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Mitchell v. Bischoff

United States District Court, W.D. Washington, Tacoma

March 27, 2015

CHRIS BISCHOFF, et al., Defendants.


BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Defendants Chris Bischoff, Michael Karnofski, and Jennifer Vines's ("Defendants") motion for summary judgment (Dkt. 33). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants in part and denies in part as moot Defendants' motion for the reasons stated herein.


On February 13, 2014, Plaintiffs Christine and Thomas Mitchell ("the Mitchells") filed a complaint against Defendants alleging that their civil rights have been violated because their property rights have been unreasonably restricted. Dkt. 1.

On February 5, 2015, Defendants filed a motion for summary judgment. Dkt. 33. On February 10, 2015, the Mitchells responded. Dkt. 36. On March 3, 2015, Defendants replied. Dkt. 37.


This is a case about the septic drainfield on Mrs. Mitchell's current property at 645 Ostrander Road in Kelso, Washington. The property is under the jurisdiction of Cowlitz County. The Mitchells sued Defendants because they were enforcing the Cowlitz County codes and ordinances when they denied the Mitchells' permit application to add a residence onto the existing septic system. The permit application was denied because the septic drainfield did not comply with Washington State and Cowlitz County health codes and ordinances.

In 1979, Robert Brown was the owner of the Ostrander Road property. Mr. Brown submitted plans to upgrade his home, adding (among other things) a bedroom. Mr. Brown's plans also included a replacement septic system, consisting of a steel 1, 000gallon tank and a 720-square-foot drainfield. The plans were approved on September 6, 1979. The installed drainfield was inspected and approved on October 17, 1980.

Thirty years later, in March 2010, Robert Brown needed to replace the steel septic tank with a 1, 200-gallon concrete tank. Jim Chenier, the tank installer, and Mr. Brown submitted a permit application to Cowlitz County on March 1, 2010. The plans were filed on March 4, 2010. The County issued a permit and the new septic tank was installed and approved by March 8, 2010. Mr. Chenier did not inspect the drainfield at the time, nor was he required to do so.

According to the Mitchells' complaint, Mrs. Mitchell purchased the Ostrander property in April 2012. There is no evidence showing that she required a septic system inspection before purchasing the property. Later in 2012, Mrs. Mitchell's mother became infirm and could not live independently. Mrs. Mitchell decided to purchase a mobile home and install it on her property. At the time Mrs. Mitchell purchased the Ostrander Road property, the septic system was permitted for a single, four-bedroom house. In order to connect the mobile home to the existing septic system, the Mitchells intended to seek a waiver from the County.

On August 27, 2013, Mrs. Mitchell sent correspondence to Cowlitz County requesting a temporary dwelling permit for the mobile home. As part of the permitting process, Mrs. Mitchell was required to have a professional engineer inspect the septic system and certify that the septic system had not failed and that it complied with certain health codes and regulations.

The Mitchells hired Brian Hewitt, P.E., to perform the inspection for compliance. The 1979 permit approved a restrictive mottling layer at 46 inches, with a maximum drain field depth of 32 inches, allowing for 14 inches of separation between the septic drain field and the groundwater level. Mr. Hewitt, however, dug six holes in 2013 that revealed mottling at depths of 18 to 31 inches. In one place, only 4 inches of separation between the drainfield and the groundwater level was recorded. The current code requires 24 inches of separation between the drainfield depth and the groundwater level in order to allow proper filtration between the septic drainfield and groundwater level. Mr. Hewitt reported that the septic system was not up to code, but then recommended approval of the system because fewer residents than the average for a four-bedroom house lived at the property, and because Cowlitz County had different, more stringent, standards than other counties regarding septic systems. Because the items Mr. Hewitt relied on to "approve" the system were not congruent with Cowlitz County's regulations for septic systems, the septic permit/waiver was denied.

On October 16, 2013, while this dispute was pending, Mr. Mitchell applied for a permit to build a large garage/storage unit on the property. He received a building permit and built the structure. In mid-November 2013, Mr. Mitchell met with Chris Bischoff, the Environmental Health Manager of Cowlitz County, and Mr. Hewitt. Mr. Mitchell was informed at that time that he could not obtain the septic reconnection permit because the drain field had failed and must be replaced. Mr. Mitchell was also informed that the County could not issue a permit for the construction/installation of the mobile home because the septic drainfield had failed. Mr. Mitchell was informed that the only options were to either (1) not pursue the building permit, or (2) replace the septic drainfield.

On December 10, 2013, Mr. Mitchell appeared before the Cowlitz County Board of County Commissioners at its regular meeting. He demanded that the County pay for a new septic drainfield on the Ostrander property. He also stated that he had filed a Notice of Claim with the County. Because a Notice of Claim had ...

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