Wood v. Mason Cnty.
Decision Date | 19 March 2013 |
Docket Number | No. 42110-1-II,42110-1-II |
Parties | KYLE WOOD and TAMMY WOOD, husband and wife, Appellants, v. MASON COUNTY, Respondent, MICHAEL DERMOND and NORMA DERMOND, husband and wife; and JOHN DOE, Defendants. |
Court | Washington Court of Appeals |
QUINN-BRINTNALL, J. — Kyle and. Tammy Wood own property adjacent to Michael Dermond on a 60-foot marine bluff above Totten Inlet in Mason County. In June 2007, Dermond cleared an unattached stump, blackberry bushes, and at least one tree from the portion of his property abutting the bluff face. Approximately 18 months later, a landslide occurred at the bluff's edge during a severe rainstorm. The slide damaged a large section of the Dermond property—including the area Dermond had earlier cleared—and a seven- to ten-foot section of the adjoining Woods' property. The Woods sued Dermond and Mason County alleging, interalia, negligent stormwater management, statutory waste, trespass by water, and civil conspiracy. The trial court dismissed all of the claims against the County on summary judgment.
The Woods appeal, arguing that (1) the County is partially liable for Dermond's damage to the bluff because it failed to enforce its resource ordinances; (2) the. County committed statutory waste through trespass by water; and (3) after the landslide, the County conspired with Dermond to construct a drainage system without requiring the appropriate permits. Because the County has no liability for Dermond's brush clearing and neither committed statutory waste nor conspired with Dermond to trespass on Woods' property, we affirm.
In June 2007, Dermond began constructing a storage shed on his marine bluff property above Totten Inlet in Mason County. In preparation for this work, a crew removed trees in the area where the shed would be placed and an excavator dug up tree stumps and removed the brush and groundcover. Dermond also asked the excavator to cut down a cherry tree that was growing up from below the bank of the marine bluff and to remove blackberry bushes and an unrooted tree stump near the bluff's edge. In making the attempt, the excavator accidentally knocked the stump over the side of the marine bluff to the beach below.
Concerned over the activity at the Dermond property, adjacent property owner Tammy Wood called a neighbor and instructed her to contact the County to lodge a complaint. A week later, Mason County Planner Stephanie Pawlawski1 inspected the Dermond property in response to the complaint. Dermond was not present during the inspection but as far as Pawlawski wasable to discern, she "didn't see any work that involved a chain.saw" near the bluff's edge. Clerk's Papers (CP) at 183. Pawlawski also looked over the bluff's edge and did not see fresh debris, cut trees, or "anything that was a cause for concern." CP at 183. After discerning no code violations, Pawlawski left a letter at Dermond's house informing him of the complaint.
Dermond called Pawlawski as soon as he found the letter to ask whether there was a problem and if he needed to do anything. Pawlawski suggested that Dermond should replant the disturbed area with native ground cover, like kinnikinnick, but did not indicate that any code violations had occurred. Dermond did not tell Pawlawski that he had removed any trees from the property. Pawlawski had no further contact with Dermond after this exchange.
CP at 65. Although the slide did not immediately threaten the structural integrity of the Woods' home, an appraiser determined that the slide stigmatized the property and devalued it approximately 50 percent.
Following the slide, someone again complained to the County about the Dermond property. Mason County Planning Department Enforcement Officer Christine Clark inspected the site and decided to "reopen[] the case for vegetation removal within 50 feet of the buffer and subsequent landslide that's now occurred." CP at 191. Clark informed Dermond that he heeded to work with a county planner and a county-approved geologist to create a slope stabilization plan.
Dermond hired geologist William Halbert to design the slope stabilization plan and in February 2009, Halbert met with Dermond and Mason County Senior Planner Allan Borden at the Dermond property. Halbert concluded that to best address slope deterioration, Dermond should collect the stormwater coming from the County culvert under Bloomfield Road in a catch basin and channel it to the beach at Totten Inlet some 700 feet away. Halbert also suggested that Dermond build two additional catch basins on the property and a French drain to collect free-standing surface water and groundwater running downhill, toward the bluff. Dermond asked Borden whether permitting would be required for the drainage project; Borden "felt that if [Dermond] had his geologist attest to the proposed drainage being a suitable solution and maintaining as best as possible slope stability, that would be adequate" and that no permits would be required. CP at 149.
Before beginning construction, believing the basin would be within the County's right-of-way for Bloomfield Road, Dermond sought a permit from Mason County Public Works Department to build the catch basin below the County culvert. Mason County District Road Supervisor Larry Forsman inspected the proposed culvert site at the Dermond property and approved the "Road Access Permit" so long as the catch basin was not installed directly onto the culvert and Dermond himself maintained the catch basin.
Dermond constructed the drainage system according to Halbert's plans. During construction, Dermond rendered inoperable the outlet pipe of an unpermitted curtain drain originating on the Woods' property without telling the Woods (or the County).2
The County moved for summary judgment, arguing that the public duty doctrine barred the County from liability, there was no evidence that the County committed statutory waste, and the Woods had failed to present any factual or legal grounds for a civil conspiracy claim. In response, the Woods argued that the public duty doctrine was inapplicable to the case because managing stormwater is a propriety function or, if the public duty doctrine were applicable, the "failure to enforce" exception would create liability for the County. The Woods also argued that the "waste statute," RCW 4.24.630, was applicable because the County intentionally built the culvert below Bloomfield Road and "causing a thing or third person," water in this instance, "to enter the land" implicated the statute. CP at 266. The Woods alleged that "[t]he County is liable for Dermond's acts,"—injuring the Woods' curtain drain and Dermond building his culvert partially on the Woods' land—"because Dermond acted as the County's agent in the management of the County's stormwater." CP at 267. The...
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