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Family says city has obligation to replace washed-out culvert, plans to file lawsuit

Melinda Weer and her son, Scott, stand on one side of their driveway, part of which washed away in a storm in November. The Weers say the city is responsible for replacing the culvert, which was under their driveway.                    - Megan Stephenson / Herald
Melinda Weer and her son, Scott, stand on one side of their driveway, part of which washed away in a storm in November. The Weers say the city is responsible for replacing the culvert, which was under their driveway.
— image credit: Megan Stephenson / Herald

POULSBO — A Poulsbo resident said she plans to sue the city for breach of contract, saying the city is not fulfilling its obligation to replace a washed-out culvert that has cut off vehicle access to her property.

An electrical fire broke out in Melinda Weer’s kitchen Jan. 28 while she was home with her autistic son — already a nightmarish situation.

Poulsbo firefighters were unable to get to her house because of a 10-foot gap in her driveway. The culvert under the driveway had washed out in November.

Weer has had a dispute with the city over who is responsible for the culvert since her family moved into the home — a nearly 5-acre property on Storhoff Road, just off Noll Road — in September 2009.

As James Langdon was selling the property to the Weers, he also signed an agreement granting an easement to a property developer. The easement gave the developer access to part of the property to install a sewer line connection.

Weer says the easement states the city should have replaced the culvert by now. The agreement was signed by the developer and property owner, but the developer later deeded the easement to the city.

According to the easement, the “grantee,” or the city, “agrees to perform all reasonable and necessary work ... to facilitate construction of the sewer and related activities including but not limited to grading the new access road to be constructed, installing fill as shown, installing new water service to the residence on the property, removing the powerline to the existing wellhouse, abandoning the existing well, abandoning the existing waterline from the well installing a new sanitary sewer connection to the residence, abandoning the existing septic tank and system, and installing a new culvert.”

Mayor Becky Erickson said the city is not liable for the culvert until a sewer line is installed across the property.

Erickson said developers are responsible for installing utilities, which the city then maintains. Public Works Director Barry Loveless said it is common practice for easements to be deeded over to municipalities.

Erickson said the agreement is clear that the sewer line must be completed by the developer first.

“That’s not our culvert, that’s not our work,” Erickson said. “That would make us responsible for every driveway in the city.”

In the meantime, the Weers are cut off from their property except for a walkway made of plywood, placed across the creek, next to where their driveway used to be.

The Weers’ property is bisected by Bjorgen Creek. Melinda home-schools her sons: Scott, 11, who also swims for the Poulsbo Piranhas; and Derek, 8, who is autistic and attends a special education program a few hours a day at Vinland Elementary. Her husband, Steve, works for the Naval Facilities Engineering Command at Naval Base Kitsap.

Soon after the Weers moved in, they noticed problems with the culvert — sinkholes appeared twice, in 2009 and 2011. During the property purchase, the Weers were told of the culvert and were told it was repaired in 2006. She admits they ignored the signs of a larger problem because they felt rushed to find a home; Steve had been transferred from his work in the Air Force in Oregon.

The gravel driveway was created in 1976 and included a 2-foot culvert underneath. All the property’s utilities pass through the driveway from Noll Road, including a 7,200-volt electric power line, a telephone cable, main water line, and septic effluent pipe.

Weer said her understanding was the city would soon be installing, or facilitating the installation of, a sewer line down the driveway, replacing the culvert and resurfacing the driveway within a few months.

“When we bought the property I thought it was understood by everyone that the city would pay for the [culvert replacement] in short order,” Weer said. “Otherwise we wouldn’t have bought the property. When we were going through escrow, we believed this would happen soon.”

Then, a test of the agreement’s authority. In November 2012, a rainstorm knocked a neighbor’s tree into the retaining wall for the culvert. In a matter of hours, Weer said six feet of water rushed down where the culvert once was, and part of her driveway had washed away.

“Now we have a washed out crevasse” about 10 feet wide and five feet deep, Weer said. The power line and septic lines are exposed.“It’s God’s mercy on us we still have power and water,” she said.

Fortunately, the Weers’ home suffered no significant damage from the fire in January. It was about 7 p.m., and Melinda and Derek were home when she smelled something like “burning fish” and saw “smoke shooting out of an electric switch.”

Weer shut off the power and sent her son outside with a flashlight to warn the fire trucks of the washed out driveway. When Poulsbo Fire crews arrived, they were unable to get to the house; luckily, the fire did not spread.

Poulsbo Fire Battalion Chief Chris Morrison said the department has since made a note of the driveway problem if called to the same address.

“We run into this quite frequently, [where there is] a long distance from the structure to the water supply,” Morrison said. Crews will bring the tanker pump in as close as possible and connect the hose to the engine pump. The longest hose is 400 feet long.

Weer said she’s become friendly with Erickson, chatting with her during the mayor’s Saturday morning open office hours about the culvert and advocating for the Coffee Oasis youth center.

“I respect her as a person, I respect her passion, I’ll even put a Mayor Erickson sign in my yard during the election,” Weer said. “In this one issue, I think she’s getting some really bad advice from the people around her.”

Erickson said she has been neighborly with Weer, even offering volunteer help to fix the driveway — but the Weers must first obtain the necessary permits.

“The existing situation is not our responsibility. When a new sewer [line] is installed, absolutely that is our responsibility,” Erickson said. “We’re not installing a new culvert, until the sewer [line] comes forward.”

The main permit needed is called a Hydraulic Project Approval from the state Department of Fish and Wildlife. Gina Piazza, a DFW biologist for Kitsap County, said the agency has documented cutthroat and coho salmon in Bjorgen Creek, and a fish passage culvert is needed. However, she said she can also issue a permit for a temporary or permanent bridge access over the driveway.

“We wouldn’t want anyone to not be able to access their house,” Piazza said.

Weer said she ran into permitting problems when the second sinkhole developed in 2011. In 2009, Weer said the city Public Works Department came and filled in the hole in about an hour. The second time, she was told it was not the city’s responsibility and she would need permits to do any work on the driveway, including the Fish and Wildlife permit. Weer obtained the state permit, but said it took five months for the city’s planning department “to decide that we did not need permits to fill in the hole in our driveway in 2011.” The Weers used a private engineering company to fill in the hole.

If the Weers must wait for a developer to install a sewer line connection, they may be without a driveway for another two years. The current developer, Quadrant Homes, is working on permits to build homes on Noll Road, according to Corey Watson, Quadrant’s senior development manager.

“I don’t foresee construction of the creek crossing until the summer of 2014, possibly 2015,” he wrote.

Weer is tired of waiting. Her sons are worried and anxious. She and her husband fear the costs of replacing the culvert and fixing the driveway on their own will force them to file for bankruptcy protection. She has applied for a legal aid lawyer and said she is filing a lawsuit against the city for breach of contract.

“It’s easy to make us happy,” Weer said. “Public Works can do something — put down something so fire trucks can come down. We’ve invested everything we have.”

 

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