Kenmore council approves ordinance authorizing temporary access and potential condemnation for NE 160th Street culvert replacement

The Kenmore City Council unanimously approved Ordinance 25-0634 authorizing city staff to continue negotiating temporary access easements and, if necessary, to file a condemnation petition to obtain access for data collection related to replacement of the culvert under Northeast 160 Ninth Street.

Environmental Services Director Richard Sawyer and surface water capital project manager Andrew Silva told the council the culvert has a long maintenance history, is identified by the Washington Department of Fish and Wildlife as a fish-passage barrier, and has caused recurring flooding and clogging on the roadway. Staff said the culvert was prioritized in the citys culvert study and included in the adopted capital improvement program.

Silva described the specific field work the city needs to perform on both right-of-way and private property to develop design, permit applications and cost estimates: a critical-area assessment and tree inventory, a cultural-resources survey (including limited shovel probes), a geotechnical investigation (hand auger probes and soil sampling), and land survey. Silva said those studies are required to support two permits that would be needed for construction: a Hydraulic Project Approval from the Washington Department of Fish and Wildlife and a nationwide permit from the U.S. Army Corps of Engineers.

"This data collection enables [engineers] to prepare a design that hits those targets," Silva said, adding the work would be done with hand tools, limited in scope and limited to a two-month access easement; "there'll be no construction in the two-month period, that this access easement is for data collection only."

Before the councils action, resident Andy Hollenbeck — who said he has lived at his property since 2001 and described prior building permits and a 2016 wetland reconnaissance — asked the council to deny the ordinance. Hollenbeck said the 2016 report and his own review indicate the drainage ditch is not fish-bearing and warned that reclassification and heavy work could damage nearby foundations.

Cairncross & Hempelman attorney Steve Vanderhoff, representing the property owners, told the council that the citys staff report lacks supporting evidence and that the 2016 ecologist report contradicts the staffs position. "There's not a shred of evidence that's been provided to you that would support a finding that there's any possibility of a salmon stream being found within this drainage ditch," Vanderhoff said, adding that litigation could follow if the ordinance leads to damages.

Council members questioned whether the 2016 report could be used, whether the footprint of access could be reduced, and whether the work could be limited to right-of-way. Staff replied the 2016 report supported the prior permitting context but that critical areas code and best-available-science updates since 2016 can change permitting needs. Staff said they had limited voluntary access to the site in August and that WDFW staff and consultants subsequently assessed the reach and concluded it met criteria for a fish-supporting stream.

Council members emphasized they understood the proposed ordinance concerns access to collect data, not grading or construction, and sought further engagement with property owners. After discussion, the council moved and seconded the ordinance and approved it on a unanimous roll-call vote.

Why it matters: Staff said the culvert currently constrains flow, contributes to repeated maintenance and flooding on a street that provides access to dozens of homes, and is listed as a priority for replacement in the city's CIP. The required data collection will inform design, permitting and whether and how construction might affect private property. Property owners and their counsel urged caution and said available evidence (a 2016 report) should weigh against a fish-bearing designation and against condemnation.

What the ordinance authorizes: The ordinance authorizes staff to negotiate temporary access easements (two-month duration for data collection), to accept voluntary access if offered, and if negotiations fail to file a petition for condemnation to obtain the limited access necessary for the described investigations. City staff said no grading or construction is authorized during the temporary access period.

Next steps: Staff will pursue the field investigations needed to prepare plans, specifications and permit applications and will continue to report to council on progress and any agreed conditions or compensations.