Background Information
There is a 30-foot “unopened” County right-of-way between the Northern Heights homes on the
south side of McLeod Road and Tweed Twenty. This area is not developed (unopened) and
contains numerous large trees and bushes, as well as a drainage ditch. It is unknown if the
drainage ditch was installed as part of the Tweed Twenty or the Northern Heights developments.
The purpose of the drainage ditch is to capture any stormwater surface runoff coming off the
hillside from Tweed Twenty before it enters the Northern Heights properties. This ditch was
designed to convey stormwater runoff from the west to the east. The current ditch continues east
to an undergound pipe across the south end of the lot at 1367 McLeod Road and then north
through a rock-lined ditch between the lots at 1367 and 1371 McLeod Road. A pipe conveys the
water north under McLeod Road to a rock-lined ditch located behind the homes on the east side
of Tamarack Road. A third pipe conveys the water under Roma Road to a rock-lined ditch on
the east side of the lot at 1368 Roma Road. This ditch discharges the stormwater into Toad
Creek (not our detention pond).
Unopened Right-Of-Way
Over the years there have been numerous discussions with the County regarding ownership and
responsibilities associated with this right-of-way (ROW). Before Northern Heights was
developed, there was a 60-foot ROW north of Tweed Twenty that extended straight across from
Britton Road to Sunset Drive. This ROW was laid out (i.e., platted) to be used to provide a
future road between these two roads. In 1990, the Northern Heights developers did not use this
ROW but instead shifted it north to create the current McLeod Road alignment. They took the
northern 30 feet of the platted ROW, added it to the adjacent Northern Heights lots, and created a
new ROW for McLeod Road. The southern 30 feet of the originally platted ROW remained
straight across the north Tweed Twenty development boundary.
In May 2023 we received the following information from the County’s Real Estate Specialist
regarding the County’s position on Unopened ROW:
The County’s general position for unopened ROW is that the County does not
maintain those areas. If the ROW hasn’t been opened and the County hasn’t
previously done any maintenance work, then there isn’t any County obligation to do
any maintenance work, unless the County determines it is necessary. The County
generally doesn’t own the ROW in “fee” so the underlying land is owned by the
adjoining property owners. That is why fences, gardens, and sheds are allowed in
the ROW. It is the property owners land just encumbered by a ROW. If the County
ever needs to use the ROW, the fence would need to be moved, the plants possibly
would be removed, etc. The County doesn’t own the dirt, they just have the right to
use the area for any use that is related to transportation/drainage/utility etc.
purposes.
The northern 30-feet of the original 60-foot ROW was given to the Northern Heights developers
as part of their 1990 development. Based on the County’s position stated above, the remaining
30-feet is actually owned by the Tweed Twenty property owners. In this case, the Tweed
Twenty adjacent property for the majority of the ROW, and the portion that includes the existing
ditch, Parcel # 380315 107248, is owned by a single company, Overlake Properties in North
Vancouver, BC. It is the responsibility of this property owner to maintain this ROW property.
Tree Clearing
During the January 2021 annual meeting a few homeowners on the south side of McLeod Road
stated they had experienced considerable damage and incurred considerable expense from fallen
trees that landed on their lots from the ROW and the Overlake Properties lot. The damage was
so significant that Dennis and Bonnie Lancaster at 1325 McLeod Road contacted Whatcom
County Public Works regarding the ownership of this property and the implications of removing
hazardous trees from that property. The Lancasters received the February 3, 2021 letter from Jon
Hutchings, Whatcom County Public Works Director (see Attachments) that states the
following:
“… Whatcom County Public Works contacted the listed attorney for two former
shareholders of Overlake Properties, Inc. The attorney indicates that Overlake
Properties maintains no legal interest in the real property and has no objection to
removing trees. Similarly, Whatcom County has no objection to you retaining a
licensed, insured and bonded tree service to remove trees from this property.”
The Lancasters shared their letter with the Northern Heights board and in May 2021 the board
sent this letter and an accompanying figure (see Attachments) to all the homeowners whose
lots abut this ROW. This figure shows the affected McLeod Road lots, the ROW, the abutting
Overlake Property parcel, and the abutting Tweed Twenty Lots. The figure also provides a
summary of the tree removal procedure in this areas.
Ditch Maintenance
During winters of heavy rainfall some lot owners adjacent to this ROW have stated that the ditch
was ineffective in capturing stormwater surface runoff and conveying it away from their
properties. This most recently occurred in 2006, 2009, and 2021, when some homeowners
experienced significant damage in their home’s backyard and crawl space. During the 2021 tree
removal investigation the board walked the ROW and observed the condition of the ditch and the
surrounding trees and vegetation. The ditch was observed to be in need of maintenance that
included:
● The removal of vegetation, lawn clippings, fallen trees and branches that impede the
flow of water through the ditch, and,
● The removal of deposited sediment and regrading of the ditch to remove standing water
and provide a uniform downward slope from west to east.
Current Status
After ditch and tree removal comments were made at the January 2023 annual homeowners
meeting and the February 2023 special meeting, the board contacted the County for additional
clarification on the County’s position on maintenance in the ROW. The board’s understanding is
that the association’s and the board’s responsibility is to take care of the facilities on our
property. Based on the information stated above, the ROW, and its ditch, are not in an
association common space or on the association’s property. With the realization that the County
and Overland Properties will not perform any maintenance in this ROW area, the board believes
that the individual Northern Heights property owners adjacent to this ROW should work together
to jointly maintain this ditch and ROW area for the mutual benefit of all these neighbors.