IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ALPINE VILLAGE, INC, a Washington )
corporation, ) No. 74869-6-I
)
Appellant, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
CITY OF OAK HARBOR, a municipal )
corporation, LOIS A. LEWIS, trustee for )
Fund 'A' of the 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; ROBERT T. SEVERNS; )
RHODA LEE HAINES-PITT, aka RHODA )
KIRCHOFF; WELLS FARGO BANK, N.A.; )
PHYLLIS E. ROLLAG; MORTGAGE )
ELECTRONIC REGISTRATION )
SYSTEMS, INC.; and PIER POINT )
CONDOMINIUMS ASSOCIATION, )
)
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. We affirm.
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
development on that land.
On May 18, 1992, Mott executed 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 the following plan:
(Numbering added to reflect the building phases.)
1 The schedule stated in relevant part:
Phase 1-8 as designated herein are scheduled for completion in
accordance with the following;
Phase 1 completed by April 15, 1992
Phase 2-4 completed by October 15, 1992
Phase 5 completed by January 15, 1993
Phase 6 completed by January 15, 1994
Phase 7 completed by January 15, 1995
Phase 8 completed by January 15, 1996
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On May 20, 1992, Mott recorded a declaration of easement for the project.
The relevant portion of the easement reads as follows:
WHEREAS, DONNA L. MOTT, as her separate estate, hereafter
referred to as "DECLARANT", is the owner of that parcel of real
property described as follows:
Situate[d] in the County of Island, State of Washington:
Lots 1, 2, 3, 4, 18, 19, 20, 21, Block 7, OAK GROVE
ADDITION, according to the plat thereof recorded in Volume
2, of Plats, 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 as follows:
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
easements for ingress, egress, and utilities to serve and benefit the
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 2 through 8 as 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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No. 74869-6-1/4
the benefit of the owners, present and future, of the above-
described property, and any legally subdivided portions thereof, an
easement for the following:
(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 "Access and 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 of Pier Point Condominium.
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 of this declaration."
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No. 74869-6-1/5
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 of the completed phases and remaining undeveloped property:
(Numbering added to reflect the building phases.)
This created a unique factual backdrop for a lengthy series of legal
disputes over the use of the 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
In this case the respondents are the City of Oak Harbor, the Pier Point
2
Condominiums Association, and the individual owners (collectively "Pier Point").
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No. 74869-6-1/6
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 of the 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 independent grounds. 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 that the 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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No. 74869-6-1/7
Second, Alpine alternatively argues that the easement should be modified
pursuant to the changed conditions doctrine.
An appellate court reviews summary judgment in a declaratory judgment
action de novo and performs the same inquiry as the 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
that the grantor's intent was to 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's four lots.
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No. 74869-6-1/8
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 court applies the "context rule" in determining the meaning
of contract language. See Berg v. Hudesman, 115 Wn.2d 657, 667-68, 801 P.2d
222 (1990). Under this rule, courts may consider the context surrounding a
contract's execution. Hearst, 154 Wn.2d at 502.
The easement references both the description of the property as found in
the county land records, and the description of the 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 not developed pursuant to the Pier Point
BSP. But, reference to the county land records was necessary because that was
the only legal reference to the land at the time the easement was executed. And,
it was necessary to also include the Pier Point BSP description, because that
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No. 74869-6-1/9
reflected the potential change in the legal description of the property if and when
it was developed under the BSP. Inclusion of the county land description does
not demonstrate an intent to benefit separate from 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" of the "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 benefit the development set out in the Pier Point BSP:
WHEREAS, DECLARANT desires to establish the necessary
easements for ingress, egress, and utilities to serve and benefit the
Pier Point condominiums affecting Lot 1 of Building 1, as delineated
in said Buildinci Site Plan and to serve and benefit each successive
phase of condominium development affecting Lot or Building 2
through 8 as 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.
3Neither party contends that there is any other legally subdivided portion
of the land besides the Pier Point BSP.
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No. 74869-6-1/10
The final paragraph of the declaration of easement also reinforces this
stated intent: The easement is "to serve the owners of the 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 not argue 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 development was 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 that developed as condominiums under the 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 easement in the Alpine deed.
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No. 74869-6-1/11
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
court did not err in granting summary judgement in favor of Pier Point.5
Alternatively, Alpine argues for the first time on appeal that the 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.
We affirm.
WE CONCUR:
ALT-
5 We need not address whether the easement benefit ever took effect with
respect to Alpine's property.
11