The owners of five properties on the Key Peninsula filed a lawsuit in January against the city of Tacoma and its Tacoma Public Utilities, following a long-standing dispute related to 144th Street, a primitive road owned by the utility that has been used by residents for years to access their homes.
According to John Ludlow, an attorney with a Bellevue law firm representing the property owners, the plaintiffs are asking either for the Tacoma Power to grant a prescriptive easement, or for the road to be declared a public highway. Although prescriptive easements cannot be claimed on government-owned properties, Ludlow says an exception to the rule states such easement may be granted when it can be proven the entity has been using the land for proprietary purpose and Tacoma Power is in business to provide power just like a private enterprise.

“One of the practical problems (with the easement) — it leaves title to the property to Tacoma Power but simply creates access for clients,” he said.

Declaring the road a public highway (or county road) would be the better outcome of the suit, Ludlow said. He said such a highway could be established if certain conditions are met, including proof that public use of the road has been general, adverse, uninterrupted and under claim of right for more than 10 years. He said the courts have ruled in several cases similar to this one.

Property owners who use the road as the only means of access to their homes have been in dispute with the county and the utility for years. The dispute resurfaced a few years ago, when the county stopped granting permits until residents could prove “legal access.” The moratorium was requested by Tacoma Power, who cited liability and maintenance concerns. (See previous Key Peninsula News articles).

Pierce County is also named as a defendant in the suit, which according to the Pierce County Superior Court database is scheduled for jury trial in January 2007.

“We are going to dispute their claim to have the right to use Tacoma Power’s property to access their properties,” said Bill Fosbre, a city of Tacoma attorney representing the case. “The city is very worried about the liability of using a path (for public use).” He said it was also a matter of fairness, as property owners knew they didn’t have legal access when they purchased their land far below its value.

Fosbre said the city is hopeful to have the case dismissed before getting to a trial, although Ludlow disagreed with that statement.

Tacoma Power had planned to install electronic gates restricting access on the road around February, and invited residents to a meeting with Tacoma Power Superintendent Steve Klein at the Middle School on Jan. 18 to discuss details. The residents would be required to sign license agreements relieving the utility of liability prior to getting access through the gates. The meeting, however, was canceled at the request of Pierce County Councilman Terry Lee, who asked for a 60-day extension from the utility. Lee said the extension would allow him to research cost and liability issues associated with a potential acquisition of the road by the county.

“I’m just at the 11th hour, trying to answer every question I’ve had,” he said.

The county could not take over a road that is below county standards unless it’s classified as primitive — which can only serve up to 10 parcels, Lee said. Liability, however, is the biggest issue, and he will look into the possibility of designating it a substandard road and installing a sign stating that anyone entering the road assumes the risks. “When I do understand the liability issue, I’m not sure what I’ll be able to do with it,” he said.

Lee said he learned that 144th Street, also called Powerline Road or Pole Line Road, was identified in the county’s 20-year transportation improvement plan in 1992 as a potential acquisition but was given a low priority. With the KP Community Planning Board currently discussing transportation issues, he said he wants to hear their priorities. “I want to know where, in the greatest scheme of things, the acquisition of Powerline Road may be,” he said, “…(and) see the will of the community.

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