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Pierce v. Northeast Lake Washington Sewer and Water District

SUPREME COURT OF WASHINGTON


decided: March 17, 1994.

ARTHUR E. PIERCE, ET AL, PETITIONERS,
v.
NORTHEAST LAKE WASHINGTON SEWER AND WATER DISTRICT, RESPONDENT

En Banc. Smith, J. Utter, Dolliver, Durham, Guy, Johnson, and Madsen, JJ., concur. Brachtenbach, J., concurs in the result only; Andersen, C.j., did not participate in the disposition of this case.

Author: Smith

[123 Wash2d Page 551]

Petitioners Arthur E. and Patricia L. Pierce seek review of a decision of the Court of Appeals, Division One, dismissing their inverse condemnation claim and affirming a judgment of the King County Superior Court which dismissed their complaint with prejudice and granted

[123 Wash2d Page 552]

summary judgment in favor of respondent Northeast Lake Washington Sewer and Water District (Respondent). We affirm the Court of Appeals.

Statement of Facts

The Northeast Lake Washington Sewer and Water District (District) is a municipal corporation providing water and sewer service to approximately 50,000 people.*fn1 In 1984, the District acquired 5.4 acres of residentially owned property in Lake Forest Park, King County, adjacent to property owned by Arthur E. and Patricia L. Pierce (Petitioners).*fn2 The District intended to construct a 4.3-million gallon water storage tank on the property.*fn3 It looked at several other sites, but chose this one because the sloping hillside would enable the District to obscure sight of most of the tank, thus reducing "site impact" on neighboring residences farther up the hill,*fn4 and because the property was zoned RS 9600.*fn5

On November 1, 1984, the District submitted an application to the King County Zoning Adjuster for an administrative

[123 Wash2d Page 553]

conditional use permit*fn6 to construct its 4.3-million-gallon water storage tank on the property.*fn7 On April 22, 1985, the zoning adjuster denied the administrative conditional use permit for the proposed tank,*fn8 concluding that the proposed tank was not compatible with the surrounding residential uses, that there would be a significant impact on the views of surrounding residents, and that there would be substantial land use conflicts.*fn9

On July 16, 1985, the District appealed the decision of the zoning adjuster to the King County zoning and subdivision examiner. The District submitted a substantially revised proposal for the water tank at the site.*fn10 After reviewing the record, Robert E. Beaty, deputy zoning and subdivision examiner, granted the administrative conditional use permit with appropriate conditions imposed on

[123 Wash2d Page 554]

the District to mitigate impact of the project on the surrounding area.*fn11

In July 1986, the District contracted with Skaar Construction, Inc., to construct the water tank on the site. Construction was begun in July 1986 and completed in December 1987, in compliance with all terms and conditions of the conditional use permit.*fn12

As authorized by the zoning and subdivision examiner, the 4.3-million-gallon water storage tank was 160 feet in diameter and 30 feet high.*fn13 Although it was constructed entirely on the property of the District, it was no more than 50 feet away from Petitioners' house.*fn14 The top of the tank was planted with grass, which was left in its natural condition, and the property surrounding it was maintained with shrubbery, trees and other forms of vegetation and grass.*fn15

In March 1988, Petitioners retained David E. Hunnicutt, an appraiser with Hugh A. Thompson & Associates, Inc., to determine the effect of construction of the water tank upon their property value.*fn16 Mr. Hunnicutt determined that construction of the tank resulted in a $30,000 loss in value to Petitioners' property.*fn17

On September 25, 1989, Petitioners filed a complaint for nuisance, trespass, negligence and inverse condemnation in the King County Superior Court against Respondent District and its general contractor, Skaar Construction, Inc., based upon construction and maintenance of the water storage

[123 Wash2d Page 555]

tank adjacent to their property.*fn18 Petitioners claim the tank is constantly visible from most of the "view" rooms of their home and particularly obstructs their view of Mount Rainier and the Cascades.*fn19 Petitioners settled all claims against Respondent with the exception of the inverse condemnation claim.*fn20 The District moved for summary judgment.

On November 1, 1991, the King County Superior Court, the Honorable George A. Finkle, granted summary judgment in favor of the District and dismissed the complaint with prejudice because Petitioners failed to demonstrate compensable damage to a property right for which they would be entitled to compensation.*fn21 On November 27, 1991, Petitioners filed a notice of appeal to the Court of Appeals, Division One.*fn22 On February 16, 1993, the Court of Appeals, Judge Jack P. Scholfield writing, affirmed the judgment of the King County Superior Court. We granted review on July 8, 1993.

Questions Presented

The questions presented in this case are (1) whether lawful construction and maintenance of a public structure which obstructs portions of adjacent property owners' view from their property constitutes a taking or damaging of their property under Washington Constitution article 1, section 16 (amendment 9); and (2) if there was a taking or damaging of their property, whether the adjacent property owners are entitled to just compensation.

[123 Wash2d Page 556]

Discussion

[1] This is an action in inverse condemnation brought by Petitioners against Northeast Lake Washington Sewer and Water District, a municipal corporation. Inverse condemnation is an action to "recover the value of property which has been appropriated in fact, but with no formal exercise of the [condemnation] power."*fn23 "Our constitution requires that just compensation be paid a landowner in the event of either a governmental 'taking' or 'damaging' of property."*fn24 Petitioners must prove a taking or damaging under article 1, section 16 (amendment 9) of the Washington Constitution if this court is to find they are entitled to just compensation. That section provides that "No private property shall be taken or damaged for public or private use without just compensation having been first made . . . ."

Under a general takings analysis, the elements of an inverse condemnation action are not in dispute. However, the only Washington case which considered a property owner's right to a view is State v. Calkins.*fn25 In that case the court stated

Clearly, there has been no specific declaration by our legislature of an intention to pay compensation for nonexistent property rights; i.e., access, air, view and light; furthermore, absent such rights, the condemnation proceedings herein do not violate Art. I, § 16, of our state constitution, which requires the payment of just compensation for the taking or damaging of property rights.*fn26

Although Calkins was not an action for inverse condemnation based upon interference with a property owner's right to a view, it is nevertheless somewhat indicative of this court's position on the matter. Because our own decisions

[123 Wash2d Page 557]

have not squarely addressed this issue, we may look to decisions from other jurisdictions which have dealt with inverse condemnation actions based upon interference with a property owner's right to a view. Cases from intermediate appellate courts in California and New York are the only ones which suggest a possible answer in this case.

Petitioners claim they are entitled to compensation under article 1, section 16 (amendment 9) of the Washington Constitution because construction of the water tank interferes with their view of Mount Rainier, the Cascades and Lake Washington, and because the water tank is not as aesthetically pleasing as the vacant land prior to construction of the tank.*fn27 They further claim construction of the water tank reduced the market value of their property.*fn28 Thus Petitioners assert a property interest in their right to a view, and claim this property right or interest was disturbed when the District constructed its 4.3-million-gallon water storage tank.

In Pacifica Homeowners' Ass'n v. Wesley Palms Retirement Comm'ty, the California Court of Appeal concluded that "[a]s a general rule, a landowner has no natural right to air, light or an unobstructed view and the law is reluctant to imply such a right."*fn29 However, "[s]uch a right may be created by private parties through the granting of an easement or through the adoption of conditions, covenants and restrictions or by the Legislature."*fn30

In Pacifica, the Homeowners' Association (Association) attempted to enjoin the Wesley Palms Retirement Community from allowing trees on its property to grow higher than the Association's five-story building.*fn31 The Association

[123 Wash2d Page 558]

claimed a conditional use permit placed a limitation on tree height, which was "imposed particularly for the benefit of the uphill landowners including the Association."*fn32 However, the court rejected the Association's arguments and stated that "[i]n the absence of any agreement, statute or governmentally imposed conditions on development creating a right to an unobstructed view, it cannot be said Wesley Palms . . . interfered with any right."*fn33

In Gervasi v. Board of Comm'rs of Hicksville Water Dist.,*fn34 the facts closely parallel those in this case. The plaintiffs in that case sought to enjoin the water district from completing construction of a water tank or to recover damages measured by the reduced value of their homes caused by construction of the water tank. In that case, the water district constructed a water storage tank on its own property. The plaintiffs claimed construction and maintenance of the tank reduced the market value of their properties. Their action was brought under the New York Constitution, which provides that "private property shall not be taken for public use without just compensation."*fn35 The New York Supreme Court, Special Term, concluded that the plaintiffs failed to state a cause of action because they had not been deprived of "property within the meaning of that provision as it ha[d] been construed by the courts."*fn36 The court determined that the plaintiffs had no cause of action because the water district constructed the water tank on its own property. The court found no deprivation of property under the takings clause of the New York Constitution.

Similarly, in the case now before us, the District constructed a water tank on its own property. We agree with the reasoning in Gervasi. We conclude that Petitioners have

[123 Wash2d Page 559]

not been deprived of any property rights because the District is acting only upon its own property.

The court in Gervasi further concluded that "[d]amages cannot be recovered because of the unsightly character of a structure and aesthetic considerations are not compensable in the absence of a legislative provision."*fn37 The damages argument made by the plaintiffs in Gervasi parallels Petitioners' claim in this case that the water tank caused a loss in the market value of their property.*fn38

[2, 3] Following the reasoning of the New York court in Gervasi, we conclude that Petitioners are not entitled to compensation for damages solely because of the unsightly character and the unaesthetic appearance of the water tank. Following the reasoning of the California decision in Pacifica and the decision in Gervasi, we conclude that Petitioners do not have a cause of action for inverse condemnation based on their claimed "right to a view". The water tank was a permissible use constructed and maintained solely upon the property of the District.

We recognize, though, that a right to a view can be created by easement.*fn39 "The courts unanimously hold that . . . an owner is entitled to just compensation if this easement or property right is taken or damaged."*fn40 The right to an unobstructed view does not exist, absent an agreement, statute or governmentally imposed condition affirmatively creating that right.*fn41 Under the facts of this case, we cannot conclude that Petitioners are entitled to compensation because construction of the water storage tank on the adjacent property

[123 Wash2d Page 560]

interfered with their unobstructed view. Petitioners did not have an easement for a view.*fn42 They did not have a restrictive covenant limiting the height or type of structures on adjacent property; nor were there any documents giving them a right to an unobstructed view.*fn43 Petitioners cannot establish that the District violated the "takings clause" of the Washington Constitution*fn44 by construction and maintenance of the water tank because no property or property interest of Petitioners was "taken" or "damaged" for a public purpose.*fn45

Ownership of property not only includes the right to exclusive possession, but also includes "the right to use the land".*fn46 Although Petitioners did not own a property interest in their view absent an easement, they could have a property interest in the market value of their property which would entitle them to compensation under the Washington Constitution. "The constitutional provisions must have been intended to protect all the essential elements of ownership which make property valuable."*fn47 Quoting from a Texas case, this court in Ackerman v. Port of Seattle stated:

"Property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal. Anything which destroys any of these elements of property, to that extent destroys the property itself. The substantial value of property lies in its use. If the right of use be

[123 Wash2d Page 561]

denied, the value of the property is annihilated and ownership is rendered a barren right."*fn48

(Italics ours.)

[4, 5] Property value, or landowners' economic interest in their property, may be considered an essential element of ownership.*fn49 In Highline Sch. Dist. 401 v. Port of Seattle, supra, this court concluded that "an inverse condemnation action for interference with the use and enjoyment of property accrues when the landowner sustains any measurable loss of market value. . .".*fn50 Although Highline involved inverse condemnation based on aircraft noise and vibration, the premise that a measurable loss in market value constitutes interference with a landowner's use and enjoyment of property would be applicable in this case only if the decline in market value was caused by unlawful governmental interference.*fn51

In this case, based upon appraisal of Petitioners' property, there is no dispute that there was in fact a measurable loss in market value after construction of the water tank. David E. Hunnicutt conducted an appraisal and concluded that construction of the tank had caused an actual loss in value to Petitioners' property of at least $30,000.*fn52 Clearly Petitioners have sustained a measurable loss of market value because of construction of the water tank. Under Highline, a measurable loss in market value "amounts to" an interference

[123 Wash2d Page 562]

with the use and enjoyment of property and Petitioners conceivably could be entitled to compensation for that interference. However, our prior decisions do not lead to the conclusion that loss in market value of Petitioners' property is of itself evidence of governmental interference with the use and enjoyment of property entitling them to compensation.*fn53 If property, or a substantial portion of that property, is destroyed by the government for a public purpose, the landowner would unquestionably be entitled to compensation under Const. art. 1, § 16 (amend. 9).*fn54 That section, however, does not "authorize compensation merely for a depreciation in market value of property when caused by a legal act."*fn55

In this case, the District complied with all legal requirements for construction of the water storage tank. After completion of the tank, it complied with all conditions under the King County administrative conditional use permit. The District followed all proper procedures to assure that construction and maintenance of the water tank would satisfy all zoning regulations. Construction of the water tank was a permitted legal use.

Petitioners claim they are entitled to compensation because the unaesthetic appearance of the unsightly water tank and the proximity of the tank to their property has

[123 Wash2d Page 563]

caused a loss in its market value. This court has not allowed compensation based merely upon proximity of a building or structure.*fn56

[6] Petitioners rely on Jacobs v. Seattle,*fn57 in which plaintiffs successfully brought an action under article 1, section 16 (amendment 9) of the Washington Constitution claiming their property had been taken and damaged because garbage and refuse was dumped "in close proximity to appellants' home . . .".*fn58 However, Jacobs is distinguishable from this case. In that case there was an actual taking and damaging of appellants' property where the "partly burned matter, which emit[ted] strong, disagreeable and noxious odors . . . cover[ed] appellants' home and yard and surrounding property . . .".*fn59 In this case, there is no taking or damaging of Petitioners' property. The District is not emitting noxious odors nor maintaining the water storage tank on Petitioners' property. Simply because the water tank is located near Petitioners' property does not necessarily mean they are entitled to compensation merely because depreciation in the market value of their property results from the close proximity of the tank.

Petitioners further claim the overbearing presence of the water tank interferes with their use and enjoyment of their property and that they should therefore be compensated for damages. However, we agree with the California court in People ex rel. Department of Pub. Works v. Symons,*fn60 which stated:

[D]amage for which compensation is to be made is a damage to the property itself, and does not include a mere infringement of the owner's personal pleasure or enjoyment. Merely rendering

[123 Wash2d Page 564]

private property less desirable for certain purposes, or even causing personal annoyance or discomfort in its use, will not constitute the damage contemplated . . . but the property itself must suffer some diminution in substance, or be rendered intrinsically less valuable by reason of the public use.

(Italics ours.)

Petitioners are not entitled in this case to just compensation under the takings clause of the Washington Constitution. They cannot establish a property right or interest in their right to a view; the District has not taken or damaged any property or property interest in Petitioners' land; and "mere infringement" upon Petitioners' personal pleasure and enjoyment of their property is not a sufficient basis for compensation.*fn61

Summary and Conclusions

Petitioners have failed to state a cause of action for inverse condemnation based upon a "right to a view". They did not own a property interest in a view. The courts have not recognized a right to a view absent an easement, restrictive covenant or other document creating an affirmative right. None of those exist in this case. Petitioners cannot establish that their property has been taken or damaged under their theory of interference with their "right to a view". Respondent Northeast Lake Washington Sewer and Water District, in full compliance with all legal requirements, constructed the water storage tank on its own property. Construction and maintenance of the tank did not encroach upon the property of Petitioners Arthur E. and Patricia L. Pierce. The water tank is a permitted legal use. Petitioners cannot establish that their property has been taken or damaged by the District constructing and maintaining a permitted legal use on its own property.

We affirm the decision of the Court of Appeals, Division One, dismissing Petitioners' claim for inverse condemnation

[123 Wash2d Page 565]

and affirming the judgment of the King County Superior Court.

Disposition

Holding that no compensation was due for the plaintiffs' loss of a portion of their view, a reduction in the market value of the property, or the plaintiffs' loss of personal pleasure and enjoyment of the property, the court affirms the decision of the Court of Appeals and the judgment.


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