By SEAN ROACH
Bainbridge Island Review Reporter
Sep 27 2008
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What was once a debate over whether to pave a road through the Gazzam Lake area has now become a legal showdown.
A group of seven individuals and one construction corporation are suing for the recognition of a private piece of land on Marshall Road as a public thoroughfare.
A court’s recognition of the land as a default public route would legally allow for the construction of a road that would bisect Gazzam Lake Park and Close properties, and connect Marshall Road to undeveloped lots on the park’s west side (near Crystal Springs Drive).
The plaintiff landowners have the right to pave the public easement for access to their parcels that could accommodate up to 15 homes. The easement was established along Gazzam Lake’s north border when the park was originally acquired by the district in 1995.
However, if the easement in question were connected to Marshall Road it would go through a triangle chunk of property owned by Walt and Nora McGraw, landowners who are adamantly against a paved road through Gazzam Lake.
“We’re going to fight it. We’re going to do everything in our power to make sure a road won’t come through the park,” Walt McGraw said. “We are not trying to keep them off their land, we’re trying to keep them from destroying a park.”
The McGraws and other homeowners in the Marshall Road and Spring Ridge Road area have created a group named Save Gazzam, and are framing the issue as a matter of environmental impact. The website boasts more than 1,000 signatures of island residents opposed to the road.
Members of the Save Gazzam group claim that landowners trying to pave the road are ignoring more expensive road construction alternatives since money for the road’s construction would be supplied by the landowners.
City planners have said the citizens would need to assess all alternatives, including connections to Crystal Springs Drive or either Springridge or Marshall roads to access their property. In the past, landowners have said Crystal Springs isn’t feasible for a road because the slope is too steep. It is not known how much money it would cost to build a road to Crystal Springs; cost evaluations made by the landowners are not public information.
“They said that coming up from Crystal Springs would be too expensive,” said Save Gazzam signatory Richard Labotz. “I am still not happy that they are trying to divide the properties (Gazzam and Close) and their motivation is, of course, to make money.”
Two plaintiffs involved in the case would not comment on the litigation when contacted.
The lawyer who filed the suit for the landowners, Blair Burroughs, gave one comment and then did not return follow-up phone calls.
“We’re basically trying to get access,” Burroughs said. “(Connecting to Marshall Road) looked like the best option. We believe there is a public easement by prescription. We have a firm legal position or we wouldn’t have filed the case.”
Analysis of documents filed with the lawsuit indicate the landowners are claiming a historic right (public easement by prescription) to the McGraw’s piece of Marshall Road, citing maps which indicate that the road at one time connected with Crystal Springs Drive through what is now Gazzam Lake Park.
They are also backing up their claims of easement by prescription, arguing that the public has “long made use of the road,” and that both vehicles and pedestrians regularly traverse the McGraw property to gain access to Gazzam Lake.
The park district, which has up to this point been removed from the debate, was thrust into the middle of the lawsuit when Burroughs listed the district as an involuntary plaintiff in the case. Park district attorney, Ryan Vancil, said he is puzzled by his client’s listing as an involuntary plaintiff in the suit.
“It is a unique if not rare procedure,” Vancil said. “There is some confusion as to why we have been named as parties. We’ll be exploring changing our status because we think we are improperly named. (If anything) we think we should be a defendant. We have no complaint or cause of concern with Walt McGraw.
“We view it as he has been generous to allow the public to access the park through his land, and now he is being punished for that,” Vancil said. “They claim the public has been crossing his lot, so they have a right to build a road through. Those are two very different things.”
On Thursday, the park district board discussed the case and decided to take action siding with the McGraws.
“The (parks) board has voted to enter into a joint defense agreement with Walt and Nora McGraw,” said district board member Ken DeWitt.
A joint defense agreement allows for the district and the McGraws to share information that is normally confidential between parties.
“Our stated position, we would prefer they access off of Crystal Springs,” DeWitt said. “(Gazzam and Close properties) are a nature preserve and we want to do our best to comply to the wishes of the people of Bainbridge who wanted this property kept as a nature preserve.”
Peter Buck, the attorney who is representing the McGraws in the lawsuit, has said the legal suit will most likely be a long and extensive battle.
“From what I have seen so far, the other side has a very uphill battle in establishing their case,” Buck said. “We will be sure that any decision-maker knows what an environmental travesty this decision will be.
“We will be sure that any decision-maker knows that (the landowners) have alternate access and they are simply trying to go through the park to put more money in their pockets as opposed to building a road from Crystal Springs,” he continued.
“We’ll be sure it costs them more money to litigate than they will save by taking the cheap route and destroying a park,” Buck said.
