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Will the gate come down?

A possible January hearing will determine the fate of a padlockd gate at the Fletcher Landing road end. - RYAN SCHIERLING photo
A possible January hearing will determine the fate of a padlockd gate at the Fletcher Landing road end.
— image credit: RYAN SCHIERLING photo

A public right of way on Fletcher Landing could mean modest access to the water for a few a and kayakers, but nothing resembling a waterfront park.

“We have not at all called for ramps or trailers,” said Bitsy Ostenson, a long-time member of the city’s road-end committee, which drafted plans for the former ferry landing that has been in dispute since 1996. “This property was designed to get people onto and off of the water, so what we’re proposing boils down to the historical use.”

While the decision remains subject to appeal, Kitsap County Superior Court Judge Leonard Costello ruled earlier this week that the public has a right to use the continuation of Fletcher Landing from Hanson Road west to Puget Sound.

Costello based his ruling on the fact that the property was used as a county road, terminating at a private ferry landing, for a number of years in the first half of the 20th century. Because that public right of way was never formally relinquished, it persists today, the judge ruled.

Defendants in the case were a number of upland neighbors, who purchased deeded interests in the 40-foot-wide strip of tidelands, and ultimately put up a locked fence to bar the public from the shore.

They city sued in 1999, seeking to establish a public right of way.

Before trial, the defendants stipulated that the public did have a right to use the roadway. But they contended that the right terminated at the ordinary high water mark, and did not include the tidelands.

The difference has considerable practical significance. Because of an old concrete bulkead at the seaward end of the road, no water ever actually reaches the ordinary high water mark. So without a right of way across the tidelands, the road-end alone would not give the public access to the water.

Costello ruled that the public does have a right to the tidelands. He based his decision on a 1968 Washington Supreme Court case which declared that a road going to a body of water is presumed to provide access to the water, over the tidelands.

The owners plan to appeal, according to one of their attorneys.

“Essentially, Judge Costello held that the tidelands owners should have known of a 1968 case decided by the Supreme Court when they purchased their homes and interests in the tidelands,” attorney Troy Greenfield said in a prepared statement. “The owners sued by the city simply believe that conclusion is unfair.”

Neighbors who were party to the lawsuit could not be reached for comment Thursday or Friday.

Greenfield had argued that his clients purchased their deeded beach rights without any indication that those rights were in question, and that as so-called “bona fide purchasers,” they were immune from title challenges.

Costello, though, rejected that argument, ruling that “the law imputes to a purchaser all information which would be conveyed to him from an actual view of the premises,” and saying that “it was apparent, even to a casual observer, that the road was constructed to permit access to the beach.”

Costello cited such things as the name of the street – Fletcher Landing – the boundary fences north and south of the road remnant, the bulkhead at the end of the road with slots that would indicate a former structure and the apparent purpose of the road to lead to water.

Attorney Blair Burroughs, who represented the city, said that by couching the bona-fide purchaser issue as a matter of fact, Costello’s ruling is less likely to be upset on appeal, because appellate courts give substantial deference to the findings of fact during trial.

Burroughs said the ruling does not give the public all the rights the defendant owners enjoy.

“A right of way is more limited than ownership,” he said. “For example, the public using the right of way cannot dig for clams.”

While the city actually does have a fractional ownership interest, Costello did not rule on what rights, if any, the public would have as a result. Burroughs said he is not inclined to push the matter, because the ruling on the right of way gives the city all it was really trying to achieve.

“There was never any intention to build something there,” he said.

Ostenson said she foresees “relatively simple things” for the strip – removing the fence that blocks access, cleaning up the vegetation, creating some form of descent from the bulkhead at the end of the strip to the beach, and perhaps installing a bench in a manner that doesn’t disrupt anyone’s access.

For the time being, the fence, gate and lock remain. Costello said he would schedule a hearing on when and how they would be removed. Burroughs said he hopes that can occur in January.

Yet even after the hearing and a final order from the court, the public may not gain quick access.

Greenfield said his clients will ask Costello and the appeals courts to allow fence and gate to remain pending a decision on appeal, which could be two or more years in the future.

“Until the appeal is finally decided, it would be manifestly unfair to deny the owners of the tidelands use of their land as contemplated and bargained for at the time of purchase,” Greenfield said in his statement.

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