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Home My Public Portal About20131210Exhibit B.pdfLAW t]MCFS CALLAwAY, BRAUN, RIDDLE & HUGHES P.C. A PROFESSIOkRL COFJ-ARAT W TIMOTHY F. CALLAWAY, III DANA F. 8RALIH R. KRANNERT RIDDLE EDWARD M. HUGHES O. SCOTT PORCH. IV THOMAS E BRANCH, Ill Ms. Diane Schleicher City of Tybee Island P.O. Box 2749 Tybee Island, GA 31328 3W WEST CONGRESS STREET SAVANNAH, GEORGIA 31441 TELEPHONE (9 12) 238-2750 FACSIMILE IS 12) 238 2757 November 15, 2013 RE: Marine Rescue Squadron Property (Post Swanbe File No. 572.19498 Dear Diane: `REPLY To; POST OFFICE BOX 9154 SAVAIWt4H, GE ORGW 51412 VoiiCe Mail Extension -107 14ftil— .COM YIA EM11L QALY This -letter is a follow-up to our meeting with DAC regarding the properties at L=retto Creek. As I discussed at our meeting, there is a lot of history, in these properties. My aim is:to . provide you; and anyone else, including DAC with a coherent history and status of the properties at the moment. Further, I want to discuss a couple of issues that DAC raised, specifically the fence erected between the MRS and Scarborough property and the use by Scarborough of the parking along the fence, and provide whatever legal opinions I can on those matters. The properties that DAC has raised concerns about include portions of old Highway 80 that was abandoned when the .road was shifted north to its present location. Some history is important to understand where we are today, On December 30, 1919, the Tybee Beach Company conveyed laud to Chatham County for construction of Old Tybee Road. In 1961, the road was relocated to its current location and the old existing road continued to be used by the landowners in the area. - On April 23, 1981, Chatham County conveyed a portion of the old right - of way to the City.. This deed contained a reverter clause, in essence saying that the property would revert back to the County if it were ceased to be used as a marine rescue squadron: In 1992 a second deed was recorded deeding the property from Chatham County to the City that did not contain a reverter clause or the express condition that it be used for the MRS. My opinion, which is the same as Bubba has previously given to previous Councils, is that the second deed does away with the reverter clause, the language about the property reverting Back to the County if it is not used for MRS. In layman's.terms, the second deed trumps the first. In December 1993 a dispute arose between the property owners to the north, of the right- of-way, ight- cif way, Michael and Iris Scarborough, and the City/Manne Rescue Squadron pertaining to property roPerty ri is in the area. I will not get too deep into the underlying dispute, but it had tod6. � with a permit for a floating dock that would be adjacent to the Old Tybee Road right-of-way that D. Schleicher Pg. 2 of 3 the Scarboroughs submitted (and other issues as well). When objections were made to the permit by the City and MRS, the Scarboroughs, Georgia Coastal Services, Inc. d/b/a Lazaretto Creek Marina sued the City, the MRS and several members of the MRS individually. I am sure that DAC will remember all of this since he was sued individually. The suit sought damages and an injunction prohibiting the City, the MRS and its members from interfering with their efforts to construct a dock or modify the existing permit. The Scarborough's claim title to the marsh and I will not get into that other than to say that the City and Scarboroughs agree to disagree on this issue. The City, MRS, its members and the Scarboroughs reached a settlement agreement in January of 1994. This agreement was reached after several meetings and agreement by all patties that the settlement was favorable compared to continued litigation. DAC was likewise a signatory to the settlement. The agreement expressly did not resolve the dispute concerning the "marsh property" and either party retained the right to have that issue determined however, the parties agreed that the Scarborough's right to maintain their dock was not dependent on the title to the marsh property. ' In order to resolve the issue which would subsequently have to be litigated with the property owners abutting the right-of-way on the south side, the Scarboroughs conveyed any claim they had in the northern half of the old right-of-way itself. Importantly, the Quitclaim Deed from the Scarboroughs to the City expressly stated that there was saved and reserved unto the Scarboroughs "a perpetual easement of ingress and egress for vehicular and pedestrian travel and vehicular parking over, across and upon the existing traveled ways and parking areas on the property described ...." In light of this dispute with the Scarboroughs, and anticipating upcoming disputes with the property owners on the southern boundary, the City secured deeds from Chatham County and the State Department of Transporation to the entire road up to the current Highway 80. In May of 1999, in a case brought by Swanberg, Messrs, and Dubberly, the Georgia Supreme Court determined that the City of Tybee Island owns the southern one-half of the Old Highway 80 right-of-way in the area abutting the property owned by Swanberg and Dubberly. The decision does not specifically address any other areas (including the marsh area). 1 do not believe that is a critical point since, as part of the agreement with Mr. and Mr. Scarborough back when they sued the City, the Marine Rescue Squadron and its members, they conveyed their interest, subject to certain reservations, to the City. Thus, insofar as both of the abutting owners on Old Hwy. 80 at the eastern most boundary of the property description in the deed to the City from the County, no interest remains in the Scarboroughs other than the perpetual easement. It is my understanding that DAC has an issue with the fact that this easement exists. My understanding of DAC's concerns is that his position is that the deed to the City from Chatham County says that the land is to be used solely for the MRS and that this easement goes against that language in the deed. DAC is correct, in that the 1981 deed provides that the property is to be used exclusively by the MRS but the 1992 deed from Chatham County to the City contains no such language. There is no reverter clause, so the City has the fee; not the MRS. Chatham County did not have a reverter clause in the second deed. The City has the right to grant D Sckleicher ILII 2013 Pg. 3 of 3 easements or otherwise use the property as the City wishes, of course in accordance with law. One issue that I cannot answer is whether the perpetual easement has been expanded from what it was in 1994 when it was granted. To determine the extent of the easement we have to ask ourselves what were the existing travel ways in 1994. It is my understanding that the only rights the Scarboroughs have is the perpetual easement. I have heard DAC's frustration about why the City would have this easement or agreement with Scarborough if they won. the Supreme Court case against Swanberg, where the Supreme Court said that the south portion of Old Highway 80 was the City's land. My response is that in the settlement agreement the Scarboroughs deeded the northern half to the City. The only real difference is that there is this easement granted to them. Further, this agreement with the Scarboroughs preceded the Supreme Court's decision, so I think a lot of the frustration seems logical with the benefit of hindsight. This all came up recently again in 2004 and 2005 when the NMS wanted to install a hoist and the Scarboroughs and MRS began discussions about modifying the easement, moving the easement in order to better serve the MILS and its pians. In addition to the hoist, the MRS proposed building a fence. Discussions ensued about working out an agreement whereby the City would modify the easement and make some improvements to the north side of Old Highway 80 in order to allow vehicular access across the City's property. No agreement was ever signed. I do not know what happened from there forward. It appears that the fence was built and that the Scarboroughs and MRS are acting as though the agreement was signed, but there is no agreement in place. We still have to look back to the "traveled ways" of 1994. As for the marsh property, it is unfortunate that the original deeds from Chatham to the City did not contain language that clearly deeded the marsh property to the City and there is a deed from 1995 that seeks to correct this, but needless to say the Scarboroughs claim title under a Ding's grant that precedes the 1995 deed. Genuinely, there is a dispute and I will not venture further into that issue unless you want me to explain that further. If you would like, I can provide you with various documents which support the statements made in this letter, but I have not attached them to this letter. With kindest regards, I am Very truly yours, r Thomas E. Branch, III Cc: Edward M. Hughes, Esq. TEBIss 1. Ot 1= M tinlli'rti1�A= t1�lfOlTIP "' Ri 01a 1ff !ti-+ 1I+ hit 1 M' '1113 'JO, .1 Our., F wfip Twe fMP 11Mliw L .14 vAi _ N'471 _ I .,� . i 9.i) i t 11114 J'.To"Irt I '1 'jon �tY , :b emit Mfr III III'11Nt+m . '1 �1; i *�. M'r' •It'}'+= +� :'r�►� 1' 'Li+�� 1.w'1A+1i r�r riVV I + li"Cl VP , 1pr c[ &,timst, we, :.!%) f- f _t .1lwFi d'J 'IMI ml -+ !1 JrV jP�OW.S-� LI'.+ f:f'.i ':itl'1fY i'I -M +i 'iTIRlf.i i� i.�11 ✓�T`T !) T-,6. t 'IT]i d� 2mi of sverr,r N7. r 9me, - Ud ! • , L" h" *I ,' " I . rxi, r� +� ' t-- II M Y ',fl zmM �. 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