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When Recorded Please Return to:
Jefferson County Public Works
Parcel #942902501
COUNTY OF JEFFERSON
STATE OF WASHINGTON
In the Matter of
x
RESOLUTION NO. 98-97
AMENDING a
License to Use Right of Way
Colwell Street
Licensee Ken Merritt & Denise Andlovec
x
x
x
WHEREAS, Ken Merritt and Denise Andlovec, hereinafter LICENSEE,
holds Jefferson County License to Use Right of Way No. 2-11-93 as recorded in
Volume 437, Pages 342-344, and amended April 8, 1996 as recorded in Volume
550, Pages 557-560, records of Jefferson County Auditor, permitting use of the
south half of the right of way of platted Colwell Street in the Plat of Chalmer's
Second Addition, more descriptively shown as attached Exhibit "A" which by this
reference is incorporated herein; and
WHEREAS, the LICENSEES presently have a driveway and parking area
located upon the COUNTY right of way of Colwell Street and request to add an
additional use to this license; and
WHEREAS, it has been discovered that a portion of LICENSEES house,
built in approximately 1925, may have been built within the right of way of Colwell
Street; and
NOW THEREFORE BE IT RESOLVED, that as of this date Ken Merritt's
and Denise Andlovec's authorization, granted under Jefferson County License to
Use Right of Way No. 2-11-93, to use the south half of Colwell Street right of way,
be amended to include that portion of the existing house located on Colwell Street
as depicted on Exhibit "B", which by this reference is incorporated herein; and
NOW THEREFORE IT IS FURTHER AGREED, that items #1, #2 and #3
of License No. 2-11-93 be amended to read as follows:
(1) LICENSE. The LICENSEES shall have a license to use, operate and
maintain a driveway, parking area, 24' x 30' pole building to be used as a
garage/workshop and a portion of the existing house on that portion of
Colwell Street right of way, being 30 feet in width and 120 feet in length,
lying southerly of the center line of Colwell Street and adjoining Lots 1, 2
and 3 of Block 25 of Chalmer's Second Addition, platted in 1910, as
recorded in Volume 3, Page 9 of Plats, records of Jefferson County Auditor,
as shown on attached Exhibit "A" for the purpose of a driveway, parking
area, 24' x 30' pole building, and a portion of the house, and for those
purposes only. Renewal of this license must be applied for within five (5)
years of the date of the Board of County Commissioners approval of this
AUG 2 5 \991
VOL
23 :Arr578
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amendment. If the license is not renewed, expiration will be automatic, and
removal from the right of way of any and all appurtenances may be required.
(2). COST AND EXPENSES. The LICENSEES shall pay all costs and
expenses related to the use, operation and maintenance of the driveway,
parking area, 24' x 30' pole building, and the portion the house sits on.
(3) INDEMNIFICATION. The LICENSEES shall be responsible for the
safe and proper use and maintenance of the driveway, parking area, the 24' x
30' pole building, and area occupied by a portion of the house. The
LICENSEES shall further, defend and hold the COUNTY harmless from all
liability or expense of litigation in connection with any item of actual or
alleged injury or damage related to the LICENSEES' use and maintenance
of these items.
All other items/requirements of License No. 2-11-93 remain applicable and binding
upon the LICENSEE.
ADOPTED THIS ~ DAY OF ~ 1997.
SEAL:
ATTEST:
~~~
Lorna L. Delaney
Clerk of the Board
i VOL
23 rAc;579
VOL 585 ;';'..r 239
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EXHIBIT "A"
Please see plat of Chalmer's No.2 as recorded in Volume 3 of Plats, Page 9, records of
Jefferson County, Washington.
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EXHIBIT "B"
tVOL
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VOL
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David Skeen
JEFFERSON COUNTY PROSECUTING ATTORNEY
Courthouse - P.O. Box 1220
Port Townsend, Washington 98368
Telephone (360) 385-9180 FAX (360) 385-0073
Paul McIlrath, Chief Deputy Prosecutor
Richard Suryan, Deputy Prosecutor
Jue1anne Dalzell, Deputy Prosecutor
Jill Landes, Deputy Prosecutor
Scott Charlton, Deputy Prosecutor
MEMORANDUM
FROM:
Paul E. McIlra
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TO:
DATE:
August 7, 1997
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RE:
Amendment to Merrit License Agreement
You have asked for our review of the second amendment to a licensing agreement,
which is intended to allow a private individual to build on an unopened county
right of way in a plat which was created in 1910. The original 1993 license
agreement permitted the licensee to use the county land for parking and a
driveway; the 1996 amendment licensed the construction of a pole building,
conditioned on the licensee's removal of an existing shed. Now, the agreement is
to allow remodel of a residence which apparently encroaches upon the right of
way. As a preliminary matter, I would like to offer the following discussion to
further guide your consideration of this matter.
This is the third time that the county has been asked to accommodate this land
owner with his property development needs. And since each of the licensing
agreements, by its terms, expires every five years, the licensee and the county are
caught in an awkward and cumbersome process of constant review and extension.
This process does not meet the county's needs and certainly places the licensee in
a difficult and aggravating situation. It would therefore appear that the best course
of action for this particular situation would be to fmd an alternative to the
licensing arrangement currently employeck
lVOL
23 éAG~582
The obvious remedy is to vacate the right of way. I understand from your request
that the right of way has never been opened, is unapproved and in any event would
not even be considered for use by the county because of topographical and
geographic impediments. However, since the right of way abuts a body of water
(Chimacum Creek) it cannot be vacated; unless the purpose of the vacation is to
permit a public use or for industrial purposes. (RCW 36.87.130) Thus, one
consideration is whether there can be any "public use" exception applied to justify
an exception to the statutory prohibition. Moreover, I understand that in the past
Jefferson County has employed a procedure similar to that provided in the statute
relevant to a city's authority to vacate (RCW 35 et seq) that provides for vacation
of water-abutting easements where the legislative authority makes a determination
that the right of way is not needed and alternatives for access to the waterway.
exist. David Goldsmith can better advise you on this issue.
Another consideration is whether the right of way has already been vacated by
operation of law. If this is the case, then a license may not be necessary since the
property would have reverted to the adjoining land O'WIler. A review of certain
relevant cases follows.
RCW 36.87.090 operates to statutorily vacate a street, outside a city and not part
of a plat, which has remained unopened for five years following authorization to
open. Prior to this codification, the provisions of Section 32 of Chapter XIX of
the Laws of 1890, page 603, provided for the vacation of all roads (including ones
in plats) not opened during a five-year period. This law was changed in 1909 to
include language similar to RCW 36.87.090 excluding streets dedicated in any plat
and later court decisions have held that the operation of these two statutes created
a statutory vacation of all platted roads for a five year period prior to 1909.
Bro'WIl v. Olmsted. 49 Wn. 2d 210,212 (1956). See wel v. i un, 16
Wn.2d 557 (1943). However, the case of _Bro'WIl v. Olmstead, 49 Wn.2d 210,299
P .2d 564 further stated that although the public lost its ability to open streets in old
paper plats where the rights of way were statutorily vacated, private easements
were not affected. Moreover, the court held that the county's official action of
vacation served to clear title, and the legal effect of the order was to amend the
plat without impacting the private rights already in existence prior to the vacation.
Finally, Lewis v. Seattle. 174 Wash 219,24 P.2d 427 held that when fee is
transferred to a lot and block, the transfer carries with it fee to the centerline of the
VOL
23 ;Af,=583
roads. However, after official vacation the road must be included in the transfer of
the property.
These cases indicate that the public loses its ability to open roads which were
dedicated, but not developed, in plats subject to statutory vacation. Moreover, a
private easement will continue to exist as long as the owner of the dominant estate
purchases the property in reliance on the plat and obtained title from a common
grantor.
Thus, a number of preliminary issues need to be considered, including whether the
development is a plat or not and if a plat, was it created prior to 1909? The
information you provided indicates that it was filed in 191O, but confmnation of
that would require further inquiry. And even if the development is a post-1909
plat which is not vacated by operation of the statute, it may be that approval for
opening the right of way had previously been given, but not exercised, thereby
creating a potential of statutory vacation. Finally, the question of the public
purpose exception to the prohibition against vacating water-abutting rights of way
should be considered further. All of these questions are policy and factual ones,
and not legal ones, but I would be delighted to discuss them further with you if
you believe they would assist you in formulating an appropriate response.
PEWmm
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David Goldsmith, Dep. Dir. of Pub. Svc
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