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City dodges lawsuit, overturns street vacation

In response to legal challenges submitted by angry neighbors, the Port Orchard City Council has voted unanimously to rescind an earlier ruling that gave Seattle Avenue residents Gil and Kathy Michael the right to purchase a large chunk of city right-of-way.

At the original public hearing on the matter, held May 10, several of the Michaels’ neighbors objected vociferously the Michaels’ request. They said the right-of-way, which runs between the Michaels’ two Seattle properties, must be kept in its natural state in order to protect properties downhill of the site and nearby Blackjack Creek.

The neighbors also said turning over control of the 66-foot by 120-foot chunk of land to the Michaels would eliminate a pass-through point that used to let residents on top of the hill access Bay Street directly.

“There is no safe passage east of Sidney for pedestrians to walk down to Bay Street,” said Melode Sapp, who lives next door to the Michaels.

City attorney Loren Combs also expressed concerns with the city vacating the property and selling it. He cited a state law that prohibits cities from selling rights-of-way that provides access to bodies of water.

Combs said although Bay Street lies between Seattle and Sinclair Inlet, maps indicate Seattle’s right-of-way could be considered water-accessible.

He warned the council against approving the vacation that evening and asked for extra time to review the law and assess its relevance to the Seattle question.

“I am not going to give you a legal opinion that the motion (to approve) is legal,” Combs said, adding the city could open itself up to lawsuits if it incorrectly approved the vacation.

The council, however, decided Seattle couldn’t be called a water-access corridor and voted 3-2 to approve the Michaels’ request.

Several days later, the neighbors apparently borrowed Combs’ advice and hired an attorney to challenge the council’s ruling.

The neighbors’ attorney sent the city a packet of documents outlining Seattle’s status as a water-access street. According to city maps, Seattle — like Harrison Avenue, Sidney Avenue and every other road running north-to-south through downtown — is platted to continue past Bay and connect with the water.

Although most of those street ends are now covered with parks and buildings, Seattle’s technical link with Sinclair Inlet is enough to bring it under the state’s water-access statute.

As a result, the council, at its May 24 meeting, voted to invalidate its earlier decision and take another look at the laws regarding street vacation.

Under state law, cities may not sell rights-of-way along roads that access water if the right-of-way can be used for a long list of purposes, including parks, public view, recreation or education. In her testimony, Sapp had urged the council to consider turning the ravine into a terraced nature trail with interpretive signs and opportunities for birdwatchers to take in the local wildlife.

While the council did not endorse the plan, Councilman John Clauson calculated such a path was feasible and the other council members seemed to feel a site visit would be necessary to see exactly what the city was dealing with.

“I think it might put it into better perspective what we’re talking about than just looking at flat lines on a piece of paper,” said Councilman Ron Rider, who also lives next-door to the Michaels and, as a result, did not vote on the original vacation request.

Under state law, the city must also do an inventory of all its other streets that access Sinclair Inlet. If the council does decide to approve the vacation, it must be able to prove that the property in question is unsuitable for all the uses listed in the statute. That, said Councilman John Clauson, might prove difficult if not impossible.

“Some of these things are so wide open,” he said. “A public view? Certainly it has a view. You’d be hard-pressed to argue that this property isn’t suitable.”

Clauson then added that just about any property on the hill would therefore qualify as “suitable” under the statute, calling into question the practicality of the law.

Because of the amount of new information the city now has to consider, the council agreed to schedule another public hearing as soon as it finishes the necessary inventories.

“That may take a little bit of time,” said city attorney Greg Jacoby.

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