City ‘reassesses’ road-end blockage policy

By Bryan Tagas

As a result of a unanimous action of the Seattle City Council earlier this month, waterfront property owners who block access to public right of ways will now have to pay more—significantly more—for the privilege.  The City’s new stance has immediate implications for the two Madison Park property owners whose landscaping completely blocks access to the public waterfront at the E. Mercer Street road end.  The new fee schedule is retroactive to January 1, though it will be three more years before full implementation is phased in.

As we reported on this blog and in a front-page story in the Madison Park Times earlier this year, our neighborhood’s sixth public road end has been unusable by the public for many decades. The 120-feet-wide property is located south of the Seattle Tennis Club in an area of 39th Avenue E. known to locals as “Devil’s Dip.”   Though this prime lakeside real estate belongs to the City and is under the jurisdiction of its Department of Transportation, you’d never know it from looking. Conifers and hedges block access to the shoreline and almost totally obscure the view of the Lake.  This situation may change, however, if the abutting property owners decide that the cost of blocking public access is now too steep.  It appears that they will ultimately have to pay at least two times as much for annual permit fees as they have been paying.

But before we get into the details of the City’s new policy and its potential for opening up the E. Mercer Street road end to public use, let’s revisit how this particular piece of Madison Park waterfront ended up as a private reserve.  Since our original story was posted, several longtime residents have come forward with identical—though at this late date, unverifiable—stories about how the street was effectively “vacated” by the abutting property owners; in particular, the owner of the property to the north of the road end, Jacquetta Blanchett Freeman. According to local lore, Ms. Freeman, in order to discourage use by the madding crowd, installed a water-sprinkler system on the public right of way. Whenever she saw someone on the road end she would come out to verify if it was one of her friends or their children; and if not, the sprinklers would suddenly spring to life.  Over the years, Ms. Freeman successfully aborted the picnics, sunbathing activities, and assignations of many unsuspecting visitors to this public site. Eventually, strategic landscaping did the rest—and the public nature of the northern side of the road end became lost to history.

Or so the story goes.  According to one of our sources, there was also a concrete stairway from 39th Avenue E. that onetime provided access to the public waterfront.  That stairway was apparently removed at or before the time Ms. Freeman (or perhaps the previous property owner) convinced the City to allow the construction of a double-wide garage in the middle that public space. That garage is still there.

The property owner just to the south of the road end, meanwhile, planted a hedge of Portuguese Laurel across the southern third of the public space and then created a lovely side yard for himself by extending the hedge straight to the waterline, paralleling his own property.

As we reported, the current owners of these properties did not originate the encroachments but are simply the beneficiaries of a City policy that allows each of them to keep the benefits of excluding the public from the site by paying annual fees of $35,100 and $21,800, respectively.  What our investigation uncovered was the fact that for the entire ten-year period during which the fees have been charged, the City never updated the assessment of area property values upon which its fees were based.  By our estimate, the average assessment by the King County Assessor in 2010 was $467 per square foot for the close-by properties along 39th Avenue E.  In determining the encroachment fees, the City has been using $90 per square foot, the assessment it had originally arrived at in 2000.

This failure to keep pace with market values is what the City Council is attempting to correct with its newly passed ordinance. The original ordinance failed to allow for the use of King County Assessor data when determining fees, and the City had been remiss in never sending its own assessor to the property to re-evaluate the site based on current market conditions.

The new ordinance corrects this oversight by requiring that the land value of the encroached-upon space be based on “the abutting parcel’s current land value per square foot as determined by the King County Assessor.”   This is a big change.  The 2011 assessed value for the abutting property to the south of the road end is $512.71 per square foot.  This would value the 4,800 sq. ft. of the enclosed public property on that side of the road end at $2,461,017.  That’s 5.7 times the value the City assessor had placed on the property and equates to an annual fee increase from $21,600 to about $123,000, all other factors remaining equal.

The abutting property to the north, meanwhile, is assessed at $177.61 per sq. ft., 1.97 times the value the City assessor had previously placed on the property.  This values the enclosed public property there at $1,385,358, which could mean an annual fee increase from $35,100 to about $69,000.  However, because the area encroached upon extends beyond the center line of the public space, part of the 7,800 sq. ft. that the northern property owner has enclosed may be subject to the higher rate paid by the southern property owner.  The ordinance appears to require this: “If the use area extends beyond the centerline of the right-of-way or abuts multiple parcels, the permit fee shall be calculated for each portion of the use area according to the current value of the abutting parcels.”

In any event, the new fees, though retroactive, will not be assessed in full this year.  According to Brian de Place, the City’s Manager for Right-of-Way Management/Street Use, the intention of the ordinance is to “soften the effect of the increase.” So the new fees will be phased in over the next four years, 25% of the total increase to be tacked on each year through 2014.

It has taken the Council about six months to go from drafting to passing the final ordinance, but the impact of this action could have the consequence—unintended or otherwise—of ultimately making the private use of this public space just too expensive for one or more of the abutting property owners to want to pay for.

Time will tell.

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Madison Park road end closed to the public

East Mercer Street: No Trespassing

By Bryan Tagas

For several decades the owners of two waterfront properties in Madison Park have taken for their private use the public road end which sits between their two properties. By doing so, they have excluded the public from what is publicly owned waterfront. This encroachment on the public right-of-way, which may have begun in the 1950s or before, was initially accomplished through the planting of hedges and other landscaping across the road end, thereby blocking physical access to the site and effectively eliminating the public’s view of Lake Washington from the roadway.

Although the City became aware of these illegal encroachments late in the last century, it has not required either that the obstructions be removed or that the waterfront be returned to public use. Ironically, the unsanctioned action of the former owners of these two properties in blocking off the road end provides the current owners with the ongoing right to keep out the public. Because this road-end encroachment has been “grandfathered” under current City rules, all that the abutting property owners have to do now is pay an annual fee for their continued private use of this public space. And that annual fee is not based on the current assessed value of the surrounding properties.

The public property in question is the E. Mercer Street road end, which is located off of 39th Avenue E. in the area several houses to the north of the E. Harrison Street public road end, better known as Hidden Beach. This section of 39thAvenue, just south of the Seattle Tennis Club, is known to locals as the bottom of “Devil’s Dip.” Although Mercer Street actually peters out well to the west of 39th, its stub street end on Lake Washington represents more than a quarter acre of prime Madison Park waterfront. At 120-feet wide, it is twice the width of the Lake Washington lot which abuts the road end on the south side.

Private encroachment on public property usually generates a significant level of public controversy and media attention. Just down the road and around the corner from the E. Mercer Street road end, for example, lies Viretta Park. Many will recall the public outcry in the 1990s that resulted from the supposed encroachment of a neighboring homeowner, Starbucks CEO Howard Schultz, into the Park’s public space with his landscaping, driveway, and wall. That brouhaha ultimately involved the City Council and the Courts, and Schultz ultimately exited the property. Currently, there is well publicized dustup underway in Laurelhurst over a hedge which only partially obstructs a waterfront road end there. That encroachment benefits a property once owned by Bill Gates, which is currently owned by his sister, Libby, and her husband. Several Laurelhurst residents are up in arms that even a minor private encroachment on that public space has been allowed to continue.

The conversion of the E. Mercer St. road end from public space to private use has never received the kind of media focus that has been generated by these other encroachments. This may simply be due to the fact that very few Madison Parkers are aware that the property in question even belongs to the public. One longtime resident, who lives just down the street from the road end, tells us he cannot remember the public ever having access to the site in the more than 50 years he’s lived there. When a group of community activists from Madrona attempted to get the City to return it to public use several years ago, the E. Mercer St. road end did achieve a bit of notoriety; but there was virtually no media coverage of the group’s efforts. In any event, the City rejected the group’s public-use challenge.

We made a Public Disclosure request to the Seattle Department of Transportation (SDOT) to learn the process by which the public has been legally excluded from this public waterfront site. We also questioned Brian de Place, SDOT’s current Manager for Right-of-Way Management/Street Use, about the situation. What we learned from our investigation is that while the City’s official policy is that “the highest and best use of these street ends is for public use,” there are exceptions. The E. Mercer St. road end is probably as extreme of an exception as is possible, since it involves the complete abandonment of public use.

Here’s a little history of the City’s attempt over the past few years to deal with private encroachments on waterfront road ends. There are 149 such road ends within the City limits, six of which are located in Madison Park. In 1996, the Seattle City Council passed a resolution stating that it is City policy that “Shoreline street ends…shall be preserved as public rights-of-way.” The resolution, however, was strangely silent on the issue of whether existing private encroachments on these road ends must be removed, and no procedure was established for determining when private usage of a public road end could be permitted.

This created an ambiguous situation, which the Council sought to clarify in a 1999 ordinance, which reaffirmed that the City’s goal was to “keep adjacent property owners from encroaching on the public’s shoreline street ends,” but then went on to outline the procedure by which existing encroachments would be permitted through the payment of an annual fee. The amount of the fee was to be based on the size of the encroachment in square feet, the percentage likelihood of the public wanting to use the site (the demand/probability factor), the extent to which any barrier on the site impeded public access (including visual access), and the estimated value of the land per square foot. An annual rate of return (the “land capitalization rate”) was also to be factored in.

The idea was to use the fees that are collected to fund the City’s shoreline street-end management program, including paying for improvements, the inspection of road ends, and the notification to property owners of any encroachments. The SDOT was directed to establish a policy for enforcing the new ordinance, which it did in 2000.

Now, to return to the E. Mercer St. road end. In July of 2000, the City notified the encroaching property owners to the north and south of the road end that they could either apply for a Shoreline Street End Permit or remove the barriers that existed to the public right of way. The letter from SDOT’s Street Use Division included this statement of the City’s philosophy: “Although the ultimate goal is to remove all private uses of these street ends, the permit process acknowledges some private uses will continue. This permit process provides a means to review and approve private uses, as appropriate, until the property can be developed for public use.” Both property owners chose to keep their barriers in place, and from that point forward they have been paying annually for the continued right to block public access to the waterfront at E. Mercer.

Initially, the annual private-use fee amounts were $28,080 and $21,600 respectively, the property owner to the north having encroached on 7,800 sq. ft. of public shoreline and the southern owner having encroached on 4,800 sq. ft. It appears that these fees were not adjusted in any way for seven years, but in 2007 the amounts were set at $35,100 and $21,600 respectively; and those are the annual fees the property owners are paying today. The increase in the fee for the northern property owner was based on the City’s evaluation that the barrier to public access had increased from 80% in 2000 to 100% by 2007.

It is not clear, however, that the City has correctly determined the permit-fee amounts for the E. Mercer Street encroachments. According to the City’s stated guidelines for calculating the permit fees, “values are generally based on averages of assessed values for waterfront properties within like areas.” But SDOT in 2000 assigned a value of only $90 per sq. ft. to the area of encroachment. This assumed land value was never updated when any of the ten subsequent permit renewals occurred, and it is significantly lower than the property values set by the King County Assessor for the neighboring properties. Indeed, the 2010 assessments for the 14 waterfront properties in Madison Park along 39th Avenue E. average $467 per sq. ft.

The 12,600 sq. ft. of public property at the E. Mercer Street road end, based on King County’s assessment of the “like properties” in the neighborhood, would be valued at almost $6 million. However, based on its permit calculations, SDOT’s estimate of the value is only $1.1 million. Quite clearly, if SDOT used a factor based on the actual average assessed value for the area’s waterfront properties, the permit fees of the encroaching property owners would be substantially higher than what the City is receiving.

SDOT’s Brian de Place acknowledges that the City’s estimate of the road end’s value for permit purposes is not in line with current property values. He states that under the current ordinance, the City is not allowed to use King County Assessor data to determine value or to update values once the “City Assessor” has made the original site-specific determination, in this case ten years ago. A proposed change in the ordinance to be introduced next year, de Place notes, will allow the City to increase the permit fee amounts to take into consideration the current values of surrounding properties. If the existing $467 per sq. ft. surrounding-property value were used in calculating the encroachment-permit fees, the annual amounts paid by the two property owners would increase to $182,130 and $112,080 respectively.

According to one of the abutting-property owners, however, the road end is not being undervalued by the City. He says the property could never be built on because a house there would violate current waterfront building regulations concerning setbacks from the waterline and protection of neighbors’ views. If the property could not be built on, he argues, it has little or no value; and the City should therefore not look to the value of neighboring properties when determining the permit fee.

He also points out that neither he nor the property owner to the south created the situation at the road end. They each bought their properties when the encroachments had already occurred. After reading a draft of this posting he responded that “I think the issue is far more nuanced than you make it out to be.” He noted, for example, that the City has no money for upkeep of another public road end, there’s inadequate parking available on the street, and past illegal activity at Hidden Beach offers a warning of what the neighbors can expect if E. Mercer St. is opened up. Moreover, the City is getting some badly needed funds for the street-end program as a result of encroachment-permit revenues.

“I get charged a fee, and I pay it,” he told us. “I don’t control the fee, I don’t control how SDOT works, I don’t control who runs the city. I just get my bill and pay it, just like I pay my property taxes and my light bill. After I bought the house the city imposed the policy you are writing about. I was given the choice of paying or not paying. I chose to pay. So I think that a journalistic slant that tries to make it look like the homeowners cut some side deal with the city implies proactive intent on the homeowner’s part. The truth is that the city changed its policy and notified us and gave us a choice.”

The City, of course, could change its policy again and decide to open the road end to public use. That is the ultimate goal of the street-end policy, after all. But selling the land to the surrounding property owners is not an option. The idea has been broached, but according to de Place, selling the land could only occur after a “street vacation” in which the City would first have to certify that the site could never be used for public purposes. That’s not going to happen, he told us.

For now SDOT is happy just to collect its permit fees and look forward to receiving even higher revenue from the road end when the new ordinance is finally adopted. De Place notes that the goal of City policy is being advanced by the permit process, which since its adoption in 2000 has resulted in the reduction of shoreline encroachments from 93 to just 34. He expects that trend to continue. If so, perhaps one day there will be a sixth road end in Madison Park that the public can not only own but enjoy.

[Graphics: Upper photo shows the view from the southern portion of the roadend. Aerial photo, from Google Earth, shows the extent of the public property on the waterside, currently enclosed by private property owners. The middle photos show the obstruction of the road end as viewed from the street side, on the south and north, respectively. The bottom photo shows the entrance to the public road end from the private property to south. The map shows the six publicly owned road ends in Madison Park.]

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A survey of Madison Park road ends: Part Two

“Hidden Beach” at E. Harrison Street

Madison Park’s southernmost road end (like our rustic northernmost road end, which we profiled earlier), is a bit off the beaten path. In spite of the fact that it’s actually not the most obscure or hard-to-find waterfront road end in the neighborhood, it’s still well deserving of its local moniker: Hidden Beach. You have to venture down “Devil’s Dip” to get to it, and unless you know what you’re looking for you might very well miss the entrance.

Officially, it’s the “street end” for E. Harrison Street, which actually peters out several blocks higher up the hill, where—at its intersection with Lake Washington Boulevard E.—it terminates its role as a transportation route. This little unconnected waterfront stub of E. Harrison is not at all obvious as either a road end or as beach access (though there is a sign). Frankly, it looks very much like a homeowner’s driveway:

But E. Harrison Street without a doubt has the nicest beach of any of Madison Park’s six waterfront road ends.

You enter Hidden Beach from 39th Avenue E. (known to locals as “Devil’s Dip”) and approach it through a woodsy trail.

The trail terminates in what is a surprisingly lovely and relatively wide sandy beach, though very much smaller and far less able to accommodate a horde of sunbathers than Madison Park Beach can.

This beach, we’re told, is popular with some locals looking for water access for their dogs. A onetime beach-side resident also reports that there are occasional nude swimmers in the early morning hours, but Hidden Beach is definitely not to be confused with the famous Nudie Beach further south on the Lake (more on that in a later posting).

Hidden Beach, unlike a couple of the other waterfront road ends in Madison Park, is a well maintained and appreciated neighborhood amenity for those few who venture to take advantage.

[Upper photo: looking North from Hidden Beach (aka Secret Beach). Bottom photo: looking South. Aerial photo from Google Earth.]

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A survey of Madison Park road ends: Part One

The 37th Avenue East “Beaver Lodge Sanctuary”

There are 149 streets in the City of Seattle that end at the water’s edge. These road ends are usually the unintended consequence of early City mapping, but they often provide a public right-of-way to shorelines where only private access would otherwise exist. This is not the case in Madison Park, of course, where our long and popular Madison Park Beach gives us immediate, large-scale access to Lake Washington. Nevertheless, Madison Park also has six of the City’s shoreline street ends, a few of which have been turned into lovely community jewels. While some of the road ends are fairly well known—at least to Madison Parkers who live in the immediate vicinity—others are more obscure.

This is the first of a series which will explore each of these waterside amenities, starting today with our northernmost waterfront road end, the one at 37th Avenue E. This particular public access point, which is certainly the most wild and secluded in Madison Park, is also the most ironically placed. It’s ironic in that the street for which it is supposed to be the road end actually peters out many blocks to the south (at E. Garfield Street) and doesn’t even extend into the Canterbury neighborhood. But 37th Avenue E. suddenly and mysteriously reappears on Broadmoor’s border with Canterbury and runs for one block from E. McGilvra Street to the waters of Union Bay. Cars can and do enter this road end, since several houses along the right of way have driveways that exit onto it. But about halfway down, the road end is closed to car traffic and a gravel pedestrian path winds down to the waterside, ending at a pier on the Lake.

This road end became famous recently for the controversy over Broadmoor’s dredging operation in the area, the purpose of which was to improve the golf course’s ability to pump water from the Lake. Nature lovers were concerned about the possible negative impact of the dredging on area beavers, which fortunately returned once the dredging was finished. There is a beaver lodge directly across from the road end pier. Hense the "Beaver Lodge Sanctuary" moniker.

This road end has been the beneficiary over the last couple of years of the concerted efforts of many volunteers, who have removed the brambles and refuse and replaced them with trees and shrubs. A lovely community park has now been created where an overgrown mass of vegetation and garbage once blocked full access and obscured the view. The beautification effort has been headed up by Canterbury residents Gene and Liz Brandzel, who along with neighbors Lisa and Michael Anderson, carted eight truckloads of cuttings away from the site in their first season of cleanup. According to Gene Brandzel, the road end had previously been a general dumping ground, as well as a conveniently hidden party location for area teens. He says that he and his wife found at least 200 beer, liquor and water bottles on site when they first began their cleanup efforts. This was in addition to "innumerable used condoms, some a very patriotic red, white and blue."

Volunteers, including Ken Myrabo, Elinor Kriegsman, Trent Jackson, Paul Fredrickson, and Issac Molitch, joined forces with the Brandzels and Andersons to remove weeds and blackberry bushes and add native plantings to the road end, many of which were donated to the cause by Molitch and his wife, Lisa Taylor. Sixteen families each sponsored a tree to be planted along the pathway.

Brandzel also acknowledges the help the volunteers received from arborist Joshua Erickson of the City’s Department of Transportation, “who has been fabulous in guiding us as to what to plant and in arranging to remove dead trees and opening the site to light.” Additionally, the City provided funds for benches to be installed at two locations on the site.

Periodic work parties are necessary to maintain and nurture the road end, which has become something of a wildlife observation point and conservancy within the precincts of our urban setting. There are few places in the City where you can get in touch with nature by enjoying the sight of beavers frolicking and herrons wading, but this is one of them.

You have an opportunity to support the worthy effort of maintaining and improving this particular Madison Park amenity. A work crew of dedicated volunteers will be formed on Saturday morning to remove blackberry and knotwood shoots from the site. A second crew will be organized to spread gravel on the 350-foot path to the water. Those interested in helping out should contact Gene Brandzel at genebb@gmail.com or (206) 940-4489.

[Aside: Some may think that we actually have seven waterfront street ends in Madison Park. However, it only appears that way. As those who have been following the LOLA Project controversy know, E. Madison St. does not end at the water. It actually ends at its intersection with 43rd Avenue E. The fact that it looks like it extends to the water is an illusion, since the concrete roadway is actually the property of the City parks department and not the Seattle Department of Transportation.]

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