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2012, 03-27 Regular Meeting Minutes
MINUTES City of Spokane Valley City Council Regular Meetings Formal Meeting Format Tuesday, March 27,2012 Mayor Towey called the meeting to order at 6:00 p.m. Attendance: City Staff: Tom Towey,Mayor Mike Jackson, City Manager Gary Schimmels,Deputy Mayor Caty Driskell, City Attorney Dean Grafos, CounciImember Neil Kersten,Public Works Director Brenda Grassei, Councilmember Mark Calhoun, Finance Director Chuck Hafner, Councilmember John Hohman, Community Dev.Director Ben Wick, Councilmember Kelly Konkright,Deputy City Attorney Arne Woodard, Councilmember Mike Stone,Parks&Recreation Director Steve Worley, Senior Engineer Lori Barlow, Senior Planner Carolbelle Branch,Public Information Officer Christine Bainbridge, City Clerk INVOCATION: Pastor John Vanderwalker from Community of Christ Church gave the invocation. PLEDGE OF ALLEGIANCE: Mayor Towey led the Pledge of Allegiance. ROLL CALL: City Clerk Bainbridge called the roll;all couneilmembers were present. APPROVAL OF AGENDA: It was moved by Deputy May©r Schimmels, seconded and unanimously agreed to approve the agenda. INTRODUCTION OF SPECIAL GUESTS AND PRESENTATIONS: nla COMMITTEE,BOARD,LIAISON SUMMARY REPORTS: Councilmember Woodard: said he attended the Sullivan Road Design meeting where they discussed viable ways to keep the Bridge open during the construction; spoke at the Spokane Valley Business Association Meeting; attended the Chamber of Commerce meeting; went to the Pines Sidewalk infill project meeting where they heard concerns from citizens about the project's impacts; and said he went to the open house for the potential Regional Animal Shelter building. Councilmember Wick: reported that he attended the Chamber of Commerce Connections Breakfast, and the Governance Committee meeting. Councilmember Grafos: said he attended the Chamber of Commerce breakfast; and the GMA (Growth Management Act) Steering Committee meeting. Deputy Mayor Schimmels: reported he attended the Sullivan Bridge meeting; the STA (Spokane Transit Authority) Meeting; the SRTC (Spokane Regional Transportation Council) half-day Retreat; and went to the Spokane County open house for the proposed SCRAPS Animal Shelter. Councilmember Grassel: said she attended the "Great Turn Around," a county-wide event and national fundraiser to raise finds for Life Services, a home for unwed mothers; mentioned the Board Meeting with the Convention and Visitor's Bureau and that we heard from GSI (Greater Spokane, Inc.) at a previous council meeting; said she went to another community organization for homeless youth to help them get off the street, get counseling and complete their education; and yesterday met with the students from Bowdish Junior High concerning their social studies group program. Councilmember Hafner: said he attended an Urban Growth Management meeting and hearing where about thirty-five people testified to either change or not change, the boundary, and said at the next Council Regular Meeting 03-27-2012 Page 1 of 10 Approved by Council:04-10-2012 meeting the Board will evaluate the input and give the recommendations to the Board of County Commissioners, who are the only ones with the authority to make that decision; said he also went to the STA meeting and they continue to re-organize how they operate; attended the Health Board meeting where lack of revenues was discussed;went to the 9-1-1 committee meeting; attended the Sullivan Bridge meeting; and met with the 7th graders from Bowdish Junior High School who talked about the pros and eons of the a bridge over Highway 27. MAYOR'S REPORT: Mayor Towey reported that he attended most of the meetings already described; that last Wednesday he helped serve lunch for a group of about forty people at Meals on Wheels at Opportunity Presbyterian Church; attended the City's Governance Committee Meeting and said the manual is scheduled to be brought to council April 10; he attended the Board of Health Committee meeting and mentioned a proposed change to the solid waste system for collecting fees and said they had been experiencing a shortfall every year so they took reserves to fill that shortfall, adding when you take money from reserves for a long-standing problem, you eventually run out of reserves. Mayor Towey said the Board decided to delay the vote to make the necessary changes until a workable solution could be determined; remarked that he was impressed with the Bowdish Students' presentation; he attended the informal meeting he has monthly with the Mayor of Liberty Lake and Central Valley School District Superintendent, and their topics of conversation included how to encourage and enhance the community image for all jurisdictions. PUBLIC COMMENTS: Mayor Towey invited general public comments. Nick Cavender, 13619 E. 30th Ave (924-0779): spoke concerning truck parking in residential zones; said he submitted a Citizen's Action Request two years ago regarding his concern with his neighborhood being used for overnight parking for commercial semi-trucks and trailers and other commercial vehicles, such as Fed-Ex trucks; said his request at that time ended with his stating that by not addressing this issue, it would be setting a precedent that can only cause the situation to become worse; and he said today, within a two-block radius of his home, there are now four semi-trucks and trailers and Fed-Ex trucks that routinely park overnight in the neighborhood. He said he has nothing against truck drivers; but he doesn't want to be living next to a truck stop, and he said there are no ordinances to protection from damages such as damaging the character and nature of the neighborhoods and lowering the value of their homes. He said when he checked at City Hall to see what ordinances there are to address this issue, he was routed to the police who told him the only restrictions they were aware of were posted weight restrictions. He said Spokane has an ordinance regarding parking commercial vehicles in residential areas, in particular prohibiting habitual or overnight parking in residential areas. He said he feels the citizens need to be protected by the government in cases such as this; and he asked the City of Spokane Valley to have an ordinance similar to that of Spokane City. William Schroder, attorney with Paine Hamblen, 717 West Sprague Avenue, Suite 1200, 99201: spoke concerning and on behalf of the Valley Heritage Museum, he mentioned the comments submitted about two weeks ago about the Museum and a lawsuit concerning that, which he said is now terminated; he said the Museum wanted to talk tonight to present some of the Museum's perspectives, and he referenced his handout packet, (which the Clerk previously distributed to Councihnembers). He game some history of the Museum building,which he said is the last standing Township Hall in Washington State;he explained that the County gave the property to the City of Spokane Valley, and shortly afterward in 2004 the City of Spokane Valley deeded the property to the Spokane Valley Heritage Museum for the operation of a public museum. He said for many years the parking lot was not blocked or fenced; but during 2009 three businesses close to the Museum started a lawsuit against the Museum concerning the Museum's blocked off parking lot, which blocked access to their businesses. He said the issues previously addressed to council have already been addressed in Spokane County Superior Court, which lawsuit was dismissed with prejudice, finding that there was no legal basis for the claim that the Museum had misused its parking area, or did anything wrong in blocking off the parking area; and said this nonprofit organization is an important part of the heritage of Spokane Valley. Council Regular Meeting 03-27-2012 Page 2 of 10 Approved by Council:04-10-2012 Jayne Singleton,Director of the Spokane Valley Heritage Museum: shared some of the background of the museum, including renovating, preserving and protecting an historical landmark; and said the building is now listed on the local, State and National Historic Register; said they were recently included in a prestigious list of historic buildings called Spokane Matters; that only twelve buildings were selected; they recently received a grant from the Spokane Preservation Advocates to continue to renovate the building; and a grant from Washington Trust for historical preservation. She mentioned they are a center of community pride and activity; and mentioned some of their activities and events. Herman Meyer, Director at the Spokane Heritage Museum, residing at 14015 E. Wellesley: said he's on the committee that helps to develop the outside projects; and he too gave some history of what they have accomplished and planned for since 2004 for the Museum. Jamie McCloud, 11710 E. Alki Avenue: said she has been a volunteer at the Museum since 2010 and served as secretary of board meetings, group tour leader, and grant writer; and said she owns a business in Spokane Valley; she said the values of this City are community value and pride and focus on the future and an open and collaborative government; and to identify with the present, there must be an understanding of the history of the community, and she mentioned how the museum publicly represents local history. Al Shroek, 510 N Mamer: said he is pleased to have been part of the museum since the beginning and he values what the Museum stands for; and he spoke of the honorable remembrance of our heritage in the Valley and of this Museum's part in that heritage. Mayor Towey urged people who want to promote the museum, to give their comments during the Lodging Tax Allocation action item later on tonight's agenda. Mr. Sharp, 12623 E. Broadway Avenue: spoke of his grassroots' effort regarding the state of the public education system and said that the current education model is outdated; said he needs engagement on all government levels; said the dropout rate is about 33% and larger in major cities, and will continue if the education model is not addressed; said there is currently no incentive to graduate; said he has spoken with State Representatives and Senators; said he feels every person has a responsibility to change this and he urged people to write to Congress. 1. PUBLIC HEARING: Draft Amended 2012 Transportation Improvement Plan—Steve Worley Mayor Towey opened the public hearing at 6:49 p.m. Senior Engineer Worley explained that tonight's hearing is an opportunity to receive comment concerning the draft amended 2012 Transportation Improvement Plan; he said this has been presented several times; that the changes are needed to make the current year plan show the projects which received funding and those projects we propose moving forward, as well as those which were carried over. Mayor Towey invited public comment. No comments were offered and Mayor Towey closed the public hearing at 6:51 p.m. 2. CONSENT AGENDA: Consists of items considered routine which are approved as a group. Any member of Council may ask that an item be removed from the Consent Agenda to be considered separately, a.Approval of the following claim vouchers: VOUCHER LIST DATE VOUCHER NUMBERS; TOTAL AMOUNT 03/092012 25364-25418; 305120008; 306120140 $310,719.22 03/09/2012 25419-25444 $34,570.20 03/16/2012 25493-25507 $51,960.08 GRAND TOTAL $397,249.50 b. Approval of Payroll for period ending March 15,2012: $280,481.88 c. Approval of Minutes of March 6, 2012 Council Study Session Format Meeting d.Approval of Minutes of March 13,2012 Council Formal Format Meeting Council Regular Meeting 03-27-2012 Page 3 of 10 Approved by Council:04-10-2012 It was moved by Deputy Mayor Schimmels, seconded and unanimously agreed to approve the Consent Agenda. NEW BUSINESS: 3. First Reading Proposed Ordinance 12-012, Special Event Permits—Cary Driskell After City Clerk Bainbridge read the ordinance title, it was moved by Deputy Mayor Schimmels and seconded to advance Ordinance 12-012 relating to special event permits, to a second reading. City Attorney Driskell mentioned that Police Chief VanLeuven is here as well. Mr. Driskell went over the history of this ordinance and of subsequent safety concerns which culminated in this draft ordinance to consider repealing the provisions that provide conditions under which a special event permit may be issued for charitable solicitation in the roadway. Mr. Driskell also stated that he met with representatives from the Fire Department Union, as they were the ones working with MDA (Muscular Dystrophy Association); and Mr. Driskell said it was his impression that they understand the concern and respect the outcome should this ordinance be approved; and said if adopted, they would work hard to determine a way to do this fundraising in a safe manner. Mr. DriskeIl said staff recommends moving this ordinance forward. Mayor Towey invited public comment; no comments were offered. There was brief discussion concerning the safety and liability issue and Mr. Driskell said after his meeting with the Fire Department representatives, and talking to them about using parking lots or other ways to hold the event,the feels they realize there are other, safer ways to engage in the same work. Vote by Acclamation: In Favor: Unanimous. Opposed:None. Motion carried. 4. Proposed Resolution Amending 2012 Transportation Improvement Plan(TIP)—Steve Worley It was moved by Deputy Mayor Schimmels and seconded to approve Resolution 12-001 adopting the Amended 2012 TIP as presented by staff Mr. Worley mentioned that the TIP is a way to allow us to use the REET (real estate excise tax) funds, which are funds used as grant matching funds and according to State statutes, can only be used on projects in an adopted plan. Mr. Worley also noted that this amendment is strictly for 2012, and that another six-year plan will be forth coming later this year as required by law. Mayor Towey invited public comment; no comments were offered. Vote by Acclamation:In Favor: Unanimous. Opposed:None. Motion carried. 5. Motion Consideration: Lodging Tax Allocations—Mark Calhoun It was moved by Deputy Mayor Schimmels and seconded to approve the allocations of Lodging Tax Funds, Round 2,for calendar year 2012, based on the average of the individual recommendations of the Lodging Tax Committee members, except the recommendation for the Arts Council, which has been deemed ineligible: (1) Valleyfest $10, 200, (2) Spokane Valley Heritage Museum $1,100, (3) Spokane Regional Convention and Visitor's Bureau $258,760, (4) Spokane County Fair & Expo Center $28,240, for a total appropriation of$298,300. Finance Director Calhoun explained the history of the process and what qualifies for funding. Councilmember Hafner asked if the lodging tax is set to sunset in 2013, and Mr. Calhoun said we will continue to collect the 2%tax, but the law governing how the tax may be used will change July 1, 2013; currently the fluids can be spent on operations of agencies and for capital projects of agencies other than the city, but beginning July 1, 2013,the funds will only be able to be spent on promotional activities, such as marketing and advertising. City Attorney Driskell said regarding the changes in the law in 2013, legal can bring information to council later to more fully explain those upcoming changes. Mayor Towey invited public comment. DeeDee Loberg, 18306 4th Avenue: she encouraged Council to take another look at Valleyfest; which she said fills all the intended purposes of the State Statutes; and she asked Council to reconsider the allocation for Valleyfest; she said that moving to a three-day event has been a large endeavor, it means more sponsors; and said they work toward the idea of bringing in people; and said that three-day event hasn't yet reached its full potential; and is the best bet for our valley. Sally Jackson, 11722 East 6th: said she thinks Valleyfest was originally instituted to honor the farmers and orchardists that inhabited this valley; said she feels it necessary to continue that and that they need a Council Regular Meeting 03-27-2012 Page 4 of I0 Approved by Council:04-10-2012 bigger part of the pie than what was allotted; said it would be wonderful to add more dollars to Valleyfest, and she feels this is something that encourages people to visit the valley. There were no further public comments. Councilmember Wick said he has been on the Board for the Fair &Expo Center in the past but no longer serves in the capacity, and said he feels he does not have any bias in this matter. Councilmember Hafner asked Mr. Calhoun if Valleyfest meets the requirements of the auditor and the statute, and Mr. Calhoun said they do, through June 30, 2013. Councilmember Woodard said he supports Valleyfest, and said this is not the first money that has been granted to Valleyfest for the year, that he feels it is disingenuous when $19,000 was granted from the Economic Development part of funds from last fall, and that it was never mentioned when we come to this grant; and said at times he feels it has pitted the valley against Council, and said he doesn't appreciate that, and said he feels all Councilmembers support Valleyfest. Mayor Towey said he has always supported Valleyfest and feels it is a very worthwhile organization, and has worked with the other agencies as well, and said the decision on fund allocations is not an easy one. There was discussion on the procedure and the allocations, and Councilmember Grafos suggested several • changes to the allocations, including $30,000 to VaIleyfest. Councilmember Wick suggested changing the total allocation to $303,720 and allocating the extra funds to the Fair & Expo Center, and Councilmember Woodard said he preferred giving the extra estimated $5,000 to the CVB (Convention and Visitor's Bureau). Councilmember Wick asked about the possibility of increasing the Fair & Expo Center's allocation to about$25,000 which is closer to the Committee's recommendation,and decreasing Valleyfest by $5,000; and Councilmember Grassel agreed and said that Valleyfest had previously received a city grant of$19,000 and the Fair & Expo Center had not. Couneilmember Hafner spoke in support of Valleyfest and he recommended the $30,000 as well to Valleyfest. Councilmember Wick asked if the reserve would support an additional $5,000, and Finance Director Calhoun said he sees no problem in drawing the fund balance down to$118,000. It was moved by Councilmember Wick to amend the motion to allocate $30,000 for Valleyfest; $1,100 to the Museum, $25,720 to the Convention and Visitor's Bureau, and $25,900 to the Fair and Expo Center for a total allocation of$308,720. The motion was seconded. Mayor Towey invited public comments; no comments were offered. Vote on the motion to amend the motion: In Favor: Unanimous. Opposed: None. Motion approved to amend the motion. Vote on the amended motion to approve the allocations of Lodging Tax Funds, Round 2, for calendar year 2012, based on the average of the individual recommendations of the Lodging Tax Committee members, as amended, except the recommendation for the Arts Council which has been deemed ineligible: Valleyfest $30,000, Spokane Valley Heritage Museum $1,100, Spokane Regional Convention and Visitor's Bureau $251,720, Spokane County Fair & Expo Center $25,900,for a total appropriation of$308,720:In Favor: Unanimous. Opposed:None. Motion carried Mayor Towey called for a recess at 7:45 p.m., and reconvened the meeting at 7:58 p.m.. 6. Motion Consideration: STA (Spokane Transit Authority) Agreement, Sidewalk and Transit Accessibility Project#0154-Worley It was moved by Deputy Mayor Schimmels and seconded to authorize the City Manager to execute the STA Agreement allowing the City to utilize New Freedom Funds for the Sidewalk and Transit Stop Accessibility Project#0154. Engineer Worley explained that these funds are targeted toward projects and programs that provide new or enhanced public transportation and public transportation alternatives for individuals with disabilities in rural and urban areas; and eligible capital projects include sidewalks, accessible but stops and shelters. Mr. Worley also said that if we receive funding,we will proceed with as many projects as the funds would allow; that originally we thought there would be more funds available; but we now learn there will be much less than anticipated; he said staff will work down the list until we use up the funds and will look at each location and see what benefits the most pedestrians or transit riders, and said the projects will be coordinated with STA. Mayor Towey invited public comments; no comments were offered. Vote by Acclamation:In Favor: Unanimous. Opposed•None. Motion carried. Council Regular Meeting 03-27-2012 Page 5 of 10 Approved by Council:04-10-2012 7. Motion Consideration: Union Pacific Railroad Agreement for Pines Road Railroad Crossing Improvements—Steve Worley It was moved by Deputy Mayor Schimmels and seconded to authorize the City Manager to execute the Agreement with Union Pacific Railroad for the Pines Road Crossing Improvements, which is part of the Pines/Mansfield Project #0005. Senior Engineer Worley explained that the revised agreement has been agreed to by staff and the Union Pacific Railroad and their attorney. Mayor Towey invited public comment; no comments were offered. Vote by Acclamation: In Favor: Unanimous. Opposed: None. Motion carried. 8.Motion Consideration: Safe Routes to School Call for Projects--Steve Worley It was moved by Deputy Mayor Schimmels and seconded to approve the (1)Bowdish Road, 8`h Avenue to 12th Avenue, (2) Park Road, Sinto Avenue to Indiana Avenue, and (3) Park Road, Marietta Avenue to Buckeye Ave projects for the Safe Routes to Schools grant applications. Mr. Worley said last week staff presented these three recommended projects; said he is aware student from Bowdish Middle School made a presentation about one of the projects we were considering, but said we felt the other project for the elementary school was of higher priority;he said the total amount of dollars has not yet been identified by WSDOT (Washington State Department of Transportation); and said the State has the ability to add money even after setting the initial amount; he said also discussed last week was that a match is not required and can be added if council desires; and said if there were two equally qualified projects, the State would select the one with a local match. Mr. Worley said costs are identified on each project in the council packet material. Mr. Worley asked if Council would like to add a certain percentage as a local match to try to improve our chances of being funded. After discussion on whether to include matching funds, it was determined staff will start preparing the applications, and will bring Council several options for different percentages of matching funds. Mayor Towey invited public comments; none were offered. Vote by Acclamation:In Favor: Unanimous. Opposed:None. Motion carried. 9. Motion Consideration: Pavement Management Plan—Neil Kersten It was moved by Deputy Mayor Schimmels and seconded, to approve the "Pavement Management Plan Update for 2011." Speaking for Mr. Kersten, Senior Engineer Worley explained that this Plan was presented at the retreat and discussed at the last council meeting; that it is a six-year plan with recommendations on how to maintain the pavement for local access,residential and arterials, and outlines the projects to be done in the next six years, as well as identifies projects that have street construction based on the street deterioration. In response to a question from Councilmember Grasse' about the life span of the roads as noted on page 11 of the Plan, Mr. Worley explained that they have changed the method used to build roads, and he addressed the idea of cold joints falling apart and of the change in methods to make a better joint. Mr. Worley also noted that every winter is different, and one year could have more or less impact than another. Vote by Acclamation: In Favor: Unanimous. Opposed.' None. Motion carried. PUBLIC COMMENT: Mayor Towey invited general public comments. Shannon Workman, 2304 N Dollar Road, spoke in favor of directional signs; said her business is off Trent on Dollar Road, and they are hoping that directional signs will be able to be placed on Trent to show where their business is located. ADMINISTRATIVE REPORTS: 10. Funding Options,Pavement Management—Mark Calhoun,Mike Jackson Finance Director Calhoun said that now that the Pavement Management Plan has been approved, discussion can move concerning how to finance street preservation projects. Mr. Calhoun said the ideal outcome would be a plan that allows the City to accomplish as much of the plan as possible through the use of existing financial resources, while at the same time following the existing policy of setting aside 40% of the General Fund balance in excess of$26 million and maintain the existing levels of service in City operations. He said given the magnitude of the financial commitment needed to carry out the Plan, staff believes it is not possible to meet the needs of the plan without an additional sustainable revenue Council Regular Meeting 03-27-2012 Page 6 of 10 Approved by Council:04-10-2012 source, which would have to be addressed by Council likely within the next few years. Director Calhoun said there are two funding options, as noted in the accompanying Request for Council Action form; Option 1 is to continue to follow the City's current policy of setting aside 40% of the general fund balance in excess of$26 million for street capital projects. He said last week the 2011 books were closed and at the end of 2011, the unreserved fund balance in the general fund is approximately $28,050,000; which he said exceeds the $26 million by slightly over $2 million dollars, and said 40% of that is approximately $820,000. Finance Director Calhoun said that $820,000 together with the approximate $750,000 that remains uncommitted in Fund 311, provides $1,570,000 for street preservation in calendar year 2012. He further explained that that figure is on top of another $611,000 already committed by council for street preservation, which is for the Evergreen Road, 16th to 32nd Project; so all total this amounts to a commitment for street preservation of$2,181,000.00 for 2012. Mr. Calhoun said if we were to take 40%of the excess of$26 million, that would leave an unreserved fund balance in the general fund of approximately$27.2 million. Mr. Calhoun said he and Mr. Jackson have discussed this at length and it is their collective recommendation Council seriously consider Option 1 as it preserves the General Fund Balance to address a number of issues that continually come up, one of which is the Sullivan Street Bridge repairs, which is approximately a $20 million project, with half of those funds or $10 million still needed. Mr. Calhoun mentioned there have also been continual discussions of a possible future city hall building, the potential future cost of developing a park if the property on Sprague Avenue is acquired, plus the ongoing maintenance cost of that land; we have the potential investment in an animal control facility, as well as the potential investment in a solid waste facility, and said the State legislature continues to struggle with its budget, and we know that the State's shared revenues will be reduced for our city and all municipalities; and said he estimates a loss of about$300,000 to $500,000 annually. With those issues in mind, Mr. Calhoun said the recommendation is to stay with the current policy of setting aside 40% of the general fund in excess of$26 million. Option 2, explained Director Calhoun, would be to set aside up to 100% of the General Fund balance in excess of$26 million, or an estimated $2,050,000 for street capital improvements and also commit the $750,000 remaining reserves in Fund #311, and that collectively that would provide approximately $2.8 million for street preservation projects in 2012; plus adding the aforementioned $611,000, would bring the 2012 commitment to just over$3.4 million. Mr. Calhoun said this is not the preferred approach as any unforeseen emergency, drop in revenue or unplanned expenditure could cause the ending fund balance to dip below the $26 million. Mr. Calhoun mentioned that this discussion so far has only focused on 2012, and in the development of the 2013 budget and for budgets beyond 2013, he said he would envision there must be ongoing discussion in coming up with additional sustainable revenues to tackle this important, and every expensive, street preservation plan. The cost for the Sullivan Bridge was mentioned and Mr. Jackson added that we know we will need to spend some of the reserve on the Bridge, and we might want to set aside money for a City Hall in the future as well; and said we might want to start to set aside some of that money into specific funds and keep it there; and said that the current policy enabled us to generate this kind of money; and he extended compliments to staff as $1.4 million was returned to the general fund by thrifty department heads not spending all their allocation; and said we have money in the street fund that goes toward street preservation, and said that some of the major projects like the Sprague Overlay is also a preservation project; he said we have talked to Council about trying to more accurately track our total preservation contributions, but it far exceeds the $2,181,000 and is probably closer to four or five million that gets spent on preservation. Mr. Jackson said there was a mild increase in sales tax which was eaten up by the reduction in other revenues, and said we can expect more of that in the future; he said it will hurt to have the allocation of the excise tax going to the state, and that we won't share in the benefit of the privatization of the liquor excess revenues; and overall we were down about $45,000 in revenue. City Finance Director Calhoun agreed with that figure and said there will be a report forthcoming to council April 10 showing that although sales taxes were up a little, several other revenues were down; and stressed that the real return was the departments coming in under budget. Council Regular Meeting 03-27-2012 Page 7 of I0 Approved by Council:04-10-2012 Councilmember Hafner said he knows the importance of Sullivan Bridge, but going back to 2008 we were looking at fourteen to nineteen road segments necessary for 2012 that we haven't funded, and said the cost of not taking proper care of our streets now will cost four to six times more later; and said this is the same story we have heard since 2007; and said we need to put in monies that will be available for road preservation; he said he doesn't care about a city hall if we have bad roads; and said he prefers option 2; and in regard to the$26 million, he asked what percentage do we try to keep for our rainy day fund. City Manager Jackson replied that it really isn't a rainy day; and said we need to be careful as we were previously discussing projects such as the Old Milwaukee Trail, the Gateway Project, and other improvements, and that they all cost money. Mr. Jackson said part of what we try to do is look for ways to generate economic development and increase our revenue through our existing base; and said there must be a balance; that we need to address the problem, and said this is the biggest cut we have taken at the problem in many years; and it is a substantial investment. Mr. Jackson said he would like to look at all the other projects and potential costs with Council, as we know we want to invest in economic development, but we don't know what kind of other projects might surface, adding that if we are successful in getting the Old Milwaukee right-of-way, it will be a substantial cost to put in that trail; that we are still working on the Great Northern, and we are talking about economic development of the Sprague Property; and said all those projects should be considered together; he said the intent is to enhance economic development in bringing in additional revenue into the City. Councilmember Hafner said that may well be correct, but we have "talked the same story since 2007," Mr. Jackson said rather than a rainy day fund, this is our ending fund balance; that as we continue to move into 2013, we need to dedicate some of that funding, which will be entirely at the discretion of Council; he said he feels we all agree we need to start to set aside some money for Sullivan Bridge, and setting aside money for the other projects can be discussed later; he said this is the first year we have set aside this 40% and feels the outcome is outstanding and that the policy is working; and said before long we will be in 2013, and any money left in that reserve will be dedicated to street preservation as per the policy,which also gives us the opportunity to come back and review and discuss the policy. Councilmember Hafner said he feels $26 million is substantial and we can use that other $2.8 million to go toward preservation. Councilmember Grassel asked if the policy was for 15% of the general fund for the reserve, Mr. Jackson said we have a basic minimum of 15% which will not get a municipality out of trouble in a poor economy; and said we have the policy of maintaining our ending fund balance at $26 million; he said we can narrow those policies in the next budget process and determine how much absolutely does the city need in our ending fund balance, based on our Finance Director's calculations and our cash flow situation; and said we could find at that time Council might want to set aside another $2 million toward preservation; he said he feels it would be good to let this policy play out for this year and come back and have that discussion; and said from staff's perspective we are only a month away from starting on the 2013 budget. Mayor Towey said since incorporation, we have never set aside dedicated monies for preservation, even though they knew in 2007 and 2008 what kind of situation we were going to be in in 2012; said he feels we have made substantial forward progress in setting these funds, and said he feels option 1 is the best option in 2012. Mayor Towey said he doesn't feel it would be wise now to dedicate any other monies since we don't know how much money we will need to support Sullivan Bridge; and said we can't rely on receiving the TIGER grant funds; and said we have made substantial progress to correct what they should have done in 2007. Councilmember Grafos said he disagrees; that time is money and $26 million isn't a magic number; if we took the $2 million we would still have the $26 million in reserves; he said currently construction costs are low, he said he feels it prudent to use the $2 million, set the cap at $26 million for 2012; and said we will get additional funding if the public works department can come up with enough projects to even spend that money; and he suggested taking all that money and put it in the road preservation fund;he said it was a fight two years ago to start that fund with $500,000; and now there's another $750,000 in that fund; and said we probably won't even be able to spend all that money; and that pretty soon it will be 2013; but by having those dollars in there we can look at those projects on a realistic basis; and said he prefers option 2. Council Regular Meeting 03-27-2012 Page 8 of 10 Approved by Council:04-10-2012 Councilmember Wick said he favors option 1; said he believes council needs to look into street preservation and investment, he said he doesn't see either of these options as being a fix to implement the end goal to address street preservation; said we can't only live on roads; that road preservation is a key component, said he would hate for us to miss out on some of the trail enhancements, or a future city hall, or some of the other projects; and said he feels we cannot implement full street preservation without an additional or some dedicated fund; and said he prefers not to go to an option 2 without first having a dedicated revenue source. Councilmember Woodard said if we give public works an opportunity to get those projects ready, we could probably get the money spent; and said both options would help generate jobs. Councilmember Hafner said whether option 1 or 2 or another option is selected, there must be sustainable funding in the future; and these current options are to get something started which hasn't been done for many years; and said so long as we can keep the fund balance at$26 million, he sees no reason why we can't start with public works and tell them we like option 2, and "let's go get it," Councilmember Grassel said that during the retreat, the finance committee was asked to look into this more, and since Councilmeinbers Hafner and Grafos are members of the finance committee, and they are recommending option 2, that she also favors option 2; that she agrees construction costs are lower now; and she voiced her concern about councilmembers stating we need to find another sustainable revenue; she said this is a core function of a municipality's budget; and said the taxpayers expect council to use their property tax money, and REST funds and to preserve roads from the general fund; and said former the council already imposed a utility tax and citizens she has spoken with have told her that is already another revenue source. Councilnember Grassel said we need to look at every dime we spend in the general fund; and said she needs to be able to give a good response to citizens why this council cannot fix the roads with the money already being taken from the citizens; and said she is not willing to even consider another revenue source until she knows every stone has been overturned, and we have been as efficient as possible; and said she doesn't feel citizens would support another revenue source; and feels a bond issue on a ballot would likely fail; but said we could do that just to take a poll and see. At 9:00 p.m., it was moved by Deputy Mayor Schimmels, seconded and unanimously agreed to extend the meeting an hour. Deputy Mayor Schimmels said he doesn't believe we will be happy spending every dime we think we can find;he said he is very conservative about match or grant money, and every agency is in some financial problem, and we shouldn't assume we'Il get everything,that he feels we don't stand a chance in getting big grants; and said we should work our way through this year and leave the money in the bank. Councilmember Grafos said in addition to the $26 million, there's another $5 million in the service stabilization fund, so total reserves are about $40 million. City Manager Jackson said some of those are dedicated funds; he said you will always need to have some money in the bank; that it's not really money that's available for discretionary spending; and added that staff would not bring both of these options to council if they felt either one was not responsible; that it doesn't have to do with just the money, but with the concept of starting to spend that ending fund balance down, and said it has been our goal to try to maintain that through this difficult economy; and was something that helped staff conserve spending, and again stated that it was no small feat to come up with that balance; that we have a very small, dedicated staff doing everything it can do be economically responsible. Mr. Jackson said as Councilmember Grassel stated, there is always room for improvement; and said he encourages option 1, but staff will abide by whatever decision council makes. After further brief discussion on the benefits of either option, a show of hands indicated three councilmembers in favor of option 1, and four councilmembers in favor of option 2. Mr. Jackson said he will bring back a motion to council at an upcoming meeting to consider implementing option 2. 11. Sign.Code Regulations—John Hohman,Lori Barlow Community Development Director Hohman explained how some of the sign regulations weren't accomplishing what Council was looking for as council wanted to increase flexibility; that staff has been working toward that and part of that was done a few weeks ago when the landscaping regulations were addressed; and he said the goal is to determine how to make this a better community. Director Hohman said in reflecting on every aspect of how we do business, like code enforcement, there was a lot of Council Regular Meeting 03-27-2012 Page 9 of 10 Approved by Council:04-10-2012 discussion about the proper method and whether there is a way to implement regulations in a more straight-forward practical manner; he said we are currently complaint driven and we need to examine how the code functions and make sure council is comfortable with the direction we are headed; he recommended Council look through the changes proposed as it is staff's intention that we will be enforcing these codes in a practical common sense manner, neither heavy-handed nor looking the other way. Senior Planner Barlow went over the proposed changes as noted in her PowerPoint presentation. At 10:00 p.m., it was moved by Deputy Mayor Schimmels and seconded, to extend the meeting forty-five minutes. In Favor:Mayor Towey, Deputy Mayor Schimmels, and Councilmembers Grassel, Grafos, Wick and Woodard. Opposed.. Councilmember Haflier. Motion carried. There was discussion on reducing the space to allow for more signs and including a spacing requirement, with Councilmember Grafos suggesting 200' instead of 500' and mention from Mayor Towey that we could move forward for a first reading, staff could gather more information between now and then, and amendments could be made later to satisfy any preferred adjustments. Mayor Towey asked if there were any objections to bringing this forward April 10 for a first reading; no objections were voiced. 12.Advance Agenda—Mayor Towey Mayor Towey mentioned that there is no meeting next week; but said there will be no lack of meetings in April as we have a joint meeting with Spokane City April 19, here at city hall. Mayor Towey also mentioned there will be four State of the City Addresses, with the first one next week, April 5, at the Valley Fourth Memorial Church,2303 S Bowdish. INFORMATION ONLY 13. Department Reports, (14) New Washington State Department of Transportation Funding Program, and the (15) Regional Toxics Task Force Agreement were informational only and were not reported or discussed. 16.EXECUTIVE SESSION: PotentiallPending Litigation [RCW 42.30.110(1)(i)] It was moved by Deputy Mayor Schimmels, seconded and unanimously agreed, to adjourn into Executive Session for approximately thirty minutes to discuss potential/pending litigation, and that no action would be taken upon return to open session. Council adjourned into Executive Session at 10:16 p.m. At approximately 10:44 p.m., Mayor Towey declared Council out of Executive Session, immediately after which it was moved by Deputy Mayor Schimmels, seconded and unanimously agreed to adjourn. 4: - c" „...--„, _7----- -- T Comas E. i owey,Mayor ATTES, n 1 A Lt a ti Christine Bainbridge, Ci Clerk 1 Council Regular Meeting 03-27-2012 Page 10 of 10 Approved by Council:04-10-2012 GENERAL PU 1 LIC COMMENT SIGN-IN SHEET SPOKANE VALLEY CITY COUNCIL MEETING DATE: March 27, 2012 GENERAL CITIZEN COMMENTS YOUR SPEAKING TIME WILL GENERALLY BE LIMITED TO THREE MINUTE Please si I n in if you wish to make public comments. NAME TOPIC OF CONCERN YOUR COMPLETE TELEPHONE PLEASE PRINT YOU WILL SPEAK ADDRESS ABOUT dry M8 C Ia/ j3k11 A`.36 �4,�E fay ,i 7o f _ , E. 1 - 1/8' - Air * r r/Q 1t der , V I I/G ✓1 G/a ,,7I7 W l 4'42' -i odo ftvn A ,1 193oze Ey_t,_ 10-uvx.1.t W rr_'a 04,,,.0? SCl_l 3 ic-51:Y1—%,-- — .� Please note that once information is entered on this farm, it becomes a public record.subject to public disclosure. PLANNING COMMISSION MATRIX PROPOSED CHANGES PAGE 3 OF 9 FREE STANDING SIGNS ALLOWED 1 FOR EACH 150' OF STREET FRONTAGE PER PARCEL AND 1 FOR EACH ADDITIONAL 150' OR FRACTION THEREOF IN MIXED USE AND OFFICE ZONES: OR 1 FOR EACH 150' OF STREET FRONTAGE PER PARCEL AND 1 FOR EACH ADDITIONAL 150' OF STREET FRONTAGE OR FRACTION THEREOF IN COMMERCIAL AND INDUSTRIAL ZONES. ALREADY IN THE SIGN CODE IS THE RESTRICTION FOR ONE FREESTANDING SIGN PER PARCEL ON EACH STREET FRONTAGE. SPOKANE VALLEY BLOCK SIZE APPROX: 800'. REMEMBER SARP AND PRE-LOCATED STREETS? EXAMPLES: 800' BLOCK- 1 PARCEL DEVELOPED WITH 3 SEPARATE BUILDINGS ON 800' OF FRONTAGE ALLOCATES 500'STREET FRONTAGE FOR BIG BOX STORE 150' SMALLER RETAIL BUILDING - NO FREE STANDING SIGN ALLOWED 150' SMALLER RETAIL BUILDING- NO FREE STANDING SIGN ALLOWED EXAMPLE: CORNER OF EVERGREEN AND SPRAGUE-VERIZON/BOOST MOBILE STORE CARL'SJR HAMBURGERS SAFEWAY CENTER/ETC WITH SEPARATE SIGN NORTHWEST BEDDING ALL THESE BUILDING COULD BE LOCATED WITHIN ONE PARCEL WITH 500' OF STREET FRONTAGE. A DEEP COMMERCIAL LOT COULD BE DEVELOPED WITH A NUMBER OF BUILDINGS LOCATED OFF THE STREET WITH TWO COMMERCIAL PADS ON EACH CORNER OF THE STREET FRONTAGE AND EACH CORNER BUILDING UTILIZING 150' OF THE 500' OF SPRAGUE FRONTAGE ON THIS SINGLE PARCEL. 4//-6/0 PAINE I `i HAMBLEN . A 1 I U t: N I Y William C. Schroeder (509) 455-6016 will.scllroeder(a),pa ineluambl eel.coal March 27, 2012 Mayor and City Council City of Spokane Valley 11707 H. Sprague Avenue, Suite 106 Spokane Valley, WA 99206 Re: Spokane Valley Heritage Museum Dear Mayor and City Council: The Spokane Valley Heritage Museum was enabled by City of Spokane Valley Resolution 04-003, in 2004. That resolution transferred the historic Opportunity Township Hall to the Spokane Valley Heritage Museum, which has operated there since that time. The Opportunity Township Hall is a part of Spokane Valley's history, having served as the local Grange hall, and being the last standing Township Hall in the State of Washington. Prior to the City of Spokane Valley owning the Opportunity Township Hall, it was owned from 1910 until 1990 by the Opportunity Township, and from 1990 to 2004 by the County of Spokane. In 1996 the Opportunity Township Hall was declared a historic building. The Museum property consists of the Opportunity Township Hall and an adjoining parking lot. In 2009, using some fencing material that had been donated by Gonzaga University, the Museum enclosed its parking lot for three reasons: to permit the installation of outdoor exhibits; to protect patrons (often schoolchildren) from drivers using the Museum's parking lot as a shortcut; and to curb illegal activities occurring on Museum property believed to be caused by the patrons of several nearby businesses. Shortly thereafter, the owners of three businesses which have adjoining parking lots to the Museum commenced a lawsuit, claiming that during the time the Opportunity Township Hall was owned by either the Opportunity Township or the County of Spokane, those business owners had obtained by adverse possession a prescriptive easement to use the Opportunity Township Hall's parking lot as their own. After a full trial, their lawsuit was dismissed with prejudice by the Honorable Judge Tani S. Eitzen, of the Spokane County Superior Court. The Court rejected their claim to a prescriptive easement to the Museum's/Opportunity Township Hall's parking lot, and found, inter alia: that the three businesses (two bars and one hardware store) have full ingress and egress access to their businesses for themselves and their patrons; that those same businesses have sufficient parking for their patrons, especially by virtue of the construction of a new parking lot and the 717 West Sprague Avenue Suite 1200 Spokane,WA 99201 T(509)455-6000 F(509)838-0007 www.painellamblen-conl A Limited Liability Partnership with offices in Spokane,Coeur d'Alene,Priest Rietr and Trl-Cities Spokane Valley Heritage Museum--Page 2 • relocation of the alley behind their property; that traffic coming through Museum property before the donated fencing was installed was fast, dangerous to Museum guests (including school children), and interfered with the Museum's usage of the property; that the owner of a building with a parking lot, like the Museum, does not grant a permanent easement to neighboring businesses by having previously permitted neighbors to use it; and that because the historic Opportunity Township Hall was held by the Opportunity Township and later the County of Spokane in a governmental capacity, a private landowner cannot, as a matter of law, claim a prescriptive easement upon that government property. The Court further found that the business owners presented no credible evidence that the Museum's fencing of its own property caused any economic losses to those businesses, Moreover, the Court called the business owners' accusations of the Museum allegedly violating Resolution 04-003 "red herrings." It has come to our attention that the owners of those three plaintiff businesses have requested that the Council reconsider Resolution 04-003, now that their lawsuit has been dismissed, in a presentation to the Council at the formal meeting conducted on March 13, 2012. For your review, and by way of rebuttal, the Spokane Valley Heritage Museum submits the following information for your consideration: • October 14, 2011 Findings of Fact/Conclusions of Law dismissing the lawsuit against Spokane Valley Heritage Museum with prejudice; • June 9, 2011, Memorandum Opinion of the Honorable Judge Teri S. Eitzen explaining her dismissal of the lawsuit against the Spokane Valley Heritage Museum with prejudice; • A history of the road construction projects and demolition of four buildings, active on Sprague Avenue near the Spokane Valley Heritage Museum in the Spring of 2009; • The Spokane Valley Heritage Museum's 2009 press release concerning the installation of fencing donated by Gonzaga University to protect the Museum property; • The 2009 Report of Spokane Valley City Attorney Mike Connelly concerning the history of the Museum property. The issues alleged to you two weeks .ago have generally already been considered and resolved by the Spokane County Superior Court, as described in the Court's June 9, 2011 Memorandum Opinion. The Spokane Valley Heritage Museum operates within this historic building to preserve the heritage of the Valley, and funds itself as a non-profit organization through donations from the public (including the donation of the pro bona time of attorneys to defend itself from the now-dismissed lawsuit). Spokane Valley Heritage Museum--Page 3 These business owners have had their day in court, and were unsuccessful. The Spokane Valley Heritage Museum requests that the Council disregard this request to re-visit matters already resolved by the Court. Yours sincerely, PA y %LE L / re/ illiam C. Schroeder Counsel for Spokane Valley Heritage Museum • ' I:1S PODOCS13 8 7 1 710 000 1 1LTR10 1 00 8 94 6.DOCX EXHIBIT • FILED OCT 14 2011 THOMAS R reLLOUIST SPOKANE COUNTY CLERK SUPERIOR COURT OF WASHINTON, FOR SPOKANE COUNTY PAT MCINTYRE, a single man; DAVID ) THOMPSON, a single man; and GARY ) PETERS, a single man, ) ) Plaintiffs, ) No. 10-2-00199-1 vs. ) ) FINDINGS OF FACT SPOKANE VALLEY HERITAGE MUSEUM, ) CONCLUSIONS OF LAW dtbfa SPOKANE VALLEY LEGASY FOUNDATION, ) a non-profit corporation. ) ) Defendant. ) ) FINDINGS OF FACT The Court's Memorandum Opinion dated June 9,2011, sets forth the Court's Findings of Fact. CONCLUSIONS OF LAW I. Prescriptive rights are not favored by the. law. II. Plaintiffs demonstrate only three of the five necessary elements of a prescriptive easement, thereby failing to establish prescriptive rights over the Defendant's property. III. In addition, and in the alternative, the property in question is governmental in nature and therefore not subject to an easement by prescription. Page 118 ORDER The Plaintiffs' Complaint for Prescriptive Rights, Ejectment, and Injunction is DENIED, and DISMISSED WITH PREJUDICE. Ale Done in open court this ) 'diday October of 2011 f 4 ''fir. 'In ge TA, S rieCem+ : It %, / ' x(16 Page 119 EXHIBIT B re" • 1 ` FILED JUN -9 2011 THOMAS R FALLOUIST SPOKANE COUNTY CLERK (Clerk's Date Stamp) SUPERIOR COURT OF WASHINGTON /1'4.4,4,,' COUNTY OF SPOKANE `fi1yE cW� . PAT MCINTYRE, a single man;DAVID THOMPSON, a single man; and GARY PETERS,a single man, No, 10-2-00799-1 Plaintiffs, MEMORANDUM OPINION v SPOKANE VALLEY HERITAGE MUSEUM,d/b/a SPOKANE VALLEY LEGACY FOUNDATION,a non- profit corporation, Defendants. • Just west of the corner of Pines Road and Sprague Avenue in the Spokane Valley, owners of three businesses and administrators of a Museum on the south side of Sprague Avenue, facing on Sprague Avenue, find themselves at odds over access and parking space. Decades ago, when . Sprague Avenue had fewer traffic lanes and allowed for on-the-street parking, this block was the site of a number of small businesses. Owner-operators of three of these small family-owned businesses are the Plaintiffs herein. To the immediate west of one of the Plaintiff businesses (Ichabod's) is a parking lot and building . now owned by Defendant Museum and foundation. For years, the three businesses and their . customers have used the Defendant's parking lot as a thoroughfare (long before it was owned by the foundation), to access the three businesses, and for parking for their own uses. To the east of ° the three businesses are a new Rite Aid Pharmacy and a new bank (both erected within the past few years). Each business has parking areas behind their businesses (to the south, at the back entrances). The intersection of Sprague and Pines has been the site of considerable construction and toad work over the past few years. Please see Attachment A for a diagram (not to scale) offered by the court merely to illustrate the relative locations of the businesses and the Museum MEMORANDUM OPINION PAGE 1 OF 13 CI-03-0300(Rev 03/2001) Page 5i and its parking lot in relation to one another, as well as the straight east-west alley in back (to the south of) all the properties. The three Plaintiff businesses have been in their current locations for many years; the Museum has occupied the Museum site only since 2004. This is the three businesses' action for a prescriptive easement, ejectment and injunction. The Plaintiffs allege that the owners and customers of their three businesses have had unhindered access across Defendant's parking lot and property for over fifty years. The Plaintiffs allege loss of business and access due to barriers that the Defendant has erected. Defendant responds that there is no prescriptive easement, and - the Museum needs and is using the parking lot for Museum use such as parking, access and outdoor exhibits. Further, the Museum argues the property has historically been and retains a governmental character and therefore cannot be the subject of a prescriptive easement. Plaintiffs Plaintiff Pat McIntyre has owned Ichabod's, a bar and grill, since June of 1981. The establishment itself has been in business at the current location, 12116 E. Sprague, since 1970. The front door is only an emergency exit. For almost all business purposes the access to Ichabod's is in the back. Ichabod's is open every day fromlI am to 2 am. Mr. McIntyre testified that between 1990 and 2009 Ichabod's served approximately 200 to 225 customers a day. Plaintiff Gary Peters owns Peters' Hardware. The hardware store, located at 12118 E. Sprague, has been in his family since 1940 and he has worked at it since he was eight years old. The property is located between Ichabod's and Dave's Tavern. Mr. Peter's testified that his father drove through the alley on a daily basis since 1946. Additionally, Mr. Peter's testified that the store services between 50-250 customers each day. Due to the fact that the store has a lot of "odd-ball items," many of the customers travel from out of town to come to the store. The store in large part serves customers looking for something unusual or specific, as opposed to being a high traffic enterprise like a larger retail chain, for example. Plaintiff David Thompson owns Dave's Tavern, a bar and grill, located at 12124 E. Sprague. He has lived in the Spokane Valley all his Fife except for four years in college. In the early 1980's he delivered beer for Joey August Distributers, as well as being a warehouse manager for that same business. In fact, he delivered beer to Sig's Tavern, the predecessor to his business. In 1989 he purchased Sig's and re-named it Dave's Tavern. In approximately 1999, he purchased the building between Dave's Tavern and Peters' Hardware, located at 12122 E. Sprague. See page 2 of Ex. I for an aerial view of the area in question. Attachment C. For a while Plaintiff McIntyre rented that space to someone for use as a hair salon, but it is currently vacant.' Mr. Thompson also owns the parking lot to the south of his business, across the alley. In 2007, the City of Spokane Valley "took a piece" of his parking lot and rerouted the alley around the new Rite Aid. See Attachment B for a rough diagram. Plaintiff Thompson testified that it is difficult to rent the space given the parking and access issues. MEMORANDUM OPINION PAGE 2 OF 13 0-03-0300(Rev 0312001) Page 52 All three of the businesses (as well as the unoccupied space where the hair salon used to be) have back entrances only. In the front, facing Sprague Avenue, there is a sidewalk but no parking. Defendant Defendant is a museum, foundation, and non-profit organization, founded primarily by Jayne Singleton. She chose this property as "a perfect place for the museum" based on its history and inclusion of sufficient parking and outdoor space for outdoor exhibits. Its mission is to preserve the history of the Spokane Valley. On March 10, 2004, Defendant obtained the property from the City of Spokane Valley. That property is approximately 25% building and approximately 75% . parking lot. When obtained by the foundation, the property consisted of two lots, but the foundation sought and was granted a vacation of the lot line separating the two lots, so the two lots became one larger lot. On the northwest part of the property is a small stucco building that was formerly the township hall. Background The property now owned by the foundation has an interesting history of ownership. It was originally two lots, lot 10 and lot 11. Ex. 101, Property History Report, as prepared by Pacific Northwest Title, sets forth the history of ownership. Lot 10 was originally owned in 1910 by Modern Irrigation and Land Company and Opportunity Township, Lot 11 was originally owned by Modern. Irrigation and Land Company and C.E. Johnson, Lot 11 changed hands several times and was owned by private parties from 1911 until 1956, at which time it was deeded to Opportunity Township. Ergo, in 1956, the Township came to own both lots 10 and 11. In November of 1990, Opportunity Township quitclaimed the (now Museum) lots to Spokane County. Ex. 101, p. 11. At one point, commencing in April of 2000, Spokane County leased the, space to a picture framing business. That lease did not last long, perhaps around a year. Ex. 101, • p. 9. Witness Donald Secor has been employed by the Spokane County Parks and Recreation Department for thirty-seven years. He testified the old stucco building that is now the Museum was the old Grange Hall. The Museum property (two lots and the stucco building) were managed • and maintained by Spokane County from 1996 to 2004. The property was vacant during that time except for one year when the building was leased as a frame shop. The County did some remodeling over the years, and in 1996 or 1997 the County placed some Jersey (concrete) barriers along the east property line of the county property, between the County property and the Ichabod property. Mr. McIntyre, proprietor of Ichabod's complained, so the County took the' Jersey barriers down. The,perhaps two years later the County put up parking barriers. Mr. Peters testified that the Jersey barriers made the customers mad, and the subsequent parking bumpers kept getting moved around and messed up; several customers got stuck on them. This was during the general time the frame shop operated out of the stucco building. In 2000, the (now Museum) property was rented for approximately one year as a frame shop. The patrons of the three neighbor businesses continued to drive through and use the parking • z The last remaining standing township hall in the state of Washington. MEMORANDUM OPINION PAGE 3 OF 13 C1-03-0300(Rev 03/2001) Page 53 • areas as they wished. The proprietor of the frame shop, a woman named Shelly (per Plaintiff McIntyre's testimony) wanted people to stop driving through the parking area of the frame shop, so she "put up bumpers" approximately 4 feet high and 5 feet long. The customers just pushed them aside and used the area to drive through and park anyway, also per Mr. McIntyre's testimony.3 The past driver of the beer delivery truck, Robert McIntyre (no relation to the owner of Ichabod's, a Plaintiff herein) testified that he delivered beer to Ichabod's and Sig's (now Dave's) bars for seventeen years (1980-1997) and drove through the Museum property and parked there, to deliver beer. He testified that since his retirement in 1997 he has gone to those bars once a week and parked in the Museum lot. Plaintiff McIntyre testified that prior to 2004, "not much went on there" (referring to the Township/Museum property), and at one point it had been offered to him by Spokane County to rent or purchase. For years there was a "for rent" sign posted at the location, placed there by the Spokane County Department of Parks and Recreation. However, witness Jerry Martin, a Modem • Electric employee, testified that has a life-long familiarity with the Museum property and over the years there were occasional ("sometimes") wedding receptions or other events held at the premises. He testified he lives in the area and has used the Museum property to access the businesses for personal and business purposes many times over the years. He testified there was a dance studio there in the 1980's. On May 5, 2003, the Defendant incorporated as Spokane Valley Legacy Foundation, a non-profit corporation. Ex. 4. Amended. Articles of Incorporation for Spokane Valley Legacy Foundation are dated November 17, 2003. Ex. 4. The City of Spokane Valley incorporated in 2003, and Spokane County quitclaimed the two lots to the City of Spokane Valley on January 4, 2004. On January 5, 2004, Spokane County quitclaimed the property to the City of Spokane Valley. Ex.2. On March 10, 2004, the City of Spokane Valley quitclaimed the (Museum) property to the Spokane Valley Legacy Foundation, with an automatic reversion; that the property must be used in conformance with City of Spokane Valley Resolution No. 04-003.4 The title would automatically revert back to the City of Spokane Valley if the conditions were violated. The conditions are: the grantee must use the property as a Museum; the grantee must maintain its corporate or proprietary existence; the grantee must not use its tax exempt status; the grantee must not violate the conditions of Spokane County Resolution 96-1054; the grantee must not 3 Plaintiffs' witness Andrea Owens testified she had been going to Ichhod's three times a week for twenty-three years,and parked on what she now knows to be museum property:she thought that parking area belonged to Ichabod's.She testified that Ichabod's patron continued to park there after the bumpers were put up,even though there were"Rouse's Towing"signs and"Museum Parking"was painted on the pavement itself.However,on cross- examination,Ms.Owens testified that she told Jayne Singleton,the museum director,that if the museum had a function they(the patrons of Ichabod's)would park elsewhere. °Resolution 04-003,Ex. 103,is the Resolution authorizing a conveyance of the Township property to the Spokane Valley Legacy Foundation for use as a public museum.The Resolution lists, inter alia,the following conditions: maintain and operate the property as a public museum. MEMORANDUM OPINION PAGE 4 OF 13 CI-03-0300(Rev 03/2001) - Page 54 • • • • voluntarily mortgage or lien the property; and the grantee must not act contrary to the representations in Resolution No. 04-003. Ex. 2. Jayne Singleton, the Museum director, testified that at the time the property was acquired for ° Museum purposes in 2004 she did not know patrons of the three businesses used the property for - access to the back entrances to their businesses. However, soon after occupancy she noted cars speeding through the property, using it as a thoroughfare. Ichabod's patrons broke off the handrail to the Museum. When the Museum started having events, she placed flyers on cars of the businesses stating they could not park on the Museum property. Ex. 104. Gonzaga University donated fencing to the Museum, In February of 2007, an application for vacation of the lot line behind the businesses was filed with the City of Spokane Valley.5 The ordinance provided for the re-establishment of the alley approximately 26 feet south of its prior location.° A public hearing was held on May 8, 2008. Ex. 2. The City of Spokane Valley Ordinance No. 08-010 includes in its recitations, "WHEREAS, none of the property owners abutting the property to be vacated.frled a written objection to the proposed vacation with the City Clerk,'...." The planning commission determined that the alley should be moved because it would provide financial benefit to the local businesses as well as the public. The Ordinance demonstrates that the area was changing and that there is an alley which runs behind each business. The alley provides ingress and egress to all three of the Plaintiffs' businesses. Per Plaintiff McIntyre's testimony, sometime in the late 2000's the Museum put us a sign that said "MUSEUM PARKING ONLY." The Museum also put notes on people's cars saying, "Don't park here." Mr. McIntyre testified that nothing discouraged customers from parking: • there, however. Also, the Museum sought to discourage squatters from living in the parking lot• in their vehicles- ' 9 Interestingly, during a Museum event Plaintiff Peters put up a sign directing Museum patrons from parking in the hardware parking. In approximately April of 2009, the Museum put up a fence to keep people from using their parking lot as a thoroughfare, as such traffic (which is described as fast) created a danger to patrons of the Museum (including school children on field trips) and interfered with the Museum's usage of their property. 5 Parts of Ex.2 are confusing as they are not labeled as to what they purport to represent.Ex.2 contains legal documents pertaining to the museum property,a boundary line adjustment application by the museum,and related (presumably)but unlabeled charts,and Ordinance No.08-010 dated June 18,2008.To be Fair,Defendant's exhibits are likewise confusing.Defendant's exhibits were not marked so the court's clerk added yellow post-its with numbers to them. 6 See Attachment B for an illustration of roughly how this resulted in curving the alley in back of the businesses so it no longer ran directly east-west. MEMORANDUM OPINION PAGE.5 OF 13 CI-03-0300(Rev 03/2001) ° Page 55 Since the new Rite Aid has been built on the corner of Sprague and Pines, directly to the east of Dave's Bar, patrons of the three businesses have had access to the businesses through the large Rite Aid parking lot, and also been able to park there. On August 3, 2009, the Defendant Museum and foundation was successful in obtaining the aforementioned lot line elimination in anticipation of moving in a one room school house as a permanent exhibit. That fell through, but the Museum anticipated other outdoor exhibits. In 2009, the Defendant blocked off the parking lot. Ex. 2, pages 5-15.7 The purpose was to be able to use the property as one parcel, whereas it had prior legally been two parcels. The Rite Aid construction was completed around October of 2009. Exhibit 101 provides a complete collection of available deeds and quit claims as they relate to lots 10 and 11. None of those documents mention the lots (or either of them) being burdened by any easements in favor of any other property. Prescriptive Easement Prior to a complete analysis of prescriptive lights it should be noted that the Defendants (the Museum) have not been the true owner the lots in question for the requisite ten year period. Any facts or analysis related to what occurred while the Museum was the true owner is superfluous. The issue is whether the prescriptive rights arose while the County of Spokane or the Township of Opportunity was the true owner. In fact, counsel for the Plaintiffs, recognizing this, Museum argued that "(A)11 the elements were satisfied before the Museum came down the path." If a` prescriptive right did arise while the County or Township was the true owner, the prescriptive right would have run with the land and would therefore have been transferred through the quitclaim deed to the Defendants. The rules which apply to adverse possession are equally applicable to prescriptive easements. See Nw. Cities Gas Co. v. W. Fuel Co., 13 Wn. 2d 75, 123 P.2d 771 (1942). The burden of proving a prescriptive right is entirely upon the party whose benefit would be established by such . right. Id. "To establish a prescriptive right of way over the land of another person, the claimant of such right must prove that his use of the other's land has been open, notorious, continuous, uninterrupted, over a uniform route, adverse to the owner of the land sought to be subjected, and with the knowledge of such owner at a time when he was able in law to assert and enforce his ! rights." The Mountaineers v. Wyrner, 56 Wn. 2d 721, 722, 355 P.2d 341, 342 (1960) (citing Nw. Cities Gas Co., 13 Wn. 2d 75, 123 P.2d 771 ). Generally, prescriptive rights are not favored by the law as they necessarily create forfeitures and losses. See Nw. Cities Gas Co., 13 Wn. 2d 75, , • 123 P.2d 771. The foregoing elements need to be present for the entire 10 year statute of limitations. See RCWA § 416.020 (West). • Here, the Plaintiffs demonstrate three out of the five elements of a prescriptive easement; however, they fail to meet the requirements of exclusivity and hostility. As such no prescriptive rights has been acquired over the Defendant's property. 7 Bates numbers were not provided for the multi-'a_e exhibits so pa.e numbers may be a ruxi mate , MEMORANDUM OPINION PAGE 6 OF 13 CI-03-0300(Rev 03/2001) Page 56 • r • Actual Over a Uniform Route ' - • Use is considered "actual" when there is some type of actual use of the land its the form of driving, walking, or the creation of utility lines. See Nw. Cities Gas Co., 13 Wrr. 2d 75, 123 P.2d 771. There must be some type of activity that would actually give rise an easement in general. Id. Although Washington Court's state that the route must also be uniform, there are no documented cases where the court held a prescriptive easement was not apparent due to a lack of uniformity. See e.g., Gray v. McDonald, 46 Wn.2d 574, 283 P.2d 135 (1955) (stating that a uniform route is an element of prescriptive easements), Nw. Cities Gas Co., 13 Wn. 2d 75, 123 P.2d 771 (also stating that a uniform route is an element of prescriptive easements). Here, it is undisputed that the Plaintiffs actually used the servient landowner's land in an actual and uniform manner. The Plaintiffs', along with their customers, continually used the area as an alleged "street" as well as a parking lot. The use was actual because the parties used the land to park cars, drive, and walk over the land. All three of these activities are the type of activities which usually give rise to an easement. The use was uniform since the cars were parking and driving in the same places each and every day. Finally, it is evident that the route was used for the requisite ten year time period. The use was actual over a uniform route. Open and Notorious The Washington Supreme Court has stated that "[t]he words-`open and notorious possession,' as applied to the adverse holding of land by another, mean that the disseisor's claim of ownership must be evidenced by such acts and conduct as are sufficient to put a man of ordinary prudence on notice of the fact that the land in question is held by the claimant as his own." Downie v. City of Renton, 167 Wn. 374, 379, 9 P.2d 372, 374 (1932). Furthermore, "[i]f he [the landowner] has actual notice that will, of course, be sufficient in itself." Id at 379, 374. Although the Defendant explicitly stated that this particular element was not in dispute it is important to explore its merits. The servient landowner in this case was almost certainly on actual notice. The land in question is relatively small and it was undisputed at trial that the area was consistently being used for parking. There is almost no way that the Defendant was unaware that the Plaintiff was using the property, therefore the use was open and notorious. Continuous & Uninterrupted To acquire a prescriptive easement the use of the land must be continuous and uninterrupted.Nw. Cities Gas Co., 13 Wn. 2d 75, 123 P.2d 771. The use "must have been continuous during the necessary period of time and not merely temporal or casual." Downie, 167 Wn. 374, 382, 9 P.2d 372, 375. The continuity requirement may differ greatly depending on the type of property in question and as a result, the Plaintiff needs to show that their use was "of the same character that the true owner might make of the property considering its nature and location." Lee v. Lazier, 88 Wn. App. 176, 185, 945 P.2d 214, 219 (1997). MEMORANDUM OPINION PAGE 7 OF 1.3 CI-03-0300(Rev 03/2001) Page 57 f Here, the three Plaintiffs and their customers continually used the vacant lot as a parking lot as well as a "street."The way in which the Plaintiffs used the lot may have been different than what the Museum would choose for it; however, a parking lot is certainly a conceivable use for the - land. Given the properties nature and location and the fact that the lot was used on a daily basis there is sufficient evidence to establish continuity. Exclusive The Plaintiffs use of the property must be exclusive. See Nw. Cities Gas Co., 13 Wn. 2d 75, 123 P.2d 771. Exclusive in the context of a prescriptive easement means that the dominant landowner used the servient landowner's land in a way that is consistent with a typical easement. See The Mountaineers, 56 Wn. 2d 721, 355 P.2d 341. The use of the land need not be entirely exclusive of the property, but merely the part of the land which is being acquired for the easement. Id. Additionally, multiple adverse users can acquire an easement in common by concurrently using the same easement. Id. In Mountaineers, for example, the Supreme Court found that the plaintiffs (multiple parties) had acquired the use of a roadway through the Defendant's land by driving to and from the road to their land. Id. Here, the use of the easement was arguably exclusive. The Plaintiffs have used the land as an alleged "street" and parking lot, and used it more frequently than did the owner, the County and then the City of Spokane Valley. Spokane County, the true owner of the property, interfered with the businesses' use of the property by putting up Jersey barriers, but then took them down when Plaintiff McIntyre demurred. The Defendant's brief contends that Washington Courts disfavor granting an casement to the public. Although a valid argument, that is not what is occurring here. The easement sought is not for the public at large, but rather for the Plaintiffs and their customers. What the Plaintiffs really want is a private easement with the ability to share their rights with certain members of the public. However, the public at large would not be denied access.The Plaintiffs have failed to establish exclusivity. Hostile To acquire a prescriptive easement, the use of the land must be "hostile or"adverse.' Ntiw. Cities Gas Co., 13 Wn. 2d 75 123 P.2d 771. In Nw, Cities, The Supreme Court of Washington stated that: {P]roof that the use by one of another's land has been open, notorious, continuous, uninterrupted, and for the required time creates a presumption that the use was adverse, unless otherwise explained, and, in that situation, in order to prevent another's acquisition of an easement by prescription, the burden is upon the owner of the servient estate to rebut the presumption by showing that the use was permissive. Id at 84, 776. In contrast, the same court also stated that "[w]hen one enters into the possession of another's property there is a presumption that he does so with the true owner's permission and in subordination to the latter's title. Id at 83, 776. Additionally, "[u]nder the doctrines of both MEMORANDUM OPINION PAGE 8 OF 13 CI-03-0300(Rev 03/2001) Page 58 prescriptive easement and adverse possession, a use is not adverse if it is permissive...[and that] [p]ermission can be express or implied." Kunkel v. Fisher, 106 Wn. App. 599, 602, 23 P,3d 1128, 1130 (2001). Furthermore, The Supreme Court of Washington has stated that implied permissive use is a "well-established rule," and that it "is applicable to any situation where it is reasonable to infer that the use was permitted by neighborly sufferance or acquiescence. Roediger v. Cullen, 26 Wn. 2d 690,707, 175 P.2d 669, 679 (1946). Whether sufferance or acquiescence demonstrates an implied license and subsequently implied permission is a question of fact. Roediger, 26 Wn. 2d 690, 175 P.2d 669 (1946). In Roediger, the court articulated the policy and intent in creating the doctrine of implied permissive use: The law should, and does, encourage acts of neighborly courtesy. A landowner who quietly acquiesces in the use of a path, or road, across his uncultivated land, resulting in no injury to him, but in great convenience to his neighbor ought not to be held to have thereby lost his rights. It is only when the use of the path or road is clearly adverse to the owner of the land, and not an enjoyment of neighborly courtesy, that the land owner is called upon `to go to law' to protect his rights. Roediger v. Cullen, 26 Wn. 2d 690, 709, 175 P.2d 669, 680 (1946) (Citing Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2, 3 (1926)) (emphasis in original). Here, the Court must look at the totality of the circumstances when assessing whether or not the use was adverse for requisite ten year period. The extent to which an action by the Plaintiffs was permitted by the Defendants should take into account the circumstances surrounding those actions. The lot in question was basically vacant for many years. It had ample room to permit parking and create an alleyway. For most of the time the Plaintiffs claim they were using the property adversely the property was owned by the County of Spokane. Given the fact that the County of Spokane owns a considerable amount of real property, allowing three small businesses• to use one of their currently unoccupied properties can certainly be viewed as neighborly acquiescence. If this were a single-family home that, for ten years, allowed three businesses to use 75% of their land the circumstances would be substantially different. Certainly the use of a single-family home's property would be viewed as hostile rather than impliedly permissive. However, since this is property owned (at the time in question) by an entity as large as the County of Spokane, it is more than reasonable to expect such neighborly acquiescence since such acquiescence would not work any hardship on the true owner. One specific example of such acquiescence was when the County of Spokane erected Jersey barriers on the eastern property line of the two lots. After the Plaintiffs had demonstrated their objections to the barriers, the County of Spokane acquiesced and removed them. In addition, it is undisputed that the Museum has only owned the land since 2004, and during • that time the Museum has clearly asserted its rights to quiet title and ejectment. The only period • MEMORANDUM OPINION PAGE 9 OF 13 Ct-03-0300(Rev 03/2001) Page 59 of time where a prescriptive easement could have been attained was when the County of Spokane was the true owner. Easement in Pais "Estoppel in pais requires the claimant to prove that (1) the owner made an admission, statement, or act inconsistent with a claim afterwards asserted, (2) the other party acted on the faith of such admission, and (3) allowing the owner to contradict or repudiate his admission, statement, or act would result in injury to the other party."8 Proctor v, Huntington, 146 Wn. App. 836, 845, 192 • P.3d 958, 963 (2008) affd, 169 Wn. 2d 491, 238 P.3d 1117 (2010) (citing Thomas v. Harlan, 27 Wn. 2d 512, 518, 178 P.2d 965 (1947)). The court further stated that all the elements of an estoppel claim must be demonstrated through "very clear and cogent evidence." Proctor, 146 Wn. App. 836, 192 P.3d 958 (quoting Tyree v. Gosa, 11 Wn. 2d 572, 119 P.2d 926 (1941). Additionally, "[t]he trial court, not a reviewing court, determines whether evidence meets the "clear, cogent and convincing" standard of persuasion, which is met if the evidence makes the • fact in issue."Id. The threshold question in regard to an easement by estoppel is whether the true owner made an admission or statement that would have reasonably induced the other party into believing an easement was created. Id. In Proctor, the court stated that, "these doctrines apply only if Proctor agreed to convey an easement as opposed to a license...[and that] [a] grantor must intend to convey an easement." id. Although the Plaintiffs have demonstrated potential reliance and damages arising out of their alleged belief that they had acquired a permanent right to use the Defendant's land, no such permanent right was ever conveyed to them. The Plaintiffs allege that the Museum property is their sole access to the gas meter, roof drain, HVAC system, and certain doors serving the McIntyre and Thompson properties. At no point have the Plaintiffs demonstrated, through "very clear and cogent evidence," a time when the true owner conveyed a permanent right to use the parking lot. Indeed the Plaintiffs allege that their use of the property was hostile and adverse. Such hostility cannot be consistent with a contention that an implied or express agreement existed to create a permanent right to use the land. One cannot adversely claim rights they allegedly believe to be their own. For the foregoing reasons, an easement in pais does not exist in this instance, • Governmental vs. Proprietary Capacity "[T]itle by adverse possession, or an easement by prescription, cannot be acquired to property held by a municipal corporation for public purposes in its governmental capacity." City of - Benton City v. Adrian, 50 Wn. App. 330, 336, 748 P.2d 679, 683 (1988). Furthermore, "no prescriptive easement can arise over the City's property." Id. However, The Supreme Court of Washington has drawn a distinction between properties owned by the government in a proprietary versus a governmental capacity. See Commercial Waterway Dist. No. 1 of King County v. Permanente Cement Co., 61 Wn. 2d 509, 379 P.2d 178 (1963). The court stated that 8 Washington Court's interchange the doctrines of easement in pais,equitable estoppel,and easement by estoppel.In this opinion I refer to it as an easement in pats.See generally Thomas p. Harlin, 27 Wn.2d 512,518, 178 P.2d 965, 968(1947);Mercer v. State,48 Wn. App.496,500,739 P.2d 703,706(1987) MEMORANDUM OPINION PAGE 10 OF 13 CI-03-0300(Rev 03/2001) • Page 60 land held in a governmental capacity is not subject to adverse possession or prescriptive easement rights whereas land held in a proprietary capacity is. Id; Gustaveson v. Dwyer, 83 Wn. 303, 145 P. 458 (1915).The Court of Appeals has explicitly defined "proprietary capacity:" [Willem land owned by a county is "never devoted to any use, public or otherwise ... the land was held in a proprietary capacity and subject to adverse possession the same as if owned by a private individual." Kesinger-v. Logan, 51 Wn. App. 914, 919, 756 P.2d 752, 755 (1988) of'd, 113 Wn. 2d 320, 779 P.2d 263 (1989) (citing Sisson v. Koelle, 10 Wn. App. 746, 520 P.2d 1380 (1974). The property in question was being used in a governmental capacity. Although the land was vacant at times it is certainly distinguishable from land that was never devoted to any use, It . seems that the court in Sisson looked at whether the land had any intended use at all by stating "public or otherwise," Here, as Donald Secor testified, the land was actively maintained by the Parks Department between the years 1996 and 2004. Prior to 1996, Mr. Secor testified that the building was maintained by the County of Spokane's facilities maintenance department. Mr. Secor testified that the maintenance department had done remodeling work on the property in addition to erecting Jersey barriers on the east property line of the lots. The County demonstrated that it had a plan to preserve and maintain the historic town hall for one reason or another. The City of Spokane Valley only gave the property to the Museunm/Foundation under the conditions that the conveyance would be revoked it were not operated as a Museum (for the benefit of the public). Generally, courts should not question the government's discretionary decisions or the intentions behind those decisions. It seems evident that the County preserved the town hall as a historical . landmark and at times the land was leased in order to generate cash flow. Ultimately the County's successor, the City of Spokane Valley, realized that the property would be well-suited • to museum ownership and quitclaimed both lots to a non-profit organization (the Defendant's Museum). Indeed the fact that the County retained a reversionary interest in the property demonstrates that it sees value in the land and intends to retain a future interest in it. The property is governmental in nature and therefore not subject to an easement by prescription. Damages Though the court finds no prescriptive easement, it will address the Plaintiffs' prayer for damages. Even assuming arguendo that the Plaintiffs could prove the elements of prescriptive casement (which they cannot), and show that the property was not held in a governmental , capacity (which they cannot) the Plaintiffs' theory that loss in business is due to the fence is speculative at best. They do not establish causation. Plaintiffs allege that the jersey barriers and other blockades have encroached on their rights and . caused loss of business, and therefore damages should be assessed. All three business owners • MEMORANDUM OPINION PAGE l I OF 13 GI-03-0300(Rev 03/2001) • Page 61 assert all drops in their business proceeds in the past few years to be directly attributable to the fence that prevents their patrons from driving through the Museum property. Each Plaintiff has provided evidence that their sales have decreased in recent years. The court takes judicial notice of the national as well as local economic recession over the past several years. In addition, there was testimony that during the time period in question there was significant road construction in and around the Pines/Sprague intersection, which disrupted and rerouted traffic for some time. None of the Plaintiffs have demonstrated a loss of sales, with the requisite certainty, which could be fairly attributed to the Defendant's actions rather than externalities. The Plaintiffs have not provided sufficient evidence to demonstrate the alleged damages with reasonable certainty. Red Herrings Plaintiffs attempts to attach some importance to the fact that Jayne Singleton may have • personally sold a few ceramic pieces out of the Museum property. The argument is presumably that since she broke the Resolution 04-003/Resolution 96-1054 condition not to conduct private business out of the Museum, the property should revert to the City of Spokane Valley. This theory fails to benefit the Plaintiffs on two counts: first, if the property reverted to the City of Spokane Valley the Plaintiffs would have no cause of action for a prescriptive easement, ejectment or injunction, as such causes of action does not lie against a municipality or governmental entity ownership of realty if the property is held in its governmental capacity. Secondly, even if Jayne Singleton sold ceramics out of the Museum for private gain, that has' absolutely nothing to do with a claim for prescriptive easement, ejection or injunction (failure to follow a condition in a quit claim deed does not create rights in a third party). Plaintiffs make essentially the same argument as it relates to the condition that the Museum not be used for political fund-raising purposes. On June 23 of an unspecified year, Republican State Senator McCaslin, Republican Representatives Schindler and Crouse hosted a reception at the Museum. Ms Singleton testified the event was a campaign kick-off. Assuming arguendo that the kick-off/fund raiser violated a Resolution condition, it does not create a right in prescriptive easement; and if such a violation occurred and triggered the reversion of the Museum property to the City of Spokane Valley certainly no right to a prescriptive easement would exist in favor of Plaintiffs. Plaintiffs also challenge Jayne Singleton's credibility, based on criminal history. She acknowledges she had a criminal conviction twenty-one years ago. The court found it not relevant to the matter at hand. Also, it is unclear what benefit would inure to the Plaintiffs even if Ms. Singleton were found to be not credible. The facts are not in dispute in any material way. This matter must be determined primarily as a matter of law based on undisputed facts. `. Conclusion The law, in general, disfavors easements by prescription. Indeed the law disfavors prescriptive . • rights entirely. Granting a prescriptive easement over 75% of the Defendant's land and in turn MEMORANDUM OPINION PAGE 12 OF 13 CI-03-0300(Rev 0312001) Page 62 rendering the land basically useless to the true owner would be repugnant to public policy as well as to general notions of fair and substantial justice. In addition, and in the alternative, the Museum property in question has always been used in a governmental capacity. The original two lots were maintained and looked after for many years by the successive governmental entities. Such maintenance was clearly intended to preserve the land for the public, in as it was a historic town hall. As such, prescriptive rights cannot be acquired over government land. Furthermore, the Plaintiffs have also failed to demonstrate the five elements of a prescriptive easement as the elements of exclusivity and hostility are not present. The Defendants and their predecessors provided, through neighborly acquiescence, the license and privilege to use their land. Such a Iicense was permissive and therefore the Defendant's use was not hostile. Finally, no easement in pais was created. The Defendant's allege that their use was hostile and this contention cannot be reconciled with a claim for easement in pais. One cannot be hostile toward rights or land that they believe to be their own. Accordingly, the Plaintiffs' request for a prescriptive easement, an injunction, ejectment, and damages are all denied and their claim dismissed with prejudice. DATED this 9`h day of June 2011. �/tit" , ik '" HONOR• :LI TA' S.EI MEMORANDUM OPINION PAGE 13 OF 13 CI-03-0300(Rev 0312001) • Page 63 SPRAGUE AVE. MUSEUM ICABODS PETER'S SALON DAVE'S BAR BIKE SHOP HARDWARE E. 12124 E. 12122 E. 12222 E. 12114 E. 12116 E. 12118 PARKING LOT _ I ' ALLEY EXHIBIT "A" Page 64 SPRAGUE AVE. MUSEUM IGABOL S PETER'S SALON DAVE'S BAR RITE AID HARDWARE E. 1 2114 E. 12116 E. 12118 E. 12122 E. 12124 E, 12222 PARKING LOT • ALLEY EXHIBIT "B" Page 65 S9 abed , „D„ ,IIHIHX,L 3 n r n $ r ea.l o. T � 9 Z10'TJ' '' O ;y_'* S r ;: 74j.(1.,.. w a L2TO TTZ54 y c _} I1 ,ju O 2 f q 2 .6 3.11+10_1\t- 1, n 1 h u 4 n H_ ry i 4 f 4 r� / ii'; 4521 0106' 1 ; . r•' 1' u ; TAT. 4521.1. 107 N�� 0 a s : to' z3 E _ � • I g• # � xi B _. ' l y ., ,� . s • f` s -.,-1.A", a R d 1 45211.0109' .,ear ,ate . R e o a -I . ff N . I.14PI CU cd fifak �.is { 1� o M r t .• w r 1 v, C [ e � L-7y{'�� � ry 1.v - x � "i `, L ` .12 \1 -1.., fi {{r H J4ri I �+ j ' . o # r E. TTO-CTZ54 e ! v }/ C Z 0 ' Y z T� f ' i Roble Rd r *411. -k04z! - , 4 f ' , f F 4 -„.,4,,,-.'51., i YJP ;ri Si• J s. T'a!1F?'�'4 l' a 2':1 l } d ' I .0-0:17.4 ►W a 4'2-1 1 3,I % ''r{ z i t " ?c,';,3.-t...47.,...:. » 1,.11- ; 1 � � �i �. two ,. • N f i1 ` Xts s _S t C _,a , -, 1 • trl �,3 l L - ._.tom •. Is r i, re -Lf° . i _ r ti' •'� • v {s 1-? s-t a� , �1 °s, •. t 4( EXHIBIT C Construction Projects 2009 The City of Spokane Valley and the WSDOT completed several road, intersection and safety projects in the vicinity of the Spokane Valley Heritage Museum. The following projects occurred during spring/summer of' 2009 closing lanes and access, affecting the Museum and other businesses: 1. Removal of the old center dividing island between east and west bound lanes of Sprague Ave from Pines Rd west to Robie Rd. and placement of new narrower center divider from Pines Rd west to Robie Rd. 2. Removal of asphalt down to the dirt road bed and replacement of new asphalt in the east/west lanes of Sprague Ave west of Pines Rd. 2. Removal of the asphalt and replacement with concrete of the intersection of Pines Rd & Sprague Ave. 3. Demolition and removal of 4 buildings of the old Opportunity Business Block. 4. Construction of the new Rite Aid store on the corner of Pines Rd & Sprague Ave causing lane closures. 5. Relocation of the utility pole in the alley south of the museum closing the alley. 6. Periodic lane closures on the south side of Sprague Ave in front of the first block west of Pines Rd for utility work. EXHIBIT D 6pPORTVNiT�, d (Spokane 'Valley ,1215, 1erifage LAlusseuni April 10, 2009 Press Release After much consideration, the Board of Directors of the Spokane Valley Heritage Museum (SVHN ) has decided to permanently restrict access through the museum property, effective immediately. The SVHM recognizes that change is often challenging. Sprague was once a 2-lane dirt road,at one time you could park in front of the Opportunity Block. Currently underway,The Rite-Aid Project resolves impact on existing businesses. It provides new ingress and egress from Sprague Ave,which will allow traffic to reach the businesses on the east end of the block. The creation of a new road from the south alley to First Ave. provides an additional option for access. The existing east- west alley will remain open to traffic. Significant circumstances contributing to this decision include: • Law enforcement has been notified numerous times of continued immoral and illegal activities taking place on Spokane Valley Heritage Museum Property. Broken alcohol bottles, beer cans and trash regularly litter the museum property. On 2 occasions persons were using Methamphetamine on the museum's back porch Drag paraphernalia has been left on museum property on 7 occasions. Five brakes windows have had to be replaced. The back porch handrail has been driven into and knocked out of the concrete 3 separate `Mmes. Graffiti has bees painted on the museum building 3 tomes.. * Safety—Visitors to the museum include students. Children egg the school buses and are in danger from traffic speeding through museum property. MI visitors are at risk. • The demolition of the Opportunity Block buildings and construction of the Rite-.Aid building will create truck traffic that will jeopardize safety if allowed to drive thin museum property. • Lack of Visitor parking—Parking spaces are taken up illegally by `-' people frequenting kchabod's Tavern or Peace of Mind to the south of the museum property. All museum parking spaces are marked "Museum Parking" and 3 towing signs are on the premises. Effective immediately,all illegally parked cars will be towed. • The museum has plans;to install outside exhibits and landscaping on the museum property. The SWIM worked with the Fire District#1 to ensure fire response will not be compromised. The Museum's plans are compliant with the Fire Marshall's requests. The Spokane Valley Heritage Museum is located in the historic Opportunity Township flail,greeted in 1912. The museum serves the community as the repository for the heritage of the Spokane Valley and as a tourist attraction. The Board of Directors, the volunteers and the business and education community have made s nifcan' t investments of time and donations to establish an extraordinary cultural asset for the community. The Spokane Valley Keritage!Museum Board of Directors Contact: Jayne Singleton 922-4570 { EXHIBIT E OFFICE OF THE CITY ATTORNEY SeoraanO"Nligtzu MICHAEL F.CONNELLY-CITY ATTORNEY CARY P.DRISKELL-DEPUTY CITY ATTORNEY .000Valley 11707 East Sprague Avenue Suite 103 ♦ Spokane Valley WA 99206 509.688.0335 • Fax: 509.688.0299 $ cdtyattomey®spokanevatley.org Memorandum To: Mayor Rich Munson; Members of the City Council; Dave Mercier, City Manager; Mike'Jackson, Deputy City Manager From: Mike Connelly, City Attorney Crb ( CC: Date: April 28, 2009 Re: Spokane Valley Legacy Foundation I have completed my review of the documents pertinent to the transfer of property to the Spokane Valley Legacy Foundation for the purpose of operating a museum. The documents are discussed in chronological order below. There is no mention of any existing easement or the preservation of an easement td allow traffic to circulate between Sprague and the alley located behind the existing buildings in any of the documents. 1. Spokane County acquired Title to Lot 10 and 11 of the Property in question pursuant to Quit Claim Deed on November 20, 1990, from the Opportunity Township. (See title report issued by Transnation,Tab 1) 2. On November 5, 1996, the !Spokane County Commissioners passed a resolution designating the Opportunity Town Hall as a historical landmark and agreed to maintain the Property in a manner consistent with guidelines governing historic buildings. This resolution followed a declaration by the Spokane Historic Landmarks Commission recommending the same. (See Tab 2) 3. On September 2, 2003, the City of Spokane Valley and Spokane County entered into an Interlocal Agreement relating to the ownership, funding, operation and maintenance of parks, open space, recreation Facilities and programs. (See Tab 3.) The Property in question was transferred to the City of Spokane pursuant to this Agreement by Quit Claim Deed. (See Tab 4.) On the same date the County Approved the Interlocal by resolution. (See Tab 5.), 4. On February 3, 2004, the City CCouncil for the City of Spokane Valley received a report indicating that the Spokane Valley Legacy Foundation requested that the City deed the property in question to that nonfprofit organization for the purpose of establishing a local museum. Council set a public hearing for this issue for February 24, 2004. (See minutes, The City of Spokane Valley Request for Action form, and documents submitted by the Spokane Valley Legacy Foundation that were a part of the official clerks record for the February 3,2004,meeting, at Tab 6) 5. Notice of the Public Hearing was published in the Spokesman Review on February 13, 2004. (See Tab 7.) 6. The matter was discussed by Council on February 14, 2004, and brought forward to February 24, 2004, meeting agenda. (See minutes of Study Session dated 2-17-09, Tab 8) 7. On February 24, 2004, the City Council approved Resolution No, 04-003 declaring the property to be surplus and authorizing the convenience to the Spokane Valley Legacy Foundation for use as a public museum. The foundation agreed to: a. Design, construct (including repair and remodel) maintain and operate the property and Opportunity Township Hall as a public museum that displays historical artifacts and I provides historicailcultural information that primarily relates to the historical development of the Spokane Valley; b. Maintain Opportunity Township Hall pursuant to Board of County Commissioner Resolution 96-1054 including the interior of the building in a safe and habitable condition pursuant to local, state and federal law; c. Maintain a 501 (c) (3) non-profit federal tax status and corporate existence in the State of Washington; d. Not voluntarily place a Mortgage or monetary lien which could lead to acquisition of the Property by creditors e. Perform acts that are consistent with the representations made by the Legacy Foundation to the City as set forth in the public record as of the date of adoption of this Resolution;and f. Continue the above described uses on the Property unless otherwise agreed through the express writien authorization of the City Council. (See resolution and minutes of the February 24, 2009,meeting, Tab 9.) 8. On March 11, 2004, the City recorded the Quit Claim Deed conveying the Property to the Spokane Valley Legacy Foundation. The Deed contains an automatic reversion if the Property is not used in conformance with Resolution No, 04-003.(See Tab 10)