Judge sides with city on Pioneer sidewalk dispute in Oak Harbor
By JUSTIN BURNETT
Whidbey News Times Staff reporter
September 24, 2010 · Updated 8:41 AM
Two downtown property owners fighting against Oak Harbor's plan for a one-way street on SE Pioneer Way suffered a major defeat this week.
On Thursday, Sept, 23, an Island County Superior Court judge ruled against Frank Scelzi and Kristi Jensen, the owners of Old Town Mall, and granted the city's motion for summary judgement concerning sidewalk rights on Pioneer Way.
City Administrator Paul Schmidt, the only city official that attended Thursday's hearing, said it's unfortunate that the controversial road project had to come to this, but he is relieved the issue has been settled and that the road project can now proceed unhindered.
However, thinking the matter is resolved may be premature. It appears this could be just the first battle in what's shaping up to be the sidewalk wars.
"It's not over until it's over," said Scelzi, minutes after the decision. "Bottom line is the city is making a stupid decision."
The dispute between the city and the downtown property owners focuses on sidewalks but hinges on the larger issue of the SE Pioneer improvement project, an $8.35 million plan to renovate the entire street into a one-way thoroughfare. Scelzi and Jensen, along with many other merchants and Oak Harbor residents, oppose the project for a variety of reasons. The chief concern is that a one-way street would be detrimental to commerce.
Hoping to avoid a lawsuit that would delay the project, the City Council in April agreed to pay property owners on Pioneer Way $1,290 per parcel for easement rights to sidewalks. However, 23 property owners did not accept the money and refused to sign the easement agreements. In response, the city took them to court and all but two, Scelzi and Jensen, were either dismissed or ruled against by default.
The two parties clashed in court on two separate occasions over the past month. Both were arguing for summary judgements, a legal determination made by a judge before a case goes to trial.
While land use law can get extremely complicated, the city's attorney, Richard Langabeer of Bellingham-base Langabeer and Tull, P.S., essentially argued that Oak Harbor had the right to tear up the sidewalks in front of Old Town Mall based a long history of public use and maintenance by the city.
Contrarily, Scelzi and Jensen's attorney, Carolyn Cliff of Langley, claimed the sidewalks are private property, that the road project would close the street and sidewalks for six to 12 months, and that Oak Harbor's proclaimed long-term maintenance has been spotty at best. Much of it has been performed by the property owners.
While both attorney's cited case law to support their positions, Island County Superior Court Judge Vickie Churchill said the fact is the public has been using the sidewalks for more than 50 years. Combined with a 1981 city ordinance, which says the financial burden for maintaining sidewalks is the responsibility of business owners, she had no choice but to rule in favor of the city.
"Even though the court has a great deal of sympathy for the defendants, the court must rule that the general public has a prescriptive right to use the sidewalks in front of the defendants stores," Churchill said.
She also pointed out that sworn testimony by City Engineer Eric Johnston disputes the claim that Pioneer Way and the sidewalks will be closed for six to 12 months.
While Churchill's decision ruled in favor of the city, Scelzi and Jensen have several options. They can appeal to the Court of Appeals or ask Churchill to reconsider. Scelzi said he and Jensen would have to sit down with their attorney to discuss their next steps but assured that the fight is not finished.
"We're not done yet." Scelzi said. "It's not over."Contact Whidbey News Times Staff reporter Justin Burnett at email@example.com or 360-675-6611 ext. 5054.