Appeal from Superior Court of Skagit County. Docket No: 92-2-00941-5. Date filed: 01/03/95. Judge signing: Hon. Michael E. Rickert.
Authored by Ann L. Ellington. Concurring: Walter E. Webster, Ronald E. Cox.
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- Glen and Heather Moses, owners of a piece of real property across which Kenneth Renner has an easement for ingress and egress, appeal the trial court's order permitting Renner to place a utility line within the easement. Renner cross-appeals that order and, in a companion case, appeals a contempt order entered against him after the trial court determined that he violated the terms of the original order.
Glen and Heather Moses (collectively "the Moses") own a 3-acre piece of property on the southwestern shore of Lake Cavanaugh in Skagit County. Renner and his former wife own a 6.6 acre island on the lake. On August 30, 1971, they entered into a written agreement with Frank and Doris Stevens (collectively "the Stevens"), the Moses' predecessors in interest, for a 20-foot-wide non-exclusive easement for ingress and egress to allow for access from the public road to Lake Cavanaugh across the Stevens' property. *fn1 In exchange, Renner agreed to pay the Stevens $3,000. A modified version of the 1971 agreement executed in January 1978 provided that Renner was also to pay 15 percent of the real estate taxes on the Stevens' property and included the following provision:
[Stevens] agree to let [Renner] use storage, boat house, until such time as a dock and boat house can be built on said 20 feet and at the time of completion of said dock and boat house [Stevens] will reimburse [Renner] the sum of [$1,000]. The easement was recorded in Skagit County on January 6, 1978. The Stevens sold their property to Daniel and Joanna Jensen later that year.
On December 17, 1979, Renner filed a complaint to quiet title and for injunctive relief against the Jensens. Based on the agreement with the Stevens, Renner asked the court to require the Jensens to build a boathouse and dock for his benefit. At the Conclusion of trial in June 1980, the trial court found that Renner had the use of a non-exclusive 20-foot easement across the Jensens' property for ingress and egress and that he had the right to construct a road, park on the easement, and build a dock and boathouse on the easement in a manner in keeping with other docks and boathouses in the area. The court also found, however, that Renner was required to pay 15 percent of the real property taxes on the Jensens' property as provided in the modified version of the 1971 agreement. Neither party appealed.
In December 1981, Renner began to cut trees to construct a road across the easement. On December 9, 1981, he entered into a handwritten agreement with the Jensens limiting the width of the road to be constructed on the easement to 10 feet, placing it largely on the south side of the easement, and providing for the establishment of a 10-foot wide buffer between the road and the remainder of the property on which cedar trees were to be planted. In February 1985, Renner filed an action seeking a declaratory judgment to void the 1981 handwritten agreement with the Jensens. Renner also asked the court to declare that he had the right to build a ramp from the boathouse to the lake and to direct the Jensens to move a pre-existing pump house located within the easement at their own expense to facilitate completion of the roadway. The trial court found that the 1981 handwritten agreement was valid and directed Renner to pay his share of the real property taxes on the Jensens' property. The court also found that Renner was permitted to build a ramp in conjunction with the boathouse to enable him to get a boat from the boathouse to the water but found that the Jensens were not required to move the pump house. That judgment was also not appealed.
On August 5, 1988, Renner applied to the Skagit County Department of Planning and Community Development for a shoreline variance permit to allow for construction of a boathouse and boat ramp with a marine rail launch system. Following a public hearing on October 5, 1988, the hearing examiner found that the proposed development was within the shoreline setback area of Lake Cavanaugh and, therefore, a substantial development permit was required. He rejected Renner's request for a variance but granted the substantial development permit with some modifications. Both Renner's motion for reconsideration and his appeal were denied. Instead, the Skagit County Board of County Commissioners approved a modified version of the substantial development permit which provided Renner two alternatives for constructing a boathouse outside the shoreline setback area. On August 3, 1989, Renner applied for a building permit to build a boathouse approximately 205 feet from the ordinary high water mark of Lake Cavanaugh. The Skagit County Administrator rejected Renner's application pending completion of the shoreline permit process by the Department of Ecology. When that permit was granted, the Moses, who had acquired the Jensens' property in the interim, *fn2 appealed. In May 1991, the Shoreline Hearings Board affirmed the permit that had been issued subject to certain modifications.
In September 1989, soon after they acquired the property, the Moses had filed an action for specific performance of the requirement in the 1981 agreement that a cedar tree buffer be established. In that lawsuit, the Moses also sought an injunction to prevent construction of a boathouse, arguing that the original agreement created only a license to build a boathouse and that that license was revoked when the Stevens sold the property. Renner moved for summary judgment on the grounds that the suit was barred by collateral estoppel and res judicata. The court granted his motion but, in response to a motion for reconsideration by the Moses, clarified that the Moses were not precluded from litigating the issue if Renner were granted a permit to build a boathouse.
On May 11, 1992, Renner filed an action in Snohomish County Superior Court seeking a declaratory judgment allowing him to construct a boathouse. The Moses counterclaimed, requesting their own declaratory judgment denying Renner's request as violating the terms of the 1981 agreement with the Jensens. A change of venue to Skagit County was granted on August 12, 1992. The matter went to trial in August 1993. On January 3, 1995, the trial court entered amended findings of fact and Conclusions of law. The court found that Renner is permitted to construct a boathouse within the 10-foot buffer up to the boundary of the easement; that a 3-foot implied easement outside the buffer exists to allow for limited maintenance of the north side of the boathouse; that Renner is permitted to construct four parking spaces in association with the boathouse; and that Renner is permitted to lay a utility line within the easement to provide for lighting to the boathouse.
On February 7, 1995, in denying a motion for a contempt order against Renner by the Moses, the court entered an order amending its findings to clarify that Renner was not to park within 180 feet of the ordinary high water mark of Lake Cavanaugh, that he was not to park on the roots of a tree adjacent to his dock and that, because the road itself was to be kept clear, parking on the roadway was to be limited to 10 minutes for ...