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2010 02 19 Smith Amended Complaint_Page_011 2 3 • EXPEDITE • Hearing is set: Date/Time: Calendar/Judge: Murphy 4 5 6 7 SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY 9 ANDREW J. SMITH and CYNTHIA M. SMITH, 10 Husband and Wife, 11 Plaintiffs, 12 V. 13 THE CITY OF YELM, a Municipal Corporation; GRANT BECK; STEVE CHAMBERLAIN; FH I, 14 LLC, a Washington corporation; DAN LEE; is TRIANCE GROUP INC., d/b/a TRIANCE HOMES, a Washington corporation and a licensed 16 Washington construction contractor; STATE FARM FIRE & CASUALTY CO., Bond No. 17 98GD85307; MAUREEN NIELAND; 18 VANDORM REALTY, INC., a Washington corporation. 19 Defendants. 20 21 TO: The City of Yelm tur zz A lawsuit has been started against you in the above-entitled court by Plaintiff Plaintiff's claim 23 is stated in the written complaint, a copy of which is served upon you with this Summons. 24 In order to defend against the lawsuit, you must respond to the complaint by stating your 25 26 defense in writing, and by serving a copy upon the person signing this summons within 20 days after 27 the service of this Summons, or within 60 days if this Summons was served outside the State of 28 SUMMONS - I CUSI-I-NIAN 924 C APIT01, WAY SOUTH LAW OFFICES, P.S. OLYNIMA, WAS 141NGTON 98501 MTORNEWS A'1' 1, (360) 534-9183 FAX: (360) 950-9795 1 Q EXPEDITE 2 ©Hearing is see: E Date/Time; ,_ Calendarl3udge: McPhee FEB t3 all }} ff99 y y ) FEB 1 21 2110 i,.1.3 w•1 YtilM.:.3 d.r�vi� �a�Z�4�4 {{''('y j"ry [[,, f`r1'�I j '{" 6 7 SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY 9 ANDREW J. SMITH and CYNTHIA M. SMITH, NO. 09 -2- 02879 -3 10 Husband and Wife, 11 Plaintiffs, FIRST AMENDED COMPLAINT FOR BREACH. OF CONTRACT, 1 �' MANDAMUS, BREACH OF DUTY, AND DAMAGES 13 THE CITY OF YELM, a Municipal Corporation; GRANT BECK; STEVE CHAMBERLAIN; FH1, 1 LLC, a Washington corporation; DAN LEE; 15 TRIANCE GROUP INC., d/b /a TRIANCE HOMES, a Washington corporation and a licensed 16 Washington construction contractor; STATE FARM FIRE & CASUALTY CO., Bond No. 17 98GD85307; MAUREEN NIELAND; VANDORM REALTY, INC., a Washington 18 corporation. 19 Defendants. 20 21 COME NOW the Plaintiffs Andrew & Cynthia Smith, through their attorney Ben D. Cushman 22 of Cushman Law Offices, P.S., and for their Complaint against Defendants, state as follows: 23 I. PARTIES 4 1.1 Plaintiffs are residents of Thurston County, and their property which is the subject of 25 26 this lawsuit is located within Thurston County. All acts complained of occurred in Thurston County. 27 1,2 Defendant City of Yelm is a municipality located within Thurston County. 28 FIRST AMENDED COMPLAINT FOR AND CUSHiv AN 924 CAPITOL WAY SCUM BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYMPIA, W SHNGTON98501 BREACH OF DUTY, AND DAMAGES - I NrTo rys AT I-Aw (360)534-9.83 FAX: (360) 956 -9795 1 L3 Defendant Grant Beek is employed by the City of Yelm, and resides in Thurston County 2 1.4 Defendant Steve Chamberlain is the Registered Aunt for Defendant FH I, LLC, a 3 Washina ,-,ton corporation, has a registered business address of 4200 6"' Avenue SE, Suite 309, Lacey, 4 WA, and does business in Thurston County. 5 1.5 Defendant Dan Lee is the Registered Agent for Defendant Triance Group Incorporated, 6 1 ID a construction contractor business registered with the Washington State Department of Labor & 7 Z:� C, 8 Industries under License No. TRIANG194600, and at the time of the acts complained of had a 9 registered business address of 4200 6"' Avenue SE, Suite 3 )0 1, Lacey, WA, and did business in I 10 Thurston County. At the time of the acts complained of, this business was located on the same floor as 11 Steve Chamberlain's engineering firm, SCA Consulting Group, and Dan Lee had an email address, 12 dll@sca-,rotip.com which denoted that he was also affiliated with Steve Chamberlain. 13 14 1.6 Defendant State Farm Fire and Casualty Co. holds the construction bond for Triance 15 Group Incorporated, under Bond No. 98GD85307. 16 1.7 Maureen Nieland is a realtor with Van Dorm Realty, Inc., who acted both as the Buyers' 17 and Sellers' agent in the subject real estate transaction, which occurred in Thurston County. Van Donn 18 Realty, Inc., is a Washington corporation that does business in Thurston County. 19 II. JURISDICTION AND VENUE 20 21 2.1 Venue and jurisdiction are properly in Thurston County Superior Court under RCW 22 4.12.010, 4.12.020, and 4.12.025. 23 111, FACTUAL ALLEGATIONS 24 3.1 On September 27, 2006, the Hearing Examiner for the City of Yelm, approved the 25 preliminary plat of Forrester Heights Phase I (now known as Palisades West), a 24-lot single-family 26 subdivision. The applicant and developer for the preliminary plat was FH I, LLC. Among the Findings 27 FIRST AMENDED COMPLAINT FOR AND CUSFLVIAN 924 CN21TOL WAY SOUM 28 BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OMMA, WASHINGTON 98501 BREACH OF DUTY, AND DAMAGES - 2 AiToRNEys AT LAw (360) 534-9183 FAX (360) 956-9795 1 1 made by the Examiner were Finding Nos. 11 and 12 identifying that water and sewer would be 2 1 provided by the City of Yelm, that the applicant (FHl, LLC) must install a booster pump for the water, 3 1 and may need to install a pressure reducing- value to the sewer system to serve the plat: 11, The City of Yelm, will provide both domestic water and fire flow subject to the 5 applicant paying the current connection fee. Furthermore, due to the height of the 6 parcel, the applicant must install a booster pump to provide both fire flow and domestic water pressure. The applicant will decommission any existing wells on the 7 property. The preliminary plat makes appropriate provision for potable water, 8 12, The City Sewer Comprehensive Plan includes the property within its sewer service area, and a sewer line currently exists in SR-507 adjacent to the parcel, The 9 applicant will connect to the City sewer system and will pay the connection fee. 10 Due to the topography of the site, the applicant may need to install a pressure reducing valve in accordance with City requirements. The plat makes appropriate 11 provision for sanitary waste. 12 j 3.2 On December 11, 2007, the matter of approving the Final Plat of Palisades West came 13 before the City of Yelm City Council, which signed off on this final subdivision, and added the 14 following two conditions as notes on the final plat, recorded on February 12, 2008: 1 No building permit shall be issued within this subdivision, until a booster pump is 16 installed by the developer and approved by the City of Yelm which provides 17 adequate fire flow per the Internal Fire Code and City of Yelm standards, provided that a building permit may be issued for a model home if a fire protection plan is 18 approved by the City of Yelm Fire Marshall and SE Thurston Fire/EMS. 19 1 No certificate of occupancy for any habitable structure shall be issued until a sewer roll seal is installed by the developer and approved by the City of Yelm. 20 21 1 3.3 Through their realtor, the Smiths learned of a lot for sale in Palisades West. The Smiths 22 1 bought that lot from FHl, LLC for $84,000 based on the representation that the lot was developable, 2 3 1 that their general home design could be built on the lot, and that the home could be legally occupied 24 1 when built. These representations were made by Steve Chamberlain through Maureen Nieland. 25 Maureen Nieland specifically assured the Smiths that the property was as represented. 26 27 28 FIRST AMENDED COMPLAINT FOR AND CUSf-RVIAN 924 CAPITOL WAY SOUTH BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYMA, WASI-11INGTON 98501 BREACH OF DUTY, AND DAMAGES - 3 AT roluN7E YS AT LAW (360) 534-9183 FAM (360) 956-9795 1 1 3.4 On March 24, 2008, Andrew and Cynthia Smith entered into a Residential Real Estate 2 1 Purchase and Sale Agreement with Triance Homes for the construction of their residence at 10756 3 1 Palisades Street, Yelm, WA. Several amendments and addenda to this Agreement were enacted before M finally entering into the Fixed Contract Amount, for $3229,350.00, which Was executed on October 3, 5 6 1 2008 by Dan Lee and October 6, 2008 by the Smiths. 7 3.5 On September 17, 2008, in response to a Residential Building Permit Application dated In 8 1 September 5, 2008, and the payment of all required fees, including fees for the connections to sewer 9 1 and water, as well as fees for fire and school impacts, totaling S 14,419.3 )9, the City of Yelm issued 10 1 Building Permit No. BLD-08-0326-YL to Triance Homes for the construction of the Smiths' residence 11 at 10756 Palisades Street SE, Yelm, WA, on Lot of 15 of the Plat of Palisades West, Tax Parcel No. M 13 1 67110001500. The Residential Building Permit Application identified the General Contractor as 14 1 Triance Homes, and building owners as Andrew & Cynthia Smith, 15 1 3.6 After the building pen-nit had been approved, on October 8, 2008, the Smiths, through 16 1 the recording, of a Deed of Trust, secured funding and financing in the amount of S371,950 to purchase 17 1 Lot 15 and the agreed-upon improvements, which was amended on October 9, 2008 with a 18 1 Construction Rider. The Smiths separately paid $40,000 directly to Triance Homes as a deposit, and W paid additional cash amounts of $1,800.00 and $1,721.00. M 21 1 3.7 On October 8, 2008, the Statutory Warranty Deed for the purchase of Lot 15 of 22 Palisades West was recorded, wherein FH I, LLC was the Grantor and Andrew & Cynthia Smith were 23 the Grantees. The agreed-upon price for the lot was $84,000. 24 3.8 Since approximately April 2009, the Smith residence has been completed, but the City 25 of Yelm will not issue an occupancy permit. At first, Grant Beek stated the reason for withholding the 26 occupancy permit was that without the booster pump station, there would be inadequate water pressure 27 28 FIRST AMENDED COMPLAINT FOR AND CUSHIVLNIN 924 G\PiToi, W.,\y Sourni BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYMPIA, WASHNIGTON 98501 BREACH OF DUTY, AND DAMAGES - 4 AITORNEYS AT LAW (360) 534-9183 FAX (360) 956-9795 to fight a fire at the Smith residence. To address that concern, the Smiths' builder Dan Lee met with I 2 1 the Fire Chief and Deputy Fire Chief of the SE Thurston Fire & EMS, which resulted in an April 6, 3 1 2009 letter by the Fire Department outlining a successful fire-fighting plan, for even a t00% involved I.n 0 fire at the Smith house, and the Fire Department stating that they would support a decision to issue the 61 6 1 Smiths an occupancy certificate prior to the installation of the pump station. Further, the Smiths stated 7 1 they would waive liability on the part of the City should their home get damaged or destroyed by fire. I'll) C 0.9 Grant Beck next shifted the focus for denying the occupancy permit to the written plat 9 1 requirements themselves, reiterating in an April 14, 2009 letter to Dan Lee how issuing a certificate of ID 10 1 occupancy would violate the conditions attached to the recorded plat, and suggested a plat amendment C� 21 process, although stated the Department of Community Development (of which Grant Beck is the 12 13 1 Director) would oppose such an amendment, 1 3 .10 In a June 5, 2009 meeting between the Smiths, Grant Beck, Tim Peterson, and Mayor 4 1 3 15 1 Harding for City of Yelm, Grant Beck stated to those in attendance that the City had issued the 16 1 building permit for Lot 15 because it had been represented to them it was going to be a model home 17 1 [the only exception allowed per Condition I (see Paragraph 3.2 above)], and that was the reason why 18 the Smiths' occupancy certificate was being withheld. However, a review of the building permit 19 application and issued building permit (released by the City only after a public records request) clearly 20 21 1 show, from the beginning, that the permit was for a private residence. 22 1 3.11 On August 21, 2009, the Smiths, through their undersigned counsel, submitted an 23 1 application for a minor plat amendment to exclude Lot 15 only from the two final plat conditions 2 4 1 (proposed amended language shown by underlining): 25 1. No building permit shall be issued within this subdivision, except for Lot 15, until a 26 booster pump is installed by the developer and approved by the City of Yelm which provides adequate fire flow per the Internal Fire Code and City of Yelm standards, 27 provided that a building permit may be issued for a model home if a fire protection FIRST AMENTI)ED COMPLAINT FOR AND CUSH-VUkN 924 CAPITOL WAY SOMI 28 BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.5, OLYMPIA, WASFUNGTON 98501 BREACH OF DUTY, AND DAMAGES - 5 ATro&,;Eys AT LAw (360) 534-9183 FAY- (360) 956-9795 1 plan is approved by the City of Yelm Fire Marshall and SE Thurston Fire/EMS, 2 No certificate of occupancy for any habitable structure shall be issued, except for Lot 15, 3 until a sewer roll seal is installed by the developer and approved by the City of Yelm. 4 1 The -rounds on which the plat amendments were requested were explained in a letter accompanying 5 the application. One of the main reasons was that while the water and sewer upgrades were needed 6 for a fully-developed plat, they were not necessary for only the one house, especially since the 7 responding fire department had concluded this one house could be successfully served — assuming it 8 9 was an occupied residence, and that it was in the public interest to enable an occupancy permit to be 10 granted to this fully-completed home. In the interest of compromise, the Smiths reiterated their prior 11 offer that if the City granted them an occupancy pen-nit, they would agree to waive liability on the 12 1 City's part if their home were to be damaged or destroyed by fire. I 13 1 3.12 For the reasons stated in the letter accompanying the plat amendment application, 14 expediency was requested. Although the matter was noted for hearing before the City Council on September 22, 2009, on September 21, 2009, giving only one business day cancellation notice, Grant 16 Beck unilaterally postponed the hearing until October 13, 2009. Further, during the intervening three 17 C, 4:;� 18 weeks, Grant Beck continued to avoid substantive communication with the applicants' representatives, 19 despite numerous phone messages and emails to him. 20 1 3.13 When Grant Beck did submit his staff report for the October 13, 2009 City Council 21 hearing (received on October 7, 2009), the main reasons for denial this time were that approving the 22 Smith occupancy without the booster pump station and sewer roll seal would be violations of the 23 International Fire Code and State Department of Health regulations, however he cited no specific fire 24 25 codes or health regulations that were at risk of violation. 26 114 In responding to the staff report, the Smiths, through their engineer and attorney, pointed 27 out: (1) there would be no International Fire Code violation if, as what was done here, the responding, 28 FIRST AMENDED COMPLAINT FOR AND CUSFEVL1VN 924 CAPITOL WAY SOUIT-f BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, RS. OLYNEN A, WAS FU1Nr,-mN 98501 BREACH OF DUTY, AND DAMAGES - 6 A-rro&N-E Ys AT LAw (360) 534-9183 FAX (360) 956-9795 1 1 Fire District considered the specific situation and determined that it still can serve the house; and (2) the 2 1 Smiths' residence currently achieves 24 psi water pressure, and the City's own Water Comprehensive 3 Plan requires only 20 psi for single-family homes. Since no other homes in the subdivision could be built without the upgrades in place, the Smith residence should therefore be categorized as a stand- alone sincle-family home, which meets the City's water pressure standard. At the conclusion of the Z�l October 13, 2009 public hearing, the City Council made the following motion: 8 It has been moved and seconded to table this until the next regular Council meeting in two weeks, to allow the attorneys, the attorney for the applicant and the City attorney, to 9 get together and attempt to work out a waiver which will be satisfactory to all parties, Z.1n 10 and which would allow, at that time, would allow the family to move into their home. 3.15 During the ensuiric, two weeks between October 13 and the Council's next regular 12 meeting on October 27, 2009, both Grant Beek and Brent Dille the City Attorney, again continued to C, 13 avoid coordinated communications with the Smiths' attorney until the final few days before the 14 October 27, 2009 City Council meeting. Not once was the Smiths' proposed Waiver ever discussed. 15 Not only did Grant Beck and Brent Dille fail to carry out the City Council's directive to find a 16 17 satisfactory solution which would allow the Smiths to move into their home, Grant Beck used the 18 services of the City's attorney to further a personal vendetta against Steve Chamberlain by fabricating 19 obstacles in order to prevent the Smiths from occupying their home in the hope that this would expose 20 Steve Chamberlain to liability. Grant Beek issued a second staff report, accompanied by a letter from 21 Brent Dille which stated that the Department of Health requirement for 30 psi of water was mandatory 22 without mentioning the regulatory exceptions. He also asserted — without any professional 23 knowledge or basis in fact — that connecting the Smith residence to the sewer without the pressure 24 25 release valve would threaten the City's entire sewer system with an "over-pressurization event" (when 26 in fact the probable consequence from not having the pressure valve would be a minor odor at the 27 sewer connection, occurring outdoors in a neighborhood occupied by no one other than the Smiths). FIRST AMENDED COMPLAINT FOR AND CUSHMAN 924 CAPrroL WAY Souni 28 BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OL"MA, WAs�atNrToN 98501 BREACH OF DUTY, AND DAMAGES - 7 ATro&,4Eys.xTLAw (360) 534-9183 FA (360) 956-9795 1 3). 16 At the City Council's October 27, 2009 meeting, after hearing the information provided C� C� 2 1 by the Smiths' engineer, again by unanimous vote the Council instructed the staff and City attorney to 0 11� 3 1 work with the applicant to find solutions. Specific directions included working, out water and sewer I 4 engineering details so that the plat conditions could be specifically addressed at the Smith's individual N 6 1 lot and house, as opposed to sized for the entire plat, as well as finalization of the Waiver, and 7 1 bringing that information back to their next meeting, on November 10, 2009. bringing C 8 3.17 Instead of working with the Smiths' attorney to revise the Waiver, Brent Dille created 9 1 an entirely new document that not only greatly exceeded the scope of what the Smiths had originally 10 1 proposed to waive, but is so open-ended, that the Smiths could be held liable for any and all fire, 11 sewer, and water malfunctions anywhere in the City, caused by any reason, known or unknown. Mr. 12 Dille's version is not a. waiver. Rather, it is a form of private insurance in which the Smiths would 13 1 personally insure the City of Yelm from all damage to its infrastructure regardless of whether the 4 1. Smiths or any improvement on the Smith land caused or worsened the damage. This is an improper 15 1.7 16 attempt to shift general and public risk onto an individual family by burdening 0 , the family's property. 17 It is a taking without just compensation. 18 3.18 After the City Council's October 27, 2009 meeting, the urgency to quickly process the up* plat amendment had been lost, since the Smith's residence they had been renting was sold, and they MEW 21 1 had to commit to another one-year rental lease on a different house. Nevertheless, the Smiths' 22 1 engineer initiated a meeting with Randy Raymond of Parametrix, the City's retained engineering firm, 23 1 Tim Peterson, City of Yelm's Public Works Director, and a representative from the State Department 24 1 of Health, and immediately thereafter began working on engineering plans to address issues regarding 25 1 potable water, water pressure, and the sewer pressure-release valve. 26 3,19 In consultation with the City public works staff and Parametrix, the Smith's engineer 27 28 FIRST AMENDED COMPLAINT FOR AND CUSF&LIXIN 924 CTITOL WAY SOU-ni BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYNI MA, WASHINGTON 98501 BREACH OF DUTY, AND DAMAGES - 8 A7ToRNEys AT LAw (360) 534-9183 FAX (360) 956-9795 has developed and presented engineering solutions that completely address the City's stated concerns, 11�p 2 1 and prevent potential harm to the City of Yelm or its infrastructure. Despite this, the City of Yelm is 3 refusing to allow the Smiths to move into their home, to amend the plat, or to issue a certificate of Z71 4 occupancy. These are ministerial acts, and the City of Yelm has no right or proper excuse to withhold 6 6 1 them. As such, this Court can and should issue a writ of mandamus to compel the City of Yelm to 7 1 take the actions necessary to allow the Smiths to move into and live in their home. 11, IV. CAUSES OF ACTION , 1 4.1 Breach of Contract and Negligent Misrepresentation by Steve Chamberlain and FH I. 10 LLC, M 12 1 a. The Statutory Warranty Deed recorded October 10, 2008, wherein FH 1, LLC is 13 1 the Grantor and the Smiths are the Grantees, states, 14 This conveyance is subject to covenants, conditions, restrictions and easements, if any, affecting title, which may appear in the public record, including those shown on any is recorded plat or survey, (Emphasis added.) 16 1 Based on the above language, the conveyance was subject only to those restrictions of record which W affect title (e.g., easements and other ownership rights/obligations). The two final plat conditions 11M 19 1 required FI-11, LLC to make upgrades to the City's water and sewer system for the plat, no portion of 20 which was to be owned, controlled, or maintained by the Smiths. Since those are conditions which 21 1 neither affect title, nor are affected by title, the failure of FHl, LLC to implement those final plat 22 1 conditions is not an exception to its conveyance to the Smiths. 23 1 b. These Defendants represented to the Smiths that Lot 15 was a buildable lot at 21 1 the time of their purchase on October 8, 2008. The $84,000 the Smiths paid for an approximately 25 8,500 square foot lot in Yelm is a price reflective of a buildable lot served by all City utilities and 26 27 services, The contract between FH 1, LLC and the Plaintiffs was that the conveyed Lot 15 was 28 FIRST AMENDED COTMPLAINT FOR AND MHVATN 924 CAPiTot. WAY Sou-m BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, RS. OLYWIA, WASKINGToN98501 BREACH OF DUTY, AND DAMAGES - 9 ATroLNEYs AT LAxv (360) 534-9183 FAX (360) 956-9795 1 1 suitable for construction of the house contracted to be built by Triance Homes for the Smiths. C. Steve Chamberlain is an engineer and developer, and had known since at least Z:� 3 1 the time of preliminary plat approval two years earlier in September 2006, that the booster pump station for the plat would be a requirement, and also know that it was a significant cost, yet made no 5 6 disclosures of the risks and potential problems to the Smiths if it could not be funded and installed, 7 1 Similarly, these Defendants knew, since at least the time of the final plat approval in December 2007, 8 1 of both the water booster pump requirement and of the sewer pressure release valve which also 9 1 needed to be installed, yet again, made no disclosures to the Smiths of the risks and potential Z:� 10 1 problems if not installed. Without such disclosures, the Smiths could not have, and did not, anticipate 11 the scope of the problem and extent of the consequences. 12 42 Breach of Contract by Maureen Nieland and VanDorm Realty. These Defendants had 13 14 1 a duty to Buyers to investigate the scope of the risks involved if Defendants Chamberlain and FH 1, 15 1 LLC did not complete the booster pump station and other plat conditions. Since Defendants Nieland 16 1 and VanDon-n did know there was a potential problem due to a delay with the pump station, as agents 17 1 for the Buyer, earning a commission, they were obligated to make further inquiry in order to ascertain 18 1 all the risks and consequences, especially since the Smiths' Lot 15 was the first lot proposed for 19 construction in this plat. If the transaction had been properly investigated, the Smiths would have ME 21 1 then been able to make a fully-informed decision about whether to purchase the lot and home 22 construction package on that lot. 23 4.3 Breach of Contract and-Negligent Misrepresentation by Dan Lee and Triance Homes. 24 In the Purchase and Sale a the Smiths were the purchasers, and Triance was identified 25 sometimes as the Seller and other times as the Builder. Dan Lee acted as the agent of Triance Homes 26 in the subject transaction by participating in the negotiation of the purchase and sale agreement, the 27 28 FIRST AMENDED COMPLAINT FOR AND CLJS1_fiVI11VN 924 CAPITOL WAY SOMli BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYMPIA, WASHINGToN 98501 BREACH OF DUTY, AND DAMAGES - 10 ATro&NT-. Ys AT LAW (360) 534-9183 FAX (360) 956-9795 1 1 addenda thereto, and the construction contract to build the Smiths' house on Lot 15 in the Plat of 2 1 Palisades West, and by being the signatory on these documents on behalf of Triance. The Purchase 3 and Sale Addendum dated August 27, 2003 states: cu Seller warrants that seller will complete Pump station for Palisades West to City of 5 Yelm specifications within 120 days of buyers obtaining construction loan financing. If 6 seller does not complete pump station within 120 days of buyer obtaining construction loan financing, seller agrees to pay buyers interest payments on buyers construction loan I=> 7 until a certificate of occupancy is issued. 8 1 As of the date of this Complaint, Triance has made none of the Smiths' construction loan interest 9 payments that it is obligated to pay, which started to accrue 120 days from the October 9, 2008 10 recording of the Smiths' Deed of Trust with Home Street Bank, which calculates to February 6, 2009, 1 These facts, in addition to breach of warranty and breach of contract, constitute negligent 12 misrepresentation by Defendants Triance and Dan Lee. 13 14 4.4 Breach of Contract by City of Yelm. Under the conditions of approval for the plat of 15 Palisades West, the City of Yelm is to provide water and sewer to all the lots therein, once the water 16 and sewer connection fees have been paid (see Paragraph 3.5 above). The Smiths paid said fees in 17 order to obtain their building permit (see Paragraph 3.2 above). The City is therefore obligated to C> 18 provide the Smiths, with water and sewer services which meet the City standards, If as in the case 19 here, the developer of the plat, FHI, LLC, refuses or is unable to fulfill its obligation to the City to 20 21 install the water booster pump and sewer pressure release valve, then that obligation becomes the 22 City's responsibility. 23 4.5 Breach of Duty by City of Yelm. On September 17, 2008, the City, through the 24 Building Division of the Community Development Department, issued a building pen-nit for the 25 construction of the Smith residence on Lot 15 of Palisades West. This building permit directly 26 violated Condition No. I placed on the final plat by the City Council, as recorded February 12, 2008, 27 28 FIRST AMENDED COMPLAINT FOR AND CUSHVL,\N 924 CAPITOL WAY SOUMI BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLY,VMIA, W,1SHNGTON 98501 BREACH OF DUTY, AND DAMAGES - I I Arromots AT lAw (360) 534-9183 FAX (360) 956-9795 which prohibited the issuance of a building permit for anything other than a model home until the Z:) 2 1 water booster pump station was installed (see Paragraph 30.2 above). Yet despite this prohibition, the 3 1 Smiths were issued a residential building permit for their home, which in no way was represented as 11 beinc, for a model home. Neither the City Building Division nor the Community Development 5 6 1 Department had authority to ignore or amend this plat condition. Under RCW 58,17.2 t 5, only the 7 1 legislative authority of the City (in this case the City Council) has authority to alter subdivisions, and may only do so upon advance application, notice, and hearing. The City's error in issuing the 0 1-� 9 1 Smiths' building pen-nit creates a duty to correct its mistake and/or compensate the Smiths, for the 10 1 damages they have incurred stemming from the City's violation of the plat condition, Although there 11 are a number of ways it can rectify the situation it caused, the City continues to breach its duty by M refusing to take the responsibility to do so. I- 13 14 4.6 Breach of Duty by City.Emplovee and/or Representative of City of Yelm. The 15 breaches of duty by Grant Beek identified below may become partially or wholly breaches by the 16 City of Yelm. The City of Yelm had the obligation to properly train and supervise its employees 17 such that they do not abuse City resources, staff, and contractors for personal purposes to the harm of 18 City residents. Therefore, even though Grant Beck may have acted outside the scope of his authority M in his intentional handling of this matter with the personal goal of depriving the Smiths of their W 21 1 property (despite the clearly stated and contradictory public goal of allowing the Smiths use and 22 1 occupancy of their property), the City of Yelm is liable for Grant Beck's individual torts as they arose 2 3 1 from the negligent training, empowerment, and supervision of Grant Beck. C> 24 1 4.7 Breach of Duty by Grant Beck. individually. 25 1 a. As Director of the City of Yelm Community Development Department, which 26 oversees the Building Division, Grant Beek has a duty to correctly implement the City's requirements 27 FIRST AMENDED COMPLAINT FOR AND CUSH'VLAjN 924 CAPITOL WAY SOUTH 28 BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OL"IPIA, WASI-IIINGTON 98501 BREACH OF DUTY, AND DAMAGES - 12 A:TroR�ys AT LAW (360) 534-9183 FAX (360) 95&9795 I when issuing building permits, In the case of the Smiths' building permit, Mr. Beek has identified -7 0 1:1 2 that he specifically knew of the Palisades West plat condition requiring that the water booster pump 3 and sewer valve be installed prior to the issuance of any residential building permit, yet he changed Z� that requirement from a condition for a builefinla permit, to a condition for the occupancy permit, and 5 6 did so unilaterally, and without the benefit of any plat amendment process. As Director of the 7 Community Development Department, overseeing the Building Division, Grant Beck allowed a 8 private residence to begin and complete construction, all the while knowing there was a significant 9 risk that the home could not be Occupied under the terms of the condition which he unilaterally 10 allowed to be modified, 11 b. As a member of the City of Yelm staff, Grant Beck has a duty to implement 12 the City Council's directives to him, On October 13, 2009, the City Council directed that he work 13 14 with the applicant to find a solution which would enable the Smiths to move into their home (see 15 1 Paragraph 3.14 above), Grant Beck not only ignored that directive, but took deliberate actions to 16 1 achieve the opposite result, so that the Smiths could not move into their home. 17 1 C. As an employee for the City of Yelm, Grant Beck has a duty to use the City's 18 legal services for the benefit of the City, not to advocate personal biases. Further, in this case, he was 19 told by the City Council to use the City Attorney to seek a solution so the Smiths could move into 20 21 their home. Instead, Grant Beek has misused the legal services of the City Attorney, Brent Dille, for 22 his personal desires to: (1) delay the progression of the Smiths' plat amendment application; (2) 23 obstruct the Smiths' plat amendment process with an ever-changing list of reasons why it can't be 24 approved; (3) present "evidence" to the City Council purported to be factual, when it knowingly was 25 not; (4) requiring the Smiths to take actions and agree to conditions that are not required of any other 26 City of Yelm citizen to obtain an occupancy pen-nit for a home which has been issued a building., 27 28 FIRST AMENDED COMPLAINT FOR AND CUSFLIVLAIN 924 CAPITOL WAY SOM-H BREACH OFCONITRACT, MANDAMUS, LAW OFFICES, P.S. OLYMPIA, WAsHNGToN98501 BREACH OF DUTY, AND DAT-VIAGES - 13 ATro%NE Ys AT LAw (360) 534-9183 FAX (360) 956-9795 I permit by the City of Yelm; and (5) forcing the Smiths to incur significant expense to initiate, correct, 2 and complete actions which should have been undertaken and incurred by the City of Yelin. 3 d. On information and belief, Grant Beck's decisions and actions in this case 14 were motivated by a personal vendetta against Steve Chamberlain, with the goal of harming the 5 Smiths in such a way that they would have a claim against Steve Chamberlain, for the purpose of 6 1 7 harming Steve Chamberlain by exposing him to liability. In 1.1� 8 V. CLAIN—IS FOR DAMAGES 9 5.1 Damages Caused by Steve Chamberlain and FH I. LLC. These Defendants knowingly 10 sold the Smiths a lot which was not legally buildable at the time of sale; falsely portrayed that Lot 15 was imminently ready for residential construction and inhabitation; and failed to disclose the risks 12 and consequences of purchasing the lot in advance of FHI, LLCs fulfillment of the two final p lat 13 1 conditions. These Defendants' actions and omissions have significantly contributed to the damages 4 1 15 suffering which Plaintiffs are now sufferin due to having paid to build a house on a lot that remains legally 16 unbuildable. 17 5.2 Damages Caused by Maureen Nieland and VanDorrn Realty. These Defendants 18 negligently brokered the transaction between the Smiths, Triance Homes, and FH 1, LLC by failing to 19 investigate what should have been red flags to any real estate professional, failing to advise the 20 21 Smiths of the risks and potential liabilities involved in the transaction, and failing to advise the 22 Smiths to seek advice on matters outside Nieland's expertise. These Defendants' negligence and 23 malpractice have significantly contributed to the damages Plaintiffs are now suffering due to having 24 purchased a custom-built home they cannot move into and a lot on which they cannot reside. 25 53 Damages Caused by Dan Lee and Triance Homes. 26 a. These Defendants failed to both disclose and investigate. Well in advance of 4P 27 FIRST AMENDED COMPLAINT FOR AND CLJ51TVIINN, 924CxPrrOL WAY SOMf 28 BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYNmm, WAsKNGToN 98501 BREACH OF DUTY, AND DAMAGES - 14 ATrowEys AT I-Aw (360) 534-9183 FAA (360) 956-9795 1 6.1 The Smith's engineer has presented engineering solutions that prevent potential harm to ZD 2 the City of Yelm or its infrastructure. The City of Yelm is refusino, to allow the plat amendment, to 1 3 issue a certificate of occupancy, or to otherwise take the steps necessary to allow the Smiths to legally 4 reside in their home, The City of Yelm and Grant Beck have no right or proper excuse to withhold 5 6 these ministerial acts. This Court can and should issue a writ of mandamus to compel the City of 7 Yelm and Grant Beck to take the actions necessary to allow the Smiths to move into and live in their 8 home, including requiring the City of Yelm to pay for any improvements to the utilities it may Z:� 11.� 9 determine necessary as prerequisites to occupancy. 10 PRAYER FOR RELIEF 12 WHEREFORE, Plaintiffs pray for: 13 1. Damages in an amount to be proven at trial, but known to exceed $50,000 (including 14 damages against the bond up to the full penal sum of the bond); 15 2. Costs of suit incurred herein; 16 3. Reasonable attorneys' fees; 17 4. For a Writ of Mandamus compelling the City of Yelm and Grant Beck to undertake 18 those ministerial acts necessary to allow the Smiths to legally reside in their home, including requiring 19 20 the City of Yelm to pay for any improvements to the utilities it may determine necessary as 21 prerequisites to occupancy; and 22 5. Such other and further relief as the Court may deem just and equitable. 23 DATED this 'day of February, 2010, 24 CUSHMAN LAW OFFICES, P.S. 25 26 By �tfo -mey eD. Cushman, WSBA #26358 27 for Plaintiffs FIRST AMENDED COMPLAINT FOR AND CUSFDAAN 924 CAPiToLWAY Sou-n-I 28 BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYMPIA, WASHNGTON 98501 BREACH OF DUTY, AND DAMAGES - 16 ATroKNcys AT LAw (360) 534-9183 FAX (360) 956-9795 SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY Plaintiff/Petitioner, vs. �I,e, I m Defendant/Respondent I,0: THURSTONCOUNTY CLERK ATTORNEYS/LITIGANTS PLEASE TAKE, NOTICE: DEC 7 2909 3- G, DU O. 09-2-02879-3 NOTICE OF ASSIGNMENT/ (NTAq) NOTICE OF STXFUS CONFIRENCP, (NTC) 1. That the above-noted case is assigned to: The Honorable Thomas McPhee 2. That the Status Conference is scheduled for 9:00 a.m. March 12, 2010. Dated this 7th day of December, 2009. THURSTON COUNTY SUPERIOR COURT 2000 L)kKER_TDCTE DRIVE SW OLYMPIA WA 98502 (360) 786 - 5560 NOTICE OF ASSIGNMENT/ NOTICE OF STATUS CONMERENCE. ill parties should be familiar with Local Civil.Rule 16(d) which requires in part that parties or lead counsel attend and that the parties or counsel shall communicate with each other concerning the case schedule order before the status conjLrence. THURSTON COUNTY SUPERIOR COURT 2000 L)kKER_TDCTE DRIVE SW OLYMPIA WA 98502 (360) 786 - 5560 NOTICE OF ASSIGNMENT/ NOTICE OF STATUS CONMERENCE. 1 Q EXPEDITE 2 U Hearing is set: Date/Time: 3 Calendar/Judge: Civil/McPhee 4 5 6 7 8 SUPERIOR COURT OF WASHINGTON 9 FOR THURSTON COUNTY 10 ANDREW J. SMITH and CYNTHIA M. SMITH, 11 Husband and Wife, Plaintiffs, 12 v. 13 14 THE CITY OF YELM, a Municipal Corporation; GRANT BECK; STEVE CHAMBERLAIN; FH I, 15 LLC, a Washington corporation; DAN LEE; TRIANCE GROUP INC., d/b/a TRIANCE 16 HOMES, a Washington corporation and a licensed Washington construction contractor; STATE 17 FARM FIRE & CASUALTY CO., Bond No. 98GD85307; MAUREEN NIELAND; 18 VANDORM REALTY, INC., a Washington 19 corporation. 20 Defendants. 21 TO: Defendant City of Yelm 22 a] NO. 09-2-02879-3 0 lam Ullolis---N* I. INTERROGATORIES 24 Pursuant to Civil Rules 26 and 33, Plaintiff submits the following interrogatories to be answered 25 in writing, under oath within forty (40) days of service. These interrogatories are intended to be 2 continuing in nature so as to require supplemental information under Civil Rule 26(e). 27 2 8 FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - I CUSI-IMAN 924 CAPrrot. WAY SourH LAW OFFICES, P.S. OLYMPIA, WAsHNGToN 98501 AnoizjNT,YsyvrLAW (360) 534-9183 FAX. (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 26 27 28 11. REQUEST FOR PRODUCTION OF DOCUMENTS Pursuant to Civil Rules 26 and 34, you are requested to produce at the Cushman Law Offices P.S., all documents designated below that are in your possession, custody, or control of your agents, attorneys, consultants, or representatives or which are accessible to any such person within forty (40) days of service upon you. This Request for Production of Documents is also continuing in nature under Civil Rule 26(e), and should you discover additional responsive documents after your initial I production, you are required to produce such documents. 111. INSTRUCTIONS A. These Interrogatories and Requests for Production of Documents are continuing and you are requested to provide any information which is responsive to them after the time you answer or respond. If such responses are not furnished, plaintiffs will move at the time of trial to exclude from evidence any requested information not so furnished. B. Each Interrogatory and each subparagraph of each Interrogatory is to be fully and separately answered, in writing and under oath. Before each response is given, the paragraph and subparagraph number of the Interrogatory to which the answer or response relates is to be set forth. C. The answer and response to each Interrogatory and Request for Production shall include such knowledge and documents as are within your custody, possession or control, or readily obtainable by you, including knowledge within the custody, possession or control of your attorneys, agents, and other representatives. D. If you refuse to answer or respond to any Interrogatory or Request for production, in whole or in part, identify the basis for your refusal to answer or respond, including any claim of privilege. E. If you assert a claim of privilege to the production of any document requested below, state for each document the following information: 1. Which privilege is claimed; FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 2 CUSHMAN 924 GVITOL WAY SOLTITI LAW OFFICES, P.S. OLYMPIA, WASI-IINGTON98501 ATToRNEys AT' LAW (360) 534-9183 FAX (160) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. A precise statement of the facts upon which said claim of privilege is based; 3. The following information as to each purportedly privileged document: a. Its nature, e.g., letter, memo, minutes, etc.; b. The date it bears-, C. The identify of the persons sending it; d. The identity of each person receiving a copy; e. A statement of the subject matter of the document; If you contend only a portion of the document is privileged, please provide a redacted copy of the document with a listing of the above infannation as to the redacted portion. F. With respect to any Interrogatory or Request for Production contained herein, if you are able to provide some, but not all, of the infon-nation requested, provide such information as you can and specifically identify each item as to which you do not have sufficient information to fully respond. G. The Interrogatories shall be answered within forty (40) days after the service thereof 159�1 4 H H. You are directed to produce all documents requested below regardless of when such document was drafted or generated and regardless of whether or not such document was drafted or generated after completion of the project. 1. The documents requested below shall be produced and made available for inspection and copying at the Cushman Law Offices, P.S., 924 Capitol Way South, Suite 201, Olympia, Washington 98501 within forty (40) days after the date of service thereof upon you. IV. DEFINITIONS As used in these Interrogatories and Requests for Production, the following terms shall have the following meanings: FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 3 CUSHMAN 924 Q PITOI, WAY SOUM LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501 ATroKNT, Ys AT I-Aw (360) 534-9183 FAX: (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. The term "You" and "Your" means yourself, and any and all other persons or entities acting on your behalf, or on whose behalf you are acting, including, without limitation, your insurer, bank, accountant and/or attorney. B. The terms "and" and "or" shall, unless the context clearly indicates otherwise, and are both the conjunctive and disjunctive. C. In construing these Interrogatories and Requests for Production of Documents, the singular of each term shall include the plural and the plural shall include the singular, and a masculine, feminine, or neuter pronoun shall not exclude the other genders. D. The term "document" means all written, graphic, or printed matter of any kind, however I produced or reproduced, including all originals, drafts, working papers and non-identical copies, whether different from the originals by reason of any notation made on such copies or otherwise including, but not limited to, papers, books, patents, letters, photographs, tangible things, correspondence, telegrams, cables, telexes or telefax messages, memoranda, notes, data, notations, work papers, interoffice communications, minutes, reports and records of any communications (including telephone or other conversations, interviews, conferences or committee or other meetings), affidavits, statements, summaries, opinions, reports, studies, analyses, plans, specifications, contracts, licenses, agreements, journals, books or other records of accounts, summaries of accounts, bills, receipts, balance sheets, income statements, advertisements, desk calendars, appointment books, diaries, lists, charts, graphs, maps, surveys, sound recordings, computer records or impressions, microfilm, and all other records kept by electronic, photographic, or mechanical means, and things similar to any of the foregoing, however denominated. E, The term "person" includes any natural person, firm, company, association, partnership and joint venture corporation, and any other form of legal entity, and any city, state or federal governmental entity or any agency, board or court thereof. M1 -9-0 W-9-1 - WMM W 410 go WMIN"M WIN I CUSHMAN 924 CAPiim WAY SourH LAW OFFICES, P.S. OLYMPIA, WASH NGTON 98501 AITORINEYS AT LAW (360) 5349183 PAX. (360) 956-9795 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F. The term "identify" means, with respect to a document, to state its type (e.g,, letter, interoffice memorandum, etc.), date, author, subject matter, present custodian, and if you are no longer in possession of the document, whether it was lost, destroyed or otherwise disposed of and the accompanying circumstances, G. The term "identify" means, with respect to a natural person, to state his or her full name, address, present or last known employer and position held; with respect to a person other than a natural person, "identify" means to state the name and address of such person. H. "Identify" or "describe," when used with respect to an act occurrence, contract, transaction, decision, statement, communication or conduct (hereinafter collectively called "act") means to describe in substance the event or events constituting such act, or what transpired, the place, the date; and to identify the persons involved and the documents referring or relating thereto. 1. The terms "relate," " "in relation to,"' or "relating to" mean directly or indirectly referring to, pertaining to, discussing, describing, commenting on, constituting, evidencing, referencing, comprising, or reflecting upon a stated subject, in whole or in part. J. The ten-n "professional services" includes all architectural, engineering, construction or material testing, accounting, landscaping, estimating or construction management services. K. The term "Project" refers to the Plaintiffs' land and constructed house at 10756 Palisades St SE, Yelm, Washington, also known as Lot 15 of the Plat of Palisades West. L. The term "Contract" refers to any agreement or obligation you (see Definition at "A" above) had or have with Plaintiffs concerning the purchase, construction, permitting, approval for occupancy, and the providing of utilities to the Project in this matter. FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 5 CUSHMAN 924 CAPITOL WAY SOUTH LAW OFFICES, P.S. OLYMMA, WASTHNGTON 98501 ATTORNEYS AT LAW (360) 534-9183 FAX (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORIES INTERROGATORY NO. 1: Please identify by name, address, telephone number, employer and job title of each person who was consulted or who assisted in the answering of these discovery requests, or who furnished information which was used in answering them. KIMMA B]. IN, INTERROGATORY NO. 2: Prior to responding to these discovery requests, have you, or the persons identified in answer to Interrogatory I above, thoroughly researched and identified every document and made inquiry of every employee or agent having knowledge of the information and subject matter sought by these discovery requests? "I MWAV 08 INTERROGATORY NO. 3: Has the City of Yelin ever been a party to a legal action other than the instant action, within the past 10 years, which concern disputes about: the issuance of building permits and certificates of occupancy; performance and development bonds; the provision of city water or sewer utilities; waivers of liabilities; and plat condition, development conditions, permit requirements, or city planning issues. If so, please state as to each action: a. Date the action was filed; b. Title of the action; FIRST INTERROGATORIES AND CUSAIMAN 924 CAPITOL \VAY SOUTI i REQUESTS FOR PRODUCTION TO LAW OFFICES, RS- OLYNIMA, VIM] [INGTON98501 DEFENDANT CITY OF YELM - 6 Ni-rowmWIS ATLAW (360) 534-9183 FAX: (300) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Nature of the action; d. Court and cause number of the action; e. Disposition of the action; f Name, address and telephone number of your attorney(s); and or all other parties. - 9. Name, address and telephone number of attorney(s) f ANSWER: INTERROGATORY NO. 4: Will Yelm call any expert witnesses at trial? ANSWER: INTERROGATORY NO, 5: If the answer to the preceding Interrogatory is anything but an unqualified "no", state with respect to each expert witness you expect to call as a witness at trial: a. Name; b. Profession or occupation and job title; FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 7 CUSHABN 924 CAPITOL WAY SOUTI I I'm OFFICES, P'S. OLYNIPIA, WNq JINGTOIN 98501 A'JIORNINS AT LAW (360) 534-9183 PAX: (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C, Resume of education, training and experience; d. The subject matter or area upon which he or she will testify; e. Whether such potential witness will base his or her opinion: I . in whole or in part upon facts acquired personally by him or her in the course of an investigation or examination of any of the issues of this case, or 2, solely upon information as to the facts provided him or her by others. f. If your answer to "e" above discloses that any such witness has made a personal investigation or examination relating to any of the issues of this case, state the nature and date of each such investigation or examination; 9• Each and every fact, and each and every document, item, photograph or other tangible object supplied or made available to such person; h. The substance of the facts and opinions to which each such expert is expected to testify; i. A summary of the grounds for each opinion of each such expert; j. Whether he or she has rendered written reports, and, if so: 1. give the date of each report, and 2. state the name, address and phone number of the person having custody of each such document. k. Whether such expert has considered or intends to testify regarding statements contained in published treatises, periodicals or pamphlets and, if so, the author, title, issue date and publisher of each and every such publication. FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 8 CUSHIMAN 924 CAPITOL WAY S< I LAW OFFICES, P.S. OLYMPIA, WASI HNGTON 98501 ArKA N ENSATLAW (W) 534-9183 VAX: (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO. 6: Identify and list every engineering report, drawing, audit, survey, sketch, investigative or narrative memorandum, or other discoverable document by any person relating or pertaining to this litigation in any way, including but not limited to the engineering documents and review done in late-2009 specifically pertaining to Lot 15 of Palisades West, and specify the following for any such document: What it shows; b The name, address and telephone number of the person who drafted or originated it; C The date it was drafted or originated; d The form it takes (e.g. sketch, report, etc.) e The purpose for which it was drafted or originated; and f The name, address and telephone number of the person having custody of such documents. ANSWER: FIRST INTERROGATORIES AND RE-QUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 9 CUSHIMAN 924 CAPIT01, WAYSOUT1 I o1-'f;Ic'ES' P's. ()LNININA, \VASI 1INGTON 98501 AITOKNI-'1-, ATLAW (3(A)) 534-9183 FAX: (360) 950-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO. 7: Please give a detailed description of the City of Yelm's relationship with Plaintiffs. Specifically identify: a. Date relationship began; b. Date relationship ended, if applicable; C. Reason for termination of the relationship; d. The nature of the relationship; e. The expectations the City of Yelm had of Plaintiffs by virtue of the relationship-, f. The expectations you believe Plaintiffs had of the City of Yelm by virtue of the relationship; 9. Any failures of Plaintiffs in fulfilling the duties identified herein; and h. Any and all evidence that City of Yelm fulfilled and satisfied the rights of Plaintiffs as identified herein. KNIN'Til", FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 10 CUSHMAN 924 CAPITOL WAY SOLFITT LAW OFFICES, P.S. OLYMPIA, WAsi-uNG'roN 98501 ,NI-roRNEys Nr LAw (360) 534-9183 FAX (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO. 8: Please identify the City of Yelm's relationship with Grant Beek, Specifically identify: a. Date relationship began; b. Date relationship ended, if applicable; C, Reason for termination of the relationship, if applicable; d. The nature of the relationship; 01 The expectations the City of Yelm had of Grant Beek by virtue of the relationship; f. The expectations you believe Grant Beck had of the City of Yelm by virtue of the relationship; 9. Any failures of the City Yelm in fulfilling the duties to Grant Beek. h. Any and all evidence that City of Yelm fulfilled and satisfied the rights of Grant Beek as identified herein. ANSWER: FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - I I CUSHMAN 924 CAPITOL WAY SOLIT14 LAW OFFICES, P.S. OLYMPIA, WAsi uNc',ToN 98501 ATrop,Nm AT I-Aw (360) 534-9183 FAX: (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO. 9: Please give a detailed description of the City of Yelm's relationship with Defendant Steve Chamberlain. Specifically identify: a. Date relationship began; b. Date relationship ended; C. Reason for termination of the relationship; d. The nature of the relationship; e. The expectations the City of Yelm had of Steve Chamberlain by virtue of the relationship; f. The expectations you believe Steve Chamberlain had of the City of Yelm by virtue of the relationship; 9. Any failures of Steve Chamberlin in fulfilling the duties identified herein; and h. Any and all evidence that City of Yelm fulfilled and satisfied the rights of Steve Chamberlain as identified herein. ANSWER: FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 12 CUSIB4AN 924 CAPITOL WAY SOUII-I LAW OFFICES, P.S. OLYMPIA, WASI UNGTON 98501 Arron,iys AT LAw (360) 534-9183 FAX: (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO. 10: Identify all documents (see Definition Section IV.D. above) transmitted between the City and any other party to this lawsuit regarding the Project. I ANSWER: INTERROGATORY NO. 11: Furnish the name, current address, telephone number, occupation, job designation, and present location of any person known to you or your attorneys as having knowledge of the relevant facts pertaining to the above-entitled case. This interrogatory is intended to include all witnesses known to you or to your attorneys. K I I e MAY a FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 13 CUSERVIAN 924 CAd)ITOL WAY SOUFH LAW OFFICES, P.S. OLYWIA, WASI-UNGTON 98501 AiTomEys Ai, LAw (360) 534-9183 FAX: (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO. 12 For each person listed in response to the preceding interrogatory, please set forth a brief statement of the information that this individual has concerning the allegations containe, in the Complaint. ANSWER: INTERROGATORY NO. 13 Do any city rules, codes, or any oral or written agreements exist which require the City of .'elm to obtain city governmental or third-party approval prior to entering a settlement, or which in any way limits the City's ability to enter into a settlement? If so, please identify all parties to each such agreement and state in detail the terms of the agreement. ANSWER: FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION To DEFENDANT CITY OF YELM - 14 CUSf UJAN 924 CAPITOL WAY SOUTI I Lim OFFJC1 S, P.S. 0INNIMA, WAS) IINGTON 98501 AITORNEYS AT LAW (360) 534-9183 FAX: (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO. 14: Referring to Plaintiffs' First Amended Complaint, if you deny (other than denial based on lack of knowledge), in whole or in part, any of the statements and allegations in the Complaint, please state the facts on which you deny the allegation, identify any person with knowledge of the facts concerning the allegation, and identify any documents concerning the facts of the allegation. ANSWER: INTERROGATORY NO, 15: If you allege any Affirmative Defenses, please identify: a. Each and every fact upon which you base your affirmative defense(s); b. Each and every witness who can support the facts upon which you base your affirmative defense(s) IUMMM"', FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 1 5 CUSHMAN 924 Curra, WAY Sol ill LAW OFFICES, P.S. OLYMPIA, WASHNGrON 98501 ATTORNEYS NI'LAW (360) 534-9183 FAX: (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO. 16: Please identify what your understanding was/is about the conditions placed on the plat of Palisades West by the City Council of Yelm concerning the water booster pump I and the sewer pressure release value, also known as a sewer roll seal (see p, 3 of Plaintiffs' First Amended Complaint). Specifically describe: a. why those plat conditions were needed and their purpose(s); b. the physical infrastructure and system components entailed; G. who was going to implement the plat condition improvements, and when; d, who was going to enforce the plat conditions, and how; e. how those plat conditions could affect Plaintiffs' occupancy of their house at 10756 Palisades St SE, Yelm, WA; and f the consequences to each Defendant herein if those plat conditions were not fulfilled. F.MMY-3-6i INTERROGATORY NO. 17: Describe all steps and efforts Yelm took to require the plat developer to complete the booster pump station as identified in Plat Condition No. I [see p. 3 of Complaint], listing dates and costs associated with such activity. "eRUM 413 FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 16 CUSFRVIAN 924 CAPITOL WAY SOUITI LAW OFFICES, P.S. OLYINVIA, WASI-UNGTON 98501 Arromr.. Ys AT LA\v (360) 5349183 FAY- (360) 956-9795 1 2 3 4 5 6 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO, 18: Describe all steps and efforts Yelm took to require the plat developer to complete the pressure release valve or sewer roll seal as identified in Plat Condition No. 1 [see p. 3 of Complaint], listing dates and costs associated with such activity. ANSWER: INTERROGATORY NO, 19: Please identify any and all general or specific performance and/or development bonds the City of Yelm imposed upon the plat developer to implement any of the improvements for Palisades West f/k/a Forrester Heights which were made conditions of preliminary and final plat approval. Your answer is to include, but is not limited to, any performance bond to install the two final plat conditions (see p. 3 of Complaint). As to each bond, identify: a. the date the bond was posted and the amount bonded; b. the financial entity who posted the bond, C. the requirements imposed before the bond could be released or satisfied; d. the date the bond was released or satisfied. ANSWER: FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 17 CUSFB4AN 924 CAPITOL WAY SOU11-1 LAW {OFFICES, P. S. OLYMPIA, WASFUNGTON 98501 A=RNRys Ax LAW (360) 534-9183 PAX; (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO. 20: If the City of Yelm did not require any type of performance or development bond from the plat developer to assure there were funds to complete the two above - referenccd final plat conditions, please explain why, and explain why the Palisades West final plat I approval was granted without such bond(s). 1 MOMM 01, INTERROGATORY NO. 21: Explain if the City of Yelm changed or authorized a change of Palisades West Final Plat Condition No. 1, recorded February 12, 2008, which prohibited the issuance of a residential building permit, to instead allow a residential building permit to be issued but prohibit its occupancjj certificate (thus allowing Plaintiffs to begin and complete a residence they cannot legally occupy - see Complaint at Paragraph 4.7a): a. If the City did not change or authorize this plat condition change, please explain how and why the Smiths Building Permit No. BLD-08-0326-YL was issued on September 1'7, 2008. b. If the City did change or authorize this plat condition change, please explain the procedures the City took to implement such an amendment to Palisades West Final Plat Condition No. I ANSWER: FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 18 CUSHNLl N 924 CAPITOL WAY SOU'll I LAW OFFICES, P-S, OLYN1111A, WASHINGTON 98501 AITORN]"I'S AT LAW (360) 534X91831 -AX: (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INTERROGATORY NO. 22: As to the engineering work proposed specifically for Palisades Lot 15 to address the water and sewer issues at an individual-lot level, which was jointly reviewed by I engineers from Yelm, Parametrix, and Washington State Department of Health in late-2009, please I identify: a. The documents reviewed; b, 'The results of that review, and C. The estimated costs to implement those engineering plans. I WM INTERROGATORY NO. 23: Has the City formally enacted a regulatory requirement that individual single-family homes within the city limits maintain a water pressure standard of 30 psi? If so, please identify where this requirement has been adopted into the City regulations, and the date(s) of adoption. V., I 10 RM, at 9 INTERROGATORY NO. 24: Please identify which specific City of Yelm regulations, codes, ordinances, and policies govern the provision of municipal water and sewer utilities to its citizens. ANSWER: FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 19 CUISITMAN 924 CAPITOL WAYSOU'll I LAW OFF10"S, P.S. OLYMPIA, WAS] IINGTON 98501 A-1-rowm-n", AT L AW (300) 534-9183 FAX; (360) 956-9795 1 2 3 4 5 6 7 8 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR PRODUCTION NO. 6: Please produce copies of all documents identified in I response to Interrogatory No, 23. RESPONSE: REQUEST FOR PRODUCTION NO. 7: Please produce copies of all documents identified in response to Interrogatory No. 24. RESPONSE: REQUEST FOR PRODUCTION NO. 8: Please produce any and all letters and correspondence which in any way mention or pertain to Plaintiffs, or to the property, plat, Project, and/or dispute which is the subject of this lawsuit. RESPONSE: REQUEST FOR PRODUCTION NO. 9: Please produce all logs, diaries, notes or other documents that recorded any event, conversation, observation or activity related in any way to Plaintiffs or to the property, plat, Project, and/or dispute which is the subject of this lawsuit. MOM-213MIN FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 21 CUSIBIAN 924 CAPIT01, WAY SOUT] I LAW OFFICES, P.S. OLYMPIA, WASI 1INGTOIN98501 M'I'ORNEYS AT LAW (360) 534-9183 FAX: (360) 950-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REQUEST FOR PRODUCTION NO. 10: To the extent not otherwise requested, please produce any and all documents related to this Project in any way. RESPONSE: REQUEST FOR PRODUCTION NO. It: To the extent not otherwise requested, please produce any and all documents related to or referred to in any of your answers to these Interrogatories, RESPONSE: DATED this E �ay of February, 2010. FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 22 CUSHMAN LAW OFFICES, P.S. Ben Cushman, WSBA # 26358 ki-torney for Plaintiffs CUSHMAN 924 CAPITOL WAY SOU TI i LAW OFFICFS, P.S. OLYNVIA, WASI 11-NGTO'N' 98501 JV170RN)"NS AT LAW (360) 534-9183 17AK (360) 956-9795 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The undersigned attorney for the named Defendants has read the foregoing Interrogatories and Requests for Production of Documents to Defendants and the answers thereto and they are in compliance with CR 26(g). DATED on this _ day of STATE OF WASHINGTON ) ss County of K"I Attorney for Defendants being first duly sworn on oath, deposes and says: I am one of the Defendants in the above-entitled action; have read the above Answers to Interrogatories and Responses to Request for Production of Documents and believe the same to be true. By: (signature) SUBSCRIBED AND SWORN TO before me this day of 2008. NOTARY PUBLIC in and for the State of FIRST INTERROGATORIES AND REQUESTS FOR PRODUCTION TO DEFENDANT CITY OF YELM - 23 Residing at: CUSHINL�N 924 CAPIT01, WAY SOUTI I 1: "m 014'Fims' P.S. 98501 ATIURNEYS AT Last' (360) 534-9183 FAX: (360) 956-9795