RESUB 1-Attorney LetterCH&CAI RNCROSS&HEMPELMANN
ATTORNEYS AT LAW
524 2nd Ave., Suite 500 office 206.587.0700
Seattle, WA 98104 fax 206.587.2308
www.cairncross.com
November 30, 2021
City of Edmonds
Planning Division
Re: Installation of Cantilevered Deck over Storm Drainage Easement at 15722 72nd Ave. W.
To whom it may concern:
My firm represents Kevin Keck and Heather Hathaway regarding their new single-family home planned
at 15722 72nd Avenue West in Edmonds. As part of that development, my clients plan to install a deck
in their back yard. In two locations, the deck will be cantilevered over a buried storm drainage pipe
located in a private ten -foot -wide drainage easement. The City has apparently expressed concern that the
deck might interfere with use of the easement. This letter is intended to assuage those concerns. As
described below, the drainage easements affecting the Keck/Hathaway property allow the property
owners to use the surface of their land, so long as they do not interfere with the functions of the
easement area.
An easement dated 1998 (recording no. 9806080663) appears to burden only downslope lands and to
benefit the Keck/Hathaway lot. To the extent that easement or its terms burdened the Keck/Hathaway
lot, it plainly allows the burdened property owner to "use the surface of said easement, so long as the use
does not interfere with installation, operation, and maintenance of the Line, and so long as no permanent
buildings or structures are erected on said easement."
The easement that plainly burdens the Keck/Hathaway lot was established during the platting of
Meadowview Estates in 2014-2016. Importantly, no documents concerning the easement prohibit
installation of structures in, on, or over the easement area.
Sheet 1 of the lot -line adjustment from May 2014 (recording no. 201405155001) states: "The private
drainage easement ... is hereby granted and conveyed to Adjusted Parcel A and Adjusted Parcel B. The
Owners [of said parcels] shall be equally responsible for the maintenance, repair and/or reconstruction
of that portion of the drainage facilities they have the benefit of use." The lot -line adjustment does not
prohibit structures in the easement area. The lot -line adjustment was amended in March 2016 to fix an
error in the legal description for one parcel (recording no. 201603295002). The amended adjustment is
otherwise the same as the original, including with respect to the drainage easement.
A few months before the amended adjustment was recorded, the developer of Meadowview Estates
recorded CC&Rs for the soon -to -be five -lot development (recording no. 201512240192). Section 2.9 of
the CC&Rs states in full:
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direct: (206) 254-4417
City of Edmonds
November 30, 2021
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Declarant hereby reserves an easement for a Storm Water Maintenance System consisting
of a filtration system, oil water separator, conveyance system and outfall on Lot 5 for the
benefit of all Lots. The location of the easement is depicted on Exhibit `D.' The
Association shall be responsible for the maintenance, repair, and replacement of the
Storm Water Maintenance System. The amount of impervious areas for each lot is as
identified on Exhibit E.
Despite referencing only Lot 5, the easement actually crosses more than just Lot 5, as shown on Exhibit
D of the CC&Rs and the lot -line adjustments. Section 2.11 of the CC&Rs states that easement grantees
must "use reasonable care in carrying out any construction or repair in the easement areas and to restore
such areas, to the extent reasonably practicable, to the condition they were in immediately prior to such
work; ..." Nothing in the CC&Rs expressly prohibits structures in, on, or over the drainage easement
area. The CC&Rs were amended twice, but neither amendment concerned easements.
In December 2016, the five -lot short plat was approved and recorded (recording no. 201612095001).
The short plat depicts the private drainage easement and contains a provision similar to the one in the
lot -line adjustments: all lot owners "shall be equally responsible for the maintenance, repair and/or
reconstruction of that portion of the drainage facilities they have the benefit of use." The plat also has a
provision holding the City harmless for claims concerning the construction and operation of the drainage
system. Nothing in the plat expressly prohibits structures in, on, or over the drainage easement area.
As mentioned, the proposed deck areas will be cantilevered over the easement area —no part of the
structure will touch the ground in the easement area. The deck will be slatted to allow rainwater to drip
below it, into the easement area. Likewise, any surface water flow can flow under the cantilevered deck
and into the easement area. The deck will also be removable so that the storm drainage pipe in the
easement can be accessed for maintenance, repair, and replacement. In other words, the deck will cause
no interference with the storm drainage easement. Given that, and because the easement documents do
not prohibit installing structures cantilevered over the easement area, my clients' proposed deck should
be permitted.
Very truly yours,
Nancy Bainbridge Rogers
NBR:MCB:alw
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