the party that asserts the encumbrance (servitude) or the conveyance of the property interest. z. To meet this burden, the asserting party must produce a deed, or a n'riting evidencing the acceptance and intent to be bound by an encumbrance on the property. 3. The deed or the writing evidencing the encumbrance "shall be in writing, signed by the party bound thereby, and acknowledged by the party before some person so authorized" (notarized). 4. Because the Port is a municipal corporation, RCW 64.o8.o9S also requires that the deed or r,l'riting be recorded. Based on a review of the law and the relevant facts, there is no legal basis to conclude that Port properties are subject to continuing obligations or deed restrictions beyond the current City lease expiration (zorz). There is also no legal basis to support any contention that the Port's or'vnership interest was somehow transferred, and or is impaired by an obligation to remain in park use in perpetuity. V. Relevant Facts Below we provide the supporLing detail and relevant facts. From the decades' worth of records we have gleaned those which pertain one way or the other to guiding legal standard under Washington law. Those records are organized in a tabbed numbered notebook, and reference to the documents cited corresponds to the tabbed number. The recitation of facts is organized around the three principle potential sources which could have triggered and or required any real property conveyance or encumbrances on the Port leased land: The rg8r Federal grant, the associated state grant Br-o43A and state grant 83- o1BD. Each of these possible triggers and their related records are reviewed in detail below to determine if any evidence exist that the Port conveyed and or encumbered the properties for s Martin u. Groenwold, tog Wash.App ro63 (Div. z zoor) - A farmer/neighbor's improvement to the neighboring property, depositing of tools, numerous affidavits affirming the donative intent of the decedent, handwriting expert's testimony and procurement of a handwritten conveyance not adequate to remove conveyance from statute of frauds, due to improper memorializing of the conveyance. 1 I 0 1 20.ltr.state oarks.doc日 Jim Anest, RCO January 22,2011 Page 6 park use in perpetuity in a manner required under state law. Also included is a short discussion of remedies available to the Port in the event any encumbrance is deemed to exist. A. r98r Federal Land & water conservation Fund project Agreement +53-oo486, PRR 56and 74 1. Term: lgl79 - rz/gt lB5 z. Funded: by US Secretary of Interior - Contingency Fund 3. Amount: $rr8,ooo 4. Purpose: (to fund B acres) source: Federal Grant documentspRR 62,74 5. Between: State & Feds. rd. sponsor is defined as "state". 6 pRR 6o, and.7g. 6. Related Documents - See Section B below, associated state grant 8r-o43A. 7. Extent of Encumbrance: a. Limited to Term of Lease: The federal grant provisions in existence at the time of this grant speak specifically to the term of any encumbrance where leased property is used as part of a grant match. The term of any encumbrance for public outdoor recreation use shall be for the "term of the lease if encumbered by lease:"2 B. The State agrees that the property described in the project agreement and the dated project boundary map made part of that agreement is being acquired as development with Land and water conservation Fund assistance, or is integral to such acquisitions or development, and that, without the approval of the Secretary, it shall not be converted to other than public outdoor recreation use but shall be maintained in public outdoor recreation in perpetuity or for the term of the lease in the case of leased property. Source: PRR 6o - Pqrs,8 - us Departtnent of the rnterior rreritage Conserustion ctnd Recreation Seruice Mqnuo/ - Grsnts-in-aidseries Part 66o - Chapter 4 Project Agreernent Gettersl Prouisions 66o.As 6 z.-Projec! sponsors.,Otly States may apply directly to NPS for LWCF assistance. However, funds may be made available through-the States to politicalsubdir.isions of the state and other appropriate public agencies. P-roposed projects may be sp_on_sored by a state agency or a public agency of a suboidinate unii of govJrnment. All eligible project sponsors, including those that have other thin public ouidoo. recreation pr.por".] -ust be able to commit its resources to the perpetual stewardship of the Fund-assisted public outdoor recreition area pursuant to Section O (0 (S ) of the LWCF Act. htrp ;// w!!rr.4ps€o_v/J ucV nal ual/lwcf ,pdt' z Cite is to Federal Regulations in effect st tirne of this grant per Federalfites.PRR 6o. BCornpare to Federal - LIS Dept of Interior - Grents in Aid Series 685.2.t, These sections do not apply to port since Port properties were not "acquired or developed" by the federal funds, and instead the provisions specific to leased properties applies. I I 0 l20.ltr.state parks.doc뺩 Jim Anest, RCO January 22,2011 Page 7 This provision is consistent with the Federal - US Dept of Interior - Grants in Aid Series 64o.2.9, version in effect when this rant issued (update L9TS), See PRR 75, which encouraged use of lesser thanfee interest properties: 64o.z.g.4Acquisition of Lesser Interests. Proposed acquisitions of interests in lands and waters of less than fee simple title are encourcrged where such lesser rights will insure the desired public use. Such proposals will be considered on the basis of their merit and contribution to outdoor recreation. (See 6+o.g.g for limitations on assistance for development of leased property.) Thefortner controlling regulations are in contrast to the current federal regulations, which do nof allow inclusion of leasehold properties specifically because they cannot be retained in perpetuity: 4. Acquisition of lesser interests. Proposed acquisitions of interests in lands and waters of less than fee simple title, including leasehold interests, are not eligible unless such lesser rights (e.g., permanent recreation use easements or similar devices) wili insure the desired perpetucl public access and use pursuant to Section 0(0(S). See: (current) Federal - US Dept of Interior - Grants in Aid Series 685.2.t, Page 3-4, bfip'//nwlr!.:rpq'€'qrlilr:c-f/maquaVlwsf.pdf,"Responsibilities Following project Completion" PRR 75, which provides: 1. Retention and Use. Property acquired or developed with assistance from the Fund shall be retained and used for public outdoor recreation. Any propert5r so acquired or developed shall not be wholly or partly converted to other than public outdoor recreation uses without the approval of the Director. (See Sec. 6(0 of the Land and Water Conservation Fund Act, as amended, and z4B DM t.rF).... 2. Changes in Recreations Uses. The use of property acquired or developed with assistance from the Fund may not be changed from that contemplated and approved when assistance was obtained, unless prior approval is obtained from the Director. b. Federal Grant Encumbrance Does Not Extend to Port Leased Lands. Even if it were tried to be argued that the current Federal grant regulations somehow apply, the encumbrance provisions still would not apply to the Port land as the federal grant monies were earmarked specifically for acquisition of (some other) B acres of the Kah Tai Project. The Port's leased land was not "acquired nor developed" as part of the federal grant monies. The Port's leased land was purely offered by the Port to be used as value toward the required associated state grant match below. I l0 l20.ltr.state oarks.docl Jim Anest, RCO January 22,2011 Page 8 s Railroad Addition to the City of Port Townsend That portion of Railroad Addition to the city of Port Townsend consisting of: Block 6, Lots t-r6 Block 7, Lots r-32 Block B, Lots r-16 Block e5, Lots r-r3, z3-34 Block 26, Lots r-rr, z4-34 BlockzT, Lots r-rr, z3-34 Block zB, Lots r-r5, rB-34 Block e9, Lots r-zo, less easement for Sims Way in Lot 20 Block 32, Lot 7, less easement for Sims Wav Block 33, Lots 5-9, less easement for Sims Way in Lots 5, 6, B, & 9 Block 34, Lots 3-rr, less easement for Sims Way in Lots 3, 4, & tt Block 35, Lots r-r3, less easement for Sims way in Lots r, z, & 13 and all roads and alleys abutting the aforementioned Blocks" B. State Project Number: Br-o43A, Project Name: Kah Tai Lagoon Park, PRR 56 and 74 t. Term: Active tltglT9, Closed Completed 6lgol9z z. Funded: Federal Grant (Section A above) and IAC 3. Amount: $z36,ooo of which Feds pay 5oYo or grr8,ooo and IAC pays 25% or $59,5oo 4. Purpose: (property acquisition of B acres) - Source: State documents PRR 56, Federal PRR 74. 5. Between: IAC and City and Port (Port leased land was used to satisfy grant match) 6. Related Documents: r98r - First Port lease to City for park purpose, r/rg/8r, (underusater portions o,nd upland tenfoot strip, So Aecy terrn, PRR t4 1981- City Records Deed restrictions on City sites, (August and October 1981), PRR t8 & z8 r98z - Second Port lease to City of park purposes, (Bo year term - July 3tl, 1982- July g1 2ot2) (legal descriptions) PRR 15 - Allows "use of premises for park purposes, and if use terminates, so shall lease" - City plans for park use require Port's approval - City holds Port harmless from all costs and liabilities arising out of the City's use of the property as a public park t98z - Port Resolutiort 7-82, (August 2, rg82) PRR 3r I 1 0 l20.ltr.state parks.doc Jim Anest, RCO January 22,2011 Page 9 7. Extent of Potential Encumbrance, if any: a. Any encumbrance from Federal grant restriction - None as to Port property - See Section A above (Terminates at lease termination and or does not extend to Port property). b. State Grant Provisions: (i) None. IAC regulations allowed long-term leased lands to be included within projects. PRR 4o, See IAC Project manual, at page rL,4.21. o4.zr Control and Tenure The sponsor must have title to or adequate control and tenure of the area to be developed. The sponsor shall list all outstanding rights or interests, held by others in the property to be developed. In the event that outstanding rights should later prove to be non-compatible with public outdoor recreation use of the site, the sponsor assumes the responsibility for having to replace the facilities developed with sate and/or federal assistance with others of at least equal value and reasonable equivalent usefulness and location at the sole costs of the sponsor. The follo*ing stipulations must be satisfied when development is proposed on leased property: (r) the time remaining on the lease must be for a period of at least z5 years; (z) The lease cannot be revocable at will by the lessor; (3) Evidence must be provided by the sponsor that the proposed development and its intended uses are consistent with and legally permissible under its conditions of the lease. The Port's lease of land to City satisfied these provisions as the lease terms exceeds 25 years (3o years), was not revocable at will, and the lease specifically authorized City's use of the area for (temporary) park purposes. All three state grant criteria for use of leased land were thus satisfied. (ii) Here, State had notice of Port's leased land per Port Resolution 7-82, PRR 3r. The Port Lease was attached to the State grant Application; State had notice of Leased status of the land. See Port ResolutionT-82, (August 2, Lg82) PRR 3t. The Resolution makes clear that a copy of the Port's Lease was attached to State grant Application; thus the State had notice that the Port's allowance of the use of the property to aid in obtaining the grant was temporary and not a grant in perpetuity. (See confirming anecdotal admission by State park staff, to I I 0 I 20.ltr.state parks.doc Jim Anest, RCO January 22,2011 Page 10 the effect that "once the lease us up, the strings go away" PRR 77 and 85, "once the lease expires the Port is not restricted by the City's agreement with RCO". (iii) Encumbrance limited to the "propert5r so acquired,, - per terms of IAC grant contract paragraph zo (O. PRR 56. since the port property was not "so acquired;" but instead was leased to the City by the port; the encumbrance does not apply to Port leased properties. The controlling state grant sections state: zo. Provisions Applying only to Acquisition Projects. The following provisions shall be in enforced if the project covered by this document is for the acquisition of outdoor land or recreation land or facilities, and shall not apply when the project is for development only. (f) Deed of Right To Use Land For Public Recreation Purposes. The Contracting Party agrees to execute an instrument of instruments which contain (r) a legal description of the property acquired under this Project Contract; (z) a conveyance to the State of Washington of the right to use the described real property forever for outdoor recreation purposes, and (3) a restriction on conversion of use of the land in the manner provided in RCW 41.gg.roo, whether or not the real property covered by the deed is marine recreation land. RCW 43.99.1.oo reads as follows: "Marine recreation land with response to which money has been expended under RCW 43.99.o8o shall not, without the approval of the committee. be converted to uses other than those for which such expenditures were originally approved. The committee shall only approve any such conversion upon conditions which will assure the substitution of other marine recreation land of at lease equal fair market value at the time of conversion and of as nearly s feasible equivalent usefulness and location." See: IAC grant contract paragraph zo (O. PRR 56. I I 0 l20.ltr.state parks.doc Jim Anest, RCO January 22,2011 Page I I 8. Lack of Evidence of Any Encumbrance to Port lands: a. No Deed Restriction or Evidence of Dedication Recorded Against the Port Property- As discussed in detail above, Washington also requires that any conveyance ofan interest in real property be recorded. RCW 65.o8.o7o. The sole r,l'ritten recorded documents again the Port property evidence only that the property was leased. There is no evidence of any conveyance ofthe fee interest by the Port and no evidence ofany kind that the Port property was encumbered in perpetuity with an obligation to remain in park use. This absence of encumbrance is in contrast to the fact that appropriate Deed Restrictions were recorded on City's Kah Tia sites. See Deeds at PRR t8, z8 This conclusion appears to be shared by the City of Port Tornnsend Staff, See Email which admits, in sum: no deeds, no encumbrance - PRR tt. b. No Written or Recorded Evidence of Dedication: The state and federal agency agree that no 6(O boundary map exists. Apparently, the Original 6(0 Map for Grant was lost by the State during an office movelo. PRR 58, 66. Any later re-creation is not binding, and even if an original were to be found, (t) no map of encumbrance was recorded against the Port leased properties, and (z) any such map which purports to bind the Port properties is contrary to the requirements for the Federal and state grants in existence at the time. Whether Port leased property is within or without the Map boundary is of no consequence, since any encumbrance for park purposes terminates with the lease per federal regulations (PRR 6o) andper State grant regulations (PRR S6) and per state admission. PRR SZ. 9. Other Records Consistent that Lease is the Sole Encumbrance for Port Properties a. City Ordinance LgJ4 - authorized the execution of a street lease from the City to the Port - dated n/z/lrg9z; PRR z6.The Lease are includes San Juan Avenue and Tenth Street and other areas, and was granted "in consideration of the Port leasing to the City a tract of land North Sims Way and South of Kah Tai Lagoon for park purposes for a period of 3o vears". 'o It's admitted and well established in the records that the Park 6(0 Map was "re-created" recently by the state, per state internal documents - "t9Br Fed LWCF agreement to acquire 78.5 acres signed by City and Port. (Latter fact is conclusory for NPS). But has map attached to the grant says "official 6f project boundary map from NPS files dated 5- 6-o4" Kammie added these notes from a map with a sticky note from Gloria of NPS dated 5-3-o6 after Kammie's research indicated no 6f map in the file. Heather appears to have created another map which includes the port properly in zoo9." PRR S8. I I 0 I 20.ltr.state parks.doc븠 Jim Anest, RCO January 22,2011 Page 72 The City's Street lease is for ten years, with "re-negotiation of rents each five years." The lease further provides that failure of City to renew the street lease shall be grounds for termination of the Port's lease for park purposes. This reversionary term reinforces the parties' clear understanding that the parties intended and understood that the Port lease, although long term, was temporary, and that no conveyance of fee interest in the properties was contemplated, nor was Port's leased area conveyed or encumbered by Park use in perpetuity. b. 1985 - 1st [lnsndment to City- Port Lease. In August 1985, the City and Port amended their Lease to change legal descriptions of the leased area, o.dding more land. The Lease states that the properties described in the original lease were under-water properties; the amendment states that effective August 5, 1985, the properly of the lease shall be modified to include "the following lots or portions of lots located s,boue water..."PRR 7611 These above water properties were added to the lease as of 1985, and were not included in the legal description of the original lease, attached to the rg8r grant. Even if one assumes solely for argument that the Porl properties described in the lease which was attached to the rg8r state grant is in some way encumbered, there is no linkage between any grant encumbrance and these new Port properLies leased to the City in 1985, well after the grant date. c.1997' - City Resolution 97-08, PRR tT.This City Resolution affirms that the Port ovrns underlying fee, that the site is encumbered by City lease thru zotz, and that site not or,med by City, County or State. It's been argued that the City and Port cannot bind the State and or federal Parks Service by any action between these sub-agencies. True, but this Resolution is not relied on as a conveyance document that somehow di-vested any interest that the State and or federal government obtained. Rather this Resolution is an affirmation of existing rights. It bears reminding that the burden of proof is on the party asserting that any encumbrance to the Port property exists. As this memo addresses, no such evidence, consistent with Washington state property law requirements, exists. ro. Other Arguments Not Persuasive Nor Consistent with State Law Requirements. a. City resolution 83-r for "dedications of street for park purposes" dated r/r8/83, PRR - 7o,Is o.,fiVo Consequence. Some folks have referred to this City Resolution as a street vacation, but it's actually a dedication of the stated areas for park purposes. However, there ur. t*o challenges for folks that rely on this action as binding on the Port or as impairment to any future change in use. First, the City may o\^1r right of way upon which streets are located, " changes to Properties descriptions are shown in redlined format Appendix A. I l0 I 20.ltr.state parks.doc泃 Jim Anest, RCO January 22,2011 Page 13 and use them for access purposes, but a City can't change the use, and or dedicate the area to another use if the City is not the underlying fee ourner. Here, to the ertent that the City is not the underlying fee owner, and the Port is, the property cannot be dedicated without the Port's written approval, which doesn't exist. Second, by its own language, the Dedication for park use continues in effect only so long as the "said streets and alleys are included in Kah Tai Lagoon Park". Because the park use encumbrance ends when Port lease terminates, "said streets and alleys are no longer included in Kah Tai Lagoon Park", and the dedication to the extent any existed. would terminate. r i i 1 t . I l - , 1 i , ; 1 , r i . 1 f l ) . I t : . j " i l b. Area Calculations of No Consequences. The discussions about the estimated acreages described in the grant are also of no consequence for the same reasons. (i.e.: "What is the estimated acreage of the land with and without the port properfy? A- About 74 and 55 acres"). See PRR 6o, 57, since any encumbrance for park purposes terminates with the lease. C. Project Number: B3-orB D, Project Name: Kah Tai Lagoon Park PRR 53 Sponsor: Port Torrv-nsend Parks Dept. Status Date - Active qlgol4 -Closed Completed tzlt4lBT; PRR 76, SS. r. Funded: by So % match by IAC z. Amount: $rt5,ooo of which IAC pays $SZ,5oo 3. Purpose: To fund improvements parking, play equipment, restrooms, utilities, etc. PRR 76, SS. 4. Between: IAC and City; Not PORT. Id. 5. Extent of Encumbrance: NONE TO PORT; PORT NOT A SIGNER Federal restriction - none- no federal dollars used. Id. State: None - Section 2o(O applies only for funds used to acquire property; this grant is for development/fund improvements. See PRR 26. D. Remedies if Port Land Deerned Encumbered. If both the great weight of evidence and the glaring omissions of the required legal documentation is somehow overlooked. the Port has additional remedies. L , . . 1 1 . : _ . , J l l L ; r r i l , . l - . 1 L i . I l0 l20.ltr.state parks.doc Jim Anest, RCO January 22,2011 Page 14 t. Conversion. The state park regulations provide a pathway for use conversion, the details of which are outside the scope of this analysis, primarily due to the absence of any support that such relief is needed, since the Port property is not encumbered. z. State as Federal Grant Recipient. The initial federal grant was between the US Park Service and the State, as only States may apply directly to NPS for LWCF assistance. If a remedy is sought by National Parks, the entity responsible would be the state. PRR 6o and 75. 3. Lease Hold Harmless Provides Remedy: The Port's Lease with the City para 43 includes a hold harmless provision for the Port's protection. The lease provides that the City holds the Port harmless for all costs and liabilities arising out of City's use of property as a public park. If (despite analysis) replacement property, monetary recoupment and or conversion actions are deemed required, the Port should evoke this protection and tender to the City to assume the obligation. PRR 14 & 75. VI. Conclusion As applied to the present situation, Washington law makes clear the following: r. The burden of proving that the Port's property remains impaired after its lease with the city expires in zotz, or that the Port's interest in the real property was conveyed to another entity is borne by the party that asserts the encumbrance (servitude) or the conveyance of the property interest. Ilere, thst burden to affirrnatiue proue a cottueya:zt.ce or o:rt encurnbrantce Iies uith the State or US Pcrk Seruice. It is not the Port's burd.en to proue the property is not encurnbered or ho.s not been conueged. z.To meet this burden, the asserting party must produce a deed, or a rvriting evidencing the acceptance and intent to be bound by an encumbrance on the property. /Vo such deed or ru:lriting erists based onthe Port's inuestigation. 3. The deed or the writing evidencing the encumbrance "shall be in r,r'riting, signed by the party bound thereby, and acknowledged by the party before some person so authorized" (notarized). AIo such d.eed or usritins exists based on the Port's inuestigation. 4. Because the Port is a municipal corporation, RCW 64.o8.o9S also requires that the deed or writing be recorded. .A/o such deed or uriting has been recorded. based on the Port's inuestigo,tion. I I 0 I 20.ltr.state oarks.doc Jim Anest, RCO January 22,2011 Page 15 Based on a review of the law and the relevant facts, there is no legal basis to conclude that Port properties are subject to continuing obligations or deed restrictions beyond the current City lease expiration (zotz). Anecdotal recollections, re-created maps, and or presumptions of what had been intended are of no legal consequence. There is no legal basis to support any contention that the Port's or,mership interest was somehow conveyed and or is impaired by an obligation to remain in park use in perpetuity. Thank you for your consideration of this analysis. We very much appreciate the time and energy you've devoted to this matter. Hopefully, this makes your agency's future actions easier and clearer, as the relevant law and facts reveal no legitimate basis for equivocation or dispute. We are willing to share with you any document review you may find helpful, including a copy of the materials cited herein. On behalf of the Port, we also convey the Port's commitment to its state mandated duty to be responsible stewards of these properties as valuable public assets. We look forward to working with you to bring this issue to closure, so that collective energies can be devoted to productive long term goals. Thank you again. Sincerely, Goodstein Law Group PLLC &nt"r/rln A -Ca?* / Carolgr A. Lake CAL:dkl Cc: Larry Crockett, Executive Director, Port of Port Tounsend Jim Pivarnik, Deputy Director, Port of Port Tor.vnsend I I 0 I 20.ltr.state parks.doc琫