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Washington Dep't of Ecology v. Pacesetter Constr. Co.

Citation: 8 ELR 20119
No. No. 44226, 571 P.2d 196/89 Wash. 2d 203, (Wash., 11/03/1977)

The Washington Supreme Court affirms a lower court decision ordering the removal of two houses constructed on lakeshore property adjacent to that owned by plaintiffs and awarding damages as compensation for the temporary reduction in esthetic enjoyment. Plaintiff property owners who were subsequently joined in the action by the state, argued that in constructing the houses the defendant developer had failed to secure a proper building permit and would violate provisions of the Shoreline Management Act imposing a maximum height of 35 feet on lakeside structures. Although it agreed with these contentions the supreme Court applied an independent test to determine whether these violations mandated the removal of the substantially completed houses. Concluding that the defendant's loss was outweighed by the prospective gain to the community, the court affirmed the injunction. Concurring with the trial court's finding that all persons using or owning property near the lake would benefit from the removal of the houses, the court added to this side of the equation the benefit received by defendant by way of the higher value of the property as a result of its location within an area of undisturbed scenic beauty. Despite the fact that all neighboring property owners would benefit from the issuance of the injunction, the state civil practice rules prohibit the attempted joinder at the appellate level of additional neighbors seeking monetary damages. As for the defendants' claim that the application of the Shoreline Management Act in this manner unconstitutionally deprives them of property rights without compensation, the appropriate forum for a determination of this question would be in an action brought by defendants seeking compensation from the state.

In separate concurrences, two justices warn against subsequent extensions of the court's holdings with respect to the balancing test applied and the use of the police power to protect solely esthetic interests.

Counsel for Appellants
Derrill T. Bastian
Breskin, Rosenblume & Robbins
Suite 803, Hoge Bldg., 705 2d Ave., Seattle WA 98104
(206) 624-3443

Counsel for Appellees
Slade Gorton, Attorney General; Robert Jensen, Ass't Attorney General
Temple of Justice, Olympia WA 98504
(206) 753-2550

John P. Harris, Corporation Counsel; J. Roger Nowell, Ass't Corporation Counsel
600 4th Ave., Seattle WA 98104
(206) 625-2402

Gust Doces, Arthur G. Barnett
Barnett, Pease, Doces & Lewicki
900 S. Tower Bldg., Seattle WA 98103
(206) 683-1931

WRIGHT, C.J., and ROSELLINI, HAMILTON, STAFFORD, UTTER, BRACHTENBACH and DOLLIVER, JJ., concur.