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Boy Scouts’ Camp Kilworth: When a deed is, indeed, a deed

Post by Lewis Kamb / The News Tribune on Sep. 21, 2009 at 5:35 pm with 4 Comments »
September 21, 2009 5:35 pm

As the TNT’s Steve Maynard reported last week, the state Supreme Court’s recent decision to decline an appeal by the Pacific Harbors Council effectively means the sale of Camp Kilworth to the City of Federal Way has been scotched.
But the high court’s action (or in this case, inaction) may also have broader implications:  Kilworth is among at least two dozen properties across the nation that have become battlegrounds in recent years between the Boy Scouts and well-meaning property donors, who have come to believe the BSA’s handling of their gifts have fallen far short of Scout’s Honor.

A little background on the Kilworth case:  In 2006, after initially negotiating with developers, the Tacoma-based Pacific Harbors Council ultimately agreed to sell the camp for $3 million to the city, which had planned to preserve Kilworth as a park.

Scouting officials had said urban encroachment and land erosion made Kilworth less desirable for scouting programs. They also said they intended to use at least some proceeds from the camp sale to cover costs for updating other council properties. Meanwhile, the city wanted to save the camp property – one of south King County’s last large undeveloped tracts on Puget Sound – as open space.

To most observers, the pending sale sounded like a win-win. There was just one catch: The property deed.

When Tacoma businessman William Kilworth and his wife, Augusta, donated the property that would become Camp Kilworth to the Boy Scouts in 1934, the couple’s deed stipulated the land was to be used “for the purpose of teaching scout craft, cooperation, patriotism, courage, self reliance and kindred virtues among boys.”

The deed also included “express conditions that [the Boy Scouts] shall never convey, lease or encumber said premises . . . and shall never allow the same to come into the possession of any other party.”

If the scouts ever violated the terms set forth by the Kilworths’ deed, a reversionary clause would be activated, reverting ownership of the land to the Kilworths or their heirs.

Fast-forward 70 years, when the scouting council agreed to sell the property to the City of Federal Way. The scouts’ attorneys claimed the deed’s restrictions no longer should apply because, well, times had changed. They convinced a Pierce County judge the deed was not a deed at all, but more like a trust. The argument went that the scouts, as trustees, had more flexibility to deal with the property over time than what a deed with restrictions allowed. Under Washington law, trusts can be reformed, and in this case, the Pierce County judge allowed reforming the Kilworth deed, so as to remove its reversionary clause and clear the way for the camp’s sale to the city.

Estates for the Kilworth family appealed. Earlier this year, they won a ruling from the state’s Court of Appeals reversing the Pierce County ruling. Among other things, the appeals court ruled the Kilworth deed was indeed a deed. The court ruled flatly, Kilworth’s “deed is plain on its face,” and that “the deed should not have been reformed.”

Now that the Supreme Court has denied the Pacific Harbor Council’s petition to hear the case, the state Appeals Court’s ruling stands, making it the prevailing case law on the matter — and, killing the sale.

Beyond the Camp Kilworth dispute, the issue of deed restrictions on property donations to the Boy Scouts has become a broader discussion across the nation.

While reporting an investigation on Boy Scouts’ logging and land use activities for my former newspaper, the Seattle Post-Intelligencer, Camp Kilworth was one of among at least two dozen examples I found nationwide of BSA property disputes with donors or their heirs over deed restrictions.

Most of the cases involved well-meaning donors who sought to give land to their local scouting councils for use as camps. Wanting to make sure those lands stayed forested and used for the benefit of boys, deeds for such gifts often restrict scouting councils from selling or developing such land gifts. But time and again, I found, scouting councils have sought to break such deed restrictions in order to sell off or log such lands for profit.

Scouting officials told me that properties that come with strings can be difficult gifts to accept. As scouting programs change over time, properties that once were popular may no longer fit program needs or goals. Land can also fall into disrepair, become difficult to maintain, or become undesirable locales for camping due to surrounding development or other factors, BSA officials say.

But many of the examples and disputes I found also occurred because scouting councils sought to reap profit off such donated lands. In recent years, some scouting councils have sought to use revenues from land sales, or potential land sales, to help make up for funding losses due to the BSA’s recent bans of gay and atheist members.

Unlike the Kilworth case, most of the examples I found involved scouting councils that either logged or sold properties to developers. Still, Pacific Harbors Council stood to make a profit off the Kilworth sale, even though the land would have been preserved as parkland. Pacific Harbors officials told me revenues from the Kilworth sale would largely be put back into other properties.

What is similar among all the cases I reviewed, including Kilworth, is the issue of scouting councils seeking to break restrictions on deeds to exploit such donated properties for sale or logging. Scouting councils have both won and lost similar cases that wound up in court around the country. Other examples haven’t gotten that far, but have raised public debate over the issue.

The Kilworth case helps to further harden the law already on the books for similar cases, including one I wrote about on the other side of Washington. Relatives of a wild lands preservationist who donated Camp McCroskey in Northwest Idaho to the Spokane-based Inland Northwest Council are considering ways for seeking to get the scouts to relinquish that property, which the council rarely uses but has repeatedly logged over the years for profit.

Seattle University School of Law Professor John Weaver, an expert in property law, said that had the state Supreme Court taken up the Boy Scouts’ case and reversed the Appeal Court’s ruling, a precedent would have been set. That could have opened the door for scouting councils or other organizations, giving them more flexibility to break deed restrictions on such land donations.

Since that didn’t happen, Weaver said, the prevailing case law on land donated with restrictions is clear:

“I don’t think it can have much affect on the way people choose to make donations to charities, such as the Boy Scouts,” Weaver said.

But Weaver added that people who want to hold the scouts – or any other organization they wish to donate land to – to the terms expressed by deed restrictions can continue to do so without fear those restrictions can be changed.

But, Weaver added, people should probably seek legal advice to help them craft iron-clad deeds.

“This is probably going to sound like a pitch for legal advice,” he said. “But as long as people go to lawyers, there probably won’t be a problem.”

People who want to give property to organizations such as the scouts can give such organizations “considerable flexibility,” Weaver added, by making the gifts in trust and allowing the trustees to sell or exchange the property, “while still keeping the basic purpose of the gift alive.”

Leave a comment Comments → 4
  1. jimkingjr says:

    Has anyone asked the heirs if, should the property revert, they’d be willing to sell to the city on the same terms? And put the proceeds into something that would meet the same need as the original donation?

    Having a disgruntled owner that may let the property go to weed is not a good thing.

  2. karlveek says:

    I am so glad the court ruled the way it did. The Boy Scouts council in Los Angeles have sold just about every piece of property they owned. Most went to developers while a couple are still campgrounds but open to the general public. Ever try to have a scouting weekend with a bunch of drunk idots in the next campsite. It loks like greed is infiltrating the Pacific Harbors Council.

  3. ldozy1234 says:

    Funny how Pierce County lawyers always have a problem with the word perpetuity.
    Glad the Supreme Court has upheld this legacy’s intent.

  4. webtimes22 says:

    I am glad the courts upheld the deed. I am disappointed in the terms generally thrown at the Boy Scouts. Does Washington State “Log for profit” the forests of our state or do they use the resources provided by the state constitution to support education? How can a “non-profit” generate “profit”? This commentator reflects a prevailing trend of tearing down organizations that have differing political points of view instead of creating new organizations to support one’s own point of view. The beauty of America is the ability to compete for everyone to choose who and what they support. I look forward to working on restoring Camp Kilworth along with other Pacific Harbor’s Scouts, their leaders and their supports.

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