Crystal Ridge Homeowners Association et al., Respondents, v. The City of Bothell, Petitioner, 182 Wash. 2d 665

Wiggins, J. ¶1 We must decide whether the city of Bothell assumed responsibility for maintaining a drainage pipe installed in Crystal Ridge, a residential subdivision in Snohomish County. Crystal Ridge was developed from two residential plats that Snohomish County approved in 1987. The area became incorporated into the city of Bothell (City) in 1992. One of the plats contained a drainage easement within a tract owned by the Crystal Ridge Homeowners Association (HOA). The plat dedicated that drainage easement to Snohomish County.

Ordinarily, approval of a plat by a county constitutes acceptance by the county of any easements dedicated therein. The City, however, argues that the disputed drainage pipe is outside the scope of the drainage easement that the City inherited from Snohomish County. ¶2 We disagree and hold 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. We therefore affirm the trial court’s grant of

summary judgment in favor of respondents. FACTS ¶3 In 1987, Snohomish County approved development of two residential plats collectively called Crystal Ridge. At the time, the area encompassing Crystal Ridge was part of unincorporated Snohomish County (County). In 1992, five years after the Crystal Ridge plats were approved, the area became incorporated into the City. ¶4 Naturally occurring wet soil conditions posed a substantial challenge to the development of Crystal Ridge. In his decision approving the Crystal Ridge plats, the County’s hearing examiner, John E.

Galt, noted three potential sources for the saturated soil in his findings: (1) “subsurface water,” or groundwater, that “has been stored in porous soil layers upslope of the site,” (2) “septic tank drainfields in the development upslope,” and (3) “leakage from storm drains or water lines.” Decision of Hr’g Exam’r at 3. To alleviate these wet soil conditions, consulting geotechnical engineer Dr.

Gordon Denby stated in his report to the hearing examiner that “an interceptor trench or trenches along the west property line would be necessary in order to intercept the groundwater flow and dewater the site so that residential construction could occur.” Id. The trench would have to be “as much as 12 feet deep in order to accomplish the desired purpose.” Id. The hearing examiner included the following conclusion in his decision: The most critical issue involved in the instant proposal is subsurface and surface drainage.

The simple reality is that this site is not your typical piece of property and that typical drainage standards would probably not adequately protect the public use and interest.... The recommendations made by [Dr. Denby] should be made mandatory conditions of project approval. Id. at 7. ¶5 To this end, the hearing examiner required the developer to install an underground pipe to intercept and divert water away from the site. The interceptor pipe was placed 11 feet underground in an area labeled “Tract 999” on the plat.

Groundwater captured by the interceptor pipe was directed to a pond on adjacent private property. ¶6 The recorded plat showed that Tract 999 would be owned by the HOA subject to an easement described as a “25' sanitary sewer (A.W.D.) and drainage easement.” The plat further provided that “drainage easements designated on this plat are hereby reserved for and granted to Sno-homish County for the right of ingress and egress for the purpose of maintaining and operating stormwater facilities.” Tract 999 contained two buried pipes located in the same trench: a sewer pipe belonging to the Alderwood Water District (the “A.W.D.” referenced in the above-quoted description of Tract 999) and the interceptor pipe. ¶7 In 2010, the HOA and several individual homeowners (respondents) sued the City, alleging that the interceptor pipe had failed and damaged several properties within the development.

Respondents moved for

summary judgment, seeking a declaratory judgment that the City, as successor to the County, was responsible for maintaining the interceptor pipe. The City filed a cross motion for

summary judgment, seeking a declaratory judgment that the HOA was responsible for the interceptor pipe. The trial court denied the City’s motion and granted

summary judgment in favor of respondents. The trial court then certified the issue to the Court of Appeals, which affirmed the trial court’s ruling in favor of respondents. Crystal Ridge Homeowners Ass’n v. City of Bothell, noted at 175 Wn. App. 1047, 2013 WL 3872223, 2013 Wash. App. LEXIS 1651. ANALYSIS ¶8 Dedications of land to public entities like the County and the City are controlled by

chapter 58.17 RCW (subdivision act), which governs plats, subdivisions, and dedications. The legislature enacted the current iteration of the subdivision act in 1969.

The act’s express purpose is, among other things: to regulate the subdivision of land and to promote the public health, safety and general welfare in accordance with standards established by the state to prevent the overcrowding of land; ... to promote effective use of land; to promote safe and convenient travel by the public on streets and highways;. .. to facilitate adequate provision for water, sewerage, parks and recreation areas, sites for schools and schoolgrounds and other public requirements; ... to provide for the expeditious review and approval of proposed subdivisions which conform to zoning standards and local plans and policies; [and] to adequately provide for the housing and commercial needs of the citizens of the state. . . .

RCW 58.17.010 (emphasis added). ¶9 The subdivision act also sets forth the requirements for a statutory dedication: “Dedication” is the deliberate appropriation of land by an owner for any general and public uses, reserving to himself or herself no other rights than such as are compatible with the full exercise and enjoyment of the public uses to which the property has been devoted.

The intention to dedicate shall be evidenced by the owner by the presentment for filing of a final plat or short plat showing the dedication thereon; and, the acceptance by the public shall be evidenced by the approval of such plat for filing by the appropriate governmental unit. RCW 58.17.020(3). ¶10 The parties do not dispute that such a statutory dedication of Tract 999’s drainage easement occurred, nor do they dispute that the County accepted this dedication.

Rather, the dispute centers on two issues: the scope of the drainage easement and the associated dedication, and whether interpreting the easement to include the interceptor pipe would run afoul of the restrictions on the use of public funds contained in

article VIII,

section 7 of the Washington Constitution. We decline to reach the latter argument because the City failed to raise it prior to filing its petition for review. ¶11 The remaining issue, whether the drainage easement includes the interceptor pipe, is essentially a matter of plat

interpretation. Specifically, the City argues that the interceptor pipe does not fall within the scope of the drainage easement and that the interceptor pipe therefore was not dedicated to the County. Consequently, the City claims neither the County nor the City ever accepted responsibility for maintaining the interceptor pipe. We disagree and hold that the County — and therefore the City — assumed responsibility for maintaining the interceptor pipe as part of Tract 999’s drainage easement. I. Plat

Interpretation ¶ 12 A “plat” is “[a] map describing a piece of land and its features, such as boundaries, lots, roads, and easements.” Black’s Law Dictionary 1337 (10th ed. 2014). In construing easements in a plat, the dedicator’s intent controls. Roeder Co. v. Burlington N., Inc. 105 Wn.2d 269, 273, 714 P.2d 1170 (1986). We determine intent from the marks and lines on the plat itself. Id. If the plat is ambiguous as to the dedicator’s intent, courts may consider surrounding circumstances, id., including extrinsic evidence. Rainier View Court Homeowners Ass’n v. Zenker, 157 Wn.

App. 710, 720, 238 P.3d 1217 (2010). Here, no ambiguity surrounds the easement in question. Moreover, even if we were to read the plat as ambiguous and consider extrinsic evidence, the City’s attempts to disclaim responsibility for the interceptor pipe would fail. A. Intrinsic Evidence ¶13 The intrinsic evidence unambiguously demonstrates that the drainage easement contained on the plat includes the interceptor pipe.

The plat shows that Tract 999 contains a “25' sanitary sewer (A.W.D.) and drainage easement.” Three of the plat’s four pages include the following text in bolded letters: “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.” This comports with the general rule that the burden of maintaining an easement lies with the holder of that easement rather than the owner of the servient property. E.g., Camus v. Culpepper, noted at 157 Wn.

App. 1046, 2010 WL 3420379, at *5, 2010 Wash. App. LEXIS 1941, at *17 (“Generally, the duty to maintain an easement is on the owner of the dominant estate.”). Because 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. ¶14 The parties in this case do not dispute that the interceptor pipe is buried in Tract 999 or that the pipe serves the purpose of drainage.

Although no pipes appear on the face of the plat, the record establishes that the drainage easement contains only two pipes: the interceptor pipe and the Alderwood Water District sanitary sewer pipe. Because the plat expressly dedicated the only other pipe within the easement — the sanitary sewer pipe — to the Alderwood Water District rather than the County, the interceptor pipe is the only drainage facility located within Tract 999 that could possibly have been dedicated to the County.

Consequently, the only reasonable construction of the “drainage easement” shown in Tract 999 on the face of the plat is that the easement includes the interceptor pipe.

The words and markings on the plat document thus establish that the dedicator intended to convey responsibility for the interceptor pipe to the County. ¶15 The City seizes on two words in the plat— “stormwater facilities” — to argue that the plat drew a distinction between “stormwater facilities” and “groundwater facilities.” According to the City, the County assumed responsibility for maintaining only “stormwater facilities,” while maintenance of “groundwater facilities” remained the duty of the HOA. We will not read the City’s proposed distinction into the Crystal Ridge plat.

Nothing in the plat indicates that the HOA reserved the right to maintain groundwater facilities, and a stormwater/groundwater distinction appears neither in the plat nor in the contemporaneous documents in the appellate record. We will not read a distinction into the plat where the record is completely devoid of evidence suggesting that the plat’s drafters contemplated the distinction. Cf. Hollis v. Garwall, Inc., 137 Wn.2d 683, 696-97, 974 P.2d 836 (1999) (rejecting a party’s

interpretation of a restrictive covenant contained in a plat because adopting the

interpretation “would require this court to redraft or add to the language of the covenant”). B. Extrinsic Evidence ¶16 Even assuming for the sake of argument, however, that the plat is ambiguous regarding whether the easement includes “groundwater” facilities, the extrinsic evidence contradicts the City’s argument. The Snohomish County Code (SCC) at the time of the dedication specifically provided that drainage facilities “shall” be dedicated to the County where private maintenance would be inadequate.

Here, the engineers’ unrefuted declarations confirm that private maintenance of such a pipe would likely be inadequate and undesirable. Indeed, Theodore Trepanier, one of the engineers who worked on the platting of Crystal Ridge, stated in his declaration: Based on my personal knowledge, during the years that Crystal Ridge Division No. 2 was built and accepted, the County wanted to have control of all the retention/detention systems and their accompanying drainage structures ....

The easements were required by the County so that it had the unquestionable ability to perform maintenance and repairs on these types of facilities.[] ¶17 Given the likely inadequacy of private maintenance, adopting the City’s narrow construction of the easement would defeat the subdivision act’s express goals of “facilitat[ing] adequate provision for water [and] sewerage” and “promoting] the public health, safety and general welfare.” RCW 58.17.010.

We therefore decline to give the scope of the easement the unduly narrow construction proposed by the City. ¶18 The City’s disclaimer of the interceptor pipe as a groundwater facility also fails for practical reasons. The record shows that the interceptor pipe was not designed to drain solely groundwater or stormwater, nor did it exist in a vacuum that permitted it to collect only “groundwater” without “stormwater.” Dr.

Denby, the supervising geotech-nical engineer who surveyed the property in 1984, testified that the purpose of the pipe was to drain both groundwater and stormwater runoff from west of the development.

The hearing examiner’s decision recognized that the “most critical issue involved in the instant proposal is subsurface and surface drainage.” Decision of Hr’g Exam’r at 7 (emphasis added). ¶19 Geotechnical reports adopted by the hearing examiner likewise recognize that the drainage issues stemmed not only from groundwater but also from infiltrating rainwater and leaking municipal storm drains from upslope properties. In making recommendations to the developer, the supervising geotechnical engineer referred to an “efficient comprehensive drainage system” to deal with wet site conditions from all sources.

Thus, regardless of whether one can conceptually distinguish “stormwater” from “groundwater,” the fact remains that the disputed interceptor pipe would be collecting both, and the City fails to cite any evidence in the record showing that any of the individuals involved in the initial development of Crystal Ridge contemplated such a distinction. C. Drainage Disclosure ¶20 The “Drainage Disclosure” dated November 9, 1987 does not alter this result.

That document requires subsequent owners of the individual lots in Crystal Ridge to be notified that “[substantial surface and subsurface drainage controls have been necessary in the development of the subject property and that special and/or extraordinary drainage controls may be necessary on individual lots.” The City urges us to read this disclosure as warning subsequent Crystal Ridge homeowners that they were responsible, as members of the HOA, for maintaining the interceptor pipe in Tract 999. This is incorrect.

The disclosure notifies individual future homeowners that they may have to take extraordinary drainage precautions on their own lots to supplement existing drainage facilities, not that they were responsible for maintaining drainage facilities that had already been placed. As with the original plat, adopting the City’s

interpretation of the disclosure document would both run counter to the document’s plain meaning and read Tract 999’s drainage easement out of the Crystal Ridge plat. D. The Snohomish County Code ¶21 The City also notes that the relevant portions of the SCC list several prerequisites that must be met before the County accepts responsibility for maintaining a drainage system and that those requirements were never met at Crystal Ridge.

But the SCC also mandates additional steps if the County is not going to maintain a drainage system, and the record contains no evidence suggesting that those requirements were met either. Thus, the fact that additional requirements appear in the SCC is not helpful in determining the issue before us. E. Conclusion on Plat

Interpretation ¶22 The County accepted, via the signatures of several of its public officials including the director of public works, that “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.” Regardless of whether we limit our inquiry to the contents of the plat or examine extrinsic evidence, the only reasonable

interpretation of the plat is that the drainage easement in Tract 999 includes the interceptor pipe. II. The Washington Constitution ¶23 The City argues that were it required to maintain the interceptor pipe, the resulting expenditure would constitute the gifting of public money to private parties in violation of

article VIII,

section 7 of the Washington Constitution. We will not reach the merits of this argument because the City failed to raise it prior to filing its petition for review. The City did not mention

article VIII,

section 7 in its cross motion for

summary judgment before the superior court. Indeed, aside from a single passing remark in its opening Court of Appeals brief, the City never once raised this issue before either the superior court or the Court of Appeals. This court generally does not consider issues, even constitutional ones, raised first in a petition for review, State v. Benn, 161 Wn.2d 256, 262 n.1, 165 P.3d 1232 (2007), and we decline to do so now. ¶24 Before it sought review with this court, the City’s only reference to

article VIII,

section 7 appeared in the

section of its Court of Appeals brief discussing whether a common-law dedication of the pipe occurred. The City argued that because it never accepted a common-law dedication of the pipe, the City never assumed responsibility for the pipe’s maintenance. The City referenced

article VIII,

section 7 not as part of an independent argument, but only as support for its assertion that because the interceptor pipe benefited private parties, the City could never have accepted a dedication of the pipe under common law. In this context, the City’s offhand remark cannot reasonably be construed as raising the issue before the Court of Appeals — and indeed, the Court of Appeals did not address

article VIII,

section 7 in its opinion. ¶25 “‘[N]aked castings into the constitutional sea are not sufficient to command judicial consideration and discussion.’ ” In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986) (quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970)). Because the City failed to raise this issue below, we decline to address it now. CONCLUSION ¶26 For the reasons stated above, we agree with the superior court and the Court of Appeals that the City is responsible for maintaining the interceptor pipe. We therefore affirm. Johnson, Owens, Fairhurst, Stephens, and González, JJ., concur.

Respondents also asserted claims of negligence, inverse condemnation, trespass, and nuisance, but none of these claims are at issue in this appeal. See Laws or 1969, 1st Ex. Sess., ch. 271. Because a statutory dedication occurred, we need not address the common-law-dedication argument presented in the City’s petition for review. Indeed, respondents never asserted common-law dedication before the trial court.

The City first set up this straw man before the Court of Appeals, which properly dismissed it by noting that “this argument rests on the City’s premise that there was no statutory dedication. . . .” Crystal Ridge, 2013 WL 3872223, at *5, 2013 Wash. App. LEXIS 1651, at *14. Here, acceptance of the Crystal Ridge plats is evidenced by the signatures that appear on the plats. Specifically, the plat for Crystal Ridge’s Division 2, which includes Tract 999, bears the signatures of the County’s director of public works, director of department of planning and community development, and county council chairman.

Each of those officials certified that they reviewed and approved the plat. The plat further bears the signature of the county auditor, certifying that the plat had been filed, and the county treasurer, certifying that property taxes had been paid. See also 25 Am. Jus. 2d Easements and Licenses § 72 (2014) (“Whether by agreement or a common-law right or duty, the owner of an easement must keep it in repair. The owner of the servient tenement ordinarily is under no duty to maintain or repair it, in the absence of an agreement imposing such a duty.” (footnotes omitted)).

The dissent asserts that the drainage easement merely granted the County a right of access. Dissent at 682. Neither party has ever advanced this argument. The City has argued that the dedication does not include the interceptor pipe at all because the pipe is not a stormwater facility; it has not advanced an alternative argument that the easement does cover the interceptor pipe, but that the easement bestowed only a limited right of access with no attendant maintenance duties.

The intent of the dedicator controls the scope of the easement, and the record contains no support for the argument that the dedicator intended (or even contemplated) that any entity other than the County would maintain the pipe. Certainly, nothing in the record suggests that the plat’s drafters intended for the HOA to assume responsibility for maintaining the pipe, as the City argues. What would be the point of granting the County a drainage easement in Tract 999 for the purpose of maintenance without expecting the County to maintain the only drainage facility inside the tract? None.

The City argued before the Court of Appeals that they had not “heard” of the interceptor pipe prior to 2008. This is untrue. The hearing examiner required the construction of the pipe in his 1984 decision, which the examiner sent not only to multiple county officials and agencies, but also to the City itself. Similarly, we reject the City’s attempts to attach significance to the pipe’s absence from the face of the recorded plat. As noted above, the plat does not depict any pipes at all in Tract 999 or in any of the other drainage and sewage easements that appear on the plat.

Regardless, the hearing examiner’s decision, combined with the plat’s clear dedication of the Tract 999 drainage easement to the County, sufficed to place the City on notice of its responsibility for maintaining the pipe. The City strongly objects to this portion of the declaration, arguing that the court cannot rely on a declaration by a third party to divine the County’s intent as to this particular project in 1987. We disagree for the reasons stated by the trial court during its oral ruling on

summary judgment: “[Trepanier] can’t testify as to the internal intent of the county, but he can certainly testify as to what was the observable policy and actions of the county.

No one’s come in and said no, we never did that, et cetera, and it stands unrebutted.” Moreover, the SCC itself contemplated a broad construction of “storm and surface water”: “Storm and Surface Water Management Facilities and Features”, as used in this chapter, shall mean any facility, improvement, development, property or interest therein, made, constructed, or acquired for purpose of controlling, or protecting life or property from, any storm, waste, flood or surplus waters wherever located within the county, and shall include but not be limited to the improvements and authority described in RCW 86.12.020 and Chapters 86.13 and 86.15 RCW.

Former SCC 25.02.080 (1983) (emphasis added). The emphasized text above illustrates the breadth of the meaning of “stormwater” in the SCC. A “surplus” is “the amount that remains when use or need is satisfied.” Webster’s Third New International Dictionary 2301 (2002).

If this provision were meant to apply only to “surface water” as opposed to “groundwater,” then it would not have to include the additional references to “storm,” “surplus,” and other waters “wherever located.” Under the SCC, then, a pipe that controls excess water qualifies as a stormwater facility wherever that water is located, including underground. The City’s

interpretation of the Drainage Disclosure also runs counter to RCW 58.17.165, which provides that dedications “shown on the face of the plat shall be considered to all intents and purposes! ]as a quitclaim deed . . . .” The developer of Crystal Ridge thus quitclaimed maintenance rights to the easement contained within Tract 999, and the Drainage Disclosure that does not purport to alter the parties’ rights and responsibilities cannot suffice to undo that quitclaim.

Specifically, the former SCC required the developer applicant to make arrangements with the property owners for assumption of maintenance within two years and the county director of the department of public works must have approved those arrangements. Former SCC 24.28.080 (1983). The Washington State Association of Municipal Attorneys (WSAMA) filed an amicus brief warning of a parade of horribles that would follow if we affirm the Court of Appeals decision.

According to WSAMA, if the City “becomes responsible for a groundwater facility over which neither it nor Snohomish County had direct knowledge and did not expressly accept — -just because it exists — that same thing could happen to any county, city or town.” Amicus Br. of WSAMA in Supp. of City at 1-2. These concerns are misplaced. The City is not responsible for maintaining the interceptor pipe “just because it exists”; they are responsible for maintaining it because that is the only reasonable

interpretation of the disputed plat. The plat clearly shows a drainage easement within Tract 999, and the record contains no indication that Tract 999 contains any drainage facility of any type aside from the interceptor pipe and the A.W.D. sanitary sewer pipe. If we were to exclude the interceptor pipe from the scope of the easement, we would effectively be reading the “drainage easement” out of the plat. Moreover, the City — as successor in interest to the County — did have knowledge of the interceptor pipe through the record before the hearing examiner. Finally, our holding is narrower than WSAMA fears.

We do not hold that plats cannot distinguish between stormwater and groundwater facilities; we simply hold that this particular plat did not make that distinction and that reading such a distinction into this plat would be inappropriate under the particular circumstances of this case. As noted above, the City’s common-law-dedication argument was itself a non sequitur; respondents never raised common-law dedication because the drainage easement satisfied the statutory dedication requirements.

The court grants in part and denies in part the City’s “Motion to Strike Portions of Respondents’ Supplemental Brief and New Document Attached as an Exhibit to Respondents’ Supplemental Brief.” The motion is granted with respect to striking exhibit A and references to it in respondents’ supplemental brief, as respondents provided no justification for failing to submit this document to the trial court so that it would be part of the record on appeal. The motion is denied in all other respects.

The City challenges several statements that it characterizes as “factual assertions that are not supported by any citation to the record.” City’s Mot. To Strike Portions of Respt’s Suppl. Br. at 2-3. But viewed in context, each of the challenged statements is either a proper inference or argument based on factual assertions that respondents did, in fact, support with citations to the record. We construe the City’s second motion to strike, challenging portions of respondents’ answer to the City’s first motion to strike, as a reply in support of its first motion to strike.

The challenged portions of the respondents’ answer played no role in our determination of the merits of this case, and we need not address it. To the extent the second motion to strike is considered pending, it is denied.