043-21 - Dale and Jacqueline Morris - ContractContract No. 043-21
SETTLEMENT AGREEMENT
AND RELEASE OF CLAIMS
This Settlement Agreement and Release of Claims ("Agreement") is entered into by
and between the City of Port Orchard, a Washington municipal corporation ("City") and Dale
and Jacqueline Morris, a married couple ("Claimant").
RECITALS
A. Claimants own residential real property located in Kitsap County, Washington,
Tax Parcel No. 342401-4-115-2001 ("Claimant's Property"). Claimant's Property is
undeveloped and has frontage onto City Right of Way along Alder Road, Canyon Court, and
Tremont Street West.
B. Claimants have alleged that the City's Tremont Street Widening Project
("City's Project") prevents Claimant from utilizing a right of reasonable access to a direct
connection to Canyon Court or Tremont Street West.
C. On December 30, 2020, the Claimants filed a First Amendment Complaint in
Kitsap Superior Court, Cause No. 18-2-03399-18, alleging claims for inverse condemnation
based on allegedly taking Plaintiffs' easement without paying just compensation and, and
violations of 42 U.S. §1983 by allegedly taking Plaintiffs' property rights without paying just
compensation and allegedly violating their right to procedural due process, and asserting that
the City is liable for all damages resulting from the City's Project (the "Lawsuit"). A copy of
the First Amended Complaint is attached hereto as Exhibit A.
D. The City denies the asserted claims, and that the City's Project caused the
Claimants any damage.
E. The City and the Claimant desire to compromise and settle this dispute, in
accordance with the terms and conditions stated in this Agreement to avoid the costs, expenses
and uncertainty associated with litigation, and without either party admitting or conceding
fault, liability for, or the validity of, the claims or defenses of the other party.
AGREEMENT AND RELEASE
In consideration of the terms and conditions stated below, the parties agree as follows:
1. This paragraph incorporates the above Recitals as though fully set forth herein.
2. Payment by City. Within fourteen (14) days of the Effective Date of this
Agreement, the City shall pay the sum of Sixty Thousand Dollars ($60,000.00), to the
Claimants as the full and final payment by the City to Claimant to settle all claims arising from
the City's Project; provided, that the Claimants shall deliver a completed W-9 form to the City
before the City shall be required to provide the payment to the Claimant.
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3. Release, Waiver and Hold Harmless. The Claimants hereby waive, release,
hold harmless, and forever discharge the City, and the City's elected officials, employees, and
agents, from any and all claims, causes of action, demands, damages, injuries, liabilities,
obligations, losses, costs or expenses of any nature (whether formally or informally asserted
and whether past, present or future, known or unknown, mature or immature) that were alleged
or could have been alleged in the Lawsuit.
This Agreement and Release is a full settlement and discharge of any and all claims
made by the Claimants which are or might have been made against the City'in connection with
the Lawsuit. This Agreement and Release is binding on and constitutes a complete settlement
by the Claimants and their respective heirs, successors and assigns as to the matters stated
herein. This Release, together with the other provisions of this Agreement, is intended to fully
discharge all of the parties' claims and obligations to each other relating to the subject matter
herein.
4. Future Access. Within thirty (30) days of the execution of this Agreement, the
City shall grant to the Claimants an access easement, allowing Claimants the right to an access
connection from their Property to Alder Road (for so long as their Property has direct frontage
onto Alder Road). Claimants may construct an access connection from their Property to Alder
Road, pursuant to the access easement, subject to the following:
4.1 This right only extends to construction within the public right of way (see
POMC 20.12.010), terminating at the Property's lot front line (see POMC 20.12.010). All
development activity (see POMC 20.12.010) occurring on the Property is not covered by this
Agreement and is subject to the applicable City regulations.
4.2 The City shall waive the fee(s) associated with the City's Minor Land
Disturbing Activity Permit and Right of Way Permit, per POMC 12.04, at the time Claimants
apply to construct an access, and the City shall issue said permits provided the application
conforms to the following:
4.2.1 The access connection's design and permitting requirements shall
conform to the Port Orchard Municipal Code and the City's Public Works Engineering Standards
and Specifications, then applicable; provided that, if Claimants seek to construct a driveway to
serve one (1) single family residence, Claimants shall not be required to construct curbs, gutters,
and sidewalks when it constructs a driveway onto Alder Street; and
4.2.2 The access connection shall be located anywhere along the
Property's frontage on Alder Road, in accordance with the Port Orchard Municipal Code, as
depicted on Exhibit B. These limitations shall not preclude the Claimant's right to seek a
deviation therefrom from the Public Works Director; and
4.3 Within ninety (90) days of the execution of this Agreement, the City shall
remove the curbing and guttering located within the area of public right of way on Alder Street,
provided that the City shall not perform any work on Claimant's Property, and the Claimants
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shall release, waive and hold harmless the City elected officials, employees, and agents, from
any and all claims, causes of action, damages, losses, costs or expenses of any nature resulting
from said removal. The Parties shall, within ten (10) days of the City's removal of curbing
depicted in Exhibit B, sign a stipulation and a stipulated order dismissing this lawsuit with
prejudice.
5. 1985 Warranty Deed. Within sixty (60) days of execution of this Agreement, the
parties shall draft and execute an Assignment of Rights, by which Claimant shall waive and
assign the following rights under the Warranty Deed, recorded July 17, 1985, Kitsap County
Recorder's No. 8507180089, exclusively to the City: "EXCEPT the Grantors herein reserve for
themselves, their heirs, successors or assigns, the right of reasonable access to the WE line
connection of said highway Easterly of WE 133+28.69 L/A said WE line."
6. Miscellaneous.
6.1 Governing Law; Severability. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of Washington. If any court of
competent jurisdiction shall determine that any portion of this Agreement is unenforceable,
then, to the extent possible, the remaining portions hereof shall be unaffected thereby.
6.2 No Admission. The purpose of this Agreement is to settle disputed
claims. The parties agree that this Agreement is intended to be a final settlement in full accord
and satisfaction of all claims that were or might have been made by Claimants against the City,
in the Lawsuit or otherwise, arising out of or relating to the City's Project. Neither the
execution of this Agreement, nor the performance contemplated hereunder shall be construed
or considered as an admission by either party as to the merit or validity of the claims or
arguments or defenses of the other party in the Lawsuit.
6.3 Interpretation. Each of the parties was represented by counsel with
respect to this Agreement or was given a reasonable opportunity to consult with their own legal
counsel and have had ample opportunity to review this Agreement. This Agreement shall not
be interpreted in favor of or against either party by reason of whose attorney originally drafted
it.
6.4 Integration/Amendments. This Agreement constitutes the full and
complete expression of the agreement between the parties with respect to the subject matter
hereof, and supersedes any and all prior or contemporaneous offers, negotiations or agreements
between the parties. Any amendment or modification to any of the terms of this Agreement
shall be in writing, signed by the parties.
6.5 Authority. Each person executing this Agreement on behalf of a party
warrants that the person is fully authorized and empowered to do so, that the party has the
power and actual authority to enter into this Agreement, and that the Agreement binds the party
to the terms and conditions stated herein.
6.6 Binding Effect. This Agreement applies to, inures to the benefit of, and
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is binding on the parties to this Agreement, and their representatives, heirs, transferees,
successors and assigns.
6.7 Effective Date. This Agreement shall become effective upon the date
on which both parties have executed this Agreement (the "Effective Date").
CITY OF PORT ORCHARD
By
Typed Name:
Its:
Date:
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CLAIMANTS
By V l rr • ,,1r� wu
Dale Morris
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By
Jac que_li11e Arris
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THE BACKGROUND USED FOR THIS EXIBIT
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Driveway Access Plan / Exhibit
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"PWESS - PUBLIC WORKS ENGINEERING
STANDARDS AND SPECIFICATION ADOPTED
BY REFERENCE IN: POMC 20.100, POMC
12.34.010, and POMC 13.04.300
Drawn By: I Ian Smith, PE
Date: March 16, 2021
Scale: 1" = 7
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CIVIL MOTIONS CALENDAR
FRIDAY, JANUARY 25, 2019
9:00 AM
SUPERIOR COURT OF THE STATE OF WASHINGTON
9 COUNTY OF KITSAP
10 DALE MORRIS and JACQUELINE
11 MORRIS, husband and wife and their
marital community,
12 Plaintiffs,
13 V.
14 CITY OF PORT ORCHARD, a Washington
Municipal Corporation,
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NO. 18-2-03399-18
PLAINTIFFS' RESPONSE TO CITY'S
MOTION FOR MORE DEFINITE
STATEMENT
Defendant
COMES NOW Jane Koler and Mark Adams of Land Use & Property Law, PLLC and
responds to the City of Port Orchard's motion for a more definite statement, and files the
subjoined first amended complaint which states Plaintiffs' claims in a more definite manner.
See Exhibit A attached hereto.
DATED this 17'h day of January, 2019.
LAND USE & PROPERTY LAW, PLLC
4�,� — � 6, ---
JbK Koler, WSBA #13541
A orney for Plaintiffs Morris
LAND USE & PROPERTY LAW, PLLC
6659 Kimball Drive, Suite B-201
Response to Motion for Definite Statement — 1 Gig Harbor, WA 98335
(253) 853-1806
Jane Koler— Mark Adams of Counsel
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SUPERIOR COURT OF THE STATE OF WASHINGTON
COUNTY OF KITSAP
DALE MORRIS and JACQUELINE NO. 18-2-03399-18
MORRIS, husband and wife and their
marital community, FIRST AMENDED COMPLAINT
Plaintiffs,
v.
CITY OF PORT ORCHARD, a Washington
Municipal Corporation,
Defendant.
Plaintiffs allege the following facts and causes of action against the above -named
defendants:
I. PARTIES AND JURIDICTION
1.1 Plaintiffs Dale and Jacqueline Morris own real property located in Kitsap County;
Parcel No. 342401-4-115-2001, the ("Property"). The Property fronts on Canyon Court, on
which the City of Port Orchard, without compensation to Plaintiffs Morris, has taken an access
easement.
First Amended Complains: — 1
LAND USE & PROPERTY LAW, PLLC
6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler — Mark Adams of Counsel
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1.2 The City of Port Orchard, a municipal corporation formed under the laws of the
State of Washington, the ("City"), blocked -off the access to the Morris Property from Canyon
Court and constructed curbs, gutters and sidewalks across it.
1.3 The Morris Property and the City of Port Orchard are both located in Kitsap
county. This Court has jurisdiction over the parties and subject matter of this lawsuit. Venue
s proper in Kitsap County Superior Court.
11. FACTUAL BACKGROUND/ALLEGATIONS/
2.1 This paragraph incorporates paragraphs 1.1 to 1.3 above as though fully set forth
ierein.
2.2 On or about August 18, 2017, the City of Port Orchard's contractor, who was
naking road improvements, blocked -off the access easement to the Morris Property.
2.3 Mr. Morris notified the City that his predecessor had reserved an access
;asement that fronts on Canyon Court when it conveyed property to the State of Washington
or road improvements. Mr. Morris also informed the City that its street improvements
mproperly deprived him of his access easement.
2.4 The City has refused to either purchase the property on which the easement is
:)cated, or to reinstate the access easement to the Morris Property.
III. FIRST CAUSE OF ACTION: UNCOMPENSATED TAKING OF PROPERTY RIGHTS
3.1 This paragraph incorporates paragraphs 1.1 to 2.4 above as though fully set forth
ierein.
3.2 The City has wrongfully deprived Mr. and Mrs. Morris of a property right — the
right to a 40-foot-wide access easement off Canyon Court to their Property.
3.3 The City has offered Mr. and Mrs. Morris no compensation; it must pay them just
compensation, or restore access to the Property. The Washington State Constitution and the
First Amended Complaint — 2
LAND USE & PROPERTY LAW, PLLC
6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler — Mark Adams of Counsel
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I United States Constitution demand just compensation when a government seizes private
property.
3.4 The City has wrongfully deprived Mr. and Mrs. Morris of their nonconforming
rights, which are protected by Washington law as property rights, and due process of law.
3.5 The historic access easement Mr. and Mrs. Morris enjoyed was 40-feet wide.
The City has claimed that Mr. and Mrs. Morris are not entitled to a replacement 40-foot-wide
access route because the Property is zoned for residential use and the City Code demands
that residential driveways be not more than 30 feet.
3.6 The City claim ignores that Mr. and Mrs. Morris have an unequivocal right to
have a 40-foot-wide replacement access route.
3.7 This Court should declare that the City has taken the Morris driveway and their
nonconforming right to a 40-foot-wide driveway without just compensation, and that such
compensation must be paid to Dale and Jacqueline Morris.
IV. SECOND CAUSE OF ACTION: VIOLATION OF RIGHT TO DUE PROCESS
4.1 This paragraph incorporates paragraphs 1.1 to 3.7 above as though fully set forth
herein.
4.2 The City confiscated the access easement and nonconforming property rights
without giving Mr. and Mrs. Morris the slightest notice or opportunity to defend against such
actions.
4.3 Takino or imoairino protected nrcnerty rights nivRs rises to rhia nmracc
protections.
4.4 Here, the City took the Morris property rights without according them any
protections afforded by the due process clause of the Washington State Constitution and the
United States Constitution.
4.5 This Court should declare that the City violated the Morris' right to due process.
First Amended Complaint - 3
LAND USE & PROPERTY LAW, PLLC
6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler — Mark Adams of Counsel
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V. SECTION 1983 CLAIM
5.1 This paragraph incorporates paragraphs 1.1 to 4.5 above as though fully set forth
5.2 42 USC §1983 protects against violations of due process.
5.3 The Port Orchard City Council authorized the street improvements in front of the
Morris Property which resulted in taking the Morris' property rights.
5.4 City officials and the City Council authorized a public works project which gave
no notice to property owners whose rights were affected and offered no compensation to Mr.
and Mrs. Morris, despite the fact that is took their easement rights and nonconforming property
rights without giving them just compensation, or affording them any due process of law.
5.5 Such officials, acting under color of law, refused to restore the Morris' property
right of an access easement when notified of the taking.
5.6 Such officials, when notified of the City taking, did not attempt to offer Mr. and
Mrs. Morris any due process.
5.7 Such officials refused to compensate Mr. and Mrs. Morris for their property rights,
despite the City's uncompensated seizure of such rights.
5.8 This Court should declare that the City's seizure of Mr. and Mrs. Morris' property
18 rights by City officials acting under color of law constitutes a seizure of property without just
19 compensation which violates the United States Constitution and a violation of Section 1983.
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PRAYER FOR RELIEF
NOW, THEREFORE, Plaintiff prays for relief as follows:
1. This Court should declare that:
A. The City of Port Orchard took Mr, and Mrs. Morris' property rights
without giving them just compensation; and
B. The City violated the Morris' right to due process; and
C. The City committed a Section 1983 violation.
LAND USE & PROPERTY LAW, PLLC
6659 Kimball Drive, Suite B-201
First Amended Complaint — 4 Gig Harbor, WA 98335
(253) 853-1806
Jane Koler — Mark Adams of Counsel
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2. This Court should:
A. Award just compensation to Dale and Jacqueline Morris; and
B. Award costs and attorney fees pursuant to 42 USC §1983; and
C. Award any other relief which is just or equitable; and
D. Deem this complaint to be amended if the interests of justice demand
amendment.
DATED this 17th day of January, 2019.
First Amended Complaint — 5
LAND USE & PROPERTY LAW, PLLC
r✓
ne Koler, WSBA #13541
Attorney for Plaintiffs Morris
LAND USE & PROPERTY LAW, PLLC
6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler— Mark Adams of Counsel
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KITSAP COUNTY SUPERIOR COURT
FOR THE STATE OF WASHINGTON
DALE MORRIS and JACQUELINE No. 18-2-03399-18
MORRIS, husband and wife and their
marital community, DECLARATION OF SERVICE
Plaintiffs,
V.
'PITY OF PORT ORCHARD, a Washington
Municipal Corporation,
Defendant.
I, Jennifer S. Lord, hereby state as follows:
I am over the age of 18 years, competent to testify, and certify to the following
lased on my own knowledge and belief.
On the date below stated, I caused Plaintiff's RESPONSE TO CITY'S MOTION FOR
40RE DEFINITE STATEMENT, to be sent in the manner noted to the following parties:
eclaretion of Service-1
LAND USE 8, PROPERTY LAW, PLLC
6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler— Mark Adams of Counsel
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Sharon Cates, WSBA #29273
Lighthouse Law Group PLLC
600 Stewart Street, Suite 400
Seattle, WA 98101
[X] Via U.S. Mail, postage prepaid
[ ] Via Hand Delivery
[X] Via E-Mail to: sharon -_Iighthouselawgroup.COITI
I declare under penalty of perjury that the foregoing is true and correct.
DATED this 17th day of January, 2O19rat Gig Fkrbgr, Washington.
Declaration of Service-2
Jc-&ifer S. Lord, Legal Assistant
LAND USE & PROPERTY LAW, PLLC
6659 Kimball Drive, Suite B-201
Gig Harbor, WA 98335
(253) 853-1806
Jane Koler — Mark Adams of Counsel