2009 10 21 Brent Dille LetterUWENS DAMES FRISTOE TAYLOR & SCHULTZ, P.S.
Attorneys at Law
$. Robert Fristoe
Don W. Taylor
Frank J. Owens
Theodore D. Schultz
Richard G. Phillips, Jr.
Michael W. Mayberry
Kirk M. Veis
Mat#hew B. Edwards
Brent F. Dille
JoEui V. Lyman
Denise W. Derricott
October 21, 2009
Yelm City Council
City of Ye1m
105 Yelm Avenue West
Yelm, WA 98597
RE: Palisades West
Dear Council Members:
Street Address:
1115 West Bay Drive, Suite 302
Olympia, Washington 98502
Mailing Address:
P. O. Box 187
Olympia, Washington 98507
Phone (360) 943-8320
Facsimile (360) 943-6150
You have asked that I render an opinion as to the liability of the city far issuing the building
permit and the feasibility of amending the plat approval to defer the instillation of a booster
pump and roll seal. I have met with City staff and reviewed the testimony and materials
presented at the public hearing and have the following comments:
1. The City has no liability for issuing the building permit.
Dan Lee, the Smith's contractor, testified during the hearing that he was aware of the
requirement of the booster pump and pressure sustaining valve ("Roll Seal"} at the time he
applied for the building permit. I have further learned that Mr. Lee worked with Steve
Chamberlain and attended meetings with city staff to go over these requirements prior to final
plat approval in 2007. Because Mr. Lee was acting as agent for the Smiths and had actual
knowledge of these requirements prior to requesting the building permit, the Smiths are deemed
to have the same knowledge and, therefore, cannot now claim they were misled by the city when
it issued the permit. Finally the Smiths had or, with reasonable investigation, should have known
of this requirement as I am certain the Smiths' title report noted this exception and were provided
a copy of the recorded plat prior to or at closing.
Consequently, it is the Smith's contractor, Mr. Lee or the developer, Mr. Chamberlain, and not
the City, who owes a duty to the Smiths.
OWENS DAVIES
FRISTOE TAYLOR & SCHULTZ, P.S.
Yelm City Council
October 2l, 2009
Page 2
2. Necessity for Booster Pump
I fail to see haw we can resolve the booster pump issue. Regardless of whether or not the Smiths
can extinguish a house fre, WAC 246-290-230(5) requires that there be a minimum of 30 PSI
AT THE METER. I understand that there is only 24 PSI the Smith's meter and therefore the
City would be in violation of the above cited WAC. I understand the Smiths have installed their
own booster pump but it is installed after the meter and, therefore, does not satisfy this specific
requirement. I simply cannot recommend a solution that causes the City to run afoul of a
Department of Health regulation and jeopardize its water system permit and open the City to
administrative sanctions.
3. Compliance with Roll Seal Requirement
With regard to the Pressure Sustaining Valve (roll seal), in speaking with Tim Peterson, director
of Public Works, the roll seal is necessary even if only one house is connected to the main line in
order to prevent anover-pressurization in the waste distribution line. The Smiths' engineer
could not guarantee that there would not be an over-pressurization event. Short of a multi-
million dollar insurance policy issued by Lloyds of London in favor of the City for damages
sustained to other residents, the Smiths' personal waiver of liability and indemnification is
frankly, cold comfort.
I empathize with the Smiths. They seem like nice folks who were misled by Steve Chamberlain
or their builder. Unfortunately, for the reasons set forth above, I cannot recommend the City
allow the plat amendment as requested.
Very truly yours,
OWENS DAVIES
F E TAYL R & SC TZ, P.S.
Brent F. Dille
BFD/so
N;IBFDIYe1mlPalisades WestlCouncil Ltr 162009 rev BFD.dac