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Howe v. Douglas County9/12/2000
This is a land use case. Douglas County required the developer of Bart and Connie Howe's subdivision to waive 'all claims for damages against any governmental authority arising from the construction or maintenance of public facilities . . . .' The Howes' property was flooded because of either poorly designed or maintained drainage facilities. The question here is whether public policy considerations prohibited the County from requiring a general waiver of liability as a condition for annexation of this subdivision; we agree with the trial court that they do not. We therefore affirm the summary dismissal of the Howes' claims for damages.
FACTS
Fancher Heights Associates developed Fancher Heights, a residential subdivision, in East Wenatchee, Washington. As part of the permit process, it solicited comments from governmental agencies. The U.S. Department of Agriculture's (USDA) Soil Conservation Service responded that at least some of the lots were susceptible to flooding. Roofs, pavement, and the general development of the area exacerbated the problem. Several months later the USDA again voiced concerns because streets proposed in the subdivision cut across natural drainage ways. The South Douglas County Conservation District agreed with the concerns voiced by the USDA.
Fancher Heights Associates submitted drainage plans that would have accommodated a 10-year flood. Douglas County responded by requiring the drainage plan to accommodate a 25-year flood. The County did so because of the concerns expressed by the governmental agencies.
Fancher Heights Associates constructed the storm drainage system in November 1988. It then transferred ownership and maintenance of the improvements to Douglas County. As a condition of final approval, Fancher Heights Associates agreed to 'waive on behalf of themselves and their successors in interest, all claims for damages against any governmental authority arising from the construction and maintenance of public facilities and public property within the subdivision.'
The Howes bought a lot in the subdivision in November 1992. Their property is located on a cul-de-sac at the base of a natural drainage channel. The warranty deed conveying title refers to the waiver given by the County as part of the annexation process.
Surface water runoff from three rainstorms caused the drainage system in Fancher Heights to fail on May 31, 1993, July 4, 1994, and August 25, 1994. The runoff flooded and damaged the Howes' property. The storm drains overflowed, apparently because the County had not cleaned sand from catch basins and drywells. County employees also told the Howes that the single catch basin and drywell at the bottom of the cul-de-sac could not handle the water. The County added a new drywell and a slotted culvert/trench drain to improve the drainage.
The Howes sued Douglas County for damages caused by these three storms. The County ultimately settled and the dispute was resolved.
The Howes' property flooded again on June 21, 1997, following a rainstorm. Again, the catch basins and drywells failed. In November of 1997, the County installed two drywells above the Howes' cul-de-sac.
The Howes sued Douglas County for negligence. That lawsuit is the subject of this appeal. The County moved for summary judgment, relying primarily on the waiver of damages claims by the Howes' predecessor, Fancher Heights Associates, the developer. The trial judge agreed and dismissed the Howes' claims.
ANALYSIS
Standard of Review. The dispositive question here is whether the developer's waiver is void because it is contrary to public policy. This is a leg
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