Veldwyk v. City of Seattle, No. 57340-3-I (Wash. App. 5/29/2007)
| Decision Date | 29 May 2007 |
| Docket Number | No. 57340-3-I.,57340-3-I. |
| Court | Washington Court of Appeals |
| Parties | JEAN VELDWYK, Appellant, v. CITY OF SEATTLE and SAFEWAY, INC., Respondents. |
Appeal from King County Superior Court. Docket No: 04-2-11258-3. Judgment or order under review. Date filed: 11/09/2005. Judge signing: Honorable John P Erlick.
Counsel for Appellant(s), Howard Mark Goodfriend, Edwards Sieh Smith & Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA, 98101-2988.
Devin T Theriot-Orr, c/o Nancy Theriot, 1517 Rosewood Ave, Louisville, KY, 40204-1549.
Counsel for Respondent(s), Marcia M. Nelson, Seattle City Attorneys Office, Po Box 94769, Seattle, WA, 98124-4769.
Patrick J. Mullaney, Foster Pepper PLLC, 1111 3rd Ave Ste 3400, Seattle, WA, 98101-3264.
Michael S Schechter, Foster Pepper PLLC, 1111 3rd Ave Ste 3400, Seattle, WA, 98101-3299.
Ramsey E Ramerman, Foster Pepper PLLC, 1111 3rd Ave Ste 3400, Seattle, WA, 98101-3299.
Jean Veldwyk's backyard became flooded with groundwater shortly after defendants installed new utility lines underneath the alley behind her yard. Veldwyk retained an engineer who deduced that the utility project caused the flooding by disturbing and rerouting the natural flow of groundwater in the area. Because the engineer plausibly explained the mechanism by which water is reaching Veldwyk's property, the case was improperly dismissed on summary judgment.
"The standard of review of an order of summary judgment is de novo, and the appellate court performs the same inquiry as the trial court." Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). "Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law."
Sheehan v. Central Puget Sound Regional Transit Authority, 155 Wn.2d 790, 797, 123 P.3d 88 (2005).
Jean Veldwyk owns commercially zoned property on South Director Street in Rainier Valley in Seattle. In 1992 she sold the western portion of her original property to the Bonney family, who developed it for use in their custom fish canning operation. Of her remaining lots, one is vacant and the other is developed with a single family home that she uses as a rental property. In back of these lots, to the south, is a short alley called Fisher Place. On the south side of Fisher Place, up on a slight bluff, is a Safeway store.
Veldwyk's property, which sits on the former lakebed of Lake Washington, has a naturally high groundwater table. Before 2002, the lawn on the southern portion of the Veldwyk property was regularly damp during the winter and early spring, but during the summer it dried out. Now, there are pools of standing water year-round in areas of her yard that used to be dry.
The change in water levels coincided with a project undertaken by the City of Seattle to install water lines along Fisher Place. At the time, the neighboring Safeway was in the process of remodeling and expanding its store.
In exchange for City approval of the expansion of the store, Safeway agreed to install a new domestic water and fire water main and a new stormwater line underneath the alley. The location for the new lines was behind Veldwyk's lot, approximately 15 feet south of her property line. Safeway placed the pipes in trenches backfilled with gravel and sand, and then buried them with the natural soil that had been excavated along Fisher Place.
Veldwyk contends the new trenches underneath Fisher Place are channeling groundwater to her property. Shortly after the installation of the new water lines, Veldwyk's neighbor Mr. Bonney began having flooding problems in his fish processing plant. Water began to enter the southeast corner of his building, the area immediately adjacent to Fisher Place and the new utility trenches.1 Bonney complained to the City. The City responded by constructing a curtain drain to intercept groundwater infiltrating Bonney's plant, but the problem was not solved. Bonney's plant sits slightly higher than Veldwyk's property, so when water flows around the southeast corner of his building it continues downhill into Veldwyk's back yard.
Veldwyk also contends the project impaired her access to the back of her lot. Only the western half of South Fisher Place is a paved road. The paved portion extends from Rainier Avenue South to where it connects with Safeway's parking lot. Before the new water lines were installed, Fisher Place continued to be open to traffic past the Safeway parking lot as an unimproved alley. It ran behind the back of Veldwyk's lot where it traced a natural depression, and then turned uphill again for a short distance until terminating in a dead end just short of 52nd Avenue South. Veldwyk used to be able to bring a vehicle along Fisher Place from Rainier Avenue South to the back of her lot which used to be level with Fisher Place. The alley is now four or five feet higher to accommodate the new stormwater line that conveys water solely by gravity from Rainier Avenue to 52nd Avenue South. To make it possible for the water to go straight downhill, Safeway raised the elevation of Fisher Place. Safeway also installed a barricade where the paved portion of Fisher Place ends, to prevent traffic from continuing eastward. Now, Veldwyk has access only to the front of her property, from South Director Street.
Veldwyk sued the City and Safeway in May of 2004. Her complaint alleged that the City had inversely condemned her property by inundating it with water and by depriving her of access. The City and Safeway jointly filed two motions for partial summary judgment on these issues. The trial court dismissed the access claim on October 3, 2005, and the water inundation claim on November 9, 2005. Veldwyk appeals.
Inverse condemnation is an action alleging a governmental taking where the plaintiff seeks to recover the value of the property that has been appropriated in fact without formal exercise of eminent domain. Phillips v. King County, 136 Wn.2d 946, 958, 968 P.2d 871 (1998). To have a taking, some governmental activity must have been the direct or proximate cause of the landowner's loss. Phillips, 136 Wn.2d at 966. For an inverse condemnation action alleging water inundation, "there may be liability on the part of a city for damages caused by water from a city street if the street acted to collect, concentrate and channel surface water onto private property in a manner different than the natural flow." Phillips, 136 Wn.2d at 959.
Like any landowner, a city may rely on the common enemy doctrine as a defense. The common enemy doctrine "provides that surface water is `an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to others.'" DiBlasi v. City of Seattle, 136 Wn.2d 865, 875, 969 P.2d 10 (1998) (quoting Cass v. Dicks, 14 Wash. 75, 78, 44 P. 113 (1896)). However, the common enemy doctrine is not absolute. An uphill landowner cannot lawfully collect water in an artificial channel, then discharge it upon adjoining lands "in quantities greater than or in a manner different from the natural flow thereof." Rothweiler v. Clark County, 108 Wn. App. 91, 99, 29 P.3d 758 (2001). This is known as the "channel-and-discharge" exception. Borden v City of Olympia, 113 Wn. App. 359, 367, 53 P.3d 1020 (2002).
Veldwyk contends that the utility trenches artificially intercept normal groundwater flow and redirect it into her property in excessive amounts and in a manner different from the natural flow, raising the water table. She supports her claim with the expert opinion of engineer Thomas Holz that her water problems are "probably related to groundwater interception in the utility trenches."2
Respondents Safeway and the City acknowledge that principles governing surface water also apply to a dispute involving groundwater. Wilkening v. State, 54 Wn.2d 692, 698, 344 P.2d 204 (1959). But they say the channel-and-discharge exception to the common enemy rule applies only if the artificially-channeled water is discharged upon the surface of the land. For this proposition they cite Borden, 113 Wn. App. at 368.
In Borden, the City facilitated the construction of a stormwater drainage project that collected water from three new subdivisions and discharged it into a wetland downhill and to the west of the Borden property. The additional water saturated the wetland and raised the water table, thereby obstructing the normal flow of surface and groundwater draining from the Borden lot. Borden, 113 Wn. App. at 366. This court concluded that these allegations stated a claim for the "due care" exception to the common enemy rule, but the "channel-and-discharge" exception did not apply because the Bordens did not claim the additional water from the new development physically invaded their property.
Borden, 113 Wn. App. at 368. In other words, the water must reach the plaintiff's land; there is no requirement, however, that it be discharged on the surface. Here, Veldwyk does contend that the groundwater artificially channeled by the utility trenches is reaching her property, and so the channel-and-discharge exception is applicable.
Safeway and the City contend Veldwyk's inverse condemnation claim was properly dismissed because it relies solely on "post hoc, ergo propter hoc" logic rather than hard facts. They say Veldwyk's case relies solely on the coincidence that the Safeway project was constructed about the time that Ms. Veldwyk noticed that her property was wetter than it had been in the past.3
Attempting to prove causation merely by showing a coincidence in time is the logical fallacy known as "post hoc, ergo propter hoc" (after this, therefore because of this). Without more, a coincidence in time between damage and the alleged cause may be judged insufficient. See Loesch v. United States, ...
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