January 21, 2021 letterMirel Al and Magdalena Rogojan
23828 Brier Rd
Brier, WA 98036
Date: January 21, 2021
RE: BLD2019-1496 / 21705 96th Ave W
To: Zachary Richardson, PE
CC: Rob English, City of Edmonds, City Engineer
Jeannie McConnell, City of Edmonds, Engineering Program
Jennifer Lambert, City of Edmonds, Engineering Technician III
After receiving the documents from the city of Edmonds asking us to sign the
OVERFLOW/FLOODING INDEMNITY COVENANT (second covenant) we reached out for
legal advice from the offices of Brian D Amsbary, PLLC. Following consultations with our
attorney and after studying the documents presented to us including the draft letter intended for
the downstream neighbors, we would like to give a response to the City of Edmonds and firmly
state our reasons for not accepting to sign the OVERFLOW/FLOODING INDEMNITY
COVENANT (second covenant). In addition, our attorney has contacted Jeff Taraday with
LightHouse Law Group, PLLC, who represents the City of Edmonds. After months of no
resolution, we intend to present our position on the matter.
In this letter we would like to point out what we believe to be several of the (second covenant)
document's flaws and examples of the city's abuse of authority. There also appears to be double
standard and lack of transparency on behalf of the city when we're presented with one set of
requirements, while our neighbors are given a different set of facts. The document (second
covenant) contradicts on many levels the information (that would be) provided to downstream
neighboring properties as demonstrated in the city's proposed letter to them. As a result, we
question the city's motives as to why we're singled out to sign such a document. Again, the
assertions of second covenant are simply false and we cannot sign such document.
1. The title of the document OVERFLOW/FLOODING INDEMNITY COVENANT
contradicts the very purpose of requiring the installation of the bioretention system meant
to manage the runoff from the rooftop of proposed house and proposed driveway.
(a) The Superior Court decision in Current v. Sleek, 138 Wn.2d 858— September 9, 1999
underscores:
Waters - Surface Water- Common Enemy Rule - Scope. Under the common enemy rule, a
landowner may alter the flow of surface water without incurring liability for surface water
flooding damage to neighboring properties so long as the landowner does not inhibit the flow of
a watercourse or natural drainway or collect and discharge water onto the neighboring property
in quantities greater than, or in a manner different from its natural flow.
Since we're not dumping any water on adjoining properties by fulfilling required mitigation for
managing stormwater, the question of liability should not even be presented.
(b) Furthermore, the draft letter addressed to downstream neighboring properties
RECOGNIZES and STATES the following:
The City has reviewed the project engineers work and notes that the design does successfully
demonstrate infiltration of the full 100 year storm, leaves additional storage/freeboard in the
bioretention facility above that shown in the design calculation, and includes a dispersion trench
(an additional BMP) to mimic natural sheet flow. It is also noted that any overflow from a
drainage system on this site, even if pumping uphill was permitted, likely would follow the
natural topography toward your and your neighbor's properties. Because drainage ALREADY
flows in that direction today, WE DO NOT BELIEVE WE HAVE A BASIS TO DENY the
proposed development permit... Accordingly, the project is likely to be approved as meeting the
City's stormwater code as submitted.
If our project meets stormwater code as submitted, why are we presented with the additional
hurdle/demand to sign a second covenant?
2. In your second covenant you state "WHEREAS, the project engineer has designed a
storm water mitigation system that demonstrates runoff up to the 100year storm will be
infiltrated within the property boundaries." The second covenant fails to recognize the
conclusion communicated on August 13, 2020 email (at 2:30 pm) between Donna
Breske, PE and Doug Beyerlein, PE, PH, D. WRE with Clear Creek Solution, Inc. In the
referenced email, where it is clearly stated that the sizing of bioretention proposed system
for our project will get 100% infiltration including 100-year storm. The chart and graph
in the email dated August 17, 2020 at 10:39 am between Donna Breske, PE and Doug
Beyerlein, PE, PH, D. WRE with Clear Creek Solution, Inc demonstrate zero flow to be
anticipated from the bioretention including 100-year storm. Any overflow from the
bioretention (related to a storm bigger than 100-years storm) would be managed by the
dispersion trench (an additional BMP) before mimicking the natural drainage course.
One additional flaw of your statement is the fact that while the second covenant denies the above
conclusion it contradicts the very statement expressly spelled out in the letter to the downstream
neighbors where the city DOES recognize the following:
the design does successfully demonstrate infiltration of the full 100 year storm, leaves
additional storage/freeboard in the bioretention facility above that shown in the design
calculation, and includes a dispersion trench (an additional BMP) to mimic natural sheet flow.
3. Per your document (second covenant) our project satisfied all elements of the drainage
code with the exception of "the absence of safe and certain overflow route." Again, this is
a contradiction since the natural drainage path that surface waters have always followed
will not change. Again, allow us to state that the letter to downstream neighboring
properties recognizes that "drainage already flows in that direction today." In addition,
the proposed project "will collect no more water than it does now and it will discharge
less thanks to the new stormwater system. If a bigger storm than 100-years does hit, any
overflow will mimic the natural sheet flow along the natural drainage path thanks to the
dispersion trench." (text from letter of Brian D. Amsbary, PLLC to Jeff Taraday of
Lighthouse Law Group). Thus, your concern for overflow and flooding is unfounded and
the contradictions between the two documents is unacceptable.
4. You also further state, "under certain exceptions to the Common Enemy Doctrine, the
Owner would likely have liability for any damage..." The City's statement unfairly
singles out our project by bankrupting our legal protection summarized by the Common
Enemy Doctrine as decided in Current v. Sleek, 138 Wn. 2d 858 (1999). The Common
Enemy Doctrine provides that storm and other surface waters are a common enemy to all,
and a property owner is entitled to dispose of such waters off of his or her property so
long as the waters are not artificially collected and discharged in quantities greater or in a
manner different than the natural flow. As stated previously, Donna Breske, PE has
shown that our redeveloped site, by having bioretention and a dispersion trench, will
improve management of stormwater and surface water while preserving watercourse and
natural drainways. Thus, we should benefit from the Superior Court's decision since, in
good faith, our project complies with DOE Manual. The above -named decision (Current
v. Sleek) also states that "Courts should not change or alter a rule of law for light or
transient reasons." Thus, the City is overstepping its authority above and beyond the
decision of the Superior Court.
5. Another firm reason for our unyielding refusal to sign this illegal document is because
"this covenant expressly includes, without limitation, any and all claims, injuries,
liabilities, losses, damages, demands, or suits brought by owners of adjacent property for
flooding damage." The City's statement here gives full protection to city officials
whether intentional or unintentional, while at the same time stripping us of all legal
protections. The City's OVERFLOW/FLOODING INDEMNITY COVENANT, the
instrument itself, proves intentional misconduct on behalf of the city by using the terms
"without limitation, any and all claims" and by demanding signature of such illegal
document in exchange for getting the permit. In good faith, we have already signed a
DECLARATION of COVENANT -PRIVATE STORMWATER FACILITY (dated May
11,2020) protecting the City of Edmonds, but these new terms outlined in the
OVERFLOW/FLOODING INDEMNITY COVENANT are unacceptable.
6. One final point to underscore our inability to concede to the terms of the proposed
covenant is the City's interpretation that "the Owner would benefit from the permit being
issued." Does this specific language imply that we should be compelled to sign an
(un)lawf it covenant? We can only conclude this to be an overreach of power on behalf of
city officials whose legitimate responsibilities are to determine if applicable development
regulations have been satisfied. Instead, city officials are blackmailing and punishing us
for not accepting their (il)legal terms.
We have never been provided —even though it was requested by our civil engineer the
documentation that this legal interpretation comes from the Edmonds City attorney. Per e-mail
dated August 10, 2020 from Zachary Richardson to Donna Breske, "the City attorney was
consulted and the email below was the conclusion." If such is the case, we are entitled to written
documentation expressly spelling out the legal opinion of the City's legal adviser, Mr Jeff
Taraday before being demanded by the city to concur to such unacceptable terms. Since you
have refused to provide this written conclusion from the City legal adviser, we can rightfully find
that such document does not exist and this interpretation is strictly that of City Officials.
The OVERFLOW/FLOODING INDEMNITY COVENANT expressly spells out that this is a
concern of the city — indicating that the law and municipal codes have been met. The attempt
on behalf of the city to over -ride applicable development regulations is, as stated numerous times
in this letter, an overreach and abuse of power on behalf of the City of Edmonds.
The second option offered by the City Officials was that of procuring an easement from the
downstream neighbors. This is also an overreach on the part of the city to require such document
from our neighbors and it is unacceptable to them since such easement will de -value their
respective properties. The second reason this is unacceptable refers to the fact that there already
exists a natural drainage path which would not be disturbed by our project. In addition, as shown
above, the proposed project would actually will improve management of stormwater and surface
water while preserving watercourse and natural drainways. Again, it is noteworthy to point out
that the letter to downstream neighbors expressly recognizes that "any overflow from a drainage
system on this site ... likely would follow the natural topography toward your and your neighbor's
properties." If such assertion is true, there is no need for easement from those neighboring
properties since stormwater already follows natural topography today.
We feel that the additional request for a second covenant is an overreach and abuse of power on
behalf of the city causing undue, unreasonable, and unfair hardship on a permitting process that
has continuously hurdled numerous demands from the Stormwater Engineering Department. The
various a -mails and the many requests our Civil Engineer had to overcome stand testament to
this. We have already offered the City of Edmonds the Covenant dated May 11, 2020 which
protects the City by making us responsible for the construction, maintenance and operation of the
proposed Stormwater system on the owner's property. The additional (il)legal terms demanded
by the second covenant are contingencies we cannot accept or surrender to.
In conclusion, we request that the City of Edmonds remove its conditional approval of our
building permit requiring an OVERFLOW/FLOODING INDEMNITY COVENANT, since we
have fulfilled all elements of the drainage code.
Sincerely,
Mire] Al and Magdalena Rogojan