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1. Forward Thrust Definition
2. 1000 soccer fields in King County
3. LWYSA grossed $2.4 Million last year
4. LWYSA is a coropration
5. 60-Acres is the ONLY glider field in the county
6. Soccer has closed 60-Acres North to all use except soccer
7. Is soccer really still "exploding"?
8. SASS never restricted use of 60-Acres South
9. Keep 60-Acres South multi-user
10. Soccer restricted use of 60-Acres North against State IAC
regulations
11. 60-Acres South is the only public park suitable for R/C
Sailplanes, Rockets and Dog Trials
12. There is significant traffic impact due to current activities
at 60-Acres N, what would happen if soccer expands to 60-Acres South?
13. 60-Acres needs to be surplused before leased to LWYSA
14. It appears King County wants out of the park business
15. soccer's 30 year lease extended to 50 year lease
16. Gliders and rockets require sunny weather, drop in activity,
not scheduled months in advance.
17. Master plan was never completed
18. 2000 King County Sports and Youth Recreation commission found
there needs to be space available for not only sports buy also for passive,
mixed-use.
19. King County pushed to put a water reclamation (Turd Plant)
site on 60-Acres, violating a number of their own regulations
20. LWYSA and King County enter an MOU to transfer 60-Acres south
to LWYSA against public outcry
21. King County will find a new home for SASS?
22. Bennet Property search details
23. We collected over 4,000 signatures to save 60-Acres
24. Others will be displaced besides SASS
25. Parks/Soccer agreement increases density without increasing
infrastructure
26. Unique microclimate for soaring
27. Protecting the little guy
28. LWYSA mowed a wetlands and parked cars on it against the
requirements in their lease agreement
29. Closing remarks from the lawsuit, summarizing our arguments
against turning over 60-Acres to soccer
1. Did
you know that this property was purchased with tax payer bonds in 1968 under
Forward Thrust? That a
Open Space Needs in Terms of a
A
complete system of open space for the county includes a number of elements which
fit into the following described concept:
An open-space system should include park and recreation areas distributed
throughout the county on the basis of population, located and designed to serve
the more immediate day-to-day recreation needs of the people. Large areas of
open space are required to provide opportunities for major types of recreation
areas, such as regional parks and golf courses….
There is also a need for community playfields, but studies show that the
County’s school districts are providing adequate space for this function in
conjunction with their acquisition of sites for secondary schools, (Emphasis
Added) so the problem is one of operation and development of these sites rather
than the acquisition which is the primary concern of the program outlined
herein.
Elementary school playgrounds in the County provide sufficient space for
neighborhood playground needs, whereas neighborhood parks are considered a
secondary responsibility of the County with development of the latter encouraged
through such means as homeowner’s associations and local improvement districts.
Regional Parks
Definition
Large areas selected and developed primarily to provide outdoor recreation
opportunities not feasible in the urbanized areas. (Emphasis Added)
The plaintiff’s
argued this argument in its lawsuit and lost on this issue. The court found
that this language is not “exclusive” to sailplane use. We agreed, but argued
that the language DOES create a hierarchy.
Soccer has over
1000 soccer fields in
John Ellis the
founder of Forward Thrust said:
The Forward
Thrust bond issues are contracts with the voters. The authorizing ordinances
should be followed in sprit and letter. They permit flexibility to meet changed
conditions so long as appropriate procedures are followed, but the do not permit
changes to be made at the discretion of officials who may simply choose to set
different priorities.
…These
voter-contracts should be respected not simply because of legal constraints but
because people have to believe in the credibility of public promises if our
system is going to work. If these promises are broken, how can voters be asked
again to vote extra taxes to accomplish any purpose?
2. Did
you know that there are over 1000 soccer fields in
Red pins represent soccer fields, orange pins represent the Lake Washington Youth Soccer Association fields, and the one green pin represents R/C glider fields.
3. Did you know that LWYSA made 2.4 million in 2004? With a Million left in the bank at year end? This organization is a major business with paid staff and employees.
4. LWYSA is a corporation. Like any corporation, it has a single goal, expansion.
5. If
SASS looses this field, glider flying in
6. For 22 of the last 24 years, LWYSA has posted signs on 60 acres north that say “closed to all use.”
7. Soccer would have you believe that soccer is exploding. Soccer has been after 60 Acres South since 1984. Councilman Bill Reams responded to the demand for additional soccer fields in 1984 as follows:
Thanks
you for contacting me regarding the Lake Washington Youth Soccer Association’s (LWYSA)
proposal to the King County Parks Division that the 60 Acres park be dedicated
exclusively to turf soccer fields.
As you know, I
have long been in support of expanding soccer fields. When the original Sixty
Acres lease was negotiated in 1984, I was instrumental in overcoming the
objections that the Parks Division has to an exclusive lease.
Over the years,
In the 1989/90 season, 35 fields will be available
with the completion of the two lighted all-weather soccer fields and the
reclamation of the four seasonal use fields from other activities located at
8. From 1970 to 1985, the Seattle Area Soaring Society mowed just enough grass on 60 Acres South to launch and land sailplanes. From 1985 to 1993, The Seattle Area Soaring Society (SASS) mowed the entire grass at 60 Acres South approximately every two weeks during the growing season at a cost of approximately $600 per cutting. Throughout this time, SASS never restricted use of the field to others except to keep 4-wheel drive vehicles and drivers looking to create a donut or two in the wet grass.
9. In
a memo from Linda Dougherty, Chief Recreation and Facility Use Management
Section to Shirley Heen dated February 24, 1988 she states:
As you are aware,
we have been allowing the public to fly non-motorized model gliders on the
undeveloped portion of Sixty Acres park near
Back in the late
1970’s, individuals began using the undeveloped Sixty Acres Park on an
informal drop-in basis when they discovered that the size, topography, and wind
currents at the site are ideal for flying model gliders and model sailplanes.
(Emphasis Added) In the early 1980’s, two model glider clubs began organizing
and staging local and regional flying events at the park and in order to avoid
disputes arising out of conflicts between users, the Division formed a group of
organized glider clubs, a local hobbyist who was to represent the interests of
the casual drop-in flyers, and the Seattle Polo Club which also uses the park.
In a letter from
Russell Cahill, dated June 13, 1988, manager for King County Natural Resources
and Parks Division to LWYSA he states in part:
I am writing in
response to your letter dated April 19, 1988 regarding your proposal to expand
soccer fields to the portion of Sixty Acres Park which lies south of NE 116th.
This area is currently utilized by polo, dog trials, and model gliders,
sailplanes and rocket enthusiasts.
…You made a
verbal presentation of your proposal regarding additional Sixty Acres soccer
fields and the need for expanded facilities at this site. Council member Reams
suggested a meeting of the site’s regular user groups be held to enable the
elected officials to obtain input regarding your proposal. Subsequently, Linda
Doughtery has scheduled a meeting of the sites regular user groups for Monday
the 27th.
…The diversity
of the activities scheduled on the site and the historical dates and times of
peak usage appear to conflict with the scheduling needs of soccer. We will
likely be heavily dependent upon the advice and information of the various Sixty
Acres user groups as to whether or not developed soccer fields are compatible
with the existing primary users. (Emphasis Added)
Tim
Hill, King County Executive writes to Donald Bake, President of the LWYSA on
August 23, 1988. He states in part:
Thank you for
your July 25, 1988 letter regarding the Lake Washington Youth Soccer Association
(LWYSA) proposal to designate the entire
It is my
understanding that LWYSA’s April 19, 1988 proposal recommends the development of
soccer fields on the south portion of
…This necessitates that the needs of individual
and less structured activities (such as those currently occurring on the south
Sixty Acres park) be addressed as well as those of highly organized athletic
interests such as LWYSA. (Emphasis
Added) I believe this is a reasonable and responsible approach which serves the
best interests of all King County Residents.
...We do not
believe it is King County’s role as a public service provider to dedicate park
land for the development of “premier” level facilities for one group while
another interests of unserved, or served at disproportionately low levels. As
its population grows,
10. Ignoring State IAC requirements
Letter On or about December 7,
1989, Linda Doughtery writes to LWYSA. The letter states in part:
I am writing in
regards to the lease agreement between your organization and King County which
authorizes your use of a portion of
As a result, we have had to revise all existing
lease agreements of IAC funded property to bring the language into conformance
with IAC’s requirements. We have developed an updated version of the Sixty
Acres lease currently held by the
The revised lease agreement that would satisfy IAC requirements was never
executed, and IAC approval was never obtained. In fact, as of this lawsuit, IAC
approval has still not been obtained.
The critical revisions read: (Ex. 24)
LWYSA shall
permit the public, groups, and organizations to use the premises when such use
would be compatible with the use and preservation of the premises by LWYSA or
with LWYSA’a maintenance, improvement, or development of the premises….
During periods of non-scheduled use, the premises shall remain available to the
general public for soccer play. (Emphasis Added)
Since 1989, signs
have been posted on all sides of 60 acres north: Those signs stated: “CLOSED
TO ALL USE”
11. On
February 20, 1990, LWYSA initiates another campaign to convert 60 Acres South to
soccer, but this time starts the process with the City of
Thank you for
your February 20, 1990 letter regarding Lake Washington Youth Soccer
Association’s (LWYSA) proposal to develop soccer fields in
The proposal
being reviewed by park user groups and the County was initiated by LWYSA. If
implemented as presented, LWYSA would have the County lease the site to them to
develop and manage as soccer fields. The Parks Division has held two meetings
with Sixty Acres Park-South user groups to determine if the users’ activities
and facilities usage patterns could continue to be accommodated if the county
approves LWYSA’s proposal.
To my knowledge, the County’s 60 Acres Park-South
is the only public park on the east side that is topographically suitable and
available for dog trials and model glider and rocket hobbyists.
(Emphasis Added) Park users come from a large geographic area including
12. Doreen Marchione, Mayor of Redmond responds with her letter of April 9, 1990:
(Ex. 27 and Admitted in Answer)
Sixty Acres
Park-South is within the corporate limits of the City of
Tim Hill responds
on April 25, 1990: (Ex. 28 and Admitted in Answer)
Thank you for
your April 9, 1990 letter reiterating
I too am aware of, and concerned about, the
potentially negative impact an increased concentration of soccer fields at the
Traffic studies
were performed. Unfortunately, street and intersection improvements would cost
millions. The second attempt to convert Sixth Acres South to exclusive soccer
fields also failed. In addition, at the time of this letter, 60 Acres North was
limited to 12 soccer fields. In the mid-nineties, the toe of the east slope was
cut and the number of fields was increased to 16 without any increase in
available parking. Today’s traffic is significantly worse than it was in 1990.
Although the lease requires
At the time the hill side was
cut away, no new parking was added at 60 Acres North.
On
April 25, 1994, a meeting occurred between Parks and LWYSA and minutes were
taken. Those minutes state in part: (Ex. 31)
Clint received
comments back from the prosecuting attorney’s office on April 22 and after
review has determined that Bob Stear has decided that the agreement must be a
lease. This will require surplusing the property. Since the Parks
department cannot justify the surplus of property used for ball fields we are
unable to structure an agreement. (Emphasis Added) The next course of
action is for Clint to meet with Bob Stear to get an opinion on the ability to
lease the property without surplus…. LWYSA advised Clint that the issue of
surplus had been discussed many times before he became involved, and that Parks
would be surplusing the property to their ability to operate 60 acres due to
budget problems. LWYSA also advised Clint that this lease/surplus issue is the
same issue we started with over two years ago.
King county is aware of the requirements.
On April 17, 2002, Sharon Claussen emails Mary Davis with copies to Kevin Brown,
all with
Forward Thrust,
state and federal funding require that the property be surplussed for park
purposes showing they are no longer needed for park use and replacement property
of equal value and utility must be purchased. State and federally funded
properties must also go through the county process and additional conversion
process that is approved by the appropriate state or federal agency. You
should be aware that these sites have established users so demonstrating they
are no longer needed for recreation could be problematic. (Emphasis Added)
On May 24, 2004,
Pam Bissonnette, Department Director writes a memo concerning the surplus of 60
Acres South. This memo continues to demonstrate that surplussing is required.
Unfortunately, the surplussing process was not followed. Rather than go through
all 6 steps, King county simply went to the last step and declared it surpluss.
The memo states in part:
The Department of
Natural Resources and Parks desires to surplus tax parcel 352605-9074, commonly
known as Sixty Acres Park South to the Lake Washington Youth Soccer Association
(LWYSA) in exchange for nearby tax parcel 2726059173 (Muller Parcel B) owned by
LWYSA. Sixty Acres South is surplus to the Department’s needs only for the
purpose of this exchange.” (Emphasis Added) Through this exchange, the
Department will be able to facilitate farming of prime property in the Farmlands
Preservation Program and facilitate the development of additional active
recreation soccer fields by LWYSA.
Surplussing is a safeguard required by state statute and King County Code. In an email from Kevin Brown to Tom Fox on July 23, 2002, Mr. Brown quotes an attorney in the KC Prosecuting office named Scott as; “a judge would likely find that RCW 36.68.010 (Surplussing ordinance) applies to even a transfer of custodianship. The purpose of the statute appears to be to prevent park systems from shrinking under temporary funding constraints.”
Surplussing is required prior to the lease or sale a county property.
The first exclusive lease with LWYSA was called a Lease. The Second Agreement was called a concessions agreement. In the lawsuit it was pointed out to the court that a concessions agreement is just a subset of a lease so surplussing is required. For the first time, King county argued that the agreement with LWYSA is actually a “Franchise.” Is the county actually ignoring its own safeguards.
14. It appears county just wants out of the park business
15. 30 year lease extended to 50 year lease.
16. Gliders and rockets require sunny weather, drop in activity, not one scheduled months in advance.
17. Master planning issues with 60-Acres
Plaintiff’s have
argued that no master planning has occurred on the 60 Acres property since its
purchase. In opposition, KC provides the Declaration of Tom Eksten, with Mr.
Eksten stating in paragraph 28 and 29 of his declaration that “It also called
for sports fields, including at 60 acres” and “the master plan actually gave
preference to active vs. passive recreation where the land was large enough and
suitable for sports fields – at 60 acres.” Mr. Eksten is simply wrong.
The document
entitled “Schematic Master Plan and Phase I Design for
“The wide areas
(60 acres), however, are approached in a preliminary way in this phase and will
be studied in more detail at a later time.”
“Citizen response
indicated a preference for a quiet non-motorized environment with riding and
foot trails set in a natural, rural environment of open fields, (continuing on
page 25) woods and wildlife. An unstructured, multi-purpose park was desired
with activities compatible with a rural setting, fishing, picnic areas, canoe
launching and beaching and places for informal spontaneous group activities. A
significant number of individuals also wanted to have sports fields provided
within the park system. This need has been acknowledged in the master Site
Development Plan of Marymoor Park. **** These fields are also provided at many
of the schools throughout the
A map is also
included in the plan. There are icons all over the map to graphically
illustrate locations for possible activities. The only icon for 60 Acres South
is “Polo.” 60 Acres North has 5 icons, which are: Access (presumably to the
river); Casual Sports; Parking; Restrooms/Potty; and Horse Activities. The only
reference to sports fields is the icon for Casual Sports. The 16 soccer mega-plex
is not Casual Sports.
Funding
was included in the Executive’s 1994 budget proposal which was transmitted to
the council in October 1993, to master plan the Sixty Acres park. (Ex. 30
and Admitted in Answer)
In 1994, Parks
submitted a new proposed master plan to the
18. In
July 2000, the King County Active Sports and Youth Recreation Commission was
commissioned to examine active sports and youth recreation needs in
The region must
continue to have a robust continuum of separate, but equal, open space, passive,
mixed-use, and active park assets. 415
On April 17,
2002, Sharon Claussen emails Mary Davis with copies to Kevin Brown, all with
Forward Thrust,
state and federal funding require that the property be surplussed for park
purposes showing they are no longer needed for park use and replacement property
of equal value and utility must be purchased. State and federally funded
properties must also go through the county process and additional conversion
process that is approved by the appropriate state or federal agency. You
should be aware that these sites have established users so demonstrating they
are no longer needed for recreation could be problematic. (Emphasis Added)
Tom Fox, one of
the project managers for the RWPF emails Bob Burns on June 21, 2002. He states:
(Ex. 39 and Admitted in Answer)
We have problems
with the two park sites – the soccer site has wetlands on the hill and the
airplane site has all the neighbors and airplane people against us, so…that is
what I needed to tell you. We will be having to start looking at some
alternatives one that does not involve parks.
Bob Burns
response with:
Are you getting
weak kneed? I would hope you don’t eliminate a park as a possibility. I will
be back at
In an email from
Kevin Brown to Tom Fox on July 23, 2002, Mr. Brown quotes an attorney in the KC
Prosecuting office named Scott as; “a judge would likely find that RCW 36.68.010
(Surplussing ordinance) applies to even a transfer of custodianship. The
purpose of the statute appears to be to prevent park systems from shrinking
under temporary funding constraints.”
·
Not displace
current recreational users.
·
Not cause traffic
disruptions.
On November 8,
2002, without notice to the current user groups or the neighborhood,
The Seattle Area
Soaring Society responded with a letter writing campaign from its membership,
meetings with many of the King County Counsel, appearances before the Redmond
City Council and an appeal of the DNS and its application for construction.
LWYSA made no
effort, none, to keep 60 Acres South as a park.
Neighborhoods
local to 60 acres south were organized and the members of SASS continued their
letter writing and public appearances. Public appearances included many radio
talk shows and a spot on KIRO TV. The fight to keep 60 Acres South as a public
park finally made the cover to the Seattle Times. The result of the public
outcry and political pressure was cancellation of the project.
Throughout this
process, LWYSA remained silent and did nothing to contribute to the fight to
save valuable park property from a non-park activity. LWYSA now wants to reap
the benefits (maintaining the park as a park) of the work of others.
20. In
March of 2005, King Count and LWYSA entered into a memorandum of understanding (MOU)
that would transfer the property known as 60 Acres South to LWYSA. The intent
was to sell 60 Acres South to LWYSA. There would be some trading for farm land,
but no new park land would be provided.
A second press
release dated October 25, 2005 states in part: (Ex. 49)
Informal
neighborhood use will continue a majority of the year during non-scheduled use,
and Sims said
The public outcry
was strong and the surplus requirements of
Again the public
outcry was strong. What is the difference between a sale and a 30 year lease
for the ultimate use of one organization. The IAC asked the same question in
its monthly June 23, 2006 meeting.
On October 28,
2005,
…The LWYSA would
then own Sixty Acres South outright and would develop the site for publicly
accessible athletic field use. LWTC and KC would own interest in parcels B and
C in a manner to be determined by the parties, and LWTC would utilize the
property for agriculture purposes related to their educational mission.
In addition, KC would amend its lease with LWYSA on Sixty Acres North such that
the term is extended to period no less than 50 years,…
On January 12,
2006,
At this same
public meeting, Kevin Brown announced that there are over 1000 soccer fields in
2
We are committed
to helping find a long-term home for soaring in
We identified
alternative locations within our existing inventory for soaring as this would
have been the fastest way to secure a long-term location. Unfortunately,
based on your input it was determined that there are no sites within our
existing inventory that meet your needs. (Emphasis Added)
TJ and I will
continue to work with SASS and staff from various agencies in order to find a
suitable site. Now we are working from a list of landowners that you have
forwarded us to find an interim (2+ year based on landowner willingness) site
for soaring activities. Please contact me when you and Jim are available and we
can discuss further.
Sujata Goel
I Strategic Partnerships & Enterprise Initiatives
sujata.goel@
Yes there is, its
is called 60 Acres South.
There is no other
place to fly gliders and sailplanes in
22. The county has located a private piece of property, but the owner only wants to lease it for 5 years. This Single piece of property was found after a 2 year search. Only one piece of property was found. So, what happens at the end of the 5 years? Simple, KC simply says, sorry, there is no more money.” The glider guys just became extinct. SASS did agree in general on the bennet property, but KC could not make any guarantees about the future. The glider guys made a counter offer, that if the Bennett Property could not renew, the county could not afford it or Bennett didn’t want to lease it any more, then the lease on 60 acres south would become null and void and The glider guys would move baqck to 60 acres south. That proposal was flat out rejected by KC and LWYSA.
23. SASS collected over 4k signatures in a petition in just one weekend.
24. Others will be displaced (sailplanes, dogs, rockets, free flight). Soccer has plenty of money, why does this business need public property?
25. Parks/Soccer agreement increases density without increasing infrastructure or parks.
During the lawsuit LWYSA stated three reasons why it needed 60 acres south.
needs to make more money. Kurt Batemen in is own declaration stated
LWYSA needs these fields for three reasons, 1.) to
relieve some of the weekly demand, 2.) to allow for field rotation ie to give
the field a rest so the grass damaged can grow back, and 3.) allow LWYSA to host
major tournaments. Tournaments are a major fund-raising vehicle. LWYSA wants to
host major tournaments because they represent a, in their words, a MAJOR
fund-raising vehicle.
26. Unique weather and microclimate issues.
27. What ever happened to protecting the little guy.
29. Closing remarks from the lawsuit, summarizing our arguments against turning over 60-Acres to soccer
The following is the scripted oral argument I gave to the court.
This law suit is
about whom gets to play in the public park know as 60 Acres. On the surface
this sounds like a silly reason to involve the court, but as Curt Bateman, the
director of operations for LWYSA pointed out, there simply no more space
available.
Lake Washington
Youth Soccer Association is the largest and most organized soccer association in
On this map,
LWYSA represents the yellow pins. These are soccer sites that LWYSA claims it
has some control over on its website. The red pins represents other soccer
fields in
Down here in the
federal way area, there are additional soccer fields, but we ran through our
1000 red pins and stopped.
LWYSA needs these
fields for three reasons, 1.) to relieve some of the weekly demand, 2.) to allow
for field rotation ie to give the field a rest so the grass damaged can grow
back, and 3.) allow LWYSA to host major tournaments. Tournaments are a major
fund-raising vehicle. LWYSA wants to host major tournaments because they
represent a, in their words, a MAJOR fund-raising vehicle.
Throughout the
history of the various lease agreements between
Placing soccer on 60 Acres South will displace all
the current user groups. It is undisputed that the Seattle Area Soaring Society
has been flying at this location since 1973. Back then, the club found what we
refer to as “thermal heaven.” A location where the air that keeps a plane aloft
is caused by three separate conditions. Linda Dourghty Chief of the Recreation
and Facilities use management section of the parks Department supported this
conclusion in exhibit 18 where she states, “Back in the late 1970’s,
individuals began using the undeveloped Sixty Acres Park on an informal drop-in
basis when they discovered that the size, topography, and wind currents at the
site are ideal for flying model gliders and model sailplanes.”
I have never seen site where all three
condition occur on one site.
Soccer has been
pursuing 60 acres South since 1984. Our briefing is full of responses from
In 2002,
LWYSA did nothing
to help keep a sewage treatment plant off a public park. Now they just want to
reap the benefits of the work of others.
Definition of a
This law suit is
about the intent of the voters in 1968 and the definition of a regional Park.
There are three pieces of Legislative history in our documents and a historical
document provided by
Exhibit 2 is the first document that provides a
Definition of a
This same
documents provides for funding for “
The next document
is Exhibit 3. This document was also executed by the same Board of County
Commissioners just 10 months later. This document creates a special election to
be held two months later asking the voters to approve bonds in the amount of
$118 million dollars for the acquisition of public parks in the county. This
document breaks down the parks into 5 categories. The first and largest park is
a “
Simply stated, if
all parks were meant to have the same designation or definition, there would
simply be a list of “parks,” without different names. The goal of this court
should be to establish the legislative intent of Board of County Commissioners.
Where legislation is susceptible of two or more interpretations, it is
ambiguous. If a statue is ambiguous, we look to other sources of legislative
intent, such as legislative history. Here the legislation is ambiguous, we have
no choice but to look to elsewhere.
Exhibit 13 is a
critical document. In late 1974, the counsel discovered that it had to make
amendments to the resolution passed in exhibit 3. There appear to be various
reasons. Some parks cost less than anticipated leaving a surplus, some parks
cost more or were abandoned because of expensive condemnation proceedings. In
the end, Forward Thrust Funds needed to be reallocated and the now King County
Council needed guidance on how to go about that process. Tom Ryan, the director
of parks, in conjunction with the prosecutors office prepared a memo. That Memo
states:
A Clarification
of Procedures and Actions in Regard to
Forward Thrust
Resolution 34571
Overriding
Objective
Carry out all
projects in accordance with the original Forward Thrust Stated intent to extent
feasible. This intent defines the development of a broad park and recreation
plan consisting of specified categories and types, defined and described as
follows:
Regional Parks
Large areas, several hundred acres or more in size, selected and developed primarily to provide outdoor recreation opportunities not feasible in urbanized areas. Frequently contain special features or unique qualities that are attractive to the regional population.
These same
documents discuss ball fields. On that issue the documents state:
There is also a need for
community playfields, but studies show that the County’s school districts are
providing adequate space for this function in conjunction with their acquisition
of sites for secondary schools,….
As pointed out by
King County in the declaration of Kevin Brown at Exhibit B, this exact same
language appears shortly thereafter in a document adopted by motion by the King
County Council. There is some additional language that is pertinent. It now
reads:
A Clarification
of Procedures and Actions in Regard to
Forward Thrust
Resolution 34571, Park and Recreation Facilities and Criteria for Reallocation
of Funds.
Purpose of Document
The purpose of
this document is to further clarify who is responsible for certain actions taken
in regard to Resolution 34571 and what procedures should be followed in case of
change or modification to the original program.
Overriding Objective – Park Categories
The overriding
objective is to carry out all projects in accordance with the original Forward
Thrust Stated intent to extent feasible. This intent defines the development of
a broad park and recreation plan consisting of specified categories and types,
defined and described as follows:
Regional Parks
Large areas, several hundred acres or more in size, selected and developed primarily to provide outdoor recreation opportunities not feasible in urbanized areas. Frequently contain special features or unique qualities that are attractive to the regional population.
We cannot think
of a better way to show the intent and definition of a
Our case law
concerning the will of the voters is not challenged by
Point to the
map. Soccer does not satisfy the definition of a
Master Plan
The document
entitled “Schematic Master Plan and Phase I Design for
“The wide areas
(60 acres), however, are approached in a preliminary way in this phase and will
be studied in more detail at a later time.”
As far as
Plaintiffs can tell, there was no further study and KC has no documentation to
the contrary. Page 24 reads:
“Citizen response
indicated a preference for a quiet non-motorized environment with riding and
foot trails set in a natural, rural environment of open fields, (continuing on
page 25) woods and wildlife. An unstructured, multi-purpose park was desired
with activities compatible with a rural setting, fishing, picnic areas, canoe
launching and beaching and places for informal spontaneous group activities. A
significant number of individuals also wanted to have sports fields provided
within the park system. This need has been acknowledged in the master Site
Development Plan of Marymoor Park. **** These fields are also provided at many
of the schools throughout the
A map is also
included in the plan. There are icons all over the map to graphically
illustrate locations for possible activities. The only icon for 60 Acres South
is “Polo.” 60 Acres North has 5 icons, which are: Access (presumably to the
river); Casual Sports; Parking; Restrooms/Potty; and Horse Activities. The only
reference to sports fields is the icon for Casual Sports. The 16 soccer mega-plex
is not Casual Sports.
Finally, there is
no evidence that this Schematic master plan was ever adopted by
Surpluss of Property
RCW 36.68.010
states:
A county may
lease or sell any park property, building or facilities surplus to its needs, or
no longer suitable for park purposes: PROVIDED, that such park property shall be
subject to the requirements and provisions of notice, hearing, bid or
intergovernmental transfer as provided in chapter 36.34 RCW….PROVIDED FURTHER
that funds acquired from the lease or sale of any park property, buildings or
facilities shall be placed in the park and recreation fund to be used for
capital purposes.
In an email from
Kevin Brown to Tom Fox during the Water Reclamation Facility, (July 23, 2003)
Mr. Brown stated: (Ex. 37)
A judge would
likely find that RCW 36.68.010 applies to even a transfer of Custodianship. The
purpose of the statute appears to prevent park systems from shrinking under
temporary funding constraints,
The entire
surplus issue arises because 60 Acres North is a Lease of government property.
Presumably, this lease is similar to the anticipated lease on 60 Acres South.
Both
For the first
time,
The first lease
was entered into between
LWYSA shall
permit the public, groups and organizations to use the premises when, in the
sole judgment of LWYSA, such use would be compatible with the use and
preservation of the premises as a soccer facility and would not conflict with
the use of the premises by LWYSA or with LWYSA’s maintenance, improvement, or
development of the premises. In respect to the use of the premises by other
than LWYSA, LWYSA shall have the sole responsibility fro the right to schedule
such use and may require, in connection with such use, conditions such as a
deposit or bond for cleanup or damages and a written use agreement covering such
use providing for indemnification of LWYSA and King County by the user against
expense and los incurred arising from such use.
In response to
this, LWYSA posted signs that say; “CLOSED TO ALL USE.” (Exhibit 16)
1995,
3. In
some cases, it is in the public’s interest for private non-profit organizations
to be allowed to develop, operate, manage, and maintain public recreational
facilities and programs on county park property so long as the activity is
consistent with the purposes for which the property was acquired (emphasis
added) and with the county’s comprehensive parks, recreation and open space
plan.
8.
10.
Concession Fee LWYSA shall pay to King County on each March 1 during the term
of this contract, an annual fee in an amount equal to 20 percent or such other
percentage as may be set by annual fee ordinance, of the total of the revenue
from user fees, fees from the sales of goods and services, and admission fees
which LWYSA generates during the calendar year immediately preceding the due
date for payment of the annual fee.
28.
Operations Defined. Operations for and over which LWYSA shall have primary
responsibility and control include, but are not limited to, scheduling for all
use of the Premises, including league games, tournaments, practices and events,
site preparation and management, including field layout, field lining, goal
placement, signage, concession and tent setup and parking setup and control,
concession agreements with vendors and security.
29.
Scheduling Criteria. Highest priority use of the Premises shall be for the
members and registered players of LWYSA , and for the members of and registered
players of NYSA as agreed between it and LWYSA. LWYSA shall, subject to and
consistent with such priority, make reasonable and appropriate accommodations
for other soccer user groups and members of the public for use of the premises.
Soccer field use will be maximized to the extent, in the sole judgment of LWYSA,
that such use is consistent with proper maintenance and care of soccer fields.
:LWYSA shall be the sole arbiter of all scheduling conflicts and shall determine
in its sole judgment what constitutes reasonable and appropriate accommodation
for use of the Premises and equitable distribution of playing time.
By the very terms
of the “Concessions Agreement” LWYSA could not have a more exclusive use.
In case the
exclusive “Concessions Agreement” was not enough, LWYSA (with no apparent effort
from KC to police their behavior) left up the sign; “CLOSED TO ALL USE” This
sign remained in place until this lawsuit was filed.
KC’ belief of
that a lease must be exclusive is misplaced. KC based their argument upon WAC
458-20-118. This section of the WAC deals with the excise tax rules for the
Department of Revenue and only applies to those rules. Copies attached. The
Lacey Nursing Home Case also deals with the interpretation of those same tax
excise rules. As indicated, those definitions do not apply here. KC also cites
a generic definition that was found within the same case. We have all practiced
law long enough to know that a generic definition usually has many exceptions
and exclusions. This is one of those situations.
“It is well
established that the parties to a lease may, by express provisions, restrict the
use to which the lessee may put the demised premises, so long as the restriction
is reasonable and not contrary to public policy.” See 49 AM Jur 2d section
505.
Shopping Mall
leases come to mind. Although the tenant has exclusive control of his/her
space, the tenant must be open for business at hours dictated by the landlord
and the tenant must allow persons coming from the mall into their business. In
other words, it is a breach of the lease to close the doors and refuse to allow
persons coming from the mall during business hours. Although the tenant has
exclusive control, the tenant is required to allow people off the street into
his tenancy. Even if the lease agreement required the field to remain open to
public use, it is no different than a shopping mall lease.
In the instant
case, the only reservation on the exclusive use of LWYSA appears to be
reservation of a right by
FRANCHISE
KC reliance on a
franchise is also misplaced. An jur 2d defines a franchise as: “It is a
privilege conferred by Government on an individual or corporation to do that
which does not belong to the citizens of the country generally by common right.
For example, a right to lay rail or pipes, or to string wires or poles along a
public street, is not an ordinarily use which everyone may make of streets, but
is a special privilege, or franchise, to be granted for the accomplishment of
public objects, which, except for the grant would be a trespass” 36 Am jur 2d,
723.
In the instant
matter, the land in question is a public park. It is already available for park
users including soccer.
KC also alleges
that the agreement is a franchise because the legislation states that “nothing
in this resolution shall prevent the grant of easements or franchises….” Am Jur
2d discusses the distinction:
Occasionally,
franchises have been termed “easements,” yet there plain points of dissimilarity
between the two rights. An easement is essentially and inherently and interest
in land, Although the use of a franchise may require the occupancy, or even the
ownership, of land, that circumstances does not make the franchise itself an
interest in land. It will be found upon examining some of the cases that there
is occasionally a want of exactness in the use of the terms, and now and then
the right to do a particular thing – which is the franchise – is confused with
the results achieved in the exercise of the right, and those results are
inaccurately spoken of as a franchise. The right to occupy the street is a
franchise; the actual occupation of the them in that way, pursuant to the
franchise, is the exercise of an easement. A distinction must be marked between
the right to do the thing and the interest acquired in the soil by the exercise
of that right. 36 Am Jur 2d Page 725
When you develop
a park, you might need to install lights, water, and sewer systems. A franchise
would give the utility the exclusive right to provide services on that
property. An easement would determine where and with what restrictions would be
required of the utility, allow the placement of the utility and provide some
ownership to the utility installing the service. This clause simply recognizes
the reality that development usually requires utilities. This clause simply
allows that to happen.
Examples of this might be a town at the turn of the century that wanted a rail
company to run its tracks through its town. The rail company would only agree
if it could obtain an exclusive franchise, providing it financial incentive to
run rails to the town.
The
train company still had to obtain public and private easements where it could
lay its rail.
Conclusion
Finally, article
3 in the lease/concessions agreement.
In
some cases, it is in the public’s interest for private non-profit organizations
to be allowed to develop, operate, manage, and maintain public recreational
facilities and programs on county park property so long as the activity is
consistent with the purposes for which the property was acquired (emphasis
added) and with the county’s comprehensive parks, recreation and open space
plan. (Exhibit 32)
There is only one
reason for a clause such as this one. It allows