 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 CARMELO ZAPPALA and CHERYL
 ZAPPALA, husband and wife,                       No. 79271-7-I

                      Appellants,                 DIVISION ONE

                v.                                UNPUBLISHED OPINION

 THE PORT OF SEATTLE, a
 Washington municipal corporation,

                      Respondent.                 FILED: February 18, 2020


         APPELWICK, C.J.   —   The Zappalas appeal an order of summary judgment

rejecting their inverse condemnation claim against the Port for excessive airplane

noise.    They contend the avigation easement they granted to the Port is not

enforceable by reason of procedural unconscionability. We affirm.

                                       FACTS

         Carmelo and Cheryl Zappala have owned a property in the North Approach

Transition Zone of the Port of Seattle (Port) Airport since 1981. They leased the

property for 10 years before buying it. The Zappalas have a residence and a dog

kennel on the property.

         In July 2000, the Zappalas applied to participate in the noise remedy

program for the Seattle Tacoma International Airport (Airport). The noise remedy

program allows the Port to provide soundproofing improvements to qualifying
No. 79271-7-1/2


properties in exchange for the property owner granting an avigation easement over

the property. RCW 53.54.030(3).

          On April 24, 2001, the Zappalas signed an avigation easement giving the

Airport an unlimited right to fly aircraft over their property. The easement granted

the right to the airport “including any additions thereto, wherever located, hereafter

made by the Port or its successors.” The Zappalas signed the document before a

notary public, acknowledging that their signature was voluntary.

       The avigation easement provided that noise exposure to the property would

not increase more than 1.5 decibel day/night level (DNL) above the base level

established for the property. DNL is the energy summation of all individual noise

events in a 24 hour period. It is the primary measure of noise impacts on people

and land utilized by the Federal Aviation Administration (FAA) and other federal

agencies. The base level for the Zappalas property was 70 DNL, computed from

the FAA accepted noise contour map of the area. Thus, although the overflight

right conveyed to the Port was “unlimited,” the easement allowed recovery for

damages if the noise level exceeded 71.5 DNL. Such recovery would be limited

to damages caused by noise levels above 70 DNL.

      The Port ultimately paid $59,810 dollars for noise reduction improvements

to the Zappalas’ home.1     Mr. Zappala admits that these improvements worked

temporarily to reduce the noise levels in his home. However, in 2008, the airport

      1  This final cost includes a change order authorized by Mr. Zappala that
raised the cost $4,787 from the Port approved cost in the homeowner participation
agreement final approval. Mr. Zappala testified that the total cost was roughly
equal to the assessed value of the Zappalas’ home in 2001 when they entered the
program.

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No. 79271-7-1/3


opened a third runway.        The Zappalas claim that this addition dramatically

increased the noise level in their home. They further claim that the Port made no

mention of plans to construct the runway at any time before the Zappalas conveyed

the avigation easement.

          On September 13, 2017, nearly 10 years after the third runway opened and

16 years after the original contract, the Zappalas brought this suit for inverse

condemnation against the Port. The complaint alleges, among other things, that

the noise and vibrations from overflights have substantially impaired the value of

their property. The complaint does not mention the avigation easement or allege

that the noise levels exceeded 71.5 DNL.

      The Port then brought a motion for partial summary judgment. It sought a

ruling that the avigation easement was in full effect, that the Zappalas must prove

that the noise levels exceeded 71.5 DNL, and that any potential recovery should

be limited to damages caused by noise above 70 DNL.

      The Zappalas opposed the motion, claiming that the easement was

unenforceable due to procedural unconscionability. The Port argued that those

claims were untimely and without merit. The trial court granted the Port’s motion.

The Port then moved to dismiss the case. The Zappalas did not oppose the

motion.

      The Zappalas now appeal the trial court’s grant of partial summary

judgment.




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 No. 79271-7-1/4


                                       DISCUSSION

             The Zappalas make two arguments. First, they claim that the avigation

easement does not bar their claim.            Second, they claim that the avigation

easement is unenforceable due to procedural unconscionability.

             Summary judgment is appropriate when no genuine issues exists as to any

material fact and the moving party is entitled to judgment as a matter of law. Keck

v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). We review summary

judgment rulings de novo. j4~

      I.     Effect of the Aviqation Easement on the Zappalas’ Claims

             The Zappalas claim that the avigation easement does not bar their inverse

condemnation claim. In Admasu v. Port of Seattle, 185 Wn. App. 23, 38-39, 340

P.3d 873 (2014), this court held that the avigation easements granted in the Port’s

noise remedy program bar inverse condemnation claims. The Zappalas do not

contend that their avigation easement is different than those in Admasu. Rather,

they claim that Admasu is flawed.

            The Admasu court held that property owners burdened by an avigation

easement to the Port cannot later claim a government taking of their property

based on aircraft noise, because they have conveyed an overflight right to the Port.

ki.        The Port therefore takes nothing from them because the right has been

voluntarily conveyed by the property owner. Id. at 37.

            The Zappalas claim Admasu is flawed because it conflates freedom of

overflight with freedom from damages. They point to Martin v. Port of Seattle, 64

Wn.2d 309, 391 P.2d 540 (1964). In that case, property owners sought damages


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No. 79271-7-115


from the Port based on noise caused by low-flying aircraft. k~. at 311-12. The Port

argued, inter ~ that it was not liable because its overflights were permitted by

federal law, were not wrongful, and could not subject the Port to liability. ki. at 315.

Our Supreme Court disagreed, finding that the property owners could still seek

relief under the takings clause for damages to their land inflicted for the public

good. .[ç~ The Zappalas contend that because freedom of overflight granted to the

Port by federal law does not equate to freedom from damages, freedom of

overflight granted by homeowners in an avigation easement should also not

equate to freedom from damages.

       The Zappalas’ argument is without merit.         Admasu simply says that a

property owner cannot claim a taking based on an activity they have given the Port

the right to do. Martin grants property owners a right to seek damages based on

noise from overflights even if those flights are authorized by law.         ki. at 315.

Admasu recognizes that homeowners have the ability to bargain that right away.

The Zappalas did so here.

       At oral argument, the Zappalas took issue with the Admasu court’s

characterization of the Port’s noise remedy program as a commercial transaction.

The avigation easement acknowledges the Port as the “proprietor of the Seattle

Tacoma International Airport.” The Port has the same rights and power to contract

as an individual or private corporation would when acting in its proprietary capacity.

See Hite v. Pub. Util. Dist. No.2, 112 Wn.2d 456, 460, 772 P.2d 481 (1989). The

transactions in the Port’s noise remedy program do not involve the sale of

household goods, as the Zappalas claim. As consideration for a property right, the


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No. 79271-7-1/6


Port paid a contractor to make significant structural improvements to the Zapalas’

home. The Zappalas are not challenging the work done pursuant to the home

improvement contracts which would typically be consumer transactions. They are

challenging their sale of an easement for commercial overflight.            Avigation

easements are not typical consumer transactions. The trial court and the Admasu

court are correct in characterizing this as a commercial transaction.

       The trial court did not err in finding that the avigation easement bars

recovery unless noise exceeds 71.5 DNL.

   II. Procedural Unconscionability

       The Zappalas argue that the easement is unenforceable by reason of

procedural unconscionability. The Port counters that the Zappalas claims are time

barred and without merit.

       The Port argues that the Zappalas’ procedural unconscionability claim is

barred by Washington’s six year statute of limitations on written contracts. RCW

4.16.040(1). The Zappalas counter that the statute of limitations does not apply,

because their unconscionability claim is being used as an affirmative defense, with

its remedy limited to non-enforcement of the contract. The Zappalas do not cite

controlling authority that unconscionability may be used as an affirmative defense

to escape the statute of limitations. Likewise, the Port does not cite controlling

authority that an unconscionability defense is barred by the statute of limitations.

      The Port cites Potter v. America’s Servicing Co., No. C13-1129RAJ, 2014

WL 3694247, at *3 (W.D. Wash. July, 23, 2014). In that case, a woman sought

relief from a loan eight years after she had obtained it because she claimed the


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No. 79271-7-117


loan was substantively unconscionable.       k~. at *12    The court found that her

unconscionability claim was barred by RCW 4.16.040(1), and that it accrued the

moment she entered the loan. j~ at *3 It found that the she could not “plausibly

argue that she discovered the allegedly unconscionable terms of the loan when

she signed the agreement in 2006, and she did not sue WMC until February 2014.”

Id.

        The Zappalas rely on a series of out-of-state cases that stand for the idea

that unconscionability claims may be used as a “shield” but not a “sword”—the

latter being cases where a party seeks affirmative relief such as damages or

rescission, and the former being a contract formation defense. They admit that

Washington has not addressed the issue. Nevertheless, they characterize their

unconscionability claim as a defense and therefore not subject to the statute of

limitations.   They illustrate the difference by quoting State ex rel. American

Freehold Land Mortqacie Co. of London v. Tanner, 45 Wash. 348, 357, 88 P.32

(1907), which addressed the concept in the context of fraud:

       “It is also true that, where a party seeks relief upon the ground of
       fraud or mistake, the action must be commenced within three years
       after the discovery of the facts constituting the fraud or mistake; but
       a different case is presented when the party who has procured the
       fraudulent contract, or who seeks to take advantage of it, asks to
       have it declared valid or to enforce its executory terms, and is thus
       himself asking affirmative relief. The three-year statute of limitations
       does not bar the defendant in such a case from objecting to the
       validity or to the enforcement of the contract upon the ground of
       fraud. It is not incumbent upon one who has thus been defrauded to
       go into court and ask relief, but he may abide his time, and, when
       enforcement is sought against him, excuse himself from
       performance by proof of the fraud.” The above case seems to be
       squarely in point. It is actions themselves which are barred by



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No. 79271-7-1/8

       statutes of limitation, and not matters of pure defense to such
       actions.
i~(quoting Hartv. Church, 126 Cal. 479,58 Pac. 913, 77 Am. St. Rep. 195

(1899)).

       The Zappalas’ argument that they are using the theory “defensively” belies

the facts. They granted the easement allowing the Port to use their property. The

Port is not here seeking to enforce the contract against the Zappalas. It did that

by utilizing the easement, which it has done openly and consistently for almost 20

years. The Zappalas, like the plaintiff in Potter, were aware of the contract and its

alleged unconscionability from the outset, and yet still complied with its terms for

nearly 20 years before bringing this suit. They are now seeking damages from the

Port based on the Port’s use of a right the Zappalas explicitly conveyed to it. It is

the Zappalas, not the Port, who are in an offensive posture here. The Zappalas’

procedural unconscionability claim is time barred.

      We affirm.
                                                                 /



                                            /   F


WE CONCUR:



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