Appeals court rules against Ebb Tide, clears way for city to complete waterfront walkway

An aerial shot showing the break in the waterfront promenade (commonly referred to as ‘the missing link’) that the city has proposed to address by building an elevated walkway.

In the latest legal action in the ongoing controversy over whether the City of Edmonds has the right under a 1983 easement to build an elevated walkway across the private beach in front of the Ebb Tide Condominiums, the Washington State Court of Appeals issued its ruling Monday denying Ebb Tide’s appeal. The ruling upholds the lower court finding that building this walkway is consistent with the terms of the existing easement.

The issue comes down to how to interpret the language of the 1983 easement agreement between the City of Edmonds and the Ebb Tide granting the city a 100-foot-long, 10-foot wide pathway across the tideflats in front of the Ebb Tide. The city maintains that the easement allows construction of the proposed walkway on this easement while the Ebb Tide maintains that it does not, and both sides have turned to the courts for a decision.

The issue has been in the courts since 2017, when the City of Edmonds asked the court for a declaratory judgment that would allow it to move forward with the project. After five years and more than 300 court filings, on Oct. 16, 2022, Snohomish County Superior Court Judge Millie M. Judge ruled in the city’s favor. This opened the way for Edmonds to move forward with construction of an elevated walkway to connect the north and south sections of the Waterfront Promenade.

These preliminary engineering drawings show the city’s plan for the proposed elevated walkway that would connect the existing sections of the Waterfront Promenade and create an uninterrupted pedestrian walkway from Marina Beach to Brackett’s Landing Park.

The Ebb Tide Homeowners’ Association immediately filed a notice of appeal to the Washington State Court of Appeals Division 1, restating its argument that the city’s proposed action is not allowed under the terms of the 1983 easement, and asking it to reverse the lower court decision.

A beach walker strolls along the easement in front of the Ebb Tide condominiums. (Photo by Larry Vogel)

“We are clearly disappointed with today’s Appeals Court decision,” said Ebb Tide Homeowners’ Association President Tom Drouin. “We are looking into our options about moving forward.”

For a complete history of the issue including links to proposed construction drawings and relevant court documents, see My Edmonds News’ earlier story here.

— By Larry Vogel

  1. Certainly, this has gone on for far too long!! Edmonds should take the most cost-effective legal maneuver to kill any potential legal action by the Ebbtide. Enough is enough…..never mind when or how such a walkway will ever be built by the City.

    1. This is a perfect example of not associating total cost or environment impact to the survey question. Had the citizens been told it will cost the taxpayers about $1mm to litigate and then another $10-$15 million to construct along with having an extreme impact of the environment, I bet citizens would have voted differently.

      More importantly, there is a usable link or sidewalk on the east side that the City could spruce up and make way-finding signs to help citizens see the path.

      So, Phil, I concur, especially now that taxpayers are paying our attorney at an hourly basis of $383 an hour.

        1. For those so supportive of the walkway, would you feel the same if the EbbTide was your home? Would you like people walking through your “front yard”?

      1. Thank you Ms. Buckschnis for your thoughts. I fear for the financial well being of the city with this administration.

      2. Thanks Diane for making these important comments.

        The Professional Services Agreement with Barker Landscape Architects executed May 3, 2017 represents that the Ebb Tide Walkway MAY be constructed by barge.

        I wonder why the City would spend years in court before knowing for sure how something will be constructed.

        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?

        The following is an excerpt from the February 1, 2000 Approved City Council Meeting Minutes:

        “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.”

    1. I am not. I don’t believe there should ever be such an obstruction between two sections of public beach.

  2. I have always had mixed feelings about the issue. One side says it is a pity that the owners have lost the beach and privacy that they paid for, not to mention views.

    On the other, it completes what should have been built years ago. I do hope they consider the owners when building the new walkway.

    I guess it was too difficult for most to walk a few feet in the sand.

    1. My biggest concern at the moment is the current design of the structure~ big and ugly, and also inconvenient. The walkway is only 4 feet wide, too narrow for wheelchairs or strollers to pass one another. Better if the City and the Ebb Tide get together and design a new and stronger seawall with a more appropriate walkway on top. Better looking for everyone and also benefits the condos confronting rising sea levels and more violent weather.

      1. I agree, Roger. Given the ruling, let’s at least make it a solution that benefits everyone and that’s aesthetically pleasing and user friendly.

      2. I agree with Roger’s take. Ebb Tide has lost, the City has prevailed, and it is time to move forward.

        Maybe, just maybe the two sides can now sit down and negotiate a compromise solution that: (1) provides for an aesthetically pleasing and fully functional walkway; (2) provides necessary structural upgrades and long term stability to the Ebb Tide’s aging seawall; and, (3) minimizes the impacts on privacy and views that the Ebb Tide folks have long believed were to be secure for years to come.

        There is still an opportunity here to find a common solution that most can find acceptable. The alternative is most likely a result that is going to please nobody.

    2. It is difficult for those of us with walking impediments. I couldn’t believe this ‘hitch’ in the continuity when I first walked along there.

  3. Here we go again. We just have to build an elevated walkway that will be virtually unusable during King tides coupled with high on shore winds. Due to it’s extreme narrow width as planned it will of necessity be a one way lane for virtually all users at all times. To build it, metal pilings will have to pounded 50 ft. down to bedrock just to “hope” to hold it in place as we experience more and more sea rise with global warming.

    We’ve already spent thousands in public funds on court fights that could have been better spent on roads, sidewalks, storm water issues and park lands restoration. This is the latest make Edmonds even grander for the tourists boondoggle. Plus it has the added great feature of costing millions more dollars to make it a reality. We may need two or three more Rick Steves’, Hazel Millers’ and Gofett families to help get this one on the books.

  4. Excellent news!! I would hope that Ebb Tide is made to pay the cost of their frivolous lawsuits.

    But the best news is that we can move forward with this much needed improvement for the city.

    1. How is it frivolous when the beach in front of the Ebb Tide is private property for which the residents must pay taxes. One resident made a good point in a previous article, “All you people who feel entitled to this private property, would you be ok if the public came into your yard an sat in it and with their dogs” (from MEN comments, April 18, 2023). It is not public property – it is included in their property taxes.

  5. Frivolous? I’m all for the walkway, but people defending their privacy, possibly the reason the chose to live there, shouldn’t be summarily dis missed as “Frivolous”. In vain, perhaps, un-neighborly maybe, but pretty darned understandable, and I for one don’t care to kick people when they loose.

    In Victory: Magnanimity
    In Peace: Good Will.”
    – Churchill

    1. Hey, what else could you expect from a City Government so full of itself that it tries to pump Puget Sound back into Puget Sound and wonders why that doesn’t work during a King Tide driven by high winds. This walkway just won’t fly (or walk more accurately) as presently conceived but that won’t stop the city from trying to make it work. The “Missing Link” is much more important than the laws of nature and common sense.

      1. Clinton,

        I assume this was meant for me. I assure you that at this point I expect nothing reasonable from the executive/administrative branch of Edmonds government. However, I am puzzled by how many commenters want to forge forward with the walkway, despite the enormous expense and environmental damage that would result.

        And why would the WDFW approve something much more invasive than the “accessible ramp to the beach” they commented on 24 years ago? From my LTE, link in my 8-23 post, below:

        “…the goal of WDFW is to achieve no-net-loss of habitat functions.”
“I question the value of the accessible ramp to the beach. Not only would direct habitat losses occur, but indirect losses could occur, as well.”
“Sand lance is a prey item for Chinook salmon,”

        “…the cost of such a proposal may be much higher than the benefits gained by having it.”

  6. The contrast between those who applaud Edmonds’ “win” and those who think building this walkway would be an environmental and financial nightmare, is striking.

    How many residents know that in order to develop Civic Field consistent with the public “visioning” process, tons of carbon were released into our air? Civic Field WAS a peat bog, which sequestered carbon and supported billions of tiny microorganisms. Construction involved lifting and draining the peat, installing drainage pipes, mixing the drained peat with hauled in soil and replacing the results over the pipes. Cost overruns, massive carbon release. Unsuccessful project, environmentally, contributing dramatically to the carbon burden impacting our climate.

    The Ebb Tide walkway project would be much worse for our environment. Have we learned nothing about our fragile Puget Sound ecosystems since the many years ago when this lawsuit was initiated?

    Phil Lovell and Councilmember Buckshnis are right. Edmonds government should end the litigation, ask forgiveness from WDFW for not listening to them in 1999 and walk away from the walkway.

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