The legal maneuvering continues regarding how the City of Edmonds may use its existing easement across the private beach owned by Ebb Tide condomiums. Attorneys for the Ebb Tide Homeowners’ Association have filed a motion with the Washington State Court of Appeals to reverse last month’s Superior Court decision that would allow the City of Edmonds to build an elevated walkway across the easement.
The dispute has been in the courts since 2017 and has so far involved more than 300 separate legal filings that include motions, declarations, rulings and orders — all aimed at asking the court to determine whether the easement will allow the proposed elevated walkway. All documents are available to the public from the Washington State Digital Archives.
The Ebb Tide is located adjacent to Railroad Avenue at 200 Beach Place between the Edmonds Waterfront Center and Olympic Beach Park. The property stretches from Railroad Avenue on the east to Puget Sound on the west. Ebb Tide has traditionally maintained the tide flats west of the building as a private beach for the exclusive use of condominium residents and owners.
The aim of the proposed $1.3 million elevated walkway is to connect the two existing sections of the Waterfront Promenade, a public walkway maintained by the City of Edmonds, thereby creating an uninterrupted public footpath linking Marina Beach Park and Brackett’s Landing Park. Closing this “missing link” was identified by citizens as a high-priority project during the public involvement phase leading up to the 2022 update of the city’s Parks, Recreation and Open Space (PROS) Plan.
Built in 1965 by Wylma and Lloyd Nelson, 12 years after the last shingle mill closed on the Edmonds waterfront, the five-story, 20-unit residential building offers its residents beachfront living with 180-degree water views. From the outset, a major attraction was exclusive use of the private beach stretching west from the building’s patio area to Puget Sound and between the building’s north and south property lines.
The Ebb Tide units were rented as apartments until 1983, when the building was sold by the original owners to Olympic Properties, Inc. and converted to condominiums.
With the demise of the waterfront mills in the 1950s, the City of Edmonds gained control and ownership of the beach areas to the north and south of the Ebb Tide’s private beach. But it would take another decade for the city to begin showing interest and taking action to designate and develop the beach and waterfront for parks and public use. (See the My Edmonds News story about 1960s-era Edmonds Parks Board member Bill Phillips and his efforts to acquire rights from the various mill interests to develop waterfront parks here).
In November 1983, the City of Edmonds and Olympic Properties signed an agreement that created a 10-foot-wide, 100-foot-long easement across the Ebb Tide’s beach, for which the city paid Olympic Properties one dollar (see original easement document here). The easement allows beach users to walk between the sections of public beach to the north and south of the Ebb Tide by crossing the tide flats. Ebb Tide has erected signage on the easement’s north and south borders, warning walkers not to trespass on its private beach, directing them instead to use the easement.
The legal battle hinges on how to interpret the language of the easement.
The easement document begins by laying out the rationale for granting the easement, specifying that this is “a right-of-way easement for public access, use and enjoyment, together with the right to construct and maintain public improvements, facilities, utilities and necessary appurtenances over, through, across and upon the following described property.”
It spells out limits on the height of anything the City of Edmonds might build on the easement. Specifically, it notes that “The Grantee [the City of Edmonds], its successors, agents, or assigns, shall construct, install or erect no structures or improvements upon or within the above described easement right of way, whereby any portion thereof extends above a horizontal plane having an elevation of 17.00 as referred to the City of Edmonds Datum (Mean Lower Low Water).”
It concludes by noting that the agreement is in perpetuity, specifying that it “shall be an appurtenant easement running with the land and shall be binding on the Grantor [Olympic Properties], its successors and assigns forever for the benefit of the Grantee [the City of Edmonds] as owner of the real property located immediately adjacent to the north and south of the subject property.”
For almost 40 years, this easement has provided the only waterfront pathway between the public beach areas to the north and south of the Ebb Tide, allowing beach walkers to legally cross the 100-foot-wide private beach on the tide flats, providing they stay within the 10-foot easement pathway.
During those years, the City of Edmonds and the Port of Edmonds have improved the waterfront to include parks, the Edmonds Marina, various sections of seawall and paved public pathways (the Waterfront Promenade) along the beachfront. As public use of these amenities increased, the city became more interested in connecting the north and south Promenade segments by building a walkway across the “missing link” in front of the Ebb Tide.
Accordingly, in 2017 the City of Edmonds developed preliminary plans for a raised walkway across the easement and filed in Superior Court for a declaratory judgement affirming the city’s right to “construct the Planned Improvements within the easement area.” (See full document with initial walkway drawings here).
This was followed by years of court filings by the Ebb Tide Homeowners’ Association and the City of Edmonds, during which lawyers for both sides invested thousands of hours presenting to the court their rationale for interpreting the easement language in their favor. The city maintains that the easement allows construction of the raised walkway, while the Homeowners Association maintains it does not – and this is the crux of the legal battle.
The City of Edmonds is represented by the Lighthouse Law Group, and according to Lighthouse attorney Jeff Taraday as of Oct. 21, 2022, the firm has put in more than 3,700 billable hours on the Ebb Tide matter. Up until now, these legal fees have been covered under a fixed annual fee contract with Lighthouse for legal services. But with the recent Edmonds City Council decision to move from a fixed annual fee to paying Lighthouse by the hour, these legal costs will be billed at Lighthouse’s hourly rate of between $266 and $354 per hour, depending on which attorney is doing the work.
In its latest request for a declaratory judgment, the city argues that the 1983 easement language clearly grants Edmonds the right to construct and maintain a walkway “over, through, across and upon” its easement. It further states that “after years of waiting, the timing is finally right for the City to complete the missing link in the Edmonds Marine Walkway by building a wheelchair-accessible walkway within the city’s easement in front of the Ebb Tide building.” It goes on to point out that “the project will further the city’s interest in complying with the federal Americans with Disabilities Act by providing an accessible walkway along the waterfront.”
The document also notes that the city has engaged consultants to create a design for “an elevated pedestrian walkway that would be elevated on steel piles” and includes plan and section views of the walkway design, updated from those included in its original 2017 filing.
In response, the Ebb Tide Homeowners Association filed a trial brief in which it maintained that “the parties to the Easement did not intend the Easement to allow an elevated walkway,” further maintaining that such a walkway “would impose burdens on the Ebb Tide beyond those contemplated in the Easement.”
The document cites numerous examples including the following:
- The design would not fit within the easement area “because railings required by the International Building Code will raise the final structure at least three feet over the 17-foot maximum height allowed by the Easement.”
- The city lacks “sufficient real property rights” outside the easement area [which remains Ebb Tide private beach] to construct and maintain the walkway, pointing out that according to the easement “construction and maintenance be effected within the Easement.” Thus, the homeowners associaton maintains that the agreement does not allow the city to use Ebb Tide land outside of the easement area to stage materials and equipment or conduct construction-associated activities.
- The plan would create an “unconstitutional taking [of the Ebb Tide’s property] due to the blockage and exclusive use, interference with Ebb Tide’s views, loss of the Ebb Tide’s privacy, and ongoing trespass worse than what the easement was intended to eliminate,” and further that since the easement did not confer exclusive rights to the city, it cannot do anything that would “exclude Ebb Tide from using any part of the Easement area.”
The document goes on to state that “since the Planned Improvements will therefore overburden the Ebb Tide beyond the express grant of the Easement and the parties’ intent, they are not in conformance with the Easement’s intended scope and are not allowed.”
After five years of legal haggling, on Oct. 16 of this year Snohomish County Superior Court Judge Millie M. Judge ruled in the city’s favor, opening the way for Edmonds to move forward with construction of an elevated walkway to connect the north and south sections of the Waterfront Promenade.
In response, on Nov. 17 attorneys for the Ebb Tide filed a notice of appeal to the Washington State Court of Appeals Division 1, ensuring that the issue will remain undecided for months and possibly years to come.
As the legal battle continues to rage, local awareness of the issue and its environmental, budgetary and social justice aspects is growing. The issue recently came up in the Edmonds City Council’s budget discussions. To allow time to further study of the issue, at a Dec. 13 council meeting Councilmember Diane Buckshnis proposed and the council agreed to delay consideration of the walkway project in the budget until 2026.
“We need to pause and really understand the financial, environmental and public safety concerns for this one small stretch of right-of-way on the west side of the Ebb Tide,” Buckshnis said. “The elevated walkway in the middle of the tide flats would be an environmental disaster not to mention extremely costly and could be a potential public safety issue with the extreme changes in our climate. The elevated walkway pushed through the property of the Ebb Tide would also be an expensive ticket item with having to purchase condemned land and then design and replace their bulkhead.
“The ‘missing link’ is not really ‘missing’ as there is an east side link [i.e., around the Ebb Tide building via Railroad Avenue],” she concluded. “So, from a financial and common-sense perspective, I say let’s look at the east side link and make that an attractive path for folks to take.”
Councilmember Dave Teitzel said he thinks that while the issue is multi-faceted and more than a bit nuanced, clear direction to the city is provided by the fact that the almost 2,000 Edmonds citizens who provided input to the city’s recently updated Parks, Recreation and Open Space (PROS) Plan overwhelmingly favor closing the “missing link.” It emerged as the second-most-favored priority behind improving existing park land.
“Our citizens are telling us that they want to walk the waterfront uninterrupted and unfettered between Sunset Avenue and the off-leash dog park,” he said. “To me, that’s why the city is pursuing this initiative. When citizens identify a particular action as a top priority, the city has an obligation to do our best to make it happen.”
Teitzel went on to point out that other challenges surrounding an elevated walkway across the beach — including environmental compliance, permitting and especially ADA access — will be critical pieces and must be factored into the walkway design.
“We need to ensure that folks with mobility challenges will be able to enjoy our waterfront as fully as those without,” he said. “Right now, the area in front of the Ebb Tide is a sandy, muddy beach that’s essentially inaccessible to anyone using a walker or wheelchair. And while detouring around the east side of the building remains an alternate route, this is contrary to what our citizens told us they want.”
Teitzel also raised the issue of a third alternative for walkers.
“Before a walkway out along the city’s easement was even considered, the city’s preference had been to work with the Ebb Tide to have a walkway along their bulkhead,” he explained. “But the Ebb Tide has not agreed to this. This left using the easement as the only option for creating an elevated walkway to enable pedestrians to cross the beach, and the question of whether a walkway can be built there will ultimately be decided by the courts.
“But it is still my hope that we can work with the Ebb Tide ownership to identify other options to address the missing link that will enable Edmonds citizens and visitors to fully enjoy walking along our beautiful beachfront.”
For Edmonds City Councilmember Vivian Olson, the fact that the walkway is a high citizen priority dictates that the city should continue the legal process to clarify what is and is not allowed under the easement.
“Having taken it this far and with the community continuing to prioritize an uninterrupted walkway at the waterfront, it would be unwise to stop short of knowing what the city’s rights are,” she said. “And given the in-process appeal, I supported the council’s action to move the timing of the project out [to 2026]. There can be no project until the property rights are definitively established.”
With both Councilmembers Buckshnis and Teitzel raising the possibility of working with the Ebb Tide to run the walkway across the bulkhead/seawall as an alternative to building the elevated walkway, it should be noted that to go this route would entail rebuilding these structures, an expensive proposition.
The current Ebb Tide seawall is more than 50 years old (see 1972 Engineering drawings) and is showing visible signs of age, including cracking in several spots, posing potential risks to the Ebb Tide and its residents. Should the seawall be overtopped by wave action, the ground units would be in danger of flooding. Should it fail, the building itself could be destabilized. While in previous discussions with the city, the Ebb Tide has rejected running the walkway across the bulkhead, some have suggested that the prospect of getting a new seawall as part of the package might reopen this as a possibility.
For Ebb Tide residents, the elevated walkway issue hits close to home, raising concerns about quality of life, loss of view, beach access and property value.
Leslie Nelson, daughter-in-law of Ebb Tide builders Wylma and Lloyd Nelson, still owns a unit in the building. While she does not presently live there – she leases her unit out — she is concerned about loss of quality of life should “this monstrosity” be built.
“Ebb Tide residents just want to protect their view and their beach,” she said.
According to Ebb Tide Homeowners’ Association Treasurer Lynne McFarlane, this opinion is shared by all other residents.
“This is our property, our ownership, our yard,” she said. “When folks bought in, it was with the understanding that the private beach was part of it. It’s an intrinsic part of our property value that would be taken away. The proposed raised concrete walkway would essentially cut us off from our beach area west of the structure.”
“Ever since the Ebb Tide has been around, we’ve been paying property taxes on this beach area all the way to the low tide line,” added Homeowners’ Association President Tom Drouin. “I find it ironic that we are using our money to defend ourselves, against an entity that is using our tax money to sue us.”
Regarding the alternative of building a walkway across their bulkhead in lieu of the proposed raised walkway across the beach easement, Drouin recalled previous failed discussions with the city on this issue.
“The city wanted to come right through the middle of our patio, not on the seawall, and would not consider alternatives,” he explained. “It was not a good-faith negotiation.”
“We need to keep our privacy,” pointed out McFarlane. “That’s why the easement was put 10 feet away. If the city wants to talk, we can listen. But so far, they’ve never come up with a good proposal.”
McFarlane also stressed that the Ebb Tide property is inspected annually by an independent firm to identify critical maintenance issues, things that need replacement, etc., and at this point there are no outstanding issues regarding the seawall.
A statement prepared by the homeowners’ association bears this out and reiterates its position that the terms of the 1983 easement do not allow the elevated walkway as proposed.
In it, the owners state that, “The City paid nothing for the subject easement which makes no mention of granting the City an additional right to construct an elevated walkway which would block the Ebb Tide residents’ views and privacy, while blocking their access to the water. What the City is proposing is not a continuation of the current walkway.” They further state that they do “not want a 10 ft. wide and 17 ft. high cement structure across the beach that looks like a pier and would destroy use of the beautiful sandy beach” and would “destroy beach habitat.” The statement goes on to say that “currently people walk on the beach for their enjoyment as access has been provided over the subject easement and they have done so over the years, but with the proposed structure which will completely encompass the easement area, this ability would be destroyed.” (Read the full statement here)
With the issue now back in the courts, it’s a safe bet that no action outside of the courtroom will be taken in the near term. Appeals court rulings are not often speedy, and it could be many months before a decision is made. In the meantime, waterfront walkers remain obliged to either walk across the tide flats on the water side of the Ebb Tide, or walk around the building via Railroad Avenue.
— By Larry Vogel