HomeMy WebLinkAboutSuperior Court No. 10-2-02395-7 - Build Driveway to Access Property - BLD Letters / Memos - 11/18/2011 •
Superior Court of the State of Washington
For Thurston County
Paula Casey,Judge �� STATE Chris Wickham,Judge
Department No. 1 ;�. " �� Department No.5
Thomas McPhee,Judge , QP Anne Hirsch,Judge
Department No.6
Department No.2 ,,;— �'� De!
Christine A.Pomeroy,Judge f; ,y Carol Murphy,Judge
Department No.3 9� ISO a� Department No. 7
Gary R.Tabor.Judge Lisa L.Sutton,Judge
Department No.4 2000 Lakeridge Drive SW•Building No.Two•Olympia WA 98502 Department No.8
Telephone(360)786-5560•Fax(360)754-4060
November 18, 2011
Michael D. Daudt
Attorney at Law
936 N 34`h St Ste 400
Seattle, WA 98103-8869
Roy E. Morriss
Attorney at Law NOV 2 12011
2920 Colby Ave Ste 214 MASON
Everett, WA 98201-4047 coy ;
Timothy W. Whitehead
Attorney at Law
P.O. Box 639
Shelton, WA 98584-0639
LETTER OPINION
Re: Earl Iddings et al v. Michael Griffith et al
Thurston County Cause No. 10-2-02395-7
Dear Counsel:
This matter came before the court for a bench trial. The trial was held before the
undersigned judge beginning on November 7,2011. Closing arguments concluded on
November 10,2011. The following represents the court's findings and conclusions. The
court has jurisdiction over the parties and the subject matter.
The Plaintiffs, Earl Iddings, Timothy and Pamela Clements, and Chris Powell, and the
Defendants, Michael and Sue Griffith(referred to alone or collectively as Griffith), own
property on or accessed by Dewatto Beach Drive in Mason County, Washington. Most
of the Griffith property is south of Dewatto Beach Drive beyond a steep slope. Griffith
sought to build a driveway off of Dewatto Beach Drive to access their property. Dewatto
Beach Drive is a county road that ends on the Griffith property. The Griffith property
along Dewatto Beach Drive contains a wide, flat area that has been used in the past for
vehicles to turnaround or park.
Marti Maxwell,Administrator•(360)786-5560•TDD (360)754-2933 or(800)737-7894•accessibilitysuperiorcourt@co.thurston.wa.us
It is the policY of the Superior Court to ensure that persons with disabilities have equal and fill access to the judicial system. 0
i
Earl Iddings et al v. Michael Griffith et al November 18, 2011
Thurston County Cause No. 10-2-02395-7 Page 2
Griffith applied for a Road Access Permit from Mason County. The scope of the right of
way along Dewatto Beach Drive on the Griffith property became an issue of dispute in
the process of issuing the Road Access Permit.
In October of 2010,the Plaintiffs filed this action against the Defendants. The Complaint
contains four claims for relief (1)Declaratory Judgment re: Dedication of Right of Way;
(2) Declaratory Judgment re: Prescriptive Easement; (3)Injunctive Relief prohibiting
encroachment and interference with the Right of Way; (4)Writ of Mandamus directing
Mason County to maintain the Right of Way in trust for the public; and (5)Breach of
Trust by Mason County.
The existence and scope of the Right of Way on the Griffith property along Dewatto
Beach Drive was a major factual issue for trial. Although land use actions were
discussed at trial,the matter before this court is not an appeal of any administrative action
of Mason County or the Shoreline Hearings Board.
The Plaintiffs rely on the Beebe Waiver in claiming a 60 foot Right of Way,meaning that
the Right of Way would be 30 feet from the center line of Dewatto Beach Drive. Beebe,
a prior owner of the Griffith land, signed a Waiver of Claim for Damages and Consent to
Locate County Road, in 1957. The document was admitted at trial as Exhibit 30.
Another Waiver of Claim for Damages and Consent to Locate Road, admitted at trial as
Exhibit 32,was signed in 1912. The 1912 Waiver,provided for a 40 foot Right of Way,
meaning that the Right of Way would be 20 feet from the center line of Dewatto Beach
Drive. Although neither waiver was recorded,the Plaintiffs could show the doctrine of
common law dedication applies by proving acceptance of the offer of dedication as
shown by a waiver. Acceptance of a common law dedication may arise(1)by express
act; (2)by implication from the acts of municipal officers; and(3)by implication from
use by the public for the purposes for which the property was dedicated. Sweeten v.
Kauzlarich, 38 Wash. App. 163, 168 (1984).
Neither the Beebe Waiver nor the 1912 Waiver was accepted by express act. More
importantly, the credible testimony at trial showed that there is a lack of clarity whether
the Beebe Waiver, Exhibit 30, even applied to Dewatto Beach Drive. The court finds that
the Plaintiffs have failed to show that the Beebe Waiver was a dedication applicable to
Dewatto Beach Drive at the location at issue in this lawsuit. The court finds that the 1912
Waiver, Exhibit 32, applied to Dewatto Beach Drive on the Griffith property. The waiver
alone does not prove a common law dedication. The Plaintiffs must prove that the
dedication was accepted by municipal officers or by the public, and if so,the scope of
that acceptance.
"An acceptance may be implied from acts of the proper public authorities showing that
dedicated lands are considered and treated as public streets and highways." City of
Seattle v. Hill,23 Wash. 92,98 (1900). The court finds,based upon consistent, credible
testimony at trial, that Mason County did maintain a turnaround on Dewatto Beach Drive
Earl Iddings et al v. Michael Griffith et al November 18, 2011
Thurston County Cause No. 10-2-02395-7 Page 3
on the Griffith property at issue. There was conflicting testimony as to the scope of that
maintenance as measured in distance from the center of the road. A Mason County Fire
Inspector testified at trial that a larger turnaround would be preferable,but the testified
use by emergency vehicles does not support county acceptance of a dedication. Mr.
Thuring's testimony was somewhat vague and not supported by first-hand observation or
measurements. Mr. Clevenger's testimony was similarly inexact. After considering all
of the testimony as well as the exhibits admitted at trial,the court finds that Mason
County maintained the turnaround to a maximum width of 22.55 feet from the center line
of Dewatto Beach Drive. Therefore,that is the extent to which the County accepted the
Beebe dedication.
The public may also accept a common law dedication if it uses the land for the purposes
for which the property was dedicated. Sweeten v. Kauzlarich, 38 Wash. App 163, 168
(1984). There was no testimony that the public ever used an area wider than Dewatto
Beach Drive as it currently exists for a public road. The Plaintiffs and others familiar
with the turnaround area provided consistent but vague testimony as to the historical
public use of the turnaround. Other areas on Dewatto Beach Drive were also used for
vehicles to turn around,but those are now blocked by owner activity. The court finds
that the public has consistently used a wide area on the Griffith property as a turnaround
for several decades.
The testimony regarding the scope of the public use was inexact. The Plaintiffs argue
that the scope of the acceptance by the public as a turnaround can be determined by
reference to a survey prepared by Mr. Ottmar, admitted as Exhibit 27. However,that
document was prepared using information from Mr. Iddings,one of the Plaintiffs, and
significant parts of that exhibit are not based on measurements. Mr. Brush testified very
credibly as to Mason County's process for determining the scope of historical public use.
The court finds that the scope of public use of the area at issue is 22.55 feet from the
center line of Dewatto Beach Drive at its widest as indicated in the survey prepared by
Mr. Bechtold. The survey was admitted as Exhibit 12,with a portion of it admitted as
Exhibit 43. The court found Mr. Bechtold to be a credible witness.
The court finds that the Right of Way at the widest point in the historical turnaround is
22.55 feet from the center line of Dewatto Beach Drive,based on acceptance by Mason
County and public use. This is an area which is technically larger than the 1912 Waiver,
but minimally so. The court concludes that the slightly larger area can be within the
common law dedication found by the court. However,based upon the above, the court
finds that the elements of a prescriptive easement have also been met with regard to the
additional 2.55 feet from the center line of Dewatto Beach Drive at the widest part of the
historical turnaround.
Mason County has made no effort to eliminate or vacate the western 30 feet of Dewatto
Beach Drive on the Griffith property, and this court finds no indication that a vacation of
Dewatto Beach Drive is imminent or planned.
Earl Iddings et al v. Michael Griffith et al November 18, 2011
Thurston County Cause No. 10-2-02395-7 Page 4
The Plaintiffs have not proved that the actions of the Defendants threaten encroachment
or interfere with the Right of Way as determined by the court. Therefore, the court
concludes that the Plaintiffs are not entitled to injunctive relief. The court further
concludes that the Plaintiffs have not proved that Mason County has breached its trust
duties regarding the Right of Way at issue,nor is there any legal basis for issuing a writ
of mandamus to Mason County.
The court requests that counsel for the Defendants prepare findings of fact and
conclusions of law, consistent with the contents of this letter order, in order to complete
this matter. If the parties disagree as to the form of the order,proposed orders must be
noted for presentation no later than December 16, 2011.
Sincerely,
Carol Murphy
Thurston County Superior Court Judge
CM/dkr
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M► Opt COUNTY AUDITOR
A RET1 L. Hw42R
2 REQUEST 0 � 6 2010
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5
6
7 IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON
8 FOR THE COUNTY OF THURSTON
9 EARL IDDINGS,TIMOTHY and PAMELA 1 2, - 0 2 9 5
10 CLEMENTS,and CHRIS POWELL, NO.
Plaintiffs,
11 SUMMONS (20 DAY)
V.
12
MICHAEL and SUE GRIFFITH, MASON
13 COUNTY,MASON COUNTY
DEPARTMENT OF COMMUNITY
14 DEVELOPMENT, and MASON COUNTY
DEPARTMENT OF PUBLIC WORKS,
15
Defendants.
16
17
18 STATE OF WASHINGTON TO: MASON COUNTY
19 A lawsuit has been started against you in the above entitled court by the above named
20 Plaintiffs. Plaintiffs' claims are stated in the written Complaint, a copy of which is served upon
21 you with this Summons.
22 In order to defend against this lawsuit,you must respond to the Complaint by stating
23 your defense in writing, and serve a copy upon the undersigned attorneys for Plaintiffs within
24 twenty(20)days after the service of this Summons,excluding the day of service. If you do not
25 respond,a default judgment maybe entered against you without notice. A default judgment is
26 one in which Plaintiffs are entitled to what they ask for because you have not responded. If you
TERRELL MARSHALL&DAUDT PLLC
Femont Avenue North
SUMMONS(20 DAY)- 1 S ether Washington 98103
TEL.206.816.6603•FAX 206.350.3528
I serve a notice of appearance on the undersigned attorneys, you are entitled to notice before a
2 default judgment maybe entered.
3 You may demand that Plaintiffs file this lawsuit with the court. If you do so,the
4 demand must be in writing and must be served upon Plaintiffs. Within fourteen(14)days after
5 you serve the demand,Plaintiffs must file this lawsuit with the court,or the service on you of
6 this Summons and Complaint will be void.
7 If you wish to seek the advice of an attorney in this matter,you should do so promptly
8 so that your written response,if any,may be served on time.
9 This Summons is issued pursuant to Rule 4 of the Superior Court Civil Rules of the
10 State of Washington.
11
DATED this 25th day of October,2010.
12
13 TERRELL MARSHALL&DAUDT PLLC
14
B .
15 Michael D.Daudt, SBA 425690
16 Email: mdaudt@tmdlegal.com
3600 Fremont Avenue North
17 Seattle,Washington 98103
Telephone: (206)816-6603
18 Facsimile; (206)350-3528
19 Attorneys for the Plaintiffs
20
21
22
23
24
25
26
TERRELL MARSHALL&DAUDT PLLC
SUMMONS(20 DAY)-2 3s Aiu Fremont hln9lon 968103
TEL.200.816.6603•FAX 206.350.3528
t,: ; �hyw�
Zara llOV -3 �-4 ;O
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REQUEST OF ; 1 OC( � 6 2010
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5 �-
6
7 IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON
8 FOR THE COUNTY OF THURSTON
9 EARL IDDINGS,TIMOTHY and PAMELA I
10
CLEMENTS,and CHRIS POWELL, NO.
11 Plaintiffs, SUMMONS (20 DAY)
V. .
12
MICHAEL and SUE GRIFFITH, MASON
13 COUNTY,MASON COUNTY
DEPARTMENT OF COMMUNITY
14 DEVELOPMENT, and MASON COUNTY
DEPARTMENT OF PUBLIC WORKS,
15
Defendants.
16
17
18 STATE OF WASHINGTON TO: MASON COUNTY DEPARTMENT OF COMMUNITY
DEVELOPMENT
19
A lawsuit has been started against you in the above entitled court by the above named
20
Plaintiffs. Plaintiffs' claims are stated in the written Complaint,a copy of which is served upon
21
you with this Summons.
22
In order to defend against this lawsuit,you must respond to the Complaint by stating
23
your defense in writing,and serve a copy upon the undersigned attorneys for Plaintiffs within
24
twenty(20)days after the service of this Summons, excluding the day of service. If you do not
25
respond, a default judgment maybe entered against you without notice. A default judgment is
26
one in which Plaintiffs are entitled to what they ask for because you have not responded. If you
TERRELL MARSHALL&DAUDT PLLC
SUMMONS 20 DAY - 1 Seal Fremont Avenue North
SealBe,Washington 98103
TEL.208.816.6603.FAX 206.350.3528
i
1 serve a notice of appearance on the undersigned attorneys,you are entitled to notice before a
2 default judgment may be entered.
3 You may demand that Plaintiffs file this lawsuit with the court. If you do so,the
4 demand must be in writing and must be served upon Plaintiffs. Within fourteen(14)days after
5 you serve the demand,Plaintiffs must file this lawsuit with the court,or the service on you of
6 this Summons and Complaint will be void.
7 If you wish to seek the advice of an attorney in this matter,you should do so promptly
8 so that your written response,if any,may be served on time.
9 This Summons is issued pursuant to Rule 4 of the Superior Court Civil Rules of the
10 State of Washington.
11
DATED this 25th day of October,2010.
12
13 TERRELL MARSHALL&DAUDT PLLC
14
15 B Michael D.Daudt, SBA#25690
16 Email: mdaudt@tindlegal.com
3600 Fremont Avenue North
17 Seattle,Washington 98103
Telephone: (206)816-6603
18 Facsimile: (206)350-3528
19 Attorneys for the Plaintiffs
20
21
22
23
24
25
26
TERRUL MARSHALL a4t DAUDT PLLC
venue North
SUMMONS(20 DAY)-2 Seed a WashiFremontngton 98103
TEL.206.816.6603.FAX 206.350.3528
i
2
s rF;i-.;.ire p
4
5
6
7 IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON
8 FOR THE COUNTY OF THURSTON
9 EARL IDDINGS,TIMOTHY and PAMELA
10
CLEMENTS,and CHRIS POWELL, NO 2
-
Plaintiffs,
11 SUMMONS (20 DAY)
v.
12
MICHAEL and SUE GRIFFITH, MASON
13 COUNTY,MASON COUNTY
DEPARTMENT OF COMMUNITY
14 DEVELOPMENT,and MASON COUNTY
DEPARTMENT OF PUBLIC WORKS, .
15
Defendants.
16
17
18 STATE OF WASHINGTON TO: MASON COUNTY DEPARTMENT OF PUBLIC
WORKS
19
A lawsuit has been started against you in the above entitled court by the above named
20
Plaintiffs. Plaintiffs' claims are stated in the written Complaint,a copy of which is served upon
21
you with this Summons.
22
In order to defend against this lawsuit, you must respond to the Complaint by stating
23
your defense in writing, and serve a copy upon the undersigned attorneys for Plaintiffs within
24
twenty(20) days after the service of this Summons,excluding the day of service. If you do not
25
respond,a default judgment may be entered against you without notice. A default judgment is
26
one in which Plaintiffs are entitled to what they ask for because you have not responded. If you
TERAELL MARSHALL&DAUDT PLLC
SUMMONS(20 DAY)- 1 asoo le.W" Avenue North
Seattle.
eshfnglon 98103
TEL.206.816.6603•FAX 206,350.3528
1 serve a notice of appearance on the undersigned attorneys,you are entitled to notice before a
2 default judgment may be entered.
3 You may demand that Plaintiffs file this lawsuit with the court. If you do so,the
4 demand must be in writing and must be served upon Plaintiffs. Within fourteen(14)days after
5 you serve the demand,Plaintiffs must file this lawsuit with the court, or the service on you of
6 this Summons and Complaint will be void.
7 If you wish to seek the advice of an attorney in this matter,you should do so promptly
8 so that your written response,if any,may be served on time.
9 This Summons is issued pursuant to Rule 4 of the Superior Court Civil Rules of the
10 State of Washington.
11
DATED this 25th day of October,2010.
12
13 TERRELL MARSHALL&DAUDT PLLC
14
By
15 Michael D.Daudt,WSBK-if25690
16 Email: mdaudt@tmdlegal.com
3600 Fremont Avenue North
17 Seattle,Washington 98103
Telephone: (206) 816-6603
18 Facsimile: (206) 350-3528
19 Attorneys for the Plaintiffs
20
21
22
23
24
25
26
TERRELL MARSHALL&DAUDT PLLC
SUMMONS(20 DAY)-2 8eao Fremont Avenue 8e.Wash nglon 98103
TEL.206.816.6603•FAX 206.350.3528
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7 IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON
8 FOR THE COUNTY OF THURSTON
9 EARL IDDINGS,TIMOTHY and PAMELA
CLEMENTS,and CHRIS POWELL,
10 NO.
11 Plaintiffs, COMPLAINT
V.
12
MICHAEL and SUE GRIFFITH, MASON
13 COUNTY,MASON COUNTY
DEPARTMENT OF COMMUNITY
14 DEVELOPMENT, and MASON COUNTY
15 DEPARTMENT OF PUBLIC WORKS,
Defendants.
16
17
18 Plaintiffs,by and through their attorneys,Terrell Marshall&Daudt PLLC, allege as
19 follows:
20 I. PARTIES
21 1.1 Plaintiff Earl Iddings is an owner of property at the end of and accessed by
22 Dewatto Beach Drive in Mason County and a resident of Belfair,Mason County,Washington.
23 1.2 Plaintiffs Timothy and Pamela Clements are owners of property at the end of
24 and accessed by Dewatto Beach Drive in Mason County and residents of Edgewood,Pierce
25 County,Washington.
26
TERRELL MARSHALL&DAUD7'PLLC
3600 FremeN Avonue NoM
COMPLAINT- 1 Seattle,was**ton 98103
TEL.206.816.6603•FAX 206.350,3528
1 1.3 Plaintiff Chris Powell is an owner of property at the end of and accessed by
2 Dewatto Beach Drive in Mason County and a resident of Maple Valley,King County,
3 Washington.
4 1.3 Defendants Michael Griffith and Sue Griffith are owners of property adjacent to
5 Dewatto Beach Drive,which they propose to develop along and into the public right of way
6 known as Dewatto Beach Drive.The Griffiths are hereinafter collectively referred to as
7 "Griffith."
8 1.4 Defendant Mason County is a Washington municipal corporation, incorporated
9 under the laws of the State of Washington,whose executive and administrative offices are
10 located in Shelton,Washington. Defendants Mason County Department of Community
11 Development and Mason County Department of Public Works are departments of Mason
12 County. All defendants referred to in this paragraph 1.4 are collectively referred to hereinafter
13 as"Mason County."
14 II. JURISDICTION AND VENUE
15 2.1 This Court has jurisdiction over the parties and subject matter of this lawsuit
16 pursuant to RCW 2.08.010.
17 2.2 Thurston County Superior Court is the proper venue for this action pursuant to
18 RCW 36.01,050 because Mason County is a defendant,and Thurston County is one of Mason
19 County's two nearest judicial districts.
20 III. FACTUAL ALLEGATIONS
21 3.1 Plaintiffs own real property located at the end of Dewatto Beach Drive in Mason
22 County. Plaintiffs' properties are accessed through Dewatto Beach Drive.
23 3.2 Defendant Griffith owns a parcel of real property along Dewatto Beach Drive
24 ("Griffith Parcel"),adjacent to Plaintiff Iddings'parcel and adjacent to Dewatto Beach Drive,
25 Defendant Griffith proposes to develop his property along and into the public right of way
26 known as Dewatto Beach Drive.
TEimYLL MARSHALL&DAUDT PLLC
3600 Fremont Avenue North
COMPLAINT-2 Se3tne,Washing Ion 08103
TF:L.206.816.6603.FAX 206,350.3528
1 3.3 The Griffith Parcel was previously owned by Gertrude Beebe. On April 2,
2 1957,Ms.Beebe granted a 60-foot waiver for the right of way that includes Dewatto Beach
3 Drive("Beebe Waiver"). Specifically,Ms.Beebe executed a"Waiver of Claim for Damages
4 and Consent to Locate Road"to Mason County. This document consented to the establishment
5 of a County road and forever relinquished to Mason County a Right of Way 60 feet in width.
6 This waiver is on file with the Mason County Department of Public Works.
7 3.4 As part of the Beebe Waiver,Ms. Beebe dedicated for use as a public Right of
8 Way the 60 foot area that includes Dewatto Beach Drive(the"Dedication").
9 3.5 The 60-foot Right of Way dedication reflected in the Beebe Waiver was
10 accepted by both Mason County and the general public that has continuously used the Right of
11 Way for more than 50 years. Mason County has paved and repaired the pavement on a portion
12 of the Right of Way at public expense. Mason County has also excavated sand and kept clear
13 for vehicle travel a large turnaround space in the Right of Way on Griffith's Parcel. Mason
14 County Public Works road crews have provided regular maintenance of the turnaround for
15 many years. The turnaround space has been used by the public for decades,and there is no
16 other reasonable turnaround area within 2 miles of that location.
17 3.6 Mason County has acknowledged that the turnaround area discussed above is
18 part of the county road Right of Way,pursuant to RCW 36.75.070 and RCW 36.75.080.
19 3.7 Mason County has also acknowledged that the historical width of the turnaround
20 has extended to 30.5 feet from the centerline of the Right of Way.
21 3.8 The area of the Right of Way dedicated to public use by Ms. Beebe is indicated
22 in the"Waiver of Claim for Damages and Consent to Locate Road,"which is on file with the
23 Mason County Department of Public-Works.
24 3.9 The legal description of the portion of the public Right of Way on Griffith's
25 Parcel(the"Right of Way Area"),including that portion used by Plaintiffs and other members
26 of the public as a turnaround, is legally as follows:
TERRELL MARSHALL&DAUDT PLLC
COMPLAINT-3 �eM ngosNorth
sn.w: na 03
TEL.206.816.6603•FAX 206.350,3528
l
THAT PORTION OF GOVERNMENT LOT 6, SECTION 28,
1
TOWNSHIP 27 NORTH,RANGE 3 WEST,W.M., IN MASON
COUNTY,WASHINGTON,DESCRIBED AS FOLLOWS:
2
COMMENCING AT THE SOUTHWEST CORNER OF SAID
3
GOVERNMENT LOT 6; THENCE EAST ALONG THE
4 SOUTH LINE THEREOF 766.53 FEET;THENCE NORTH 327
FEET TO THE SOUTHWEST CORNER OF A TRACT OF
LAND HERETOFORE CONVEYED TO GAYLORD BEEBE
5
AND GLADYS BEEBE, HUSBAND AND WIFE, BY DEED
DATED SEPTEMBER 12, 1958, RECORDED SEPTET ERR
6
15, 1958, IN VOLUME 188 OF DEEDS, PAGE 19,
AUDITOR'S FILE NO. 175040 AND ALSO BEING THE
7
SOUTHEAST CORNER OF THE GRIFFITH PARCEL AS PER
8 A RECORD-OF-SURVEY RECORDED IN VOLUME 36 OF
SURVEYS, PAGE 56, UNDER AUDITOR'S FILE NO.
9 1948874; THENCE NORTH 0°03'28" WEST ALONG THE
EAST LINE OF SAID GRIFFITH PARCEL 190.58 FEET TO
10 THE POINT OF BEGINNING; THENCE CONTUING NORTH
0003'28" WEST 60.17 FEET; THENCE SOUTH 88°13'15"
11 WEST 0.64 FEET; THENCE SOUTH 85115'24"WEST 124.39
FEET TO THE WEST LINE OF SAID GRIFFITH PARCEL;
12 THENCE SOUTH 0003'28" EAST ALONG SAID WEST LINE
60.20 FEET; THENCE NORTH 85015'24" EAST 36.15 FEET
13 TO A POINT ON A 67.97 FOOT RADIUS CURVE,
CONCAVE TO THE NORTH, WHOSE RADIUS POINT
14 BEARS NORTH 31000'57" EAST; THENCE ALONG SAID
CURVE TO THE EAST THROUGH A CENTRAL ANGLE OF
15 71031'05" FOR AN ARC DISTANCE OF 67.97 FEET;
THENCE NORTH 85015'24" EAST 9.44 FEET TO THE
POINT OF BEGINNING.
16
17 3.10 The Right of Way Area legally described in Paragraph 3.9 is depicted on the
18 attached Exhibit A as the"road parcel."
19 3,11 The Griffith Parcel abuts the Right of Way. Plaintiffs, other neighbors in the
20 area,fire personnel,and other emergency personnel have used and enjoyed the Right of Way
21 for vehicular access to Plaintiffs'properties and other neighboring properties for several
22 decades.
23 3.12 In December 2009, contractors hired by Defendant Griffith placed fill materials
24 in the turnaround area in the Right of Way,preventing vehicles from turning around in the
25 traditional Right of Way. Due to Defendant Griffith's excavation and deposit of fill material in
26 the Right of Way,the current total distance from the top of the rock bulkhead along the water
TERRELL MARSHALL&DAUDT PLLC
3000 Fremont Avenue North
COMPLAINT-4 seetue,wesNngton 98103
TEL.206.816.6603•FAX 206.360.3528
1 to the toe of the sand bank on the side of the Griffith Parcel is only 33 feet, which is less than
2 that required for a public turnaround.
3 3.13 The turnaround area abutting the Griffith Parcel is the only turnaround point on
4 the entire Dewatto Beach Drive. Thus,when contractors hired by Defendant Griffith deposited
5 fill materials in the turnaround area,it removed over half the turnaround radius and eliminated
6 all turn around capabilities for the public and for fire and emergency personnel.
7 3.14 Neighbors of Plaintiffs have witnessed an ambulance being forced to back out
8 over a mile from the area of the turnaround abutting the Griffith Parcel due to blockage of the
9 turnaround area by Defendant Griffith.
10 3.15 Defendant Griffith proposes to add fill and build and retaining wall within
11 public Right of Way for purposes of constructing a driveway to the upland portion of Griffith's
12 property. Defendant Griffith's proposed use is incompatible with and interferes with the
13 public's use and enjoyment of the Right of Way,and deprives Plaintiffs, other neighbors,local
14 volunteer fire fighters,and emergency personnel of the use of the only turnaround on Dewatto
15 Beach Drive. In so doing,Defendant Griffith's proposed development creates an unsafe
16 environment should there be a fire or other emergency involving Plaintiffs or other neighbors.
17 Defendant Griffith's proposed elimination of the dedicated Right of Way will cause substantial,
18 ongoing hardship to Plaintiffs.
19 3.16 Upon information and belief,Defendant Griffith has never petitioned the County
20 or any other governmental authority for vacation of the Right of Way.
21 3.17 Plaintiffs Iddings and Powell have owned their parcels since 2008, Since that
22 time,they have continually used the turnaround on Griffith's Parcel,over a uniform route and
23 in a manner that has been open and notorious. Plaintiffs Iddings and Powell have never asked
24 permission to use the turnaround but,instead,have done so under the understanding that it is a
25 public Right of Way, The previous owners of plaintiffs'properties have likewise used the
26 turnaround on Griffith's Parcel for several decades. At all tunes pertinent hereto,the owners of
TERRELL MARSHALL&DAUDT PLLC
3600 Fremont Avenue North I
COMPLAINT-5 SeaBle,Washington 98103
TEL.206.816.6603•FAX 206.350.3528
1 the Griffith Parcel have had actual or constructive knowledge of Plaintiffs Iddings' and
2 Powell's and others' use of the turnaround as a Public Right of Way.
3 3.18 Plaintiffs Timothy and Pamela Clements have owned their parcel since 1959.
4 Since that time,they have continually used the turnaround on Griffith's Parcel,over a uniform
5 route and in a manner that has been open and notorious. Plaintiffs Timothy and Pamela
6 Clements have never asked permission to use the turnaround but,instead,have done so under
7 the understanding that it is a public Right of Way. At all times pertinent hereto,the owners of
8 the Griffith Parcel have had actual or constructive knowledge of Plaintiffs Timothy and Pamela
9 Clements' and others' use of the turnaround as a Public Right of Way.
10 3.19 Other members of the public have also used the turnaround on Dewatto Beach
11 Drive and the Griffith Parcel as a vehicle right of way,over a uniform route and in a manner
12 that has been open and notorious. Upon information and belief,no other members of the public
13 have asked permission to use the turnaround as a right of way but,instead,have done so under
14 a claim of right. Also upon information and belief,at all times pertinent hereto,the owners of
15 the Griffith Parcel have had actual or constructive knowledge of the public's use of the
16 turnaround as a right of way.
17 3.20 As a result of the Dedication by Ms. Beebe,the public gained an easement over
18 the Right of Way,which the County holds as trustee for the benefit of the public,including
19 Plaintiffs, The County's obligation to maintain the Right of Way in trust for the public and
20 prevent interference with the same by a private entity is a proprietary function of the County.
21 3.21 In December 2009,Defendant Griffith applied for a Road Access Permit to
22 construct a driveway in and along the public Right of Way known as Dewatto Beach Drive. In
23 March 2010,Mason County denied the issuance of the permit and refused to approve the
24 driveway design because the retaining wall for the driveway would occupy a critical area of the
25 present Right of Way known as Dewatto Beach Drive. In his letter explaining the denial,
26 Deputy Director of the Public Works Department and County Engineer Robert A. Thuring
TERULL MARSHALL&DAUDT PLL r
3600 Fremont Avenue North
COMPLAINT-6 Seattle,Washington 98103
TEL.206.816.8603.FAX 206.350.;1528
I emphasized that the area in question was a natural concave section of the bluff that provided a
2 space adjacent to the road that had been used for many years by the public for vehicles to turn
3 around. In addition,Mr.Thuring explained that Mason County Public Works road crews'
4 regular maintenance of the turnaround supported the fact that the area was a public right of
i
5 way. Mr.Thuring also demanded that Defendant Griffith have the fill material removed from i
6 the turnaround area without further delay.
7 3.22 Defendant Griffith then removed some of the excavated material from the
8 turnaround area adjacent to his property. Mason County Department of Public Works
9 inspected the removal and concluded that the site had not been restored to its historical
10 dimensions. An April 20,2010 letter from Mr.Thuring to Mr. Griffith states that"[a]t its full,
11 historical width,we have been able to easily turn dump trucks[in the turnaround],which is not
12 possible now." The letter stated that"more excavation of loose material is needed to fully
13 restore the turn-around." Mr.Thuring's letter also reaffirmed that the County could not issue a
14 Road Access Permit and that additional work was needed to completely clear the turnaround
15 area.
16 3.23 Defendant Griffith refused to remove the material his contractor had deposited
17 into the turnaround.
18 3.24 In late September,2010,Defendant Mason County posted a sign indicating that
19 the Right of Way ends approximately 30 feet east of the western boundary of Griffith's Parcel,
20 despite the fact that the Right of Way extends across the entirety of Griffith's Parcel as
21 1 reflected in the Beebe dedication and the consistent,open and notorious use by neighboring
22 landowners and the public for over 50 years. Mason County has not followed the statutory
23 right of way vacation process to eliminate any portion of the public Right of Way on Griffith's
24 Parcel. If Mason County illegally terminates the eastern portion of the public Right of Way on
25 Griffith's Parcel,then neighboring property owners will lose access to their properties from the
26 public Right of Way.
TERRELL MARSHALI.&DAUDT PLLC
3600 Fremont Avenue North
COMPLAINT-7 Seattle.Washington 98103
TEL.200.81 G.6603.FAX 206.350.3528
i
1 3.25 Despite the evidence that Defendant Griffith's proposed development would
2 encroach on the well established public Right of Way, despite the fact that Defendant Mason
3 County had previously denied a Road Access Permit for the reasons described in paragraphs
4 3.19 and 3.20, and despite the fact that neighboring property owners would lose their public
5 1 Right of Way access to their properties,Defendant Mason County reversed course and granted
6 Defendant Griffith's Road Access Permit on October 20,2010,clearing the way for Griffith to
7 build within the public Right of Way and thereby eliminate a large portion of the public Right
8 of Way without having petitioned for vacation of the Right of Way.
9 IV. FIRST CLAIM FOR RELIEF:DECLARATORY JUDGMENT
10 RE: DEDICATION OF RIGHT OF WAY
11 (Plaintiffs v.All Defendants)
4.1 Realle ag tion. Plaintiffs reallege and incorporate paragraphs 1 through 3.25 of
12
13 this Complaint as though fully set forth herein.
14 4.2 Real and justiciable disputed issues exist amongst the parties with respect to: (1)
15 whether the Right of Way was validly dedicated by Gertrude Beebe and accepted by the public;
16 (2)whether Defendant Griffith's proposed development interferes with Plaintiffs',neighboring
17
property owners', and the public's use of the Right of Way;(3)whether Defendant Griffith's
18
proposed development interferes with Plaintiffs'_rights as an owner of property abutting the
19
Right of Way and with neighboring property owners'rights to access their property from the
20
Right of Way; (4)whether,in order to develop within the Right of Way as proposed,Defendant
Griffith should be required to obtain a vacation of the Right of Way; (5)whether such vacation
21
is inappropriate due to the necessity of the turnaround in the Right of Way for the use of
22
Plaintiffs,other neighbors,road crews,and emergency personnel and due to the need of
23
24 neighboring property owners to access their property from the Right of Way; (6)whether
Defendant Mason County should be ordered to restore to the public the entire Right of Way
25
area dedicated by Gertrude Beebe, and the full turnaround area on the Griffith Parcel;(7)
26
whether Defendant Mason County improperly and unlawfully vacated for Griffith's private use
TERRELL MARSHALL&DAUDT PLLC
COMPLAINT-8 SeattlFremont
,W shingtton 98103
TEL.206.816.6603.FAX 206.350.3528
I approximately 30 feet of the public Right of Way at the end of Dewatto Beach Drive; (8)
2 whether Defendant Mason County should be ordered to restore to the public the approximately
3 30 feet of the public Right of Way at the end of Dewatto Beach Drive; and(9)whether
4
Defendant Mason County should be ordered to deny the Road Access Permit and halt
5 construction of the driveway because it would amount to an unlawful vacation of a public Right
6 of Way.
7 4.3 Declaratory Judgment. Plaintiffs are entitled to a declaratory judgment
8 resolving the issues outlined above.
9 V. SECOND CLAIM FOR RELIEF:DECLARATORY JUDGMENT RE:
PRESCRIPTIVE EASEMENT
10
(Plaintiffs v. Griffith)
11
5.1 Realle ag tion. Plaintiffs reallege and incorporate paragraphs 1 through 4.3 of
12
this Complaint as though fully set forth herein.
13
5.2 Plaintiffs and other members of the public have used the portion of the Right of
14
Way Area on Griffith's Parcel in a manner that has been: (a)open and notorious; (b)over a
15
uniform route;(c) continuous and uninterrupted for over ten years; (d)adverse to the owners of
16
the Griffith Parcel;and(e)with the knowledge of the owners of the Griffith Parcel at a time
17
when they were able in law to assert and enforce their rights.
18
5.3 Declaratory judgment, Plaintiffs are entitled to a declaratory judgment finding
19
and concluding that,as a result of the foregoing,Plaintiffs,neighboring property owners and/or
20
other members of the public have acquired a prescriptive easement over the entire Right of
21
Way Area on Griffith's Parcel
22
VI. THIRD CLAIM FOR RELIEF: INJUNCTIVE RELIEF
23 (Plaintiffs v.All Defendants)
24 6.1 Reallegation. Plaintiffs reallege and incorporate paragraphs 1 through 5.3 of
25 this Complaint as though fully set forth herein.
26
TERRELL MARSHALL&DAODT PLLC
COMPLAINT-9 3600 Fremont Avenue North
Seattle,Washington 98103
TEL.206.816,6603•FAX 206,350.3528
1 E. For a declaratory judgment finding and concluding that such vacation would be
2 inappropriate due to the necessity of the turnaround in the Right of Way Area for the use of
3 Plaintiffs,other neighbors,road crews, and emergency personnel and due to the necessity of the
4 Right of Way Area for neighboring property owners to have access to their property;
5 F. For a declaratory judgment finding and concluding that,as neighboring property
6 owners and members of the public,Plaintiffs and other members of the public are entitled to
7 full use of the Right of Way Area;
8 G. For a declaratory judgment finding and concluding that,to the extent that there
9 was not a valid dedication extending the Right of Way Area to include the turnaround area,
10 Plaintiffs and the public have nevertheless gained a prescriptive easement over the turnaround
11 area of the Right of Way Area;
12 H. For a declaratory judgment that Defendants violated RCW 35.79 by attempting
13 to construct(Defendant Griffith)and allowing construction(Defendant Mason County)of the
14 proposed driveway without Defendant Griffith having filed a petition for vacation of the Right
15 of Way;
16 1. For a temporary restraining order against Defendant Griffith,restraining
17 Defendant Griffith from constructing the proposed driveway in the traditional Right of Way,
18 and against Mason County from issuing further permits allowing such construction;
19 J. For a temporary and permanent injunction prohibiting encroachment or
20 interference with the Right of Way Area;
21 K. Fora writ of mandamus directing Mason County to maintain the Right of Way
22 Area in trust for the public and to prevent interference with the same by Defendant Griffith;
23 L. For damages in accordance with Plaintiffs' fifth claim for relief;
24 M. For an order awarding Plaintiffs' attorneys' fees and costs;
25 N. For leave to amend these pleadings to conform to the evidence presented at trial;
26 and
TRRRELL MARSHALL&DAUDT PLLC
COMPLAINT-12 Sa0nNar WasNnglon 91103
TEL.206.816.6603•FAX 209.350.3628
1 O. For such other and further relief as the Court deems just and equitable.
2 DATED this 25th day of October,2010.
3
4 TERRELL MARSHALL&DAUDT PLLC
5 B
6 4ic;Lhae .Dau ,WSBA 025690
Email: mdaudt@tmdlegal.com
7 3600 Fremont Avenue North
Seattle,Washington 98103
8 Telephone: (206)816-6603
9 Facsimile: (206) 350-3528
10 Attorneys for the Plaintiffs
11
12
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15
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17
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21
22
23
24
25
26
TERRELL MARSITALL&DAUDT PLLC
COMPLAINT- 13 3600 uef Fremont Nnglon 98103
T11.206.816.6803•FAX 206.350.3528
EXHIBIT A
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(Vo1.36IPg.56)
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.
CONSULTANTS INC MASON CCUN7Y,' WASH. DAB; roe N 8dX O30•SRVE7i� WA GM- (aeo}sgz- B.J.M. SE.O4/27/1 o 5225
H,',SONI COUN T Y ,",U-ITOR
".P,f:r1 i I
;2
1 ❑ EXPEDITE
❑ No hearing set 2010 NOV -? P Li 30
2 XX Hearing is set
Date: Mon. 11/l/10 FQUEST OF:
3 Time: 1:30 p.m.
4 Judge/Calendar:
Mumhy/Special Setting
5
6
7 IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON
8 FOR THE COUNTY OF THURSTON
9 EARL IDDINGS,TIMOTHY and PAMELA
10 CLEMENTS,and CHRIS POWELL, NO. 10-2-02395-7
Plaintiffs,
11 ] ORDER GRANTING
V. PLAINTIFFS' MOTION FOR
12 TEMPORARY RESTRAINING
MICHAEL and SUE GRIFFITH, MASON ORDER
13 COUNTY,MASON COUNTY
DEPARTMENT OF COMMUNITY
14 DEVELOPMENT, and MASON COUNTY
15 DEPARTMENT OF PUBLIC WORKS,
Defendants.
16
17
18 THIS MATTER having come before the Court upon the application of Plaintiffs Earl
19 Iddings, Timothy and Pamela Clements and Chris Powell ("Plaintiffs")for a temporary
20 restraining order,and the Court having duly considered the pleadings,papers, and declarations
21
submitted by the parties, and the arguments of counsel, and having made the following
22
23 preliminary fmdings of fact without prejudice to any party:
24 1. There is cause to believe that Defendants Michael and Sue Griffith will
25 construct a retaining wall and driveway within the established Right of Way known as Dewatto
26 Beach Drive,eliminating the historical turnaround area.
[PROPOSED]ORDER GRANTING PLAINTIFFS'MOTION TERRELLMARSHALL&DAUDTPLLC
FOR TEMPORARY RESTRAINING ORDER- 1 3600 Fremont Avenuo North
Soatlle,Waetdnglon 98103
TEt,206,816.6603•FAX 206.350.3528
1 2. There is cause to believe that Defendant Mason County will eliminate a portion
2 of the public Right of Way at the end of Dewatto Beach Drive,preventing Plaintiff Iddings and
3 others from legally accessing their property through the public right of way.
4 3. There is cause to believe that if such conduct on the part of Defendants is not
5
restrained, immediate and irreparable injury may be suffered by Plaintiffs who will be unable to
6
legally access their property and/or unable to use the only turnaround area at the end of
7
8 Dewatto Beach Drive.
9 4. Plaintiffs' notice was proper.
10 NOW,THEREFORE, IT IS HEREBY ADJUDGED,DECREED AND ORDERED as
11 follows:
12 1. A temporary restraining order is hereby entered:
13
A. Restraining and enjoining Defendants Michael and Sue Griffith
14
15 ("Defendant Griffith"),both personally and through contractors or other agents acting on their
16 behalf,from constructing their proposed retaining wall and driveway,including any excavation,
17 grading or clearing work on the Griffith property;
18 B. Restraining and enjoining Defendant Mason County from issuing further
19 permits to Michael Griffith or Sue Griffith pertaining to parcel number 323283100130 allowing
20 the construction of Defendant Griffith's driveway; and
21
C. Restraining and enjoining Defendant Mason County from eliminating
22
23 any of the traditional Right of Way on parcel number 323283100130.
24 2. A hearing on the motion for the preliminary injunction will be heard before the
25 Honorable Carol Murphy on �J 0 y'P—M 19 Ov i 2 ,2010, at q ;00 67.M.
26 2 P I G,(y h ff--s .s ka,1l posfi a bond 01 -i-kZ GLrnO,c,r `
4 4 Soo to C�t2 (5,
[PROPOSED]ORDER GRANTING PLAINTIFFS'MOTION TERRELL MARSHALL&DAUDT PLLC
FOR TEMPORARY RESTRAINING ORDER-2 36M Fremont avenue North
Seattle,Washington 98103
TEL.208.618.6603•FAX 206.350,3528
1 3. The temporary restraining order in paragraph 1 of this order shall expire on
2 Q V e{M bfZ 13 ,2010, ('W
3
Based on the foregoing, Plaintiffs' Motion for a Temporary Restraining Order is
4
GRANTED.
5 DATED and ENTERED this day of November,2010.
6
7
8
9 The Honorable Carol M phy
Superior Court Judge
10
Presented by:
I
12 TERRELL MARSHALL&DAUDT PLLC
13
14 By
Michael D.Daudt, A#25 90
15 Email: mdaudt@tmdlegal.com
16 3600 Fremont Avenue North
Seattle, Washington 98103
17 Telephone: (206) 816-6603
Facsimile: (206)350-3528
18
19 Attorneys for the Plaintiffs
20 Copy Received;Approved as to Form;
Notice of Presentation Waived
21
LAND LAW WASHINGTON,PLLC
22
23 By:
24 Roy Earl Morriss, WSBA#34969
2920 Colby Avenue, Suite 214
25 Everett, Washington 98201
Telephone: (425)374-3417
26
Attorneys for Defendants Michael and Sue Griffith
[PROPOSED]ORDER GRANTING PLAINTIFFS' MOTION TERRELL NIARSHALL&DAUDT PLLC
FOR TEMPORARY RESTRAINING ORDER-3 3600 Framore Avoruo North
SmMo,Washington 98103
TEL 206.816.6603.FAX 206.350.3528
i
1
2 Copy Received;Approved as to Form;
Notice of Presentatio aive
3
: 7
4
x�/,
5( � , SB 5 5
o Prosecuting tto y
6 P.O. Box 639
Shelton,Washington 98584
7 Telephone: (360)427-9670 EXT 413
8 Attorneys for Mason County
9
10
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14
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26
[PROPOSED]ORDER GRANTING PLAINTIFFS' MOTION TER1tmiL MARSHALL&DADDY PLLC
FOR TEMPORARY RESTRAINING ORDER-4 3500 Fremont Avenue North
Seattle,Weshtngton 98103
TEL 208.818.6603.FAX208,350.3528
M .SON COUVY tJ01T0R
K, ARCi "; I... FIERR
2010 NOV -3 P 4: 3 0
REQUEST OF:
SUPERIOR COURT OF WASHINGTON
FOR THURSTON COUNTY i
IDDINGS, et al . ,
Pl aintiff/Petiti oner,
VS. NO. 10-2-02395-7
GRIFFITH, et al. , NOTICE OF ASSIGNMENT/(NTAs)
Defendant/Respondent NOTICE OF STATUS CONFERENCE (NTC)
TO: THURSTON COUNTY CLERK
ATTORNEYS/LITIGANTS
PLEASE TAKE NOTICE:
1. That the above-noted case is assigned to:
The Honorable Carol Murphy 1
2. That the Status Conference is scheduled for 9:00 a.m. January 28, 2011.
Dated this 26th day of October, 2010.
All parties should be familiar with Local Civil Rule 16(d)which
requires in part that parties or lead counsel attend and that the
parties or counsel shall communicate with each other concerning
the case schedule order before the status conference.
THURSTON COUNTY SUPERIOR COURT
2000 LAKERIDGE DRIVE SW'
OLYMPIA WA 98502
(360)786- 5560
NOTICE OF ASSIGNMENT/
NOTICE OF STATUS CONFERENCE