Hearing on Mercer Island permit appeal centers on whether retaining walls sit on a disputed utility easement

Mercer Island — A hearing examiner on Feb. 27 heard competing claims over whether retaining walls, a gazebo and a greenhouse on a Mercer Island property encroach on a long‑disputed utility easement and whether the city’s building permit properly resolves that conflict.

The hearing, in Lynn v. City of Mercer Island, focused on whether a 12‑foot strip the parties call the "middle" easement (depicted on older plats and survey exhibits) still exists as an enforceable utility easement and therefore prohibits structures. Appellant Melina Lynn and her attorney said recent utility‑locate markings and photographs show that retaining walls and hardscaping intrude on that easement and should be removed. The applicant, Tammy Liu, and her counsel argued the permit was properly issued, that the driveway and utilities were relocated under recorded agreements and that the yard work was done to stabilize a steep slope.

Why it matters: Mercer Island code bars construction on water, sewer, storm‑drainage or utility easements unless the easement language or a written agreement between the parties permits structures. If a middle utility easement exists and the retaining walls lie on it, the city could require removal or a revision to the permit; if no such easement exists, the permit may stand and the applicant may finish the as‑built landscape work after any required inspections.

Appellant’s case

Appellant counsel John Yip told the examiner that the main relief sought is removal of the retaining walls and rockeries from the middle easement and an order to have the gazebo and greenhouse permanently removed from a 20‑foot front‑yard setback. "The Mercer Island city code ... says easements shall remain unobstructed. No structure shall be constructed on or over any easement for water, sewer, storm drainage, utilities ... unless permitted within the language of the easement or is mutually agreed in writing," Yip said, urging an order removing structures from the easement.

The appellant called Melina Lynn to testify. Lynn described two utility‑locate operations — one in 2021 and another in February 2026 — that marked a waterline with flags and blue paint and produced photographs and a mapping overlay she submitted as exhibit evidence. Lynn testified that a contractor hired to investigate an alleged leak also ran a locate and then photographed the applicant’s yard; she said that work confirmed the location of a water line that she believes follows the contours of the older easement shown on historic plats and survey exhibits.

Applicant and city positions

Applicant counsel Morgan Weiss and witness Tammy Liu (the property owner) said the yard work was undertaken to stabilize a steep, erosion‑prone slope and that the applicants stopped landscaping once the complaint was filed and then pursued permits. Liu testified the project started in 2022 and she later hired professionals, revised plans and worked with the city to secure a building permit. She told the examiner she did not intend to obstruct utility access and that she has allowed utility locates on several occasions, though she said she objected to using some recent photographs for litigation after she permitted locates for leak detection.

Grace Manahan, a Mercer Island code compliance planner called by the city, described the approved plan set and said the building permit authorizes relocation of the gazebo and greenhouse to meet required setbacks. She told the examiner that inspections and final review are part of the permitting process and that her office identified easement‑area retaining walls on review; Manahan said the city’s later review of new information submitted in the appeal could prompt a rereview and potentially require removal of retaining walls from the easement area.

Disputed legal and documentary points

The central dispute is documentary: appellant counsel points to a 1978 short plat, a 1979 plat amendment and a 1983 recording that the appellant and her counsel say together show a 12‑foot easement for ingress, egress and utilities in the middle of the parcel. Applicant counsel disputes that a utility easement exists across the garden area and argues that later recorded agreements (a 2011 relocation agreement and a 2017 driveway relocation record) and the city’s permit record establish the driveway and utilities along the southern boundary. Both sides discussed a 2021 King County superior court order that arose from prior litigation between the parties; they disagree on whether that order definitively fixed the existence or location of a utility easement through the middle of the site.

Evidence and procedure

Much of the hearing turned on surveys, map layers and contractor locate photos. Appellant witnesses described blue paint and flagging placed by a locate contractor; applicant witnesses and counsel repeatedly objected to hearsay testimony about what surveyors or contractors ‘‘said’’ and the examiner sustained several hearsay objections and excluded untimely exhibits introduced during cross‑examination.

What’s next

Hearing Examiner Phil Alberts closed the hearing and said he would take the record under advisement. He told the parties he expects to issue a written decision in the coming weeks. The decision will determine whether the city’s permit must be remanded for modification (for example, to require removal of retaining walls from an established easement) or whether the permit stands as issued and the applicant’s work may be completed subject to normal inspections.

Reporting notes: Quotations and factual attributions come from on‑the‑record testimony and counsel arguments during the Feb. 27, 2026 administrative hearing before Hearing Examiner Phil Alberts. The article keeps to statements made in the hearing record and does not infer factual claims beyond the admitted exhibits and witness testimony.