Lawsuit over too-tall home thrown out
Judge rules plaintiffs missed deadline
A judge has tossed out a lawsuit against a Liberty Lake couple who built a house that was too tall because of a mistake by Spokane County planners.
For Paul Shields, and his wife, Heather Amity, beating back their neighbors in court was a hollow victory. Their lakefront “dream house” is awash in legal bills.
They blame county commissioners for failing to protect them from the lawsuit by neighbors whose views were impaired.
It was a statute of limitations that came to the couple’s rescue.
Superior Court Judge Kathleen O’Connor ruled June 26 that plaintiffs Joel and Jodi Zellmer and Gary and Ellen Bernardo failed to join the lawsuit within a 21-day deadline.
She had already dismissed the original plaintiffs, Mike and Sheryl Koch, for the same reason.
O’Connor’s decision turned on the question of when the plaintiffs became aware that the new house at 23524 E. Third Ave. exceeded a 35-foot height limit under the county zoning code.
A county official told Mike Koch (pronounced Cook) on June 27, 2007, and testimony indicated he didn’t tell the Barnardos or Zellmers until July 28, 2007.
The Kochs sued on Aug. 3, 2007, and the other couples joined the action a week later. But O’Connor ruled they should have known the Shields-Amity house was too tall by the end of June, when the roof sheathing was laid.
Bernardo, who is an architect, found O’Connor’s assertion “a little bit troubling because it took two engineers (one for each side in the lawsuit) and three days of surveying to determine how tall the house actually was.”
The experts found it was about 7 feet too high.
Establishing the height of a house on such steeply sloping ground is a tricky process in which four measurements are averaged, Bernardo noted.
Frustrations aside, Bernardo said he was pleased that O’Connor “basically said we were right. We were just tardy.”
Shields appreciated that O’Connor took note of the county’s role in the debacle, although it didn’t figure into her decision.
“The judge said, ‘There is a 500-pound gorilla missing in this room,’ ” Shields recalled.
He and Amity say they didn’t know their log house was going to be too tall until county building inspector Kevin Myre caught the mistake in July 2006.
With a building permit already issued and delays driving up construction costs, county commissioners blessed the faulty permit. They also gave Shields and Amity $80,000 in exchange for a promise not to sue.
Commissioners did nothing to appease the couple’s neighbors, though.
Gary Bernardo said the plaintiffs’ attorneys advised them the county likely was immune. So they sued only Shields and Amity.
In general, governments are liable only for mistakes that harm individuals, not for breaches of duties to the public as a whole. And there is no government duty to protect anyone’s view.
There’s no private duty, either, O’Connor said, dismissing an argument that Shields and Amity created a nuisance. Despite the 35-foot height limit, no law gives Washington residents the right to a view, the judge said.
Shields now rues his decision to let the county off the hook for $80,000.
“The trial cost us $80,000, and we spent another $40,000 just to get to that point,” he said.
O’Connor ruled Shields and Amity weren’t entitled to have their legal fees reimbursed by the plaintiffs because “their testimony that they did not know their home was in violation was not credible.”
Testimony indicated the couple’s original architectural designer, who was later replaced in a contract dispute, was aware of the 35-foot height limit.
Also, O’Connor wrote, Shields and Amity weren’t entitled to recover their legal costs because the Zellmers and Bernardos sued in good faith.
“At the end of the day, the Shieldses have a lovely house and I wish them well,” Bernardo said. “We’ve got a good neighborhood, and we’ll move on.”