(photo by Bob Walter 2005)

A view from "Van Eaton Park" taken last spring. 

      On May 6, 2006 lifelong Eatonville resident Steve Van Cleve filed a suit against the town in Pierce County Superior Court. The suit alleges illegal actions were taken to sell a three-acre piece of land known as Van Eaton Park. The land was declared "surplus" and authorized to be sold by the majority of the town council. Developer Jerry Nybo, and perhaps a financial partner, bought the land. Councilmember Bobbi Allison voted against the action and Councilmember Chelan Jarrett recused herself from the issue because she is related to the Van Eatons.
    The Town of Eatonville made a motion for a summary judgment (dismissal) and Superior Court Judge *Sergio Armijo did dismiss the case. No trial was held. Then Van Cleve put the issue before the Court of Appeals who heard the case in June of this year and issued their decision November 14. The decision overturns Judge Armijo and remands the case back to Superior Court for a jury trial.

Town Options?

     It is now up to the town as to which direction they will take in this matter. Town options? They can take the matter to the State Supreme Court, go to trial in Superior Court or settle out of court. And the town can "throw in the towel" at any time up until a trial is held.
    Town founder Thomas Cobb Van Eaton gave the land to the town for a park. Van Eaton gave away much of his homestead to encourage the growth of Eatonville. No paperwork was found which stated the land was donated for a park. And the town maintained the land was actually sold to the town by Van Eaton for four hundred dollars. 

               Little Park, Big History of Controversy      

     The small parkland has been a subject of controversy in the past. In the mid-1970s sale of the park was brought was up by the council. Plans to sell the property where dropped when members of the public, including members of  the Van Eaton family, spoke against the sale. The mayor at that time was the late George Smallwood, father of Tom Smallwood, the present mayor. Mayor Smallwood, the Elder, listened to those in opposition to the sale and with good nature killed the proposal to sell the little park.
     Early last year the subject of selling the "parkland" was  again  brought by  council- appointed  former mayor Bruce Rath. When the subject was made public the controversy began again. This time the "ideal" was to sell Van Eaton parkland and buy Terry Van Eaton's land on Mashell Avenue which was to be used for a "town square."
    Last spring and summer members of the public, and surviving members of the Van Eaton family spoke at an orderly council meeting on behalf of keeping the park as green space. No one spoke publicly in favor of selling the land. The few in favor of selling  implied they were intimidated by the "mob mentality" of the concerned citizens who attended the public meeting. A petition with about one hundred signatures was also given to the council.
    As the controversy to keep the park continued, Rath and some council members also continued with plans to sell the land. Citizens in opposition were simply ignored. 
    The 1993 Comprehensive Plan listed the piece of property as "parkland." However, the newest version of the comp plan (adopted after the council voted to surplus and sell the park) had been edited and the  word "parkland" was removed. 

               Court of Appeals "Facts"

     The Court of Appeals decision states: "Facts: The Eatonville Town Council passed Resolution 2005-O, which declared that 3.08 acres of land located on Orchard Avenue was surplus and authorized advertising to sell the land. The Town planned to sell the 3.08 acres to fund the purchase and development of an urban park. The Town's 1993 Comprehensive Plan, in effect when Resolution 2006-O was adopted, referred to the 3.08 acres as undeveloped parkland and included the property in the Town's inventory of parks and recreation."
    Furthermore, "A genuine issue of material fact exists regarding the Town's intent to dedicate the 3.08 acres as a public park. The Town's 1993 Plan [comp plan] includes the 3.08 acres in the Town's parks and recreational inventory. The Plan states, in relevant part, that the town is served by 'undeveloped parkland known as Van Eaton Parkland' and hints that the area will be developed'...The Plan also includes a map entitled 'Eatonville Parks' that labels the 3.08 acres as a park."
    In other words, the town, upon passing Resolution 2005-O, was acting on the comp plan which named the property as "parkland" and not acting under the newest comp plan which changed the standing of the property to residential. The town argued that Van Cleve's case was "moot" because the land had been sold.

              Van Cleve Case "Not Moot"   

    However, the decision says, "...this case is not moot. Van Cleve's motion for declaratory judgment seeks to clarify whether the Town had authority to declare the property surplus and authorize its sale. If the Town did not have the authority to sell the 3.08 acres, then the sale would be invalid and void." 
   The town also argued that the little park was not "dedicated." According to the Court of Appeals, "Van Cleve maintains that summary judgment was improper because he presented sufficient evidence to show that genuine issues of material fact exist as to whether the Town intended to dedicate the 3.08 acres and whether the public accepted the dedication..."
   The decision explains, "A dedication is the devotion of property to a public use...Dedication may be accomplished under statute or common law...The owner's intent may be shown by act that positively and unequivocally indicates its intention. Evidence of this intent may include a showing that the public generally used the property, paid taxes, or improved the land, or that the governmental entity recognized or claimed the land as public land...
   "Public acceptance may be proved by an express act, implication from the acts of municipal officers, or implication when the public used the property for the purpose for which it was dedicated...The plaintiff need not show that a certain number of people used the property for a set period of time, but must merely show that those persons who might be expected to enjoy the dedication have used it to their pleasure or advantage.
    "A common law dedication may be either express or implied...An implied common law dedication requires no particular formalities, but is found only if the plaintiff proves by clear and convincing evidence that (1) the owner, through a clear and unmistakable act, manifested the intent to dedicate its land to public use, and (2) the public accepted the owner's offer."
    The Court of Appeals document goes on to say, "...the Town confuses statutory dedication and common law dedication...when a dedication fails under a statute or ordinance, such as the Town's Municipal Code, the doctrine of common law may still apply...It is undisputed that the public did not accept the 3.08 acres by following protocol developed in the Municipal Code, but this does not mean that the Town did not accept the dedication by conduct which is sufficient under the common law." 
    Van Cleve is represented by William F. Wright and the town, according to court documents, is represented by Edward Hudson and Town Attorney Bob Mack. 

 (*Publisher's Note: Superior Court Judge Sergio Armijo was the second judge assigned to the Van Cleve case. In August 2004 The News Tribune conducted a survey of trial lawyers as a special report - "Judging the Judges." Judge Armijo was consistently at, or near, the bottom of all the criteria. Example. "The number of Pierce County attorneys who said they probably wouldn't take a case in front of the following judges..." At the bottom of the list is Judge Armijo with 25 attorneys who would probably reject him.
     Judge Armijo is the last judge on the list in the "decision making" category; also last on the list under the "efficiency" heading; "demeanor" - third from bottom; "impartiality" second from bottom. He has been on the bench in Pierce County Superior Court since 1994. One hundred and thirteen attorneys participated in the News Tribune's evaluation which was done to assist voters.)