Letter from Larry Bailey re access to Clure Property

LAWRENCE B BAILEY
308 HEMLOCK LANE
LOPEZ ISLAND,WA 98261
(360) 468-3217
January 15, 2017

To: San Juan County Council
San Juan County Land Bank
Port of Lopez

Re: Claim of Public Access to the Clure Property

Ladies and Gentlemen,

We are writing with regard to the Clure’s search for an easement granting public access to their property. We submit that the Clures have only limited, personal access via Meadow Lane to their property for ingress, egress and utilities and that they have no other legal access to their property. We further submit that the easement for Meadow Lane was granted solely to the purchasers of property from Rowland and Marion Davies, their successors and assigns, per that certain “Easement Exchange Agreement and Construction Agreement” signed by the Clures and others recorded February 16,1972 under SJC Recording No.77927; and that the Clures have no legal right to increase usage by the public of the Meadow Lane easement.

1. The Clures have no legal right of access over Port Property.

In a letter to the Port of Lopez dated January 10, 2017, the attorney for the Clures, Michael K. Murray, claims the Clures have an existing easement over Port property. We made a public documents request to the Port for this letter and also reviewed all Port documents pertinent to this claim.

From the Port documents we have seen and from the personal knowledge of our neighbors and myself of the parties and properties since 1975, we believe Attorney Murray’s letter is incorrect both factually and legally.

He enclosed Attorney Souders’ letter of March 29 2005 to the Clures responding to an inquiry by Mrs Clure. Attorney Souders was then the attorney for the Port. There was no mention made in Souders’ letter of any claim of an easement by the Clures over the Port property which the Clures and others had sold to the Port in 1978 by a simple statutory warranty deed. Souders’ letter, which was not copied to the Port or in the records of the Port, responds only to the Clure’s possible right to grant additional easements over their own property, not the Port’s. Souders’ letter does not even address the easement that the Clures are now claiming and in our opinion is irrelevant.

Murray claims the Clures intended to reserve an easement over the property when they sold to the Port and the fact they didn’t was a mistake. He in effect claims the Clure deed to the Port should be rewritten to grant an easement back to the Clures.

That claim is baseless.

Since there was obviously no fraud involved, the only legal basis for claiming that the deed should be rewritten is if there was a “mutual mistake,” or “clerical error” by both the Clures and the Port and that both sides had agreed to the easement. You can safely bet that if the Clures had any factual basis for proving that claim they would have provided such evidence.They didn’t…

There is no evidence of any “mutual mistake” or “clerical error” and no evidence in the Port’s records that an easement to the Clures was ever discussed or considered. In short, their easement claim based on their alleged mistake has no merit.

Attorney Murray then goes on to claim the Clures had “continuous, uninterrupted, use of an existing gravel roadbed…since 1978” and in effect claims a “prescriptive easement” by adverse possession.

Land held by Washington’s governmental entities are generally immune from adverse possession actions. In other words, rights to public lands generally can’t be acquired by adverse possession as against the state or entities like the Port.

“RCW 7.28.090 Adverse possession —Public lands…
RCW 7.28.070 and 7.28.080 shall not extend to lands or tenements owned by the United States or this state… nor to lands held for any public purpose.”

If Attorney Murray can somehow claim that statute doesn’t apply here, the Clures would still have to factually prove their adverse possession claim. To our knowledge they have never used the lane off Eagles Roost, which was just built by the Port in 2001, to visit their property. The Clures have never lived on Lopez or on their property and their visits have been very infrequent over the last 40+ years.They have always driven down Meadow Lane and then over the beach access to their property. To establish a “prescriptive easement” in our state. the Clures would have to factually prove that their use was “open, adverse, notorious, continuous, hostile and uninterrupted over the prescriptive period of ten years.” If they ever used the lane/roadbed,it was not open, notorious, continuous, hostile or uninterrupted and was certainly not adverse. The Washington State Supreme Court has found that the use of someone’s property will be presumed to be with the owner’s permission and therefore not “adverse,” stating: “an initial presumption of permissive use applies to enclosed or developed land cases in which there is a reasonable inference of neighborly sufferance or acquiescence… Showing a reasonable inference of neighborly sufferance or acquiescence is a fairly low bar.” Gamboa v. Clark ,183 Wn.2nd 38, 348 P.3d 1214 (2015). In short, neither the facts or law support the claim of a prescriptive easement.

Finally, Attorney Murray claims that, “The easement…does not add or create any rights that the Clure LLC’s do not already have; it is intended to clear title and document these existing easement rights..” As is readily apparent from the foregoing, his statement and claim have no basis in fact or in law.

( As a side note,the Clures and other Meadow Lane owners approached the Port in 1999 requesting the Port to help alleviate excessive water runoff. The Port agreed to do this if the Clures would grant the Port a drainage easement, which the Port would fund, build and maintain. The Clures and the Port entered into an Easement Agreement recorded October 25,2000, SJC Recording No. 2000 1025015 which conditioned the Port’s use as follows: “The easement is not a right of way for access to the shore of the San Juan Channel for any recreational purpose or any other purpose other than constructing, using and maintaining the easement described herein.” It stands to reason that if the Clures thought they had a claim of an easement back over the Port property they would have asserted it at this time. There is no evidence in the Port records that they made any such claim.)

In summary, there are no facts, circumstances, documents, or evidence of any kind that establishes any easement to the Clures over Port Property.

2. The Port is limited by FAA Regulations from granting road and parking easements.

In addition to all the foregoing,the Port is required to comply with all FAA regulations,policies and guidelines as to land uses within a Runway Protection Zone (RPZ). The proposed Clure easement and its intended expanded uses would fall within these policies. The Clure property as well of that of other neighbors is within the Port’s RPZ and they have already sold an Avigation and Hazard Easement to the Port recorded July 13,1978, SJC Recording No.102458 which prohibits any construction and tall trees in the RPZ and permits the Port to remove any construction and tall trees. The most recent guidance we found in the Port’s records from the FAA on land uses within an RPZ is dated September 27, 2012. This guidance requires the Port to consult and coordinate with the FAA when there is any change in land use within the RPZ, such as “recreational land use…places of public assembly…public roads…vehicular parking facilities…” Prior to seeking FAA approval, the Port is first required to work with FAA staff to: “Avoid introducing the land use…minimize the impact of the land use…and mitigate risk to people and property on the ground.” The FAA guidance goes on to state that: “Land uses prohibited from the RPZ are…places of public assembly…”

3. Public Access over Meadow Lane or Eagles Roost is not an option.

Both Meadow Lane and Eagles Roost are private roads established by easements granted with the sale and purchase of adjoining land. They are maintained by the respective homeowner groups and are open only to the owners and their invitees. They are not public roads in any sense and are not built to county road standards. The road easement that is now called Meadow Lane was established by the above described 1972 Easement Exchange Agreement and Construction Agreement. The Clures and all other Meadow Lane owners at that time signed the agreement which provides in part: “4. It is further agreed that the new relocated roadway and easement shall run with land of the parties hereto in said Government Lot 2 and be appurtenant thereto,and that neither it nor any portion thereof shall be assigned or granted to any other persons except those as may be or become persons who have an ownership interest in said land and said Government Lot 2.”

This easement was also included in the deed each purchaser received from the Davies.The easement is “non-exclusive” which means the person whose land is used for the easement retains the privilege of sharing the easement benefits with the persons holding the easement rights.

We believe it is clear, based on this agreement, the property deeds, and the facts and circumstances in 1972, that this ingress and egress easement, now called Meadow Lane, was intended to serve and benefit only the 10 parcels into which the Davies farm was divided and the “persons” who purchased them. The homeowners of Meadow Lane are united in their opposition to any public entity purchasing the Clure property and seeking to access it by Meadow Lane. In short, we will legally challenge any significant increase in the traffic, vehicles or pedestrians, on our private easement.

In the same vein, a majority of the homeowners on Eagles Roost oppose any public entity purchasing the Clure property and seeking to access it by Eagles Roost and will challenge any significant increase in the traffic, vehicles or pedestrians, on their private easement.

We believe the law of easements in our state fully supports our position. In considering the scope of an easement, our Washington courts have held in numerous cases that it is the duty of the court to ascertain and give effect to the intention of the parties as determined by the language of the grant and consider the situations and circumstances of the parties at the time of the grant. Our courts have consistently held that use of an easement cannot be substantially enlarged or materially changed so that an unreasonable, increased burden on the servient estate results. Green v.Lupo, 32 Wash App.318,647 P.2d 51 (1982); Zobrist v. Culp, 95 Wash.2d 556,627 P,2d 1381(1981); Brown v. Voss, 105 Wn.2d 366,715 P.2d514 (1986).

Consequently, the use of Meadow Lane and Eagles Roost is limited to the use that is reasonably necessary for the intended purpose of the easement and no easement owner may materially increase the burden or impose new burdens on the underlying easement landowners.

We submit that on the basis of the facts, circumstances, and Washington law, the Clures have only limited, personal access via Meadow Lane to their property and that they have no other legal access to their property via the Port property or Eagles Roost Lane.

Respectfully Submitted,

Larry Bailey
On behalf of savelopezshoreline.org

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