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
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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
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cc City Administrator