Daniel v. Pierce County Planning

• Decision Date: 26 April 2011
• Docket Number: No. 40429–0–II.,40429–0–II.
• Citation: 250 P.3d 146,161 Wash.App. 452
• Court: Washington Court of Appeals
• Parties: Daniel and Lori FISHBURN, Appellants,v.PIERCE COUNTY PLANNING AND LAND SERVICES DEPARTMENT and Tacoma–Pierce County Health Department (a.k.a. Tacoma/Pierce County Health Department, a.k.a. Pierce County Health Department), Respondents.

161 Wash.App. 452

250 P.3d 146

Daniel and Lori FISHBURN, Appellants,

v.PIERCE COUNTY PLANNING AND LAND SERVICES DEPARTMENT and Tacoma–Pierce County Health Department (a.k.a. Tacoma/Pierce County Health Department, a.k.a. Pierce County Health Department), Respondents.

No. 40429–0–II.

Court of Appeals of Washington, Division 2.

April 26, 2011.

David M. Von Beck, Katie Jean Stuvick, Levy Von Beck & Associates PS, Seattle, WA, for Appellants.Ronald Lamar Williams, Pierce Co. Pros. Ofc., Tacoma, WA, Matthew R. Wojcik, Daniel F. Mullin, Mullin Law Group PLLC, Seattle, WA, for Respondents.VAN DEREN, J.

¶ 1 Daniel and Lori Fishburn¹ appeal the trial court's orders granting summary judgment to the Tacoma–Pierce County Health Department (TPCHD) and the Pierce County Planning and Land Services Department (PALS) and denying the Fishburns' reconsideration motion, claiming that exceptions to the public duty doctrine created duties owed specifically to them by TPCHD and PALS. The Fishburns argue that the public duty doctrine's exceptions impose a duty on TPCHD and PALS arising from the faulty site preparation, installation, and inspection of their home's septic system during its construction in 2004–05 by Euroway Homes, Inc.² They also argue that PALS is liable under the public duty doctrine for its actions when the Fishburns tried to repair the failed septic system. We affirm.

FACTS

¶ 2 In 1994, Gary and Arlene Petersen began developing land on Lake Tapps's Snag Island in Pierce County. Over several years, the Petersens increased the size and elevation of the lakefront property by dumping fill material dredged from the lake. In 2004, the Petersens sold the undeveloped property to Euroway.

¶ 3 Between 2004 and 2005, Euroway developed the Snag Island property (property) and built a 4,100 square foot house on the site. Euroway submitted an on-site septic system design application to TPCHD for the property on May 11, 2004. The application referred to soil samples logged in March 2004. TPCHD approved the application on August 26, “[b]ased on the soil samples establishing appropriate soil conditions for on-site septic.” Clerk's Papers (CP) at 25. On April 7, 2005, a septic system designer submitted an “[a]s-[b]uilt” septic system certification to TPCHD, stating:

I hereby certify that the accompanying drawing substantially depicts the on-site sewage disposal system installed at the above-referenced address. I inspected the on-site sewage disposal system prior to backfill and final cover and determined that it appeared to comply with all requirements and restrictions of the approved on-site sewage system design.

CP at 54. TPCHD accepted the as-built plans and certification on April 28.

¶ 4 On February 2, 2006, Euroway sold the property to Richard and Joell Bolen. ³ On May 23, 2007, the Fishburns purchased the property for nearly $1.6 million from the Bolens. On October 31, 2007, TPCHD sent a “first notice” to the Fishburns, informing them that “evaluation of the septic system by [TPCHD] was required prior to transfer of ownership. [TPCHD's] records do not indicate that this requirement was met,” and that “[t]he purpose of this evaluation is to ensure that the septic system is functioning properly and that it complies with all permitting requirements prior to transfer of ownership.” CP at 82. On December 4, TPCHD sent the Fishburns a “second notice” raising the issue that they purchased their property “without a Report of System Status for the septic system.” CP at 83.

¶ 5 The December 4 letter stated, “Our local Land Use Regulation requires the completion of a Report of System Status.” CP at 83. The letter also stated that the land use regulation, section 23.6, “has been in effect since January 1, 2003,” and that “[t]he Report of System Status is intended to provide assurance that the septic system is working properly and that incomplete records or unpaid fees have been resolved.” CP at 83. Additionally, it stated that the Fishburns “must apply within 30 days [of receiving the letter] for a Report of System Status, including an inspection report by a certified service company.” ⁴ CP at 83.

¶ 6 In fall 2007, Daniel noticed water accumulating on his front lawn. Daniel had over 27 years of construction industry experience and unsuccessfully attempted to solve the water drainage problem by aerating and dethatching the lawn. A few months later, Daniel discovered over two feet of standing water in the crawlspace under his house. He then attempted to install a combination of French drains and dry wells, but he was thwarted by the discovery of soil stabilizer⁵ on the property.

¶ 7 In March 2008, the Fishburns' neighbor, Dave Stinson, showed Daniel photographs taken in 2004 indicating that Euroway excavated the property below Lake Tapps's high water level. He also informed Daniel that Stinson and his wife had written to PALS ⁶ multiple times between 1994 and 2001 to express their concerns with the property's site conditions. Daniel then discovered holes in the foundation walls and deficient roof water drainage.

¶ 8 On March 13, PALS contacted Daniel about a complaint it received regarding unpermitted work being done on the property. PALS issued a notice of violation. On March 18, at Daniel's request, a PALS inspector came to the property, and Daniel showed the inspector the property's various deficiencies.

¶ 9 On March 20, PALS representatives Gordon Aleshire, David Acree, Stephen Widener, Roger Jernegan, and Lorrie Chase met Daniel at his property. Daniel described the property's history and problems and requested a conditional use permit allowing an exemption and an extension for the property's bulkhead.

¶ 10 On March 26, Aleshire emailed Daniel stating:

Dan, it appears we have reached an impasse. Lorrie Chase has given you clear guidance on what we require in the way of permits. You need to make application by the times noted in the notices of violations or file a formal appeal.

From this point on I ask that all your communications come to me. I am advising staff not to respond to any more of your e-mails unless directed by and back through me. We have made our determination of what you need to do and feel further debate of the code is not likely to be productive.

If you hire a consultant to prepare your application(s), and they request an extension to prepare, I will grant a short extension. If, as your e-mail suggests, you do not intend to apply for permits and do not file an appeal, the violations will follow their normal process.

CP at 169.

¶ 11 The following day, Daniel filed an appeal of the violation for unpermitted work on the property with PALS. Daniel stated that, while he was at the PALS office, he ran into Chuck Kleeburg, the PALS director, and that Kleeburg advised him not to file the appeal but, rather, to seek a settlement with the county prosecutors. Also, on March 27, Aleshire sent Daniel another email responding to some questions and providing additional information about the appeals process.⁷

¶ 12 On April 2, a PALS employee visited the property to assess the property's grading. The same day, a stop work order was placed on the property. On April 21, Daniel appealed the stop work order.

¶ 13 While both appeals were pending, Daniel continued his efforts to remove the water from his house's crawlspace. On June 16, engineers recommended to Daniel that the house be moved and raised. In November 2008, an employee from TPCHD visited the property and recommended that Daniel have a septic contractor inspect the septic system. On November 12, a representative from FloHawks Plumbing and Septic conducted a septic drain field dye test. FloHawks's report stated that “dyed liquid came out approx[imately] 1 minute after turning pump on.” CP at 221. A short time later, Daniel met with Vergia Seabrook, a TPCHD environmental health specialist. After their meeting, Daniel sent Seabrook an email requesting that a TPCHD staff member visit the property to complete the system inspection within 10 business days.

¶ 14 Two TPCHD employees visited the property on November 20 and conducted another dye test. TPCHD concluded the septic system was malfunctioning and instructed the Fishburns to contact a septic engineer for design and installation of an approved septic repair. The Fishburns moved out of the house on November 22, “due to the catastrophic failure of the septic system and TPCHD's failure to follow up as promised on its analysis and suggestions for corrective measures for the [p]roperty.” CP at 133. On December 2, Daniel met with TPCHD staff to determine a solution to the property's failed septic system, but the parties did not agree on a corrective measure.

¶ 15 David Lenning, a manager at the Washington State Department of Health, emailed Daniel on December 8 to inform him that TPCHD had inspected the property on December 2 and had determined that the sewage system was failing. Daniel had not granted TPCHD access to his property for an inspection on December 2. The Fishburns' property was enclosed by a chain link fence with an electric gate at the driveway.⁸ According to Daniel, the inspector gained access by tearing down a portion of the fence. By December, the engineers concluded that the drain field “ha[d] failed or was never functioning” and, because “there [wa]s no other place on the lot to construct a drain field, the house [wa]s basically uninhabitable,” as all other possible options were cost prohibitive. CP at 211. Additionally, the engineers found that the septic tank was installed below Lake Tapps's water level and would “continuously fail due to water intrusion.” CP at 211.

¶ 16 Between January 8 and March 11, 2009, TPCHD issued three septic system violation notices to the Fishburns. In May, the Pierce County Assessor–Treasurer's Office valued the property at $2,000.⁹ On June 3, TPCHD posted a “Do Not Occupy” sign at the property. CP at 136.

¶ 17 The Fishburns filed their first amended complaint...