Phillips v. King County

• Decision Date: 25 August 1997
• Docket Number: No. 37372-1-I,37372-1-I
• Citation: 943 P.2d 306,87 Wn.App. 468
• Court: Washington Court of Appeals
• Parties: Lonnie C. PHILLIPS and Gloria J. Phillips, husband and wife, Appellants, v. KING COUNTY, a municipal corporation; and Lozier Homes, Inc., a Washington corporation, Respondents.

Page 468

87 Wn.App. 468

943 P.2d 306

Lonnie C. PHILLIPS and Gloria J. Phillips, husband and wife Appellants, v. KING COUNTY, a municipal corporation; and Lozier Homes Inc., a Washington corporation, Respondents.

No. 37372-1-I.

Court of Appeals of Washington Division 1.

Aug. 25, 1997.

John Richard Aramburu, Law Office of J. Richard Aramburu, Seattle, for Appellants

Cassandra Newell, King County Deputy Pros. Atty., Seattle, Lynne Michele Cohee, Hillis, Clark, Martin & Peterson, Seattle, for Respondents.

KENNEDY, Acting Chief Judge.

Lonnie and Gloria Phillips (hereinafter, Phillips) appeal the dismissal of their complaint against King County and Lozier Homes, Inc., in which

they sought injunctive relief against and damages caused by surface water runoff from the housing development adjacent to their property. Phillips alleged in the complaint that the surface water drainage system approved by the County and installed by Lozier Homes was the cause of the damage to the Phillips property. The trial court granted both defendants' motions for summary judgment dismissing Phillips' complaint. On appeal, Phillips contends that the public duty doctrine does not shield the County from liability; that the respondents should be held responsible in tort for casting water onto the Phillips land; that the inverse condemnation, trespass, elimination of access and appropriation claims were improperly dismissed; and that Phillips was not required to exhaust remedies by pursuing a writ of certiorari prior to filing the damages suit. For the reasons hereinafter stated, we affirm the trial court in part, but reverse the grant of summary judgment dismissing the negligence claim as against Lozier Homes, Inc., and reverse the grant of summary judgment dismissing the inverse condemnation and trespass claims as against the County.

FACTS

Lonnie Phillips purchased a 4.82-acre parcel of land on the East Sammamish plateau in 1980. In 1982, Phillips built a home on the property, leaving the majority of the parcel wooded. The Phillips property is bounded on the west by 236th Avenue, an unimproved county road. Phillips does not use that road to access his property, instead using a road on the opposite side of the property. However, if Phillips decides in the future to subdivide and develop his property, as would be allowable under the currently applicable zoning ordinance, it is likely that he will wish to utilize the unimproved county road.

In 1988, Lozier Homes filed an application to subdivide the 19-acre parcel west of the Phillips land into 78 residential lots to be called "Autumn Wind." The County issued a declaration of non-significance, which meant that In March 1990, Lozier submitted an engineering plan calling for a storm drainage conveyance outlet at the southeast corner of the Autumn Wind property, which would have discharged water into a drainage easement on adjacent land (not the Phillips land). However, the owner of that land refused to give Lozier the requested drainage easement. Lozier therefore prepared an alternative drainage plan, which is the subject of this lawsuit.

Lozier did not have to prepare an environmental impact statement for the project. Following public hearings, the County approved a preliminary plat conditioned on its subsequent approval of a surface water drainage plan.

The alternative drainage plan called for a combination of pipe and ditch to transport water from a detention pond to a 300-foot long flat dispersal trench purportedly designed to simulate the natural sheet flow conditions existing for the drainage basin. In addition, drains were to be constructed at locations with seepage zone areas. The drain system, known as a "sheet flow spreader," was to be located in the undeveloped county right-of-way immediately adjacent to the Phillips property. The County approved this system after concluding that it complied with the code and regulations applicable to Autumn Wind, and that it would most approximate the natural pre-development drainage conditions.

Lozier constructed the drainage system in the late summer of 1992. After the system was installed, Phillips complained to the County about the spreaders in the right-of-way and about the additional water flowing onto his property. Phillips met with County Council Member Brian Derdowski to express concerns over the project, before the Council voted on Lozier's final plat application. The Council nevertheless approved the final plat on February 1, 1993. Phillips did not seek judicial review of the final plat decision.

Upon recordation of the final plat, King County assumed ownership, maintenance and control of the Autumn Wind drainage system.

On October 21, 1993, Phillips filed a complaint alleging five causes of action against the County and Lozier: (1) illegal dispersal of drainage waters onto plaintiffs' property (in essence, a negligence claim), (2) inverse condemnation and trespass, (3) improper elimination of access to plaintiffs' property, (4) appropriation of a private ditch or drainage way, and (5) the County's failure to comply with the terms of SEPA. ¹ Both defendants moved for summary judgment dismissing Phillips's complaint.

In opposition to the summary judgment motions, Phillips submitted portions of the deposition of a hydrologist, Keith Leytham. Leytham testified that the volume of water flowing over Phillips' property had doubled and that the velocity of the flow had increased five-fold, after the construction of the Autumn Wind drainage system. Leytham testified that following any significant amount of rain, which would invariably cause Autumn Wind's detention pond to overflow, approximately 25% of the Phillips land had standing and flowing water upon it, ranging in depth from several inches to two feet. Leytham testified that the spreaders installed by Lozier did not "do anything useful" in terms of either reducing the rate or volume of outflow from the Autumn Wind property. He opined that the drainage system had been designed incorrectly, in that the state of the art of designing and constructing drainage systems had improved significantly and that fact was well known to engineers by the time this drainage plan was submitted to the County. Not only did the detention pond overflow on a regular basis, but the soil surrounding the spreader system was too impervious to allow for the percolation of any significant amount of water, so that it was inevitable that large amounts of water would pour onto the Phillips property. Leytham conceded that the drainage system installed by Lozier The appellants also submitted Lonnie Phillips's deposition in opposition to the summary judgment motions. Mr. Phillips testified that the soil on his property was much wetter than had been the case before the Autumn Wind drainage system was installed. Previously, there would be a few puddles of standing water following a heavy rain, but the puddles would rapidly disappear. Although there had been no damage to the Phillips home, landscaping, or driveway, the soil on his property had become totally saturated in the vicinity of the spreaders.

complied with the county regulations adopted in 1979, which were applicable to the Autumn Wind development. He also testified that, in his opinion, the increase in water flow over the Phillips property was the same as if no drainage system had been installed, and that unless the Autumn Wind system were redesigned, in order to develop his property Phillips would have to design and install a sophisticated drainage system of his own, to get rid of Autumn Wind's water standing upon and flowing across his property.

Phillips also presented evidence that Lozier Homes had been warned by its engineer that although the alternative drainage system it designed complied with the applicable county code, the system was in fact inadequate, and that flooding of adjacent property was likely to occur.

Phillips also presented evidence that the spreader system installed in the county road right-of-way was not designed to be paved over, and would have to be removed if the road were ever to be paved and placed into active service (for example, in the event that Phillips were to develop his property and seek access over the now-unimproved county right-of-way). Phillips also claimed to have an independent easement for access that pre-dated the grant of the right-of-way to the County for road purposes.

On April 11, 1995, the trial court granted both defendants'

motions for summary judgment, and ordered the complaint dismissed. This timely appeal followed.

DISCUSSION

In reviewing an order of summary judgment, the appellate court engages in the same inquiry as the trial court and considers the facts in the light most favorable to the nonmoving party. Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 226, 770 P.2d 182 (1989). Summary judgment will be granted if the record demonstrates that there is no genuine issue as to any material fact, Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wash.2d 1, 13, 721 P.2d 1 (1986), and that the moving party is entitled to judgment as a matter of law, CR 56(c); Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).

1. Exhaustion of Remedies.

King County argues that summary judgment was proper as to all claims against the County because Phillips failed to seek a writ of certiorari within 30 days of final plat approval, as provided by RCW 58.17.180. ² Lozier Homes makes that same argument on appeal, but below argued only that Phillips' second, third, fourth, and fifth causes of action should be dismissed as to Lozier Homes on that ground. Both respondents miss the point of former RCW 58.17.180 and the current RCW 36.70C.060. Phillips is not seeking review of the King County Council's land use decision to grant final approval of the Autumn Wind's plat. Rather, Phillips is seeking injunctive relief from the water pouring onto his land through the drainage system installed by...