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Deed restrictions, Averill Field and what you should know

SNOHOMISH — At its June 6 meeting, the City Council will be discussing deed restrictions pertaining to the new state law prompted in part by the city’s actions a few years ago to remove a 93-year-old deed restriction on municipal-owned land.
Those familiar with the scenario know all about it. These people include city officials, as well as city critics who originally uncovered the issue and raised hell about it with the city; it led to a push for transparency at City Hall.
For those unfamiliar with what happened, why, or what the state law — the “land covenant preservation and transparency act” — is, here’s a rundown:

What’s a deed restriction?
A deed restriction, or land covenant, usually attached to land granted to a grantee by a grantor. It is a private agreement that restricts or limits the use of the land in some way and is listed within the deed at the time of transfer. The grantor or seller may add a restriction to the title of the land or property as a condition of sale or grant. Deed restrictions can be attached to their designated land or property forever, until otherwise changed through a legal process.
According to case law in Washington state, a deed restriction is only as strong as its enforcer or grantor. If a person or group that set a deed restriction or land covenant is no longer around or has ceased to exist, the restriction isn’t “enforceable” but is still a legal covenant until changed by a judiciary process.

Snohomish’s snag
What happened in 2015 deals with the change of a then-93-year-old deed restriction “for playground purposes only” at the former Averill Field, where today the Hal Moe Pool building and Snohomish Boys & Girls Club sit. The blowback on how the change was executed still dogs the city’s public image transparency.
The deed restriction was lifted from a few parcels of the whole land plot by the city’s request in a legal process signed off by the county. The deed restriction was put on the property’s deed when the Snohomish Playground Association, a civic booster club that’s now long gone, gifted the land in the 1920s.
The County Council approved the restriction lift as a simple consent agenda item in February 2015.
The city asked for the deed restriction lift in part to make way for a proposed Verizon cell tower to be erected at the site. After public outcry against the cell tower in the fall of 2015, Verizon with-
drew its land use application.
Self-dubbed activists continued to demand more transparency of the city, which legally removed the deed restriction without announcing it with a public notice. A public notice was not required.
City officials had told the Tribune that the deed restriction was removed in relation to the current sites on the land — the pool and Boys & Girls Club — which may not have fit the restriction as playgrounds and would be in violation of the restriction had it not been lifted. The city owns these land parcels.
At the time of the deed restriction lift, several city councilmembers said they were not aware it happened. To reinstate the deed restriction would require city council action.

No cell towers in parks
In late 2015, the city began the process of updating its cell phone tower code regulations. The city’s code regarding wireless facilities had not been updated since 1998, when cell phones were not as prominent and there was no such thing as “4GLTE” and smartphones. The code was outdated.
In early 2016, the City Council passed the new wireless facilities code, which also dictated that cell phone towers can not be erected in city parks.
The land surrounding the Hal Moe Pool and Boys & Girls Club and Tillicum Kiwanis playground is designated land use of parks. In 2011, the city implemented a designated zoning for parks and this area is part of that zoning.

Olympia: House Bill 1959
The land covenant preservation and transparency act, or H.B. 1959, was signed into law by Gov. Jay Inslee in late April. The law requires local governments conduct a public input process before removing or altering deed restrictions written in land covenants.
44th District Republican state Rep. Mark Harmsworth introduced the bill. He said he drew inspiration from the issue in Snohomish after
locals criticized the lift wasn’t done transparently. The bill breezed through the state Legislature with few dissenters.
The bill’s summary states it requires “any city, town, code city, county or municipal corporation to provide notice and hold a hearing prior to removing, vacating, or extinguishing a restrictive covenant from land that it owns.” The law goes
into effect July 23.

City Council to weigh in
On June 6, the City Council will discuss deed restrictions with H.B. 1959 in mind. Dubbed “the Averill Field Deed Restriction” in the council packet minutes, having a discussion was brought up by Mayor Tom Hamilton at the May 2 council meeting.
Hamilton said the goal of discussing the deed restriction is to decide whether or not the City Council wants to conduct a public hearing. Hamilton also affirmed the deed restriction was still “in force” in other parcels of the land. (The red section of the map, see graphic below).
The deed restrictions lifted from specific parcels in early 2015, upset numerous residents, but also put the city on a journey for redemption over transparency and trust.

The section in yellow, which includes the Snohomish Boys & Girls Club, had its deed restriction removed in 2015. The deed restriction on the blue area was removed in 1988.


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