Court clears the way to close ‘missing link’ in waterfront promenade

The spot where the sidewalk ends on the south side of the Ebb Tide condominiums. Last week’s court ruling means that the city can move forward with plans to use its existing easement to connect this with the north section of the Waterfront Promenade, creating an uninterrupted path for pedestrians. (2017 file photo by Larry Vogel. This was taken prior to construction of the Edmonds Waterfront Center, so former Edmonds Senior Center is in background.)

In a Friday afternoon ruling, Snohomish County Superior Court Judge Millie M. Judge cleared the way for the City of Edmonds to complete the Edmonds Waterfront Promenade on its existing easement across a section of private beach belonging to the Ebb Tide Condominiums, popularly known as the “missing link.”

This aerial photo shows the waterfront promenade in yellow and the “missing link” in front of the Ebb Tide condominiums.

The decision puts to bed an issue that has been on the drawing boards since 1977 and in the courts since 2017. The ruling came after numerous motions by both parties, culminating in a four-day trial that concluded last week.

By removing any legal uncertainty about how the city uses the easement, the ruling opens the way for the city to move forward to connect the north and south sections of the Waterfront Promenade. The project will create an uninterrupted pedestrian walkway from Brackett’s Landing North to Marina Beach, ensuring that all individuals, including those with mobility challenges, can safely access the Edmonds central waterfront. In addition, by crossing the ferry loading ramp and the railroad tracks at Main Street, walkers can access the Sunset Avenue walkway to Caspers Street.

This 2017 engineer’s illustration shows the 10-foot easement just west of the Ebb Tide condominiums. Note that because the easement is on the water side of the existing seawall and in the intertidal zone, a new walkway would need to be high enough to prevent flooding during high tide conditions.

“Today’s decision was crucial for our city’s plans to provide a continuous public access path along our beautiful Edmonds waterfront,” Mayor Mike Nelson said. “Residents of Edmonds, as well as visitors, will greatly benefit from this decision as we can now move ahead with building this missing piece of the Edmonds Waterfront Walkway. I would especially like to thank our City Attorney, Jeff Taraday, and his team, for their great trial work in this case.”

My Edmonds News contacted representatives of the Ebb Tide Condominiums, who declined to comment. The city has expressed its intent to continue working with the Ebb Tide as the project moves forward.

— By Larry Vogel

  1. Are you sure the design has not already been completed? The May 2, 2017 City Council Meeting Agenda Packet evidences Council was asked to approve Design Services for “Overwater Walkway @ Ebb Tide” totaling $203,510.

    I have empathy for the Ebb Tide owners. They were kind enough to grant an easement to the city long ago. Years later, they had their privacy invaded by the City’s desire to use that easement differently than it had been used for decades. The City’s desires initiated years of legal action. The Edmonds City Attorney spent 1,430 hours on this issue in 2018 alone. It will be interesting to see how many hours the Edmonds City Attorney spent on this matter since 2017. I will not be surprised if the City Attorney spent over 3,000 hours on this issue.

    As our fellow citizens were on the other side of these thousands of hours spent, I find it hard to celebrate this. I imagine others disagree and that is fine. We are all entitled to our own opinion.

    I think a lesson learned is to be extremely careful when dedicating anything to the city.

      1. I’m a little confused by this. The engineers’ illustration shows a 10-foot-wide easement yet the “project lines” extend beyond it. What were the details in the ruling? What width will actually be needed?

        I also suspect that the walkway will need to be built a little higher to accommodate the expected sea level rise per the recently completed Waterfront Study. We don’t want to build this one-million-dollar, one hundred foot long walkway twice.

  2. This photo really confused me. I finally noticed it’s from 2017 and pre-Waterfront Center. You must have a more recent image that would more completely demonstrate this section of the walkway and the value of completing the missing link.

  3. Adding that section to the walkway has always made sense to me. Ebb Tide is already privileged to have a tall building among much lower ones.

  4. I suspect all you folks doing the victory dance on this would feel differently if you were the people losing the privacy you thought you purchased with your homes. These are fellow Edmonds citizens that the city has defeated. You are celebrating the harm being feit by people who love their homes and privacy, just like you do. You might at least have the decency not to dance on the grave of their disappointment. A little empathy can go a long way. Your property might be next,the way this city operates.

    1. My family owned beach front property and title to the tidelands in front of our house for over 60 years. We never felt our privacy was being disrupted by people walking by on our beach. We did put sheets on the lower windows invade one of the kids ran out of the hall bath partially dressed but not a reason to hog the beach we were privileged to own.

  5. Good news. Most of the shore line in Vancouver, BC, is public land. Here it’s just the opposite. This is a start.

    1. A “ Start” for what……. Socialism? Have you been following the decline of Canada’s personal freedoms?

  6. Hurrah! the “missing link” is gone. Tens of thousands will benefit. Wouldn’t it have been thoughtful for Ebb Tide HOA to voluntarily allow access across their waterfront, a generous contribution to benefit an entire community. Plus sparing immense Edmonds city tax $$$. Plus facilitating waterfront access for mobility-impaired individuals. Richmond Beach solved a similar access problem on the ridge above Saltwater Park — for the following decade property owners still have had privacy and hundreds access the walkway daily. Everyone won.
    R. Hauck

  7. Hi Barbara,

    What does the height of the Ebb Tide Building have to do with this? The building was legal when built and they don’t owe the public anything because the building is tall.

    Please consider that people might still walk along the sand in front of the Ebb Tide after the walkway is constructed. If so, they will be trespassing on Ebb Tide’s private property. I believe prior habitual trespassing may have motivated the granting of the easement in 1983.

    I hope City of Edmonds government will appreciate a responsibility to help prevent future trespass on Ebb Tide’s private property, rather than leaving this burden solely to the Ebb Tide owners.

    I wonder if steps/ramps will be constructed that will allow those walking on the sand to the north and south of Ebb Tide’s private property to climb up to the walkway to legally cross the Ebb Tide’s private property within the boundaries of the easement.

    I reviewed the design documents in the May 2, 2017 Council packet. It is hard to tell how the City will promote exclusive use of the future elevated walkway to cross the Ebb Tide’s private property.

  8. What is so sad about this is that the city of Edmonds negotiated for years to resolve it rather than proceed with condemnation for the public benefit. The city offered them multiple suggested designs to protect the privacy they so wanted.
    The answer was always NO from the Ebbtide.
    The argument made by the board of the Ebbtide was to bring the walkway inside the park at the waterfront Center onto the road and then drop it back down on the other side of the Ebbtide to the beach. That was the only design they would agree with..
    Because they would not agree to any other design, we had to decide to build on our legal easement, which is offshore. They were also opposed to this as they claimed, people could see into their units. The city suggested millions of dollars in a fix that would protect their privacy while allowing the ADA accessible walkway to proceed. In retrospect, condemnation would’ve been less expensive to the taxpayers of our city.

    1. This is just a land grab, plain and simple. All of you celebrating wouldn’t be if it were your land. The public has no right to private property. This community has gone down the drain.

      1. By the way, every city and public entity in the state uses condemnation.
        The city of Edmonds did not use condemnation. That’s why they’re allowed to build ada accessible walkway on the cities, easement offshore

    2. AFM, that’s why you are no longer in Office. Condemnation is your only answer, steal there homes from them to benefit who? The like minded socialist? Socialism is “great until you spend everybody else’s money”.

      1. The city did not use condemnation was the point I was trying to make! Try doing a little research next time. might help you to understand..

  9. Love it!! Thank you to everyone how spent literally decades in making this happen. This is a great thing for our city and everyone involved.

  10. Condemnation involves a taking by the government, a taking that requires the City to compensate the private party. As the City already had an easement, I always thought there was nothing to “take”.

    As such, I thought the City Council was left to argue the scope of the 10′ wide access easement (granted in 1983) allowed construction of an elevated concrete walkway.

    Another element of Condemnation is it requires a public “need”, not just a public “want”.

    This is a fascinating topic. If condemnation was an option, I’d be interested to learn more.

    The following is taken from a Summary of Hearing Testimony dated May 23, 2019:

    Mr. Wakefield suggested that the Ebb Tide residents believe that the City’s plan to fix the “missing link” in the walkway will only cause people to trespass on the private beach belonging to the residents of the Ebb Tide. Mr. Wakefield mentioned people living at the Ebb Tide are also worried about liability issues if someone were to hurt themselves on the waterway.

    Sounds like our fellow citizens at the Ebb Tide may now have to deal with more trespass and liability concerns.

    1. HI, I am curious. I thought the Ocean front beaches belonged to no one except maybe the Federal government? Now maybe it is different on the Puget Sound? I have spent so much time on the WA and Oregon Coasts in hotels with waterfront view and Beaches and always have people walking by that if you don’t close your windows in your room they can see you easily. I am not complaining I am just really curious. SO if people walk along the waters edge in front of the Ebb Tide wouldn’t this solve the problem? I really am just curious about the actual rule with our Beaches here and on the Ocean fronts. Can you tell me Ken? I also do not have an objection to the walk way. I think it will be very nice for all. Thank you.

      1. Hi Deborah. Thanks for asking such great questions. Long story short, it is something that is controversial in Washington State. The Puget Sound Institute has an article available online titled:

        “Does the public have a right to walk across a private beach? The answer is still unresolved.”

        The article is fairly current (August, 2020) and contains much interesting information.

        Private ownership of tidelands is certainly allowed in Washington State. The Ebb Tide’s private tidelands extend out a significant distance from where the 10-foot-wide access easement is located.

        I have empathy for the Ebb Tide owners. The City of Edmonds retained a five year long Temporary Construction Easement on my fee title property against my will during a vacation process back in 2009. The City did so related to a private developer’s desire to use my land during his private construction. See Ordinance 3729.

        I worry the City will be unable to construct the elevated walkway without first acquiring more rights to use additional parts of the Ebb Tide’s private property.

        I worry the Ebb Tide owners may be exposed to the burden of more legal action initiated by the City, possibly condemnation of a Temporary Construction Easement.

        1. That you Ken Reidy for responding. I will read all you suggest. I am sorry that happened to you. I am also sorry for the owners of Ebb Tide I suspect they thought their land would be protected too. I wonder too when the RR does, and I think they will add a second track, if there won’t be more problems to come. I hate to see the city spend for things that may have to be removed and redone. The RR tracks and right of ways by these and between is a lot of space. I guess we will see what happens. Thanks Again. Deb.

        2. Thanks Deborah. I’ve researched the public’s right to walk across private tidelands a little more. There have been legal proceedings during 2022 in both Washington State and at the Federal Level.

          At the State level, Friends of Guemes Island Shorelines (FOGIS) argued that the customary use doctrine and the Public Trust Doctrine allow the public to walk below the “ordinary high water mark [OHWM]” on private tidal shoreline. That case had the potential to add clarity but I believe the case ended when the private tidelands were sold.

          At the Federal level, a Petition for a Writ of Certiorari has been submitted to the Supreme Court of the United States. The plaintiffs, three homeowners in the town of Porter, Indiana, with property along Lake Michigan, hope the U.S. Supreme Court will take up their case. The three homeowners insist their property deeds include a private beach on Lake Michigan and the loss of their ability to exclude others from “their” beach is unlawful without just compensation from the government.

          Fascinating area of law.

  11. Is it legal to build a fence to keep people off the private property east of the path?

    It seems quite possible.

  12. Hi Barbara,

    A fence to the east of the elevated walkway might be an option, but that might impact views and enjoyment of private property by Ebb Tide owners.

    I think the bigger concern is how to keep the public from trespassing on private beach to the west of the elevated walkway, and the related liability exposure.

    I think keeping the public within the BOUNDARIES of the easement is important and I hope the City will insist that is how the easement on Ebb Tide’s property is used by the public.

    I wonder if steps/ramps will be constructed that will allow those walking on the sand to the north of Ebb Tide’s private property to climb up to the walkway to legally cross the Ebb Tide’s private property within the boundaries of the easement. I had forgotten there already are stairs to the south of Ebb Tide’s private property.

    Also, the City will need to consider if it can keep part of the 10’ wide easement area open during construction or if the public will need to use the sidewalk along Railroad Avenue during construction.

  13. The following is from the February 1, 2000 approved City Council Meeting Minutes:

    Two alternatives were considered to provide a continuous link across that area via the City’s, access easement. The first alternative was to construct an elevated pedestrian footbridge above the beach sand to allow people to walk from the yard space to the south to the Senior Center. Much of that design decision was directed by the regulatory agencies because they were more amenable to an elevated structure which would not impact the environmental habitat as significantly as a bulkhead structure. This option was later rejected because the elevation of the footbridge would need to be significantly higher than the easement would have allowed.

    Another option considered after meeting with the Planning Board, was an additional bulkhead in front of the Ebb Tide Condominium to mitigate flooding that occurred at the condominium and provide the elevated pathway to provide continuous access in accordance with the Comprehensive Plan. This is a simple solution from a technical /design standpoint but was rejected due to Fish and Wildlife’s determination that this would impact existing marine habitat.

  14. Does Condemnation now await the Ebb Tide Owners?

    The Professional Services Agreement with Barker Landscape Architects executed May 3, 2017 represents the following in Exhibit A – Scope of Work:

    -Construction staging will occur landward of MHHW elevation, with the exception of the Ebb Tide Walkway, which may be constructed by barge.

    Why would the City spend 5 years in court before knowing for sure how something will be constructed?

    “may be constructed by barge”?

    The Ebb Tide’s private tidelands extend out a significant distance from where the 10-foot-wide access easement is located. If the City is unable to construct the elevated walkway by using the portions of the beach within the 10-foot-wide easement area for construction purposes, is the City going to need to acquire more rights to use additional parts of the Ebb Tide’s private property?

    Is the Ebb Tide looking at more legal action from the City, possibly condemnation of a Temporary Construction Easement?

  15. The Ebb Tide was built just shortly after my Dad; Mom and I moved here. Edmonds was total paradise compared to anywhere we had ever lived in Nebraska. Edmonds was an industrial and Seattle bedroom community that was just starting to transition to more of the tourist and festival vibe of community it has become.

    The building was visioned as an at least 10 story high rise residential facility when conceived and the citizens fought back against that concept, fearing it would become the norm. Building heights became the main political issue which has never really been resolved for sure in Edmonds. Now it’s not only building heights the developers want to raise, but they want to do away with set backs and green spaces so they can make a profit off of investment.

    It will always be the private good vs. the public good here and sometimes it’s hard to distinguish which is which. If the city want’s the Ebb Tides property, then it needs to pay the owners fair market value for what they are taking for the presumed pubic good. Generally our city leadership favors the development side of things and they are heavy handed.

  16. What has always puzzled me is whether a building height limit has ever been established along the waterfront. Since all the other buildings are lower than Ebb Tide, I presumed there is a building height limit. I think citizens need to be as knowledgeable as the people who own property along the waterfront. When I visit other areas I notice areas which have kept their beauty such as Carmel, California. Or others such as Virginia Beach where there are high rises all along the waterfront. Each area seems to have decided what kind of a city they want. We will continue to make decisions so we need to be aware of the process.
    My Edmonds News coverage of the issues helps us stay informed.

    1. Barbara, in the Edmonds Community Development Code, chapter 16.55 establishes the Commercial Waterfront zone which covers the developed area of our waterfront. In this CW zone, building heights are now limited to 30 feet.

      Roger Pence, Chair
      Edmonds Planning Board

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