Sammamish Home Owners February 2020 Update

Here is an update on lake-related news in Sammamish. 

East Lake Sammamish Trail

The city of Sammamish eventually approved King County’s trail plans and has issued all but one of the necessary permits to allow construction of the remaining, middle Segment 2B.  The final plan set is called the “95% Plans”.  This plan set is accessible on the county’s East Lake Sammamish Trail website.  Construction may start in the fall of this year.

But as reflected in a front page article in the January 15^th Seattle Times and a KING TV story the next night, matters concerning the ELST have recently taken an ugly turn.  King County has filed a lawsuit in federal court against eight property owners in Segment 2B requiring them to remove all improvements, including docks, within the former rail corridor, which is 200 feet wide in that section.  To get a feel for the heavy-handedness of this, here is an excerpt from that court filing.

“Defendants’ use of public lands without permission and without cost to enhance their homes and estates near Lake Sammamish by building and maintaining docks, boat lifts, cabanas, decks, walkways, hardscaping, fences and other structures constitutes trespass. Their encroachments and uses should be ejected and payments made for remediation and restoration of the public lands, along with the payment of back rents.”

Such a total takeover of the corridor is not what the rails-to-trails act intended, which is that the jurisdiction (the county in this case) simply acquires a surface easement for a trail.  However the 2016 Judge Pechman ruling in local federal court (see the SHO May 2019 Update) said the county acquired a railroad easement, which entitles them to all uses “incidental” to a railroad.  The county is interpreting this as the right to dictate use of the entire corridor, calling it “public land”. 

This action poses a threat to all property owners along the corridor, not just those in Segment 2B.  Our established uses of the corridor may result in King County demanding that we pay back rent and/or tear down structures like cabanas, sheds, and garages.

The county has also sent letters to around 150 property owners in Segment 2B notifying them that they must remove, at their expense, all “encroachments” within the corridor that could interfere with trail construction.  This is not altogether surprising, as the trail plans (which the city has now approved) show CG (clearing and grading) limits that in many areas extend well beyond the 18 foot trail footprint.

SHO is considering how to respond to these latest developments.  However in light of the US Supreme Court’s refusal to hear our federal case (ref. SHO May 2019 Update), further litigation is not necessarily an option. 

However, SHO has been in contact with Pacific Legal Foundation, which describes itself as “a nonprofit legal organization that defends Americans’ liberties when threatened by government overreach and abuse.”  Pacific Legal is very interested in our situation and may provide support (non-monetary).

Some of you have been contacting SHO asking what to do.  SHO cannot provide legal advice, but you may email us for a list of attorneys with appropriate background and skills.  SHO’s email address is sho5.org@gmail.com.

As a final trail-related note, in our last Update SHO indicated it would be refunding most of the balance in its treasury to its donors in proportion to the amounts contributed.  However shortly thereafter SHO received a final bill from the law firm that left only enough in the account to support ongoing expenses (website, etc.). 

Willowmoor Floodplain Restoration Project

This county project involves modifying the “transition zone” in Marymoor Park where the outflow from the lake into the Sammamish River is passively controlled.  This is of interest to lakeshore property owners because of the project’s potential impact on lake level.  Damage to docks, bulkheads, and other shoreline improvements can result from the combination of high water level and strong storms.

In recent years high water levels during rainy periods have increased.  This is due in part to curtailed maintenance of the flow channel and backwatering from Bear Creek, which further restricts lake outflow.  The creek’s contribution to Sammamish River volume is substantial and has been increasing due to development in the Bear Creek Basin. 

There is a Willowmoor Stakeholder Advisory Committee (SAC) in which SHO has been participating.  SHO (and some other lakeshore SAC members) have advocated redesign of the passive weir at the transition zone to be a dynamic weir.  A gated structure of this kind could be opened to lower lake levels in advance of forecast major rain episodes, thus increasing the capacity of the lake to buffer inflow without the lake level becoming excessively high. 

As of last summer, the Willowmoor Project had decided to hire a consultant to perform a more in-depth analysis of using a dynamic weir.  Then things became very quiet.  Neither SHO nor its allies on the SAC have been able to learn anything from the county as to the status of that analysis, or if it is, in fact, actually happening.

Because extreme water levels significantly impact some of us, SHO will continue to monitor this situation and will keep you informed.

To learn more about the Willowmoor project, go to the county’s website at:

https://www.kingcounty.gov/depts/dnrp/wlr/sections-programs/river-floodplain-section/capital-projects/willowmoor-floodplain-restoration.aspx

SHO Board of Directors

Sammamish Home Owners May Update

Here is an update on lake-related news in Sammamish. 

East Lake Sammamish Trail

The big news concerning the ELST is that the US Supreme Court denied our attorneys’ request (called a writ of certiorari) to review the lower courts’ rulings on our quiet title action.  That action sought to confirm that King County had acquired only a surface easement for a trail, not effective ownership of the rail corridor.  (The Supreme Court does not disclose the reason for its decision, it simply states “denied”.)  Our attorneys say that at this point we have no further legal recourse, and the decision of the federal district court stands.  That ruling, In essence, says the county acquired a railroad easement for the entire width of the corridor. 

This flies in the face of about 50 other rulings around the country that under the rails-to-trails act the railroad easement is extinguished and replaced by a surface easement for trail purposes only.  Our attorneys call the ruling by the Washington District Court, as sustained by the 9^th Circuit Court of Appeals, an “outlier”, and agree that this is a gross miscarriage of justice.  The government in our case has basically succeeded in stealing our land and we have absolutely no recourse. 

King County is now calling the rail corridor “public land” and cites state law that requires them to charge adjacent property owners for any uses of public land.  This is what we have to look forward to.  Naturally, SHO is extremely disappointed.  We believe the case presented to the Court of Appeals was well crafted, but that court is notoriously left-leaning and supportive of government.  The law firm that has been representing us specializes in rails-to-trails cases and has been very successful in other courts around the country.  They told SHO they “have never seen anything like this overreach”.

It is possible that this bad ruling will get discredited in another court, and such new ruling could be used to re-assert our rights.  It was earlier discredited in the Federal Court of Claims, but the Washington courts choose to ignore that.  Our attorneys say that if there should be a future ruling that we could take advantage of, they will inform us.

Finally, SHO has a modest amount of funds remaining in its treasury that were collected for the specific purpose of this litigation.  SHO will be refunding this money shortly, in proportion to the amounts contributed.

Adverse Possession Litigation

More bad news from another court.  A group of property owners next to portions of the rail corridor where King County has been claiming ownership by adverse possession challenged that claim in Washington Superior Court.  That judge recently ruled in favor of the county.  In essence, the county asserted that filing a claim of ownership with the county clerk more than ten years ago constituted “open and notorious use” – a requirement to claim adverse possession – and the judge accepted that argument.  This is despite the fact that no notice was issued to the affected property owners of that filing.  Those folks are attempting to negotiate some accommodation by the county for the fact that they have driveways and other critical portions of their residences, including in some cases even the footprints of houses, within the rail corridor that the county now “owns”.  They will likely have to buy or rent what was once their land from the county.  SHO was not involved in that litigation, but wishes those folks well.

ELST Segment 2B status

King County published its 90% Plan for this remaining, middle segment of the trail, and has applied to the city of Sammamish for the one major remaining authorization, the clearing and grading permit.   The comment period on the 90% Plan is closed.  The city is currently reviewing the permit.  Construction of this segment is anticipated to start in 2020.

Willowmoor Floodplain Restoration Project

Willowmoor is a King County project to modify the upper portion of the Sammamish River in Marymoor Park, called the “transition zone” (TZ).  This is where a passive weir built by the Corps of Engineers partially controls lake level.  SHO board members, past and present, have been attending Stakeholder Advisory Committee meetings to provide citizen input to the project, along with residents and officials from other affected cities and jurisdictions.  The project is approaching its 30% design milestone, but is not without considerable controversy.  This is of interest to Lake Sammamish lakeshore property owners because of its impact on lake water levels.

A key element of this project was to be a King County Flood Control District requirement of the 30% design (quoting):

…to reduce the frequency and duration of high lake levels… while maintaining downstream Sammamish River flood control performance…

In SHO’s view, the project has lost sight of this objective and has morphed into primarily a salmon habitat enhancement project.  The currently proposed design alternatives will not significantly affect average or peak water levels of the lake.

The consequences to shoreline property owners are twofold:

1. Continuing damage to docks and other shoreline enhancements due to the combination of storms and extreme high water.
2. Loss of property.  Increased flow restrictions in the TZ due in part to lack of maintenance have resulted in a rise in the lake’s nominal level as defined by the Ordinary High Water Mark (OHWM).  The OHWM defines the waterward edge of shoreline property from a regulatory standpoint, and where the land slopes at the water’s edge, the higher OHWM effectively reduces the owner’s usable land. 

SHO and other stakeholders are attempting to persuade the project to honor the Flood Control District’s requirement as stated above, but this has been an ongoing battle.

To learn more about the Willowmoor project, go to the county’s website at:

https://www.kingcounty.gov/depts/dnrp/wlr/sections-programs/river-floodplain-section/capital-projects/willowmoor-floodplain-restoration.aspx

SHO Board of Directors