United States District Court, W.D. Washington, Seattle
TAN PHU CUONG INVESTMENT LLC, a Washington Limited Liability Company, and EMILIYA SHUPARSKAYA, a married woman as her separate property, Plaintiffs,
KING COUNTY, a political subdivision of the State of Washington, Defendant.
HONORABLE JOHN C. COUGHENOUR, JUDGE.
matter comes before the Court on Defendant's motion for
summary judgment (Dkt. No. 40). Having thoroughly considered
the parties' briefing and the relevant record, the Court
finds oral argument unnecessary and hereby GRANTS the motion
in part and REMANDS Plaintiffs' state law claims for the
reasons explained herein.
case arises out of Plaintiffs' purchase of lots of land
located in Lake Geneva Park Plats Nos. 3 and 4 in Federal
Way, Washington. (See Dkt. Nos. 40 at 2, 41-6 at 2,
69 at 2-3.) In the spring of 2015, Plaintiff Emiliya
Shuparskaya purchased a lot (403120-0010) in Plat No. 4 for
$15, 000-$20, 000 below the asking price. (Dkt. Nos. 41-6 at
2, 41-8 at 3-4, 65 at 2, 69 at 2.) In August 2015 and July
2016, Plaintiff Cuong LLC purchased nine lots in Plat No. 3
(403110-0330, 403110-0340, 403110-0460, 403110-0470,
403110-0480, 403110-0550, 403110-0560, 403110-0570, and
403110-0580). (Dkt. Nos. 41-6 at 2, 67 at 2.) Plaintiff Cuong
LLC paid $36, 000 or $40, 000 in total for Lots 46, 47, and
48, and paid $200, 000 in total for Lots 33, 34, 55, 56, 57,
and 58. (Dkt. No. 41-9 at 15.) Plaintiff Cuong LLC has since
sold Lots 55, 56, and 57. (See Dkt. No. 67 at 2.)
Plat Nos. 3 and 4
Nos. 3 and 4 slope from north to south with the low point
located at the boundary between the plats, causing water to
naturally flow south toward Plaintiff Shuparskaya's Lot
01 and Plaintiff Cuong LLC's Lot 58. (Dkt. Nos. 45 at
2-3, 53 at 7-10.) The plats' natural drainage channel is
a shallow open ditch or swale along the plats'
north-south boundary. (Dkt. Nos. 45 at 4-5, 34, 36; 53 at
9-10.) Prior to development, water flowed across private
parcels. (Dkt. No. 53 at 9.) Around 1939, a culvert was built
to allow water flowing north-to-south to go under a street
and continue its natural drainage path. (Dkt. No. 53 at 4,
7-10, 64; see Dkt. No. 45 at 3-4.)
lots in the plats are underpinned by “hardpan”
that sits close to the ground's surface and restricts the
downward flow of water, which causes percolation issues and
generally precludes having a septic system safely installed
on individual lots. (See Dkt. Nos. 44 at 2, 48 at
2-4, 49 at 1-2.) The King County Assessor's Office has
historically categorized Plaintiffs' lots as
“non-buildable parcels” and assigned them low
appraisal values. (Dkt. No. 43 at 3-4.) In 2003, prior to
Plaintiffs' purchase of their lots, the City of Federal
Way designated Plaintiff Shuparskaya's Lot 01 and
Plaintiff Cuong LLC's Lot 58 “as containing
wetlands.” (Id. at 2.)
Nos. 3 and 4 were privately developed, and Plat No. 3's
developer reserved the right to allow surface water to flow
west to the drainage channel on the western border of the
plat. (See Dkt. Nos. 40 at 4; 41-6 at 2; 45 at 32;
53 at 9, 66.) A storm drainage system, including a
north-south concrete drainage pipe (the “main
line”), was installed on the plats to collect and
convey runoff to the drainage ditch. (See Dkt. Nos.
40 at 4; 45 at 3-4; 53 at 8, 70; 71 at 4.) The main line sits
close to the ground's surface and is vulnerable to damage
caused by heavy items driving over or falling onto it. (Dkt.
No. 46 at 4.) Beginning in 1972, Defendant obtained several
drainage easements to allow it to make necessary repairs to
the main line. (Dkt. No. 53 at 7-8, 44-62.) The easements
referenced drainage issues on several lots that would be
alleviated. (See Dkt. No. 66 at 4-5, 184-192.) Since
obtaining the easements, Defendant has performed general
maintenance on the drainage system and responded to specific
issues on three occasions. (See Dkt. Nos. 46 at 3;
53 at 10; 64 at 17-18; 68 at 59, 69, 74; 69 at 57.)
Shuparskaya purchased Lot 01 as a vacant lot intending to
build a house on the land. (See Dkt. No. 41-8 at 4.)
Plaintiff Shuparskaya walked Lot 01 to inspect it but did not
have an inspection done prior to purchasing it. (Id.
at 5-6.; Dkt. No. 65 at 4.) Plaintiff Shuparskaya obtained a
clearing permit, and in the summer of 2015 she cleared leaves
and foliage from Lot 01. (See Dkt. Nos. 41-8 at
9-11, 53 at 35-36.) Plaintiff Shuparskaya was aware of
Defendant's easement for the main line but did not see
the main line itself before Lot 01 was cleared. (See
Dkt. No. 41-8 at 6.) In the winter of 2015, after clearing
Lot 01, Plaintiff Shuparskaya noticed flooding on the land
when it rained and found water flowing from the main line.
(Id. at 13.) Plaintiff Shuparskaya asked various
employees of Defendant for assistance but did not receive
substantive help. (See Dkt. No. 65 at 5-6.)
summer or fall of 2016, Plaintiff Shuparskaya hired a
contractor from Craigslist known as “Vasily, ”
who connected two pipes to the main line: one in the
northwest corner of Lot 01 and one running from north to
south and terminating in the culvert. (See Dkt. Nos.
40 at 6; 41-8 at 11, 14-16, 31-32; 53 at 2-7, 14, 16, 18, 31,
40; 65 at 6.) Vasily's work created a “tight
line” that caused water that would have flowed off
Plaintiffs' lots to instead pool on their property.
(See Dkt. Nos. 45 at 5-6, 53 at 4.) Plaintiff
Shuparskaya later sought a grading permit for Lot 01 from
Defendant. (See Dkt. Nos. 41-8 at 10, 33; 65 at 2.)
Although Plaintiff Shuparskaya did not obtain the permit,
Defendant's employees gave her 10 trucks' worth of
fill dirt for free. (See Dkt. No. 65 at 6,
Following complaints from her neighbors about the dirt, an
employee of Defendant told Plaintiff Shuparskaya that she
needed a permit. (See Dkt. Nos. 49 at 2; 65 at 8,
72-73.) When Plaintiff Shuparskaya attempted to obtain a
permit, she was told that Lot 01 contained a wetland and was
directed to remove the dirt. (Id. at 8-9; Dkt. No.
41-8 at 27.) In December 2018, a wetland reconnaissance on
Lot 01 identified and delineated a wetland through the
eastern half of the lot. (Dkt. No. 50 at 3.) Plaintiff
Shuparskaya has not removed the dirt, sought a reasonable use
exception, or performed a wetlands analysis on Lot 01.
(See Dkt. Nos. 41-8 at 22-25, 51 at 3.) Instead, she
has filed a tort claim for damages against Defendant relating
to Lot 01's water issues. (See Dkt. No. 65 at
Plaintiff Cuong LLC
Cuong LLC's Lots 33, 34, 46, 47, and 48 have faced issues
with their suitability for septic tank installation.
(See Dkt. Nos. 41-2 at 2, 41-3 at 2, 41-9 at 37-40.)
Plaintiff Cuong LLC's requests for septic permits have
been denied, and Plaintiff Cuong LLC has filed two pending
Land Use Petition Act appeals challenging the denials in
Snohomish County Superior Court. (See Dkt. Nos. 40
at 9, 41 at 2, 41-7, 51 at 2.)
Cuong LLC's Lot 58 has proven difficult to develop. In
2014, a wetland delineation concluded that Lot 58
“likely contained a wetland.” (Dkt. No. 50 at 2.)
In November 2016, around the time Plaintiff Cuong LLC
purchased its lots, Robert King inspected the lots on
Plaintiff Cuong LLC's behalf and determined that Lot 58
was encumbered by a wetland and was likely unbuildable.
(See Dkt. No. 47 at 2.) Plaintiff Cuong LLC applied
for a single-family residence building permit for Lot 58 and
a subsequent environmental review conducted by Defendant
concluded that both Lot 58 and Plaintiff Shuparskaya's
Lot 01 were encumbered by a wetland and its buffer.
(See Dkt. No. 42 at 2-3, 6.) To satisfy its
obligation under the King County Code to perform a wetland
study, Plaintiff Cuong LLC filed a hydrology report prepared
by Stephen Neugebauer, which concluded that none of Plaintiff
Cuong LLC's lots contained wetlands. (See Dkt.
Nos. 40 at 10, 42 at 3-4, 51 at 4.) Defendant rejected
Neugebauer's report for failing to comply with applicable
provisions of the King County Code and Washington law.
(See Dkt. No. 42 at 5-6.) Plaintiff Cuong LLC did
not apply for a reasonable use exception or continue in the
building permit application process; instead, it notified
Defendant of its intent to file suit. (See Dkt. Nos.
40 at 10, 41-9 at 24, 41-5 at 2, 42-3 at 2-3, 51 at 4-5.)
During a site inspection conducted in December ...