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Life at the edge of a 'legal' cliff

Ervin Saathoff looks at a sheer cliff beneath his property near Lake Symington. Saathoff’s home is about 25 feet behind the white fence at the top of the cliff.  Saathoff, and his wife Joanne, have unsuccessfully sued Kitsap County for diverting water from a spillway near Lake Symington, that has allegedly scoured the bank, effectively making their property worthless.  The Washington State Supreme Court is expected to decide in early March whether they will hear an appeal from the Saathoff’s on the case.   - Photo by Kelly Everett
Ervin Saathoff looks at a sheer cliff beneath his property near Lake Symington. Saathoff’s home is about 25 feet behind the white fence at the top of the cliff. Saathoff, and his wife Joanne, have unsuccessfully sued Kitsap County for diverting water from a spillway near Lake Symington, that has allegedly scoured the bank, effectively making their property worthless. The Washington State Supreme Court is expected to decide in early March whether they will hear an appeal from the Saathoff’s on the case.
— image credit: Photo by Kelly Everett

A Camp Union couple is holding their breath ... waiting to see if the State Supreme Court will hear their complaint that Kitsap County is allegedly destroying their home.

The case could come before the state’s top magistrates as soon as March 4 or 5 when the court will decide to hear or not hear the suit. The case has already been through Superior and Appellate courts.

Both lower courts sided with the defendant, Kitsap County.

If the Supreme Court agrees to review the case, there’s no timeline as yet on a final judgement.

WHO’S SUING WHO?

Ervin and Joanne Saathoff allege county design and construction of a new outflow channel for Lake Symington redirected water into the bank below their house — slowly washing it away. They allege waters will eventually wash away their home.

Meanwhile, a contracted private attorney for the county, Greg Wall of Port Orchard, said the plaintiff’s biggest mistake was in “suing the wrong party.”

“They sued the county — but the county only acted as a go-between,” Wall said. “The county held the money to pay for the project, but the project was ordered by the state and designed and built by private (contracted) companies. After the project was finished (in the early 1990s), the county turned the dam and its outflow back over to the Lake Symington Neighborhood Association.”

A list of those involved in the outflow remodel includes the state, the neighborhood association, and contractors that did the project — Whitacre Engineers Inc. (design) and ARM Construction, both of Western Washington.

Saathoff’s attorney, Ronald Franz of Seattle, sued only the county — as the entity that allegedly had jurisdiction at the time.

The plaintiffs’ attorney stated flatly that they sued the right party.

THE SAGA BEGINS

“We bought the property in 1991,” said Joanne Saathoff. “It had 555 feet of waterfront, where the lake empties into Big Beef Creek. We built a house there on the bluff — then discovered the county had plans to lower and widen the spillway.”

The Saathoffs said the first winter after the new outflow was built, water began to erode their bank dramatically. They further allege that state Fisheries forbid them to reinforce the base of the bank with rocks — threatening to fine or jail them. The Saathoffs said reinforcing the bank in the legal fashion — hiring specialized contractors to drive cables into the bank to hold back the earth — proved impossible because of bank instability. They were also unable to find a house mover willing to move their home, due to similar concerns.

Each year the erosion became worse, said Ervin Saathoff. The roots of two large trees halfway up the 30-foot bank are now exposed. The Saathoffs fear the trees will topple onto the other side of the creek and possibly onto homes below.

The Saathoff’s home sits on the south side of the creek, about 25 feet back from the edge of what they say was once a steep slope down to the creek. The 45-degree slope has become a sheer cliff with deep underscouring.

About eight years ago, the couple decided to sell the property — but were unable to because of disclosure laws.

“We were required to tell people of the erosion,” said Mrs. Saathoff. “Nobody would buy the place.”

They were asking $144,900 in 1994. They steadily dropped the price. No takers. Now they say the home and property are worthless. The three-bedroom, 1,704-square-foot home is located at 4225 N.W. Redwing Trail.

Associate real estate broker Dale Pilon of Silverdale told the Saathoff’s in a Feb. 2, 1997 letter that “It is obvious you have had some loss of ground at the base of the slope. From what you have told me and what I have seen, I do not believe your property is marketable... especially in light of the recent well-publicized land slides the Puget Sound region has experienced.”

WHEN THE

EARTH THUMPS

Mrs. Saathoff said, “Every so often we’d hear a huge ‘thump’ of earth dropping into the creek. The county told us it’s not their fault and this is what we should expect when you live on the waterfront.”

The couple have stopped paying their $670 monthly mortgage, and for their own safety are moving into a 24-foot motorhome at another location. Their furniture and belongings will be put in storage.

As senior citizens (he’s 71, she’s 69), they said they have few resources to start anew, and will be “practically destitute” unless the Supreme Court accepts the case, and rules in their favor. In addition to the loss of a home once appraised at $144,000, they’ve also spent $75,000 on legal fees and for such things as expert testimony and aerial and ground photos.

POINTS PRO

AND CON

The Saathoffs and neighbors Kevin and Susan Brown, Tim Brown, Jamie Brown, Anthony Brown, and John Peterson (as trustee of the Brown bankruptcy case) sued Kitsap County last year. Some of the points pro and con:

l The county maintains it is the severity of the storms that caused erosion, not changes in the spillway.

l Franz (for the Saathoffs et al) argued earlier storms of equal energy caused no such erosion.

l The bank was previously “naturally” armored by “hardpan,” which is still present above and below the Saathoff property. The plaintiffs allege spillway changes did away with a concrete wall which stopped the force of the water. “Presently the water leaving the spillway is deflected only slightly,” said the suit, and has washed away the hardpan.

l The suit alleges the county’s action amounts to “condemnation” of the Saathoff property, and they should be compensated.

l Saathoff experts and county experts both examined the site and gave opposite depositions on the cause of the erosion.

l The county claimed Big Beef Creek is really a river. Rivers are considered more important, environmentally, than creeks, resulting in fewer protections for property-owners.

l The plaintiffs argued the stream has always been a “creek,” and is designated so on any and all maps of the region.

l The county also said the plaintiffs waited too long before filing their suit, citing “statutes of limitations.”

l The plaintiffs allege county actions constitute “trespass.” The county claims the “Public Duty Doctrine” protects it — the outflow was for the common good.

The Saathoff’s and their neighbors’ case was “dismissed with prejudice” Oct. 17, 2001, Superior Court. The case then went to the appellate court in Tacoma. The Saathoffs are waiting now for the Supreme Court to stipulate whether it will accept to case for later ruling.

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