Alpental Community Club, Inc. v. SGS

• Decision Date: 12 May 2005
• Docket Number: No. 75408-0.,75408-0.
• Citation: 154 Wash.2d 313,111 P.3d 257
• Court: Washington Supreme Court
• Parties: ALPENTAL COMMUNITY CLUB, INC., a Washington nonprofit corporation; Robert Kevin Johnson and Pamela Jean Ferguson, husband and wife, Petitioners, v. SEATTLE GYMNASTICS SOCIETY, a Washington corporation; Sahalie Ski Club, Inc., a Washington corporation; S.F. Hill Lumber Co., Inc., a Washington corporation; Portac, Inc., a Washington corporation, Respondents.

111 P.3d 257

154 Wash.2d 313

ALPENTAL COMMUNITY CLUB, INC., a Washington nonprofit corporation; Robert Kevin Johnson and Pamela Jean Ferguson, husband and wife, Petitioners, v. SEATTLE GYMNASTICS SOCIETY, a Washington corporation; Sahalie Ski Club, Inc., a Washington corporation; S.F. Hill Lumber Co., Inc., a Washington corporation; Portac, Inc., a Washington corporation, Respondents.

No. 75408-0.

Supreme Court of Washington, En Banc.

May 12, 2005.

Reconsideration Denied July 8, 2005.

Frank Raymond Siderius, Charles Richard Lonergan, Siderius Lonergan & Martin LLP, Seattle, for Petitioners.

Joseph P. Lawrence, James Eric Carlson, Lawrence and Versnel PLLC, John Robert McDowall, Carney Badley Spellman, Eric Louis Freise, Jill Renee Skinner, Freise & Welchman, Seattle, for Respondents.

Ann Forest Burns, Bruce Henry Williams, Seattle, for Amicus Curiae Wash. Farm Forestry Assoc., Wash. Forest Protection Assoc.

OWENS, J.

¶ 1 In 1995, the Seattle Gymnastics Society, Inc. (SGS), clear-cut seven acres of upslope property to defray repairs on its ski lodge at Snoqualmie Pass in King County. The logging spawned avalanches onto the downhill property owned by members of the Alpental Community Club., Inc. (ACC), a residential community developed in 1967. At issue is whether ACC's nuisance suit against SGS is barred under RCW 7.48.305, which grants immunity to defendants who were engaged in statutorily defined "forest practices" before the plaintiffs "came to the nuisance." See RCW 7.48.310(5), 76.09.020(11).

¶ 2 The trial court determined that SGS was not entitled to statutory immunity since it had neither logged the property nor engaged in any other "forest practice" prior to 1967. The Court of Appeals reversed, concluding that SGS's ownership of the land constituted a "forest practice" predating ACC's arrival. Alpental Cmty. Club, Inc. v. Seattle Gymnastics Soc'y, 121 Wash.App. 491, 86 P.3d 784 (2004). We reverse the Court of Appeals.

FACTS

¶ 3 ACC was formed in 1967 to provide services and recreational facilities for its members, the owners and residents of lots in the Alpental plat, a subdivision located at Snoqualmie Pass in King County. One of ACC's responsibilities is to maintain the residential community's private, common roads. Among those roads is Ober Strasse, which serves approximately 29 lots, some of which have been improved with residences.

¶ 4 Since 1885, SGS has owned approximately 80 acres of upslope property east of the Alpental residential community. Sahalie Ski Club, Inc., leases property, including a ski lodge, from SGS and provides lodging and recreational facilities for its members. On November 22, 1994, for approximately $80,000, SGS sold Portac, Inc., the timber on approximately seven of the 40 acres above Ober Strasse.¹ Portac in turn contracted with S.F. Hill Lumber Co., Inc., to conduct the actual timber harvest. Hill harvested the timber in the fall of 1995 and performed some cleanup work the following spring. Hill "logged [the property] by the clear cut method, which removed all merchantable timber and the natural forest canopy that formerly had collected the snow and operated as a barrier to snow movement." Clerk's Papers (CP) at 304-05. Hill left "a small buffer of trees ... so as to provide protection from falling rocks or stumps during the project and for aesthetic purposes." CP at 304.

¶ 5 On March 1, 1997, two or three avalanches originated on SGS property and moved down the logged slope, over some lots in the Alpental plat, and across Ober Strasse. The avalanches damaged two Alpental residences below the harvested slope. The owners sued SGS and others in 1997, alleging nuisance, negligence, and trespass; the suit was settled in 1999.² The agreement provided for the construction of an avalanche defense system (ADS) — essentially, a series of fences, three above one lot and three above the other. The ADS provided no protection for the intervening lot owned by Robert Johnson and Pamela Ferguson, and it left Ober Strasse vulnerable.

¶ 6 After the settlement and prior to the ADS construction, ACC, Johnson, and Ferguson brought the present suit, likewise alleging negligence, trespass, and nuisance and seeking abatement of the nuisance. Following a bench trial,³ King County Superior Court Judge J. Kathleen Learned provided an oral decision in November 2001 and entered findings of fact, conclusions of law, and a judgment and decree for nuisance abatement a month later.

¶ 7 SGS appealed, contending that the trial court had erred in denying it nuisance immunity under RCW 7.48.305 and in ordering it to establish, as part of its nuisance abatement, a fund to cover possible increases in ACC's property insurance premiums. In its cross-appeal, ACC asserted that the trial court erred when it mandated a 25-year monitoring system rather than ordering the completion of the ADS. The Court of Appeals reversed the trial court in an unpublished decision and thereafter denied ACC's motion for reconsideration but granted ACC's and Washington Farm Forestry Association's motions to publish.

¶ 8 ACC petitioned for review, challenging the grant of statutory nuisance immunity to SGS and renewing the contention that the trial court should have ordered completion of the ADS rather than requiring SGS to monitor the slope for 25 years.

ISSUE

¶ 9 RCW 7.48.305 bars nuisance actions against those engaged in "forest practices" antedating the plaintiff's arrival. Was SGS's mere ownership of the seven acres of merchantable timber above ACC a "forest practice," as defined in RCW 76.09.020(11), entitling SGS to nuisance immunity?

ANALYSIS

¶ 10 Standard of Review. At issue is the interpretation of the nuisance immunity statute, RCW 7.48.305. Review is de novo. Nollette v. Christianson, 115 Wash.2d 594, 600, 800 P.2d 359 (1990).

¶ 11 Nuisance Immunity under RCW 7.48.305. The aim of the 1979 right-to-farm act, RCW 7.48.300-.310 and .905, was to protect "agricultural activities conducted on farmland ... in urbanizing areas ... from nuisance lawsuits." RCW 7.48.300. Right-to-farm statutes were enacted during the 1970s and 1980s "to address a growing concern that too much farmland was being overtaken by urban sprawl." Buchanan v. Simplot Feeders Ltd. P'ship, 134 Wash.2d 673, 677, 952 P.2d 610 (1998). In a series of amendments in 1992, the legislature expanded the right-to-farm act's protections to "forest practices in urbanizing areas." RCW 7.48.300. RCW 7.48.305 affords immunity from nuisance suits to defendants who establish that the challenged "agricultural activities" or "forest practices" met three conditions:

Notwithstanding any other provision of this chapter, agricultural activities conducted on farmland and forest practices, if consistent with good agricultural and forest practices and established prior to surrounding nonagricultural and nonforestry activities, are presumed to be reasonable and shall not be found to constitute a nuisance unless the activity has a substantial adverse effect on the public health and safety.⁴

In sum, for this statute to shield a defendant from nuisance liability, there must, as a starting point, be a "forest practice" that has been identified as a nuisance. See RCW 7.48.310(5) (applying definition of "forest practice" found in RCW 76.09.020). The "forest practice" giving rise to the nuisance is then deemed reasonable and immune from nuisance liability if it (1) is "consistent with good ... forest practices," (2) was "established prior to surrounding ... nonforestry activities," and (3) does not have "a substantial adverse effect on the public health and safety."⁵

¶ 12 The threshold question is whether the nuisance that ACC alleged meets the definition of "forest practice":

"Forest practice" means any activity conducted on or directly pertaining to forest land and relating to growing, harvesting, or processing timber, including but not limited to:

(a) Road and trail construction;

(b) Harvesting, final and intermediate;

(c) Precommercial thinning;

(d) Reforestation;

(e) Fertilization;

(f) Prevention and suppression of diseases and insects;

(g) Salvage of trees; and

(h) Brush control.

"Forest practice" shall not include preparatory work such as tree marking, surveying and road flagging, and removal or harvesting of incidental vegetation from forest lands such as berries, ferns, greenery, mistletoe, herbs, mushrooms, and other products which cannot normally be expected to result in damage to forest soils, timber, or public resources.

RCW 76.09.020(11). ACC's complaint states that the SGS "property was logged by the clear cut method, which denuded the terrain and removed the natural canopy that formerly had collected the snow and operated as a barrier to snow movement." CP at 5. ACC alleges that SGS's "conduct ... in logging and otherwise altering the vegetation and terrain" of its property spawned the March 1, 1997, avalanches and "increased the likelihood of avalanching onto the Alpental Plat." CP at 6, 7. ACC sought an abatement of the nuisance created by the clear-cutting. At trial, the "forest activity" at issue was plainly SGS's "logging activity" — specifically, its "conduct ... in logging the SGS slope in 1995." CP at 309. SGS's logging activity was a "forest practice" under RCW 76.09.020(11)(b).

¶ 13 The next step in the analysis of SGS's statutory nuisance immunity is to consider the first of the three conditions stated above — that is, whether SGS's logging activity in 1995 was "consistent with good ... forest practices." RCW 7.48.305. Under RCW 7.48.305, "forest practices ... undertaken in conformity with all applicable laws and rules ... are presumed to be good ... forest practices not adversely affecting the public health and safety." The trial court concluded that "[t]he logging activity in 1995 of defendants on the SGS slope above Ober Strasse was in compliance with the Forest Practices Permit issued by the Washington State Department of Natural...