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Pierce v. Northeast Lake Washington Sewer and Water District

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

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

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

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

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

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.

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, ยง 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 ...


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