   IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
                             DIVISION ONE




CRYSTAL RIDGE HOMEOWNERS                    No. 68618-6-
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ABULTZ, LAURIE AND WILSON AMARAL,                                  c—
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CRAIG ARNO, CARON BEAR, JOSEPH N.                                                     'T".>


BECK, DAVID BENNETT, GLORIA BLADES,
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DUANE AND GWEN BOWMAN, THOMAS
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CYNDY BOYER, JEFF AND KERI BROWN,                                    ——
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DON COLEMAN, DON DACHENHAUSEN,                                           • *
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ANH-VIET AND LISA DANG, BRAD AND                                         CO

JULIE DELUCA, BELARMINO DIAZ, GARY
JOHANN FELT, NICHOLAS AND MYUNG FIX
BARRY AND BONNIE FRETWELL,
TATSUICHIRO FURUKAWA, MARGARET
CHRIS GAZEY, PHILL AND ANNE HASTINGS
LINDA AND JEROME HODGES, RAYMOND
AND PAM HUTCHINSON, JAZ JANG, PETER
AND BEVERLY JOHNSON, STEVE AND              UNPUBLISHED OPINION
MANTI JOLLENSTEN, JAMES AND MAILLE
KESSENICH, KRISTI AND BRIAN KING,
VICKI AND JOHN KLEIN, CORRIE KRAP,
JOHN AND DEBBIE LAMB, RICHARD AND
JANET LARSON, JEFF LONGAKER, LYNNE
and ROBERT LUCKEY, TOM McKEY,
MICHAEL MEYER, DAWN MONCALIERI,
PHYLLIS AND WAYNE MURPHY, BRUCE and
KATHERINE NGUYEN, KATHLEEN AND
CLIFFORD OCONNELL, CHOON PARK,
STEVEN PFISTER, RUSSELL AND PAULINE
PORTER, LARRY AND JANICE RENDAHL,
CRAIG AND KAREN RENFROW, PAUL AND
DIANE ROBERTS, MARGARET ROMANO,             FILED: July 22. 2013
No. 68618-6-1/2



STEVEN RUBENSTEIN, AARON and
SHAUNA RUCKMAN, FAYE SCANNELL,
BEN and JACLYN SETTER, MARIANNE
SHAW, JOHN AND KARIN SHIPMAN,
DONALD AND MARY SIDES, JOHN
and NORMA SMITH, RICHARD
SMITH, SCOTT and SHARI TRAIL,
JOHN TRAXLER, DEAN AND MARIE
VAUGHAN, DIANE WING, KENNETH
and LEA WOOD, MARIA WYATT,

                     Respondents,



CITY OF BOTHELL, a municipal
corporation,

                    Appellant.

      Spearman, A.C.J. —At issue in this case is an interceptor pipe, buried 12 feet

below ground as part of a drainage plan for a development called Crystal Ridge in the
City of Bothell. The Crystal Ridge Homeowners Association sued the City after the pipe
allegedly failed and contributed to flooding. The Association argued the City was
responsible for maintenance ofthe pipe because the plat for the Crystal Ridge
development dedicated the pipe to what was then unincorporated Snohomish County as
part of a drainage easement depicted upon the plat application. The trial court agreed
and granted summary judgment to the Association.

       The plat dedicated an easement for the purpose of maintaining "stormwater

facilities." Because the interceptor pipe qualified as such a facility under the provisions
No. 68618-6-1/3



of the Snohomish County Code in place at the time the plat application was approved,

we affirm the trial court.


                                            FACTS


       This case arises out of flooding in a residential neighborhood in Bothell called

Crystal Ridge. The neighborhood was developed in 1987 in what was then

unincorporated Snohomish County, and it is undisputed that the neighborhood has an

extensive history of flooding. The hearing examiner who approved the preliminary plat

for the Crystal Ridge development found, based on the testimony of geotechnical

engineer Gordon Denby, that the Crystal Ridge development was "characterized by

excessively wet soils due to the geologic conditions which exist in the area[.]" Clerk's

Papers at 721. He found that "a surface drain and an interceptor trench or trenches ...

would be necessary" in order to develop the site. jd. On this basis, he concluded, "[t]he

simple reality is that this site is not your typical piece of property and that typical

drainage standards would probably not adequately protect the public use and interest."

As such, the hearing examiner made a comprehensive drainage plan, including the

interceptor trench, a requirement of approval of the plat application.

       The developer built the interceptor trench and placed a pipe in the trench. The

interceptor pipe, which is similar to a french drain, was a perforated pipe buried

approximately 12 feet below ground for the purpose of intercepting excess water and

conveying it away from the residential development. The interceptor pipe is located

within a drainage easement depicted on the plat for the Crystal Ridge development.
                                               3
No. 68618-6-1/4



       In 1992, the Crystal Ridge development was incorporated into the City of Bothell.

In 2010, the Crystal Ridge Homeowners Association, along with individual homeowners

("Crystal Ridge"), filed suit against the City of Bothell, alleging that the interceptor drain

was no longer working properly, and was causing water to concentrate and exit in

springs and seeps, damaging properties within the development. Crystal Ridge alleged

causes of action for negligence, trespass, nuisance, inverse condemnation, and sought

a declaratory judgment that the City of Bothell had assumed responsibility for

maintaining the drainage system.

       Crystal Ridge moved for summary judgment, seeking a ruling that the City

had assumed responsibility for maintaining the drainage system when it annexed

the development. The City cross-moved for summary judgment on the same

issue. The trial court granted Crystal Ridge's motion, and denied the City's

motion. The City filed a notice of appeal, and the court certified the appeal to this

court under CR 54(b).1
                                           DISCUSSION


       The City's chief argument on appeal is that it did not have a duty to maintain the

interceptor pipe at issue in this case because the dedication of a drainage easement to

Snohomish County found on the Crystal Ridge plat did not include the interceptor pipe.

According to the City, that easement gave Snohomish County a right of ingress and

       1Although the City has appealed sixorders ofthe trial court, it makes no argument as to any
orders other than the order granting Crystal Ridge's motion for summary judgment and denying the City's
cross motion. As such, the City has abandoned their appeal of the other five orders and we do not
address them here.
                                                   4
No. 68618-6-1/5



egress to maintain and repair only "stormwater facilities," and the interceptor pipe does

not qualify as a stormwater facility. We reject the City's argument and affirm.

      The plat for the Crystal Ridge development depicts a "drainage easement" in

which the interceptor pipe was located, and states:

      DRAINAGE EASEMENTS DESIGNATED ON THIS PLAT ARE
      HEREBY RESERVED FOR AND GRANTED TO SNOHOMISH
      COUNTY FOR THE RIGHT OF INGRESS AND EGRESS FOR
      THE PURPOSE OF MAINTAINING AND OPERATING
      STORMWATER FACILITIES

CP at 655, 657. The gravamen of the City's argument is that the interceptor pipe, which

was buried twelve feet below ground, was meant to deal with "groundwater" and

therefore cannot be part of a stormwater facility, which the City contends deals only with

"surface" water.


       In support of its argument, the City cites to several provisions of the Snohomish

County Code, former chapters 24 and 25. Former chapter 24 is titled "drainage." CP at

666. Its purposes included: "protecting] the public from stormwater runoff originating on

developing land"; "minimiz[ing] adverse effects of alteration in groundwater quantities,

locations, and flow patterns"; and "decreasing] drainage related damage to public and

private property." CP at 667-68. Former chapter 24 does not define "groundwater,"

"surface water," "stormwater," or "stormwater facility." It does, however, define "drainage

treatment/abatement facilities":

       "Drainage Treatment/Abatement Facilities" means any facilities
       installed or constructed in conjunction with a drainage plan for the
       purpose of treatment or abatement of stormwater runoff.
No. 68618-6-1/6



CP at 669 (SCC 24.08.120).

       The ordinance enacting former chapter 25 of the Snohomish County Code is

titled "providing for storm and surface water management." Former chapter 25 was

meant to complement and supplement former chapter 24. The legislative findings for

chapter 25 incorporate the findings for chapter 24, (SCC 25.01.010), and chapter 25

specifically states that the chapter was to "augment the County's Drainage Ordinance,

SCC Title 24[.]" (SCC 25.05.040). (CP at 450). The purposes of former chapter 25

included: "control, accommodate, and discharge storm runoff' and "provide for

groundwater recharge[.]" CP at 442. As was the case with former chapter 24, former

chapter 25 does not define "groundwater," "surface water," or "stormwater." It does

define "drainage facilities":

       "Drainage Facilities," as used in this chapter, shall mean any
       structural or nonstructural feature, element, or mechanism designed
       to accommodate storm and surface water runoff.

CP at 444 (SCC 25.02.030).

       According to the City, the definitions of "drainage treatment/abatement facilities"

in former chapter 24 and "drainage facilities" in former chapter 25 apply only to storm

and surface water, and not to groundwater. As a preliminary matter, the City provides

no authority defining "groundwater," nor does it provide authority indicating that

"groundwater" is excluded from "storm" water as used in former chapters 24 and 25 of

the SCC. Moreover, even ifthe City is correct regarding its interpretation of SCC

24.08.120 and 25.02.030, it is unclear how this helps the City, given the easement at
No. 68618-6-1/7



issue here did not mention "drainage treatment/abatement" or "drainage" facilities.

Rather, as the City points out, the easement granted Snohomish County a right of

ingress and egress to maintain and repair "stormwater facilities."

       On the issue of stormwater facilities, former chapter 25 provides the following

definition:

       "Storm and Surface Water Management Facilities and Features," as
       used in this chapter, shall mean any facility, improvement,
       development, property or interest therein, made, constructed, or
       acquired for purpose of controlling, or protecting life or property
       from, any storm, waste, flood or surplus waters, wherever located
       within the county, and shall include but not be limited to the
       improvements and authority described in RCW 86.12.020 and
       Chapters 86.13 and 86.15 RCW.

CP at 456-57 (SCC 25.02.080). The City contends this portion of the code supports its

interpretation because "[u]se of the terms 'storm, waste, flood or surplus waters,'

coupled with the omission of the term 'groundwater,' indicates that the County did not

intend for 'groundwater' facilities to be included in its definition[.]" Reply Briefat 10-11.

We reject this argument.

       The proper inquiry to determine whether the definition set forth in SCC 25.02.080

applies to the interceptor pipe is not the depth at which the pipe collects excess water;

rather, the proper inquiry is whether the interceptor pipe was "constructed ... for

purpose of controlling or protecting life or property from, any storm, waste, flood or

surplus waters[.]" CP at 457 (SCC 25.02.080). The record here shows the interceptor

pipe was constructed for such a purpose. The hearing examiner who approved the

preliminary plat found, based on the testimony of geotechnical engineer Gordon Denby,

                                               7
No. 68618-6-1/8



that the Crystal Ridge development was "characterized by excessively wet soils due to

the geologic conditions which exist in the area[.]" CP at 721. He found that "a surface

drain and an interceptor trench or trenches .. . would be necessary" in order to develop

the site. id. On this basis, he concluded, "[t]he simple reality is that this site is not your

typical piece of property and that typical drainage standards would probably not

adequately protect the public use and interest." CP at 725.

       Likewise, Denby testified that he observed construction of the interceptor trench

where the pipe was located, and that the pipe "benefits the County because it reduces

the amount of surface water runoff flowing on and emanating from the site." CP at 296.

He further testified that the pipe "definitely protects the public roads and public facilities

in the plat" and that without the pipe, "it is likely that water would be flowing out of and

around the catch basins on occasions creating a nuisance and hazard during freezing

conditions." jd.

       This evidence, which is undisputed, shows that the interceptor pipe was

"constructed ... for purpose of controlling, or protecting life or property from, any

storm, waste, flood or surplus waters[.]" CP at 457 (SCC 25.02.080). As such, the

interceptor pipe fits the definition of stormwater facility, and it was included in the

dedication on the Crystal Ridge plat.

       Moreover, the City's interpretation that this definition applied only to surface

water is belied by the history of the ordinance. Before former SCC 25.02.080 was

amended in 1983, it read:
                                                8
No. 68618-6-1/9

       "Storm and Surface Water Management Facilities and Features," as
       used in this chapter, shall mean any facility, improvement,
       development, property or interest therein, or other structural or non
       structural element, made, constructed, or acquired for the purpose of
       controlling, or protecting life and safety, natural resources, or
       property from, any storm, waste, flood, surplus, or other surface
       waters wherever located within the County, and shall include but not
       be limited to the improvements and authority described in RCW
       86.12.020 and chapters 86.13 and 86.15 RCW.

CP at 445-46 (emphasis added). In 1983, the County Council amended the code and

removed the clause highlighted above ("or other surface waters"), thereby making it

clear that the definition of "Storm and Surface Water Management Facilities" does not

apply only to "surface waters." We reject the City's arguments on this issue.

       The City advances several other arguments in an attempt to show there was no

intent that the interceptor pipe be included in the dedication on the Crystal Ridge plat.

We conclude they are without merit. For example, the City notes that the location of the

easement for the interceptor pipe also includes a sanitary sewer main; the implication

apparently being that if the interceptor pipe was deeded to the County, so was the

sanitary sewer, which is an absurd result. But Crystal Ridge has not argued the sanitary

sewer fits the Snohomish County Code definition of stormwater facility, and moreover,

the plat specifically indicates the easement for the sanitary sewer belongs to the "AWD"

(Alderwood Water District).2
        Likewise, we reject the City's argument about the drainage disclosure

requirement. Before the Crystal Ridge plat was approved, the County required the

        2The City also argues that the purpose ofthe easement at issue in this case was for ingress and
egress to repair and maintain a swale, not the interceptor pipe. This argument, however, is largely a
response to Crystal Ridge, who contends there were no other drainage instruments located within the
easement.
                                                    9
No. 68618-6-1/10



developer to record a document titled "Drainage Disclosure." CP at 472-73. The

drainage disclosure includes the legal description of and tax assessor number for the

Crystal Ridge plat, and gives notice to anyone who looks up property that extensive

drainage control occurred on the plat:

      The filing of this document:

      (1) Constitutes the current acknowledgment of the conditions and terms
      of Plat Approval for the Plat of Crystal Ridge pursuant to the Hearing
       Examiner's decision dated October 11, 1984, to wit:

      That this document has been recorded with the County Auditor disclosing
      to all the following:

       Substantial surface and subsurface drainage controls have been
       necessary in the development of the subject property, and that special
       and/or extraordinary drainage controls may be necessary on individual
       lots.

       (2) Constitutes the current owner's acknowledgment of the current terms
       and conditions under which Approval was granted.

       (3) Serves as notice to any heir, successor, assign or prospective
       purchaser the disclosures and terms and conditions runs with the land
       pursuant to Section 19.40 SCC and the compliance and/or knowledge
       are the obligation of any owner of the subject property.

CP at 472.


       The City simply asserts, without argument or citation to authority, that "it is clear"

that the disclosure means the owners of individual lots were responsible for

maintenance of the interceptor pipe. The City's interpretation is that this disclosure

"mandates that future 'compliance' with 'drainage controls' on 'individual lots' is 'the

obligation of any owner of the subject property.'" Opening Brief at 13-14. According to

the City, there is no other possible purpose for this disclosure. We disagree. A far more


                                             10
No. 68618-6-1/11



plausible, common-sense interpretation of the "drainage disclosure" is that itwas simply

intended to disclose to prospective purchasers of the real property that "Substantial

surface and subsurface drainage controls" were put in place on the plat.

       Additionally, the City appears to argue that there is no evidence the interceptor

pipe was actually located within the easement dedicated on the Crystal Ridge plat. But

the City's argument is based on two geotechnical reports that discuss a proposed

location for a swale drain. From there, the City simply guesses as to where the

interceptor pipe might be in relation to the proposed swale drain. This is nothing but

speculation. By contrast, Denby testified that he personally observed construction of the

interceptor pipe trench, and that it was, in fact, located within the easement.

       Finally, the City makes an argument that Crystal Ridge failed to meet the

elements of an implied, common law dedication. But this argument rests on the City's

premise that there was no statutory dedication because the interceptor pipe did not fit

the definition of "stormwater facility."

       The brief of amicus curiae Washington State Association of Municipal Attorneys

is focused on the potential danger of a holding too broad in this case. The Association

notes the fact that municipalities require developers to reserve easements for utilities

does not mean that the municipality has placed upon itself a duty to maintain those

easements for the benefit of service providers such as Comcast or Puget Sound

Energy. The Association also provides an example of water service being provided by

multiple water districts from jurisdictions outside of the plat location. The Association
                                             11
No. 68618-6-1/12



argues "[t]he dedication on a plat for utilities to be provided by one of those separate

municipalities cannot reasonably be interpreted to require the City to be responsible for

the maintenance, inspection, and repair of those facilities that are owned by the

ratepayers of those other municipalities." Amicus Brief at 3.

       The Association is correct as to both of these examples. The decision in this

case, however, does not implicate the Association's concerns because the drainage

easement here was specifically granted to Snohomish County for the purpose of the

County "maintaining and operating" the stormwater facilities. Moreover, nothing in the

opinion indicates a municipality is prohibited from entering into an interlocal agreement

with a different municipality delegating any maintenance obligations to the other

municipality.

       The Association also argues that there is no duty for a municipality to maintain

private facilities. We agree, and nothing in our opinion states otherwise. The Association

also argues that the interceptor pipe was not included in the easement because it

collects groundwater. We reject that argument for the reasons stated above.

       Affirmed.




WE CONCUR:                                                  J               y



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