' .......,··· 

### ,.,

.;· ;"' 

### IN THE SUPREME COURT OFTHE STATE OF WASHINGTON

CRYSTAL RIDGE HOMEOWNERSASSOCIATION, ) aWashington nonprofit corporation; J. ABULTZ, an ) individual; LAURIEAND WILSONAMARAL, ) husband and wife, and the marital community ) thereof; CRAIGARNO, an individual; CARON ) BEAR, an individual; DAVID

### A. BENNETT, an ) individual; GLORIA BLADES, an individual; DUANE ) No. 89533-3 AND GWEN BOWMAN, husband and wife and the ) marital community thereof; THOMASAND CYNDY ) En Bane BOYER, husband and wife, and the marital ) community thereof; JEFFAND KERI BROWN, ) husband and wife, and the marital community ) Filed

__ 

## F_EB_1_2_2_01_5

_ thereof; DON COLEMAN, an individual; DON ) DACHENHAUSEN Ill and DAWN MONCALIERI; ) ANH-VIETAND LISA DANG, husband and wife, ) and the marital community thereof; BRADAND ) JULIE DELUCA, husband and wife, and the marital ) community thereof; BELARMINO DIAZ, an ) individual; GARYJ. AND JOHANN J. FELT; ) NICHOLASAND MYUNG FIX, husband and wife, ) and the marital community thereof; BARRYAND ) BONNIE FRETWELL, husband and wife, and the ) marital community thereof; TATSUICHIRO ) FURUKAWA, an individual; J. CHRISAND ) MARGARET GAZEY, husband and wife, and the ) marital community thereof; PHILLANDANNE ) MARIE HASTINGS, husband and wife, and the ) marital community thereof; JEROME J. AND LINDA ) L. HODGES, husband and wife, and the marital ) community thereof; RAYMONDAND PAM ) HUTCHINSON, husband and wife, and the marital ) community thereof; STEVE 

### L. AND MANTI 

### L. ) JOLLENSTEN, husband and wife, and the marital ) community thereof; PETERAND BEVERLY ) JOHNSON, husband and wife, and the marital )CrystalRidge HomeownersAss'n etat. v. CityofBothell, No. 89533-3 community thereof; JAMES 

### R. AND MAILLE

### A. ) KESSENICH, husband and wife, and the marital ) community thereof; BRIANAND KRISTI KING, ) husband and wife, and the marital community ) thereof; JOHNAND VICKI KLEIN, husband and ) wife, and the marital community thereof; CORRIE ) KRAP, an individual; JOHNAND DEBBIE LAMB, ) husband and wife, and the marital community ) thereof; RICHARD 

### R. AND JANET E. LARSON, ) husband and wife, and the marital community ) thereof; JEFF LONGAKER, an individual; ROBERT ) AND LYNNE LUCKEY, husband and wife, and the ) marital community thereof; TOM MCKEY, an ) individual; PHYLLIS M. AND WAYNE MURPHY, ) husband and wife, and the marital community ) thereof; MICHAEL

### A. MEYER, an individual; ) BRUCEAND KATHERINE NGYUEN, husband and ) wife, and the marital community thereof; ) CLIFFORDAND KATHLEEN O'CONNELL, ) husband and wife, and the marital community ) thereof; JAZJANGAND CHOON PARK; STEVEN ) J. PFISTER, an individual; RUSSELLAND ) PAULINE PORTER, husband and wife, and the ) marital community thereof; LARRYAND JANICE ) RENDAHL, husband and wife, and the marital ) community thereof; DIANEAND PAUL ROBERTS, ) husband and wife, and the marital community ) thereof; CRAIDAND KAREN RENFROW, husband ) and wife, and the marital community thereof; ) MARGARET ROMANO, an individual, AARONAND ) SHAUNA RUCKMAN, husband and wife, and the ) marital community thereof; FAYE N. SCANNELL, ) an individual, BEN AND JACLYN SETTER, ) husband and wife, and the marital community ) thereof; STEVEN RUBENSTEINAND MARIANNE ) SHAW; JOHNAND KARIN SHIPMAN, husband ) and wife, and the marital community thereof; ) MICHELE SINKULA, an individual; DONALDAND ) MARILYN SIDES, husband and wife, and the ) marital community thereof; JOHN SMITH, an ) individual; RICHARD F. AND NORMAS. SMITH, ) husband and wife, and the marital community ) thereof; SCOTTAND SHARI TRAIL, husband and ) wife, and the marital community thereof; JOHN ) TRAXLER, an individual; DEANAND MARIE ) 2Crystal Ridge HomeownersAss'n eta/. v. CityofBothell, No. 89533-3 VAUGHAN, husband and wife, and the marital ) communitythereof; DIANE WING, an individual; ) KENNETH AND LEAWOOD, husband and wife, ) and the marital community thereof; MARIA K. ) WYATT, an individual, ) ) Respondents, ) ) 

### v. ) ) CITY OF BOTHELL, a municipal ) corporation, ) ) Petitioner. ) ) WIGGINS, J.-We must decide whether the city of Bothell assumed responsibility for maintaining a drainage pipe installed in Crystal Ridge, a residential subdivision in Snohomish County. Crystal Ridge was developed from two residential plats that Snohomish County approved in 1987. The area became incorporated into the city of Bothell (City) in 1992. One of the plats contained a drainage easement within a tract owned by the Crystal Ridge HomeownersAssociation (HOA). The plat dedicatedthatdrainage easementto Snohomish County. Ordinarily, approval ofa plat by a county constitutesacceptance bythe countyofanyeasementsdedicatedtherein. The City, however, argues thatthe disputed drainage pipe is outside the scope ofthe drainage easementthatthe City inherited from Snohomish County. We disagree and hold that the only reasonable interpretation of the Crystal Ridge plat is that Snohomish County-andthereforethe City-assumed responsibility for maintaining the drainage pipe. We therefore affirm the trial court's grant of summaryjudgment in favor of respondents.

3CrystalRidge HomeownersAss'n eta/. 

### v. CityofBothell, No. 89533-3 FACTS In 1987, Snohomish County approved development of two residential plats collectively called Crystal Ridge. At the time, the area encompassing Crystal Ridge
was part of unincorporated Snohomish County (County). In 1992, five years after the Crystal Ridge plats were approved, the area became incorporated into the City. Naturally occurring wet soil conditions posed a substantial challenge to the development of Crystal Ridge. In his decision approving the Crystal Ridge plats, the County's hearing examiner, John E. Galt, noted three potential sources for the saturated soil in his findings: (1) "subsurface water," or groundwater, that "has been stored in porous soil layers upslope of the site," (2) "septic tank drainfields in the development upslope," and (3) "leakage from storm drains or water lines." Decision of Hr'g Exam'r at 3. To alleviate these wet soil conditions, consulting geotechnical engineer Dr. Gordon Denby stated in his report to the hearing examiner that "an interceptor trench or trenches along the west property line would be necessary in order to intercept the groundwater flow and dewater the site so that residential construction could occur." 

### /d. The trench would have to be "as much as 12 feet deep in order to accomplish the desired purpose." 

### /d. The hearing examiner included the following conclusion in his decision: The mostcritical issue involved in the instant proposal is subsurface and surface drainage. The simple reality is that this site is not your typical piece ofproperty and thattypical drainage standards would probably not adequately protectthe public use and interest.

...The recommendations

4CrystalRidge HomeownersAss'n eta/. v. CityofBothell, No. 89533-3 made by [Dr. Denby] should be made mandatory conditions of project approval. 

### /d. at 7. To this end, the hearing examiner required the developer to install an underground pipe to intercept and divert water away from the site. The interceptor pipe was placed 11 feet underground in an area labeled "Tract 999" on the plat. Groundwater captured by the interceptor pipe was directed to a pond on adjacent private property. The recorded plat showed that Tract 999 would be owned by the HOAsubject to an easement described as a "25' sanitary sewer (A.W.D.) and drainage easement." The platfurther provided that "drainage easements designated on this plat are hereby reserved for and granted to Snohomish County forthe right of ingress and egress for the purpose of maintaining and operating stormwater facilities." Tract 999 contained two buried pipes located in the same trench: asewer pipe belonging to theAlderwood Water District (the "A.W.D." referenced in the above-quoted description ofTract 999) and the interceptor pipe. In 2010, the HOA and several individual homeowners (respondents) sued the City, alleging that the interceptor pipe had failed and damaged several properties within the development. 1 Respondents moved for summary judgment, seeking a declaratory judgment that the City, as successor to the County, was responsible for maintaining the interceptor pipe. The Cityfiled across motion for summaryjudgment,

1 Respondents also asserted claims of negligence, inverse condemnation, trespass, and nuisance, but none ofthese claims are at issue in this appeal.
5CrystalRidge HomeownersAss'n etat. v. CityofBothell, No. 89533-3 seeking adeclaratoryjudgmentthatthe HOAwas responsibleforthe interceptor pipe. The trial court denied the City's motion and granted summary judgment in favor of respondents. The trial court then certified the issue to the Court ofAppeals, which affirmed the trial court's ruling in favor of respondents. Crystal Ridge Homeowners Ass'n v. CityofBothell, noted at 175Wn. App. 1047, 2013WL 3872223. ANALYSIS Dedications ofland to public entities like the County and the City are controlled by chapter 58.17 RCW (subdivision act), which governs plats, subdivisions, and dedications. The legislature enacted the current iteration of the subdivision act in 1969.2The act's express purpose is, among otherthings: to regulate the subdivision of land and to promote the public health, safety and general welfare in accordance with standards established by the state to prevent the overcrowding of land;

... to promote effective use of land; to promote safe and convenient travel by the public on streets and highways;

... to facilitate adequate provision for water, sewerage, parks and recreation areas, sites for schools and schoolgrounds and other public requirements;

. . . to provide for the expeditious review and approval of proposed subdivisions which conform to zoning standards and local plans and policies; [and] to adequately provideforthe housing and commercial needs ofthe citizens ofthe state
.... RCW 58.17.010 (emphasis added). The subdivision act also sets forth the requirements for a statutory dedication: "Dedication" is the deliberate appropriation of land by an owner for any general and public uses, reserving to himself or herself no other rights than such as are compatible with the full exercise and enjoyment ofthe public uses to which the property has been devoted. The intention to dedicate shall be evidenced by the owner by the presentment for filing of a final plat or short plat showing the dedication thereon; and, the

2 See LAWS OF 1969, 1st Ex. Sess., ch. 271. 6CrystalRidge HomeownersAss'n eta/. v. CityofBothell, No. 89533-3 acceptance bythe public shall be evidenced bythe approval ofsuch plat for filing by the appropriate governmental unit. RCW 58.17.020(3). The parties do not dispute that such a statutory dedication of Tract 999's drainage easement occurred, 3 nor do they dispute that the County accepted this dedication.4 Rather, the dispute centers on two issues: the scope of the drainage easement and the associated dedication, and whether interpreting the easement to include the interceptor pipe would run afoul of the restrictions on the use of public funds contained in article VIII, section 7 of the Washington Constitution. We decline to reach the latter argument because the City failed to raise it priorto filing its petition for review. The remaining issue, whether the drainage easement includes the interceptor pipe, is essentially a matter of plat interpretation. Specifically, the City argues thatthe interceptor pipe does not fall within the scope ofthe drainage easement and that the interceptor pipe therefore was not dedicated to the County. Consequently, the City claims neitherthe County northe City everaccepted responsibility for maintaining the

3 Because a statutory dedication occurred, we need not address the common-law-dedication argument presented in the City's petition for review. Indeed, respondents never asserted common-law dedication beforethe trial court. The Cityfirst set up this straw man beforethe Court ofAppeals, which properly dismissed it by noting that "this argument rests on the City's premise that there was no statutory dedication

...." CrystalRidge, 2013 WL3872223, at *5. 4 Here, acceptance ofthe Crystal Ridge plats is evidenced by the signatures that appear on the plats. Specifically, the plat for Crystal Ridge's Division 2, which includes Tract 999, bears the signatures of Snohomish County's Director of Public Works, Director of Department of Planning and Community Development, and County Council Chairman. Each ofthose officials certified that they reviewed and approved the plat. The plat further bears the signature ofthe CountyAuditor, certifying thatthe plat had been filed, and the CountyTreasurer, certifying that propertytaxes had been paid.
7Crystal Ridge HomeownersAss'n eta/. v. CityofBothell, No. 89533-3 interceptor pipe. We disagree and hold that the County-and therefore the Cityassumed responsibility for maintaining the interceptor pipe as part of Tract 999's drainage easement. I. Plat Interpretation A "plat" is "[a] map describing a piece of land and its features, such as boundaries, lots, roads, and easements." BLACK's LAW DICTIONARY 1337 (1Oth ed. 2014). In construing easements in a plat, the dedicator's intent controls. RoederCo.
v. Burlington 

### N., Inc. 105Wn.2d 269, 273, 714 P.2d 1170 (1986). We determine intent from the marks and lines on the plat itself. 

### /d. If the plat is ambiguous as to the dedicator's intent, courts may consider surrounding circumstances, id., including extrinsic evidence. Rainier View Court Homeowners Ass'n 

### v. Zenker, 157 Wn. App. 710, 720, 238 P.3d 1217 (2010). Here, no ambiguity surrounds the easement in question. Moreover, even if we were to read the plat as ambiguous and consider extrinsic evidence, the City's attemptsto disclaim responsibilityforthe interceptor pipe would fail. A. Intrinsic Evidence The intrinsic evidence unambiguously demonstrates that the drainage easement contained on the plat includes the interceptor pipe. The plat shows that Tract 999 contains a "25' sanitary sewer (A.W.D.) and drainage easement." Three of the plat's four pages include thefollowing text in bolded letters: "Drainage easements designated on this plat are hereby reserved for and granted to Snohomish County for

8CrystalRidge HomeownersAss'n eta/. v. CityofBothell, No. 89533-3 the right of ingress and egress for the purpose of maintaining and operating stormwater facilities." This comports with the general rule that the burden of maintaining an easement lies with the holder ofthat easement rather than the owner ofthe servient property. E.g., Camus 

### v. Culpepper, noted at 157Wn. App. 1046, 2010 WL 3420379, at *5 ("Generally, the duty to maintain an easement is on the owner of the dominant estate."). 5 Because the County assumed responsibility for maintaining theTract 999 drainage easement, it necessarilyfollows that ifthe interceptorpipe falls within the scope ofthat easement, the City-as successor in interest ofthe Countyhas responsibility for maintaining the interceptor pipe. 6 The parties in this case do notdisputethatthe interceptorpipe is buried inTract 999 orthatthe pipe serves the purpose ofdrainage. Although no pipes appear on the face ofthe plat, the record establishes that the drainage easement contains only two

5 See also 25 AM. JUR. 2o Easements and Licenses§ 72 (2014) ("Whether by agreement or a common-law right or duty, the owner of an easement must keep it in repair. The owner of the servient tenement ordinarily is under no duty to maintain or repair it, in the absence of an agreement imposing such a duty." (footnotes omitted)).
6 The dissent asserts that the drainage easement merely granted the County a right of access. Dissent at 5. Neither party has ever advanced this argument. The City has argued that the dedication does not includethe interceptorpipe at all becausethe pipe is not astormwaterfacility; it has not advanced an alternative argument that the easement does cover the interceptor pipe but that the easement bestowed only a limited right of access with no attendant maintenance duties. The intent ofthe dedicator controls the scope of the easement, and the record contains no support for the argument that the dedicator intended (or even contemplated) that any entity otherthan the County would maintain the pipe. Certainly, nothing in the record suggests that the plat's drafters intended forthe HOAto assume responsibility for maintaining the pipe, as the City argues. Whatwould be the point ofgranting the County a drainage easement in Tract 999for the purpose of maintenancewithout expecting the Countyto maintainthe only drainagefacility inside the tract? None.

9CrystalRidge HomeownersAss'n eta/. v. CityofBothell, No. 89533-3 pipes: the interceptor pipe and the AIderwood Water District sanitary sewer pipe.7 Because the plat expressly dedicated the only other pipe within the easement-the sanitary sewer pipe-to the Alderwood .Water District rather than the County, the interceptor pipe isthe only drainagefacility locatedwithinTract 999 that could possibly have been dedicated to the County. Consequently, the only reasonable construction of the "drainage easement" shown in Tract 999 on the face of the plat is that the easement includes the interceptor pipe. The words and markings on the plat document thus establish that the dedicator intended to convey responsibility for the interceptor pipe to the County. The City seizes on two words in the plat-"stormwaterfacilities"-to argue that the plat drew a distinction between "stormwaterfacilities" and "groundwaterfacilities." According to the City, the County assumed responsibility for maintaining only "stormwaterfacilities" while maintenance of"groundwaterfacilities" remained the duty ofthe HOA. Wewill not read the City's proposed distinction intothe Crystal Ridge plat. Nothing in the plat indicates that the HOA reserved the right to maintain groundwater facilities, and a stormwater/groundwater distinction appears neither in the plat nor in the contemporaneous documents in the appellate record. Wewill not read adistinction into the plat where the record is completely devoid of evidence suggesting that the

7 The City argued before the Court ofAppeals that they had not "heard" ofthe interceptor pipe prior to 2008. This is untrue. The hearing examiner required the construction of the pipe in his 1984 decision, which the Examiner sent not only to multiple county officials and agencies, but also to the City itself. Similarly, we reject the City's attempts to attach significance to the pipe's absence from theface ofthe recorded plat. As noted above, the plat does not depict anypipes at all in Tract 999 or in any of the other drainage and sewage easements that appear on the plat. Regardless, the hearing examiner's decision, combined with the plat's clear dedication of the Tract 999 drainage easementto the County, sufficed to placethe City on notice ofits responsibility for maintaining the pipe. 10CrystalRidge HomeownersAss'n eta/. v. CityofBothell, No. 89533-3 plat's drafters contemplated the distinction. 

### Cf. Hollis v. Garwa/1, Inc., 137Wn.2d 683, 696-97, 974 P.2d 836 (1999) (rejecting a party's interpretation ofa restrictive covenant contained in a plat because adopting the interpretation "would require this court to redraft or add to the language ofthe covenant"). B. Extrinsic Evidence Even assuming for the sake of argument, however, that the plat is ambiguous regarding whether the easement includes "groundwater" facilities, the extrinsic evidence contradicts the City's argument. The Snohomish County Code (SCC) at the time ofthe dedication specifically provided that drainagefacilities "shall" be dedicated to the county where private maintenance would be inadequate. Here, the engineers' unrefuted declarations confirm that private maintenance of such a pipe would likely be inadequate and undesirable. Indeed, Theodore Trepanier, one of the engineers who worked on the platting ofCrystal Ridge, stated in his declaration: Based on my personal knowledge, during the years that Crystal Ridge Division No. 2was built and accepted, the Countywanted to have control of all the retention/detention systems and their accompanying drainage structures
....The easementswere required by the Countyso that it had the unquestionable abilityto perform maintenance and repairs on these types offacilities)81 Given the likely inadequacy ofprivate maintenance, adopting the City's narrow construction of the easement would defeat the subdivision act's express goals of

8 The City strongly objects to this portion ofthe declaration, arguing that the court cannot rely on a declaration by athird party to divine the county's intent as to this particular project in 1987. We disagree for the reasons stated by the trial court during its oral ruling on summary judgment: "[Trepanier] can't testify as to the internal intent of the county, but he can certainly testify as to whatwasthe observable policy and actions ofthe county. No one's come in and said no, we never did that, et cetera, and it stands unrebutted."

11Crystal Ridge HomeownersAss'n etat. v. CityofBothell, No. 89533-3 "facilitat[ing] adequate provision forwater [and] sewerage" and "promot[ing]the public health, safety and general welfare." RCW 58.17.010. Wetherefore declineto give the scope ofthe easementthe unduly narrow construction proposed by the City. 9 The City's disclaimer ofthe interceptor pipe as a groundwaterfacility also fails for practical reasons. The record shows that the interceptor pipe was not designed to drain solely groundwater or stormwater, nor did it exist in a vacuum that permitted it to collect only "groundwater" without "stormwater." Dr. Denby, the supervising geotechnical engineer who surveyed the property in 1984, testified that the purpose of the pipe was to drain both groundwater and stormwater runoff from west of the development. The hearing examiner's decision recognized thatthe "mostcritical issue involved in the instant proposal is subsurfaceand surface drainage." Decision of Hr'g Exam'r at 7 (emphasis added). Geotechnical reports adopted by the hearing examiner likewise recognize that the drainage issues stemmed not only from groundwater, but also from infiltrating

9 Moreover, the 

### sec itself contemplated a broad construction of "storm and surface water": "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 acquiredfor purpose ofcontrolling, or protecting life or propertyfrom, any storm, waste, flood orsurplus waters wherever locatedwithin 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. Former SCC 25.02.080 (1983) (emphasis added). The emphasized text above illustrates the breadth of the meaning of "stormwater" in the SCC. A "surplus" is "the amount that remains when use or need is satisfied." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2301 (2002). Ifthis provision were meant to apply only to "surface water" as opposed to "groundwater," then it would not have to include the additional references to "storm," "surplus," and other waters "wherever located." Under the SCC, then, a pipe that controls excess water qualifies as a stormwaterfacility whereverthatwater is located, including underground.
12Crystal Ridge HomeownersAss'n eta/. v. CityofBothell, No. 89533-3 rainwater and leaking municipal storm drains from upslope properties. In making recommendations to the developer, the supervising geotechnical engineer referred to an "efficient comprehensive drainage system" to deal with wet site conditions from all sources. Thus, regardless ofwhether one can conceptually distinguish "stormwater" from "groundwater," the fact remains that the disputed interceptor pipe would be collecting both, and the City fails to cite any evidence in the record showing that any of the individuals involved in the initial development of Crystal Ridge contemplated such adistinction. C. Drainage Disclosure The "Drainage Disclosure" dated November 9, 1987 does not alterthis result. That document requires subsequent owners ofthe individuallots in Crystal Ridge to be notified that "[s]ubstantial 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." The City urges
us to read this disclosure as warning subsequent Crystal Ridge homeowners that they were responsible, as members of the HOA, for maintaining the interceptor pipe in Tract 999. This is incorrect. The disclosure notifies individual future homeowners that they may have to take extraordinary drainage precautions on their own lots to supplementexisting drainage facilities, not thattheywere responsible for maintaining drainagefacilities that had already been placed. As with the original plat, adopting the City's interpretation of the disclosure document would both run counter to the

13Crystal Ridge HomeownersAss'n eta/. v. CityofBothell, No. 89533-3 document's plain meaning and read Tract 999's drainage easement out ofthe Crystal Ridge plat. 10 D. The Snohomish County Code The City also notes that the relevant portions of the 

## sec list several prerequisites that must be met before the County accepts responsibility for maintaining adrainage system and thatthose requirementswere never met at Crystal Ridge. But the 

## sec also mandates additional steps if the County is 

## not going to maintain a drainage system, 11 and the record contains no evidence suggesting that those requirements were met either. Thus, the fact that additional requirements appear in the 

## sec is not helpful in determining the issue before us. E. Conclusion on Plat Interpretation The County accepted, via the signatures of several of its public officials including the director of public works, that "drainage easements designated on this plat are hereby reserved for and granted to Snohomish Countyforthe right ofingress and egress for the purpose of maintaining and operating stormwater facilities." Regardless of whether we limit our inquiry to the contents of the plat or examine

10The City's interpretation ofthe drainage disclosure also runs counterto RCW58.17.165, which provides that dedications "shown on the face of the plat shall be considered to all intents and purposes as aquitclaim deed

...."ThedeveloperofCrystal Ridge thus quitclaimed maintenance rights to the easement contained within Tract 999, and the drainage disclosure that does not purport to alterthe parties' rights and responsibilities cannot suffice to undo that quitclaim.
11 Specifically, the former 

### sec required the developer applicant to make arrangements with the property owners for assumption of maintenance within two years and the county director of the department of public works must have approved those arrangements. Former 

### sec 24.28.080 (1983).

14Crystal Ridge HomeownersAss'n eta!. v. CityofBothell, No. 89533-3 extrinsic evidence, the only reasonable interpretation ofthe plat is that the drainage easement in Tract 999 includes the interceptor pipe. 12
II. The Washington Constitution The City argues that were it required to maintain the interceptor pipe, the resulting expenditure would constitute the gifting of public money to private parties in violation ofarticleVIII, section 7 oftheWashington Constitution. Wewill not reach the merits ofthis argument because the City failed to raise it priorto filing its petition for review. The City did not mention article VIII, section 7 in its cross motion for summary judgment before the superior court. Indeed, aside from a single passing remark in its opening Court ofAppeals brief, the City never once raised this issue before eitherthe superior court orthe Court ofAppeals. This court generally does not consider issues,

12 The Washington State Association of Municipal Attorneys (WSAMA) filed an amicus brief warning of a parade of horribles that would follow if we affirm the Court of Appeals decision. According to WSAMA, if the City "becomes responsible for a groundwater facility over which neither it nor Snohomish County had direct knowledge and did not expressly accept-just because it exists-that same thing could happen to any county, city or town." Amicus Br. of WSAMA in Supp. of City of Bothell at 1-2. These concerns are misplaced. The City is not responsible for maintaining the interceptor pipe "just because it exists;" they are responsible for maintaining it because that is the only reasonable interpretation ofthe disputed plat. The plat clearly shows a drainage easement within Tract 999, and the record contains no indication that Tract 999 contains anydrainage facility of anytype asidefrom the interceptor pipe and theA.W.D. sanitary sewer pipe. Ifwe wereto exclude the interceptorpipefrom the scope ofthe easement, we would effectively be reading the "drainage easement" out ofthe plat. Moreover, the City-as successor in interest to the County-did have knowledge of the interceptor pipe through the record before the hearing examiner. Finally, our holding is narrower than WSAMA fears. We do not hold that plats cannot distinguish between stormwater and groundwater facilities; we simply hold that this particular plat did not make that distinction and that reading such a distinction into this plat would be inappropriate under the particular circumstances ofthis case.



### 15Crystal Ridge HomeownersAss'n eta/. v. CityofBothell, No. 89533-3

even constitutional ones, raised first in a petition for review, State

## v. Benn, 161 Wn.2d 256, 262 n.1, 165 P.3d 1232 (2007), and we decline to do so now. Before it sought review with this court, the City's only reference to article VIII, section 7 appeared in the section of its Court ofAppeals brief discussing whether a common-law dedication ofthe pipe occurred. The City argued that because it never accepted a common-law dedication ofthe pipe, the City neverassumed responsibility forthe pipe's maintenance. The City referenced articleVIII, section 7 notas part ofan independent argument, but only as support for its assertion that because the interceptor pipe benefited private parties, the City could never have accepted a dedication ofthe pipe under common law. 13 In this context, the City's offhand remark cannot reasonably be construed as raising the issue before the Court ofAppealsand indeed, the Court ofAppeals did not address article VIII, section 7 in its opinion. '"[N]aked castings into the constitutional sea are not sufficient to command judicial consideration and discussion."' In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986) (quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970)). Because the City failed to raise this issue below, we decline to address it now. 14

13 As noted above, the City's common-law-dedication argument was itself a non sequitur; respondents never raised common-law dedication because the drainage easement satisfied the statutory dedication requirements. 14The court grants in part and denies in part the City's "Motion to Strike Portions of Respondents' Supplemental Brief and New Document Attached as an Exhibit to Respondents' Supplemental Brief." The motion is granted with respectto striking ExhibitA and references to it in respondents' supplemental brief, as respondents provided nojustification for failing to submitthis documentto the trial court so that it would be part of the record on appeal. The motion is denied in all other respects. The City challenges several statements that it characterizes as "factual assertions that are not supported by any citation to the record." But viewed in context, each ofthe challenged statements is eithera proper inference or argument based on factual assertions that respondents did, in fact, support with citations to the record.
16CrystalRidge HomeownersAss'n etat. v. CityofBothell, No. 89533-3 CONCLUSION Forthe reasons stated above, we agree with the superior court and the Court of Appeals that the City is responsible for maintaining the interceptor pipe. We therefore affirm.

We construe the City's second motion to strike, challenging portions of respondents' answer to the City's first motion to strike, as a reply in support of its first motion to strike. The challenged portions ofthe respondents' answer played no role in our determination ofthe merits ofthis case, and we need not address it. To the extent the second motion to strike is considered pending, it is denied. 17CrystalRidge HomeownersAss'n eta/. v. CityofBothell, No. 89533-3

WE CONCUR.

/

# ~~t-.g·

18CrystalRidgeHomeownersAss'n etal. v. City of Bothell, 

### No. 89533-3 (GordonMcCloud, J., 

### Dissenting)



### No. 89533-3



### GORDON McCLOUD, J. (

### dissenting)-The developer here dedicated a 25- 

### foot easement to Snohomish County (County) "for the right ofingress and egress forthepurpose ofmaintaining and operating stormwater facilities." Clerk'sPapers (CP) at 46-48 

### (emphasis omitted). The city of Bothell (City) accepted this dedication, along with its obligations. CP at 45. 

### The question that we must resolve here is the scope ofthis dedication "ofingress and egress": specifically, whether or not this dedication included an obligation to maintain the interceptor pipe that the hearing examiner in 1984 

### required the developer to install 11 

### feet underground as aconditionofdevelopment. The majority concludes as amatter oflawthatthe scope ofthis dedicationto the City includes the obligation to maintain the interceptor pipe. I agree with the majority that the plat language unambiguously gives the City access to whatever the easement contains. But I disagree with the majority's conclusion that the plat language and undisputed evidence unambiguously demonstrate that the developer
1CrystalRidgeHomeownersAss'n etal. v. City of Bothell, 

### No. 89533-3 

### (GordonMcCloud, J., 

### Dissenting)

intendedto impose a duty onthe City to maintain the interceptorpipe at issue and thatthat is whatthe City accepted. Instead, neitherthe platnor any otherevidence shows thatthe City at any time affirmatively assumed a duty to maintainthis pipe, and I find no basis to infer such a duty. I would therefore reverse. I respectfully dissent. l. STANDARDOFREVIEW 

### We review a summaryjudgment order de novo. LaCoursiere v. Camwest Dev., Inc., 181 Wn.2d 734, 740, 339 P.3d 963 (2014). Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party and drawing all reasonable inferences in thatparty's favor, no genuine issue ofmaterial fact exists and the moving party is entitled tojudgment as a matter of law. Id. II. RULES GOVERNING CONTRACTAND PLATINTERPRETATION 

### A statutory dedication operates by way of grant. Kiely v. Graves, 173 Wn.2d 926, 932, 271 P.3d 226 (2012). A dedication ofan easement occurs when the grant specifies the dedication for a particular purpose. Id. In Washington, RCW 58.08.015 governs a statutorydedication. Thisprovision states, Every donation or grant to the public, or to any individual or individuals, religious society or societies, or to any corporation or body politic, marked or noted as such on the plat of the town, or wherein such donation or grant may have been made, shall be 2

### CrystalRidgeHomeownersAss'n etal. v. City of Bothell,

### No. 89533-3 (GordonMcCloud,

### J., Dissenting)


### considered, to all intents and purposes, as a quitclaim deedto the said donee or donees, grantee or grantees, for his, her or theiruse, for the purposes intended by the donor or donors, grantor or grantors, as aforesaid. RCW 58.08.015. Matters ofplat interpretation depend on the donor's intent. See Roeder Co.



### v. Burlington N, Inc., 

### 105 Wn.2d 269, 273, 714 P.2d 1170 (1986). The court generally determines donor's intent from the face ofthe dedication; Washington courts do not consider extrinsic evidence to determine donorintent ifaplat'splain language is unambiguous. Sunnyside Valley Irrig. Dist. 

### v. Dickie, 

### 149 Wn.2d 873, 880, 73 P.3d 369 (2003) (citingZobrist

### v. Culp, 

### 95 Wn.2d 556, 560, 627 P.2d 1308 (1981)). Iftheplat'slanguage is ambiguous, however, thenthe courtmayconsider extrinsic evidence to ascertain the parties' intent at the time that they executed the plat: "Ifambiguity exists, extrinsic evidence is allowed to show the intentions of the original parties, the circumstances of the property when the easement was conveyed, and the practical interpretation given the parties' prior conduct or admissions." Id. 

### (citing City of Seattle 

### v. Nazarenus, 

### 60 Wn.2d 657, 665, 374 P.2d 1014 (1962)). III. THE PLAT'S PLAIN LANGUAGE IMPOSES 

### No DUTY 

### To MAINTAIN THE INTERCEPTORPIPE

3

### CrystalRidgeHomeownersAss'neta!. 

### v. City of Bothell,

### No. 89533-3 (GordonMcCloud, J., 

### Dissenting)

The homeowners sought a declaratoryjudgmentthat based on the recorded plat's plain language, the City, "'upon annexing the area ofthe Crystal Ridge development from Snohomish County, assumed responsibility for inspecting and maintaining the drainage system, including the interceptor trench between the Brentwood Heights and Crystal Ridge developments."' CP at 637, 837. They prevailedinthe trial court and on appeal. CrystalRidgeHomeownersAss'n v. City of Bothell, 

### noted at 175 Wn. App. 1047 (2013). The majority affirms, reasoning that "no ambiguity surrounds the easement in question," majority at 8, and holding t}:lat "the only reasonable interpretation of the Crystal Ridge plat is that the County-and therefore the City-assumed responsibility for maintaining the drainage pipe." Majority at 3. The heart ofthe majority's analysis is "[b]ecause the County assumed responsibility for maintaining the Tract 999 drainage easement, it necessarily follows that ifthe interceptor pipe falls within the scope ofthat easement, the City-as successor in interest ofthe County-has responsibility for maintaining the interceptor pipe." Majority at 9. I agree withthe majority's premises butnotwith its conclusion. To be sure, there is no dispute thatthe interceptorpipe is located within the 25-foot easement. CP at 324. And, surely, the plat states, "'DRAINAGE EASEMENTS
4CrystalRidgeHomeownersAss'n etal. v. City of Bothell,

### No. 89533-3 

### (GordonMcCloud, J., 

### Dissenting)

DESIGNATED ON TI-IIS PLAT ARE HEREBY RESERVED FOR AND GRANTED TO SNOHOMISH COUNTY FORTHE RIGHT OF INGRESS AND EGRESS FOR THE PURPOSE OF MAINTAINING AND OPERATING STORMWATERFACILITIES.'" CP at 640. But all that this language unambiguously shows is that when the City accepted the dedication, it received "the right ofingress and egress," meaning the right to access stormwater facilities located within all the easements on the plat. "Ingress and egress" is followed by the language "for the purpose ofmaintaining and operating stormwater facilities." That latter phrase is descriptive, not prescriptive; that is, it describes the scope of the City's right but imposes no additional duty. "'[W]henthe intention ofthe ownerto dedicate is clear, manifest, and unequivocal,
... it

### becomes effective for that purpose."' City of Spokane v. Catholic Bishop ofSpokane, 33 Wn.2d 496, 503, 206 P.2d 277 (1949) (quoting Corningv. Aldo, 185 Wash. 570, 576, 55 P.2d 1093 (1936)). Although the holder ofthe easement-the City-has a duty to maintain the easement, its duty applies only tomaintaining the easement for the purpose for which it was granted. Thus, because the easement addresses only access, the City's duty, based on the plat's plain language, extends only to maintaining aright ofaccess. The plat on its own does notunambiguously place a duty to maintain that interceptorpipe on the City.
5

### CrystalRidgeHomeownersAss'netal. v. City of Bothell, No. 89533-3 

### (GordonMcCloud, J., 

### Dissenting)
Instead, it is silent about the duty to maintain that pipe. Therefore, summary judgmentinfavor ofthehomeownersbasedontheplatlanguagewas improper. Themajority seems to assumethat access wouldbe irrelevantifthe City did not also have a duty to maintain. Majority at 9. That might be true. But it does notnecessarily follow thatwe cantherefore inferfrom theplatitself, as opposedto
some other source, the duty to maintain. Instead, as discussed in Part IV below, there were specific steps that the lawprescribes to impose such a duty-stepsthat

nopartytook. IV. THE UNDISPUTED EVIDENCE SUPPORTS SUMMARY JUDGMENT IN FAVOROF THE CITY,NOTTHEHOMEOWNERS 

### Because the plat language does not unambiguously answer the question of whetherthe donorintendedto convey, andthe County intendedto accept, the duty to maintain the interceptor pipe, we may consider extrinsic evidence about "the intentions of the original parties, the circumstances of the property when the easement was conveyed, and the practical interpretation given the parties' prior conduct or admissions." 

### Sunnyside Valley, 149 Wn.2d at 880 (citing 

### Nazarenus, 60 Wn.2d at665). The Citypointsto the following evidence extrinsic to the platto tryto show that the homeowners, not the City, are responsible for maintaining the interceptor p1pe: 6

### CrystalRidgeHomeownersAss'netal. v. City of Bothell, No. 89533-3 

### (GordonMcCloud, J., 

### Dissenting)
[T]he trench is not defined as a public system in the City's (or the County's) codes, rules and regulations; the City has never in the past maintained this private structure/system (nor did the County whenthe Property was under Snohomish County's jurisdiction); nor would it benefit the public to do so as the interceptor trench only aids private property. CP at 315. We address eachinturn. To support its first contention, the City points to the plat's language and argues that "the interceptor trench does not meet the definition of 'stormwater facility' under any applicable code or regulation." CP at 324. But this argument depends on reading the plat's language to impose on the City an obligation to maintain "stormwater facilities." As discussed above, the plat's language imposes
no duty to maintain. Thus, this argument is not sufficient to support summary judgmentinthe City'sfavor. To supportthe City's second argument, thatitnevermaintainedor inspected the pipe, the City cites the "Drainage Disclosure" and also the requirements in the former SnohomishCounty Code (SCC) for assumingresponsibilityfor maintaining the interceptorpipe. 1 

### CP at 326-31, 333.

1 

### The City also cites the County's "1979 Drainage Procedures Manual," whichcitesthe SCC. CP at 329-30.
7

### CrystalRidgeHomeownersAss'netal. v. City of Bothell, No. 89533-3 

### (GordonMcCloud, J., 

### Dissenting)

I agree withthe majoritythatthe "DrainageDisclosure" imposes no duty on the homeowners to maintain the interceptor pipe. Majority at 13. But I disagree withthe majority's applicationofthe

# sec. Both state law and the SCC contain requirements for a dedication. See 

### RCW 58.17.020(3); former SCC 24.28.040 (1983). We apply the ordinances and law in effect at the time that a party files an application for a preliminary plat.2 

### HJSDev., Inc. v. Pierce County, 

### 148 Wn.2d 451, 483, 61 P.3d 1141 (2003) (citing Friends ofthe Law v. King County, 

### 123 Wn.2d 518, 522, 869 P.2d 1056 (1994)). As this court stated inHJSDevelopment, 

### local governments are "solelyresponsible for preliminary plat and final plat approvals, and may adopt regulations or condition such approvals to mitigate problems caused by a development." Id. 

### at 481 & 

### n.127, 61 P.3d 1141 (2003). Local governments may supplement state platting laws forthepublichealth, safety, andwelfare. 3 

### Id. 

### at481 n.128. As the majority explains, the parties do not dispute thatthe County accepted
a statutory dedication ofthe easement. Majority at 7. I agree with the majority

2 

### Accordingly, the City's argument in its cross motion for summary judgmentthat "underthe City's currentcodes,the interceptortrench is notthe kind ofpipethatthe Citywouldtake overformaintenanceresponsibility" is nothelpful. CP at 338.
3 

### The parties do not challenge the former SCC's requirements for plat dedication. 8

### CrystalRidgeHomeownersAss'n eta!. v. City of Bothell,

### No. 89533-3 

### (GordonMcCloud, J., 

### Dissenting)

that no evidence shows that the County, at the time ofdedication, fulfilled either the requirements to accept 

### responsibility to maintain the interceptor pipe or the requirements to decline 

### responsibility to maintain .the pipe. Majority at 14; see 

### former 

# sec 24.28.040, .080 (1983). And, as discussed above, the recorded plat does not show that the City accepted the pipe as its property as part of the dedication-it accepted only a right ofaccess. None ofthe evidence extrinsic to the plat that the City cites demonstrates conclusively that it intended, or did not intend,to acceptresponsibilityfor maintainingthepipe as partofthe dedication. The majority cites former SCC 24.28.040 and Trepainer's declaration to conclude that because private maintenance ofthe pipe "would likelybe inadequate and undesirable," the drainage facilities were dedicatedto the County. Majority at 10-11. Once again, I agree with the majority's premise-here, that the City submitted evidence showing that private maintenance would be a bad policy-but not with its conclusion that we can therefore infer a dedication to the City from a silentplat. The majority's analysis ofthis issue turns on the notion that former SCC 24.28.040 requires County maintenance where private maintenance would likely be inadequate. Former SCC 24.28.040 does saythat, butonly as an introductionto

9

### CrystalRidgeHomeownersAss'netal. v. City of Bothell, No. 89533-3 

### (GordonMcCloud, J., 

### Dissenting)

the mandatory prerequisites to the County undertaking that responsibility. Former 

# sec 24.28.040, in its entirety, states, Drainage Facilities shall be dedicated to the County where the Director determines that such facilities either are appropriately a part of a county maintained regional system or are unlikely to be adequatelymaintainedprivately. The County shall assume the operation and maintenance responsibility of retention/detention or other drainage conveyance systems and drainage treatment/abatement facilities proposed for county maintenance in an approved detailed drainage plan after the expirationofthetwo (2)yearmaintenanceperiodif: (1) All ofthe requirements ofChapter 24.20 have been fully compliedwith; and (2) The facilities have been inspected and approved by the Director after two (2) years of operation in accordance with the Procedures Manual; and (3) All necessary easements entitling the County to properly operate and maintain the facility have been conveyed to the County andrecordedwiththe SnohomishCountyAuditor; and (4) The applicant has supplied to the County an accounting ofmaintenance expenses for the permanent drainage facilities up to the endofthetwoyearperiod. (5) The applicant pays the County an Operation and Maintenance assessment based on a ten (10) year prorated cost to operate and maintain the permanent drainage facilities constructed by the applicant. CP at 687. We apply the same rules ofstatutory construction "to municipal ordinances [thatwe apply] to state statutes." 

### World Wide Video, Inc. v. City ofTukwila, 117 Wn.2d 382, 392, 816 P.2d 18 (1991) (quoting 

### City ofSpokane v. Fischer, 110 Wn.2d 541, 542, 754 P.2d 1241 (1988)). To interpret a statutory provision's plain 10

### CrystalRidgeHomeownersAss'n etal. v. City of Bothell, 

### No. 89533-3 

### (GordonMcCloud, J., 

### Dissenting)
meaning, we look to the provision's text, in addition to "the context ofthe statute in which that provision is found, related provisions, and the statutory scheme as a whole." Christensen v. Ellsworth, 

### 162 Wn.2d 365, 373, 173 P.3d 228 (2007) (quotingDep'tof Ecologyv. Campbell & 

### Gwinn, LLC, 

### 146 Wn.2d 1, 9-12,43 P.3d 4 (2002)). The majority focuses onthe first paragraph offormer SCC 24.28.040 to the exclusion ofthe rest ofthe provision. That first paragraph on its own, however, lacks operative force. A completereading ofSCC 24.28.040(1) through (5) shows that the prerequisites to accepting a dedication are mandatory-the County
assumes thatresponsibility only "if'thoseprerequisites are met. Andthey all must be met-all but number five are joined with the conjunction "and." As stated above, no evidence shows thatthe City met five, or even four, ofthe prerequisites to assumingthe responsibilityto operate andmaintainthe drainagepipe. Whenwe read former 

# sec 24.28.040 in its entirety, the fact that the homeowners could not adequately maintain the interceptor pipe, on its own, does not support summary judgmentin favor ofthehomeowners. For the City's third argument, that the pipe aids only private property owners, the City cites a 1977 City ordinance stating, "'The City will not assume responsibility for maintenance of retention/detention facilities on private
11

### CrystalRidgeHomeownersAss'netal. v. City of Bothell, No. 89533-3 (GordonMcCloud, J., Dissenting)


### property."' CP at 337, 567 (emphasis omitted). But, as the City acknowledges,the pipe is not a retention/detention facility and this ordinance does not address drainage facilities. CP at 337. Therefore, it provides no support for summary judgmentinthe City's favor. In

### Kiely, we explained that absent ofintent an dedicate aparticularproperty interest, we wouldnotimplymeaning from the face oftheplat: Because solidlines separatethe alley from theproperties, itis possible the Powers intended to convey to the public the alley as an entirely distinct property interest.
...Yet, the plat neither assigns meaning to the solid lines, nor includes anything but solid lines onthe entire plat. Moreover, the Graves fail to direct the court as to how the plat lines should be interpreted. Absent such argument, we decline to imply meaningintotheplat'suse oflines. 173 Wn.2d at934-35. Here, the face ofthe plat shows no intent to dedicate a property interest in the contents ofthe drainage easement to the County or the City for maintenance purposes. Andnone ofthe evidence presented clearly leads us to interpretthe plat to impose a duty on the City to maintain the interceptor pipe. The extrinsic evidence presented relies primarily on the plat's reference to "storm water facilities" as opposed to "groundwater facilities." This evidence is unconvincing because the plat's plain language indicates that the easement's scope does not include the duty to maintain the pipe. And the County met neither ofthe SCC's
12

### CrystalRidgeHomeownersAss'netal. v. City of Bothell, No. 89533-3 

### (GordonMcCloud, J., 

### Dissenting)
requirements to accept or not to accept responsibility. Absent evidence demonstrating that the dedication included the duty to maintain the easement's contents, this court should decline to imply such meaning. Thus, summary judgment in favor ofthe homeowners was improper; instead, summaryjudgment inthe City'sfavor was appropriate. V. CONCLUSION 

### As matter oflaw, absent an express dedication to maintain the contents of the drainage easement-or any other action by the municipality to accept the duty to maintain the contents-we cannot impose a duty on the City to operate and maintain what is insidethe drainage easement. Becausethetrial court shouldhave denied the homeowners' motion for summary judgment and granted the City's motion for summaryjudgment, I would reverse the Court ofAppeals. I therefore respectfully dissent.

13

### CrystalRidgeHomeownersAss 'netal. v. City of Bothell, No. 89533-3 (GordonMcCloud, J., 

### Dissenting)



### 14