Ecology v Campbell and Gwinn :: 146 Wn2d 1
Category: Land Use and Property Rights
Developers Campbell & Gwinn LLC (C&G) were told by a Department of Ecology (DOE) employee they could sink wells without a permit, for each of the lots in a twenty lot development they wished to purchase, in the Yakima area. A permit had been issued to a previous owner in 1954, but was canceled, since the owner never made use of it.
The land was purchased in March 1999 by C&G. The following month another DOE employee reviewed the notice of intent by C&G to drill twenty individual wells. He believed that activity was in violation of a 1997 Attorney General (AG) opinion that permit exemption did not apply to a group of wells in a single development.
By this time four wells had been drilled, and DOE agreed to not taking further action, if no more wells were drilled without a permit. This was unfortunate to C&G since no permits had been issued for five years, and the chance of getting one was slim when considering the 1997 AG opinion. That opinion was addressed to wells on developments in excess of 5,000 gallons per day (gpd), but each individual well in the development was less than 5,000 gpd, although in concert they would exceed 5,000 gpd.
A summary judgment by the trial court found DOE was equitably estopped from requiring C&G to comply with the permit process. Equitable Estoppel requires that an act by government is inconsistent, the prior act was reasonably relied upon, injury would occur if the government was allowed to repudiate its prior act, a manifest injustice is occurring because of the inconsistency, and estoppel would not impair the exercise of governmental functions. The decision was appealed by DOE.
It is strange the majority would object to the developers drilling of twenty wells, when by Washington State law (RCW 40.44.050.); each individual owner of a lot can drill a well after purchase. Each well would have been less than 5,000 gpd and regulated by the owners needs. Does it matter if a glass has twenty straws in it, as opposed to twenty glasses with individual straws? Whether there was adequate water in the aquifer wasn’t even addressed. This is a case where an AG opinion was considered by bureaucrats as equally applicable whether in Olympia or Waterville. The Court's decision did not cite any potential harm to the watershed from the development; it simply tortured a statute into a taking at the expense of property rights.
Rating the Usual Suspects:
| pass | Anderson, Don Leroy | |
| pass | Andreotti, Patrick M | |
| pass | Bridge, Bobbe | |
| pass | Carstens, Deborah L | |
| pass | Flower, Charles C | |
| pass | Johnson, Charles | |
| pass | Johnson, Fred A | |
| pass | Lust, James J | |
| pass | Overstreet, Greg | |
| pass | Owens, Susan | |
| pass | Sale, Jerret E | |
| pass | Sanders, Richard | |
| pass | Stout, Larry D | |
| pass | Tefft, Kristopher I | |
| pass | Weber, Rick | |
| fail | Alexander, Gerry | |
| fail | Barnett, Jennifer T | |
| fail | Chambers, Tom | |
| fail | Faller, Brian V | |
| fail | Gregoire, Christine | |
| fail | Ireland, Faith | |
| fail | Madsen, Barbara | |
| fail | Manning, Jay J | |
| fail | McCrea, Mary E | |
| fail | Smith, Charles |