White v. Vogt

308 P.3d 356, 258 Or. App. 130, 2013 WL 4172007, 2013 Ore. App. LEXIS 952
CourtCourt of Appeals of Oregon
DecidedAugust 14, 2013
Docket08C22773; A145286
StatusPublished
Cited by11 cases

This text of 308 P.3d 356 (White v. Vogt) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. Vogt, 308 P.3d 356, 258 Or. App. 130, 2013 WL 4172007, 2013 Ore. App. LEXIS 952 (Or. Ct. App. 2013).

Opinion

HADLOCK, J.

Plaintiffs brought this action alleging violations of several provisions of the Salem Revised Code (SRC) stemming from excavation and construction of a home and a retaining wall on property that adjoins and lies downhill from their property. Defendants are Jared and Crystal Vogt, who own the neighboring property, Kevin Stone, the contractor who performed the excavation and construction, and the City of Salem. Plaintiffs asserted claims for declaratory relief, writ of review, writ of mandamus, negligence, and injunctive relief. They alleged that Stone had excavated the Vogts’ property in a manner that removed lateral support for plaintiffs’ property, leaving it vulnerable to landslides. Plaintiffs also alleged that the city had allowed the excavation and subsequent construction of a home and a retaining wall without properly conducting a landslide hazard analysis and without requiring Stone and the Vogts either to prove that the excavated slope is safe or to build a taller retaining wall and restore the slope to the minimum otherwise allowed by the SRC.

The trial court dismissed the claims against the Vogts and all but the writ of review claim against the city. On that claim, the court granted summary judgment in the city’s favor. The court also awarded prevailing-party fees to the Vogts and the city as well as attorney fees to the Vogts. Plaintiffs appeal the limited judgment disposing of the claims against the Vogts and the city and the supplemental judgment awarding defendants their fees.1 We dismiss the appeal from the supplemental judgment and otherwise affirm.

Before we recite the pertinent facts, an overview of some of the SRC provisions at issue is helpful. Two chapters in the code are pertinent. The first, SRC chapter 65, governs excavation and filling of property. SRC 65.040 generally describes conditions under which an excavation permit is required. SRC 65.050(a), which limits excavation under certain circumstances, provides, in part:

[133]*133“Except as provided in this subsection and in SRC 65.080, no excavation shall leave a cut slope greater than two horizontal to one vertical.
“EXCEPTION: Excavations may exceed this limitation when they are in conjunction with a building permit and the final grade after backfill will not exceed a 2:1 slope.”2

Under SRC 65.080, the limitations imposed in SRC 65.050

“may be varied by the director [of public works] if a qualified engineer designs and oversees the prescribed work and provides the director with all supportive data necessary to establish to his satisfaction that the alternative design provides equal or better safety, durability, and protection of adjacent property than compliance with the standards of SRC 65.050***.”

The second pertinent chapter, SRC chapter 69, addresses landslide hazards. SRC 69.030 provides that, except in circumstances not relevant here, a person may not engage in excavation or building construction “in areas designated on maps adopted under this chapter” without first obtaining any required permits or approvals. The referenced maps include “Landslide Hazard Susceptibility Maps” adopted by the city council that “indicate the general location of areas of low, moderate, and high susceptibility to landslides, and areas of known slide hazards.” SRC 69.050. SRC 69.060 sets out the procedure by which the city must evaluate the landslide risk that a proposed activity will create:

“The Graduated Response Table 69-1, and the criteria set forth therein shall be used by Public Works staff to determine the level of site investigation for various types of regulated activity on property any portion of which is shown on Landslide Hazard Susceptibility Maps. Using a rating system, slope and physiographic conditions at the site are evaluated in relationship to a proposed activity. If [134]*134a rating meets or exceeds quantified thresholds provided in the table, a geological assessment or geotechnical report or both shall be provided by the applicant and action specified therein undertaken or insured before any regulated activity may be permitted or approved. Where any portion of the subject property on which regulated activities are proposed is identified under two slope conditions, or two or more physiographic and geologic categories, the highest condition or category will apply.
“(a) For Low Landslide Risk Assessments, all regulated activities may proceed without further investigation, permitting, or approval requirements of this chapter.
“(b) For Moderate Landslide Risk Assessments, a geological assessment shall be submitted by applicant and at applicant’s expense for all regulated activities. If the geological assessment indicates that mitigation measures are necessary to safely undertake the regulated activity, High Landslide Risk Assessment requirements must be met. If the geological assessment indicates that no mitigation measures are necessary to safely undertake the regulated activity, all regulated activities may proceed.
“(c) For High Landslide Risk Assessments, a geotechnical report prepared by a Certified Engineering Geologist and Geotechnical Engineer at the applicant’s expense shall be submitted for all regulated activities.”

The “Graduated Response Table 69-1” is appended to SRC chapter 69. It establishes a five-step procedure for determining whether the landslide risk is low, moderate, or high based on points assigned in the first three steps. Characterized broadly, points are assigned based on a property’s susceptibility to earthquake-induced landslides (step one), susceptibility to water-induced landslides (step two), and the activity undertaken on the property (step three). Step four requires staff to total the points from the first three steps. Step five provides that the landslide risk is low if the point total is four or less, moderate if the total is five to eight points, and high if it is nine “or greater.”

Finally, SRC 69.090 provides:

“No excavation or fill subject to the provisions of this chapter shall be made without an Excavation and Fill permit. The application for such permit, permit issuance, term, [135]*135termination, suspension or revocation, scope, application fee, appeal and violation relative to such permit shall be as set forth in SRC 65.110 through SRC 65.990. Excavation and fill permit requirements are in addition to other requirements of this chapter. Any geological assessment or geotechnical report required by this chapter shall accompany the Excavation and Fill permit application and shall receive approval in accordance with the provisions of this chapter prior to Excavation and Fill permit issuance.”

With those provisions in mind, we turn to the facts. The facts material to our review are undisputed. Plaintiffs’ property lies uphill from, and to the east of, defendant Vogts’ property. In January 2008, Stone applied for a building permit to construct a dwelling on the Vogts’ property. In early March — before the city had issued the building permit — Stone excavated approximately 1200 cubic yards of soil from the eastern side of the Vogts’ property. Before doing the work, Stone did not obtain an excavation permit or otherwise notify the city that he intended to excavate. The upper edge of the “cut” left by the excavation is close to the fence separating plaintiffs’ and the Vogts’ properties.

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Cite This Page — Counsel Stack

Bluebook (online)
308 P.3d 356, 258 Or. App. 130, 2013 WL 4172007, 2013 Ore. App. LEXIS 952, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-vogt-orctapp-2013.