Wood v. Mason County

Decision Date19 March 2013
Docket Number42110-1-II
CourtCourt of Appeals of Washington
PartiesKYLE WOOD and TAMMY WOOD, husband and wife, Appellants, v. MASON COUNTY, Respondent, MICHAEL DERMOND and NORMA DERMOND, husband and wife; and JOHN DOE, Defendants.

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.

No. 42110-1-II

Court of Appeals of Washington, Division 2

March 19, 2013


UNPUBLISHED OPINION

QUINN-BRINTNALL, JUDGE.

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 bluffs 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, inter alia, 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.

FACTS

Background

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 bluffs 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 Pawlawski[1] inspected the Dermond property in response to the complaint. Dermond was not present during the inspection but as far as Pawlawski was able to discern, she "didn't see any work that involved a chain saw" near the bluffs edge. Clerk's Papers (CP) at 183. Pawlawski also looked over the bluffs 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.

Approximately 18 months later, a landslide occurred at the bluffs edge, damaging 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. Over five inches of rain had fallen in the area during the 24-hour period preceding the slide-the type of storm that only occurs, on average, once every 50 to 100 years-and snow on the ground contributed to the unnaturally high water concentrations in the soil. The area of the bluff damaged from the slide was far from the Dermond and Wood homes that the homes would not be affected for "the next 30 to 60 years" (CP at 65) and that according to the Woods' geologic expert,

[f]rom a geologic standpoint - and we're not - I'm not getting into the economics of the slide and the sale price because that's not my area of expertise - no it's nothing that is going to adversely affect [the Woods'] property significantly into the future

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 freestanding 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] has 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]Procedure

On August 12, 2009, the Woods sued Dermond and the County, alleging that (1) Dermond negligently excavated the area above the bluff, without permits, and this activity contributed to the 2009 landslide, which adversely affected their property value; (2) the County failed to adequately respond to the complaint made to the County about the clearing; (3) the County failed to supervise Dermond's replanting of native vegetation on the bluff and incorrectly concluded that no code violations had occurred; and (4).the County's Bloomfield Road culvert negligently delivers "unregulated" stormwater onto the Dermond property and that water contributed to the landslide. In conclusion, the Woods' complaint stated,

The mass wasting event and property damage ... are the consequence of Dermond's . . . negligent and illegal land clearing actions, Dermond's . . . negligent failure to take any steps to control stormwater in the excavated area Mason County's failure to enforce, and Mason County's stormwater discharge, has caused property damage, including loss of soil and vegetation constituting waste and injury to land and to shrubs and trees under RCW 4.24.630 and has damaged Wood

CP at 7.

In June 2010, the Woods amended their complaint. In addition to the claims above, the Woods alleged that

Mason County and Dermond also acted in concert to accommodate Dermond's clearly illegal clearing and grading in a shoreline area, and critical area, and to accommodate the County's illegal dumping of water from its roadway impervious surface at the top of both private parties' property. . .. Dermond agreed to build a drainage system to catch and transport the County's roadway water to Puget Sound. . The County required no application or permit, and no engineered plans, and did not obtain the required environmental reviews for this activity, but knowingly allowed Dermond to proceed in violation of the law. The drainage system Dermond installed is partially located on [the Woods'] property. Neither the County nor Dermond requested permission from Woods to install this system on Woods' property, but did so in flagrant trespass of Woods' property.[3]

CP at 17.

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...

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