Crystal Ridge Homeowners Ass'n v. City of Bothell

Gordon McCloud, J.

¶27 (dissenting) — The developer here dedicated a 25-foot easement to Snohomish County *680(County) “for the right of ingress and egress for the purpose of maintaining and operating stormwater facilities.” Clerk’s Papers (CP) at 46-48 (emphasis omitted). The city of Bothell (City) accepted this dedication, along with its obligations. CP at 45. The question that we must resolve here is the scope of this dedication “of ingress and egress”: specifically, whether or not this dedication included an obligation to maintain the interceptor pipe that the hearing examiner in 1984 required the developer to install 11 feet underground as a condition of development.

¶28 The majority concludes as a matter of law that the scope of this dedication to the City includes the obligation to maintain the interceptor pipe. I agree with the majority that the plat language unambiguously gives the City access to whatever the easement contains. But I disagree with the majority’s conclusion that the plat language and undisputed evidence unambiguously demonstrate that the developer intended to impose a duty on the City to maintain the interceptor pipe at issue and that that is what the City accepted. Instead, neither the plat nor any other evidence shows that the City at any time affirmatively assumed a duty to maintain this pipe, and I find no basis to infer such a duty. I would therefore reverse. I respectfully dissent.

I. Standard of Review

¶29 We review a summary judgment order de novo. LaCoursiere v. Camwest Dev., Inc., 181 Wn.2d 734, 740, 339 P.3d 963 (2014). Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmov-ing party and drawing all reasonable inferences in that party’s favor, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id.

II. Rules Governing Contract and Plat Interpretation

¶30 A statutory dedication operates by way of grant. Kiely v. Graves, 173 Wn.2d 926, 932, 271 P.3d 226 (2012). A *681dedication of an easement occurs when the grant specifies the dedication for a particular purpose. Id. In Washington, RCW 58.08.015 governs a statutory dedication. This provision states,

Every donation or grant to the public, or to any individual or individuals, religious society or societies, or to any corporation or body politic, marked or noted as such on the plat of the town, or wherein such donation or grant may have been made, shall be considered, to all intents and purposes, as a quitclaim deed to the said donee or donees, grantee or grantees, for his, her or their use, for the purposes intended by the donor or donors, grantor or grantors, as aforesaid.

RCW 58.08.015.

¶31 Matters of plat interpretation depend on the donor’s intent. See Roeder Co. v. Burlington N., Inc., 105 Wn.2d 269, 273, 714 P.2d 1170 (1986). The court generally determines donor’s intent from the face of the dedication; Washington courts do not consider extrinsic evidence to determine donor intent if a plat’s plain language is unambiguous. Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003) (citing Zobrist v. Culp, 95 Wn.2d 556, 560, 627 P.2d 1308 (1981)). If the plat’s language is ambiguous, however, then the court may consider extrinsic evidence to ascertain the parties’ intent at the time that they executed the plat: “If ambiguity exists, extrinsic evidence is allowed to show the intentions of the original parties, the circumstances of the property when the easement was conveyed, and the practical interpretation given the parties’ prior conduct or admissions.” Id. (citing City of Seattle v. Nazarenus, 60 Wn.2d 657, 665, 374 P.2d 1014 (1962)).

III. The Plat’s Plain Language Imposes No Duty To Maintain the Interceptor Pipe

¶32 The homeowners sought a declaratory judgment that based on the recorded plat’s plain language, the City, “ ‘upon annexing the area of the Crystal Ridge development from Snohomish County, assumed responsibility for in*682specting and maintaining the drainage system, including the interceptor trench between the Brentwood Heights and Crystal Ridge developments.’ ” CP at 637, 837. They prevailed in the trial court and on appeal. Crystal Ridge Homeowners Ass’n v. City of Bothell, noted at 175 Wn. App. 1047 (2013).

¶33 The majority affirms, reasoning that “no ambiguity surrounds the easement in question,” majority at 671, and holding that “the only reasonable interpretation of the Crystal Ridge plat is that Snohomish County — and therefore the City — assumed responsibility for maintaining the drainage pipe.” Majority at 667. The heart of the majority’s analysis is “[b]ecause the County assumed responsibility for maintaining the Tract 999 drainage easement, it necessarily follows that if the interceptor pipe falls within the scope of that easement, the City — as successor in interest of the County — has responsibility for maintaining the interceptor pipe.” Majority at 672.

¶34 I agree with the majority’s premises but not with its conclusion. To be sure, there is no dispute that the interceptor pipe is located within the 25-foot easement. CP at 324. And, surely, the plat 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 640.

¶35 But all that this language unambiguously shows is that when the City accepted the dedication, it received “the right of ingress and egress,” meaning the right to access stormwater facilities located within all the easements on the plat. “Ingress and egress” is followed by the language “for the purpose of maintaining and operating stormwater facilities.” That latter phrase is descriptive, not prescriptive; that is, it describes the scope of the City’s right but imposes no additional duty. “ ‘[W]hen the intention of the owner to dedicate is clear, manifest, and unequivocal,... it *683becomes effective for that purpose.’ ” City of Spokane v. Catholic Bishop of Spokane, 33 Wn.2d 496, 503, 206 P.2d 277 (1949) (quoting Corning v. Aldo, 185 Wash. 570, 576, 55 P.2d 1093 (1936)). Although the holder of the easement— the City — has a duty to maintain the easement, its duty applies only to maintaining the easement for the purpose for which it was granted. Thus, because the easement addresses only access, the City’s duty, based on the plat’s plain language, extends only to maintaining a right of access. The plat on its own does not unambiguously place a duty to maintain that interceptor pipe on the City. Instead, it is silent about the duty to maintain that pipe. Therefore, summary judgment in favor of the homeowners based on the plat language was improper.

¶36 The majority seems to assume that access would be irrelevant if the City did not also have a duty to maintain. Majority at 672. That might be true. But it does not necessarily follow that we can therefore infer from the plat itself, as opposed to some other source, the duty to maintain. Instead, as discussed in Part IV below, there were specific steps that the law prescribes to impose such a duty — steps that no party took.

IV. The Undisputed Evidence Supports Summary Judgment in Favor of the City, Not the Homeowners

¶37 Because the plat language does not unambiguously answer the question of whether the donor intended to convey, and the County intended to accept, the duty to maintain the interceptor pipe, we may consider extrinsic evidence about “the intentions of the original parties, the circumstances of the property when the easement was conveyed, and the practical interpretation given the parties’ prior conduct or admissions.” Sunnyside Valley, 149 Wn.2d at 880 (citing Nazarenus, 60 Wn.2d at 665).

¶38 The City points to the following evidence extrinsic to the plat to try to show that the homeowners, not the City, are responsible for maintaining the interceptor pipe:

*684[T]he trench is not defined as a public system in the City’s (or the County’s) codes, rules and regulations; the City has never in the past maintained this private structure/system (nor did the County when the Property was under Snohomish County’s jurisdiction); nor would it benefit the public to do so as the interceptor trench only aids private property.

CP at 315. We address each in turn.

¶39 To support its first contention, the City points to the plat’s language and argues that “the interceptor trench does not meet the definition of ‘stormwater facility’ under any applicable code or regulation.” CP at 324. But this argument depends on reading the plat’s language to impose on the City an obligation to maintain “stormwater facilities.” As discussed above, the plat’s language imposes no duty to maintain. Thus, this argument is not sufficient to support summary judgment in the City’s favor.

¶40 To support the City’s second argument, that it never maintained or inspected the pipe, the City cites the “Drainage Disclosure” and also the requirements in the former Snohomish County Code (SCC) for assuming responsibility for maintaining the interceptor pipe.15 CP at 326-31, 333.

¶41 I agree with the majority that the “Drainage Disclosure” imposes no duty on the homeowners to maintain the interceptor pipe. Majority at 676. But I disagree with the majority’s application of the SCC.

¶42 Both state law and the SCC contain requirements for a dedication. See RCW 58.17.020(3); former SCC 24.28.040 (1983). We apply the ordinances and law in effect at the time that a party files an application for a preliminary plat.16 HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 483, 61 P.3d 1141 (2003) (citing Friends of the Law v. King *685County, 123 Wn.2d 518, 522, 869 P.2d 1056 (1994)). As this court stated in HJS Development, local governments are “solely responsible for preliminary plat and final plat approvals, and may adopt regulations or condition such approvals to mitigate problems caused by a development.” Id. at 481 & n.128. Local governments may supplement state platting laws for the public health, safety, and welfare.17 Id. at 481 & n.129.

¶43 As the majority explains, the parties do not dispute that the County accepted a statutory dedication of the easement. Majority at 670.1 agree with the majority that no evidence shows that the County, at the time of dedication, fulfilled either the requirements to accept responsibility to maintain the interceptor pipe or the requirements to decline responsibility to maintain the pipe. Majority at 677; see former SCC 24.28.040, .080 (1983). And, as discussed above, the recorded plat does not show that the City accepted the pipe as its property as part of the dedication — it accepted only a right of access. None of the evidence extrinsic to the plat that the City cites demonstrates conclusively that it intended, or did not intend, to accept responsibility for maintaining the pipe as part of the dedication.

¶44 The majority cites former SCC 24.28.040 and Crystal Ridge’s plat engineer Trepanier’s declaration to conclude that because private maintenance of the pipe “would likely be inadequate and undesirable,” the drainage facilities were dedicated to the County. Majority at 674-75. Once again, I agree with the majority’s premise — here, that the City submitted evidence showing that private maintenance would be a bad policy — but not with its conclusion that we can therefore infer a dedication to the City from a silent plat.

¶45 The majority’s analysis of this issue turns on the notion that former SCC 24.28.040 requires County mainte*686nance where private maintenance would likely be inadequate. Former SCC 24.28.040 does say that, but only as an introduction to the mandatory prerequisites to the County undertaking that responsibility. Former SCC 24.28.040, in its entirety, states,

Drainage Facilities shall be dedicated to the County where the Director determines that such facilities either are appropriately a part of a county maintained regional system or are unlikely to be adequately maintained privately.
The County shall assume the operation and maintenance responsibility of retention/detention or other drainage conveyance systems and drainage treatment/abatement facilities proposed for county maintenance in an approved detailed drainage plan after the expiration of the two (2) year maintenance period if:
(1) All of the requirements of Chapter 24.20 have been fully complied with; and
(2) The facilities have been inspected and approved by the Director after two (2) years of operation in accordance with the Procedures Manual; and
(3) All necessary easements entitling the County to properly operate and maintain the facility have been conveyed to the County and recorded with the Snohomish County Auditor; and
(4) The applicant has supplied to the County an accounting of maintenance expenses for the permanent drainage facilities up to the end of the two year period.
(5) The applicant pays the County an Operation and Maintenance assessment based on a ten (10) year prorated cost to operate and maintain the permanent drainage facilities constructed by the applicant.

CP at 687.

¶46 We apply the same rules of statutory construction “ ‘to municipal ordinances [that we apply] to state statutes.’ ” World Wide Video, Inc. v. City ofTukwila, 117 Wn.2d 382, 392, 816 P.2d 18 (1991) (quoting City of Spokane u. Fischer, 110 Wn.2d 541, 542, 754 P.2d 1241 (1988)). To interpret a statutory provision’s plain meaning, we look to *687the provision’s text, in addition to “the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.” Christensen v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007) (quoting Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-12, 43 P.3d 4 (2002)).

¶47 The majority focuses on the first paragraph of former SCC 24.28.040 to the exclusion of the rest of the provision. That first paragraph on its own, however, lacks operative force. A complete reading of SCC 24.28.040(1) through (5) shows that the prerequisites to accepting a dedication are mandatory — the County assumes that responsibility only “if” those prerequisites are met. And they all must be met — all but number five are joined with the conjunction “and.” As stated above, no evidence shows that the City met five, or even four, of the prerequisites to assuming the responsibility to operate and maintain the drainage pipe. When we read former SCC 24.28.040 in its entirety, the fact that the homeowners could not adequately maintain the interceptor pipe, on its own, does not support summary judgment in favor of the homeowners.

¶48 For the City’s third argument, that the pipe aids only private property owners, the City cites a 1977 city ordinance stating, “ ‘The City will not assume responsibility for maintenance of retention/detention facilities on private property.’ ” CP at 337, 567 (emphasis omitted). But, as the City acknowledges, the pipe is not a retention/detention facility and this ordinance does not address drainage facilities. CP at 337. Therefore, it provides no support for summary judgment in the City’s favor.

¶49 In Kiely, we explained that absent an intent to dedicate a particular property interest, we would not imply meaning from the face of the plat:

Because solid lines separate the alley from the properties, it is possible the Powers intended to convey to the public the alley as an entirely distinct property interest. . . . Yet, the plat neither assigns meaning to the solid lines, nor includes any*688thing but solid lines on the entire plat. Moreover, the Graves fail to direct the court as to how the plat lines should be interpreted. Absent such argument, we decline to imply meaning into the plat’s use of lines.

173 Wn.2d at 934-35.

¶50 Here, the face of the plat shows no intent to dedicate a property interest in the contents of the drainage easement to the County or the City for maintenance purposes. And none of the evidence presented clearly leads us to interpret the plat to impose a duty on the City to maintain the interceptor pipe. The extrinsic evidence presented relies primarily on the plat’s reference to “stormwater facilities” as opposed to “groundwater facilities.” This evidence is unconvincing because the plat’s plain language indicates that the easement’s scope does not include the duty to maintain the pipe. And the County met neither of the SCC’s requirements to accept or not to accept responsibility. Absent evidence demonstrating that the dedication included the duty to maintain the easement’s contents, this court should decline to imply such meaning. Thus, summary judgment in favor of the homeowners was improper; instead, summary judgment in the City’s favor was appropriate.

V. Conclusion

¶51 As matter of law, absent an express dedication to maintain the contents of the drainage easement — or any other action by the municipality to accept the duty to maintain the contents — we cannot impose a duty on the City to operate and maintain what is inside the drainage easement. Because the trial court should have denied the homeowners’ motion for summary judgment and granted the City’s motion for summary judgment, I would reverse the Court of Appeals. I therefore respectfully dissent.

Madsen, C.J., and Yu, J., concur with Gordon McCloud, J.

Reconsideration denied April 15, 2015.

The City also cites the County’s “1979 Drainage Procedures Manual,” which cites the SCC. CP at 329-30.

Accordingly, the City’s argument in its cross motion for summary judgment that “under the City’s current codes, the interceptor trench is not the kind of pipe that the City would take over for maintenance responsibility” is not helpful. CP at 338.

The parties do not challenge the former SCO’s requirements for plat dedication.