Letter from AttorneyThe Law Office of Brian D. Amsbary PLLC
PO Box 19518, Seattle, WA 98109 1206.659.1521 1 brian@amsbarylaw.com
October XX, 2020
Via email
Jeff Taraday
Lighthouse Law Group PLLC
60o Stewart Street, Suite 400
Seattle, WA 98ioi
Re: Impasse with Edmonds Public Works Department
Al & Maggie Rogojan, Permit No. BLD2oi9496
Dear Mr. Taraday:
I represent Al & Maggie Rogojan, who last year applied for a permit to build a new
house on property they own in Edmonds. This summer, the City public works
department demanded that the Rogojans execute a covenant indemnifying the City
from future claims related to the new stormwater system on the property. See New
Covenant (attached). As explained below, this demand is problematic in several
respects —including the fact that the Rogojans already executed a similar covenant
indemnifying the City in May. See May Covenant (attached). I'm writing you in an
effort to find a mutually agreeable resolution here.
The Rogojan property & stormwater system. First, a bit of factual
background. The Rogojan property is located at 21705 96th Avenue West in
Edmonds, and pitches slightly downhill from front to back (west to east). The
Rogojans wish to demolish the old house currently on site and replace it with a new
one. The old house has no stormwater mitigation measures consistent with modern
standards; the new house, of course, is required to meet such standards
The design of the new stormwater system has undergone a number of iterations. As
is relevant here, in May, the proposed design consisted of a rain garden/bioretention
cell. Since then, a dispersion trench has been added to catch any possible overflow
from the bioretention cell and disperse in a manner that mimics the natural sheet
flow across the property. Ultimately, the redeveloped site will gather no more water
than it does now, will discharge less thanks to the new stormwater system, and will
do so in a manner that mimics the natural flow.
The covenants. In May, the Rogojans executed a covenant in favor of the City,
making various commitments concerning the maintenance, inspection, and repair of
the proposed stormwater "low impact development best management practices" —or
"LID BMPs"—on their property. See May Covenant, SS i - 6. Per a checklist in the
recitals, these are defined as a "Rain Garden/Bioretention Cell." Id., Recitals. Most
The Law Office of JeffTaraday
October XX, 2020
Brian D. Amsbary PLLC Page 2 of 3
importantly for the purposes of this letter, the final paragraph requires the Rogojans
to indemnify the City from all claims resulting from the LID BMPs. Id., S 7.
Despite this, a few months later public works demanded a new covenant. Its general
thrust is to commit the Rogojans to indemnify the City from claims related to the
stormwater system. See New Covenant, S i. But, as described below, it contains a
number of other provisions that go beyond those in the May Covenant and are
unacceptably objectionable.
Problems with the New Covenant. Initially, I must note that both covenants
are fundamentally objectionable to the extent that they condition approval of the
Rogojans' permit on their agreement to act as the City's indemnitor. As you are
certainly aware, as a matter of both state and federal law, local jurisdictions may only
condition land use permits to the degree necessary to mitigate the impacts of the
proposed development. This is generally achieved through the application of proper
development regulations. Here, however, the indemnity clauses contained the
covenants bear no relationship to the impacts of the Rogojans' project; they simply
compel the Rogojans to act as the City's insurer —despite the fact that, by definition,
compliance with the relevant development regulations shows that their project's
impacts have been sufficiently mitigated.
Unfortunately, in this case, that ship has largely sailed, given the Rogojans'
agreement to the May Covenant. The New Covenant, however, contains additional
provisions to which the Rogojans simply cannot agree:
• First, the recitals state that there is "no safe and certain overflow route" for
stormwater on the property. See New Covenant, Recitals, P. 2. This is simply
incorrect. The "overflow route" is the natural drainage path that surface
waters on the property have always followed. The Rogojans' system design
doesn't alter this whatsoever.
• Second, the recitals also state that the Rogojans are likely to be liable to their
neighbors for any overflow under "certain exceptions to the Common Enemy
Doctrine." See New Covenant, Recitals, P. 2. Again, this is simply incorrect.
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. See, e.g., Curren v. Sleek, 138 Wn.2d 858 (1999). Here, as
noted above, the redeveloped site will collect no more water than it does now
and will discharge less thanks to the new stormwater system. And if a ioo-
year storm does hit, any overflow will mimic the natural sheet flow along the
natural drainage path thanks to the dispersion trench.
The Law Office of JeffTaraday
October XX, 2020
Brian D. Amsbary PLLC Page 3 of 3
• Finally, unlike the May Covenant, the New Covenant makes no exception for
the City's intentional torts and contains an additional, unnecessary lien
provision. The Rogojans cannot be liable for any intentional misconduct on
the part of the City, and the terms of the May Covenant already provides the
basis for an agreement that would amply protect the City in the event of any
damage claims related to the Rogojans' system.
Thankfully, this last point appears to point the way towards a way forward here.
Given the expansion in the stormwater system's proposed design since the execution
of the May Covenant, it makes sense to expressly expand the covenant's scope to the
entirety of the Rogojans' system. I'd accordingly propose a revision of the May
Covenant that strikes the phrases "low impact development best management
practices" and "rain garden/bioretention cell," and substitutes the phrase
"stormwater drainage system." This would ensure that the entirety of the Rogojans'
system clearly falls within the scope of the covenant, but on terms that they can live
with.
I think it would be productive for us to spend a few minutes talking this through
over the phone, but felt this letter was necessary first in order to lay out the issues.
Please contact me at your earliest convenience once you've read this letter so that we
can set up a time for a call.
Regards,
LAW OFFICE OF BRIAN D. AMSBARY PLLC
Brian D. Amsbary
Attachments
NEW COVENANT
Return Address:
City Clerk
City of Edmonds
121 - 5th Ave. N.
Edmonds, WA 98020
OVERFLOW/FLOODING INDEMNITY COVENANT
Property Address: 21705 90 Ave W
Assessor's Property Tax Parcel No.: 00373600700802
This overflow/flooding indemnity covenant ("Covenant") is made by the undersigned owner(s)
of the real property legally described in Exhibit A (the "Owner") in favor of the City of
Edmonds, a Washington municipal corporation (the "City"), as required for the issuance to the
Owner of a permit allowing the construction and/or use of the property described in Exhibit A
hereto ("the Property").
WHEREAS, the Owner owns the property located at 21705 96th Ave W in Edmonds,
Washington; and
WHEREAS, the Owner is undertaking a single-family residence project at that address, which
involves the installation of best management practices (BMPs) for stormwater management; and
WHEREAS, the project engineer has designed a storm water mitigation system that
demonstrates runoff up to the 100-year storm will be infiltrated within the property boundaries;
and
WHEREAS, the system's overflow path requires a discharge toward downstream adjacent
properties without an existing defined conveyance system or drainage easement over those
properties; and
WHEREAS, City code, consistent with State -required code per the Municipal Stormwater
Permit, requires that drainage maintain its natural drainage course; and
WHEREAS, City code, consistent with State -required code per the Municipal Stormwater
Permit, requires that an overflow path be safe and certain; and
WHEREAS, an alternate proposal or pump system would ultimately result in an overflow path
discharging toward the same adjacent properties; and
WHEREAS, denial of the requested permit may interfere with optimal use of the subject
property; and
WHEREAS, the City has determined that, other than the absence of safe and certain overflow
route, all other elements of the drainage code have been satisfied; and
WHEREAS, the Owner has offered this Covenant to assuage the City's concerns about the
overflow; and
WHEREAS, the Owner would benefit from the permit being issued; and
WHEREAS, under certain exceptions to the Common Enemy Doctrine, the Owner would likely
have liability for any damage that the overflow causes to downstream properties; and
WHEREAS, the Owner acknowledges that City should not be held liable for any such damage;
and
WHEREAS, the City is willing to issue the permit if it receives an overflow/flooding indemnity
covenant from the Owner;
NOW, THEREFORE, the undersigned Owner hereby covenants as follows:
1. The Owner shall indemnify, defend, and hold harmless the City, its officers, agents and
employees from any and all claims, injuries, liabilities, losses, damages, demands, suits,
judgments at law or equity, including costs and reasonable attorneys' fees for defense of the
same, against the City which result from, arise out of, or are in any way related to the Owner's
stormwater drainage system. 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.
2. This Covenant shall run with the land and be binding upon all future owners of the
Property. This Covenant may be specifically enforced by the City against the Owner or any
successor in interest of the Owner.
3. In addition to the other remedies available to the City, the Owner's performance of this
Covenant is guaranteed by a lien against the Property in whatever amount is sufficient to hold the
City harmless. Owner acknowledges that, in addition to or in lieu of specific performance,
depending on the extent of the performance failure, the City may elect to foreclose the lien to
enforce paragraph 1, above.
4. The undersigned, by their signatures, verify that they have the authority to enter into this
Covenant on behalf of the Owner.
Agreed to this day of 92020.
PROPERTY OWNER
Mirel Rogojan
Magdalena Rogojan
STATE OF WASHINGTON)
) ss
COUNTY OF SNOHOMISH)
On this day personally appeared before me ,
to me known to be the individual(s) described in and who executed the within and foregoing
instrument and acknowledged that they signed the same as their free and voluntary act and deed,
for the uses and purposes therein mentioned.
UNDER MY HAND AND OFFICIAL SEAL THIS DAY OF
20
NOTARY PUBLIC in and for the
State of Washington, residing at
MAY COVENANT
After recording return to:
City Clerk
City of Edmonds
121 Fifth Avenue North
Edmonds, WA 98020
Document Title(s)
Declaration of Covenant - Private Stormwater Facility
Reference Number(s) of Related Documents
City of Edmonds (permit number)
Grantor(S) (Last, First and Middle Initial)
20&0 � R-o v4p,&L /41-
Grantee(s) (Last, First and Middle Initial)
City of Edmonds
Legal Description (abbreviated form; i.e., lot, plat or section, township, range, quarter/quarter)
T%E taGi6 S r i 2-6 fErET , of TM£ So w rH 7o FE. a7- oFe.o r $, i�tr,aGOc,�c 7, of A,,bAe
to /R NOle NO q/ R coo2b i MG ro }-ifE PiAT- rNS,2R- op kwcozD de,b ix V014— vl E 10 opv4TS r b P_6.GD P- &S OF �SND 00AA %SM C.0a yW4S1hNGTO/V,
Assessor's Propertvy'1ax�Parce�Account Num�lieroat theTimeof Recording ^��5�'�%iSrAT£ af'urr,¢S,rl1
003-736- oc7- ooS- 02
The Auditor/Recorder will rely on the information provided on this form. The staff will not read the document to verify the accuracy or
completeness of the indexing information provided herein.
DECLARATION OF COVENANT
Private Stormwater Facility
WHEREAS, the undersigned Declarant(s) have installed one or more stormwater
facilities under Edmonds Community Development Code Chapter 18.30 known as a "low impact
development best management practices (LID BMP)" as selected below:
❑ Permeable Pavement
Rain Garden / Bioretention Cell
❑ Drywell
❑ Infiltration Trench
❑ Gravelless Chamber
❑ Other
WHEREAS, the City of Edmonds has allowed installation of the LID BMP, subject to the
execution and recording of this Declaration of Covenant; NOW, THEREFORE,
THE UNDERSIGNED DECLARANT(S), being the owners of the real property ("the
Property") located at the following address: 2 1 7 05 9G AVE. \X✓•
in the City of
Edmonds, Washington, and legally described on Exhibit A attached hereto and incorporated
herein by this reference as if set forth in full, hereby covenants and agrees, on behalf of
himself/herself/themselves/itself and his/her/their/its successors and assigns, as follows:
1. Declarant(s) warrant that he/she/they are the owners of the property described on Exhibit
A and have the authority to impose this covenant on the property and bind all future owners,
successors, and assigns of the Declarant(s). The Declarant(s), future owners, successors,
and assigns of the Declarant(s) shall be referred to collectively as "Owners."
2. The Owners of the Property agree that the Property contains one or more stormwater
management facilities referred to as an "LID BMP," which was installed to mitigate the
stormwater quantity and quality impacts of some or all of the impervious or non-native
pervious surfaces on the property. "Low impact development" means development
conducted in a way that seeks to minimize or completely prevent alterations to the natural
hydrology of the site. Low impact development includes site planning and design to reduce
alterations of natural soil and vegetation cover, minimize impervious surfaces, and specific
practices that help to replicate natural hydrology such as permeable pavements, green
roofs, soil amendments, bioretention systems, and dispersion of runoff.
3. The Owners shall maintain the size, placement, and design of the LID BMP as depicted on
the approved site plan, Exhibit B, and design details shall be maintained and may not be
changed without written approval either from the Engineering Division of the City of
Edmonds or through a future development permit from the City of Edmonds. Chemical
fertilizers and pesticides shall not be used where LID BMP is located. All costs of
maintenance and repair shall be the sole responsibility of the Owners.
4. The Owners shall inspect LID BMPs annually for physical defects. After major storm
events, the system shall also be checked to ensure that the overflow system is working
properly. The Owners also shall maintain all LID BMPs so they function as designed on a
year-round basis.
The City of Edmonds is hereby granted by the Owners the right, but not the obligation, to
enter upon the Property described on Exhibit A at all reasonable times for the purpose of
inspecting the private stormwater LID BMP facility. If, as the result of any such inspection,
the City of Edmonds determines that the LID BMP is in disrepair, requires maintenance or
repair, or is otherwise not functioning as provided in the BMP site plan, the City Engineer
or his designee shall have the right, but not the obligation, to order the Owners to maintain
or repair the same.
6. If the City of Edmonds determines that the LID BMP requires maintenance or repair
pursuant to Section 5, the City of Edmonds shall provide notice to the Owners of the
deadline within which such maintenance or repair must be completed. Said notice may
further advise that, should the violator fail to perform required maintenance or make repairs
within the established deadline, the work may be done by the city or a contractor designated
by the City Engineer and the expense thereof shall be charged to the Owners. The City's
officers, agents, employees, and contractors shall have the right, which is hereby granted
by the Owners, to enter upon the Property described on Exhibit A in order to perform such
work. The Owners shall bear the cost of all work performed.
7. The Owners shall indemnify, defend and hold harmless the City of Edmonds, its officers,
officials, employees and agents from any and all claims, demands, suits, penalties, losses,
damages, judgments, attorneys' fees and/or costs of any kind whatsoever, arising out of or
in any way resulting from the approval of the LID BMP(s), the installation and presence
of the LID BMP(s), and the acts or omissions of the Owners, their officers, employees,
contractors, and agents relating to the construction, operation and maintenance of the LID
BMP(s) on the Property, except for the City's intentional and willful tortious acts, and
waive and release the City of Edmonds from any and all claims for damages and injunctive
relief which the Owners may themselves have now or in the future, by reason of the
construction, maintenance and operation of said LID BMP(s).
This covenant shall run with the land and be binding upon the Owners.
Dated: it 1 /
DECLARANT(S):
APPROVED:
CITY OF EDMONDS
(Signature) (Signature)
(Print Name)
(Signature)
(Print Name)
State of Washington
tKF-NU ) ss.
County of S swi }A )
AK{
(Print Name)
(Title)
On this day personally appeared before me FYI a( 'L' ROL10-TW
{Declarant(s)I to me known to be the individual, or individuals described in and who executed
the within and foregoing instrument, and acknowledged that he/shc4they signed the same as
his/fir free and voluntary act and deed, for the uses and purposes therein mentioned.
SUBSCRIBED AND SWORN before me this _� day of M �j , 20,
MorWashington
ic (Signature)
gton ANt�T � �� I rEL (Name legibly printed or stamped)
xPiREsNotar Public in and for the State of Washin ton.
22 y g
Residing at: 00 �Md I,
My commission expires TW k 0 �01Z
EXHIBIT "A"
Legal Description
THE WEST 126 FEET OF THE SOUTH 70 FEET OF LOT 8, IN BLOCK 7, OF ALDERWOOD MANOR
NO 9, ACCORDING TO THE PLAT THEREOF, RECORDED IN `/CL OF PLAT S. PAGE 6
RECORDS OF SNOHOMISH COUNTY, WASHINGTON.
SITUATE IN THE CITY OF EDMONDS, COUNTY OF SNOH=SFL STATE OF WASHINGTON.
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