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

CRYSTAL RIDGE HOMEOWNERS ASSOCIATION, a Washington a Washington nonprofit corporation; J. ABULTZ, LAURIE AND WILSON AMARAL, CRAIG ARNO, CARON BEAR, JOSEPH N. BECK, DAVID BENNETT, GLORIA BLADES, DUANE AND GWEN BOWMAN, THOMAS CYNDY BOYER, JEFF AND KERI BROWN, DON COLEMAN, DON DACHENHAUSEN, ANH-VIET AND LISA DANG, BRAD AND 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 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, LARRYAND JANICE RENDAHL, CRAIG AND KAREN RENFROW, PAUL AND DIANEROBERTS, MARGARET ROMANO, No. 68618-6-

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UNPUBLISHED OPINION

FILED: July 22. 2013No. 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 thiscase is an interceptorpipe, buried 12 feet 

### belowground as partofadrainage plan for adevelopmentcalled Crystal Ridge in the City ofBothell. The Crystal Ridge Homeowners Association sued theCity afterthepipe allegedlyfailed and contributed to flooding. TheAssociation arguedtheCitywas responsiblefor maintenance ofthepipe because theplatfortheCrystal Ridge 

### developmentdedicated thepipetowhatwas then unincorporated Snohomish County as 

## partofadrainage easementdepicted upon the platapplication. Thetrial courtagreed and granted summaryjudgmentto theAssociation. 

### Theplatdedicated an easementforthepurpose ofmaintaining "stormwater facilities." Because the interceptorpipequalified as such afacility under the provisionsNo. 68618-6-1/3 

### ofthe Snohomish County Code in place at the time the platapplication was approved,

we affirm the trial court. FACTS 

### This case arises out offlooding in a residential neighborhood inBothell called Crystal Ridge. The neighborhood was developed in 1987 inwhat was then 

### unincorporated Snohomish County, and it is undisputed that the neighborhood has an extensive history offlooding. The hearing examinerwho approved the preliminary plat 

### for the Crystal Ridge developmentfound, based on the testimony ofgeotechnical engineer Gordon Denby, that the Crystal Ridge developmentwas "characterized by excessively wet soils due to the geologic conditions which exist inthe area[.]" Clerk's Papers at 721. He found that "a surface drain and an interceptortrench or trenches
... would be necessary" in orderto develop the site. jd. On this basis, he concluded, "[t]he simple reality is that this site is not your typical piece ofproperty and that typical drainage standards would probably not adequately protectthe public use and interest." 

### As such, the hearing examiner made a comprehensive drainage plan, including the interceptortrench, a requirement of approval ofthe plat application. The developer built the interceptor trench and placed a pipe inthe trench. The interceptor pipe, which is similarto a french drain, was a perforated pipe buried approximately 12 feet below ground for the purpose of intercepting excess water and conveying itaway from the residential development. The interceptor pipe is located within a drainage easement depicted on the plat for the Crystal Ridge development. 3No. 68618-6-1/4 

### In 1992, the Crystal Ridge development was incorporated into the City ofBothell. In2010, the Crystal Ridge Homeowners Association, along with individual homeowners ("Crystal Ridge"), filed suit against the City of Bothell, alleging that the interceptordrain

was no longerworking 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 declaratoryjudgmentthat the City of Bothell had assumed responsibility for maintaining the drainage system. 

### Crystal Ridge moved for summaryjudgment, seeking a rulingthatthe City had assumed responsibility for maintaining the drainage system when itannexed the development. The Citycross-moved for summaryjudgment on the same issue. The trial court granted Crystal Ridge's motion, and denied the City's 

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

### court underCR 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 easementto 

### 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 ofingress and 1Although theCity has appealed sixordersofthetrial court, itmakes noargument as to any orders other than the order grantingCrystal 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. 4No. 68618-6-1/5
egress to maintain and repair only "stormwaterfacilities," and the interceptor pipe does not qualify as a stormwaterfacility. 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 ofthe City's argument is thatthe interceptor pipe, which
was buried twelve feet below ground, was meant to deal with "groundwater" and 

### therefore cannot be part of a stormwaterfacility, whichthe Citycontends deals onlywith
"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 istitled "drainage." CP at 666. Itspurposes included: "protecting] the public from stormwater runofforiginating on 

### developing land"; "minimiz[ing] adverse effects ofalteration in groundwaterquantities, 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 "stormwaterfacility." Itdoes, however, define "drainage treatment/abatement facilities": 

### "DrainageTreatment/Abatement Facilities" means any facilities installed or constructed inconjunction with a drainage plan forthe 

### purpose oftreatment orabatement ofstormwater runoff.No. 68618-6-1/6 CP at 669 (SCC 24.08.120). The ordinance enacting former chapter 25 ofthe Snohomish County Code is titled "providing for storm and surface water management." Former chapter 25 was meant to complement and supplementformer 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 chapterwas to "augment the County's Drainage Ordinance, SCC Title 24[.]" (SCC 25.05.040). (CP at 450). The purposes offormer chapter 25 included: "control, accommodate, and discharge storm runoff' and "provide for 

### groundwater recharge[.]" CP at 442. As was the case with former chapter24, former chapter 25 does not define "groundwater," "surface water," or "stormwater." Itdoes 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/abatementfacilities" in formerchapter 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


### noauthority defining "groundwater," nor does itprovide authority indicating that 

### "groundwater" is excludedfrom "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 atNo. 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 "stormwaterfacilities." 

### On the issue ofstormwaterfacilities, 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 ofthe code supports its 

### interpretation because "[u]se ofthe 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 inquiryto determine whetherthe definitionsetforth 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 iswhetherthe interceptor pipe was "constructed
... for purpose ofcontrolling or protecting life or propertyfrom, any storm, waste, flood or surplus waters[.]" CP at 457 (SCC 25.02.080). The record here shows the interceptor 

### pipe was constructed forsuch a purpose. The hearing examinerwho approved the 

### preliminary plat found, based on the testimony of geotechnical engineer Gordon Denby,
7No. 68618-6-1/8 

### thatthe Crystal Ridge development was "characterized byexcessively wet soils due to the geologic conditions which exist inthe area[.]" CP at 721. He found that "a surface 

### drain and an interceptortrench or trenches
.. . would be necessary" in orderto develop the site. id. On this basis, he concluded, "[t]he simple reality is that this site is not your typical piece ofproperty 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 itreduces the amount of surface water runoffflowing on and emanating from the site." CP at 296. 

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

### inthe 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 ofstormwaterfacility, and itwas 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: 8No. 68618-6-1/9 

### "Storm and Surface Water Management Facilities and Features," as used inthis 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 clearthat 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 inthe dedication on the Crystal Ridge plat. 

### We conclude they are without merit. Forexample, the Citynotes that the location of the easementfor the interceptor pipe also includes a sanitary sewer main; the implication 

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

### sanitary sewer, which is an absurd result. But Crystal Ridge has notargued the sanitary
sewerfits the Snohomish County Code definition ofstormwaterfacility, and moreover, 

### the platspecifically indicates the easementfor the sanitary sewer belongs to the "AWD" 

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

### requirement. Before the Crystal Ridge platwas approved, the County required the 2TheCity also argues that thepurpose ofthe easement at issuein this case wasfor 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 locatedwithin the easement. 9No. 68618-6-1/10 

### developer to record a document titled "Drainage Disclosure." CP at 472-73. The drainage disclosure includes the legal description ofand 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 ofthe conditions and terms of PlatApproval 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 inthe development ofthe subject property, and that special and/or extraordinary drainage controls may be necessary on individual lots. 

### (2) Constitutes the current owner's acknowledgment ofthe currentterms and conditions under which Approval was granted. 

### (3) Serves as notice to any heir, successor, assign or prospective 

### purchaserthe disclosures and terms and conditions runs with the land pursuantto Section 19.40 SCC and the compliance and/or knowledge are the obligation ofany owner ofthe subject property. CP at 472. 

### The City simply asserts, without argument orcitation to authority, that "it isclear" that the disclosure means the owners of individual lots were responsible for 

### maintenance ofthe interceptor pipe. The City's interpretation is thatthis disclosure 

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

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

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

10No. 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 inplace on the plat. Additionally, the Cityappears to argue that there is no evidence the interceptor pipe was actually located withinthe 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 ofthe interceptor pipe trench, and that itwas, infact, 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 notfit the definition of "stormwaterfacility." 

### The brief ofamicus 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 thatthe municipality has placed upon itself a duty to maintain those easements for the benefit ofservice providers such as Comcast or Puget Sound 

### Energy. The Association also provides an example ofwater service being provided by multiplewater districts from jurisdictions outside of the plat location. The Association 11No. 68618-6-1/12


### argues "[t]hededication on a plat for utilities to be provided by one ofthose separate municipalities cannot reasonably be interpreted to require the City to be responsible for the maintenance, inspection, and repair ofthose facilities that are owned by the ratepayers ofthose other municipalities." Amicus Brief at 3. The Association is correct as to both ofthese examples. The decision inthis case, however, does not implicate the Association's concerns because the drainage easement here was specifically granted to Snohomish County for the purpose ofthe 

### County "maintaining and operating" the stormwaterfacilities. Moreover, nothing inthe 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 thatthere is no duty for a municipality to maintain 

### privatefacilities. We agree, and nothing in ouropinion states otherwise. The Association also argues that the interceptor pipe was not includedin the easement because it collects groundwater. We reject that argumentforthe reasons stated above.
Affirmed.



### WE CONCUR: J y 

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