MacMeekin v. Lihi

• Decision Date: 15 April 2002
• Docket Number: No. 48894-5-I.,48894-5-I.
• Citation: 45 P.3d 570,111 Wash.App. 188
• Parties: Gordon Bruce MACMEEKIN, Appellant, v. LOW INCOME HOUSING INSTITUTE, INC., a Washington nonprofit corporation, Respondent.
• Court: Washington Court of Appeals

45 P.3d 570

111 Wash.App. 188

Gordon Bruce MACMEEKIN, Appellant, v. LOW INCOME HOUSING INSTITUTE, INC., a Washington nonprofit corporation, Respondent.

No. 48894-5-I.

Court of Appeals of Washington, Division 1.

April 15, 2002.

Philip Edmund Hickey, Keyport, for Appellant.

Lori Salzarulo, Garvey Schubert & Barer, Seattle, for Respondent.

KENNEDY, J.

Gordon Bruce MacMeekin filed suit seeking to quiet title to a claimed non exclusive easement over property owned by the Low Income Housing Institute (LIHI). LIHI filed a motion for summary judgment, conceding (for purposes of the motion only) that MacMeekin had a prescriptive easement, but claiming that it cannot develop its property without building on the Driveway, and requesting the court to exercise its equity power to relocate the prescriptive easement through another portion of LIHI's property. MacMeekin replied that he had an easement implied from prior use, and argued that even if his easement were acquired by prescription instead, the court lacked the authority to relocate it. The trial court granted summary judgment to LIHI, concluding that MacMeekin did not have an easement implied from prior use. The trial court also approved LIHI's plan to relocate the easement, concluding that prescriptive easements are subject to court-ordered relocation and that the equities in this case justify relocation. We reverse and remand. Genuine issues of material fact preclude summary judgment on the question of whether MacMeekin has an implied easement from prior use. Moreover, Washington appellate courts have not adopted the approach of Restatement (Third) of Property (Servitudes) (2000) under which an easement generally may be relocated by the owner of the servient estate, regardless of how the easement was acquired, so long as the relocation will not significantly lessen the utility of the easement, increase the burdens on the owner of the easement in its use and enjoyment, or frustrate the purpose for which the easement was created. We decline to adopt the Restatement (Third) approach, and adhere to the traditional rule that easements may not be relocated absent mutual consent of the owners of the dominant and servient estates, regardless of how the easement was created.

FACTS

In 1948, Mrs. Fine Rossellini Pettofrezzo built a house on property she owned that was given the street address of 3924 Empire Way South (now known as 3924 Martin Luther King Jr. Way South, hereinafter 3924 MLK Way). In order to build the house in that location, Pettofrezzo had to build the 200-foot long Driveway that is the subject of this lawsuit, leading from MLK Way to the site. Pettofrezzo owned the property located on both sides of the Driveway. In 1950, MacMeekin began renting the house from Pettofrezzo. MacMeekin's only means of accessing the rental home was via the Driveway. Water and sewer lines ran from MLK Way alongside or underneath the Driveway and from there, to the rental house.

Pettofrezzo was in the process of platting some of her property in the area. By 1953 she had created a preliminary plat. She built a house on what was to become Lot 10 of the plat, next door to the rental house, and sold it to Leon Hines. The Driveway, and a leg of the Driveway, which had been used during construction of Hines' house, was his only means of ingress and egress. Water and sewer for his house was obtained by way of connection to the lines that served the rental house. Hines' street address became 3920 MLK Way. In order to reach the Driveway from his home, Hines had to traverse property that still belonged to Pettofrezzo.

In 1956 Pettofrezzo recorded the plat, thereby creating Fine Addition, a residential plat comprised of 12 lots. The rental house lay on property that became Lot 11 with the recording of the plat, as did the Driveway. On the north side of the Driveway lay Lot 12 of Fine Addition. And across the Driveway to the south lay another parcel of property belonging to Pettofrezzo, Tract A. Tract A was not part of Fine Addition.

MacMeekin purchased Lot 11 from Pettofrezzo in 1956. As we have noted, on the plat, Lot 11 included the Driveway. But on MacMeekin's deed it did not. Instead, Pettofrezzo retained the Driveway and deeded MacMeekin a 20 foot strip taken from the east end of Lot 9. MacMeekin was aware of this.

A diagram of the plat and Tract A is appended to this opinion (Appendix). It shows Lots 10 and 11, the Driveway leading from MLK Way to Lot 11, and the 20 foot strip leading from the Driveway to what is shown on the plat as Bradford Place, a street ending in a cul-de-sac. Bradford Place was not opened when the plat was recorded— indeed, it was not opened until 1999 when houses were built on Lots 6, 7 and 8 of Fine Addition for the first time. Those lots had no access to a public street until Bradford Place was opened.

For 43 years after MacMeekin purchased Lot 11, his only means of accessing his property was by way of the Driveway. And Hines' and his successors' only means of accessing Lot 10 was by way of the Driveway, and then by way of a 90 degree turn from the Driveway onto Lot 11, and then all the way across MacMeekin's property to the house on Lot 10.

Hines built a garage on Lot 10 that faced west toward MLK Way. Both MacMeekin and Hines erected their mailboxes at the corner where Hines turned onto MacMeekin's property. MacMeekin placed a pole and street light near that corner, and he regraveled the Driveway at least once at his own expense.

Lot 12 of Fine Addition fronts on MLK Way and was improved with an apartment building in 1962. Pettofrezzo moved from her home, which had been located on Lot 2, into one of these apartments, where she lived until her death in 1970. There is no indication in the record that Pettofrezzo or her successors ever restricted or challenged Mac-Meekin's use of the Driveway, or that of Hines and his successors. And there is no indication in the record that MacMeekin ever restricted or challenged the right of Hines and his successors to cross his property in order to reach the Driveway.

In early 2001, after the death of Hines' successor, the house on Lot 10 was demolished. The record does not indicate who owns the lot at the present time. MacMeekin, who is quite elderly by now, still lives in the house on Lot 11. He no longer drives, but has visitors who use the Driveway. Daily, Monday through Saturday, an Access bus picks MacMeekin up and takes him to the V.A. Hospital, or shopping, or to Elder House, or to a senior care center for meals and other services—and then takes him back home, all by way of the Driveway. He receives his mail and deliveries, as he always has, by way of the Driveway.

LIHI is a private non-profit housing organization organized to develop housing for homeless and low-income individuals and families, seniors, and people with special needs. In March 1999, LIHI purchased Tract A. LIHI also purchased the 20 foot strip upon which the Driveway lays, and then obtained a boundary line adjustment to include the Driveway in Tract A.¹ LIHI purchased Tract A and the Driveway to develop two related projects: a day care, community and social services center for refugee women and their children, and a multifamily affordable housing project. Before purchasing the property, LIHI believed, based on the published City zoning map, that the property was zoned NC-30 (mixed use commercial), and that this zoning designation would support the project. Unfortunately, a few months after closing on the purchase, LIHI discovered that the NC-30 zoning designation had been established as part of a conditional use permit that had expired, and that the City had simply never corrected its zoning map. The correct zoning designation is L-3 (low rise) for the front portion of the property, and SF-5000 (single family) for the back portion. Therefore, LIHI was prevented from developing multifamily housing on the back part of the property as planned. LIHI tried for more than a year to change the zoning designation back to NC-30, but was met with strenuous community opposition, and the effort was unsuccessful. LIHI then redesigned the project to locate the housing on the front part of the property as permitted in the L-3 zone. However, because the height limitation in an L-3 zone is more restrictive than in an NC-30 zone, the redesigned project can accommodate only 24 housing units, rather than 35 units as originally planned. Moreover, although the original project would have had no impact whatsoever on MacMeekin's use of the Driveway, LIHI says that it now must build on the Driveway in order to fit these 24 units on the front part of the property. According to LIHI, because of various restrictions placed on its private and public funding sources, it is not financially feasible to reduce the number of units below 24, in order to avoid the need to build on the Driveway. LIHI also explains that it is not feasible for it to sell the property, in that LIHI has expended close to $1 million of public funds on the property, and the market value of the property is only $495,000; thus LIHI would be liable to repay close to $500,000, money which LIHI says it does not have. And because LIHI is a 501(c)(3) tax-exempt entity chartered to build affordable housing, it believes that it cannot recoup its investment by using the property for some other purpose, such as market-rate housing.

LIHI proposed to solve its problem by relocating the Driveway so that it would cross another portion of Tract A (see Appendix showing proposed relocation of easement on Tract A). The relocated driveway would still allow MacMeekin access from MLK Way, but it would originate 73 feet south of the current Driveway, pass through a parking lot, and make three 90-degree turns before reaching MacMeekin's property. MacMeekin refused to accept this proposal, and filed suit to quiet title to a non-exclusive easement for access and utilities over the Driveway, on the alternate...