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HomeMy Public PortalAbout1985.02.22 Attorney General's Opinion Letter Concerning Sports MarinaROBERT H. REMAKLUS, LAWYER P.A. Robert H. Remaklus Mr. Jim Smith City Administrator P. O. Box 1065 McCall, Idaho 83638 Dear Jim: Professional Center Building Post Office Box 759 Cascade, Idaho 83611 Telephone [208] 382-4267 February 22, 1985 Re: Snorts Marina Lease Agreement Enclosed is a copy of an Attorney en :.-al' s opinion dated February 20, 1985, concerning the Sports Marina. Please loot: it over carefully and give re a ring. Very truly yours, Robert H. RemL lus bb ,e\ft `21 t242 , .526(0 •' ‘' cA ca N. STATE OF IDAHO J` 'L Jim JONES BOISE 83720 U \.. • `7 f1JC9� TELEPHONE ATTORNEY GENERAL 1 ,• `�1��. '''g) 12061334-2400 Robert H. Remaklus Attorney at Law P. 0. Box 759 Cascade, ID 83611 OFFICE OF THE ATTORNEY GENERAL February 19, 1985 Re: Sperts Marina Lease Agreement Dear Bob: You have asked us a number of questions about a most unusual lease agreement between the City of McCall and the Sports Marina, a business in McCall, Idaho. The Sports Marina owns the property which adjoins a city street and Big Payette Lake. The street abuts the edge of the lake, having the high water mark .as its westerly line. The "lease" does not lease lands; it oily purports to lease the high water line bordering the street and the lots owned by the Sport Marina. The "lessee" agrees not to encroach upon the city street. The owners of the Sports Marina have an independent agreement with the State of Idaho, Department of Lands to lease ,portions of the lake bed and the area between the high and low water mark for use as a marina. The Sports Marina owners wish to sell or assign their property to another party. The City has determined that it should raise the "rental" rate on its "lease". A summary of the agreement follows. The description is only of the high water mark line abutting the lake which is the edge of a city street. The City leased the line in 1961 for one dollar a year for 25 years with a ten-year renewal clause. The agreement stated that the premises were to be used for a marina and :elated sales which must comply with Idaho law, federal law, and city ordinances. The lessee was to construct buildings, not encroach upon the street right of way, and be responsible for any injuries to property or persons. If the lessee abanc:oned the lease or vacated the premises, lessor Robert H. R.emaklus February 19, 1985 Page 2 could re -let. The lease provided for notices of default and contained a hold harmless clause. The lessee could assign only with the written consent of lessor. It was stated that the lessor made no warranty as to the title of the property, nor of the lessor's right to lease the property. The lessee agreed to defend the lease if anyone questioned its validity. Also to be considered, is the case of Payette Lakes Protective Association v. Lake Reservoir Company, 68 Idaho 111, 189 P.2d.1009 (1948), which was a suit relating in part to Big Payette Lake. According to the case, there is a dam at the outlet of the Big Payette Lake which. does not raise the water level. Thus, it does not appear that there are any privately owned lands between the declared high water mark and the natural high water mark. In other words, the declared high water .mark at the edge of the street in question is probably the natural high water. You have asked the following questions: 1. Is the city as trustee of the dedicated street in the same position as a riparian or littoral owner? 2. Even if so, does the city in fact have anything to lease in this case? 3. Does the city have the right to require greater rent in return I=or permission to assign the lease? In answer to the third question, the agreement provides that if the lessee is not in default he may renew the lease upon the same terms and conditions for an additional ten years, at the end of the original lease. Because of this, the city has no right to /e quire a greater rental under the terms of the agreement unless the lessee acquiesces. In answer to your first and second questions, this document is not a lease. It is akin to a franchise, permit, or license. 1: does not lease a particular piece of property. At best, it is an agreement relating to use of a street and allowing iLdividuals to carry on a business. The fir.3t two questions present a considerable number of problems. Drdinarily, where a street borders on a body of water, the abutting owner acquires the fee of the entire Robert H. Remaklus February 19, 1985 Page 3 street. It is probable that the abutting or adjacent owner owns the underlying property, subject to the city's right to use it as a street, and has littoral rights. Burkart v. Fort Lauderdale, F1a.Dist.Ct.App. 156 So.2d 752 (1963 MforT—V Horton, 54 Wash. 595, 103 P. 988 (1909). There is quite a bit of case law to the effect that a city's refusal to grant proper access may be subject to suit to force the city to grant such access. See Ben Lomond Inc. v. City of Idaho Falls, 92 Idaho 595, 448 P.TIT-209 (1964 and cases cited therein. The right of access is a property right. An old Idaho case holds thEt access to a public bridge could be reasonably regulated but could not be arbitrarily prohibited. In that case the court stated: . The lot owner has a very material and special interest in having the public reach his property and place of business and in his right to go and come and carry on business and invite the public to his place of business . . ." Village of Sandpoint v. Doyle, 14 Idaho 749, 95 P. 945 (1908). On the other hand, the public has a definite right to use streets for travel in the usual and ordinary manner by day and by night. The abutting land owners have certain rights in the street and to the lake front because of their ownership of the abutting property. The city also has rights in the property which include traffic regulation, maintenance of the streets, and the right to use the sub -surface for pipes, power and communication lines. All these things are consistent with public use. A street may also constitute a dike or sea wall. A city may erect a wharf at the side or end of a street. These uses do not necessarily entitle an abutting owner to compensation. The city may also control access within reason. Mc uillin On Municipal Corporations, SS 4.138, 30.40 - 30.44; and in a o Code SS 50-311 - 50-318. A lease, like a deed, must contain certain features and requirements or it is ineffectual. These include a proper description of the property to be transferred. Any lease must also contain a definite statement or agreement as to the extent Robert H. Remaklus February 19, 1985 Page 4 and bounds of the property to be leased. Gaskill v. Jacobs, 38 Idaho 795, 225 P. 499 (1924); and King v.. White, 479 P.2d 585 (Wyo. 1972). A line may have breadth or width if it is a wall, a ditch, a .fence, a hedge, etc. But a surveying line, prima facie, means a mathematical line without breadth or width. The meaning, of course, depends upon its use. Baker v. Talbot, 22 Ky. 179. F'ere, the description is only of a line on—Th7—edge of a street right of way which is also the high water line of a lake. It may be located definitely and it would be a definite mark on they ground, but it does not contain or surround any real property. In this case the reference is clearly ,to the high water line, not to a particular piece of land. Further, the "lease" states that the lessee will not encroach upon the city street. An abutting owner has a right to access or ingress and egress, and in this case a right to access to the lake or a littoral right. McQuillin On Municipal Corporations S 30.33. This right to access is definitely a property right and cannot be appropriated without compensation. McQuillin On Municipal Corporations SS 30.63 and 37.251. This "lease" states that the city will allow the lessee to carry on a business which will not encroach upon the street. The lessee has obtained rights from other persons, i.e., the State of Idaho, to use the lands below the high water mark and within the lake by a separate transaction not related to the city's "lease". The abutting owner also has certain littoral and access rights to the street and the land below the high water mark. In this case, the lessor city particularly disclaims title to any property rights involved. In the "lease", tie city, in effect, states that it has no property rights. The label or name on a document is not of real importance. In our view, this is not a lease. It is a contract between the city and an individual to allow a particular business to be carried on without undue interference for 25 years plus an additional ten year renewal. period. It does not appear that the agreement gives the lessee any extraordinary privileges to use or rights which it should not be given. The agreement appears to agree to allow the lessee to use the street and its access to the lake. The rental is firmly stated at one dollar per year. The renewal clause appears to preclude any move to raise the runt if the contract is not in default. Robert H. Remaklus February 19, 1985 Page 5 This a€;reement may be an agreement to allow the business of a marina within the city. It could be considered to be a franchise. Idaho Code S 50-329. Or, it could be regarded as the city's exercise of supervision of its streets, or the edge of one of '.ts streets, under some or all of the following Idaho Code Sections: 50-301, 50-302, 50-303, 50-313, and 50-314. It could also be considered as a business license under Idaho Code S 50-307 (.except that it might then be open to the objection that it ms.y not be uniform and does not regulate a proper class or any class at all.) This contract might also be taken as a contract to encourage the business of a marina. Cities have a legitimate right to encourage trade; industry, and commerce, under Idaho Code S 50-302. Sincerely, Warren Felton Deputy Attorney General Local Government Division WF/cjm City of McCall OFFICE OF THE CLERK BOX 1065 MCCALL, IDAHO 83638 November 14, 1984 Department of Motor Vehicles Boise, Idaho 83720 Dear Sirs: In regards to the Sports & Marina commerical establishment, the building and sales area is located below the high water mark of Payette Lake and therefore is unzoned. The City of McCall has no zoning jurisdiction for that area and therefore can only inform you that we have no objection,to the sale of motorcycles. In reviewing with the State Department of Lands the lease with Sports & Marina is a commerical one and does allow such sales. If this letter is not adequate for your us-e please contact our office for further information. Sincerely, Jim Smith City Administrator ROBERT H. REMAKLUS, LAWYER P.A. Robert H. Remaklus Professional Center Building Post Office Box 759 Cascade, Idaho 83611 Telephone [208] 382-4267 October 31, 1984 Mr. Robie Russell Deputy Attorney General Statehouse Boise, Idaho 83720 Re: Sports Marina Lease Agreement Dear Mr. Russell: Enclosed is a photocopy of the lease agreement we have been discussing. Your particular attention is directed to the paragraph entitled ASSIGNING AND SUBLETTING ap- pearing on the fourth page thereof. At sometime in the past the lease was assigned to Snorts Marina, Inc., and now the corporation is seeking permis- sion from the city to assign such lease to a new purchaser of the premises. Mr. Hardy has at all times until the pre- sent been an owner of the marina or the president of the corporation. The present city council is seeking a more realistic rental for the premises before approving the assignment. Mr. Hardy and the new marina manager appeared at the last city council meeting to object. One of the principal ob- jections is that no other business in the city pays rent to the city to operate a business adjacent to a dedicated city street. The fact being that the structure is situ- ated over the surface of Big Payette Lake resting on piers and foundations located below the high water line. In order to more fully outline the factual situation I am .also enclosing a plat of McCall's First Addition and a copy of an aerial photograph obtained from the County Assessor. Lake Shore Boulevard runs North and South and its width extends from the Westerly boundaries of Blocks 3, 4, 5 and G of McCall's First Addition Westerly to the high water line of Big Payette Lake. Mr. Robie Russell October 31, 1984 Pace 2 I have marked Mr. Hardy's property in red, Lot 1 through 5 of Block 4, which is across Lake Shore Boulevard .from the marina. The marina building does not extend along Lake Shore Boulevard as far as Mr. Hardy's property. The leased property is shown by the broken lines extending West from the Hardy property lines. The aerial photo shows the boat slips and the marina build- ing. It also shows the area immediately South of the mar- ina building and boat ramp which has been filled in for boat and trailer parking. It is my understanding that County Waterways funds went to;pay .for the fill. It is not part of the leased property. Worth of the building you can see on the aerial trees and bushes that are crowing in the street. The questions that immediately occurred to me are as follows: •1. Is the city as trustee of a dedicated street in the same position as a riparian or littoral owner? 2. Even if so, does the city in fact have anything to lease in this case? 3. Does the city have the right to require greater rent in return for permission to assign the lease? The question of a reasonable rental value may best be deferred until the foregoing questions are resolved. The limited research materials available here have not yielded much. Your assistance in determining the rights of the city herein shall be most appreciated. Perhaps the Deputy Attorneys General assigned to the State Land Department and the Water Resources Board can also help. In any event, I shall look forward to hearing from you. Thank you for your continued good counsel. Very truly yours, Robert H. Remaklus bb cc City Administrator