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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
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HOMEOWNER...,
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No. ____________________ Plaintiffs,
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v.
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CITY OF BURLINGTON, WASHINGTON, a municipal corporation,
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COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF; NEGLIGENT MISREPRESENTATION; NEGLIGENCE; NUISANCE; INVERSE CONDEMNATION; VIOLATIONS OF RCW 58.17 SUBDIVISION ACT; RCW CHAPTERS 70.105 & 70.105D; STATE ENVIRONMENTAL POLICY ACT
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I.
JURISDICTION AND VENUE
18 1. This court has jurisdiction of this matter pursuant to RCW 4.12.020 and 4.12.025; the defendant is a municipal corporation organized as a city in Skagit County, Washington. Further, all acts at issue herein occurred in Skagit County, Washington.
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2. Plaintiffs are homeowners of lots and homes located in the Tinas Coma Plat in Burlington, Washington. They are all residents of Skagit County.
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II.
FACTUAL ALLEGATIONS
2 3. Burlington Hill is located on the northern side of the city of Burlington Washington. The rock and soils on the hill are composed of two general types, originating in the Jurassic Period, split roughly between the west and east side of the hill; the two sides are separated by a north south bearing geological fault. The east side of the hill is composed of weakly to moderately foliated marine metasedimentarty rocks consisting of a melange slate, meta-argillite, phyllitic argillite, volocano-lithic metasandstone and sandstone. This rock also contained actinolite. The hill is a distinct outcropping from the valley of the Skagit River. Its sides were very steep, especially on the southeast and northeast sides; in certain of such locations the sides were virtually vertical. Below a relatively thin layer of vegetation the subsurface was rock or bedrock. Much of the rock consists of “greenstone” and much of the rock contains a mineral called “talc”. Geologically talc is often associated with asbestos.
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4.
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Asbestos, like talc, is a category and generic term for a family of naturally occurring minerals, including but not limited to actinolite and serpentinite.
5. On November 4, 1929 a company called the Asbestos-Talc Products of Washington, Inc. was formed to mine and extract talc and asbestos from a site on Burlington Hill. The company was then duly formed under the laws of the state of Washington, including all corporate filings then required by the state of Washington, its articles of incorporation being filed with the state of Washington on November 8, 1929. Such filings have, since such time, been available as public documents from the office of the Secretary of State of Washington.
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6. Following its formation, Asbestos-Talc Products of Washington, Inc. commenced mining operations on Burlington Hill by, in part, acquiring certain properties in and on Burlington Hill, including the mineral rights to such properties. Each of the real estate acquisitions on Burlington Hill were duly recorded with the Skagit County Auditor expressly naming the corporation as the operative party for the transaction. The Skagit County Auditor thereafter, in conjunction with the Washington State Archives, kept legible copies of such transactional documents on file and accessible to the general public.
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7. Following the acquisition of such properties on Burlington Hill, Asbestos-Talc Products of Washington, Inc. engaged in mining operations on such properties for a protracted period of time. The mining activities occurred in an open pit type mine, otherwise known as a quarry.
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8. In 1933 the state of Washington, Department of Conservation and Development, Division of Geology, issued “Bulletin No. 33” entitled “Nonmetallic Mineral Resources of Washington with Statistics for 1933”. The author of the Bulletin was Sheldon Glover. Bulletin No. 33 surveyed and documented mining operations within the state. The manual in that form was and is a publicly accessible document, which was available since that time, and most recently through the Washington State Department of Natural Resources.
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9. “Bulletin No. 33” made direct reference to the asbestos related activities of Asbestos-Talc Products of Washington, Inc., as follows:
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10. “Bulletin No. 33” was updated and republished several times; each successive edition and publication identified the Burlington Hill mining operation for asbestos and talc by Asbestos-Talc Products of Washington, Inc.
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11. On October 31, 1960 the United States Department of the Interior, Geological Survey, Bureau of Mines, published a document entitled
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“The Asbestos Industry.” The document was authored by an Oliver Bowles. This document, at page 28, contained a direct reference to the State of Washington and to the operation of “Asbestos-Talc Products of Washington, Inc.” as follows:
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This document has been publicly available since 1960.
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12. The Department of Natural Resources (DNR) has jurisdiction to regulate any forest practice activity within the state of Washington. To conduct a forest practice, as that term is defined in the law of Washington, a person conducting such forest practice must apply for a permit from the DNR before engaging in the practice. Forest practices include the removal of trees and the construction of subdivisions. The DNR may regulate the activities of any parties within the state, including municipalities and those who develop subdivisions.
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13. For certain land use actions, the city of Burlington requires notice to certain adjacent landowners. These land use actions include the excavation, moving or disturbance of large quantities of earth, including dirt and rock.
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14. For certain land use actions, the city of Burlington requires fill and grade permits.
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15. Certain land use actions require certain types of environmental review under the State Environmental Policy Act (SEPA). Municipalities must comply with SEPA when engaging in land use activities.
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16. The City of Burlington was, prior to roughly 2006, a non-code, class 2 city, as such terms are set forth in Washington statutes. On or around 2006, the city elected to change its classification to that of a code city.
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17. The Burlington city council enacted an “interim critical areas ordinance”, number 1191, on or about August 22, 1991; its effective date was September 1, 1991. That ordinance identified something called a “geologically hazardous area” in the following language:
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18. One express legislatively declared purpose of the interim 1991 critical areas ordinance was to “Protect human life, property, and the public health and safety of the citizens of Burlington”.
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19. The 1991 interim critical areas ordinance defined “Development” as follows:
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20. The 1991 interim critical areas ordinance defined “Seismic hazard areas” as follows:
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:
3 21. The 1991 interim critical areas ordinance defined “Steep slope areas” as follows:
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22. The 1991 interim critical areas ordinance made the planning director for the city of Burlington responsible for compliance with the ordinance as to any proposed development, and such authority extended to “reviewing applications for development to assure that all necessary permits have been obtained from those federal, state and local government agencies from which prior approval is required”.
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23. The 1991 interim critical areas ordinance stated the following: 11 12 13 14 15 16
24. The 1991 interim critical areas ordinance mandated that the city planning director take all appropriate steps to ensure that any development proposal assured the health and safety of persons living in and around it.
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25. The 1991 interim critical areas ordinance stated that development proposed on slopes “forty percent or greater” may be restricted by the Planning Director as follows:
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1 2 3 4 5 6 7 26. The 1991 interim critical areas ordinance stated that there would be no grading in critical areas between November 1, and March 31, of any calendar year, as follows:
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27. The 1991 interim critical areas ordinance empowered the Planning Director to prepare a schedule prior to the issuance of any building permit, and to “require additional construction practices and methods and requirements, including but not limited to best management practices and limitations on construction equipment permitted on the site, to protect critical areas on-site, on adjacent sites and within the drainage basin.”
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28. The 1991 interim critical areas ordinance required an applicant to submit a surveyed site plan which included the “[l]ocation of all grading activities in progress or proposed . . . “
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29. The 1991 interim critical areas ordinance permitted the city planning director to require technical reports “detailing geological, hydrological, drainage, and other site conditions” to be “used to condition
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development to prevent potential harm and to protect the critical nature of the site, adjacent properties, and the drainage basin”.
2 30. On December 21, 1992, Ordinance 1220 of the city of Burlington became effective. This ordinance repealed in its entirety the existing Title 16 to the municipal code, and replaced it with a new Title 16.
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31. Title 16.08 of the newly approved code was entitled “Subdivisions”, and dealt with the procedural requirements of securing approval for any subdivision within the city limits of Burlington.
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32. Subchapter II, of the newly approved subdivision code, entitled “Preliminary Plat Consideration” contained a reference to areas that shall not be subdivided:
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33. The 1992 subdivision code provided for compliance review by the city planning director, and then submission to the city council for final decision as to approval of the proposed subdivision.
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34. On November 21, 1994 Ordinance 1274 of the city of Burlington became effective. The purpose of this ordinance was to remove the “interim” status of Ordinance 1191 (set forth above, in part) for development in critical areas. The 1994 ordinance largely replicated the provisions set forth above from the interim 1991 ordinance. In addition, the 1994 ordinance provided that “[n]o permit for a development proposal described in Section 15.15.050 shall be issued unless it also complies with the regulations of this chapter”.
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35. At the time of the proposed development of Burlington Hill, as described herein, an application for development of land involving the removal of mature trees required an application for a forest practices permit through the Washington State Department of Natural Resources. Such permit was necessary anywhere any person was to engage in forest practices anywhere in Washington State, and notwithstanding overlapping jurisdiction of other governmental entities, including other state agencies, and cities and counties.
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36. At the time of the proposed development of Burlington Hill, as described herein, Skagit County had placed a moratorium on the issuance of certain permits because of the implementation of the Growth Management Act. As the city had not annexed Burlington Hill at the initial stages of the development proposal, it was subject to the building moratorium put in place by Skagit County.
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37. At or around 1995 the internet was generally available to the public, including the city of Burlington, as a research tool.
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38. At or around 1995, a general internet search using the terms “quarry” and “Burlington Hill” would have revealed much of the history of Burlington Hill as set forth above, including the information concerning asbestos mining and Asbestos-Talc Products of Washington, Inc., and USGS information concerning Burlington Hill as a known site of naturally occurring asbestos.
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39. At or around 1995, the health risks posed by asbestos exposure and contamination were extremely well documented and generally recognized and accepted in virtually all scientific and legal communities.
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40. Had the information set forth above been then discovered or revealed, before the advent of the physical work of the Tinas Coma development, as detailed in this complaint, by the city of Burlington, or by other regulatory bodies, including the Washington State Department of Ecology, the Washington State Department of Labor and Industries, the Skagit County Health Department, the Skagit County Planning Department, the Northwest Air Pollution Control Authority, or the United States Environmental Protection Agency, certain regulatory controls from such agencies would have been imposed on the development related to the risks of asbestos release, exposure and contamination. Such controls would have significantly increased the
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cost of the development such that the development would have become economically unfeasible. Further, insofar as the Department of Ecology and the EPA have overriding jurisdiction over such matters, each could have effectively stopped the project completely.
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41. At the time of the proposed development of Burlington Hill, the project was additionally subject to the requirements of the Washington State Environmental Policy Act (SEPA), which required broad review of its actual and potential environmental impacts.
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42. In or around 1995 the Defendant city of Burlington began preliminary work on a proposed subdivision on Burlington Hill for the Tinas Coma subdivision. The following aerial photograph depicts the condition of Burlington Hill in 1995, before full scale work on Tinas Coma began:
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43. Sometime prior to December 10, 1998, the Defendant city of Burlington and a developer called Property Investors LLC jointly agreed to develop certain property then situated in Skagit County (and not the city of Burlington). This property has been and continues to be referenced as
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“Burlington Hill”. The plan for development was coordinated with the city of Burlington because the city of Burlington intended to annex the property. The plan called for approximately 85 residential building lots along with a multiunit condominium structure to be situated in “the old quarry” located on Burlington Hill. The 85 lots were situated around the “old quarry.” Besides the “old quarry”, the proposed subdivision otherwise contained unimproved land which was otherwise undisturbed and which was largely otherwise covered with native soils. Underlying strata of bedrock and friable rock was dormant, latent, undisturbed and unexposed.
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The installation and construction of the proposed subdivision required radical alteration of the topography and geology of Burlington Hill, involving the extraction and removal and replacement of vast quantities of earth and rock, well in excess of 500,000 cubic yards.
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44. On a preliminary basis, the radical alteration of the hill involved the construction of the central road/artery into the subdivision, but also, additionally, the development of tributary roads and home sites. The central arterial eventually came to be called Hillcrest Drive.
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45. At the time the project was proposed and initiated, Burlington Hill was a “critical area” under the aforementioned critical areas ordinance previously enacted by the city of Burlington. The site contained (and still contains) extremely steep slopes. The hill has a geologic fault line running through its middle. The site contained bald eagle nests in the uncut timber. The site also contained quantities of toxic and hazardous asbestos minerals, which were embedded in its soils and rock structure. Additionally, Asbestos-Talc Products of Washington, Inc. formerly mined toxic and hazardous asbestos on the site, including the quarry, and there had never been any hazardous waste assessment or evaluation and no remediation or mitigation of such mining activities as no regulations existed when production occurred.
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46. Because the subdivision site was formerly used as the site for asbestos mining by Asbestos-Talc Products of Washington, Inc., and because no remediation or mitigation was ever performed on such site after that activity ceased, and because such activities were wholly and entirely unregulated at that time, and because the development plan called for extensive rock chipping, blasting removal and dumping, on the subdivision site, there was a need for an environmental assessment of what levels of risk from asbestos exposure and contamination were
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created thereby by previous mining activities, and what mitigation and remediation was required of such unregulated mining activities and its remnants, but also an assessment of such factors for the proposed development, before any subdivision could be approved, according to the Burlington Municipal Subdivision Code, BMC 16.08.050.
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47. Because the subdivision site was otherwise generally known as one of “naturally occurring asbestos,” and because the development plan called for extensive rock chipping, blasting, removal and dumping, on the subdivision site, there was a need for an environmental assessment of what levels of risk from asbestos exposure and contamination would be created by the proposed development activities insofar as they involved the radical alteration of the rock strata of the hill, with vast quantities of rock displacement and redeposit in the subdivision, before any subdivision could be approved, according to the Burlington Municipal Subdivision Code, BMC 16.08.050.
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48. The proposed extraction, movement and deposit and dumping of earth and rock, containing concentrations of hazardous and toxic asbestos, was subject to oversight by the Washington State Department of Ecology by virtue of RCW Chapter 70.105.
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49. The proposed subdivision required the removal of significant amounts of standing timber on the subdivision site which would require the issuance of a forest practices permit.
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50. In or around 1996 Property Investors, LLC commissioned a study of the geology in and around Burlington Hill for the purposes of constructing an access road to the proposed subdivision. The study was performed by a firm named Agra-Earth Environmental. The study purported to examine those portions of the hill where the road was to be constructed. The study revealed, inter alia, that bedrock underneath the proposed road bed consisted of friable green schist. No other geologic studies of any other sites were performed on the hill at any time prior to construction or approval of the subdivision, including proposed lots for individual homes, and including the quarry site. No other diligence was requested of Property Investors LLC by the city of Burlington at any time. Agra-Earth was not commissioned to perform any testing of the rock composition to determine whether it contained asbestos.
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51. Prior to December 10, 1998, the city of Burlington actively worked with Property Investors LLC to promote the development and annexation
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plan. The Defendant City of Burlington worked directly on preliminary planning for the development and the forthcoming annexation. The defendant city of Burlington actively directed the activities of the Property Investors LLC with respect to the development and annexation including review of geotechnical documents and road building operations, and preparation of a variety of documents required for compliance with the State Environmental Policy Act (SEPA), as well as its own critical areas and subdivision ordinances as generally described above.
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52. On December 10, 1998, defendant city of Burlington annexed all of the property comprising the Burlington Hill development.
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53. By this time, though permitting had not been completed, much work was already being done on the subdivision, including the preliminary placement of roads. The aerial photograph below roughly shows the progress of the subdivision construction – the road building – at approximately this time, with the “old quarry” circled in red.
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54. Between December 10, 1998, and February 12, 1999, the city of Burlington through its Planning Director, Margaret Fleek, prepared and submitted a series of documents to the Washington State Department of Ecology on behalf of itself and Property Investors to comply with SEPA, one being a preliminary environmental impact statement and the second being a final environmental impact statement. The city of Burlington additionally notified certain parties of development of the site pursuant to SEPA regulations, prior to February 12, 1999, as defined by a distribution list, as well as various parties “within 600 feet of the site”. Thereafter comments were received from parties on the distribution list and at least one party within 600 feet of the development site.
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55. The preliminary EIS and the final EIS contained a “fact sheet” which indicated that part of the development, a multi-unit condominium was to be constructed, eventually, in something called “the old quarry”:
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56. The preliminary EIS and the final EIS indicated that part of the development, a multi-unit condominium was to be constructed, eventually, in something called “the old dump”.
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57. As to the former historical use of “the old quarry” Margaret Fleek, the planning director, did not require any additional diligence or background from the developer in terms of regulating and approving the subdivision/development. Ms. Fleek did not require any geological testing of the rock within the proposed subdivision. Her preliminary and final EIS documents made reference only to the 1995 Agra Earth report described above, which itself was not made part of the DOE EIS submissions.
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58. As to the former historical use of “the old dump” Margaret Fleek, the planning director, required the developer to present a mitigation plan, after requiring the developer to present data and information concerning the historical use of the dump site, to appropriately remediate the site to ensure the safety of future residents of the subdivision.
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59. On or about March 11, 1999 the city of Burlington city council approved the plat, formally named ‘Tinas Coma”.
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60. The final plat of Tinas Coma was signed and recorded on July 13, 2000. At such time the through roads of Tinas Coma, including Hillcrest Drive, were dedicated to the city of Burlington forever as public streets and became the property and responsibility of the city of Burlington. The following aerial photo depicts the condition of the development and Burlington Hill at approximately this time; once again the location of “the old quarry” is circled in red:
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61. The city of Burlington, through its planning director, did not require the developer, Property Investors LLC, to complete and secure a forest practices permit from the Department of Natural Resources prior to its approval of the proposed subdivision.
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62. Margaret Fleek was the Director of Planning for the city of Burlington at all times material herein.
2 63. The city planner, Margaret Fleek, authored and “keyed in” the SEPA report submitted to the State Department of Ecology in 1999. The city planner failed to make any entry in the SEPA report reflecting the radical alteration of the landscape in the critical areas, nor of the movement of such materials on and off the site, nor of the volume of rock and earth that would be extracted, notwithstanding the vast quantities involved.
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64. After approval by the City, Property Investors continued its development of the site by continuing to build the access road and thereafter beginning the development of the individual residential building lots. This included the removal of most of the surface vegetation in the subdivision and vast quantities of earth and bedrock, in excess of 500,000 cubic yards, as necessary for such work and the transport of such materials in and around the subdivision, as illustrated by the following photos taken at the time of work on the project, after approval by the city of Burlington:
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Much of this material, after excavation, was redeposited randomly, within the subdivision. These activities released otherwise dormant materials within the underlying geologic materials, including but not limited to materials containing asbestos. These activities released asbestos into the atmosphere, onto nearby properties and into the environment, through the air and otherwise (by trucking, demolition and site construction), and throughout the Tinas Coma development. Such activities have, since their inception, and for each and every day since that time, deposited asbestos laden materials on the surface of the earth inside the Tinas Coma subdivision, in the surface soils of the subdivision, and underneath the surface soils of the subdivision, such that normal climactic conditions and foreseeable activity releases asbestos into the air in and around the subdivision. Such normal climactic conditions and foreseeable and ordinary activities cause asbestos fibers to be moved by winds and redistributed on other properties within and around the subdivision.
15 65. The acceptance of the subdivision included a dedication of Hillcrest Drive to the city of Burlington for public use. The road began to fail shortly after it was installed. After acceptance of the design by Defendant City of Burlington, and completion of construction of the road by Property Investors, in approximately November of 2001, significant obvious evidence of road failure began to emerge. The evidence then indicated there was a high probability that there was earth movement on the subsurface of the road, which in turn created a high probability of substantial and significant road damage, thereby significantly impairing access to the overall development. The city immediately took the position that the road was defectively constructed because the failing segments were installed on areas of fill that were insufficient or inadequate for such purpose. This evidence was wellknown to the city as it had conducted a series of meetings and
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communications with the developer to discuss it over time, generally asserting that the developer was responsible for whatever repairs might be needed.
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66. In 2002 the city of Burlington enacted Ordinance 1495, which in part amended certain provisions of its critical areas ordinance, including specifically those defining and delineating “geographically hazardous areas”. The definition of a “geographically hazardous area” was changed to state as follows:
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5. Geologically hazardous areas. Geologically hazardous areas include areas susceptible to the effects of erosion, sliding, earthquake, or other geologic events. They pose a threat to the health and safety of citizens when incompatible residential, commercial, industrial, or infrastructure development is sited in areas of a hazard. Geologic hazards pose a risk to life, property, and resources when steep slopes are destabilized by inappropriate activities and development or when structures or facilities are sited in areas susceptible to natural or human caused geologic events. Some geologic hazards can be reduced or mitigated by engineering, design, or modified construction practices so that risks to health and safety are acceptable. When technology cannot reduce risks to acceptable levels, building and other construction within identified geologically hazardous areas shall be prohibited.
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67. The 2002 ordinance, number 1495, again mandated compliance with the critical areas ordinance before any land use “development permit, land division, development approval or other authorization required shall be granted”.
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68. The 2002 ordinance, number 1495, added the term “mine hazards” to a section called “Geologically hazardous area designations,” as follows:
17 A. Geologically hazardous areas include erosion hazards, landslide hazards mine hazards, volcanic hazards and seismic hazards, and shall be designated consistent with the definitions provided in WAC 365-190-080(4).
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Erosion hazards were there partially defined as “those project areas that fall within any soil sloping greater than or equal to 30 percent.” “Landslide hazards” were partially defined as “project areas” that fall within or 200 feet from any area having a 40 percent slope or steeper and within a vertical relief of 10 feet or more.
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69. The 2002 ordinance additionally defines other “Geologic Hazard Indicators,” and directs the planning director to evaluate “Areas of Unknown Geologic Hazards” when there are “known and visible site features:”
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2. The project area falls within or 200 feet from a mine hazard area as designated on the Department of Natural Resources Map: Coal Measures of Skagit County (1924) or within 200 feet of any other current or historic mine operations determined to be geologic hazards as described in BMC 15.15.020(C)(5), geologically hazardous areas.
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3. Areas of Unknown Geologic Hazards. As part of any development application where no current information is available to confirm that the items identified in this section are present on the project area, the critical areas review required by BMC 15.15.060 will provide a description of the known and visible site features and be used by the director in evaluating whether a geologically hazardous area site assessment is required pursuant to this section.
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70. The 2002 ordinance additionally mandates that if the site involved falls within 200 feet of an “Area of Known or Suspected Risk” and “the geological condition may pose a risk to life and property on or off the project area, then a geologically hazardous site assessment of the project area by a qualified professional as required by subsection (B) of this section shall be required as part of the development permit application.” The ordinance goes on to mandate that the services of a “qualified professional” shall be engaged to prepare the necessary report, under the supervision of a licensed engineer or geologist, and goes on to specify certain reporting requirements related to overall impact of the geologic and topographic activities, on the project site itself as well as the adjacent properties. The analysis parameters also include “fills and excavations.” The report may include a mitigation plan. The ordinance also requires that the report be made available to the public through the standard public notice procedures.
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71. Geologic inspections, beginning around 2002, revealed that Hillcrest Drive was substantially failing on both the south and north sides because of defective construction. These failures were in spots that provided exclusive access, respectively, to the development, from the two sides. Were Hillcrest Drive to fail in these two spots, simultaneously, there would be no public access to the development. Similarly, there would be no access for public safety.
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72. In response to road failure issues the Mayor of the City of Burlington issued a letter to the Property Investors in which it insisted that it (Property Investors) would be responsible, accountable and liable to the city, for the road failure. Further, the city announced that it would commission “a completely independent study of the road failures,” and further “[i]ssuance of additional permits for home construction is not possible” in the meantime:
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This letter was written by City Planning Director Margaret Fleek for Mayor Tjeerdsma, who was functionally illiterate, in terms reading and writing; after its preparation by Ms. Fleek Mayor Tjeerdsma signed the letter and arranged for its posting.
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73. Underground utilities for the development were routed through the right of way created by Hillcrest Drive, generally on the downhill side of road.
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74. The road failure problem and dispute continued through the year 2004. The city was specifically advised by certain engineers, who it and the developer had jointly or individually retained, that the road failure was
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worsening and accelerating over time. In June of 2004 they were specifically advised that there was a high risk of “catastrophic failure of the roadway” by the engineering firm that had designed the roadway. This notice came after this engineering firm had performed specific soil stability measurements designed to assess the failure. Further, the Defendant City of Burlington actually knew, or reasonably should have known, of 1) the existence of the quarry, 2) the former asbestos quarrying operation, 3) the presence or potential presence of asbestos laden materials in the quarry and the subdivision, and 4) the fact that Burlington Hill was a known site of “naturally occurring” asbestos.
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75. By the end of 2005 the road failure problem was becoming increasingly acute. Defendant City of Burlington continued to believe and assert that Property Investors was solely responsible for such rebuilding and specifically informed it of such assertion in writing. In addition to the permit issue already raised for single family residences, Defendant City of Burlington asserted that permitting for construction of the multifamily condominium proposed for “the old quarry” would be delayed or denied because of danger and safety issues to residents of the development and to future residents of the condominiums.
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76. The city of Burlington had commissioned a study from a consulting firm called ZZA Associates to estimate the cost of repairing the road in the two damaged sections. In the spring of the total cost was estimated to be between $4.4 and $6.4 million dollars.
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77. To avoid future litigation over the issue, and to allay other concerns about the rebuilding, and to avoid any moratorium on building permits for the future development of the properties owned by Property Investors, Property Investors proposed an agreement whereby the two parties would share responsibility for liabilities emanating from the road failure. The parties conducted a series of talks and discussions on the terms and conditions of such an agreement.
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78. Defendant City of Burlington and Property Investors LLC entered a written agreement, dated October 26, 2006. The agreement provided for a sharing of particular responsibilities between the parties vis-à-vis the Hillcrest Drive reconstruction project. Costs for the project were allocated 51% to Property Investors. Management was joint, but with ultimate oversight by Defendant City of Burlington. Both sides were to hold the other harmless from certain claims. Property Investors was to acquire all “rights of way” necessary for the reconstruction. The
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agreement further provided that the reconstruction was to be completed by December 31, 2007. It further contemplated, based upon specific studies commissioned by both parties, extraction and movement of vast quantities of earth and rock from Burlington Hill, in excess of 500,000 cubic yards.
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79. Property Investors and Defendant City of Burlington, did not disclose the October 26, 2006, agreement to Plaintiff, or to any other residents in the Tinas Coma development at the time of its signing.
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80. Property Investors LLC and Defendant City of Burlington began attempts to reconstruct Hillcrest Drive by engaging in a variety of activities during the project including 1) blasting with explosives, 2) boring and drilling, and 3) extensive and prolonged use of heavy earth moving equipment. Property Investors LLC and the Defendant City of Burlington began the demolition and reconstruction of the road segments, beginning first with the north side segment. This included the removal of vegetation and bedrock as necessary for such work and the transport of such materials in and around the subdivision. These activities disturbed and released otherwise dormant materials within the underlying geologic materials, including but not limited to materials containing asbestos. These activities released asbestos into the atmosphere, nearby properties and the environment, through the air and otherwise (by trucking, demolition and site construction), and throughout the Tinas Coma development. Such activities have, since their inception, and for each and every year since that time, deposited asbestos laden materials on the surface of the earth inside the Tinas Coma subdivision, in the surface soils of the subdivision, and underneath the surface soils of the subdivision, such that normal climatic conditions and foreseeable activity releases asbestos into the air in and around the subdivision. Such normal climatic conditions and foreseeable and ordinary activities cause asbestos fibers to be moved by winds and redistributed on other properties within and around the subdivision. The following photos were taken at the time:
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 81. Notwithstanding specific language in their agreement, the city of Burlington did not require Property Investors to secure any new permits for the 2006-2008 road demolition and reconstruction. Similarly, the city of Burlington, except as otherwise noted here, did not itself apply for permits from any governmental agency concerning the 2006-2008 work, notwithstanding the fact that the work involved was substantial and again radically altered the topography and geology of the hill, and incidentally released significant amounts of dust and debris into the atmosphere where the work was being performed.
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82. At or about November 28, 2006 the time of the initiation of work on the north segment of the project, the city of Burlington, acting through Ms. Fleek, the director of its planning department, prepared a document
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entitled “ADOPTION OF EXISTING ENVIRONMENTAL DOCUMENT” pursuant to SEPA. The document purported to address activity on “North side of Burlington Hill; access road and adjacent land”.
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83. The adoption document set forth above was prepared ostensibly to provide compliance with SEPA. Its preparation required distribution to individuals who had been notified of the original SEPA application in 1999 for the subdivision, including those within 600 feet of the proposed activity. This document was not distributed to such individuals or parties; it additionally was not distributed to any property owners in and around the subdivision who had populated the subdivision since the original SEPA.
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84. Property Investors and the City of Burlington failed to prepare any complimentary “adoption statement.” as described above, for the demolition and rebuilding activity on the south side of Hillcrest Drive.
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85. No other legal notice of any type was provided to the residents of the development or any other residents of the subdivision prior to the demolition and rebuilding work.
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86. During the razing of the road and its reconstruction, vast quantities of earth and rock, in excess of 500,000 cubic yards, from blasting and chipping into the bedrock was removed and redeposited on the hill or near the hill or to other parts unknown.
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87. There were no precautionary measures or controls put in place at any time to protect the site from escaping asbestos fibers emanating from the rock extraction and removal process. There were no subsequent remedial measures instituted or required by the city to address the actual or potential release of asbestos fibers from such activities after those activities ceased.
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88. The city of Burlington at this time again failed to discover that Burlington Hill was the former site of asbestos mining activities by Asbestos-Talc Products of Washington, Inc., and otherwise that it had been identified as a site of “naturally occurring asbestos”.
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89. The city did not require any additional work permits for the project, including those for critical area ordinances, notwithstanding that all of the work was being performed in and adjacent to critical areas. The site continued to be a critical area according to the Burlington municipal code because of 1) the existence of prior mining activity on the hill, 2) the steep sides of the hill, especially where realignment was to occur, 3) the hill actually or potentially contained naturally occurring asbestos, 4) the hill and development were bisected by a geologic fault.
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90. In 2010 Bradley Van Gosen, a geologist with the United States Department of the Interior, United States Geological Survey, authored an article entitled “Reported Historic Asbestos Mines, Historic Asbestos Prospects, and Other Natural Occurrences of Asbestos in Oregon and Washington,” categorized in part as “Open-File Report 2010-1041, Version 1.0.” This document was publicly available since its creation through public disclosure request and additionally through a simple
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internet search. The report chronicled the items mentioned, and included, in the narrative portion, a direct reference to the operations of Asbestos-Talc Products of Washington, Inc. on Burlington Hill, in extracting asbestos minerals from “a quarry” located there “overlooking the town of Burlington:”
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The Van Gosen report additionally contained a map of Oregon and Washington which identified the various locations of asbestos. Burlington Hill was identified on the map.
9 91. Plaintiffs here each purchased lots and homes in the Tinas Coma subdivision. Plaintiffs had had no knowledge of any of the facts set forth above: 1) the existence of the quarry, 2) the former asbestos quarrying operation, 3) the presence or potential presence of asbestos laden materials in the subdivision, and 4) the fact that Burlington Hill was a known site of “naturally occurring” asbestos.
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92. In certain cases certain Plaintiffs or their agents applied for building permits for their homes from Defendant City of Burlington, which permits were eventually granted by the city of Burlington.
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93. On or about July 25, 2012 Microlab Northwest tested certain samples of rock taken from Burlington Hill for the presence of asbestos and found evidence of actinoline.
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1 2 3 4 5 6 7 8 9 10 94. On September 18, 2012 Seattle Asbestos Test LLC, of Seattle, produced reports from its analysis of certain samples of rock from Burlington Hill indicating that the rock contained actinolite.
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1 2 3 4 5 6 7 8 9 10 11 12 13 95. On September 26, 2012 representatives of the US Environmental Protection Agency (the EPA) conducted a “field reconnaissance” on Burlington Hill merely to assess whether asbestos in some form was present on Burlington Hill.
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The field reconnaissance involved securing a set of samples from the subdivision for further testing.
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96.
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On October 3, 2012 Margaret Fleek, city planning director, was deposed in a similar civil matter et al. v. City of Burlington, et al, Skagit County. The city of Burlington was represented by three attorneys,
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including the city attorney, Mr. Scott Thomas, Mr. Winslow, and Ms. Smith. During the deposition the Plaintiffs presented documentation of Burlington Hill as the site of naturally occurring asbestos and a former asbestos mining operation, as set forth above.
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97.
During the deposition of Ms. Fleek on October 3, 2012, she was asked whether she realized or knew anything about the above facts pertaining to 1) asbestos in and on Burlington Hill, 2) the existence of Asbestos-Talc Products of Washington, Inc., 3) asbestos mining activities on Burlington Hill. She testified that she did not.
98.
During the deposition of Ms. Fleek on October 3, 2012, Ms. Fleek testified that she prepared the environmental review documents set forth above, identifying the quarry inside the subdivision. She admitted she had. She testified she called it the old quarry because that was what people always called it, and that she never thought about making further inquiry about what activity, if any, might have been occurring there to account for the quarry.
99.
During the deposition of Ms. Fleek on October 3, 2012, she was asked whether she might have made further inquiry and potentially different decisions about the development based upon the knowledge she now had about the asbestos. Her attorneys objected to this question and would not allow her to answer it.
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100. Approximately one week following the deposition of Ms. Fleek, Plaintiffs in the previous case mentioned, provided a further set – copies -- of such documents to the city attesting to the asbestos facts set forth above. Again, no further action was taken by the city with respect to either notifying the Plaintiff here, or otherwise through its regulatory and police powers, from stopping work on the project.
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101. In March 6, 2013 the United States Environmental Protection Agency issued a report following its field reconnaissance of the rock on Burlington Hill. The EPA concluded that asbestos did in fact exist on the hill, in at least one location, and further cautioned that its findings were preliminary, and reminded those reading the report of the toxic qualities of asbestos in any form:
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102. In April of 2013, the plaintiffs in the previous related litigation sought and received permission to amend their complaint for damages against, inter alia, the city of Burlington, related to the activities described herein pertaining to oversight, involvement, funding and subsidizing of the activities in which asbestos was likely to have been released from the underlying strata of Burlington Hill.
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103. In April 2013, because of the refusal of the city of Burlington to take any action on the information disclosed to the city of Burlington during the October 2012 Fleek deposition, concerning the construction of the development in or on the site of the unremediated asbestos mine of Asbestos-Talc Products of Washington, Inc., and the further revelation of the documentation of such activity through the various official sources, and further revelation of affirmative testing for asbestos in
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various samples of rock taken from Burlington Hill from private testing and from the EPA, a website was published on the internet called www.theburlingtonhilltruth2013.com. The website chronicled and documented much of the information in this complaint concerning the history of the Tinas Coma development and the revelations of various asbestos related activity related thereto. This website has continued to be available on the internet since such time and through the date of filing of this complaint and is generally available to any person for review of such information conducting any type of search for information on Burlington Hill.
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104. Beginning in the summer of 2013 and into the fall of 2013, the city of Burlington filed a series of documents with the United States District Court for the Western District of Washington, and later, the Skagit County Superior Court formally accusing the Plaintiffs of exposing asbestos within the Tinas Coma plat when they were constructing single family residences in the Tinas Coma subdivision. The documents included a counterclaim, an amended counterclaim, legal briefing and a series of sworn declarations from city officials.
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105. The first document containing city of Burlington allegations about disturbance of asbestos on Burlington Hill occurred on August 16, 2013. On that date the city filed an answer to the Plaintiffs’ amended complaint including asbestos, and a counterclaim against those Plaintiffs alleging that their work in excavating and constructing the foundation on Lot 24, the Griffone property, disturbed and released otherwise dormant asbestos fibers, and that in so doing, those Plaintiffs (in that lawsuit) were responsible to the city for mitigation and cleanup related to that work. Those allegations specifically included the following:
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1 2 3 4 5 6 7 8 106. Following receipt of this document Plaintiffs in that matter filed a motion with the court requesting that the city counterclaim be dismissed, in part because the amount of asbestos that would be released in the activities related to Lot 24 were dwarfed by the massive amounts of earth artificially disturbed by the city and the developer, in the original development and in the realignment. The city responded by filing an amended counterclaim which, among other things, clarified its official position that it was not seeking relief from the Plaintiffs based upon the activity in the single lot – lot 24 belonging to Griffone – but to all of the lots those Plaintiffs had worked on beginning in 2002 and extending through 2012, roughly twelve, which were randomly scattered throughout the entire subdivision. The supporting briefing of the city said that it was entitled to seek such damages for the asbestos likely to have been disturbed for all of those lots, over that entire time period:
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107. In late April and early May of 2014, Mr. Griffone (mentioned above) through counsel, corresponded with the city and expressed concerns about never having received an answer or response to the May 25, 2013 claim submitted to the city, but also, to other potential development activity that might cause further asbestos exposure or contamination. On May 21, 2014 the city of Burlington, through its speaking agent, the city administrator, indicated that it was conducting a dialogue with certain regulatory agencies about the “public notification and/or best management land clearing/excavation practices to address potential exposure to low levels of naturally occurring asbestos that may be present on Burlington Hill,” and that such recommendations would be forwarded to the Plaintiff “when available.” To date no further communications have been received from the city, except as indicated below, during the homeowners’ meeting.
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108. On Sunday July 13, 2014 the Associated Press ran and distributed a news story on the Associated Press news line entitled “Natural asbestos problem “falls in the cracks” in Skagit County.” The article detailed much of the information set forth above and described specifically how the existence of asbestos in unknown quantities had been verified by the EPA.
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109. On Tuesday, July 15, 2014, the Skagit Valley Herald ran a front page story entitled “EPA verifies asbestos on Burlington Hill” with a sub caption of “Residents never officially notified.” This article was derived from the Associated Press article from a few days before.
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1 2 3 4 5 6 7 110. In the summer of 2014 the Skagit County Health Department began publishing a web page on its official site entitled “Geologic Hazards – Radon, Naturally Occurring Asbestos, and Arsenic.” The web page went on to describe Naturally Occurring Asbestos and the severe health risks presented by it. The web page then went on to report that “The Environmental Protection Agency also recently found evidence of naturally occurring asbestos in rocks from the north side of Burlington Hill in Skagit County.”
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111. On or about August 9, 2014, the homeowner’s association of the Tinas Comas subdivision conducted its annual meeting. The city administrator for the city of Burlington attended the meeting and was, in part, asked to address the issue of potential asbestos contamination or exposure in and around the Tinas Comas subdivision and on Burlington Hill. The city administrator, as speaking agent for the city of Burlington, represented that there was little or no issue of asbestos exposure or contamination, and that the city of Burlington had no plans to arrange further testing of Burlington Hill to make any assessment of exposure or contamination. He further suggested that the homeowners on the hill might consider petitioning the city or specifically the mayor if they deemed it appropriate.
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112. Plaintiffs here are aware that other vacant lots are being marketed within the subdivision and that further development of such lots will likely cause further disturbance of earth adjacent to Plaintiff’s property, and thereby cause further risk of exposure to asbestos.
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113. Had the Plaintiffs been made aware of some or all of the facts set forth herein by city when procuring their properties within the Tinas
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Coma subdivision, or applying for building permits there, Plaintiffs may have refrained from purchasing such properties, negotiated different prices for such properties, or otherwise would have avoided building on such properties.
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114. Plaintiffs have suffered damages arising from the fact that asbestos has been identified as being present within the Tinas Coma subdivision, and potentially adjacent to and on the site of their homes, as the presence of asbestos contaminates the properties upon which it is located and other properties located nearby. This contamination diminishes and/or eliminates the market value of such properties, especially in the setting here, of naturally occurring asbestos which is difficult, if not impossible, to remediate. Plaintiffs have been further damaged by the fact that the subdivision is constructed on a site of naturally occurring asbestos and by the fact that the subdivision is constructed on a known site of asbestos extraction, wherein the risks posed by such facts stigmatizes such property, including all residences located in and around the subdivision. The stigma referenced above further impairs the value of the Plaintiffs’ properties because lending institutions, upon being apprised of actual or potential asbestos exposure issues, will refrain from extending credit or writing loans for prospective purchasers of Plaintiff’s property.
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115. The following aerial photo depicts the approximate development after a significant number of residential lots were sold to various consumers and building permits issued by the city of Burlington. Again the quarry site is circled in red.
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1 2 3 4 5 6 7 8 9 10 III.
CLAIMS AND CAUSES OF ACTION
11 RCW 58.17 SUBDIVISION ACT 12 13
A "plat" is "[a] map describing a piece of land and its features, such as boundaries, lots, roads, and easements." BLACK'S LAW DICTIONARY 1337 (10th ed. 2014). In construing boundaries, lots, roads, and easements in a plat, the dedicator's intent controls. Roeder Co. v. Burlington N., Inc. 105 Wn.2d 269, 273, 714 P.2d 1170 (1986). We determine intent from the marks and lines on the plat itself. Id. If the plat is ambiguous as to the dedicator's intent, courts may consider surrounding circumstances, id. , including extrinsic evidence. Rainier View Court Homeowners Ass'n v. Zenker, 157 Wn. App. 710, 720, 238 P.3d 1217 (2010).
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Dedications of land to public entities like the County and the City are controlled by chapter 58.17 RCW (subdivision act), which governs plats, subdivisions, and dedications. The legislature enacted the current iteration of the subdivision act in 1969. The act's express purpose is, among other things:
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To regulate the subdivision of land and to promote the public health, safety and general welfare in accordance with standards established by the state to prevent the overcrowding of land; . . . to promote effective use of land; to promote safe and convenient
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travel by the public on streets and highways; . . . to facilitate adequate provision for water, sewerage, parks and recreation areas, sites for schools and school grounds and other public requirements; . . . to provide for the expeditious review and approval of proposed subdivisions which conform to zoning standards and local plans and policies; [and] to adequately provide for the housing and commercial needs of the citizens of the state. . . . RCW 58.17 .010 (emphasis added).
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The subdivision act also sets forth the requirements for a statutory dedication:
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"Dedication" is the deliberate appropriation of land by an owner for any general and public uses, reserving to himself or herself no other rights than such as are compatible with the full exercise and enjoyment of the public uses to which the property has been devoted. The intention to dedicate shall be evidenced by the owner by the presentment for filing of a final plat or short plat showing the dedication thereon; and, the acceptance by the public shall be evidenced by the approval of such plat for filing by the appropriate governmental unit. RCW 58.17.020(3).
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Construction on Burlington Hill Bulletin Disclosure 13 The “Construction on Burlington Hill Bulletin" dated August 2002, does not alter this result. That document requires subsequent owners of the individual lots in the Burlington Hill development to be notified that:
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“Some of the lots on Burlington Hill are on steep slopes, and require extra planning and design prior to construction. Due to the nature of soil conditions, care should be exercised to ensure against erosion and movement of soils during and after construction. Geological assessments before and during construction can minimize the potential for erosion, landslide, and seismic hazards in the future”.
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Due to the nature of soil conditions it is necessary in the development of the subject property that special and/or extraordinary care should be exercised on individual lots." The City urges us to read this disclosure as warning subsequent Burlington hill homeowners that they were responsible as members of a Tract. This is incorrect. The disclosure notifies individual future homeowners that they may have to take extraordinary precautions on their own lots to supplement existing
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geological soil assessments, not that they were responsible for the naturally occurring soil conditions that had already been placed within the original plat. The City's interpretation of the existing soil conditions, also runs counter to RCW 58.17 .165, which provides that dedications, of right of way or land, conveyed to the City, "shown on the face of the plat, shall be considered to all intents and purposes as a quitclaim deed . . . .".
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A. NEGLIGENT MISREPRESENTATION
2 116. Agreement to refrain from legal action that was never signed or recorded.
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117. The Right-To-Farm ordinance, was first adopted by the Skagit County Government, as a Countywide Ordinance, in the year of 1991. The Right-To-Farm ordinance, was seen by many farm leaders, real estate people, and public officials as an easy response to the problem of urban growth encroaching on adjacent farm operations, or any nearby mining-related activities including extraction, crushing, stockpiling, blasting, transporting and recycling of minerals.
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118. In July of the year 2000, the Skagit County Government, enacted a new 1,531 page Countywide Ordinance. One particular chapter was 14.38 which references the Right-To-Manage Natural Resource Lands, (which abolished the Right-To-Farm ordinance) concluding that the developer and any subsequent purchasers or successors in interest shall agree to refrain from any legal action to restrain or collect damages from being adjacent, to natural resource lands.
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119. Such measures have had little regulatory effect, but seek to reduce the opposition of urban neighbors to commercial agriculture or nearby mining-related activities as a nuisance generator. Most ordinances require that homebuyers who move to parcels adjacent to natural resource lands, or near working farms and ranches be notified about the possible negative impacts of agricultural or nearby mining-related activities. In this way, the theory goes, new residents, especially those unfamiliar with rural living, would effectively learn about the realities of modern farming and would be less inclined to complain, or even go to court, about sprays, dust, odors, noise or any nearby mining-related activities including extraction, crushing, stockpiling, blasting, transporting and recycling of minerals.
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120. Despite their popularity, questions are frequently raised about the effectiveness of the original Right-To-Farm ordinance in protecting agricultural operations any nearby mining-related activities, and reducing urban edge conflicts.
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121.
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The two principal reasons are:
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122. (1) Considerable variation in implementation from one jurisdiction to another.
2 123. (2) The generally benign and undemanding character of disclosure requirements, as compared to the more stringent regulatory tools of zoning, buffers, and subdivision review.
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124. This assessment is based on how thoroughly affected residents are informed about the consequences of living near agricultural operations, or Natural Resource Lands activities, and the manner in which notices are distributed.
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125. In the year of 2000, the new Skagit Countywide Ordinance; RightTo-Manage Natural Resource Lands, had three general approaches to providing disclosure: part), 2000)
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126. 10
14.38.030 Disclosure.
127. (1) The statement set forth in Subsection (2) of this Section (“disclosure”) shall be used under the following circumstances and in the following manners:
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128. (a) Skagit County shall mail a copy of the disclosure, with an explanatory informational attachment to all landowners whose parcel(s) lie within an area or within 500 feet of an area designated as a Natural Resource Land in Skagit County beginning in the year 1999 and every 3 years thereafter; provided that no liability shall attach to Skagit County for any actions or omissions under this Subsection.
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129. (b) Upon transfer of real property by sale, exchange, gift, real estate contract, lease with an option to purchase, any other option to purchase, ground lease coupled with improvements, or any other means, the seller shall be required to record with the County Auditor a statement containing the language set forth in Subsection (2) of this Section in conjunction with the deed conveying the real property; provided, however, that the real property is located within 1 mile of the Agriculture Natural Resource Land (Ag-NRL), or 1/4 mile of Industrial Forest Natural Resource Land (IF-NRL), Secondary Forest Natural Resource Land (SF-NRL), or Rural Resource Natural Resource Land (RRc-NRL), or Mineral Resource Overlay (MRO-NRL) districts, as set
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forth in SCC 14.16.400, 14.16.410, 14.16.420, 14.16.430, and 14.16.440, respectively.
2 130. (2) The following shall constitute the disclosure required by this Section:
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131. This parcel lies within an area or within 1 mile of an area designated agricultural land or designated or within 1/4 mile of rural resource, forest or mineral resource lands of long-term commercial significance in Skagit County. A variety of Natural Resource Land commercial activities occur or may occur in the area that may not be compatible with non-resource uses and may be inconvenient or cause discomfort to area residents. This may arise from the use of chemicals; or from spraying, pruning, harvesting or mineral extraction with associated activities, which occasionally generates traffic, dust, smoke, noise, and odor. Skagit County has established natural resource management operations as a priority use on designated Natural Resource Lands, and area residents should be prepared to accept such incompatibilities, inconveniences or discomfort from normal, necessary Natural Resource Land operations when performed in compliance with Best Management Practices and local, State, and Federal law. In the case of mineral lands, application might be made for mining-related activities including extraction, washing, crushing, stockpiling, blasting, transporting and recycling of minerals. If you are adjacent to designated NR Lands, you will have setback requirements from designated NR Lands. (Ord. O20070009 (part); Ord. 17938 Attch. F (part), 2000)
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132. 1) In the annual tax bills sent to all or a portion (typically just in unincorporated areas) of a county’s property owners;
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133. 2) In connection with new development located near agricultural or natural resource lands activity, usually when subdivision or parcel maps are approved or building permits are issued by county government.
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134. 3) As part of a real estate transaction in which residential or other property located near agricultural activity is sold, generally at the time escrow is closed signifying the completion of the purchase. The notified audience differs;
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135. A countywide one composed of all or many property owners in the case of tax bill statements, primarily developers or builders in the
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instance of development-related notification, and new purchasers of property in the case of real estate transactions. Likewise, the location or degree of responsibility within county government for administering these processes varies.
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136. Assessor’s Office send out the annual property tax bills and planning and building departments manage development approvals and building permits. For notification through property sales, however, there is no clear evidence, of any countywide government involvement or oversight as far as we can tell, and in our case, the Burlington Hill residence realtors, and title companies handle all disclosures as part of their normal process of working with sellers and buyers to complete transactions.
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137. The concerns revolve largely around how disclosures are inserted into real estate transactions. County officials have been concerned about the lack of county government oversight over the private actions of realtors and title companies. Realtors were obligated under state law and their licenses to disclose such information in the case of other propertyrelated conditions such as potential hazards. They suggested that even in the absence of local ordinance requirements, many realtors would voluntarily reveal to property buyers the nature of nearby agricultural operations as legal protection against future lawsuits from dissatisfied homebuyers.
9 10 11 12 13
138. Ordinances also differ in whether or not they require that the developer/builder or purchaser sign the disclosure notice, and it is recorded in the county recorder’s office as a designation attached to the property deed. Recordation provides a formal record of the disclosure and ensures that the information will be transmitted to future buyers of the property through the title search process. In any event, as stated above, the Right-To-Manage Natural Resource Lands ordinance code 14.38 was a legally required disclosure for the residents of the Burlington Hill development, prior to their closings.
14 15 16 17 18 19
139. It has been concluded that the developer, and its listing real estate company successfully opposed this recorded disclosure provision when the countywide ordinance was first adopted in July of the year 2000. Some title companies also have been reluctant to get involved in the disclosure process because of perceived procedural burdens.
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COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – ASBESTOS EXPOSURE IN TINAS COMA DEVELOPMENT 43 of 64.
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140. Most realtors use disclosure statements when selling residential properties in rural areas, although few seem to be aware of this countywide requirement for notice. Timing is also an issue in the adequacy of disclosures in real estate sales. Disclosures are usually provided at the completion of a transaction, when escrow is closed. This was too late in the transaction for new information to have much impact, since it comes sometime after the basic decision to buy has been made. The impact of the information is further diluted by the numerous other documents purchasers must read and sign at this stage, making it difficult to highlight the importance of the disclosure.
2 3 4 5 6
141. What would have made for an effective countywide Right-ToManage Natural Resource Lands ordinance? The key lied in specific, and current disclosure, requirements and how they are implemented.
7 8
142. An effective and correct countywide ordinance for the Burlington Hill residents, was the Right-To-Manage Natural Resource Lands, which was in force before the Burlington Hill plat was recorded in August of 2000. Had this ordinance been the proper one used to fully inform both directly affected parties and the community at large, about the importance of maintaining and managing the natural resource lands, (and not the obsolete right-to-farm ordinance that was no longer in effect) the homeowners on Burlington hill, and other residents in edge areas, that were considering purchasing land, and those already living there, would have acquired a full appreciation of the consequences of residing next to natural resource lands, that from time to time generated noise, dust, odor, and in our case, a “no other option” mining-related excavation process, that involved extraction, crushing, stockpiling, blasting, transporting and recycling of the onsite minerals, that came with every home, duplex or condominium being constructed throughout the Burlington Hill site, and residents, who were in close proximity, would have to accept, such incompatibilities, inconveniences or discomfort from these activities.
9 10 11 12 13 14 15 16 17 18
143. Finally, the Burlington Hill residents are now required (as of September 2014), 15 years after the plat recording, stating that as potential sellers, you are legally obligated to disclose (what will appear as a covenant, or deed restriction upon the subject property, or that of the plat, that shall run with the land), these negative effects, to your prospective home buyers, the pertinent tradeoffs, to the negative impacts against the scenic, cost, and other benefits of living on Burlington Hill.
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144. Approximately 16 years have gone by since the recording of the plat, and only (1) single Burlington Hill resident, in the year of 2016, recorded the legally required Right-To-Manage Natural Resource Lands Ordinance Disclosure, that was signed, notarized, and recorded, prior to the closing, per Sections: 14.38.010 Policy and purposes. 14.38.020 Nuisance. 14.38.030 Disclosure. Of (Ord. 17938 Attch. F (part), 2000).
2 3 4
145. Plaintiffs reallege all paragraphs set forth above as if fully set forth here.
5 6
146. The city and its officials negligently misrepresented the material facts set forth above, namely and generally, that Tinas Coma was suitable for residential development and otherwise was not impaired by any issues concerning unmitigated and unpremeditated asbestos exposure and/or contamination.
7 8 9
147. The city had a duty to refrain from express or implied false representations concerning the suitability of Tinas Coma for residential development, and further to refrain from material omissions in considering whether to disclose the existence of actual or potential asbestos contamination in the Tinas Coma subdivision, and further, the existence of unmitigated and unremediated commercial asbestos mining by Asbestos-Talc Products of Washington, Inc.
10 11 12 13
148. Plaintiffs justifiably relied upon such representations from the city of Burlington, express and implied, in securing a building permit for the building on Plaintiffs lot under the reasonable assumption that it was suitable for residential construction, and has since subsequently suffered damage therefrom, as the value of Plaintiffs’ property has been reduced and diminished by the unresolved issues pertaining to asbestos exposure and contamination.
14 15 16 17
Plaintiffs are entitled to damages from the actions of the Defendant as set forth above and below.
18 19
B. NEGLIGENCE 20 149. Plaintiffs reallege all paragraphs set forth above as if fully set forth here.
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COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – ASBESTOS EXPOSURE IN TINAS COMA DEVELOPMENT 45 of 64.
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150. Defendant city of Burlington was negligent in one or more of the following particulars:
2 3
In failing to properly oversee the design and construction of Hillcrest Drive at the time of its consideration of the approval of the subdivision, including the failure to investigate and discover the geologic character of the subdivision, including its past uses as a commercial quarry and commercial mine for the production of asbestos laden materials and commercial products, and otherwise for the city’s failure to be aware of the hill and subdivision site as one of “naturally occurring asbestos”
In failing to conduct an appropriate environmental review of the project, including the preparation of an appropriate preliminary and final EIS that accurately assessed the overall environmental impact of the development, including the overall asbestos exposure risks to individuals working on the development and later those living within the development.
In allowing the development to commence and continue without requiring a forest practices permit according to Washington law.
In allowing the development to commence and continue without requiring an accurate and complete critical areas analysis according to the then-existing critical areas code of Burlington.
In allowing the development to commence and continue without requiring an accurate and complete analysis of whether the development threatened or affected an endangered species, the bald eagle.
In allowing the development to commence and continue without requiring the developers to obtain appropriate approval and/or licensing from the state department of ecology to use the site for the deposit of hazardous waste for asbestos laden materials.
For failing to require any asbestos remediation or mitigation during the commencement and continuation of the construction of the subdivision according to Washington law.
In authorizing and allowing development of the Tinas Coma subdivision on the site of naturally occurring asbestos formerly actually used a site for the mining
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COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – ASBESTOS EXPOSURE IN TINAS COMA DEVELOPMENT 46 of 64.
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of asbestos, including the placement of a proposed multifamily condominium on the site of the old abestos quarry
2 3
In approving the Tinas Coma plat, including the failure to investigate and discover the geological character of the subdivision, including its past uses as a quarry for the production of asbestos laden materials, and otherwise to be aware of it as a site of “naturally occurring asbestos”
In engaging in and continuing with these same acts and omissions with respect to its role in the Hillcrest Drive “realignment”.
In failing to disclose or otherwise notify and apprise and warn residents of Hillcrest Drive, prospective purchasers, and applicants for development permits including the Plaintiff, of the prior asbestos related uses of the property and the subsequent actual or potential asbestos exposure and contamination issues related to the initial development of the hill and the Hillcrest Drive realignment;
In failing to disclose or otherwise notify residents, purchasers and applicants for development permits of the discussions and arrangements between the Defendants for the road failure and reconstruction, including particularly the terms and conditions of the October 2006 agreement;
In reconstructing and/or overseeing and funding and subsidizing the reconstruction of Hillcrest Drive; including but not limited to: 1) the initial defective design of the road and the reconstruction, and inaccurate assessment of the magnitude and severity of the reconstruction problem; 2) improperly contracting for the performance of such reconstruction, 3) excessive boring and blasting and heavy construction activity constituting nuisance and trespass to adjacent properties or otherwise interfering with the use and peaceful enjoyment of such properties 4) gross miscalculation and assessment of the overall time required for the reconstruction, 5) allowing an unlicensed contractor to manage and oversee the reconstruction; 6) in allowing the reconstruction to occur causing extensive disturbance of friable rock containing asbestos laden materials, especially without remediation of any type.
In entering the October 2006 agreement and thereafter failing to enforce its terms, in particular, though not limited to 1) allowing project oversight by a party not licensed as a contractor in Washington State and 2) allowing any bond or security or insurance made available from Property Investors LLC to lapse, either after the approval of the Tinas Coma plat, or during the course of the reconstruction; 3)failing to require a complete and comprehensive
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COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – ASBESTOS EXPOSURE IN TINAS COMA DEVELOPMENT 47 of 64.
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environmental review of the project including notice and opportunity to comment from residents within the subdivision; 4) failing to require Property Investors to secure a permit for closing the road; 5) failing to require Property Investors to provide appropriate notice and approval from residents for the alteration of a subdivision pursuant to statute; 6) failing to require any permit for the closing of a public road; 7) failing to ensure that Property Investors secured and retained insurance to consistent with the terms of the agreement with respect to the realignment project.
2 3 4 5 6
In failing to disclose or otherwise notify residents, purchasers and developers of the circumstances surrounding the reconstruction, including the plan for reconstruction and the likely effect it would have on such parties;
In failing to disclose to Plaintiff its actual knowledge of actual or potential asbestos contamination after Plaintiff’s building permit application.
7 8 9
151. As the lead regulatory agency for the Tinas Coma development, the city had a duty to future residents of the subdivision, including the Plaintiff here, to exercise reasonable care to assure that it was beings sited in a place and area where there were no actual or potential risks to future residents of toxic or hazardous asbestos exposure or toxic or hazardous asbestos contamination. Defendant Margaret Fleek, as the city planning director, as specific and direct authority to oversee the development process, and she in such capacity had a duty to exercise reasonable care to assure that the development as planned would not create a risk of asbestos exposure and contamination to future residents of Tinas Coma.
10 11 12 13 14 15
152. As the lead agency responsible for administering the various state and local regulations for development, the city of Burlington had a duty to future residents of the subdivision, including the Plaintiff here, to diligently and correctly administer its own zoning, building, development, subdivision and critical areas codes so as to ensure appropriate approval of Tinas Coma without exposing such residents to asbestos exposure or asbestos contamination issues as are occurring here and now.
16 17 18 19 20
153. Plaintiffs reasonably relied on Defendants in such particulars and were completely and wholly dependent on Defendants in such particulars, that is, in assessing the overall suitability of the development for residential use.
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154. Plaintiffs have suffered damages from such negligence by Defendants, as detailed above and below.
2 3
C. NUISANCE
4
155.
5
156. The city’s acts in developing, and allowing the development, of Burlington Hill within the Tinas Coma subdivision effectively permitted the disruption and release of earth and rock containing asbestos. Asbestos is known to be a highly toxic, transitory substance, often imperceptible, exposure to which periodically leads to illness causing death. Such illnesses often have a prolonged gestation period and usually cause certain pain and discomfort and suffering. The disturbed earth and bedrock was otherwise dormant and did not present any adverse health risks until the subdivision construction was underway, including the artificial disturbance and exposure of underlying asbestos laden rock and minerals. Such materials have been moved each year since the inception of construction and work on the subdivision as they were never mitigated and have not since been mitigated or abated. Defendants’ acts in demolishing and rebuilding the road in 2006 had the same effect.
6 7 8 9 10 11 12 13
Plaintiffs reallege the paragraphs set forth above here.
157. The Plaintiffs here reasonably believe that the actual or potential asbestos contamination within the Tinas Coma subdivision threatens their well being and that of their families and visitors traveling in or around the subdivision.
14 15
158. The publishing of certain governmental studies, specifically the EPA “field reconnaissance” by the EPA concerning the existence of asbestos in and around the Tinas Coma subdivision and generally “on Burlington Hill” materially impairs the market value of Plaintiffs’ property within the subdivision.
16 17 18
159. The publishing of certain news articles and other broadcasts about the EPA studies about the existence of asbestos in and around the Tinas Coma subdivision materially impairs the market value of Plaintiffs’ property within the subdivision.
19 20 21
160. The publication of certain information on the world wide web concerning the actual or potential existence of asbestos or as to actual or
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COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – ASBESTOS EXPOSURE IN TINAS COMA DEVELOPMENT 49 of 64.
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potential asbestos exposure or contamination, by private parties and by the Skagit County Health Department generally identifying “Burlington Hill” as a site of naturally occurring asbestos materially impairs the market value of Plaintiffs’ property within the subdivision.
2 3
161. The existence of other claims and lawsuits and other litigation concerning the potential asbestos contamination or exposure from others in and around Burlington Hill, including the asbestos related counterclaims and related documents filed by the city of Burlington in the Premier Land Development litigation, materially impairs the market value of Plaintiffs’ property within the subdivision.
4 5 6 7
162. The existence of the facts set forth in this complaint concerning asbestos within the Tinas Coma subdivision and in and around Burlington Hill constitute a nuisance actionable at common law or under Chapter 7.48 RCW for the State of Washington.
8 9
163. To seek recovery against the city here, in this cause of action, Plaintiffs have had to engage the services of legal counsel, and have incurred or will incur attorney fees to prosecute this cause of action. Plaintiffs are entitled to recover reasonable attorney fees from the city for the prosecution of this cause of action.
10 11 12 13
D. UNLAWFUL TAKING - WASHINGTON CONSTITUTION
14
164.
Plaintiff realleges all above paragraphs as if full set forth here.
15 165. The actions of the Defendants in jointly developing the subdivision, approving the subdivision, and regulating the subdivision, while allowing and Plaintiffs to purchase properties within the subdivision and then secure building permits, without notice of the facts set forth above concerning asbestos, constitutes an unlawful taking of Plaintiffs’ private property, without compensation, in that Plaintiff’s property value has been severely or completely diminished.
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166. Plaintiffs and others reasonably believe that the threat of unmitigated and unremediated asbestos exposure and asbestos contamination from the activities of the city of Burlington in permitting the development and in participating in the activities in which asbestos was disturbed presents a substantial risk of harm to themselves, to their visitors, and to other people that would be in and around their home and
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in the Tinas Coma subdivision. Such belief is based on well-recognized and generally accepted scientific evidence that asbestos is a toxic substance which causes severe illness, sickness and death in human beings.
2 3
167. Plaintiffs have had to engage the services of legal counsel, and have incurred or will incur attorney fees to prosecute this cause of action. Plaintiffs are entitled to recover reasonable attorney fees from the city for the prosecution of this cause of action.
4 5 6
E. RCW CHAPTER 70.105
7 168. The Plaintiffs reallege all the paragraphs set forth above as if set forth here.
8 9
169. The activities of Asbestos-Talc Products of Washington, Inc. in specifically extracting rock and ore containing asbestos for the production of asbestos products have never been quantified, remediated, or mitigated by any party. The mining activities of the company occurred over a prolonged period of time on Burlington Hill. There were no regulations then in effect requiring any remediation or clean up. At such time the risks of exposure were not known or generally accepted as they now have been for many decades. This extraction and removal is not natural and it is artificial.
10 11 12 13 14
170.
Burlington Hill is a site of naturally occurring asbestos.
15 171. The city of Burlington authorized, allowed and permitted substantial artificial alterations of the existing topography of Burlington Hill for the initial stages of the Tinas Coma development in the late 1990s and early 2000s, including the extraction, transport, removal, displacement and deposit of extraordinary amounts of earth containing unquantified concentrations of asbestos. These activities involved the movement and deposit of hundreds of thousands of cubic yards of such material in and around the Tinas Coma subdivision. The activities are not “naturally occurring”.
16 17 18 19 20
172. The movement and dumping and deposit of extracted earth and rock containing asbestos during the initial development of Tinas Coma is properly classified as “disposal” of “hazardous waste” under RCW 70.105.010(6) and (11).
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173. The movements of such asbestos materials during the initial development of Tinas Coma, under the oversight of the city of Burlington, was not regulated by the city of Burlington as hazardous waste disposal. The Department of Ecology did not oversee such activities because the city of Burlington failed to apprise it of such activities. The United States Environmental Protection Agency did not regulate and oversee such activities because it was not apprised of such activities.
2 3 4 5
174. The movements of such asbestos materials during the initial development of Tinas Coma, and the consequent health risks to human beings, has never been formally quantified by any regulatory agency and is at present largely unknown, except that the certain rock samples taken from the site contain asbestos minerals, as evidenced by private and EPA testing.
6 7 8 9
175. Neither the city of Burlington nor Property Investors sought permission from the Department of Ecology to establish Burlington Hill or any other location as an approved site for the acceptance of hazardous waste materials containing asbestos, as would otherwise be required by RCW Chapter 70.105, during the initial stages of development in the late 1990s and early 2000s.
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176. The city of Burlington authorized, allowed and permitted and funded substantial artificial alterations of the existing topography of Burlington Hill for “realignment” of Hillcrest Drive, inside the Tinas Coma development between 2006 and 2008, including the extraction, transport, removal, displacement and deposit of extraordinary amounts of earth containing unquantified concentrations of asbestos. These activities involved the movement and deposit of hundreds of thousands of cubic yards of such material in and around the Tinas Coma subdivision.
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177. The movement and dumping and deposit of extracted earth and rock containing asbestos during the “realignment” project between 2006 and 2008 is properly classified as “disposal” of “hazardous waste” under RCW 70.105.010(6) and (11).
19 20
178. The movements of such asbestos materials during the “realignment” of Hillcrest Drive in the Tinas Coma development, under the oversight of the city of Burlington, and with funding from the city of Burlington, was not regulated by the city of Burlington as hazardous waste disposal.
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The Department of Ecology did not oversee such activities because the city of Burlington failed to apprise it of such activities. The United States Environmental Protection Agency did not regulate and oversee such activities because it was not apprised of such activities.
2 3
179. The movements of such asbestos materials, and the resulting health risks to human beings in and around the area, during the “realignment” of Hillcrest Drive has never been formally quantified by any regulatory agency and is at present largely unknown, except that the certain rock samples taken from the site contain asbestos minerals, as evidenced by private and EPA testing.
4 5 6 7
180. The city of Burlington and Property Investors never sought permission from the Department of Ecology to establish Burlington Hill or any other location as an approved site for the acceptance of hazardous waste materials containing asbestos, as would otherwise be required by RCW Chapter 70.105, during the initial stages of development in the late 1990s and early 2000s, or prior to, during or after the “realignment” of Hillcrest Drive.
8 9 10 11
181. There has been no remediation of the site following the initial stages of the Tinas Coma development, and no remediation of the site following Hillcrest “realignment” between 2006 and 2008.
12 13
182. As the city of Burlington, and its agent, Defendant Fleek, knew or should have known that Burlington Hill was formerly a site of an unremediated commercial asbestos mine, and was otherwise a site of naturally occurring asbestos, and that it was the site of the “old quarry”, the city and Ms. Fleek violated RCW Chapter RCW 70.105 or the rules adopted thereunder, pursuant to RCW 70.105.097.
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183. The Plaintiff has suffered damage by the violation or violations of RCW Chapter 70.105 by the city of Burlington, its agents and employees, including specifically its planning director, Ms. Fleek, as set forth here in this complaint.
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184. Plaintiff has had to engage the services of legal counsel, and has incurred or will incur attorney fees to prosecute this cause of action. Plaintiff is entitled to recover reasonable attorney fees from the city for the prosecution of this cause of action.
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E. RCW CHAPTER 70.105D
2
185.
3
Plaintiff realleges all paragraphs above as if set forth here.
186. The actions of city of Burlington and its agent and employee, Ms. Fleek, in authorizing the Tinas Coma development and its attendant radical alteration of the rock and earth of Burlington Hill in the late 1990s and early 2000s, and in authorizing and funding further radical alteration of the hill topography for the Hillcrest “realignment” between 2006 and 2008, have resulted in actual or potential contamination of Plaintiffs’ property from asbestos release and exposure.
4 5 6 7
187. The original Tinas Coma development plan, and its subsequent actual development in and around the year 2000, was a “facility” as defined in RCW 70.105D.030(8) over which the Department of Ecology had jurisdiction. The construction activities occurring during the initial development phase of Tinas Coma, in and around the year 2000, created an actual or potential release of a hazardous substance, asbestos, as defined by RCW 70.105D.030(32). The city of Burlington is a potentially liable person under RCW 70.105D.030(26), or a liable person under RCW 70.105D.040 for the operation of such facility.
8 9 10 11 12
188. The Hillcrest Drive “realignment” project in 2006 to 2008 was a “facility” as defined in RCW 70.105D.030(8). The construction activities occurring during the 2006 – 2008 “realignment project” created an actual or potential release of a hazardous substance, asbestos, as defined by RCW 70.105D.030(32). The city of Burlington is a potentially liable person under RCW 70.105D.030(26), or a liable person under RCW 70.105D.040 for the operation of such facility.
13 14 15 16
189. As one party primarily responsible for such release of hazardous substances in and around Plaintiff’s property, the city and its agents are strictly liable for the costs of assessment, remediation and mitigation of such release and exposure in accordance with RCW 70.105D.040.
17 18 19
190. The city and its agents should be required to take all appropriate actions and steps to quantify, remediate and mitigate the potential asbestos exposure and contamination arising from such activities.
20 21
191. Plaintiff is entitled to demand such quantification, remediation and mitigation under RCW 70.105D.080.
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192. Plaintiff has had to engage the services of legal counsel, and has incurred or will incur attorney fees to prosecute this cause of action. Plaintiff is entitled to recover reasonable attorney fees from the city for the prosecution of this cause of action.
2 3 4
F. ACTION PURSUANT TO STATE ENVIRONMENTAL POLICY ACT
5
193.
6
194. The Washington State Legislature adopted the State Environment Policy Act in 1971 as a means to create a process to identify possible environmental impacts that may accompany governmental actions. These actions include issuing permits for private projects, constructing public facilities, or adopting ordinances, regulations, policies, or plans. Information provided during the SEPA review process enables agencies, applicants, and the public to assess how a proposed action will affect the environment.
7 8 9
Environmental Checklist
10 195. The assembled information may lead to a change in a proposal to reduce impacts or to condition or deny a proposal because of adverse environmental impacts. SEPA recognizes the broad policy "that each person has a fundamental and inalienable right to a healthful environment." RCW 43.21C.020 (3). State agencies are required to use "all practicable means" to achieve the following goals:
11 12 13 14
196. (a) Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
15
197. (b) Assure for all people of Washington safe, healthful, productive, and aesthetically and culturally pleasing surroundings;
16 17
198. (c) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.
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199. Over forty years ago, with the adoption of SEPA, we first read in Washington law that each generation is a trustee of the environment for succeeding generations. Lands Council v. Wash. State Parks & Recreation Comm 'n, 176 Wn. App. at 807-08 (2013).
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200. Contrary to popular belief, SEPA does not demand a particular substantive result in government decision making. Instead, the act ensures that environmental values are given appropriate consideration. Stempel v. Dep’t of Water Res., 82 Wn.2d 109, 118, 508 P.2d 166 (1973); Moss v. City of Bellingham, 109 Wn. App. 6, 14, 31 P.3d 703 (2001).
2 3 4
201. SEPA imposes on the government agency a duty to assemble and review full environmental information before rendering a decision. Davidson Serles & Assocs. v.City of Kirkland, 159 Wn. App. 616, 63435, 246 P.3d 822 (2011). Briefly stated, the procedural provisions of SEPA constitute an environmental full disclosure law. Norway Hill Pres. & Prot. Ass 'n v. King County Council, 87 Wn.2d 267, 272, 552 P.2d 674 (1976). SEPA attempts to shape the state's future environment by deliberation, not default. Stempel v. Dep't of Water Res., 82 Wn.2d at 118; Loveless v. Yantis, 82 Wn.2d 754, 765-66, 513 P.2d 1023 (1973). In essence, SEPA requires that the "presently unquantified environmental amenities and values will be given appropriate consideration in decision making along with economic and technical considerations." RCW 43.21C.030(2)(b); see also Norway Hill, 87 Wn.2d at 272 (1976).
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202. RCW 43.21C.030(2)(c), a critical section of SEPA, requires all counties to:
13
15
203. Include in every recommendation or report on proposals for legislation and other major actions significantly affecting the quality of the environment, a detailed statement by the responsible official on:
16
204.
(i) the environmental impact of the proposed action;
205.
(ii) any adverse environmental effects which cannot be avoided
206.
should the proposal be implemented;
207.
(iii) alternatives to the proposed action;
14
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208. (iv) the relationship between local short-term uses of the environment and the maintenance and enhancement of long-term
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209.
3
productivity; and
210. (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
4 5
211. Thus, under RCW 43.21C.030(2)(c), major actions significantly affecting the quality of the environment require an environmental impact statement. Cheney v. Mountlake Terrace, 87 Wn.2d 338, 344, 552 P.2d 184 (1976); Davidson Serles & Assocs. v. City of Kirkland, 159 Wn. App. at 634 (2011).
6 7 8
212. An administrative rule implementing SEPA defines "major action" circularly:
9 10
213. "Major action" means an action that is likely to have significant adverse environmental impacts. "Major" reinforces but does not have a meaning independent of "significantly" (WAC 197-11-794).
11 12
WAC 197-11-764. WAC 197-11-704, in turn, defines "actions" as: 13 214.
(1) "Actions" include, as further specified below: (c) Legislative proposals.
215.
(2) Actions fall within one of two categories: (a) Project actions.... (b) Nonproject actions. Nonproject actions involve decisions on policies, plans, or programs.
14 15 16 17
216. (i) The adoption or amendment of legislation, ordinances, rules, or regulations that contain standards controlling use or modification of the environment;
18 19 20
217. (Emphasis added) (Boldface omitted). The City of Burlington agrees that its adoption of an Ordinance constitutes an action within the meaning of SEPA. The city, however, contends the ordinance does not significantly impact the environment.
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218. If SEPA covers a local governmental action, the government next determines if the action will "significantly affect" the environment. SEP A does not define "significantly affecting." Davidson Serles v. City of Kirkland, 159 Wn. App. at 634.
2 3
219.
4
WAC 197-11-794 reads:
220. (1) "Significant" as used in SEPA means a reasonable likelihood of more than a moderate adverse impact on environmental quality.
5 6
221. (2) Significance involves context and intensity (WAC 197-11-330) and does not lend itself to a formula or quantifiable test. The context may vary with the physical setting. Intensity depends on the magnitude and duration of an impact.
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222. The severity of an impact should be weighed along with the likelihood of its occurrence. An impact may be significant if its chance of occurrence is not great, but the resulting environmental impact would be severe if it occurred.
10 11
223. Under case law, the agency should prepare the environmental impact statement whenever more than a moderate effect on the quality of the environment resulting from the governmental action is a reasonable probability. King County v. Wash. State Boundary Review Ed. for King County, 122 Wn.2d 648,664,860 P.2d 1024 (1993).
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224. Under SEPA, evaluation of a proposal's environmental impacts requires examination of at least two relevant factors: (1) the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area, and (2) the absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area. Norway Hill, 87 Wn.2d at 277 (1976); Narrowsview Pres. Ass 'n v. City a/Tacoma, 84 Wn.2d 416,423, 526 P.2d 897 (1974).
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225. The decision of whether a governmental action will significantly impact the environment is called the threshold determination. Moss v. City of Bellingham, 109 Wn. App. at 14 (2001). The lead agency must make its threshold determination based on information reasonably sufficient to evaluate the environmental impact of a proposal.
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COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – ASBESTOS EXPOSURE IN TINAS COMA DEVELOPMENT 58 of 64.
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226. WAC 197-11-335; Moss v. City of Bellingham, 109 Wn. App. at 14. The agency issues a determination of nonsignificance if it determines that the project will have no probable significant adverse environmental impacts. WAC 197-11-340(1); Lanzce G. Douglass, Inc. v. City of Spokane Valley, 154 Wn. App. 408, 422, 225 P.3d 448 (2010). If the local government decides that a proposal "may have a probable significant adverse environmental impact," the agency issues a determination of significance and identifies the areas on which an environmental impact statement must focus. RCW 43 .21 C.031; WAC 197-11-360(1); Lanzce G. Douglass, 154 Wn. App. at 422. A determination of significance mandates the preparation of a full environmental impact statement. Moss v. City of Bellingham, 109 Wn. App. at 15 (2001).
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227. Before reaching the determination of significance or nonsignificance, the government agency reviews an environmental checklist. WAC 197-11-315; Moss v. City of Bellingham, 109 Wn. App. at 14 (2001). When the local governmental action constitutes the granting of a development permit, the applicant of the permit completes the environmental checklist. If the action entails an ordinance, the local government prepares and reviews the checklist. This appeal centers on the environmental checklist prepared by Burlington’s SEPA official Margaret Fleek.
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228. By way of the environmental checklist, the responsible agency must show that it considered the relevant environmental factors and that its decision to issue any determination of nonsignificance was based on information sufficient to evaluate the proposal's environmental impact. RCW 43.21C.030(2)(c); Wenatchee Sportsmen Ass 'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). The purpose of the checklist is to ensure an agency, at the earliest possible stage, fully discloses and carefully considers a proposal's environmental impact before adopting it. Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd., 176 Wn. App. 555, 579, 309 P.3d 673 (2013), review denied, 179 Wn.2d 1015, 318 P.3d 279 (2014). If the checklist does not contain sufficient information to make a threshold determination, the preparer may be required to submit additional information. WAC 197-11-335(1); Moss v. City of Bellingham, 109 Wn. App. at 14 (2001).
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229.
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230. The State Environmental Policy Act (SEPA) generally requires a thorough and complete analysis and study of the various environmental factors that accompany a project. Such analysis should include the risk of exposure to toxic or hazardous materials and substances, and remediation of them.
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Plaintiff realleges all paragraphs above as if set forth here.
231. The original SEPA in this matter called for a full environmental review, called an environmental impact statement (EIS).
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232. The original EIS in this matter did not include any analysis of risk factors that might exist because of the “old quarry” in the middle of the subdivision site, nor of the previously apparently unmitigated activities of Asbestos-Talc Products of Washington, Inc. at the site. Current information about its actual activities had always been available at the Washington State Department of Natural Resources and the United States Bureau of Mines.
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233. The original EIS here did not include any analysis of what risk might be aggravated by the development itself with regard to asbestos, either naturally occurring at the site, or artificially occurring, by Asbestos-Talc Products of Washington, Inc. or by the activities involved in the development itself, either in its initial stages or in the Hillcrest Drive realignment between 2006-2008.
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234. The initial development and the realignment involved displacement of vast quantities of rock and earth that likely contained concentrations of asbestos.
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235. The original SEPA was grossly insufficient insofar as it failed to account in any manner for the potential release of asbestos during the initial project. The city’s adoption of the original SEPA for the road realignment was also insufficient as it failed to address in any manner the potential for artificial release of asbestos during the project.
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236. The city of Burlington was the lead agency for the original SEPA and for the adoption of that environmental review for the realignment project in 2006.
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COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – ASBESTOS EXPOSURE IN TINAS COMA DEVELOPMENT 60 of 64.
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237. Residents of the development and others are potentially exposed to airborne asbestos.
2 238. The original SEPA and the 2006 adoption of that SEPA for the realignment project are void insofar as they fail to address the issues of asbestos exposure and contamination in and around the Tinas Coma development.
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239. The city of Burlington should be compelled to prepare, at its own cost, an amended, new, or supplemental SEPA specifically incorporating and addressing the risks of asbestos exposure from the various activities already occurring, as described in this complaint.
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240. In accordance with SEPA the city of Burlington should be compelled to publish and deliver the results of such amended, new or supplemental preliminary or draft SEPA to the original parties on the original distribution list of the original SEPA, and also the current residents of the development, to the former residents of the development, and to all those living within 600 feet of the outer boundaries of Tinas Coma, and provide evidence to the court of such publication and delivery.
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241. In accordance with SEPA, the city of Burlington should be compelled to conduct one or more public hearings, following appropriate notice, to the current residents of the development, to the former residents of the development, and to all those living within 600 feet of the outer boundaries of Tinas Coma, following the publishing and delivery of its amended, new or supplementary preliminary SEPA, and incorporate appropriate public comment on the contents of the document.
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242. In accordance with SEPA, the city of Burlington should be compelled to complete the EIS process anew, as described above, and provide proof and evidence of the same to this court.
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IV.
DAMAGES As a direct and proximate result of the conduct described above, plaintiffs have
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sustained the following damages: COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – ASBESTOS EXPOSURE IN TINAS COMA DEVELOPMENT 61 of 64.
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243. Loss of the funds which were used to acquire their properties within the Tinas Coma subdivision;
2 244. Loss of interest and other financing costs associated with the financing of the property;
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245.
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All costs of construction of the residences;
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246. Loss of all or virtually all of the market value of the Plaintiffs’ property;
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247.
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All property taxes paid since the property was acquired;
248. General compensatory and other consequential damages for claims set forth above, to be detailed at trial.
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249.
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Attorney fees and costs for this action.
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V.
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Plaintiffs request that the court enter judgment against the city of Burlington, as
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REQUEST FOR RELIEF
follows,
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1. Awarding Plaintiffs’ claimed damages as detailed at trial.
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2. Awarding Plaintiffs’ prejudgment interest on the damages award.
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3. Awarding Plaintiffs’ reasonable attorney fees and litigation expenses.
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4. Awarding Plaintiffs’ general compensatory and other consequential damages and statutory fees and costs. 5. A declaration from this court concluding that the original SEPA documents prepared by the city of Burlington, originally and in 2006 at the time of the realignment project, were void as being insufficient for failure to account for the asbestos related activities and phenomenon detailed in this complaint.
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6. Preliminary and/or permanent orders or a judgment requiring the city of Burlington to prepare a new or supplemental environmental impact statement for the Tinas Coma development and realignment project incorporating the evidence of asbestos related activity, by itself and others, as otherwise would be required by the various code provisions set forth above, including but not limited to SEPA, the Washington State hazardous waste statutes and related administrative codes set forth above, the various state statutes and related administrative rules concerning asbestos exposure and remediation in the workplace as enforced by the Washington State Department of Labor and Industries, the municipal subdivision code of Burlington, the municipal critical areas code of Burlington, the municipal fill and grade code of Burlington, the municipal blasting code of Burlington, and the SEPA procedures embedded in the Burlington code. 7. Preliminary and/or permanent orders or a judgment requiring the city of Burlington, in preparing a new or supplemental environmental review, issue a preliminary SEPA which is published and redistributed, preferably by mail, to all to all persons now living in the Tinas Coma subdivision, or within 600 feet of its outer boundaries, and to all parties who were originally notified of the SEPA at or around 1999, with proof of such notice being filed with the court. COMPLAINT FOR DAMAGES, DECLARATORY AND INJUNCTIVE RELIEF – ASBESTOS EXPOSURE IN TINAS COMA DEVELOPMENT 63 of 64.
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8. Preliminary and/or permanent orders or a judgment requiring the city of Burlington to conduct one or more public hearings concerning the new or supplemental EIS based upon the incorporation of the asbestos related activities, with proof of such hearings occurring being filed with the court.
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9. Preliminary and/or permanent orders or a judgment requiring that the city of Burlington, following completion of such new or supplemental environmental review, publish such review to all persons now living in the Tinas Coma subdivision, to the original parties notified of the 1999-2000 SEPA, or within 600 feet of the outer boundaries of Tinas Coma. 10. Awarding Plaintiff temporary or permanent injunctive or declaratory relief, or both, ordering the city of Burlington to abstain from the issuance of any more development or building permits, of any kind, until such time as the asbestos risk to the Plaintiff (and others in and around the subdivision) is appropriately quantified and remediated by the city of Burlington; 11. Such other relief as the court deems just and proper.
11 Respectfully submitted this _______ th day of __________ 2016, 12 _____________________________ 13 14 15 16 17 18 19 20 21 22 23
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