Nelson v. Skamania County
| Decision Date | 17 June 2014 |
| Docket Number | 44240-0-II |
| Court | Washington Court of Appeals |
| Parties | JUSTIN M. NELSON and ALLISA S. ADAMS-NELSON, Appellants, v. SKAMANIA COUNTY, WASHINGTON, and SHANNON FRAME and JANE DOE FRAME, and the community thereof, Respondents. |
UNPUBLISHED OPINION
Justin Nelson and Allisa Adams-Nelson sued Skamania County and Shannon Frame, alleging that the County's former landfill operation on adjacent property caused debris to flow onto his property. The County successfully moved for summary judgment arguing that all of Nelson's claims were barred by applicable statutes of limitations. Nelson appeals arguing (1) the trespass from migrating debris is both continuing and abatable and the County is liable for damages until the County removes the debris, (2) if the trespass is not abatable, the County is liable under a theory of inverse condemnation for any takings that have occurred in the 10 years prior to Nelson filing suit, and (3) the trial court abused its discretion in failing to exclude evidence of a code violation Nelson received four years before filing this lawsuit.
We hold that genuine issues of material fact preclude summary judgment on Nelson's trespass claim. Accordingly, we reverse the trial court's dismissal of Nelson's trespass claim. We also hold that Nelson is precluded by the subsequent purchaser rule from recovering under inverse condemnation, and therefore, we affirm the trial court's dismissal of his inverse condemnation claim. Finally, we hold that the trial court did not abuse its discretion when, at the summary judgment stage of proceedings, it refrained from excluding evidence of Nelson's 2008 code violation. We remand for further proceedings on Nelson's trespass claim.
In 2005, Dan Huntington, a prior owner of Nelson's property filed a complaint with Skamania County alleging that:
The portion of this property adjacent to County land is directly in the path of a slide that is heavily laden with garbage. The garbage, things like old water tanks, car parts scraps of metal, etc., is coming out of an old county landfill that was converted to the Mt. Pleasant Transfer Site. The garbage is cluttering up the banks of Canyon Creek [and] interfering with efforts to sell the property.
Clerk's Papers (CP) at 135. The record does not reflect whether the County addressed Huntington's complaint.
In February 2007, Justin Nelson purchased approximately 10 acres of unimproved real property abutting Canyon Creek in Skamania County. The southern boundary of Nelson's property is downslope and contiguous to property owned by the County. From the 1950s until 1978, the County used a portion of its property as a landfill/burn dump. After ceasing landfill/dump operations in 1978, the County began operating a solid waste transfer station on the site. The County engaged in extensive clean-up efforts to remove solid waste which had been on the ground at the site in the 1980s.
Although Nelson visited the property on three occasions before purchasing it, [1] he alleges that he was unaware of the debris because inclement weather hindered his inspection efforts on two visits, and he did not know where the property boundaries were located on the third visit. Shortly after purchasing the property, Nelson commissioned a 2007 survey to confirm the property boundaries, and the surveyor told him that there was "a lot of garbage" on the property. CPat50.
In October 2008, Nelson showed the property to Washington Department of Fish & Wildlife (WDFW) employee, William Weiler. After seeing the property, Weiler relayed the following to another WDFW employee:
In November 2008, Department of Ecology Inspector Derek Rockett visited the site with Nelson and Weiler. Rockett concurred with much of Weiler's assessment and noted:
[F]irst priority at this site should be the prevention of any further solid waste/land slides, possibly through bank stabilization and/or creating a buffer between the edge of the bank and the solid waste from the landfill. An environmental assessment may need to be done and potential restoration will be intense.
CP at 140. A January 2009 minute entry from the Department of Ecology's Environmental Report Tracking System indicates that Ecology would "be following up with the county" on the issue. CP at 140. The record does not reflect whether any follow up occurred or whether the County took any action.
Yakama Nation Fisheries Habitat Biologist Greg Morris visited the site on multiple occasions between 2008 and 2012. Based on his observations, Morris concluded that "it appears that the garbage strewn throughout Mr. Nelson's property, and in the creek is of the same source and continuously migrating down the hill from its origin, the old Skamania County landfill." CP at 189.
Certified Geologist Warren Krager visited Nelson's property in 2012. He observed that "large, bulky refuse is largely exposed at and above the ground surface" and that smaller refuse is "thoroughly mixed with silt soil, basaltic gravel and organic matter from natural, long term slope transport processes such as soil creep, freeze-thaw cycles, snow slides, erosion by running water, and sliding and falling aided by gravity." CP at 171. Krager also analyzed aerial photographs from 1993 to 2011 and concluded that August 2009 photographs showed that "a light colored debris flow scar is visible from the Skamania County Transfer Station" that was not present in 2006 photographs. CP at 172.
Krager opined that "multiple landfill refuse laden debris flows from [the County's property] have been moving into the lower ravine on [Nelson's property] from at least as early as summer of 2005 and continuing through late summer of 2009." CP at 172-73. He concluded that "without massive clean up and environmental restoration . . . releases of landfill refuse onto private land and into public water courses will continue unabated for decades into the future." Cpat l73.
On March 13, 2012, Nelson filed a complaint in Clark County Superior Court, which he later amended on April 17. The amended complaint alleged causes of action against Skamania County for (1) inverse condemnation, (2) private nuisance, (3) public nuisance, (4) common law nuisance, (5) waste, (6) common law trespass, and (7) negligence. The complaint also alleged that the property's former owner, Shannon Frame, breached "his warranties of seizin and right to convey'because, at the time of conveyance, a portion of the property was possessed by Skamania County." Cp at l3.
The County moved for summary judgment, arguing that Nelson's claims were "barred by limitations, absence of standing and other dispositive defenses." CP at 30. Specifically, the County argued that (1) Nelson's inverse condemnation claim was barred by the 10-year statute of limitations because any potential taking occurred decades before; (2) Nelson lacked standing to bring an inverse condemnation claim under the subsequent purchaser rule; (3) Nelson's claims for trespass and nuisance were, in actuality, negligent damage to real property claims and should be treated as such; (4) Nelson's trespass and nuisance claims were barred by statutes of limitation; (5) the waste statute, RCW 4.24.630, was inapplicable to the facts of this case; and (6) the two-year statute of limitations governing negligent injury to real property barred Nelson's negligence claims. The County also argued that Nelson's suit was retaliatory in nature because, in September 2008, Nelson was cited for a code violation for having a campfire during a burn ban and for clearing brush within 100 feet of Canyon Creek without appropriate permits.
Nelson opposed summary judgment arguing that (1) the statute of limitations should not bar the trespass, nuisance, negligence, and inverse condemnation claims because the debris migration has been continuous in nature, and (2) the subsequent purchaser rule should not bar his inverse condemnation claim because he was unaware of the debris before buying the property and Nelson paid significantly more for the property than Frame. Nelson included affidavits/declarations from Morris and Krager, a certified copy of Krager's Engineering Geologic Reconnaissance and Observation Report, Huntington's 2005 complaint, and the information from Weiler and Rockett with his motions opposing summary judgment. Nelson also moved "under the authority of CR 7(b), ER 401, ER 402, and ER 403" to "exclude all. evidence of prior regulatory proceedings against" him. CP at 170, 191.
At the hearing on the County's summary judgment motion, the trial court "indicated [its] intention to dismiss all of plaintiffs' claims against the County other than for 'continuing . trespass'" and requested additional briefing on that claim. CP at 216. The court also denied Nelson's request to exclude...
To continue reading
Request your trial