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HomeMy WebLinkAboutPublic Works September 24 20021 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. WHATCOM COUNTY COUNCIL Public Works and Capital Projects Committee September 24, 2002 The meeting was called to order at 1:30 p.m. by Committee Chair Barbara Brenner in the Council Chambers, 311 Grand Avenue, Bellingham, Washington, Present: Absent: Laurie Caskey- Schreiber None Sam Crawford Also Present: None COMMITTEE DISCUSSION AND RECOMMENDATION TO COUNCIL 1. DISCUSSION REGARDING THE STATE AUDITOR'S REPORT ON THE COUNTY'S FERRY LANDING PROPERTY (AB2002 -342) Brenner stated they raised concerns in the past because they weren't sure who owns the property. She understood that there was a mix up, but the County didn't want to explore the issue in case it opened up some problems. Jeff Monsen, Public Works Director, stated that at that time, the question was whether or not the lease was valid. At that time, he indicated that there are property ownership issues that are unclear and that should be resolved so they can deal with the long -term stability of the ferry landing. It is unfortunate that the State auditor chose those words. He takes exception with almost everything said. It would lead the reader to believe something that is not the case. Brenner stated the auditor told her that she stands by her position. The County cannot afford to be in a position of ignoring the State. Monsen stated he is in the process of preparing a response to the State auditor. The first issue is the assertion in the letter that the assessor's record indicates the County owns the entire property. The assessor record is by parcel number. It describes one deed the County has in the area. The language in the management letter can lead the reader to the wrong conclusion. One sentence says, "...shows the entire property in the ferry lease as being owned by Whatcom County." That is not true. The legal description associated with the parcel description in the Assessor's Office is about one -fifth of the area described in the lease. It is the recording of a single deed in that area. The assessor's record is silent on the ownership issue. Brenner asked if there are parts of the ferry landing area that are not in the Assessor's Office showing as being owned by the County. Monsen stated the majority of the landing area is not in the Assessor's Office record at all. That is not Public Works and Capital Projects Committee, 9/24/2002, Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. uncommon when dealing with a road right -of -way. The assertion is that the Assessor's Office records somehow describe the area. They don't describe the area. Brenner stated she interpreted the report to mean that the State auditor can't find any documentation of the parcels that the County doesn't own. Monsen stated his basic concern about the management letter is that it implies something that is not true. It asserts that somehow the County must prove it doesn't own it. It also does not distinguish the difference between tideland and upland ownership. The management letter implies that the County owns the tideland as well, which is clearly not the case. Brenner stated the issue is trying to figure out which property the County doesn't own, and who does owns it. Monsen stated he agrees that they need to resolve the issue of land ownership. That can't be resolved without a judge in place. This will take some fairly deliberate legal work and court time to bring it to a final resolution. The management letter creates an image that is not true. The County has substantial land interest in the upland interest leading to the ferry. The County does not hold 100 percent of the interest needed in how it is being used today. Brenner asked Mr. Monsen if he pointed out to the auditor where he believes the County doesn't own land. Monsen stated he did, including the tideland. Brenner asked if the auditor didn't believe him. Monsen stated the auditor doesn't distinguish between the tideland and upland areas. The auditor keeps referring to the entire lease area and the Assessor's Office record as being one in the same, which is not true. Dan Gibson, Senior Civil Deputy Prosecutor, stated the Assessor's Office records show ownership of portions of the uplands by the Lummi Tribe. Those Assessor's Office records are in the same place in the Assessor's Office as the one referred to in the management letter. The records demonstrate that the Tribe owns a portion of the property described in the lease. Brenner asked if that information will be in the response letter. Monsen stated they would include that kind of information to reinforce the County's position that it is not so clear that they can make these kinds of statements. His review of the lease is based partly on assumption and educated guess. The lease describes the entire outer boundary the County desires to use for ferry purposes. The County has a substantial land interest in the upland interest. He can't say what that interest is and what it is not. The lease agreement conveys to the County any interest not already held by the County for the use of the upland area. It does not extinguish any legal interest it has in the upland area. It simply describes an area and the compensations to use the balance of the area. Brenner stated that if the auditor is correct, the County is paying for a lease for property the County already owns. Monsen stated the auditor is not correct. Public Works and Capital Projects Committee, 9/24/2002, Page 2 1 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. Gibson stated an example is a transfer of land in 1986. In 1986, the ferry land road that the County had a right -of -way to was 60 feet wide. It is now 75 feet wide. The land transfer in 1986 describes a portion of land lying east of the ferry landing road. The ferry landing in 1986 is different than it is now. Brenner asked if a reason that the land is not the County's is because these negotiations have increased the easements, so the easements are onto other Lummi property. Gibson stated the County received a quitclaim deed from private owners in 1945 for a right -of -way width of 60 feet wide. Subsequently, 43 years later, they negotiated a width of 75 feet, which included the original 60 feet. That 75 feet was not covered by any prior transfer that is indicated anywhere in the records. Brenner asked if that extra footage is on Lummi property. Gibson stated that extra footage is within that portion that was transferred from the Joneses to the Lummis in 1986. Monsen stated the boundary of the lease is described as taking care of some of those areas clearly owned by the Tribe and that the County had a desire to lease. It also clears up a debate of where the road rights -of -way are located. It puts off the need to resolve that question. The work they are doing in preparation for renegotiation is to find out the underlying property interest, which may require some court action to resolve. Now, they don't know the kind of position to take. Fleetwood asked how they intend to correct the audit manager. Monsen stated the basis used in this finding was that the Assessor's Office record described the entire lease area and that the lease area is entirely owned by the County. That basis is incorrect. Caskey- Schreiber stated Mr. Monsen said the Assessor's Record clearly shows that the County owns only one -fifth of the area described in the lease. Therefore, the County is in fact leasing land that does not belong to the County. Brenner stated that's not necessarily accurate. The Assessor's Office record just shows that one -fifth of the area as being the in the County's ownership. The County owns some of the other area as well, but it may not show on the Assessor's record. Monsen stated a substantial portion of the area used for ferry purposes upland from Gooseberry Point is under property interest control of the County. The majority of that area is based on old right -of -way matters that are not simple to resolve. The tideland is a different matter. The County doesn't own the tidelands. Gibson stated tideland leases with the Bureau of Indian Affairs are from 1963 and were reinforced in 1988. Fleetwood asked if there is still some aspect that might require litigation even if they resolve the issue with the auditor. Monsen stated his response letter would Public Works and Capital Projects Committee, 9/24/2002, Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. recognize that the Tribe does not hold the entire upland area, and therefore the County doesn't need to lease the entire upland area. He can clarify that to bring reality to what the auditor is saying. That is separate from the need to get understanding of the legal land matters for the purpose of renegotiating. The lease agreement defines an area where all that the Tribe can convey to the County are its interest in the area. The County won't pay for things it already holds. It may be debatable about whether or not there was fair compensation. That's not a matter he can debate because none of them were there at that time. Marlene Dawson, 4029 Salt Spring Drive, stated she agreed that the auditor's report is awkward. It appears that the Tribe does not own anything, according to a map from the BIA. They have certain designations for Tribal owned lands. The Assessor's Office records are not correct in a number of different areas. In terms of the tidelands, the lease acknowledges the tidelands as state -owned second class tidelands. The County is paying the Tribe for something that the Tribe doesn't own. Brenner asked if part of the money for the ferry is from the State, and if they are using State money to pay the Lummis for use of State land. Monsen stated the auditor's financial reference is a formal distinction of whether or not it is an allowable expense relative to ferry operations. They raise the question of whether or not this is an allowable expense. That is a different matter than whether or not they are paying the right person. Brenner stated she got the impression that part of the concern is about using State funds to pay for property that is not in Lummi ownership. Monsen stated the distinction is whether or not it is an appropriate operating expense and reimbursable from the State. Brenner asked if they raised that issue because they think it might not be Lummi- owned. Monsen stated they raised it because they were challenging whether or not anyone owned it except for the County. Dawson the two issues are the uplands and the tidelands. When there is a road access or easement, the County can use public condemnation. That is what the government should do. The government shouldn't be held hostage to any kind of lease for any upland road easement. Brenner asked if the County leases any other road easement in the county. The ferry route is the same as a road. Monsen stated this is not just another County road. The lease area is not just for driving access. There are parking and bathrooms also. He cannot think of a location where they are leasing ground. In most cases, the County is trying to acquire land. In those cases, the County had willing sellers. Brenner asked if there was ever an example of someone who didn't want to deal with the County. Monsen stated the County pursued condemnation. In this case, without a willing seller, they negotiate acceptable terms or pursue another Public Works and Capital Projects Committee, 9/24/2002, Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. course of action. Because the lease was signed, he presumed the County officials negotiated to acceptable terms. Brenner asked if the County has the right to sign a lease rather than go through condemnation. Gibson stated this is the way it works with land held by the federal government in trust for the tribes. When Lummi Shore Road was established, a request was made to the BIA. The BIA granted permission in that instance. It is not a matter of simple condemnation because they do not condemn the property of another governmental entity. There is a special relationship in an intergovernmental situation. It is like a quasi- condemnation. They would condemn with the permission of the federal government. Dawson stated the treaty is clear that it establishes the right for road easements. Brenner stated the County chose to do the lease instead of condemnation with permission. Gibson stated that is correct. Brenner asked if the County could do either legally. Gibson stated that is correct. Dawson stated another issue they need to look at is the tideland area. In late December, the County Council voted to intervene in the bulkhead trespass issue at Sandy Point. That would be an issue that would clarify title. A number of other parties also asked to be interveners. The judge threw everyone out, leaving the six bulkhead owners with no resolution. Because the auditor has come forward and spoken with the Council privately about the tideland issue in particular, the Council is in a position to write a letter to the judge asking her to reconsider the County as an intervener. Brenner asked when the auditor met with the Council privately about this issue. Dawson stated it was done during the exit meeting with the State auditor. Caskey- Schreiber stated she was at that meeting as a citizen. She recalls that the Council was only interested in intervening on determining the high water mark. This issue is totally irrelevant. She's not willing to proceed with any kind of letter tying the two together. Brenner agreed. The Council was clear that it didn't want to get involved in anything else except the high water mark. Brenner stated she wanted to see Mr. Monsen's letter when it is ready. They need to move step -by -step on this. Monsen stated that from his review of the situation, the management letter generally describes property described in the lease, which includes tidelands. If property is not in tribal ownership, it belongs to the State of Washington. Therefore, he will ask if the State of Washington is suggesting that this property is theirs. He would like to see that in writing. Public Works and Capital Projects Committee, 9/24/2002, Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. Brenner asked if Mrs. Dawson's proposed letter is relevant to what they are doing. Gibson stated to the extent that the State auditor's letter did not sufficiently distinguish between the different types of property involved and the ownership interests that might apply, the proposed letter from Mrs. Dawson compounds the issue by picking up on that lack of clarity and mixing it with the other issues. Brenner stated Mr. Monsen's response is the first step. Dewey Desler, Deputy Administrator, stated the letter being discussed is really a response to the Executive's request for all the departments mentioned in the management letter. The County received its audit for 2001, and did not receive any findings. This management letter just points out issues that the State auditor thinks the County should examine and work on further. The letter is the intended for the Executive's Office, not the State Examiner. Brenner stated she wanted to see a copy of the letter specifically dealing with the ferry landing. Art Thomas, 2620 Islandview, Lummi Island, stated that anytime they talk about anything, the lease issue comes up. Whatcom County, the State, and fare payers have paid the lease. He spoke with the former County engineer in 1996, who directed him to a lawsuit settlement to answer some of the questions of why. In 1982, there was a consent decree between the Lummi Nation and Whatcom County. One of the agreements was to enter into a lease agreement. He agreed with the State that it isn't an operating expense. It is a cash flow lawsuit settlement for Whatcom County. The whole County benefited, not the State taxpayers and the fare payers. The whole County needs to pay for the lease out of the general fund. There was no base for property ownership when they entered into the lease. The reason for the lease is because the Lummi Nation sued Whatcom County, and it was settled out of court. The State shouldn't settle a lawsuit either. Brenner asked how the entire County benefits. Thomas stated the lease settled the lawsuit against the County, not the Lummi Island residents or state taxpayers. Brenner stated they need to do this one step at a time. First decide who owns the property. If they need to, get the question answered legally. She asked if the County believes that the Lummi Nation owns the upland property in the lease area and the County doesn't own. Gibson stated that is correct. If there is an allegation that the County doesn't have proof of that, the person can go to the Assessor's Office and look at the transfer of the property from the prior owners to the Tribe. Monsen stated he would try to provide clarity to the issues as the auditor described them. Public Works and Capital Projects Committee, 9/24/2002, Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 DISCLAIMER: This document contains the Whatcom County Council or Committee minutes, as approved. However, unless an attested signature page is attached, they are not the final approved minutes. Brenner stated she is interested in being sure that the property the County is leasing is owned or controlled by the Lummi Nation. Monsen stated it would be easy to show that the Tribe owns a portion of the area. It will be difficult to show that 100 percent of the area is owned by the Tribe. Brenner stated they don't need to show 100 percent. If the County shows that they have an interest, then whatever the County negotiates as the price, the County is negotiating for their interest. The County needs just needs to show that the Lummi's have legal control over some of that property. Gibson stated there is a relationship between the 1982 consent decree and the 1988 lease. The property descriptions in the 1982 consent decree do not match the 1988 lease, which covers a larger area. Brenner stated they will find out some of the information they want, but have to do it one step at a time. OTHER BUSINESS There was no other business. ADJOURN The meeting adjourned at 2:17 p.m. Jill Nixon, Minutes Transcription ATTEST: Dana Brown - Davis, Council Clerk WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Barbara Brenner, Committee Chair Public Works and Capital Projects Committee, 9/24/2002, Page 7