2014, 03-28 Release of Drainage Access Easement EmailErik Lamb
From: Bob Meinig <bmeinig@mrsc.org>
Sent: Friday, March 28, 2014 10:18 AM
To: Erik Lamb
Cc: Flannary Collins
Subject: RE: Release of drainage access easement
Erik,
I agree that the plat alteration process seems to be overly burdensome given the circumstances but also that RCW
58.17.215 — but probably not RCW 58.17.212 — appears to be on point and thus to apply. Here is what 1 wrote in 2007 in
response to an inquiry dealing with a similar issue:
Unfortunately, the state subdivision law does not define what changes within a plat qualify as a "plat alteration"
subject to the requirements of RCW 58.17.215, which include a public hearing. Talk about being
unhelpful! "Alteration" is not, of course, defined in chapter 58.17.215 - that would make life too
easy. However, two other statutes, RCW 58.17.218 and RCW 58.17.225, indicate that changes involving an
easement in a plat constitute a plat alteration. The former statute provides that "The alteration of a subdivision
is subject to RCW 64.04.175." RCW 64.04.175 states:
Easements established by a dedication are property rights that cannot be extinguished or altered
without the approval of the easement owner or owners, unless the plat or other document creating the
dedicated easement provides for an alternative method or methods to extinguish or alter the easement.
So, it seems pretty clear to me that extinguishing or altering an easement dedicated in a plat is considered a plat
alteration. Then, RCW 58.17.225 provides a specific exemption from the plat alteration process in certain
circumstances for "The granting of an easement for ingress and egress or utilities over public property that is
held as open space pursuant to a subdivision or plat." While there may be types of easement changes that
would be considered so minor as to not require the plat alteration procedure, the legislature has not specifically
exempted them, with the exception of that in RCW 58.17.225. In fact, the bill report for the legislation that
became RCW 58.17.225 states in part:
Certain alterations may be considered to have such little substantive impact on the rights of property
owners in the subdivision that they should be exempt from the approval requirements.
The bill report then goes on to describe the specific exemption embodied in the bill. That suggests to me that
alterations that "have such little substantive impact on the rights of property owners in the subdivision" still
have to be specifically exempted from the alteration process. The legislature certainly did not provide a general
exemption for minor alterations.
All these statutes together indicate, in my opinion, the intent of the legislation that changes to a dedicated
easement in a plat require processing as a plat alteration under RCW 58.17.215.
Subsequently, I came across an unpublished court of appeals decision, Carlson v. Gable, No. 62527-6-1, 2009 Wash. App.
LEXIS 1747 (July 20, 2009), which discussed the extinguishment of an easement within a (short) plat:
1118 Here, the Gables do not challenge the sufficiency of the 1989 Declaration of Easement to extinguish the
then -existing 1978 easement that benefited the property then owned by their predecessors in interest. Rather,
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the essence of their argument is that the failure of those predecessors in interest to follow the requirements of
RCW 58.17.215 voided the otherwise valid extinguishment of the easement.
1119 RCW 58.17.215 provides in relevant part:
When any person is interested in the alteration of any subdivision or the altering of any portion thereof
... that person shall submit an application to request the alteration to the legislative authority of the city,
town, or county where the subdivision is located.
The legislative body shall determine the public use and interest in the proposed alteration and may deny
or approve the application for alteration....
After approval of the alteration, the legislative body shall order the applicant to produce a revised
drawing of the approved alteration of the final plat or short plat, which after signature of the legislative
authority, shall be filed with the county auditor to become the lawful plat of the property.
1120 The statute does not define the word "alteration." Presumably, the word carries the meaning found in a
dictionary According to Webster's Third New International Dictionary, "alter" means "to cause to become
different in some particular characteristic." An "alteration" is defined as the result of altering or as "a change in
a legal instrument that changes its legal effect either in the obligation it imports or its force as legal evidence ...
¶21 We also note that RCW 58.17.225 [*9] exempts certain easements from the requirements of the above
statute:
Easement over public open space ....
The granting of an easement for ingress and egress or utilities over public property that is held as open
space pursuant to a subdivision or plat, where the open space is already used as a utility right-of-way or
corridor, where other access is not feasible, and where the granting of the easement will not impair
public access or authorize construction of physical barriers of any type, may be authorized and
exempted from the requirements of RCW 58.17.215 by the county, city, or town legislative authority
following a public hearing with notice to the property owners in the affected plat.
1122 This reference to certain types of easements that are exempt from the statutory requirements of RCW
58.17.215 indicates to us the legislative intent to generally require that those who seek to alter easements
created by short plat must apply to the relevant legislative authority for approval under the provisions of this
statute.
1123 We also note that in M.K.K.I. v. Krueger [135 Wn. App. 647, 655,145 P.3d 411 (2006), review denied, 161
Wn.2d 1012 (2007).], Division Three of this court held that the subdivision statute, chapter 58.17 RCW, applies
to private easements. There, Yakima County and M.K.K.I., the purchaser of a lot of land, brought an action for
declaratory judgment against the sellers and their successors in interest to quiet title to private easements. The
sellers had attempted to nullify easements that had been created in short plats by quit claiming the easements
to themselves. The court concluded that the plain terms of the subdivision statute make it applicable to the
extinguishment of a private easement. The court reasoned that the sellers' attempts to extinguish the
easements were ineffective because the sellers did not follow statutory and county procedures for extinguishing
the easements by amending the short plat.
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... Further, the court concluded that the county's interest in having easements established through a platting
process extinguished through a plat amendment process was consistent with the subdivision statute and county
code.
(Footnotes omitted; emphasis added.) I don't think it is of any significance that Carlson v. Gable and M.K.K.I. v. Krueger
both involved short plats; their reasoning should be equally applicable to "long" plats.
So, to make a long story short, the release of this drainage access easement probably should be processed as a plat
alteration, although a public hearing should not be necessary unless requested. I don't think of this as falling within RCW
58.17.212, as this drainage easement should not be considered as an "area designated or dedicated for public use." The
public has no right of use with respect to this easement.
Hope this is of help.
Bob
From: Erik Lamb[mailto:elamb@spokanevalley.org]
Sent: Friday, March 28, 2014 8:41 AM
To: Bob Meinig
Subject: FW: Release of drainage access easement
Hi Bob,
Per Flannery's email, I'm forwarding my inquiry to you as we are trying to resolve this in short order. We had a question
come up from a property owner regarding an access easement and how best to extinguish it — per plat alteration or
through a recorded easement extinguishment. I've copied my inquiry here:
The access easement is not necessary and the drainage easement that it was meant to serve does not exist
anymore. However, the question is whether the access easement may simple be released through simple recorded
release by the City (as holder of the easement), or must go through the formal plat alteration procedures set forth in
RCW 58.17. The access easement is shown on the plat, but is not formally "dedicated" on the plat, though the plat
language states it is "hereby provided" as described in a separate document that dedicates the access easement. The
plat alteration process seems overly burdensome given the circumstances, but RCW 58.17.212 and 58.17.215 appear to
be on point. Any guidance is appreciated.
Thanks,
Erik
Erik Lamb
Deputy City Attorney
City of Spokane Valley
11707 E Sprague Avenue Suite 103
Spokane Valley, WA 99206
Phone: 509-720-5030
Fax: 509-688-0299
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