                                                                FILED
                                                             JULY 24, 2018
                                                     In the Office of the Clerk of Court
                                                    WA State Court of Appeals, Division III



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

ALLAN MARGITAN and GINA                       )         No. 34606-4-III
MARGITAN, husband and wife,                   )
                                              )
                     Appellants,              )
                                              )
              v.                              )
                                              )
SPOKANE REGIONAL HEALTH                       )         UNPUBLISHED OPINION
DISTRICT, a municipal corporation and         )
SPOKANE REGIONAL HEALTH                       )
DISTRICT BOARD OF HEALTH, a                   )
municipal corporation, MARK HANNA             )
and JENNIFER HANNA, husband and               )
wife,                                         )
                                              )
                     Respondents.             )

       LAWRENCE-BERREY, C.J. — Allan and Gina Margitan appeal from the trial court’s

summary judgment order, which dismissed their claims against Spokane Regional Health

District (SRHD). We affirm.

                                          FACTS

       Spokane County Short Plat 1227-00 consists of “Parcels” 1, 2, and 3. Parcel 1 is

to the east of Parcel 2, and Parcel 2 is to the east of Parcel 3. The short plat map shows a

40 foot wide access and utility easement across Parcels 1 and 2 in favor of Parcel 3. A

note on the map requires the applicant to secure public water for each of the three parcels.
No. 34606-4-III
Margitan v. Spokane Reg’l Health Dist.


       In April 2002, the Margitans purchased Parcel 1. In May 2002, the Hannas

purchased Parcel 2. One month earlier, Mr. Hanna mistakenly informed the contractor

hired to build his house that the easement was 20 feet wide. On May 1, 2002, Mr. Hanna

learned that the easement through Parcel 2 was 40 feet wide, not 20 feet wide. Mr. Hanna

neglected to inform his contractor of this.

       In June 2002, Larry Cook Excavating Inc. applied to SRHD for a permit to build

an on-site sewage system on behalf of the Hannas. SRHD issued the permit in January

2003, and Cook Excavating built the septic system. In March 2003, Cook Excavating

submitted an “as built” drawing of the septic system. Clerk’s Papers (CP) at 82. The “as

built” drawing erroneously depicts the easement as 20 feet, and shows an 11 foot

separation between the depicted easement and the closest corner of the drain field. Had

the actual 40 foot easement been depicted on the drawing, it would show that the closest

corner of the drain field extends 9 feet into the easement.

       In 2010, the Margitans purchased Parcel 3, including the existing home. The

following year, the Margitans began to remodel the home so they could lease it out as a

high-end rental.

       In 2012, the Hannas filed a quiet title action in Spokane County Superior Court

against the Margitans to reduce the 40 foot easement to a 20 foot easement. About one


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year into that litigation, the Margitans learned that the Hannas’ drain field was built 9 feet

into their easement. The Margitans notified SRHD of this. The litigation was later

amended to a quiet title action that sought to determine the rights of all Parcel 2 easement

holders of record.

       In July 2013, the Margitans filed a complaint with SRHD. The complaint alleged

that the Hannas’ drain field was within their 40 foot easement.

       The Margitans told Steven Holderby, SRHD’s Liquid Waste Program Manager,

that they were remodeling the old house on Parcel 3 and they planned on leasing it for

income. Mr. Holderby confirmed to the Margitans that if his investigation determined

that the Hannas’ drain field was in the easement, SRHD would have the drain field

relocated promptly.

       In October 2013, SRHD and the Hannas entered into an agreement concerning

their on-site sewage system. The Margitans were not party to this agreement and neither

SRHD nor the Hannas consulted the Margitans about the agreement. The agreement

required the Hannas to promptly relocate their drain field after completion of their quiet

title litigation. Notwithstanding that requirement, the agreement required the Hannas to

immediately take corrective action if it appeared to SRHD that the drain field posed a

public health risk.


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       In early December 2013, SRHD received a letter from the Margitans. In the letter,

the Margitans expressed concern that the Hannas’ drain field might contaminate their

water. Soon after, the Margitans asked Dr. Joel McCullough, the health officer for

SRHD, to make an expedited decision concerning the legality of the Hannas’ drain field.

       In his January 27, 2014 letter decision, Dr. McCullough concluded:

       [T]here is insufficient documentation to definitely determine whether or not
       your water line is within 10 feet of the drain field [as prohibited by WAC
       246-272A-0210]. Therefore, it is unknown if there is non-compliance of
       the [Hannas’s drain field] as it relates to the . . . pressurized water line . . . .

CP at 61. Dr. McCullough directed Mr. Hanna to provide documentation to establish the

exact location of the water line and its relationship to the drain field. Dr. McCullough

also directed the Hannas to propose how they would bring their drain field into

compliance if it was within 10 feet of the Margitans’ water line.

       The Margitans appealed Dr. McCullough’s determination to the SRHD Board of

Health (Board). After an adjudicatory hearing, the Board found there was insufficient

evidence to establish the location of the water line and, for that reason, insufficient

evidence that the drain field violated the 10 foot separation requirement. The Board also

determined, if the drain field was within 10 feet of the water line, the health risk was

minimal. Specifically, the Board found that no water contamination could occur unless

the water line broke near the drain field. The Board noted that a break in the line would

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be obvious to the Margitans because it would cause a noticeable reduction in water

pressure.

       In the summer of 2014, the Margitans completed their remodel work. They

requested a final building inspection so they could obtain a certificate of occupancy.

When the building inspector arrived, the Margitans’ water was off. Mr. Margitan

explained his concern that the proximity of the water line to the drain field might cause

the water to be unsafe.

       In early September 2014, the building inspector issued a brief report denying the

Margitans a certificate of occupancy. The report notes:

       You have notified us of encroachment of a septic drain field into the
       restricted zone of your water supply line which you claim endangers your
       potable water supply. You have also provided us corroboration of the issue
       through copies of SRHD documentation. A Certificate of Occupancy can
       be issued upon receipt of documentation (SRHD and/or water puveyor
       [sic]) accepting the waterline and it’s [sic] adequacy for residential use.

CP at 1271.

       The Margitans filed suit against SRHD and the Hannas. This appeal concerns only

the Margitans’ claims against SRHD. Those claims center around SRHD’s failure to

promptly require the Hannas to relocate their drain field outside the 40 foot easement.

The Margitans claimed that SRHD’s failure caused the certificate of occupancy not to be

issued, leading to their loss of rental income.

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       The parties conducted discovery. The Hannas retained Shawn Rushing to use a

tracer wire to locate the water line and determine if it was within 10 feet of the drain field.

Mr. Rushing determined that the closest the water line came to the drain field was 14 feet.

       SRHD filed a motion for summary judgment requesting that the trial court dismiss

the Margitans’ claims. During the briefing process, SRHD deposed the building

inspector.

              Q.        Did [Mr. Margitan] tell you why he was not comfortable with
       the potability of the water to Parcel 3?
              A.        . . . [H]e said he felt that the [water line] was close to a . . .
       drain field . . . in the easement of Parcel 2.
              And I said, “Well, then, just get something that—from your purveyor
       that says it’s potable. You know, somebody, tell me it’s good water. I
       don’t care who it is.”
              ....
              Q.        . . . So if you had gone out there [to re-inspect] and the water
       is running and the short plat says it’s potable, would [it] have been
       sufficient for you?
              A.        Yes, ma’am.

CP at 1521.

       The trial court granted SRHD’s motion, and the Margitans timely appeal. 1



       1
         After the parties filed their appellate briefs, the Margitans filed a motion asking
this court to take judicial notice of the permit that SRHD issued to the Hannas in
conjunction with the Hannas relocating their drain field. The permit, issued during the
pendency of this appeal, shows that SRHD did not require the Hannas to dig up their
former drain field.

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Margitan v. Spokane Reg’l Health Dist.


                                       ANALYSIS

       The Margitans claim that the trial court erred by granting SRHD’s summary

judgment motion.

       This court reviews summary judgment orders de novo, engaging in the same

inquiry as the trial court. Smith v. Safeco Ins. Co., 150 Wn.2d 478, 483, 78 P.3d 1274

(2003). Summary judgment is appropriate only if there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).

All facts and reasonable inferences are considered in a light most favorable to the

nonmoving party. Berger v. Sonneland, 144 Wn.2d 91, 102-03, 26 P.3d 257 (2001).

When reasonable minds can only reach one conclusion, questions of fact may be

determined as a matter of law. Ruff v. County of King, 125 Wn.2d 697, 704, 887 P.2d 886

(1995).

       The party opposing summary judgment “may not rely on speculation,

argumentative assertions that unresolved factual issues remain, or in having its affidavits

considered at face value . . . .” Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d



       Facts that a court may judicially notice are those “‘facts capable of immediate and
accurate determination by resort to easily accessible sources of indisputable accuracy and
verifiable certainty.” CLEAN v. State, 130 Wn.2d 782, 809, 928 P.2d 1054 (1996)
(quoting State ex rel. Humiston v. Meyers, 61 Wn.2d 772, 779, 380 P.2d 735 (1963)).
Because a permit does not qualify under this standard, we deny the Margitans’ motion.

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1, 13, 721 P.2d 1 (1986). Instead, it must put forth evidence showing the existence of a

triable issue. Id. at 12-13. The evidence must be admissible. CR 56(e) (affidavits “shall

set forth such facts as would be admissible in evidence”).

       “In a summary judgment motion, the moving party bears the initial burden of

showing the absence of an issue of material fact.” Young v. Key Pharms., Inc., 112

Wn.2d 216, 225, 770 P.2d 182 (1989).

       If the moving party is a defendant and meets this initial showing, then the
       inquiry shifts to the party with the burden of proof at trial, the plaintiff. If,
       at this point, the plaintiff “fails to make a showing sufficient to establish the
       existence of an element essential to that party’s case, and on which that
       party will bear the burden of proof at trial”, then the trial court should grant
       the motion.

Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d

265 (1986)).

       A.      UNCONSTITUTIONAL TAKING

       The Margitans assert that SRHD violated their property rights by executing the

October 2013 agreement with the Hannas. They argue that the agreement allowed the

encroachment to continue and was thus an unconstitutional taking.

       Article I, section 16 of the Washington Constitution states that “‘[n]o private

property shall be taken or damaged for public or private use without just compensation




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Margitan v. Spokane Reg’l Health Dist.


having been first made.’” Woods View II, LLC v. Kitsap County, 188 Wn. App. 1, 38-39,

352 P.3d 807 (2015) (alteration in original).

       Under existing Washington and federal law, a police power measure can
       violate article I, section 16 of the Washington State Constitution or the Fifth
       Amendment to the United States Constitution and thus be subject to a
       takings challenge when (1) a regulation affects a total taking of all
       economically viable use of one’s property, (2) the regulation has resulted in
       an actual physical invasion on one’s property, (3) a regulation destroys one
       or more of the fundamental attributes of ownership (the rights to possess,
       exclude others from, and dispose of property), or (4) the regulations were
       employed to enhance the value of publicly held property.

Id. at 39 (citations omitted). A constitutional taking is a permanent or recurring invasion

of private property. Miotke v. City of Spokane, 101 Wn.2d 307, 334, 678 P.2d 803 (1984)

(quoting N. Pac. Ry. v. Sunnyside Valley Irrig. Dist., 85 Wn.2d 920, 924, 540 P.2d 1387

(1975)). In order to constitute a taking, a governmental intrusion must be “‘chronic and

unreasonable,’” and not simply a temporary interference that is unlikely to recur.

Lambier v. City of Kennewick, 56 Wn. App. 275, 283, 783 P.2d 596 (1989) (quoting

Orion Corp. v. State, 109 Wn.2d 621, 671, 747 P.2d 1062 (1987)).

       Here, the agreement allows the drain field to exist in the easement only

temporarily. The agreement requires the Hannas to relocate their drain field soon after




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Margitan v. Spokane Reg’l Health Dist.


the rights of all easement holders are adjudicated. The encroachment, therefore, is only

temporary, not permanent. 2

       The Margitans argue that Miotke supports their position by recognizing that a

taking may be temporary. Their argument is supported only by the dissent in Miotke.

The dissenting opinion is not binding and is contradicted by a majority of the justices on

the issue.

       B.     NEGLIGENCE AND PUBLIC DUTY DOCTRINE

       The Margitans next contend the trial court erred by dismissing their claim that

SRHD was negligent in not requiring the Hannas to promptly relocate their drain field

outside the easement. The Margitans argue that SRHD owed them a duty. We disagree.

       In any negligence action against a governmental entity, the threshold determination

is whether a duty of care was owed to the injured plaintiff individually rather than to the

public in general; this is known as the public duty doctrine. Babcock v. Mason County

Fire Dist. No. 6, 144 Wn.2d 774, 785, 30 P.3d 1261 (2001). This doctrine is a “focusing

tool” designed to determine whether the governmental entity owed a duty to the general


       2
         A constitutional taking does not occur unless the property owner suffers a loss
because of governmental interference with the owner’s property. See Tapio Inv. Co. I v.
Dep’t of Transp., 196 Wn. App. 528, 541, 384 P.3d 600 (2016), review denied, 187
Wn.2d 1024, 390 P.3d 331 (2017). We question whether the Margitans have sustained
any loss, given that the drain field is more than 10 feet from the water line.

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public or to a particular plaintiff. Munich v. Skagit Emergency Commc’ns Ctr., 175

Wn.2d 871, 878, 288 P.3d 328 (2012).

       There are four exceptions to the public duty doctrine that enable a plaintiff to

establish that he or she was owed a duty of care by the governmental entity: (1) legislative

intent, (2) failure to enforce, (3) rescue, and (4) special relationship. Id. at 879. The

Margitans assert that three of the four exceptions apply.

              1.      Exception 1: legislative intent

       The legislative intent exception applies where legislation or regulation, by its

terms, evidences a clear intent to identify and protect a particular class of persons rather

than the general public. 1515-1519 Lakeview Boulevard Condo. Ass’n v. Apt. Sales

Corp., 102 Wn. App. 599, 607-08, 9 P.3d 879 (2000), rev’d in part and remanded, 146

Wn.2d 194, 43 P.3d 1233 (2002). The legislation or regulation must clearly express the

intent to identify and protect a particular class of persons; it may not be implied.

Ravenscroft v. Wash. Water Power Co., 136 Wn.2d 911, 930, 969 P.2d 75 (1998). Where

the purpose of a statute or regulation is to protect the health, safety, and welfare of the

general public, and not a particular person or class, the exception is not applicable. Id.




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       RCW 43.20.050 is the statutory authority for WAC 246-272A-0210. The statute

expressly states the purpose of adopting water system rules is to “protect public health.”

RCW 43.20.050(2). Similarly, the rules identify the purpose for chapter 246-272A WAC:

             (1) The purpose of this chapter is to protect the public health by
       minimizing:
             (a) The potential for public exposure to sewage from on-site sewage
       systems; and
             (b) Adverse effects to public health that discharges from on-site
       sewage systems may have on ground and surface waters.

WAC 246-272A-0001. The Margitans do not point us to any language in the statutes or

regulations that contain an express intent to protect a particular class of persons.

       The Margitans rely on two cases to support their argument that the legislative

intent exception applies. The first case is Halvorson v. Dahl, 89 Wn.2d 673, 574 P.2d

1190 (1978). There, the plaintiff, an occupant of a building, was injured because the city

of Seattle was negligent in not enforcing its housing code. Id. at 675. The Halvorson

court analyzed the housing code’s declaration of purpose and found express language

evidencing a legislative intent to protect a particular class of persons. Id. at 676-77. The

declaration of purpose provided: “‘Such conditions and circumstances are dangerous and

a menace to the health, safety, morals or welfare of the occupants of such buildings and of

the public . . . .” Id. at 677 n.1 (emphasis added) (quoting Seattle Housing Code




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§ 27.04.020). No such express language appears in the enabling statute or the regulations

at issue in this case.

         The Margitans also cite Campbell v. City of Bellevue, 85 Wn.2d 1, 530 P.2d 234

(1975). There, a person was electrocuted because the city of Bellevue’s electrical

inspector failed to sever faulty electrical equipment from the power source. Id. at 3-6.

Bellevue Municipal Code § 16.32.090 in effect at the time stated:

                 “In order to safeguard persons and property from the danger
         incident to unsafe or improperly installed electrical equipment, the building
         official shall immediately sever any unlawfully made connection of
         electrical equipment to the electrical current if he finds that such severing is
         essential to the maintenance of safety and the elimination of hazards.”

Id. at 5 (emphasis added). The Campbell court held that the city was liable because its

ordinance explicitly safeguarded people from the danger of unsafe electrical equipment

and required the inspector to sever the dangerous electrical connection. Id. at 13.

Campbell is distinguishable because there is nothing in the enabling statute or regulations

at issue in this case that explicitly safeguards people from the possibility of contaminated

water.

                2.       Exception 2: failure to enforce

         This exception applies when all four elements are shown where: (1) governmental

agents are responsible for enforcing statutory requirements, (2) governmental agents


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Margitan v. Spokane Reg’l Health Dist.


possess actual knowledge of a statutory violation, (3) governmental agents fail to take

corrective action despite a statutory duty to do so, and (4) the plaintiff is within the class

the statute intended to protect. Bailey v. Town of Forks, 108 Wn.2d 262, 268, 737 P.2d

1257 (1987); Woods View II, 188 Wn. App. at 26. This exception is construed narrowly

to avoid dissuading governmental officials from carrying out public duties. Woods View

II, 188 Wn. App. at 26-27.

       Here, the Margitans complain that SRHD failed to enforce WAC 246-272A-

0210’s five foot separation requirement between a drain field and an easement. We

disagree. SRHD enforced the separation requirement by requiring the Hannas to relocate

their drain field immediately if it appeared to SRHD that there was a public health risk,

or, if no such risk appeared to SRHD, after the Hannas completed their quiet title

litigation. The Margitans fail to point to any statute, regulation, or decisional authority

that required SRHD to take immediate enforcement action absent a public health risk.

              3.      Exception 4: special relationship

       “A special relationship arises where (1) there is direct contact or privity between

the public official and the injured plaintiff which sets the latter apart from the general

public, and (2) there are express assurances given by a public official, which (3) gives rise




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to justifiable reliance on the part of the plaintiff.” Taylor v. Stevens County, 111 Wn.2d

159, 166, 759 P.2d 447 (1988).

       Here, Mr. Holderby assured the Margitans that if the Hannas’ drain field was

within the easement, SRHD would promptly require the Hannas to relocate their drain

field. However, the Margitans did not rely on this assurance. The record is undisputed

that the Margitans purchased Parcel 3 and began remodeling the old house long before

Mr. Holderby gave the Margitans any assurances.

       C.      INTENTIONAL FAILURE TO ENFORCE WAC 246-272A-0210

       The Margitans claim the trial court erred by determining there is no cause of action

for intentional failure to enforce chapter 246-272A WAC.

       They first contend that RCW 4.96.010 creates a cause of action. We disagree. The

purpose of RCW 4.96.010 is to abolish sovereign immunity. Meaney v. Dodd, 111 Wn.2d

174, 178, 759 P.2d 455 (1988). By adopting RCW 4.96.010, the legislature declared that

municipal corporations “shall be liable for damages arising out of their tortious conduct,

or the tortious conduct of their . . . officers . . . to the same extent as if they were a private

person or corporation.” RCW 4.96.010 does not create any new causes of action, imposes

no new duties, and brings into being no new liability; it merely removes the defense of




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Margitan v. Spokane Reg’l Health Dist.


sovereign immunity. Garnett v. City of Bellevue, 59 Wn. App. 281, 285, 796 P.2d 782

(1990). This statute does not support the Margitans’ claim of a cause of action here.

       But even if such a cause of action existed, SRHD did enforce the separation

requirements of WAC 246-272A-0210. SRHD took corrective action, including

obtaining a commitment from the Hannas that they would immediately relocate their

drain field if it appeared to SRHD that the drain field posed a public health risk.

       D.     INTENTIONAL INTERFERENCE WITH BUSINESS EXPECTANCY

       The Margitans next contend the trial court erred by dismissing their claim for

intentional interference with business expectancy. We disagree.

       “Washington has adopted the tort of interference with a business or economic

expectancy, which consists of five elements: (1) existence of a valid contractual

relationship or business expectancy, (2) defendants had knowledge of that relationship,

(3) intentional interference inducing or causing a breach or termination of the relationship

or expectancy, (4) defendants interfered for an improper purpose or used improper means,

and (5) resultant damage.” In re Estate of Lowe, 191 Wn. App. 216, 237, 361 P.3d 789

(2015) (internal quotation marks omitted).

       The parties present argument on several elements, but we focus only on whether

SRHD interfered for an improper purpose or used improper means. In their briefing, the


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Margitans do not argue that SRHD acted for an improper purpose. They instead focus on

improper means, contending that the agreement with the Hannas was an improper means

because SRHD should have ordered the Hannas to immediately remove the noncomplying

system. We disagree.

       “[A] plaintiff in Washington may establish an improper means by . . . establishing

a set of facts that raises an inference that the defendant was motivated by considerations

outside the scope of the party’s obligations, such as greed, retaliation, ill will, a desire to

gain favor with others, [or] failing to act fairly and reasonably in its dealings with the

plaintiff, or acting arbitrarily and capriciously.” 16A DAVID K. DEWOLF & KELLER W.

ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE: § 23:7 Prospective

Advantage—Overview at 256 (4th ed. 2013).

       The Margitans contend that SRHD’s agreement with the Hannas was an improper

means of bringing the Hannas’ drain field into compliance with WAC 246-272A-0210.

We disagree. At the time when SRHD entered into the agreement with the Hannas, the

Margitans had not alerted SRHD that their water line might be within 10 feet of the drain

field. But even so, the agreement required the Hannas to immediately take corrective

action if it appeared to SRHD that the drain field posed a public health risk. The




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Margitans have presented no evidence that SRHD was motivated by considerations

outside of its obligations or failed to act fairly and reasonably.

       E.      SRHD's REQUEST FOR ATTORNEY FEES

       SRHD argues that it is entitled to reasonable attorney fees and costs pursuant to

RCW 4.84.370. That statute authorizes an award of reasonable attorney fees and costs if

a party substantially prevails in a land use decision made by a county, city, or town, and is

the prevailing party before such agency and in all judicial proceedings.

       RCW 4.84.3 70 does not apply to this action. The decision on appeal was not made

by a county, city, or town. Nor did the Margitans appeal from a land use decision.

Rather, the Margitans appealed from a summary dismissal of their negligence and

intentional tort claims.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

                                             L~ . . ., .,.. . c.-... ~'w\."'1 · c.. ~.
                                            Lawrence-Berrey, C.J.



                                            Pennell, J.

                                              18
