HomeMy WebLinkAboutPublic Works September 9 20081 WHATCOM COUNTY COUNCIL
2 Public Works.and Safety Committee
3
4 September 9, 2008
5
6 Committee Chair Barbara Brenner called the meeting to order at 1:30 p.m. in the
7 Council Chambers, 311 Grand Avenue, Bellingham, Washington.
8
9 Present: Absent:
10 L. Ward Nelson None
11 Laurie Caskey- Schreiber
12
13 Also Present:
14 None
15
16
17 COMMITTEE DISCUSSION
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19 1. DISCUSSION OF THE PROPOSED RESOLUTION ADOPTING THE WHATCOM
20 COUNTY 2009 ANNUAL CONSTRUCTION PROGRAM (AB2008 -321)
21
22 (This item is scheduled for introduction this evening)
23
24 Nelson moved to recommend approval to the full Council.
25
26 Brenner moved to amend to include more money for the purchase of all the
27 easements, as much as possible, on Lincoln Road. She asked how many property owners
28 there are along the road and how many were contacted about purchasing easements.
29
30 Joe Rutan, Public Works Director, stated he couldn't say how many property owners
31 there are or who's been contacted. He's been contacted by landowners on the north side in
32 the past. The annual construction program is the first year of the six -year program. They
33 will know in October if the County will receive $2.1 million in grant funds for the right -of-
34 way acquisition for Lincoln Road. That's why Lincoln Road is on the annual program.
35
36 Brenner stated it doesn't seem like a lot of work has been done to acquire the
37 easements for Lincoln Road. All it takes is a phone call to the property owners to find out
38 who is interested. Rutan stated they didn't know what to ask for until they had a design to
39 90 percent, which they have just gotten recently, since staff last came before the Council
40 regarding the six -year program. They stopped acquisitions due to budget constraints and
41 until they are assured they can move forward with construction.
42
43 Brenner asked why they were told there is a big cost to easements if they didn't
44 know. Rutan stated they made an estimate. Also, the design changed to exclude
45 roundabouts, so the easements were changed. The right -of -way estimate is different now,
46 because they are building a different project.
47
48 Brenner stated add money into the program to start buying the rights -of -way. Rutan
49 stated the project is on the list as a placeholder, in case they get money.
50
51 Frank Abart, Public Works Director, stated that if they include more money for rights -
52 of -way, it will affect the bottom line of the budget. The budget fits, as it is now. They have
Public Works and Safety Committee, 9/9/2008, Page 1
to go find money to buy rights -of -way for a project they can't afford to build if these other
funds don't come through.
Brenner stated they can do the project piecemeal. They don't have to wait to get all
the money together. They can focus on shoulders right now.
Nelson asked the amount of money in the road fund. Abart stated it is
approximately $3 million. That is all they have to deal with any emergencies that come up.
Brenner amended and restated her motion to add $100,000 to start getting
right -of -way easements.
Nelson asked the cost of easements. Abart stated they spent about $1 million in
easements on Pole Road, and that was just an intersection.
Nelson asked the cost of easements purchased on Sunrise Road. Rutan stated they
spent about $1 million. The cost of shoulders must include the drainage system for the
road, not just the area for the road shoulder.
Brenner stated she knows that $100,000 won't solve the problem. It will get them
started. Currently, there is $15,000 for right -of -way. Rutan stated the amendment will
change the total right -of -way amount to $115,000.
Caskey- Schreiber stated that in reality, that amount does nothing. She likes that
they've gone after grant funds. Wait to see if the County is successful in winning those
funds. If not, they will have to come up with a different solution.
Brenner stated she disagrees that $100,000 won't get them anything. They don't
buy every easement at one time. They work with people. Start contacting people to see if
they are interested. Begin to move on their interest. That amount isn't insignificant to get
some movement. Introduce this item with her amendment.
Nelson stated he will probably support the motion to amend. They've promised the
community they would take action, even though it will take time to get acquisitions and
they need grant money. He also agrees that it will take time to get that acquisitions, and
they will need grant funding to do the entire thing. However, they must get the engineering
done. Rutan stated the $15,000 budgeted will modify the existing design and keep the
project alive until they get the money they need to move forward.
Nelson asked if changing the amount budgeted for right -of -way acquisition changes
the grant application. Rutan stated the grant application was for the reduced section. It
doesn't make a difference..
Brenner stated they have more negotiating power with $100,000. They don't
purchase all the necessary right -of -way at the same time. They can purchase it in
increments as they contact people.
Nelson stated this is item two on the annual program. It will get done. They can't
make it happen any faster than possible.
Brenner amended her motion and moved to add $250,000.
Public Works and Safety Committee, 9/9/2008, Page 2
1 Caskey- Schreiber asked the impact to the rest of the road fund. Abart stated it will
2 reduce the ending fund balance at the end of 2009 and 2010. That $3 million cushion is for
3 emergencies and cash flow.
4
5 Caskey- Schreiber asked if they can revisit this again if the grant doesn't go through
6 in No Abart stated they can. They are meeting with different agencies from now
7 until then. By the end of October, they will know a lot more.
8
9 Brenner amended her motion and moved to add $100,000. The County reserve
10 fund is for emergencies, which is beyond the $3 million reserve in the road fund. Her
11 motion will allow them to get started on purchases. Abart stated $3 million goes very fast
12 during an emergency. Keep that in mind.
13
14 Caskey- Schreiber stated she is against the motion. She would rather see if they get
15 the grant. If they don't, they must go back to the table and figure something else out.
16
17 Motion to amend carried 2 -1 with Caskey- Schreiber opposed.
18
19 Rutan stated he will make the changes and bring the amended version to the full
20 Council for introduction at the meeting tonight. He listed the changes that would be made
21 as a result of the amendment.
22
23 Motion to forward to the full Council for introduction, as amended, carried
24 unanimously.
25
26
27 COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL
28
29 1. RESOLUTION IN THE MATTER OF CONSIDERING VACATING A PORTION OF
30 JOHNSON ROAD (AB2008 -322)
31
32 Brenner asked for an explanation of the map.
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34 Joe Rutan, Public Works Department, explained the location. This motion will direct
35 his office to prepare an Engineer's report.
36
37 Brenner asked if it was never opened. Rutan stated the Engineer's report will find
38 that out.
39
40 Brenner stated she's looking for a reason to vacate. She doesn't like vacating
41 property unless it wasn't opened or they know for sure that the County won't use this
42 property for stormwater detention or some other use.
43
44 Dan Gibson, Prosecutor's Office, stated the fact that it wasn't opened doesn't mean,
45 in this instance, that it's vacated or not vacated. It remains right -of -way. Don't confuse
46 this with something that was platted before 1904.
47
48 Rutan stated the road was relocated from this right -of -way to the north. In the mid -
49 to late- 1990's, the road was relocated out of this right -of -way into a new right -of -way, so it
50 was opened at one point.
51
52 Brenner stated look at rights -of -way for more than just potential roads. They need
53 to be considered for the potential of environmental improvements, such as stormwater
Public Works and Safety Committee, 9/9/2008, Page 3
retention. Rutan stated a detention facility related to a roadway and utilities are road
purposes. To vacate, the engineer's report must prove a benefit to the County. Staff will
dig into the archives and County records to write the engineer's report.
Caskey- Schreiber moved to recommend approval to the full Council.
Brenner asked if this could ever be. used for stormwater detention. Rutan stated that
is something he will investigate through the Engineer's report.
Brenner stated be stingy about recommending a vacation if there is any possibility of
using the property for any reason, not just roads.
Motion carried unanimously,
COMMITTEE DISCUSSION
2. DISCUSSION .REGARDING VACATING RIGHTS OF WAY IN THE
GENEVA AREA (AB2008 -326)
Dan Gibson, Prosecuting Attorney's Office, indicated the location on a map. The
property was platted before November 1904. It was platted on November 6, 1889, five
days before statehood. He is confident that this road was not opened. He knows with a fair
degree of confidence that the road wasn't opened from the building history and
photographic evidence of the area.
Brenner stated the aerial photographs didn't happen until the 1950's. Gibson stated
that is correct. The first was taken in 1951. There were few houses in the area, none in
relationship to this road right -of -way area.
Brenner stated there could have been a small horse and buggy path that wouldn't
show up on a photograph 50 years later. Gibson stated that if an area had been cleared,
they can notice it even 50 to 75 years later, by virtue of the maturity of the trees. He has
examined a number of aerial photos, and he has been able to glean the history of an area
because of tree maturity.
Brenner stated it's very hard to prove that it was never used for transportation in the
past. She would like to see how they look at that evidence to know something was never
there. Gibson stated he would say with a fair degree of certainty that no road was opened
in this area, where this right -of -way lies. That leaves him with a practical issue. He is an
attorney for Whatcom County. He has ethical obligations to not delay simply for the sake of
delay. He must make certain his actions are grounded as best he can. That's why he
examines these things the way he does and reaches the conclusions he reaches. That's
what he's done in this case. He has a high degree of certainty that no road was ever
opened in this location. Technically speaking, he could dig in his heels and require someone
to take the County to trial and prove the use of a right -of -way, but he would rather not do
that unnecessarily.
Brenner stated the County has many stormwater detention needs in the Lake
Whatcom watershed. The County has spent millions of dollars on that. If they can find a
use for property now or in the future, the property has a public purpose. Gibson stated his
first obligation is to ascertain whether or not the road was ever opened. That's the basic
Public Works and Safety Committee, 9/9/2008, Page 4
question. If they reach a reasoned conclusion that the road was never opened, then they
don't reach the next question of how the County could use the property.
Brenner stated she agrees with that. She didn't realize that Mr. Gibson Knew with a
certain amount of certainty, from looking at photographs, that it had never been used.
They are allowed to use those as their measurement. Gibson stated that if there was the
slightest evidence that this had been open, they would be talking about something different.
They have no indication whatsoever that this has been open.
Brenner stated she looks at it from the opposite perspective. She's talked to other
counties. They don't feel they have the burden to determine if the road was open. The
other person has the burden to prove whether or not the road was open. Gibson stated he
is clear about who has the burden. However, he has an obligation to examine the evidence.
When he examines the evidence carefully and comes to the conclusion that it has not been
opened, he shouldn't stand in the way.
Brenner stated she agrees, if he feels that certain. Gibson stated his evidence is the
maturity of the forest cover in photographs dated from 1951, again in the 1960's, and again
in the 1970's. Also, there was very little development in this area in 1951, and none
whatsoever in the area of the platted street appears on the map. This was an era when
people oftentimes would purchase property sight unseen, would simply plot a grid on a
hillside, and call it a plat. He sees this often. Platted streets on a piece of paper bear no
relationship whatsoever to the topography upon which they're placed.
Brenner stated that she would like to know what to look for on aerial photographs to
see such evidence. Gibson stated this is a lawsuit against the County. It's a quiet title
action filed against the County. He settles these in consultation with the Executive. He
talks to the County Council about the settlement of a quiet title action as a courtesy.
Brenner asked if the Council has no say in this. Gibson stated the Council indicated
that it isn't interested in seeing these.
Brenner stated she is interested. Gibson stated that's why he's here.
Brenner asked if the Council majority has no authority if it doesn't want to vacate
this. Gibson stated that if the Council majority didn't want to vacate, and wants to instead
obtain it for a County use, he would enter into negotiations to secure that property for the
County. In all likelihood, it would cost the County.
Brenner asked why the County would have to obtain the property if it has a right -of-
way. Gibson stated the County doesn't have a right -of -way. These are deemed to be
vacated by operation of law. The quiet title action is to clear up the paper. Once it has
been reasonably demonstrated to the satisfaction of the parties that the property wasn't
opened, the County simply finalizes what the law has told them is the case. There are two
things here. First, the other party bears the burden. However, the law clearly states that if
something hasn't been opened, it is deemed to have been vacated by operation of law.
Brenner stated she never heard before that they could look at trees 70 years later
and decide for sure that it hadn't been .opened. Gibson stated he didn't say he was sure,
but he has a high degree of certainty that no road was ever opened in this particular
location.
Public Works and Safety Committee, 9/9/2008, Page 5
1 Brenner asked who the two parties are. Gibson stated the two parties are the party
2 seeking the quiet title and Whatcom County.
3
4 Brenner asked if the party of Whatcom County is not the County Council. Gibson
5 stated he acts as the legal representative as Whatcom County. He does that, in this case,
6 at the behest of the Executive.
7
8 Brenner asked if it's the Executive's decision. Gibson stated it is.
9
10 Brenner asked if the County Council has no say in these. Gibson stated that's what
11 it boils down to.
12
13 Caskey- Schreiber stated she doesn't want to see them if the Council has no say.
14 She thought that it would be virtually impossible to prove something was never used as a
15 right -of -way that long ago. Other counties deal with it by assuming roads were opened.
16
17 (Clerk's Note: End of tape one, side A.)
18
19 Gibson stated he makes conservative assumptions to make certain that people in the
20 neighborhood aren't damaged by this action and to make certain that the County isn't
21 parting with property that truly belongs to the County. In those cases it's clear that the
22 property isn't the County's, by virtue of not having been opened, he simply wants to
23 facilitate the quiet title action as quickly as possible.
24
25
26 OTHER BUSINESS
27
28 There was no other business.
29
30
31 ADJOURN
32
33 The meeting adjourned at 2:20 p.m.
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37 Jill Nixon, Minutes Transcription
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WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
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Barbara Brenner, Committee Chair
Public Works and Safety Committee, 9/9/2008, Page 6