2010 02 05 Smith Motion Amend Complaint_Page_011
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119�1 =1 "'M M M1 MI.M,
tam so IN IN43 111109KI111LIN &
Plaintiffs, I NO. 09-2-02879-3
Defendants. I CIVIL NOTICE OF ISSUE (NTIS)
Clerk's Action Required
TO: THURSTON COUNTY CLERK and to all other parties listed herein:
PLEASE TAKE NOTICE that an issue of law in this case will be heard on the date below and
the Clerk is directed to note this issue on the calendar checked below.
Calendar Date: February 12, 2010 Day of Week: Friday
IMPORTANT WARNING: If this Notice of Issue is not timely filed, contains a wrong day or
date, or is scheduled for a wrong calendar date, your hearing will not be scheduled. You will not
be notified.
Bench/Judge Copies: Deliver to Superior Court, Building 2, Rm. 150
Filing Deadlines: By 12:00 noon, 5 court days preceding the scheduled hearing date [LCR 5(b)(2)]
Confirmation: Confirm at www.co.thurston.wa.us/clerk by clicking on Hearing Confirmation, by faxing
to (360) 753-4033, or by calling (360) 786-5423 by 12:00 noon three court days prior to
the hearing date [LCR 16(f)(2)],
Court Address: 2000 Lakeridge Drive SW, Building 2, Olympia WA 98502.
X CIVIL MOTIONS (Friday — 9:00 am)
Type of Motion;
CONFIRMATION REQUIRED
❑ Default
ASSIGNED JUDGE:
❑ Judge Paula Casey
❑ Discovery
X Judge Thomas McPhee
❑ Summary Judgment/Dismissal
❑ Judge Richard D. Hicks
❑ Judge Carol Murphy
❑ Change Venue
---------------------------------------- -------------------------------- 1 C3 Continue Trial
❑ UNLAWFUL DETAINERS (Friday —10:00 am)
CONFIRMATION REQUIRED
❑ Show Cause
------------------------------------------------------------------------
C1 Present Order
❑ DOLRFvocATiONS(Friday-9:00am)
CONFIRMATION REQUIRED
❑ TRO/Preliminary Injunction
------------------------------------------------------------------------ X Other: Leave to Amend Complaint
❑ RALJ APPEALS (Tuesday — 9:00 am)
No Confirmation Necessary
CIVIL NOTICE OF ISSUE - 1 of 2H-41 ales122oo to 2250\�Mlth, Andrew 4, Cynthia% CIV, et aMotice of issue-Civil.doc, 09/28/07
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1 (1 Certificate of Service
I certify that on February 5, 2010, 1 X emailed and X
deposited in the U.S. mail, C3 delivered through a legal
messenger service, Cl personally delivered, a copy of this
document to the attorneys) of record for 0 Plaintiff .X
Defendants 13 All Other Parties of Record.
On behalf of X Plaintiff
C3 Defendant/Respondent
C3 Other:
PARTY:
Sign:
PrinV4�e Name: Ben D. Cushman
WSBA # 26358 (if attorney)
Address: Cushman Law Offices, P.S
924 Capitol Way S.
City/State/Zip: Olympia, WA 98501
Attorney for: Plaintiffs
Telephone:: 534-9183
Dated: February 5, 2010
W
OF ALL PARTIES REQUI]RING NOTICE
Name:
Carol A. Morris
Attorney for:
Defendant: Grant Beck
WSBA #:
19241
Address:
Morris & Taraday, P.C.
- 7223 Seawitch Lane NW
P. O. Box 948
Telephone:
Seabeck, WA 98380-0948
Telephone:
360/830-0328
Email:
carol—a—morris@msn.com
Name: Michelle A. Corsi
Attorney for: Defendants: Maureen Nicland
Name:
Attorney for:
WSBA #:
Address:
Telephone:
Email:
Name:
and VanDoim Realty
WSBA #:
24156
Address:
Lee Smart, P.S., Inc.
Address:
1800 One Convention Place
701 Pike Street
Seattle, WA 98101-3929
Telephone:
206/624-7990
Email:
mac@lcesmart.com
Name:
Attorney for:
WSBA #:
Address:
Telephone:
Email:
Name:
Douglas A. Dunham
Attorney for:
Defendant: State Farm Insurance
WSBA #:
2676
Address:
Crane Dunham, PLLC
800 Fifth Avenue, Suite 4000
Seattle, WA 98104
Telephone:
206/292-0909
Email:
dunham@cranedunham.com
Name: J. Michael Morgan
Attorney for: Defendants: Dan Lee, Triance
Homes, State Farm Insurance
WSBA 1804
Address: J. Michael Morgan, PLLC
1800 Cooper Pt. Rd SW Bldg 11
Olympia, WA 98502
Telephone: 360/292-7501
Email: mike@jmmorganlaw.com
CIVIL NOTICE OF ISSUE - 2 of 2H-.11=a1eS422o0 to 2150\ Mlth, Andrew 4, CMthlaW. City, et ahNotIce OF JSSUe-CMIAOC, 09/28107
1 U EXPEDITE
2 ❑ Hearing is set:
Date/Tirne: 2/19/10,9 a.m.
3 Calendar/Judge: McPhee
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8 SUPERIOR COURT OF WASHINGTON
9 FOR THURSTON COUNTY
10 ANDREW J. SMITH and CYNTHIA M. SMITH,
11 Husband and Wife, Plaintiffs,
12
IN
110 1 [01-111 N A I IEN", a0,
0011 U101 M"105 I • WI-111
13
THE CITY OF DOE, a Municipal Corporation;
14 GRANT BECK; STEVE CHAMBERLAIN; FH1,
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. Defendants.
20
21 COME NOW the Plaintiffs herein, through their attorney Ben D. Cushman, of Cushman Law
22 Offices, P.S., and in accordance with CR 15(a) request the Court for an Order Granting Leave to
23 Amend their Complaint. This motion is based on the accompanying Declaration of Ben D. Cushman,
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Ill
MOTION FOR LEAVE TO
AMEND COMPLAINT - I
CUSHA�Lc N 924 CAPITOL WAY SOUTH
LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
A,rrompyg AT I-Aw (360) 534 -9183 Fz1X: (360) 956 -9795
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and upon the records and files herein.
DATED this day of February, 2010.
01=1" -9 MAI
will 11 I ELI I pxWelkyj IV WA111-01 I "A
[410M., I kri kal'a Iffamal a a to) IM
Cushman, WSBA # 26358
Attorney for Plaintiffs
CUSHAL 924 CAPITOL WAY SOUTH
LAW OFFICES, P.S. OLYmPiA,WAsi-nNGroN 98501
ATPoRNrys AT LAw (360) 534-9183 FAX: (360) 956-9795
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• EXPEDITE
• Hearing is set:
Date/Tirne: 2119/10,9 a.m.
Calendar/Judge: McPhee
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SUPERIOR COURT OF WASHINGTON
9 FOR THURSTON COUNTY
10
ANDREW J. SMITH and CYNTHIA M. SMITH,
11 Husband and Wife,
12 Plaintiffs,
13 V.
14 THE CITY OF DOE, a Municipal Corporation;
GRANT BECK; STEVE CHAMBERLAIN; FH I,
is
LLC, a Washington corporation; DAN LEE;
16 TRIANCE GROUP INC., d/b/a TRIANCE
HOMES, a Washington corporation and a licensed
17 Washington construction contractor; STATE
FARM FIRE & CASUALTY CO., Bond No.
18 98GD85307; MAUREEN NIELAND;
19 VANDORM REALTY, INC., a Washington
corporation.
DECLARATION OF BEN D.
CUSHMAN IN SUPPORT OF
MOTION FOR LEAVE TO
AMEND COMPLAINT
Defendants.
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22 BEN D. CUSHMAN declares as follows:
23 1. I am the attorney for the Plaintiffs herein, and make this Declaration based on my own
24 personal knowledge.
25 2. The Complaint in this matter was filed with the Court on December 7, 2009. As stated
26 in the Prayer for Relief therein, Plaintiffs prayed for leave to amend their Complaint to name the actual
27
28 DECLARATION OF BEN D. CUSHMAN CUSHMAN 924 CAPITOL WAY SOUTH
IN SUPPORT OF MOTION FOR LEAVE LAW OFFICES, P.S. OLYMPIA, WASI-IINGI'ON98501
TO AMEND COMPLAINT - 1 ATIORNiFws AT bm (360) 534-9183 FAX: (360) 956-9795
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I Defendant City once the 60-day time period elapsed from the date the Plaintiffs' tort claim was made
upon the City. That time period will expire on February 8, 2010, which is prior to the date this motion
is to be heard.
3. As of the date of this Declaration, the following Defendants have appeared and
answered Plaintiffs' Complaint: Grant Beek, Dan Lee, Triance Homes, State Farm, Maureen Nieland,
and VanDorm Realty.
MR, WIMNTorp =#- $19MMWET "MT,11741
Complaint, naming the City of Yelm in place of the "City of Doe".
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF
WASHINGTON THAT THE FOREGOING IS TRUE AND CORRECT.
DATED this day of February, 2010, at Olympia, Washin
DECLARATION OF BEN D. CUSHMAN
IN SUPPORT OF MOTION FOR LEAVE
TO AMEND COMPLAINT - 2
CUSHMAN 924 CAPrroL WAY Sourri
LAW OFFICES, P.S. OLYMPIA, WmmNuroN 98501
AyroitNAYSATLAW (360) 534-9183 FAX (360) 956-9795
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❑ EXPEDITE
❑ Hearing is set:
Date/Time:
Calendar/Judge: McPhee
S111TE11-OR CO111RT OF
FOR THURSTON COUNTY
ANDREW J. SMITH and CYNTHIA M. SMITH,
Husband and Wife,
Plaintiffs,
12 1 V.
13 THE CITY OF YELM, a Municipal Corporation;
GRANT BECK; STEVE CHAMBERLAIN; FHI,
14
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;
18 VANDORM REALTY, INC., a Washington
corporation.
19 Defendants.
20
CU411129 MUTF,110"
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
24
1.1 Plaintiffs are residents of Thurston County, and their property which is the subject of
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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.
FIRST AMENDED COMPLAIN' FOR AND CUSIEVLW 924 CAPiToL WAY So=
28 BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYMPIA, WAsaNGToN 98501
BREACH OF DUTY, AND DAMAGES - I ATroRNEysATLAw (360) 534-9183 FAY, (360) 956-9795
k-A
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1.3 Defendant Grant Beck is employed by the City of Yelm, and resides in Thurston County
1.4 Defendant Steve Chamberlain is the Registered Agent for Defendant FHI, LLC, a
Washington corporation, has a registered business address of 4200 6 1h Avenue SE, Suite 309, Lacey,
WA, and does business in Thurston County.
1.5 Defendant Dan Lee is the Registered Agent for Defendant Triance Group Incorporated,
a construction contractor business registered with the Washington State Department of Labor &
Industries -under License No. TRIANGI94600, and at the time of the acts complained of had a
registered business address of 4200 6'h Avenue SE, Suite 301, Lacey, WA, and did business in
Thurston County. At the time of the acts complained of, this business was located on the same floor as
Steve Chamberlain's engineering firm, SCA Consulting Group, and Dan Lee had an email address,
dlla,scagroumcom which denoted that he was also affiliated with Steve Chamberlain.
1.6 Defendant State Farm Fire and Casualty Co. holds the construction bond for Triance
1.7 Maureen Nieland is a realtor with Van Donn Realty, Inc., who acted both as the Buyers'
and Sellers' agent in the subject real estate transaction, which occurred in Thurston County. Van Donn
Realty, Inc., is a Washington corporation that does business in Thurston County.
I I-M10 .11 F-3-11-100 [fig
2.1 Venue and jurisdiction are properly in Thurston County Superior Court under RCW
111. FACTUAL ALLEGATIONS
3.1 On September 27, 2006, the Hearing Examiner for the City of Yelm approved the
preliminary plat of Forrester Heights Phase I (now known as Palisades West), a 24-lot single-family
subdivision. The applicant and developer for the preliminary plat was FH 1, LLC. Among the Findings
FIRST AMENDED COMPLAINT FOR AND CUSFDAAN 924 CAPITOL WAY SOUM
BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYMPIA, WASMNGTON 98501
BREACH OF DUTY, AND DAMAGES - 2 A=Bmys AT I Aw (360) 534-9183 FAX. (360) 956-9795
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made by the Examiner were Finding Nos. 11 and 12 identifying that water and sewer would be
provided by the City of Yelm, that the applicant (FH1, LLC) must install a booster pump for the water,
and may need to install a press-Lire 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
applicant paying the current connection fee. Furthermore, due to the height of the
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
property. The preliminary plat makes appropriate provision for potable water.
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
applicant will connect to the City sewer system and will pay the connection fee.
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
provision for sanitary waste.
3.2 On December 11, 2007, the matter of approving the Final Plat of Palisades West came
before the City of Ych'n City Council, which signed off on this final subdivision, and added the
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
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, provided
that a building permit may be issued for a model home if a fire protection 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 until a sewer
roll seal is installed by the developer and approved by the City of Yelm.
3.3 Through their realtor, the Smiths learned of a lot for sale in Palisades West. The Smiths
bought that lot from FE1, LLC for $84,000 based on the representation that the lot was developable,
that their general home design could be built on the lot, and that the home could be legally occupied
when built. These representations were made by Steve Chamberlain through Maureen Nieland.
Maureen Nieland specifically assured the Smiths that the property was as represented.
FIRST AMENDED COMPLAINT FOR AND CUSIB4AN 924 CA=L WAY Soum
BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OL'YWIA, WASY]INGTON 98501
BREACH OF DUTY, AND DAMAGES - 3 ATmmEys AT LAW (360) 534-9183 FAY, (360) 956-9795
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3.4 On March 24, 2008, Andrew and Cynthia Smith entered into a Residential Real Estate
Purchase and Sale Agreement with Triance Homes for the construction of their residence at 10756
Palisades Street, Yelm, WA. Several amendments and addenda to this Agreement were enacted before
finally entering into the Fixed Contract Amount, for $329,350.00, which was executed on October 3,
2008 by Dan Lee and October 6, 2008 by the Smiths.
3.5 On September 17, 2008, in response to a Residential Building Permit Application dated
September 5, 2008, and the payment of all required fees, including fees for the connections to sewer
Building Permit No. BLD-08 -0326-YL to Triance Homes for the construction of the Smiths' residence
at 10756 Palisades Street SE, Yelm, WA, on Lot of 15 of the Plat of Palisades West, Tax Parcel No.
67110001500. The Residential Building Permit Application identified the General Contractor as
Triance Homes, and building owners as Andrew & Cynthia Smith.
3.6 After the building permit had been approved, on October 8, 2008, the Smiths, through
the recording of a Deed of Trust, secured funding and financing in the amount of $371,950 to purchase
i
no zymonow mmxg�=
Construction Rider. The Smiths separately paid $40,000 directly to Triance Homes as a deposit, and
3.7 On October 8, 2008, the Statutory Warranty Deed for the purchase of Lot 15 of
Palisades West was recorded, wherein FH1, LLC was the Grantor and Andrew & Cynthia Smith were
the Grantees. The agreed-upon price for the lot was $84,000.
3.8 Since approximately April 2009, the Smith residence has been completed, but the City
of Yelm will not issue an occupancy permit. At first, Grant Beck stated the reason for withholding the
occupancy permit was that without the booster pump station, there would be inadequate water pressure
FIRST AMENDED COMPLAINT FOR AND CUSID4AN 924 CAPITOL WAYS Ouni
BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYMPIA, Warr-IINGTON 98501
BREACH OF DUTY, AND DAMAGES - 4 ATPoRNF Ys AT LAw (360) 534-9183 FAX- (360) 956-9795
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to fight a fire at the Smith residence. To address that concern, the Smiths' builder Dan Lee met with
the Fire Chief and Deputy Fire Chief of the SE Thurston Fire & EMS, which resulted in an April 6,
2009 letter by the Fire Department outlining a successful fire-fighting plan, for even a 100% involved
fire at the Smith house, and the Fire Department stating that they would support a decision to issue the
Smiths an occupancy certificate prior to the installation of the pump station. Further, the Smiths stated
• " '
3.9 Grant Beek next shifted the focus for denying the occupancy permit to the written plat
requirements themselves, reiterating in an April 14, 2009 letter to Dan Lee how issuing a certificate of
occupancy would violate the conditions attached to the recorded plat, and suggested a plat amendment
process, although stated the Department of Community Development (of which Grant Beek is the
Director) would oppose such an amendment.
mmlml i�Mll 2!111 R r -
Harding for City of Yelm, Grant Beek stated to those in attendance that the City had issued the
building permit for Lot 15 because it had been represented to them it was going to be a model home
[the only exception allowed per Condition I (see Paragraph 3.2 above)], and that was the reason why
the Smiths' occupancy certificate was being withheld. However, a review of the building permit
application and issued building permit (released by the City only after a public records request) clearly
show, from the beginning, that the permit was for a private residence.
3.11 On August 21, 2009, the Smiths, through their undersigned counsel, submitted an
application for a minor plat amendment to exclude Lot 15 only from the two final plat conditions
(proposed amended language shown by underlining):
1. No building permit shall be issued within this subdivision, exce pt for Lot 15, until a
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 Ychn standards,
provided that a building permit may be issued for a model home if a fire protection
FIRST AMENDED COMPLAINT FOR AND CUS14MAN 924 CAPITOL WAY Soum
BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYWIA, WAsHNGToN98501
BREACH OF DUTY, AND DAMAGES - 5 ATromm ATIAw (360) 534-9183 FAY- (360) 956-9795
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plan is approved by the City of Yelin Fire Marshall and SE Thurston Fire/EMS.
2. No certificate of occupancy for any habitable structure shall be issued, except for Lot 15,
until a sewer roll seal is installed by the developer and approved by the City of Yelm.
The grounds on which the plat amendments were requested were explained in a letter accompanying
the application. One of the main reasons was that while the water and sewer upgrades were needed
for a fully-developed plat, they were not necessary for only the one house, especially since the
responding fire department had concluded this one house could be successfully served — assuming it
W
Win-yommup-M MOM M'' W nom mW47- mm a
granted to this fully-completed home. In the interest of compromise, the Smiths reiterated their prior
offer that if the City granted them an occupancy permit, they would agree to waive liability on the
City's part if their home were to be damaged or destroyed by fire.
3.12 For the reasons stated in the letter accompanying the plat amendment application,
expediency was requested. Although the matter was noted for hearing before the City Council on
R 7:1 W I PH 1 1 T WINNER 11 1 1 1 1 . MEMMM81=V 11• r
weeks, Grant Beck continued to avoid substantive communication with the applicants' representatives,
despite numerous phone messages and emails to him.
3.13 When Grant Beck did submit his staff report for the October 13, 2.009 City Council
hearing (received on October 7, 2009), the main reasons for denial this time were that approving the
Smith occupancy without the booster pump station and sewer roll seal would be violations of the
-iiiiiiiir il 111111111 111111111 i;Ij 1111111111111, 11111111111111111111111111 1 111111111111 111111111 • 11 1 j
agam
r-foromrsnow Men momm
3.14 In responding to the staff report, the Smiths, through their engineer and attorney, pointed
out: (1) there would be no International Fire Code violation if, as what was done here, the responding
FIRST AMENDED COMPLAINT FOR AND CUSEMAN 924 CAPf ToL WAY Strum
BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYmpu, WAsHNGToN 98501
BREACH OF DUTY, AND DAMAGES - 6 A-ffoRNns AT LAW (360) 5349183 FAX (360) 956-9795
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Fire District considered the specific situation and determined that it still can serve the house; and (2) the
Smiths' residence currently achieves 24 psi water pressure, and the City's own Water Comprehensive
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 single-family home, which meets the City's water pressure standard. At the conclusion of the
October 13, 2009 public hearing, the City Council made the following motion:
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
get together and attempt to work out a waiver which will be satisfactory to all parties,
and which would allow, at that time, would allow the family to move into their home.
3.15 During the ensuing two weeks between October 13 and the Council's next regular
meeting on October 27, 2009, both Grant Beek and Brent Dille the City Attorney, again continued to
avoid coordinated communications with the Smiths' attorney until the final few days before the
October 27, 2009 City Council meeting. Not once was the Smiths' proposed Waiver ever discussed.
Not only did Grant Beck and Brent Dille fail to carry out the City Council's directive to find a
satisfactory solution which would allow the Smiths to move into their home, Grant Beck used the
services of the City's attorney to further a personal vendetta against Steve Chamberlain by fabricating
obstacles in order to prevent the Smiths from occupying their home in the hope that this would expose
Steve Chamberlain to liability. Grant Beek issued a second staff report, accompanied by a letter from
Brent Dille which stated that the Department of Health requirement for 30 psi of water was mandatory
— without mentioning the regulatory exceptions. He also asserted — without any professional
knowledge or basis in fact — that connecting the Smith residence to the sewer without the pressure
release valve would threaten the City's entire sewer system with an "over-pressurization event" (when
in fact the probable consequence from not having the pressure valve would be a minor odor at the
sewer connection, occurring outdoors in a neighborhood occupied by no one other than the Smiths).
FIRST AMENDED COMPLAINT FOR AND CUSHMAN 924CAPrroLWAySourH
BREACH OFCONTRACT, MANDAMUS, LAW OFFEMS, P.S. OLYWIA, WA"NGTON 98501
BREACH OF DUTY, AND DAMAGES - 7 AiToRm Ys AT LAW (360) 534-9183 FAY, (360) 956-9795
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116 At the City Council's October 27, 2009 meeting, after hearing the information provided
by the Smiths' engineer, again by unanimous vote the Council instructed the staff and City attorney to
work with the applicant to find solutions. Specific directions included working out water and sewer
engineering details so that the plat conditions could be specifically addressed at the Smith's individual
lot and house, as opposed to sized for the entire plat, as well as finalization of the Waiver, and
bringing that information back to their next meeting, on November 10, 2009.
3.17 Instead of working with the Smiths' attorney to revise the Waiver, Brent Dille created
an entirely new document that not only greatly exceeded the scope of what the Smiths had originally
proposed to waive, but is so open-ended, that the Smiths could be held liable for any and all fire,
sewer, and water malfunctions anywhere in the City, caused by any reason, known or unknown. Mr.
Dille's version is not a waiver. Rather, it is a form of private insurance in which the Smiths would
personally insure the City of Yelr1 from all damage to its infrastructure regardless of whether the
Smiths or any improvement on the Smith land caused or worsened the damage. This is an improper
attempt to shift general and public risk onto an individual family by burdening the family's property.
It is a taking without just compensation.
3.18 After the City Council's October 27, 2009 meeting, the urgency to quickly process the
plat amendment had been lost, since the Smith's residence they had been renting was sold, and they
had to commit to another one-year rental lease on a different house. Nevertheless, the Siniths'
engineer initiated a meeting with Randy Raymond of Parametrix, the City's retained engineering firm,
Tim Peterson, City of Yelm's Public Works Director, and a representative from the State Department
of Health, and immediately thereafter began working on engineering plans to address issues regarding
potable water, water pressure, and the sewer pressure-release valve.
3.19 In consultation with the City public works staff and Parametrix, the Smith's engineer
FIRST AMENDED COMPLAINT FOR AND CLJSITvIAN 924 CAnToL WAY Scum
BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYMPIA, WAsFuNGToN 98501
BREACH OF DUTY, AND DAMAGES - 8 ATMRk&ys AT LAw (360) 534-9183 FAX (360) 956-9795
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has developed and presented engineering solutions that completely address the City's stated concerns,
and prevent potential harm to the City of Yelm or its infrastructure. Despite this, the City of Yehn is
refusing to allow the Smiths to move into their home, to amend the plat, or to issue a certificate of
occupancy. These are ministerial acts, and the City of Yelm has no right or proper excuse to withhold
them. As such, this Court can and should issue a writ of mandamus to compel the City of Yelm to
take the actions necessary to allow the Smiths to move into and live in their home,
W. CAUSES OF ACTION
4.1 Breach of Contract by Steve Chamberlain and FH I, LLC.
a. The Statutory Warranty Deed recorded October 10, 2008, wherein FHI, LLC is
the Grantor and the Smiths are the Grantees, states:
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
recorded plat or survey. (Emphasis added.)
Based on the above language, the conveyance was subject only to those restrictions of record which
affect title (e.g., easements and other ownership rights/obligations). The two final plat conditions
required FHI, LLC to make upgrades to the City's water and sewer system for the plat, no portion of
which was to be owned, controlled, or maintained by the Smiths. Since those are conditions which
neither affect title, nor are affected by title, the failure of FHl, LLC to implement those final plat
conditions is not an exception to its conveyance to the Smiths.
b. These Defendants represented to the Smiths that Lot 15 was a buildable lot at
the time of their purchase on October 8, 2008. The $84,000 the Smiths paid for an approximately
8,500 square foot lot in Yelm is a price reflective of a buildable lot served by all City utilities and
services. The contract between F111, LLC and the Plaintiffs was that the conveyed Lot 15 was
suitable for construction of the house contracted to be built by Triance Homes for the Smiths.
FIRST AMENDED COMPLAINT FOR AND CUSFIMAN 924 CAPrroi. WAY SouTH
BREACH OFCONTRACT, MANDAMUS, LAW OFFI(--ES, P.S. OLYMPIA, WAsi-nNGToN 98501
BREACH OF DUTY, AND DAMAGES - 9 An-oRm,)!s AT LAW (360) 534-9183 FAX (360) 956-9795
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C. Steve Chamberlain is an engineer and developer, and had known since at least
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 knew that it was a significant cost, yet made no
disclosures of the risks and potential problems to the Smiths if it could not be funded and installed.
Similarly, these Defendants knew, since at least the time of the final plat approval in December 2007,
of both the water booster pump requirement and of the sewer pressure release valve which also
needed to be installed, yet again, made no disclosures to the Smiths of the risks and potential
problems if not installed. Without such disclosures, the Smiths could not have, and did not, anticipate
the scope of the problem and extent of the consequences.
4.2 Breach of Contract by Maureen Nieland and VanDorm Realty. These Defendants had
a duty to Buyers to investigate the scope of the risks involved if Defendants Chamberlain and FH1,
LLC did not complete the booster pump station and other plat conditions. Since Defendants Nieland
and VanDorm did know there was a potential problem due to a delay with the pump station, as agents
for the Buyer, earning a commission, they were obligated to make further inquiry in order to ascertain
all the risks and consequences, especially since the Smiths' Lot 15 was the first lot proposed for
construction in this plat. If the transaction had been property investigated, the Smiths would have
then been able to make a fully-informed decision about whether to purchase the lot and home
construction package on that lot.
4.3 Breach of Contract by Dan Lee and Triance Homes. In the Purchase and Sale
Agreement, the Smiths were the purchasers, and Triance was identified sometimes as the Seller and
other times as the Builder. Dan Lee acted as the agent of Triance Homes in the subject transaction by
participating in the negotiation of the purchase and sale agreement, the addenda thereto, and the
construction contract to build the Smiths' house on Lot 15 in the Plat of Palisades West, and by being
FIRST AMENDED COMPLAINT FOR AND CUSHMAN 924 CAPIToi. WAY Souni
BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYMPIA, WASHNGTON 98501
BREACH OF DUTY, AND DAMAGES - 10 ATroRNr Ys AT LAW (360) 534-9183 FAX (360) 956-9795
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the signatory on these documents on behalf of Triance. The Purchase and Sale Addendum dated
August 27, 2008 states:
Seller warrants that seller will complete pump station for Palisades West to City of
Yelm, specifications within 120 days of buyers obtaining construction loan financing. If
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
until a certificate of occupancy is issued.
As of the date of this Complaint, Triance has made none of the Smiths' construction loan interest
payments that it is obligated to pay, which started to accrue 120 days from the October 9, 2008
recording of the Smiths' Deed of Trust with Home Street Bank, which calculates to February 6, 2009.
4.4 Breach of Contract by City of Yelm. Under the conditions of approval for the plat of
Palisades West, the City of Yelm is to provide water and sewer to all the lots therein, once the water
and sewer connection fees have been paid (see Paragraph 3.5 above). The Smiths paid said fees in
order to obtain their building permit (see Paragraph 3.2 above). The City is therefore obligated to
provide the Smiths with water and sewer services which meet the City standards. If as in the case
here, the developer of the plat, FE1, LLC, refuses or is unable to fulfill its obligation to the City to
install the water booster pump and sewer pressure release valve, then that obligation becomes the
City's responsibility.
4.5 Breach of Duty by City of Yelm. On September 17, 2008, the City, through the
Building Division of the Community Development Department, issued a building permit for the
construction of the Smith residence on Lot 15 of Palisades West. This building permit directly
violated Condition No. 1 placed on the final plat by the City Council, as recorded February 12, 2008,
which prohibited the issuance of a building permit for anything other than a model home -until the
water booster pump station was installed (see Paragraph 3.2 above). Yet despite this prohibition, the
Smiths were issued a residential building permit for their home, which in no way was represented as
FIRST AMENDED COMPLAINT FOR AND CUSEWAN 924 CAMOL WAY SOLMI
BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLywiA, WAs"NGToN98501
BREACH OF DUTY, AND DAMAGES - 1 I ATMmEysATL%.w (360) 534-9183 FAX- (360) 956-9795
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being for a model home. Neither the City Building Division nor the Community Development
Department had authority to ignore or amend this plat condition. Under RC 58.17.215, only the
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
Smiths' building permit creates a duty to correct its mistake and/or compensate the Smiths for the
pp�j;i 1`111M"111 linnininzi Inisnotin
are a number of ways it can rectify the situation it caused, the City continues to breach its duty by
refusing to take the responsibility to do so.
4.6 Breach of Duty by City Employee and/or Representative of City of Yelm. The
101M. xromlyff4167-4 1� M01 I a = M OT4 %'=
City of Yelm. The City of Yelm had the obligation to properly train and supervise its employees
mg��� 1111111 1 1,11i,
W1 "I'll � � wil R 5 11 i 1i I T! i 41 ff q#nl MR re7m
City residents. Therefore, even though Grant Beck may have acted outside the scope of his authority
in his intentional handling of this matter with the personal goal of depriving the Smiths of their
property (despite the clearly stated and contradictory public goal of allowing the Smiths use and
occupancy of their property), the City of Ychn is liable for Grant Beck's individual torts as they arose
from the negligent training, empowerment, and supervision of Grant Beck.
4.7 Breach of Duty by Grant Beck, individually.
a. As Director of the City of Yelm Community Development Department, which
oversees the Building Division, Grant Beck has a duty to correctly implement the City's requirements
when issuing building permits. In the case of the Smiths' building permit, Mr. Beck has identified
that he specifically knew of the Palisades West plat condition requiring that the water booster pump
and sewer valve be installed prior to the issuance of any residential building permit, yet he changed
FIRST AMENDED COMPLAINT FOR AND CUSHMAN 924 CAPITOL WAY Soum
BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYMPIA, WASHINGTON 98501
BREACH OF DUTY, AND DAMAGES - 12 ArToRwys AT LAW (360) 534-9183 FAY, (360) 956-9795
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that requirement from a condition for a building permit, to a condition for the occupancy permit, and
did so unilaterally, and without the benefit of any plat amendment process. As Director of the
Community Development Department, overseeing the Building Division, Grant Beek allowed a
private residence to begin and complete construction, all the while knowing there was a significant
risk that the home could not be occupied under the terms of the condition which he unilaterally
allowed to be modified.
b. As a member of the City of Yelm staff, Grant Beck has a duty to implement
the City Council's directives to him. On October 13, 2009, the City Council directed that he work
with the applicant to find a solution which would enable the Smiths to move into their home (see
Paragraph 3.14 above). Grant Beck not only ignored that directive, but took deliberate actions to
achieve the opposite result, so that the Smiths could not move into their home.
C. As an employee for the City of Yelm, Grant Beck has a duty to use the City's
legal services for the benefit of the City, not to advocate personal biases. Further, in this case, he was
told by the City Council to use the City Attorney to seek a solution so the Smiths could move into
their home. Instead, Grant Beck has misused the legal services of the City Attorney, Brent Dille, for
his personal desires to: (1) delay the progression of the Smiths' plat amendment application; (2)
obstruct the Smiths' plat amendment process with an ever-changing list of reasons why it can't be
approved; (3) present "evidence!' to the City Council purported to be factual, when it knowingly was
not; (4) requiring the Smiths to take actions and agree to conditions that are not required of any other
City of Yelm, citizen to obtain an occupancy permit for a home which has been issued a building
permit by the City of Yelm; and (5) forcing the Smiths to incur significant expense to initiate, correct,
and complete actions which should have been undertaken and incurred by the City of Yelm.
d. On information and belief, Grant Beck's decisions and actions in this case
FIRST AMENDED COMPLAINT FOR AND CLJSITvIAN 924 CAPiToL WAY Souni
BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYMPIA, WASHNGTON 98501
BREACH OF DUTY, AND DAMAGES - 13 ATrommsATIAw (360) 534 -4183 FAX- (360) 956-9795
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I were motivated by a personal vendetta against Steve Chamberlain, with the goal of harming the
Smiths in such a way that they would have a claim against Steve Chamberlain, for the purpose of
harming Steve Chamberlain by exposing him to liability.
V. CLAIMS FOR DAMAGES
5.1 Damages Caused by Steve Chamberlain and FHl, LLC. These Defendants knowingly
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
F I T11 V*7104-47 V- TI?-Mt 6 17 M = fflffil�, Z
conditions. These Defendants' actions and omissions have significantly contributed to the damages
unbuildable.
5.2 Damages Caused by Maureen Nieland and VanDorm Realty. These Defendants
negligently brokered the transaction between the Smiths, Triance Homes, and FH 1, LLC by failing to
investigate what should have been red flags to any real estate professional, failing to advise the
Smiths of the risks and potential liabilities involved in the transaction, and failing to advise the
Smiths to seek advice on matters outside Nieland's expertise. These Defendants' negligence and
malpractice have significantly contributed to the damages Plaintiffs are now suffering due to having
purchased a custom-built home they cannot move into and a lot on which they cannot reside.
5.3 Damages Caused by Dan Lee and Triance Homes.
a. These Defendants failed to both disclose and investigate. Well in advance of
or should have known the risks and scope of the consequences of what could happen if the booster
pump station and sewer valve were not installed by FHI, LLC, yet failed to disclose those risks and
FIRST AMENDED COMPLAINT FOR AND CUSHMAN 924 CAPiToL WAY Sourii
BREACH OFICONTRACT, MANDAMUS, LAW OFFEMS, P.S. OLYWIA, WASH NGTON 98501
BREACH OF DUTY, AND DAMAGES - 14 ATroRmysATLAw (360) 534-9183 FAY, (360) 956-9795
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consequences until the house was nearly complete. These Defendants' omissions have significantly
contributed to the damages Plaintiffs are now suffering due to having purchased a custom -built home
package they can neither live in nor sell at price that will recover their losses.
b. Dan Lee and Triance Homes further have failed to make any of the
construction loan interest payments they are obligated to pay for under the terms of the Purchase and
Sale .Addendum, dated August 27, 2008 (see Paragraph 4.3 above).
5.4 Damages Caused by City ofYelm. Plaintiffs have been harmed by and continue to
suffer considerable damages due to the City's: (a) failure to provide approved water and sewer
utilities that the City has a duty to provide; (b) subsequent failure to issue the Smiths' occupancy
permit, (c) delay and failure to correct the problem it created, including its refusal to initiate and pay
for any remedies; and (d) failure to properly supervise and correct a City employee who represented
the City in the matters which caused Plaintiffs' damages, as identified in Paragraph 5.5 below.
5.5 Damages Caused by Grant Beek. Plaintiffs have been harmed by and continue to
suffer considerable damages due to the actions taken and /or authorized by Grant Beck in (a) issuing a
building; permit to the Smiths, in violation of Final Plat Condition No. 1; (b) his unauthorized and
unilateral amendment of Final Plat Condition No. 1; (c) his delay and obstruction in processing the
Smiths' plat amendment request, including the portrayal of information as complete and true, when it
knowingly was not; (d) his delay and failure to follow the directives of the City ofYehn City
Council; and (e) his use of City legal services for his personal bras and benefit.
6.1 The Smith's engineer has presented engineering solutions that prevent potential harm to
the City ofYelm or its infrastructure. The City of Yelm is refusing to allow the plat amendment, to
issue a certificate of occupancy, or to otherwise take the steps necessary to allow the Smiths to legally
FIRST AMENDED COMPLAINT FOR AND CUSHMAN 924 CAPiToL WAY Sou1TH
BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLywiA, WAsFifNGToN98501
BREACH OF DUTY, AND DAMAGES - 15 ATroRwys AT LAw (360) 534 -9183 r (360) 956 -9795
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reside in their home. The City of Yelm and Grant Beck have no right or proper excuse to withhold
these ministerial acts. This Court can and should issue a writ of mandamus to compel the City of
Yelm and Grant Beck to take the actions necessary to allow the Smiths to move into and live in their
home, including requiring the City of Yelm to pay for any improvements to the utilities it may
determine necessary as prerequisites to occupancy.
I W ".?.,Vd I all) %*.a Oki 01 9M
WHEREFORE, Plaintiffs pray for:
1. Damages in an amount to be proven at trial, but known to exceed $50,000 (including
damages against the bond up to the full penal sum of the bond);
2. Costs of suit incurred herein;
3. Reasonable attorneys' fees;
4. For a Writ of Mandamus compelling the City of Yelm and Grant Beck to undertake
those ministerial acts necessary to allow the Smiths to legally reside in their home, including requiring
the City of Yelm to pay for any improvements to the utilities it may determine necessary as
prerequisites to occupancy; and
5. Such other and further relief as the Court may deem just and equitable.
DATED this — day of February, 2010.
CUSHMAN LAW OFFICES, P.S.
By
Ben D. Cushman, WSBA 426358
Attorney for Plaintiffs
FIRST AMENDED COMPLAINT FOR AND CUSHMAN 924 CAPiToj. NVAY Sou'ru
BREACH OFCONTRACT, MANDAMUS, LAW OFFICES, P.S. OLYMPIA, NVAS14INGTON 98501
BREACH OF DUTY, AND DAMAGES - 16 ATTORN HYS AT LAW (360) 534-9183 FAX: (360) 956-9795
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• EXPEDITE
• Hearing is set:
Date/Time: 2/19/10,9 a.m.
Calendar/Judge: McPhee
8 SUPERIOR COURT OF WASHINGTON
9 FOR THURSTON COUNTY
10 ANDREW J. SMITH and CYNTHIA M. SMITH,
11 Husband and Wife, Plaintiffs,
1-2
V.
13
THE CITY OF DOE, a Municipal Corporation;
14 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-
I ; I I %, RM 164
161011,1941
THIS MATTER having come before the Court, and the Court having considered Plaintiffs'
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23 Motion for Leave to Amend Complaint, the Declaration of Ben Cushman in Support of Plaintiffs'
2 4 Motion, and the records and files herein, NOW, THEREFORE,
25 ORDERS that Plaintiffs' Motion for Leave to Amend their Complaint is GRANTED.
26 ///
27 11,
2 8 ORDER GRANTING LEAVE TO
AMEND COMPLAINT - I
CUSHMAN 924 CAPrToi. WAY So-uTH
LAW OFFICES, P.S. OLYMPIA, WASIH NGTON 98501
AiToRNEys AT LAw (360) 534-9183 FAX: (360) 956-9795
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w
we
Presented by:
CUSHMAN LAW OFFICES, P.S.
Ben D. Cushman, WSBA # 26358
Attorney for Plaintiffs
Approved as to Form,
Notice of Presentation Waived:
J. Michael Morgan, WSBA #18404
Attorney for Defendants Lee, Triance, State Farm
MORRIS & TARADAY, P.C.
Carol A. Morris, WSBA #19421
Attorney for Defendant Beck
CRANE DUNHAM, PLLC
Douglas S. Dunham, WSBA #2676
Attorney for Defendant Bond Co., State Farm
LEE SMART, P.S., INC.
Michelle A. Corsi, WSBA #24156
Attorney for Defendant Nicland, Van Dorm
ORDER GRANTING LEAVE TO
AMEND COMPLAINT - 2
CUSHMAN 924 CAPITOL WAY SOUT"
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LAW OFFICES, RS, 0LYWIA,W.ASIMJ'G N 98501
AxroRNEys AT LAw (360) 534-9183 FAX: (360) 956-9795