HomeMy WebLinkAbout10/30/2018 03 Lions Pool Discussion 5l )r.:4:11;
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEM ENT
Item No. 3.
For Meeting of: October 30, 2018
ITEM TITLE: Council discussion on Lion's Pool
SUBMITTED BY: Cliff Moore, City Manager
SUMMARY EXPLANATION:
Attached is a legal memorandum from Senior Assistant City Attorney Sara Watkins regarding the
possible sale, lease or closure of Lion's Pool.As you will see, Ms. Watkins has identified some
significant issues that would have to be addressed to move forward.
Council's direction was to schedule a conversation with the School District in the very near future
on this matter, but with the issues that have been outlined in this memo, staff seeks direction from
Council on how to proceed.
ITEM BUDGETED:
STRATEGIC PRIORITY: Public Trust and Accountability
APPROVED FOR
SUBMITTAL: City Manager
STAFF RECOMMENDATION:
BOARD/COMMITTEE RECOMMENDATION:
ATTACHMENTS:
Description Upload Date Type
D lions pool 10/24/2018 Omer demo
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MEMORANDUM
TO: Cliff Moore, City Manager
FROM: Sara Watkins, Senior Assistant City Attorney
DATE: October 17, 2018
SUBJ: Lions Pool
Pursuant to your request, this memo provides information about the deeds and
documents used to acquire and improve Lions Park, as well as the RCO funding
and the steps that may need to be taken in a sale and/or lease of the property
that was improved with RCO funds.
1. The Deeds and Historical Documents for Lions Park
The original natatorium was built in approximately 1911 on an artesian mineral
spring at 201 South 6th Avenue. Interestingly, the water was drained every night
and refilled from the artesian mineral springs on the property. The original pool
was also located on the corner of South 5th Avenue and West Spruce Street,
where the parking lot is located today.
The property that is now Lions Park, including the pool property was transferred
to the City in 1927 through a series of deeds. Although those deeds do not have
any restrictions as to the use of the property (at least the copies in our files—we
would want to confirm this with a search of the deeds for the property in the
event the Council wanted to move forward with a transfer of the property), and
do not indicate where the City got the money to make the purchases, there is
evidence in the file that the Lions Club raised all of the funds the City used to
purchase the park property.
Pursuant to a letter from 1957, it is indicated that in 1926 the Lions Club put on a
talent show and raised $6,000.00. The Deeds indicate that the total funds
expended on the parcels that make up Lions Park was approximately
$4500.00—indicating that it is likely that the full amount of the Lions' fundraising
went to purchasing the property.
Notes indicate that in 1929 the park board and the Lions Club started discussing
construction of a pool at the park. Pool construction was deferred until 1932,
when it was determined that the approximate cost of the pool would be
$6,500.00 (estimated at 60% labor which would primarily be done by charity
labor). Notes indicate that one-half of the total cost of the pool would be paid by
the Lions Club, and the other half would be paid by the City. Excavation for the
pool started on January 11, 1933 (notes indicate it took 25 men and 4 trucks to
do the excavation), and the pool was dedicated on June 8, 1933.
The property and pool were transferred to the Metropolitan Park District upon its
creation. In so doing, the real property ledger for that transaction indicates that
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the City transferred it with the condition that it would revert to the City if it were
not used for park purposes. When the Park District dissolved1, the park property
reverted back to the City (although there are no documents in the file I reviewed
on this).
At some point, the natatorium was removed. In the late 1960s the City started
evaluating the prospects for a new pool at Lions Park. The new pool was
constructed as an indoor-outdoor pool with an innovative design. The pool had a
canvas cover that was removed during the summer. The window-doors also
could mechanically open or close so that swimmers could use outdoor swim
decks during the summer and easily go in and out of the pool structure. The
window-doors could also be closed on one end to stop wind. The pool design
was featured in the March 1974 Park Maintenance publication in its Annual
Swimming Pool Issue.
In 1982 it was determined by the city codes department that there were
significant repairs necessary at Lions Pool and the City was forced to close the
pool. After the pool's closure, the City commissioned a needs assessment for
parks throughout the city, as well as an assessment of the community's aquatics
programs. The assessment was presented in June of 1983 and unanimously
accepted by the City Council.
Construction to rehabilitate Lions Pool began in mid-1985. The new design
included construction of walls on the east and west side of the building (where
the mechanical window-doors were previously located), and a new roof (to
replace the canvas roof). Completion to the pool building occurred in 1986.
2. Acquisition and Funding for the Upgrades to Lions Park
a. The Tennis Courts
In approximately 1968, the City Council started the process to design a new
Lions Park. By resolution the Council hired an architect to design the
reconstructed Lions Park. Part of this project was to add tennis courts. In 1974
the Yakima School District deeded the land upon which the tennis courts are
currently located to the City. The accompanying park development agreement
states specifically that the property shall be used exclusively for tennis courts
and any sale or lease of the property requires the permission of the School
District. The Warranty Deed reflects these provisions.
The tennis courts were funded, in part (approximately $25,000.00) by a
distribution from the Yakima Foundation Trust. The funds in that account were
provided by the Last Will and Testament of James Conant, which stated that a
portion of his estate would to go the Trust (created by the Will), stating that Mr.
1 I'm unsure of the exact date of the park district termination. There is a reference to taking capital
improvement funds"from the balance of the Metropolitan Park District fund"in a 1983 memo to Dick
Zais about the status of Lions Park. If this is important,we can dig through the documents and find the date
of the termination of that parks district.
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Conant "prefer[s] that the bequest hereby granted to it be used for public
playgrounds in the city of Yakima, Washington, and in the community
surrounding same." In correspondence between the City and the Trustee, it was
stated that the Trust funds would go towards the tennis courts.
Letter correspondence also indicates that state and federal funding would be
used for the tennis courts, but I do not have a copy of any state or federal
funding contracts at this time. If state and federal funding were used, that could
create additional restrictions than those outlined herein.
b. The Pool
There are a number of funding sources that were used to construct the new
Lions Indoor/Outdoor Pool in the early 1970s. Voters voted in favor of
Proposition 1, which provided $1,900,000 in Park and Recreation Facilities
Bonds. These bonds were used for a number of projects, including to "construct
and equip a year-round aquatic center at Lions Park."2 The Council also
authorized the City to execute an agreement with the State of Washington,
Interagency Committee for Outdoor Recreation, for partial funding of the pool.
That Resolution (D-2059) included a Project Agreement, signed by both parties.
The Agreement3 provided funding in the total amount of $371,633.00 for "Lion's
Indoor/Outdoor Pool" but only provided funding for the pool, and not the
proposed removable roof. The Agreement also contains the following:
Restriction on Conversion of Facility to Other Uses. The Contracting
Party [City] shall not at any time convert any property or facility acquired
or developed pursuant to this agreement to uses other than those for
which state assistance was originally approved without the prior approval
of the Interagency Committee, in the manner provided by RCW 43.99.100
for marine recreation land, whether or not the property was acquired with
Initiative 215 funds.
3. Constraints on the sale or lease of the property due to funding
Yakima's Charter allows for the City to acquire and sell public property as its
interests may require. However, the Charter does not allow the City to purchase
property for park purposes outside of the City limits. Yakima Charter, Article I,
Section 1.
RCW 35.22.280(3) and (11) states that first class cities have the authority:
2 Only a portion of the money was spent on Lions Pool. Other projects included acquiring property for new
parks and making capital improvements to existing park facilities.
3 Diondra Brown of the Park&Recreation Department reviewed the contract and stated: "The agreement
you sent me was an IAC agreement and that is the same agency that Chesterley Park's agreement was
through. If in fact there was Land and Water Conservation Fund(LWCF)monies tied to this agreement it
would not only trigger a conversion through the state(RCO)but through NPS which is the federal
government,just like Chesterley Park's conversion. Our conversion took three years."
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(3) To control the finances and property of the corporation, and to acquire,
by purchase or otherwise, such lands and other property as may be
necessary for any part of the corporate uses provided for by its charter,
and to dispose of any such property as the interests of the corporation
may, from time to time, require;...
(11) To acquire, by purchase or otherwise, lands for public parks within or
without the limits of such city, and to improve the same. ...
Seattle Land & Improvement Co. v. City of Seattle, 37 Wash. 274, 79 P. 780
(1905) outlines when cities may change a contemplated use of a property, or sell
such property that it acquired:
It is doubtless the law that, where a person dedicates or donates to a city
a tract of land, with a restriction upon its use-as, for instance, where it is
so dedicated or donated solely for a park or a public street-the city can not
legally divert the use of such property to uses and purposes inconsistent
with the purpose of such grant... But where property is taken and paid for
from the general fund, with the intention of using it for a certain purpose
specified in the ordinance authorizing the taking, ... the city doubtless has
the authority to change said contemplated use to another and entirely
different use whensoever the needs and requirements of the city suggest.
Id. at 276-77.
However, RCW 35.21.960 allows for the removal of restricted covenants as
follows:
Any city...must hold a public hearing upon a proposal to remove, vacate,
or extinguish a restrictive covenant from property owned by the
city...before the action is finalized. The public hearing must allow
individuals to provide testimony regarding the proposed action. The
city...must provide notice of the public hearing at least ten days before the
hearing at its usual place of business and issue a press release to local
media providing the date, time, location, and reason for the public hearing.
The notice must be posted on the city...website if it is updated for any
reason before the hearing date. The notice must also identify the property
and provide a brief explanation of the restrictive covenant to be removed,
vacated, or extinguished. Any member of the public, in person or by
counsel, may submit testimony at the public hearing.
This statute was passed to increase transparency. The Legislature in House Bill
1959 stated:
There is a desire that government agencies become more transparent
when they want to change the use of property that has covenants that
restrict what can be done with property, especially if the property was a
gift to be used for parks....
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Finally, a sale or lease of the property would likely trigger the need for SEPA
review. Under WAC 197-11-704, actions that trigger review include agency
decisions to "sell, [or] lease...natural resources, including publicly owned land,
whether or not the environment is directly modified." There may be an
exemption if the property is leased if "the property use will remain essentially the
same as the existing use for the term of the agreement...." WAC 197-11-
800(5)(c). Whether or not that exemption would be valid would depend on
whether the YSD will agree to operate the leased property in the same manner
as the City does.
a. The Tennis Courts
Although the tennis courts were funded in part through a gift from Mr. Conant's
Yakima Foundation Trust, and that gift was specifically for the tennis courts, the
actual transfer of the land is subject to the deed between the City and the school
district. Mr. Conant's bequest was used for the installation of the original tennis
courts, which were installed and have been continuously used, maintained and
improved over the past 40+ years.
Pursuant to the terms and conditions of the deed transferring the land upon
which the tennis courts are located from the school district to the City, if the
tennis courts are going to be leased or sold to an entity other than the school
district, the school district must consent. If the tennis courts are removed the
property itself will revert back to the school district. The deed granting the
property to the City from the school district for the purpose of the tennis courts
states that in the event of a breach of the agreement the property will revert to
the school district.
Finally, if federal and/or state money was used to develop, build and/or maintain
those tennis courts then there may be additional requirements before they can
be leased or sold. Those requirements may be similar to those listed below
when addressing the pool.
b. Lions Pool
The pool is subject to the restrictions outlined in the funding agreement and RCO
regulations. As outlined above, the funding agreement does not allow the city to
convert the use of the pool to something other than the project for which funding
was allocated. Conversion occurs when the function of the facilities paid for by
RCO changes to uses or functions other than those for which assistance
originally was approved. See RCO Manual 7: Long-Term Obligations (February
1, 2016). Under the Project Agreement, section 5, the outdoor recreation project
funded is described as:
The development of a 112 foot 6 inch by 44 foot indoor/outdoor swimming
pool.... On a 3.4 acre City owned playground which is adjacent to A.C.
Davis Senior High School in the City of Yakima.
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Section 14 outlines the use and maintenance requirements for the facility,
including:
The property or facilities shall be kept reasonably safe for public use.
The facility shall be kept open for public use at reasonable hours and
times of the year, according to the type of area or facility.
If the pool were to be sold to the School District, that would trigger a conversion
under the Agreement and law because the pool and underlying property
(assuming the City would divide Lions Park to transfer just the pool to YSD)
would no longer be owned by the City. Further, the City would have no control
over whether the pool was open for public use. The pool would likely be closed
during many of the hours it is currently open to the public.
Selling the property to YSD is possible, as long as the City goes through the
proper steps to get approval—here the sale of the property and pool to YSD.
YSD is an entity that could obtain an RCO grant so the sale, as long as RCO
agreed, may not constitute a conversion. It will likely depend on YSD's plans for
the pool, including when it is open to the public.
WAC 286-13-170 states that to convert a development project the City must get
prior approval from the RCO Board, which may only grant approval for a
conversion if the following elements are met:
1. The City demonstrates the need to convert the project area
including all efforts to consider practical alternatives, how they
were evaluated, and the reasons they were not pursued;
2. The City provides an opportunity for the public to participate in
the identification, development and evaluation of the
alternatives, including a minimum public comment period of at
least thirty days; and
3. The City provides another project area to serve as a
replacement which must:
i. Be of reasonably equivalent usefulness and location;
ii. Be administered by the City unless otherwise approved by
the Board;
iii. Be a new project area with facilities that satisfy the needs
identified in the City's current plan;
iv. Be eligible in the same grant program account or category
from which funds were originally allocated, unless
otherwise approved by the Board; and
v. Satisfies the conversion without grant assistance from the
Board.
Here, a sticking point may be the replacement project area which must be
provided. Since it must be of equivalent usefulness that would likely mean a new
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pool. Location would require it to be in the same general vicinity. It also needs
to be a new project area. All of these elements work against attempting to use
the new YMCA pool as a reasonably equivalent usefulness and location.
Additionally, the YMCA pool is not administered by the City, so that would be
another element that would have to be approved by the Board. As such,
believe that conversion of Lions Pool could likely require the City to construct a
new pool somewhere in the vicinity of Lions Pool to successfully convert the
property and sell it to YSD.
A lease of the property to YSD may not constitute conversion of the property if
terms and conditions of the lease are specific to the requirements of the original
Agreement and RCO regulations. The most important component will be that
the pool is open to the public "at reasonable hours and times of the year." The
public will need to be able to use the pool daily at some hours, as the public has
since its opening. The more restricted the hours the pool is open to the public,
the more likely RCO will consider the lease agreement a conversion.
If there is a conversion, without approval, that would constitute a violation of the
Agreement. The Agreement's Remedies section (Section 12) requires specific
performance (or, operation of the pool).
Remedies. Because the benefit to be derived from the full compliance
with the terms of this agreement is the preservation, protection, and the
net increase in the quantity and quality of public outdoor recreation
facilities and resources which are available to the people of the state and
of the United States, and because such benefit exceeds to an
immeasurable and unascertainable extent the amount of money furnished
under the terms of this agreement, the Contracting Party agrees that
repayment of an amount equal to the amount of assistance extended
under this agreement by the state of Washington would be inadequate
compensation for any failure to comply with the terms of this agreement.
The Contracting Party agrees, therefore, that in the event of a breach of
this agreement by it, specific performance shall be an appropriate remedy.
There is also a good argument that simply closing the pool for lack of resources
also constitutes a conversion that would require RCO approval.
The pool building currently is functional, with some small issues, but will need
renovations at some point in the future (no major repairs are contemplated at this
time). Unfortunately, RCO grants would not be available to fund an indoor pool
facility under its current regulations. Indoor recreation is an ineligible element for
RCO grants. See RCO Manual 4: Development Projects (August, 2018).
If Lions Pool gets to the point where the building can no longer function, RCO
regulations allow for a determination of obsolescence when a structure reaches
the end of its anticipated or agreed upon service life. See RCO Manual 7: Long-
Term Obligations (February 1, 2016). There do not appear to be any specific
elements that need to be proven, or procedure to have the RCO Board
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determine that a development is obsolete. If this is the direction the Council
wishes to take at some point in the future, staff will need to contact an RCO
grant manager to discuss what evidence and studies will be necessary to prove
that the building and pool are obsolete and should be removed from the
requirement that the pool exist in perpetuity.
It should be noted that RCO grants funds for outdoor pool development. Such
funds for pools indicate that "pools should be designed for maximum
multipurpose use." See RCO Manual 4: Development Projects (August, 2018).
There may be an opportunity here to apply for a grant for funding for a new pool
in the vicinity. If those funds are obtained, RCO may allow the City to
immediately shut down Lions Pool as obsolete and allow for planning and
construction of the new pool facility. The City should make sure that any
contract for a new pool facility using RCO money does not state that the pool
must be used in perpetuity. Rather, the City and RCO should determine a useful
life standard and use that as the end date of the Agreement.
4. Disposal of the Lions Pool Property
Since the tennis courts will automatically revert back to the school district, the
only question left is how, if the Council wished and RCO allowed, would the City
dispose of the property. The property would first have to be declared surplus of
the City before the sale. Because the City cannot gift public funds or assets, it
will be important to determine the fair market value of the property. The Yakima
County Assessor has a value on the entire park property plus improvements at
almost $2,000,000.00. If only the pool and the land under the pool were being
sold, this amount would be less (and there could be a decrease due to the
condition of the pool and building that could be determined by an appraiser).
The value of the property will exceed $50,000.00, so it will be necessary to hold
a public hearing before disposing of the property. There are strict notice
requirements that differ from other public hearing requirements that must be
followed, as outlined in RCW 39.33.020. More information about the process
can be provided if necessary, as well as answers to any follow up questions you
may have.
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