City Negotiates Shared Access Agreement

WAITSBURG – Waits­burg attorney Mike Hubbard recently worked with the City Attorney’s Office to draft a shared access agree­ment regarding the new ten­ant who has taken residence in the upstairs of Hubbard’s Main Street building. The agreement was presented to the council at last week’s meeting, and resulted in a motion to tighten the lan­guage and bring it back next month for a vote.

Hubbard recently rented the top floor of the Hub­bard Law Office building to an artist who plans to use the space as her residence as well as a studio/ gallery. The only access to the upstairs of the building is – and has always been -- through a side street door and stairwell owned by the City.

The City expressed con­cern at realizing the space would be open to public access and not simply resi­dential. The potential of increased liability and van­dalism were top issues.

“Right now we have con­trol of the door to those we know and trust and have keys. Then we’re going to open that up to people we don’t know,” said Mayor Walt Gobel. “The potential for vandalism has increased because we’ve got people going in where in the past we haven’t. I’m concerned with any increased liability the City might have with people using those stairs. Are they safe, adequate, in good con­dition?”

Hubbard said that the stairs had been inspected and were in good condition and referenced a hold harmless clause in the agreement. He also stated that the building has a history of public use as a legal office.

City Clerk Randy Hinchliffe agreed. “The sheriff used to come in and out all the time. Court was held up there for years. They’ve seen more traffic in the past than they ever have from these guys here,” said Hinchliffe.

“I’ll ask you a real hard question,” said Gobel. “What happens if we don’t give you access? Hubbard responded – colorfully – that he would sue the City for access.

Hubbard maintains that a prescriptive easement al­ready exists through his­torical use. “You have to remember that my building was there first. My dad owned both buildings so there’s obviously a way of assessing that there is an established easement. It is all commercial and it fits together that way,” said Hub­bard. “I think if you check with city (legal) counsel our prescriptive easement is al­ready vested. It’s there.”

Several council mem­bers mentioned that the large outside door had be­come warped and difficult to lock and may be in need of replacement or major repair. They felt increased use would speed the dete­rioration process. Hubbard said the agreement allowed for split maintenance costs of up to $500. “Anything above that and we’ll talk. Plus we’re going to paint the whole stairwell right off the bat, upstairs and down­stairs,” said Hubbard.

When asked if he’d had a chance to review the docu­ment, city attorney Kris He­dine said his associate, Jared Hawkins, had worked with Hubbard on the agreement and Hedine had reviewed it that morning.

“I think it was fine. I think, based on some of the comments tonight, we could add some language to beef it up a little bit. But what Mike is saying is that, based on the circumstances and history there’s probably a prescrip­tive easement already in place. It’s up to a judge to determine that but we get there by virtue of a lawsuit.”

Councilman Kuykendall commented that an adjudi­cated easement, “doesn’t just give carte blanche, un­fettered access.” Hedine responded that it depends on the circumstances and his­tory of use. Hubbard com­mented that use has histori­cally been unfettered.

“What I’m concerned about right now is that ev­erything is status quo,” said mayor Gobel. “We’re sail­ing along and we aren’t looking down the road at any potential costs to the City. Although I understand Mike’s concern about want­ing access I want to protect the City as well as I can. I personally don’t feel that I’m prepared, at this time, to make a good decision for the benefit of the City.”

Councilman Dunn re­quested that the agreement be held over until next month’s meeting, “until we can fine tune the language.” Hubbard agreed and a mo­tion was passed.