2010 03 24 Yelm Answer to Amended Complaint_Page_11
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EXPEDITE
_ Hearing is set:
Date /Time:
Calendar /Judge: McPhee
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
THURSTON COUNTY
ANDREW J. SMITH and CYNTHIA M.
SMITH, husband and wife,
Plaintiffs,
Vs.
THE CITY OF YELM, a municipal
corporation; GRANT BECK; STEVE
CHAMBERLAIN; FH1 LLC, a Washington
corporation; DAN LEE, TRIANCE GROUP,
INC, d/b /a TRIANCE HOMES, a Washington
corporation and a licensed Washington
construction contractor; STATE FARM FIRE
& CASUALTY CO., Bond No. 98GD85307;
MAUREEN NIELAND; VANDORM
REALTY; a Washington corporation.
Defendants.
No. 09 -2- 02879 -3
DEFENDANT CITY OF YELM' S
ANSWER TO FIRST AMENDED
COMPLAINT FOR BREACH OF
CONTRACT, MANDAMUS, BREACH
OF DUTY AND DAMAGES
COMES NOW the defendant City of Yelm (hereinafter "the City ") and makes the
following answer to plaintiffs' First Amended Complaint:
I. Parties.
1.1 The City denies the allegations in paragraph 1.1 for lack of information.
1.2 The City admits the allegation in paragraph 1.2.
DEFENDANT CITY OF YELM'S ANSWER
TO FIRST AMENDED COMPLAINT - I
MORRIS & TARADAY, P.C.
P.O. Box 948, 7223 Seawitch Lane N.W.,
Seabeck, WA 98380-0948
Tel. 360- 830 -0328 • Fax 360- 850 -1099
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1.3 The City admits the allegations in paragraph 1.3.
1.4 The City denies the allegations in paragraph 1.4 for lack of information.
1.5 The City denies the allegations in paragraph 1.5 for lack of information.
1.6 The City denies the allegations in paragraph 1.6 for lack of information.
1.7 The City denies the allegations in paragraph 1.7 for lack of information.
II. Jurisdiction and Venue.
2.1 The City admits the allegations in paragraph 2.1.
III. Factual Allegations.
3.1 The City admits that the Yelm Hearing Examiner issued a decision conditionally
approving the preliminary plat of Forrester Heights Phase I, which is now known as Palisades
West. The City admits that the applicant for the preliminary plat was FH1, LLC. The City
denies the remaining allegations in paragraph 3.1 because the Hearing Examiner's written
decision speaks for itself and the City denies any mischaracterization of that decision in
paragraph 3.1.
3.2 The City admits that it approved the Final Plat of Palisades West in a written
decision. The City Council's written Final Plat approval decision speaks for itself and the City
denies any mischaracterization of that decision in paragraph 3.2.
3.3 The City denies the allegations in paragraph 3.3 for lack of information.
3.4 The City denies the allegations in paragraph 3.4 for lack of information.
3.5 The City admits the allegations in paragraph 3.5 with the exception of the
allegation that the building permit was issued "for the construction of the Smiths' residence."
The application only showed that the permit was issued to Triance Homes and that the Smiths
DEFENDANT CITY OF YELM' S ANSWER MORRIS & T A R A D A Y, P. C.
TO FIRST AMENDED COMPLAINT - 2
P.O. Box 948, 7223 Seawitch Lane N.W.,
Seabeck, WA 98380-0948
Tel. 360 -830 -0328 • Fax 360- 850 -1099
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would be the building owner. Nothing in this application placed the City on notice that the
Smiths planned to occupy the single family home before the developer complied with the plat
conditions. In addition, the City asserts that the building permit application form, signed by
Mr. Lee of Triance Homes, shows that he certified that he complied and was required to
comply with all applicable laws, including those relating to zoning and subdivision. Mr. Lee,
Triance Homes and the Smiths are charged with knowledge of applicable laws, such as the
conditions of subdivision approval relating to this property, as well as RCW 58.17.205.
3.6 The City denies the allegations in paragraph 3.6 for lack of information.
3.7 The City denies the allegations in paragraph 3.7 for lack of information.
3.8 The City admits that the conditions of plat approval have not been satisfied, and
an occupancy permit for the Smith single family home cannot issue. The City admits that one
of the conditions that have not been satisfied is the lack of a booster pump station. The City
admits that Mr. Beck has informed the plaintiffs and others that this condition has not been
satisfied. The City is aware of the communications from the SE Thurston Fire & EMS and the
Smiths' statement that they would "waive liability on the part of the City" as to themselves.
All remaining allegations in paragraph 3.8 are denied for lack of information.
3.9 The City admits that Mr. Beck wrote a letter to Dan Lee on April 14, 2009. That
letter speaks for itself and the City denies any mischaracterization of the letter by the plaintiffs
in paragraph 3.9. All remaining allegations in paragraph 3.9 are denied.
3.10 The City admits the first allegation in paragraph 3.10. The City admits that the
11 application shows the Smiths as the owners of the residence. However, the City asserts that the
building permit /plat applicants were fully aware of all of the conditions placed on the
DEFENDANT CITY OF YELM'S ANSWER
TO FIRST AMENDED COMPLAINT - 3
MORRIS & TARADAY, P.C.
P.O. Box 948, 7223 Seawitch Lane N.W.,
Seabeck, WA 983840948
Tel. 360- 830 -0328 • Fax 360- 850 -1099
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development, that they certified that they would comply with all such conditions and applicable
law, which included all plat conditions and RCW 58.17.205. The City denies any knowledge
of any agreement between the building permit applicants and the plaintiffs which contradicted
these conditions and applicable law.
3.11 The City admits that the plaintiffs submitted the identified plat amendment to
the City for the identified purpose. The actual plat amendment application speaks for itself,
and the City denies any mischaracterization of same in paragraph 3.11. The remaining
allegations in paragraph 3.11 are not averments for which answer is required, and without
waiving objection on that basis, the City denies the same.
3.12 The plat amendment application speaks for itself, and the City denies any
mischaracterization of same in paragraph 3.12. The City denies the plaintiffs' characterization
of Mr. Beck's activities relating to the events described in paragraph 3.12.
3.13 The staff report prepared by Mr. Beck on the plat amendment speaks for itself
and the City denies any mischaracterization of same in paragraph 3.13. All remaining
allegations in paragraph 3.13 are denied.
3.14 The Smith's response speaks for itself and the City denies any
mischaracterization of same in paragraph 3.13. The motion made by the City Council on
October 13, 2009 speaks for itself and the City denies any mischaracterization of same. All
remaining allegations in paragraph 3.14 are denied.
3.15 The second staff report prepared by Grant Beck, and the letter from Brent Dille
speak for themselves, and the City denies any mischaracterization of same in paragraph 3.15.
All remaining allegations in paragraph 3.15 are denied.
DEFENDANT CITY OF YELM'S ANSWER MORRIS & T A R A D A Y, P.C.
TO FIRST AMENDED COMPLAINT - 4
P.O. Box 948, 7223 Seawitch Lane N.W.,
Seabeck, WA 983840948
Tel. 360- 830 -0328 • Fax 360- 850 -1099
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3.16 The action taken by the City Council on October 27, 2009 is reflected in the
Council meeting minutes and the City denies any mischaracterization of same in paragraph
3.16. All remaining allegations in paragraph 3.16 are denied.
3.17 In paragraph 3.17, plaintiffs refer to an "entirely new document" created by
Brent Dille. This "entirely new document" is not attached to the Complaint, nor is it identified
in any way, other than plaintiffs' characterization of it. As a result, these allegations are
unintelligible, and the City denies the same.
3.18 The City denies the allegations in paragraph 3.18 relating to the plaintiffs'
"urgency," motives, or action taken for lack of information. The City admits that meetings
were held after October 27, 2009 to address the developer /owners' failure to comply with the
plat conditions.
3.19 In paragraph 3.19, the plaintiffs allege that the plaintiffs' engineer has developed
some solutions to the "City's stated concerns." These solutions are not identified in any way,
other than plaintiffs' characterization of what the solutions will do. As a result, these
allegations are unintelligible, and the City denies the same. The City admits that it has refused
to issue a certificate of occupancy unless and until the plat conditions are satisfied, as required
by the plat approvals and applicable law. The last two allegations are not averments for which
answer is required, and without waiving objection on this basis, the City denies the same. All
remaining allegations in paragraph 3.19 are denied.
V. Causes of Action.
4.1 The allegations in paragraph 4.1 of the Complaint relate to co- defendants other
than the City. The City denies the same for lack of information.
DEFENDANT CITY OF YELM' S ANSWER MORRIS & T A R A D A Y, P. C.
T() FIR QT AMFNDFI) C OMPI,AINT - 5
P.O. Box 948, 7223 Seawitch Lane N.W.,
Seabeck, WA 98380 -0948
Tel. 360- 830 -0328 • Fax 360- 850 -1099
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4.2 The allegations in paragraph 4.2 of the Complaint relate to co- defendants other
than the City. The City denies the same for lack of information.
4.3 The allegations in paragraph 4.3 of the Complaint relate to co- defendants other
than the City. The City denies the same for lack of information.
4.4 The City denies the allegations in paragraph 4.4. The plat conditions require the
applicants /developers to install the infrastructure to make water and sewer service possible.
The City is the water and sewer provider, and is not required to install the necessary
infrastructure to make such service possible.
4.5 The City admits that it issued a building permit to Triance Homes for the single
family home on lot 15 of Palisades West. The City denies that it violated Condition No. 1 of
the final plat approval. The City denies that the building permit issued to the plaintiffs, as they
were not the applicants for the building permit. The City asserts that if the Smiths believed that
the building permit issued in error, that they could have appealed the building permit within 21
days after issuance. The City denies that anyone amended the final plat condition.. The
remaining allegations in paragraph 4.5 are not averments for which answer is required.
Without waiving objection on this basis, the City denies the same.
4.6 The allegations in paragraph 4.6 are not averments for which answer is required.
Without waiving objection on this basis, the City denies the same.
4.7 The allegations in paragraph 4.7 are not averments for which answer is required.
Without waiving objection on this basis, the City denies the same.
V. Claims for Damages.
DEFENDANT CITY OF YELM'S ANSWER
TO FIRST AMENDED COMPLAINT - 6
MORRIS & TARADAY, P.C.
P.O. Box 948, 7223 Seawitch Lane N.W.,
Seabeck, WA 98380-0948
Tel. 360 -830 -0328 • fax 360- 850 -1099
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5.1 The allegations in paragraph 5.1 are not averments for which answer is required.
In addition, they do not relate to defendant City of Yelm. Without waiving objection on this
basis, the City denies the same.
5.2 The allegations in paragraph 5.2 are not averments for which answer is required.
In addition, they do not relate to defendant City of Yelm. Without waiving objection on this
basis, the City denies the same.
5.3 The allegations in paragraph 5.3 are not averments for which answer is required.
In addition, they do not relate to defendant City of Yelm. Without waiving objection on this
basis, the City denies the same.
5.4 The allegations in paragraph 5.4 are not averments for which answer is required.
Without waiving objection on this basis, the City denies the same.
5.5 The allegations in paragraph 5.5 are not averments for which answer is required.
VI. Claims for Mandamus.
6.1 The allegations in paragraph 5.1 are not averments for which answer is required.
Without waiving objection on this basis, Beck denies the same. The City asserts that it has
acted on the plaintiffs' plat amendment.
BECK's RESPONSE TO PRAYER FOR RELIEF.
The City denies that the plaintiffs are entitled to the relief set forth in paragraphs 1
through 5 of the Amended Complaint.
THE CITY's AFFIRMATIVE DEFENSES
The City alleges the following affirmative defenses to the Amended Complaint:
A. The plaintiffs have failed to state a claim upon which relief can be granted.
DEFENDANT CITY OF YELM'S ANSWER MORRIS & T A R A D A Y, P.C.
TO FIRST AMENDED COMPLAINT - 7
P.O. Box 948, 7223 Seawitch Lane N.W.,
Seabeck, WA 98380.0948
Tel. 360 -830 -0328 • Fax 360- 850 -1099
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B. One or more of plaintiffs' claims are barred by laches, waiver and/or estoppel.
C. One or more of plaintiffs' claims are barred because of plaintiffs' failure to
exhaust administrative and/or judicial remedies.
D. One or more of plaintiffs' claims are barred by the statute of limitations.
E. One or more of plaintiffs' claims are not ripe for adjudication.
F. If plaintiffs have suffered any alleged damages, they are attributable not to the
actions of the City, but to the actions of plaintiffs themselves, or third parties over which the
City has no control.
G. Plaintiffs have failed to mitigate their alleged damages.
H. The court lacks subject matter jurisdiction over one or more of the claims in the
Amended Complaint.
I. The City's actions are not the proximate cause of the plaintiffs' alleged
damages.
J. The City and Defendant Beck are immune under the public duty doctrine and
Mr. Beck's actions were within the scope of his employment.
THE CITY'S PRAYER FOR RELIEF.
Having answered the plaintiffs' Complaint and stating its affirmative defenses, the
defendant City prays for relief as follows:
I . That plaintiff s Complaint be dismissed and that plaintiffs take nothing thereby.
2. That the City be awarded such further relief as the Court may deem just.
DEFENDANT CITY OF YELM'S ANSWER
TO FIRST AMENDED COMPLAINT - 8
MORRIS & TARADAY, P.C.
P.O. Box 948, 7223 Seawitch Lane N.W.
Seabeck, WA 98380-0948
Tel. 360- 830 -0328 • Fax 360- 850 -1099
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DATED this 24 day of March, 2010.
DEFENDANT CITY OF YELM'S ANSWER
TO FIRST AMENDED COMPLAINT - 9
MORRIS & TARADAY, P.C.
bbl A. Morris, WSBA #19241
for the defendant City of Yelm and Grant
MORRIS & TARADAY, P.C.
P.O. Box 948, 7223 Seawitch Lane N.W.,
Seabeck, WA 98380 -0948
Tel. 360- 830 -0328 • Fax 360- 850 -1099