### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ALPINEVILLAGE,INC,a Washington ) corporation, ) No.74869-6-I ) Appellant, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) CITY OF OAK HARBOR,a municipal ) corporation, LOISA.LEWIS,trustee for ) Fund 'A'ofthe William E.Lewis and Lois ) A.Lewis Living Trust;JOHN C.ROYCE, ) JR.; MICHELE B. BISHAI;ALICE S. ) SMITH;DAVID A.JASMAN;SUE M. ) KARAHALOIS;ROBERTT.SEVERNS; ) RHODA LEE HAINES-PITT,aka RHODA ) KIRCHOFF;WELLS FARGO BANK,N.A.; ) PHYLLIS E.ROLLAG;MORTGAGE ) ELECTRONIC REGISTRATION ) SYSTEMS,INC.;and PIER POINT ) CONDOMINIUMSASSOCIATION, ) ) Respondents. ) FILED:May 22,2017 ) 

### APPELWICK, J. — The question presented is whether a declaration of easement was intended to benefit all the lots in a proposed binding site plan, or only those actually developed pursuant to that plan. The trial court granted summary judgment, finding no benefit to lots not developed pursuant to the binding site plan. Weaffirm.No.74869-6-1/2

FACTS Donna Mott owned eight contiguous lots in Oak Harbor. In November 1991,she executed a binding site plan (BSP)for an eight-building condominium developmenton that land. On May 18, 1992,Mottexecuted a declaration of Pier Point condominiums containing covenants, conditions, restrictions, and reservations (CC&Rs). Both the CC&Rs'plan of development and the BSP created a construction schedule with a maximum of eight phases, or one phase for each lot.1 As amended,the BSP showed thefollowing plan:

(Numbering added to reflectthe building phases.) 1 The schedule stated in relevant part: Phase 1-8 as designated herein are scheduled for completion in accordance with thefollowing; Phase 1 completed byApril 15, 1992 Phase 2-4 completed by October 15,1992 Phase 5completed by January 15, 1993 Phase 6completed by January 15, 1994 Phase 7completed by January 15, 1995 Phase 8completed by January 15,1996

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On May 20, 1992,Mott recorded a declaration ofeasementfor the project. The relevant portion ofthe easement reads asfollows: WHEREAS, DONNA L. MOTT, as her separate estate, hereafter referred to as "DECLARANT", is the owner of that parcel of real property described asfollows: Situate[d]in the County of Island,State ofWashington: Lots 1, 2, 3, 4, 18, 19, 20, 21, Block 7, OAK GROVE ADDITION,according to the plat thereof recorded in Volume 2,ofPlats,page 29,records of Island County,Washington; TOGETHER WITH that portion of vacated east Pioneer Way, as would attach by due process of law, said portion having been vacated by Ordinance 355, recorded July 23, 1974, under Auditor's File No. 275106, records of Island County,Washington. Said Property is also described asfollows: Lot 1 through Lot 8, inclusive, of City of Oak Harbor Binding Site Plan No. SPR-9-91, as approved November 19, 1991, and recorded December 3, 1991, under Auditor's File No, 91018478, records of Island County, Washington, and as amended by Amendment thereof, approved January 6, 1992, and recorded January 9, 1992, under Auditor's File No.92000451. WHEREAS, DECLARANT desires to establish the necessary easementsfor ingress, egress,and utilities to serve and benefitthe Pier Point Condominiums affecting Lot 1 or building 1, as delineated in said Building Site Plan and to serve and benefit each successive phase of condominium development affecting Lot or Building 2through 8as shown in said Building Site Plan. NOW,THEREFORE,for and in consideration of mutual benefits of a nonmonetary nature, the receipt and sufficiency of what are hereby acknowledged, the DECLARANT does hereby declare for

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the benefit of the owners, present and future, of the above

described property, and any legally subdivided portions thereof, an easementforthefollowing: (1)ingress,egress,and the installation, maintenance,and/or repair of utilities over, under, and across that portion of Lot 1 and Lot 6 of the Building Site Plan, which is delineated on the Condominium Plan of Pier Point Condominiums, Division No. 1, recorded as Auditor's No. 92009143, records of Island County, Washington, and labeled as "Accessand Utility Easement." (2) the installation, maintenance and/or repair of utilities, including, but not limited to, power utilities, sanitary sewer.. .and for the ingress and egress reasonably necessary for such purposes, over, under and across those portions of DECLARANT'S above-described property as built or as marked and delineated in the referenced Building Site Plan as utilities; (3) landscaping purposes over the portion of Declarant's property delineated in said Binding Site Plan, including, the ingress and egress reasonably necessary for such purposes;and (4) the ingress and egress reasonably necessary to serve each phase or building of Pier Point Condominiums as constructed in accordance with the referenced Building Site Plan,and for such sidewalks as may be required by the City of Oak Harbor, Washington,with respect to the subsequent phases ofPier PointCondominium. The amended BSP had required the final phases of Pier Point construction to be complete by January 15, 1996. And,the CC&Rs stated that Inio additional phases may be added more than seven (7) years after the recording ofthis declaration."

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Both parties concede that the seven year window elapsed, after only four (one through four) of the eight phases were complete. The following is a rendering ofthe completed phases and remaining undeveloped property:

(Numbering added to reflectthe building phases.) This created a unique factual backdrop for a lengthy series of legal disputes overthe use ofthe remaining property. In 2001, well after the development schedule had expired, Mott sold the undeveloped remainder of the property to Alpine. In 2009 the trial court ruled in favor of Alpine and against the Pier Point Condominiums Association and the individual owners, regarding whether a portion of the property was common
area.2 Then, in a second lawsuit, the trial court recognized that the easements continue to burden the undeveloped property. This decision did not address

2 In this case the respondents are the City of Oak Harbor, the Pier Point CondominiumsAssociation,and the individual owners(collectively "Pier Point").
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whether Alpine's lots also received the easement benefit. And, it was not appealed. Alpine then submitted a preliminary site plan to the City of Oak Harbor (City). The City required that Alpine show that it has rights to use the ingress, egress, sewer, and utility easements in question, or present development plans that did not rely on the easements at issue. The City stated that a declaratory judgment regarding the availability ofthe easements would suffice. On June 20, 2014, Alpine filed a complaint for a declaratory judgment regarding the availability of the easements. The parties brought cross motions for summary judgment and stipulated that there were no questions of material fact. The trial court ruled in favor of Pier Point. The trial court's decision rested on two independentgrounds. First, it held that the easement benefit never became effective with respect to Alpine's property because the deed from Mott to Alpine did not reference the declaration of easement. Second, it held that the plain language of the declaration of easement limited its applicability to only the Pier Point development. Alpine appeals. DISCUSSION Alpine makes two arguments on appeal. First, it argues thatthe trial court erred in determining that the easements originally created for the Pier Point development were not available for Alpine Village's use in its new development.

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Second, Alpine alternatively argues that the easement should be modified pursuantto the changed conditionsdoctrine. An appellate court reviews summary judgment in a declaratory judgment action de novo and performs the same inquiry asthe trial court. McNabb v. Dep't of Corr., 163 Wn.2d 393,397, 180 P.3d 1257 (2008). We consider all facts and reasonable inferences in the light most favorable to the nonmoving party, while all questions of law are reviewed de novo. Coppernoll v. Reed, 155 Wn.2d 290, 296, 119 P.3d 318 (2005). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Stalter v.State, 151 Wn.2d 148,154,86 P.3d 1159(2004). Despite the unique facts, the legal question here is simply whether the declaration of easement was intended to benefit the property now owned by Alpine. Alpine assigns error to two premises of the trial court's decision on the applicability of the easement. First, Alpine disputes the trial court's conclusion thatthe grantor's intent wasto limit the easement's availability to only the original Pier Point BSP. Second, Alpine disputes the trial court's conclusion that the easements never took effect with respect to the four lots that Alpine seeks to develop. Alpine must prevail on both of these arguments, because the easements are unavailable to Alpine if either the easement benefit was specifically limited to the Pier Point BSP, or the benefit never took effect on Alpine'sfour lots.

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An easement is an interest in land. Bakke v. Columbia Valley Lumber Co.,49 Wn.2d 165, 170, 298 P.2d 849 (1956). In construing the document that grants an easement, the duty of the court is to ascertain and give effect to the intention of the parties, which is determined by a proper construction of the language of the instrument. Schwab v. City of Seattle, 64 Wn.App. 742, 751, 826 P.2d 1089 (1992). We interpret easements in the same manner that we interpret contracts. See Butler v. Craft Eng Const. Co., 67 Wn.App. 684,698, 843 P.2d 1071 (1992). Words in a contract are given their ordinary, usual, and popular meanings unless the entirety of the contract demonstrates a contrary intent. Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 504, 115 P.3d 262(2005). This courtapplies the "context rule"in determining the meaning of contract language. See Berg v. Hudesman, 115Wn.2d 657,667-68,801 P.2d 222 (1990). Under this rule, courts may consider the context surrounding a contract's execution. Hearst, 154Wn.2d at 502. The easement references both the description of the property as found in the county land records,and the description ofthe property as set out in the Pier Point BSP. Alpine argues that including both the Pier Point description and the county records description shows that the easement was intended to benefit development on that land,even if it was notdeveloped pursuantto the Pier Point BSP. But,reference to the county land records was necessary because thatwas the only legal reference to the land atthe time the easementwas executed. And, it was necessary to also include the Pier Point BSP description, because that

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reflected the potential change in the legal description ofthe property if and when it was developed under the BSP. Inclusion of the county land description does notdemonstrate an intentto benefit separatefrom the BSP. Alpine also points to broad language in the easement3 as evidence that the easement is not limited to Pier Point owners: NOW,THEREFORE,for and in consideration of mutual benefits of a nonmonetary nature, the receipt and sufficiency of what are hereby acknowledged, the DECLARANT does hereby declare for the benefit of the owners, present and future, of the above

described property and any legally subdivided portions thereof, an easement .. .. Alpine contends that, because it is an "owner"ofthe "above described property," it is entitled to the benefit. But, the previous paragraph of the declaration of easement plainly stated that it was intended to benefitthe developmentsetout in the Pier Point BSP: WHEREAS, DECLARANT desires to establish the necessary easementsfor ingress,egress,and utilities to serve and benefitthe Pier Point condominiums affecting Lot 1 of Building 1,asdelineated in said Buildinci Site Plan and to serve and benefit each successive phase of condominium development affecting Lot or Building 2 through 8as shown in said Building Site Plan. (Emphasis added.) This language explicitly limits the easement's availability the Pier Point BSP. And, because Alpine's development will not be part of the original Pier Point development, it is beyond the scope of this express intent language.

3 Neither party contends that there is any other legally subdivided portion ofthe land besidesthe Pier Point BSP.
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The final paragraph of the declaration of easement also reinforces this stated intent:The easement is "to serve the owners ofthe specified condominium buildings, their heirs, successors[,] and/or assigns, and, as such, shall be considered as running with the land." (Emphasis added.) Alpine contends that no rational developer would so limit the development potential of her land. But,Alpine did notargue below that this context should be considered when interpreting the easement language. Even if we needed context to resolve this issue, the challenges of ingress/egress and utility easements for the entire parcel had been studied and were resolved in the binding site plan prior to the execution of the declaration of easement. The development plans clearly stated that no further developmentwas permitted after the expiration date. Thus, the risk was clearly evident that one or more of the proposed eight condominium lots might not be developed as condominiums,and would fall outside of the binding site plan at the expiration of the deadline. Despite these facts, the declaration of easement made no explicit provision for the easements to apply to lots excluded from the BSP at its expiration. This is clear context,from the documents upon which Alpine asked the trial court to rely for summary judgment, that Mott did not intend the easement to extend to property other than thatdeveloped ascondominiums underthe BSP.4

4 Mott's treatment of the deeds is consistent with that interpretation. She explicitly referenced the easement right in the condominium deeds. But, as Alpine concedes,she did not reference the easementin the Alpine deed.
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We hold that, as a matter of law, the declaration of easement benefited only property developed pursuant to the Pier Point BSP. Therefore, the trial courtdid noterr in granting summary judgementin favor ofPier Point.5 Alternatively,Alpine arguesfor the first time on appeal thatthe easements should be modified under the changed conditions doctrine. Court modification of
an easement is an equitable proceeding and necessarily a fact-intensive inquiry. Any such modification request should be heard first by a trial court. We decline to address modification in this appeal. Weaffirm.

WE CONCUR: 

# ALT

5 We need not address whether the easement benefit ever took effectwith respectto Alpine's property.
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