Howe v. Douglas County

102 Wash. App. 559
CourtCourt of Appeals of Washington
DecidedSeptember 12, 2000
DocketNo. 18415-3-III
StatusPublished
Cited by1 cases

This text of 102 Wash. App. 559 (Howe v. Douglas County) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howe v. Douglas County, 102 Wash. App. 559 (Wash. Ct. App. 2000).

Opinion

Sweeney, J.

— This is a land use case. Douglas County required the developer of Bart and Connie Howe’s subdivision to waive “all claims for damages against any governmental authority arising from the construction or maintenance of public facilities . . . .” The Howes’ property was flooded because of either poorly designed or maintained drainage facilities. The question here is whether public policy considerations prohibited the County from requiring a general waiver of liability as a condition for annexation of this subdivision; we agree with the trial court that they do not. We therefore affirm the summary dismissal of the Howes’ claims for damages.

FACTS

Fancher Heights Associates developed Fancher Heights, a residential subdivision, in East Wenatchee, Washington. As part of the permit process, it solicited comments from governmental agencies. The U.S. Department of Agriculture’s (USDA) Soil Conservation Service responded that at least some of the lots were susceptible to flooding. Roofs, pavement, and the general development of the area exacerbated the problem. Several months later the USDA again voiced concerns because streets proposed in the subdivision cut across natural drainage ways. The South Douglas County Conservation District agreed with the concerns voiced by the USDA.

Fancher Heights Associates submitted drainage plans that would have accommodated a 10-year flood. Douglas County responded by requiring the drainage plan to accommodate a 25-year flood. The County did so because of the concerns expressed by the governmental agencies.

Fancher Heights Associates constructed the storm drainage system in November 1988. It then transferred owner[562]*562ship and maintenance of the improvements to Douglas County. As a condition of final approval, Fancher Heights Associates agreed to “waive on behalf of themselves and their successors in interest, all claims for damages against any governmental authority arising from the construction and maintenance of public facilities and public property within the subdivision.”

The Howes bought a lot in the subdivision in November 1992. Their property is located on a cul-de-sac at the base of a natural drainage channel. The warranty deed conveying title refers to the waiver given by the County as part of the annexation process.

Surface water runoff from three rainstorms caused the drainage system in Fancher Heights to fail on May 31, 1993, July 4, 1994, and August 25, 1994. The runoff flooded and damaged the Howes’ property. The storm drains overflowed, apparently because the County had not cleaned sand from catch basins and dry wells. County employees also told the Howes that the single catch basin and dry well at the bottom of the cul-de-sac could not handle the water. The County added a new dry well and a slotted culvert/ trench drain to improve the drainage.

The Howes sued Douglas County for damages caused by these three storms. The County ultimately settled and the dispute was resolved.

The Howes’ property flooded again on June 21, 1997, following a rainstorm. Again, the catch basins and dry wells failed. In November of 1997, the County installed two dry wells above the Howes’ cul-de-sac.

The Howes sued Douglas County for negligence. That lawsuit is the subject of this appeal. The County moved for summary judgment, relying primarily on the waiver of damages claims by the Howes’ predecessor, Fancher Heights Associates, the developer. The trial judge agreed and dismissed the Howes’ claims.

[563]*563ANALYSIS

Standard of Review. The dispositive question here is whether the developer’s waiver is void because it is contrary to public policy. This is a legal question. And so the standard of review is de novo. Mountain Park Homeowners Association v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). Other questions raised, including whether the County was negligent; whether the County is protected by the public duty doctrine; or whether the damage occasioned by this flood was a result of improper construction, design or improper maintenance, all fall by the wayside if the developer’s waiver is valid and enforceable.

Waiver. Pronouncement of public policy falls within the domain of democratically elected legislators, unless some clear constitutional provision is implicated. But none is here. So to identify the relevant public policy considerations, we look at any applicable statutes. In re Marriage of Burke, 96 Wn. App. 474, 478, 980 P.2d 265 (1999); Allstate Ins. Co. v. Raynor, 93 Wn. App. 484, 499-500, 969 P.2d 510, 975 P.2d 517, 980 P.2d 765, review granted, 139 Wn.2d 1001 (1999).

The Legislature has not been reluctant to declare public policy in a wide range of areas. Waterjet Tech., Inc. v. Flow Int'l Corp., 140 Wn.2d 313, 322, 996 P.2d 598 (2000) (employment agreements); National Elec. Contractors Ass’n, Cascade Chapter v. Riveland, 138 Wn.2d 9, 40, 978 P.2d 481 (1999) (favoring prison industries); In re Discipline of Turco, 137 Wn.2d 227, 268, 970 P.2d 731 (1999) (Sanders, J., dissenting) (domestic violence); Niece v. Elmview Group Home, 131 Wn.2d 39, 61-62, 929 P.2d 420 (1997) (Johnson, J., concurring in part and dissenting in part) (rights of developmentally disabled); Comenout v. Burdman, 84 Wn.2d 192, 200, 525 P.2d 217 (1974) (jurisdiction over Native Americans and reservations); Callahan v. Keystone Fireworks Mfg. Co., 72 Wn.2d 823, 838-39, 435 P.2d 626 (1967) (fireworks); First Nat’l Bank v. Tiffany, 40 Wn.2d 193, 202, 242 P.2d 169 (1952) (homestead and exemption laws); Smaby v. Shrauger, 9 Wn.2d 691, 699, 115 P.2d 967 [564]*564(1941) (wage earners); Burke, 96 Wn. App. at 480 (child welfare dissolution action); Children’s Hosp. & Med. Ctr. v. Department of Health, 95 Wn. App. 858, 865 n.13, 975 P.2d 567 (1999) (health care), review denied, 139 Wn.2d 1021 (2000); Raynor, 93 Wn. App. at 499-500 (insurance contracts); Roberts v. Dudley, 92 Wn. App. 652, 656-57, 966 P.2d 377 (1998) (gender discrimination), aff’d, 140 Wn.2d 58, 993 P.2d 901 (2000).

And the courts appropriately proceed very cautiously in declaring public policy. Roberts, 92 Wn. App. at 656-57.

The Howes argue

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