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20lli HOV 18 AH 9: 05

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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF ISLAND
JONATHAN DEEGAN and ALICE O'GRADY,
on behalf of themselves and others similarly
situated,

V.

16

4 2 00705

CLASS ACTION COMPLAINT FOR

DAMAGES AND INJUNCTIVE
RELIEF

Plaintiffs,

15

NO.

WINDERMERE REAL ESTATE/CENTERISLE, INC., a Washington corporation; and

ACORN PROPERTIES, INC. dba RE/MAX
ACORN PROPERTIES, INC., a Washington
corporation,
Defendants.

17

18
19
20
21

I. INTRODUCTION

1.

Plaintiffs Jonathan Deegan and Alice O'Grady ("Plaintiffs") bring this class

22

action lawsuit on behalf of themselves and a proposed Class of all others similarly situated

23

against Windermere Real Estate/Center-Isle, Inc. ("Windermere Center-Isle"), and Defendant

24

Acorn Properties, Inc. dba RE/MAX Acom Properties, Inc.("RE/MAX Acom") (collectively

25

with Windermere, "Defendants").

26
27
TERRELL MARSHALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF - 1

936 North 34th Street, Suite 300

Seattle, Washington 98103-8869
TEL. 206.816.6603 FAX 206.350.3528

www .tmct.vlaw .com

-:--

<\.

2.

Plaintiffs and proposed Class members purchased real property on or after May

11, 1992 in one of the Airport Environs Mapped Impacted Areas established in Island County

Code 9.44.040 and depicted on the Airport Environs Map adopted by the Airport and Aircraft

Operations Noise Disclosure Ordinance, Island County Ordinance C-32-92 (enacted April 13,

1992) (the "Ordinance"). When they purchased that real property, they did not receive the

noise disclosure required by Island County Code 9.44.050. The required disclosure includes

detailed information about the jet engine noise from tactical military jet aircraft facilities. The

Airport Environs Map identifying the locations of those facilities and the "Impacted Areas" is

also required to be furnished to prospective purchasers. A copy of the Ordinance and the

10
11

required Airport Environs Map are attached hereto as Exhibit A.

3.

The required disclosure states, in part, "Practice sessions are routinely scheduled

12

during day and night periods," "Property in the vicinity of Ault Field and OLP Coupeville will

13

routinely experience jet aircraft noise," and "the noise from a single flyover of a military jet

14

may exceed the average noise level depicted by the airport noise zones and may exceed 100

15

(one-hundred) dba [decibels]."

16

4.

Prospective buyers were entitled to this notice so that they could make informed

17

decisions before buying their homes. However, prospective buyers did not receive the

18

disclosure and map required by the Ordinance.

19

5.

Island County Code 9.4(060 provides that the obligation to make the noise

20

disclosure lies not only with the sellers of property, but also with their agents. Defendants

21

were the listing offices and agents for the sellers in transactions through which Plaintiffs and

22

proposed class members purchased real property in the Airport Noise Zones without receiving

23

proper disclosures. Thus, Defendants were obligated to provide the disclosure and Airport

24

Environs Map to prospective buyers of the properties.

25
26

6.

In recent years, increased activity at the Naval Air Station Whidbey Island

(''NAS Whidbey"), including very loud touch-and-go landings ofEA-180 growler jets, has led

27
TERRELL MARSHALL DAUDT

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF - 2

& WILLIE PLLC

936 North 34th Street, Suite 300

Seattle, Washington 98103-8869
TEL. 206.816.6603 FAX 206.350.3528

www .trnclwlaw.com

community members to question why they were not given notice about the extremely loud

noise and vibrations that they and their families must now endure. After investigating these

concerns, Island County Director of Planning and Community Development David Wechner

sent a memorandum to the Board of County Commissioners on December 17, 2013, stating that

Defendants' disclosure form failed to include the language required by law. That form, titled

"Form 22W," was copyrighted by the Northwest Multiple Listing Service in 2001. In addition,

the form omitted the required Airport Environs Map showing the locations of the aircraft

facilities and the "Impacted Areas."

7.

Faced with the omissions in its disclosures, Defendants began using an updated

10

version of Form 22W in January 2014. 1 For the first time, their disclosure includes the

11

language required by Island County Code 9.44.050, specifically warning of noise levels

12

exceeding 100 decibels from military jets flying at all hours. This comes too late for Plaintiffs

13

and the Class, who were not informed ofl:he intensity and :frequency of flights they would

14

suffer from, day and night. However, the revised Form 22W (attached as Exhibit B) still does

15

not comply with the Ordinance,' because it does not include the required Airport Environs Map.

16

On information and belief, Defendants also do not provide Form 22W in a timely fashion to all

17

prospective buyers, as required by the Ordinance. Instead, Defendants typically provide Form

18

22W only after the property is already under contact and immediately prior to closing.

19

8.

The current flight activity has depressed the value of properties in the Impacted

20

Areas. When Plaintiffs and proposed class members sell their homes, they will be required to

21

provide a correct disclosure statement to prospective purchasers, which will further depress the

22

value of those homes. This loss in value constitutes quantifiable economic damage caused by

23

Defendants' conduct in unfairly, deceptively, and unlawfully withholding required disclosures

24

from Plaintiffs and proposed class members when they purchased their homes.

25
26
27

1 See

http://www.whidbeynewstimes.com/news/241370791.html (last visited October 30,

2014).
TERRELL MARSHALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF- 3

936 North 34th Street, Suite 300

Seattle, Washington 98103-8869
TEL. 206.816.6603 FAX 206.350.3528

www .tma.vlaw.com

1
2

II. PARTIES
9.

Plaintiff Jonathan Deegan is a resident oflsland County and citizen of

Washington State who purchased his home at 49 Kinkaid Drive, Coupeville, Washington,

98239, in July 2006. The property is located within an "Impacted Area" established by the

Ordinance. The listing office for the transaction was RE/MAX Acom, and the only noise

disclosure Plaintiff Deegan received in connection with the transaction was the inadequate

Form22W.

10.

Plaintiff Alice O'Grady is a resident oflsland County who, along with her

husband, purchased a home at 506 NW 4th Street, Coupeville, Washington, 98239 in October

IO

2011. The property is located within an "Impacted Area" established by the Ordinance. The

11

listing office for the transaction was Windermere Center-Isle, and the only disclosure Plaintiff

12

O'Grady received in connection with the transaction was the inadequate Form 22W.

13

11.

Defendant Windermere Center-Isle is a Washington corporation in good

14

standing with the Washington Secretary of State, with its headquarters in Coupeville,

15

Washington. Windermere Center-Isle is licensed as a real estate firm by the Washington

16

Department of Licensing. Windermere Center-Isle acted as an agent for the seller in Plaintiff

17

O'Grady's purchase of her property.

18

12.

Defendant RE/MAX Acorn is an independently owned and operated office of

19

RE/MAX Holdings, Inc. Defendant RE/MAX Acorn is located on Whidbey Island at 32800

20

SR 20, Suite 2, Oak Harbor, Washington, 98277. RE/MAX Acorn is licensed as a real estate

21

firm by the Washington Department of Licensing. RE/MAX Acom acted as an agent for the

22

seller in Plaintiff Deegan's purchase of his property.

III. JURISDICTION AND VENUE

23
24

13.

Jurisdiction. Under RCW 4.12.010, this Court has subject matter jurisdiction

25

over Plaintiffs' claims because Plaintiffs claim economic injury to real estate located within the

26

State of Washington. Moreover, personal jurisdiction is appropriate under RCW 4.12.025 as

27
TERRELL MARSHALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF - 4

936 North 34th Street, Suite 300

Seattle, Washington 98103-8869
TEL. 206.816.6603 FAX 206.350.3528

www.tmdwlaw.com

'.

Defendants do business in Island County, Washington, and have obtained the benefits of the

laws of the State of Washington.

14.

Venue. Venue is proper in Island County under RCW 4.12.020 because

Defendants transact business in Island County, the real property at issue is located in Island

County, and much of the course of conduct alleged herein occurred in Island County.

IV. FACTUALALLEGATIONS

15.

The Naval Air Station Whidbey Island comprises a seaplane base on the eastern

shore of the island, at the edge of the city of Oak Harbor, and Ault Field, which is northwest of

the seaplane base. NAS Whidbey Island also owns and operates training flights at Outlying

10

Landing Field (OLF) near the town of Coupeville. The base has been in continuous operation

11

since 1942. OLF Coupeville compliments training at Ault Field and is used for field carrier

12

landing practice (FCLP) and other operations, including helicopter and parachute operations. 2

13

16.

In April 1992, the Island County Board of Commissioners enacted the Airport

14

and Aircraft Operations Noise Disclosure Ordinance, Island County Ordinance C-32-92. The

15

legislative findings codified at Island County Code 9.44.010 under the heading Legislative

16

Intent were as-follows: "A. There exist airports within Island County whose operations may

17

impact the health, safety and general welfare of the citizens oflsland County" and "B. The

18

purpose of this ordinance is to protect the public health, safety and general welfare by

19

providing for the full disclosure of the noise associated with the operation of aircraft from the

20

existing airports."

21

17.

Sound intensity is measured in logarithmic units called decibels (DB). A sound

22

level of IO DB is approximately the threshold of human hearing and can barely be heard under

23

very quiet conditions. Normal conversation has a sound level of approximately 60 DB.

24
25
26
27

AICUZ Study Update for Naval Air Station Whidbey Island's Ault Field and Outlying
Landing Field Coupeville, Washington, Final Submission, May 2005 at p. 2-2
(http://www.cnic.navy.mil/content/dam/cnic/cnrnw/pdfs/NAS Wlfactsheets/NAS%20Whidbey
%20Island%20AICUZ.pdf (last visited October 30, 2014)).
TERRELL MARSHALL DAUDT

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF - 5

& WILLIE PLLC

936 North 34th Street, Suite 300

Seattle, Washington 98103-6869
TEL. 206.816.6603 FAX 206.350.3528

www.tmct.vlaw.com

..

Sounds of more than 120 DB are felt inside the human ear as discomfort and sounds above 140

DB result in pain. Because of the logarithmic nature of the decibel unit, an increase in intensity

of around three decibels is the smallest increment that the average human ear can detect,

whereas an increase of ten decibels is perceived as a doubling in loudness. 3 The unit DBA

refers to decibels adjusted pursuant to the A-weighting scale, which filters out lower

frequencies and more closely approximates the response characteristics of the human ear.

The 1992 ordinance cr_e ated two Airport Noise Zones based on the Day-Night

18.

average Sound Level, or the A-weighted sound level averaged over a 24-hour period, with a

IO-decibel penalty applied to sounds occurring between 10 p.m. and 7 a.m. Island County

10

Code 9.44.030(D). These two Airport Noise Zones were defined as the areas within the Airport

11

Environs Map that were significantly affected by airport noise. Island County Code

12

9.44.030(C). Properties with day-night average sound levels between 65 and 75 DBA were

13

placed into' Noise Zone 2, while any properties subject to day-night average sound levels higher

14

than 75 DBA were placed into Noise Zone 3. Island County Code 9.44.040.

15

,,.

19.

Island County Code 9.44.050,titled "Disclosure Statement," states:

16

No person shall sell, lease or offer for sale or lease any property
within an Airport Environs Mapped Impacted Areas unless the
prospective buyer or lessee has been given notice substantially as
follows:

17

18

TO: The property at

is located within
Airport Environs mapped impacted area. There are currently
5 (five) active airport facilities in Island County. The Oak
Harbor Airpark, the South Whidbey Airpark, and the
Camano Airpark are general aviation facilities and are
identified on the attached map. Ault Field and OLF
Coupeville are tactical military jet aircraft facilities and are
also identified on the attached map. Both Ault Field and OLF
Coupeville are used for Field Carrier Landing Practice
(FCLP) purposes. Practice sessions are routinely scheduled
during day and night periods.

19
20
21
22
23
24
25

26
3

Id. at p. B-2.

27
TERRELL MARSHALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF - 6

936 North 34th Street, Suite 300

Seattle, Washington 98103-8869
TEL. 206.816.6603 FAX 206.350.3528

www.tmdwlaw.com

Property in the vicinity of Ault Field and OLF Coupeville will

routinely experience significant jet aircraft noise. As a result
airport noise zones have been identified in the immediate
area of Ault Field and OLF Coupeville. Jet aircraft noise is
not, however, confined to the boundaries of these zones.
Additionally, the noise generated by the single flyover of a
military jet may exceed the average noise level depicted by
the airport noise zones and may exceed 100 (one-hundred)
dba.

2
3
4

6
7

More specific information regarding airport operation and

aircraft noise can be obtained by calling the Community
Planning Liaison Office at NAS Whidbey Island and the
Island County Planning and Community Development
Department.

8
9

10
11

(Emphasis added.)

12

20.

, 13

Island County Code 9.44.060, titled "Limitation of Liability," states:

This chapter is not intended to create any class of persons to be
benefited or protected nor to create any reliance relationship
between Island County and landowners, land purchasers, their
successors, occupants, or users of structures built with or without
a building permit, or any other petsons. This chapter is not
intended to create any duty running in_favor of particular persons.
The obligation to comply with the provisions of this chapter
are upon the property owner and their agents. Acts or
omissions to act by Island County, its officials or employees
under this chapter shall not create any liability on the part of
Island County or its officials or employees.

14
>., 15
16
17

. 18
19
20

(Emphasis added.)

21

21.

In 1993, the Island County Board of Commissioners passed a second ordinance,

22

the Noise Level Reduction Ordinance, Island County Ordinance PLG-054-93, which was

23

amended on August 12, 2002 by Ordinance C-59-02 (although the content of the disclosure

24

provision was not affected by the amendment). This ordinance is part of the Building Code and

25

contains noise abatement requirements that must be included in any new construction in the

26

affected areas, which are enforced by building permits issued by Island County. The 1993

27
TERRELL MARSHALL DAUDT & WILLIE

CLASS ACTION COMPLAINT FOR DA.t"\1AGES AND

INJUNCTIVE RELIEF - 7

936 North.34th Street, Suite 300

seattle, Washington 98103-8869
TEL. 206.816.6603 FAX 206.350.3528

www.trndwlaw.com

PLLC

ordinance also includes a map with two noise zones, also labeled 2 and 3, although the map

differs in some respects from the one adopted by the Ordinance. This disclosure advises

potential builders about construction restrictions and requirements in the zoned areas.

4
5

22.

Island County Code 14.0lB-100, titled Disclosure Statement, is part of the

Noise Level Reduction Ordinance first enacted in 1993. The provision states as follows:

6
No person shall sell, lease, or offer for sale or lease any property
within an Airport Noise Zone 2 or 3 unless the prospective buyer
or lessee has been given notice substantially as follows:

7
8

To: The Property at - - - - - - - - - - - - - is located within Airport Noise Zone 2 or 3 impacted area.
Persons on the premises may be exposed to a significant noise
level as a result of airport operations. Island County has
placed certain restrictions of construction of property within
airport noise zones. Before purchasing or leasing the above
property, you should consult the Island County Noise Level
Reduction Ordinance to determine the restrictions .which
have been placed on the subject property, if any.

9
10
11
12 .
13
14
~.

15
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17
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23.

Island County Code 14.0lB.150, which is also part of the Noise Level

Reduction Ordinance first enacted in 1993, provides that ."[i]n the event of conflict between any
Building Code regulations and any other regulations applicable to the same property, the more
stringent limitation or regulation shall govern and prevail."
24.

David Wechner's December 17, 2013 memorandum to the Island County Board

of Commissioners affirmed that both the disclosures found at Island County Code 9.44.050 and
at 14.0 IB.100 were still in effect and that "both are applicable to the sale, lease, transfer (or
offer thereof) regarding properties in Island County within areas designated on the respective
maps." Moreover, for a property that fell within Noise Zones~ or 3, which overlapped on the
maps in the two statutes, both disclosures must be given. As Mr. Wechner stated in an October
8, 2013 e-mail to Keith Higman at the Island County Public Health Department: "the County
has already spoken on the noise issue, but real estate disclosures are not taking place as
planned." A copy of Mr. Wechner's October 8, 2013 email is attached hereto as Exhibit C.
TERRELL MARSllALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF - 8

936 North 34th Street, Suite 300

Seattle, Washington 98103-8869
TEL. 206.816.6603 FAX 206.350.3528

www.tmdwlaw .com

25.

In 2005, the Navy began phasing out the EA-6B Prowler, which had been the

dominant type of jet at NAS Whidbey Island in terms of number of planes and number of

operations, and replacing it with the EA-18G Growler. 4 Over the following several years,

complaints by community members about the noise of the jets increased, with many citing an

increase in the frequency of flights, the fact that operations regularly ran well past midnight,

and that the Growlers fly lower, and are louder, than the Prowlers that preceded them. 5

26.

As a result of these community member concerns, a citizen's group

commissioned an auditory study by Jerry G. Lilly of JGL Acoustics, which took place on May

7, 2013. Mr. Lilly measured both unweighted and A-weighted sound levels at five locations

IO

near OLF Coupeville, four outdoors and one inside a home, while military flight operations

11

were taking place there. Static readings in both forms were consistently above 110 decibels,

12

with a peak of 134.2 in un-weighted (119.2 In A-weighted) at site one, described by Lilly as a

13

"densely populated residential area" one mile south of the southern end of the runway. The

14

lowest readings were taken inside the home, registering 101.8 decibels in un-weighted and 81.1

15

in A-weighted. The house is "relatively new" and located less than one mile west of the

16

northern end of the runway. 6 All of these measurements exceed the levels permitted in

17

residential areas and classrooms under Washington law. See RCW 70.107 (establishing 55

18

DBA maximum in residential areas during the day and 45 DBA maximum between 10 p.m. and

19

7 a.m.); WAC 246-366-110 (establishing maximum sound level of75 DBA for outdoors and 45

20

DBA for indoors in a school environment). They also exceed the levels at which significant

21

adverse health effects have been reported in the scientific literature, including impaired learning

..

22
23
24
25
26
27

Id. at p. 3-2.

http://kng5.tv/1s3055d (last visited October 30, 2014).

http://www.whidbeynewstimes.com/news/213487531.html (last visited October 30, 2014).

TERRELL MARSHALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF - 9

936 North 34th Street. Suite 300

Seattle, Washington 98103-6869
TEL. 206.816.6603 FAX 206.350.3528

www.tmdwlaw.com

such as reading comprehension and academic performance in children, 7 and increased risk of

hospitalization or death from cardiovascular disease and stroke in adults. 8

27.

Jason Joiner, government affairs director for the Whidbey Island Association of

Realtors, reported in a January 23, 2014 news article that his association took prompt action to

correct its standard disclosure forms once David Wechner's memorandum to the Island County

Commissioners was made public. He stated that "[w]e made the change [to Form 22W] in

response to the memorandum. We want to be sure the disclosure is in compliance with the

law." 9 However, the revised disclosure is still incomplete because it omits the required map. In

or around January 2014, Defendants and other real estate companies acting as listing agents for

10

real estate transactions on Whidbey Island may have begun providing a revised disclosure

11

incorporating some of the requirements of the Ordinance. A copy of the revised disclosure

12

form is attached hereto as Exhibit B.

V. CLASS ACTION ALLEGATIONS

13
14
15

28.

Pursuant to Washington Civil Rule 23, Plaintiffs bring this action for damages

and injunctive relief on behalf of a class (the "Class") consisting of:

16

All persons or entities who on or after May 11, 1992 (the "class
period") purchased real property located in the Airport Environs
Mapped Impacted Areas adopted by the Airport and Aircraft
Operations Noise Disclosure Ordinance, Island County
Ordinance C-32-92, and for whom one or more Defendants acted
as the listing office in that purchase.

17
18
19
20
21
22
23
24
25
26
27

Stansfeld SA. 2005. Aircraft and Road Traffic Noise and Children's Cognition and Health: A
Cross-National Study. Lancet, 365: 1942-1949; Hygge S, Evans OW and Bullinger M. 2002.
A Prospective Study of Some Effects of Aircraft Noise on Cognitive Performance in
Schoolchildren, Psychological Science 13(5): 469-474; Haines MM. 2002. Multilevel
Modeling of Aircraft Noise on Performance Tests in Schools around Heathrow Airport
London. J. Epidemiology and Community Health, 56(2):139-144.
8

http://www.bmj.com/content/347/bmj.f6082 (last visited October 30, 2014).

http://www.whidbeynewstimes.com/news/241370791.html (last visited October 30, 2014).

TERRELL MARSHALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF - 10

936 North 34th Street, Suite 300

Seattle, Washington 98103-8869
TEL 206.816.6603 FAX 206.350.3528

www.tmct.vlaw.com

Excluded from the Class are Defendants, any entity in which Defendants have a controlling

interest or that has a controlling interest in Defendants, and Defendants' legal representatives,

assignees, and successors. Also excluded are the judge to whom this case is assigned and any

member of the judge's immediate family.

29.

Numerosity. The proposed Class is so numerous thatjoinder of all members

would be impracticable. Defendants served as the sellers' agents for thousands of real estate

transactions within the class period in the Airport Environs Mapped Impacted Areas on the

Airport Environs Map, and on information and belief, Defendants failed to provide proper

disclosures to purchasers in any ofthose transactions. The names and addresses of all Class

10

members are ascertainable as all members' names and addresses can be identified in business

11

records maintained by the Defendants. On information and belief, the Class numbers in the

12

hundreds or thousands.

13

30.

Commonality. There are numerous questions of Jaw and fact common to

14

Plaintiffs and members of the Class. These common questions of law and fact include, but are

15

not limited to, the following:

16

. a.

Whether Defendants provided Plaintiffs and Class members inadequate

17

noise disclosures, or no noise disclosures whatsoever, in violation oflsland County Code

18

9.44.050 and 9.44.060;

19
20
21
22
23
24

b.

Whether Plaintiffs and Class members are entitled to damages and/or

injunctive relief as a result of Defendants' conduct;

c.

Whether Defendants' conduct as herein alleged constitutes an unfair act

or practice in violation ofRCW 19.86 et seq. (The Washington Consumer Protection Act); and
d.

Whether Defendants' conduct as herein alleged constitutes a deceptive

act or practice in violation ofRCW 19.86 et seq. (The Washington Consumer Protection Act).

25
26

27
TERRELL MARSHALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF - 11

936 North 34th Street, Suite 300

Seattle, Washington 98103-8869
TEL. 206.816.6603 FAX 206.350.3528

www.tmoolaw.com

31.

Typicality. Plaintiffs' claims are typical of the claims of the Class. Plaintiffs'

claims, like the claims of the Class, arise out of the same common course of conduct by

Defendants and are based on the same legal and remedial theories.

32.

Adequacy. Plaintiffs will fairly and adequately protect the interests of the Class.

Plaintiffs have retained competent and capable attorneys with significant experience in

complex and class action litigation, including consumer class actions. Plaintiffs and their

counsel are committed to prosecuting this action vigorously on behalf of the Class and have the

financial resources to do so. Neither Plaintiffs nor their counsel have interests that are contrary

to or that conflict with those of the proposed Class.

10

33.

Predominance. Defendants have engaged in a common course of conduct

11

toward Plaintiffs and members of the Class. The common issues arising from this conduct that

12

affect Plaintiffs and members of the Class predominate over any individual issues.

13

Adjudication of these common issues in a single action has important and desirable advantages

14

of judicial economy.

15

34.

Superiority. A class action is the superior method for the fair and efficient

16

adjudication of this controversy. Classwide relief is essential to compel Defendants to

17

compensate homeowners for the damages they sustained due to Defendants' unlawful conduct.

18

The interest of individual members of the Class in individually controlling the prosecution of

19

separate claims against Defendants is small because the damages in an individual action are

20

relatively small. Management of these claims is likely to present significantly fewer difficulties

21

than are presented in many class claims because Defendants acted or failed to act on grounds

22

generally applicable to the Class in that the required disclosure was systematically not provided

23

over a nearly twenty-two-year period. Class treatment is superior to multiple individual suits or

24

piecemeal litigation because it conserves judicial resources, promotes consistency and

25

efficiency of adjudication, provides a forum for small claimants, and deters illegal activities.

26

There will be no significant difficulty in the management of this case as a class action.

27
T ERRELL MARSHALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF - 12

936 North 34th Street, Suite 300

Seattle, Washington 98103-8869
TEL 206.816.6603 FAX 206.350.3528

www.tmdwlaw.com

35.

Upon information and belief, Plaintiffs allege that greater than two-thirds of the

members of the Class are citizens of the state of Washington. The claims asserted herein do not

involve matters of national or interest, but instead involve a purely local controversy unique to

Island County. The laws applicable to the resolution of the claims asserted herein are Island

County ordinances and the laws of the state of Washington. There have been no other class

actions asserting the same or similar claims filed on behalf the Class or other persons during the

3-year period preceding the filing of this lawsuit.

9
10

11
12
13
14

VI. FIRST CLAIM FOR RELIEF

VIOLATION OF THE WASHINGTON STATE CONSUMER PROTECTION ACT
(Deceptive Business Practices, RCW 19.86 et seq.)
36.

Plaintiffs re-allege and incorporate by reference the allegations in the preceding

paragraphs.

37.

Defendants are "persons" within the _meaning of the Washington Consumer

0

Protection Act, RCW 19.86.010(1), and conduct "tr~de" and "commerce" within the meaning

15 oithe Washington Consumer Protection Act, RCW 19.86.010(2).

16
17

18

-38.

Plaintiffs and Class members are "persons" within the meaning of the

Washington Consumer Protection Act, RCW 19.86.010(1).

39.

Defendants engaged in deceptive acts or practices by failing to disclose in

19

substantial compliance with Island County Code 9.44.050 the information about the types of

20

aircraft operations occurring in the Airport Environs Mapped Impacted Areas, the magnitude

21

and timing of military jet operations, the required map, and the other information which Island

22

County Code 9.44.050 requires to be included in pre-sale notices to all prospective purchasers

23

of real property in Airport Environs Mapped Impacted Areas.

24
25

40.

Defendants' deceptive acts or practices have occurred in their trade or business

and were and are capable of deceiving a substantial portion of the public. As such, Defendants'

26
27
TERRELL MARSHALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF-13

936 North 34th Street, Suite 300

Seattle, Washington 98103-6669
TEL 206.8 16.6603 FAX 206.350.3528

www.tmdWlaw.com

general course of conduct as alleged herein is injurious to the public interest, and the acts

complained of herein are ongoing and/or have a substantial likelihood of being repeated.

41.

The facts that Defendants failed to disclose to Plaintiffs and the Class are

material because the additional information required by Island County Code 9.44.050,

including the fact that a single flyover of a military jet could exceed 100 dba, and that military

flight operations would occur both at night and during the day, substantially adversely affected

the value of their homes on Whidbey Island.

8
9

42.

As a direct and proximate result of Defendants' deceptive acts or practices,

Plaintiffs and Class members suffered injury in fact and economic loss because they paid more

10

for their real property on Whidbey Island than that property would have been worth if the

11

required disclosure had been given, and their properties will sell (or rent) for less than they

12

otherwise would, due to the proper disclosure they are required to furnish to prospective

13

purchasers and renters.

14

43.

Plaintiffs and the Class are therefore entitled to an order enjoining the conduct

15

complained of herein, actual damages, treble damages pursuant to RCW 19.86.090, costs of

16

suit, including a reasonable attorney's fee, .and such further relief as the Court may deem

17

proper.

18
19
20
21
22
23

VII. SECOND CLAIM FOR RELIEF

VIOLATION OF THE WASHINGTON STATE CONSUMER PROTECTION ACT
(Unfair Business Practices, RCW 19.86 et seq.)
44.

Plaintiffs reallege and incorporate by reference the allegations set forth in each

of the preceding paragraphs of this Complaint.

45.

Defendants are "persons" within the meaning of the Washington Consumer

24

Protection Act, RCW 19.86.010(1), and conduct "trade" and "commerce" within the meaning

25

of the Washington Consumer Protection Act, RCW 19.86.010(2).

26

27
TERRELL MARSHALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF-14

936 Nortti 34th Street, Suite 300

Seattle, Washington 98103-8869
TEL. 206.616.6603 FAX 206.350.3528

www.tmdwlaw.com

46.
2
3

Plaintiffs and Class members are "persons" within the meaning of the

Washington Consumer Protection Act, RCW 19.86.010(1).

47.

Defendants engaged in unfair acts or practices by failing to disclose in

substantial compliance with Island County Code 9.44.050 the information about the types of

aircraft operations occurring in the Airport Environs Mapped Impacted Areas, the magnitude

and timing of military jet operations, the required map, and the other information that Island

County Code 9 .44.050 requires to be included in pre-sale notices to all prospective purchasers

of real property in the Airport Environs Mapped Impacted Areas.

48.

Defendants' acts or practices of failing to include required Airport Environs

10

Map and language about the magnitude and timing of military flight operations as part of pre-

11

sale notices in real estate transactions where they served as the seller's agent were unfair

12

because these acts or practices offend public policy as it has been established by statutes,

13

regulations, the common law or otherwise, including, but not limited to, the public policy

14

established by the Ordinance and the U.S. Department of Defense Air Installation Compatible

15

Use Zones ("AICUZ") recommendations for real estate disclosures.

16

49.

Defendants' unfair acts or practices have occurred in their trade or business and

17

were and are capable of injuring a substantial portion of the public. As such, Defendants'

18

general course of conduct as alleged herein is injurious to the public interest, and the acts

19

complained of herein are ongoing and/or have a substantial likelihood of being repeated.

20

50.

As a direct and proximate result of Defendants' unfair acts or practices,

21

Plaintiffs and Class members suffered injury in fact and lost money because they paid more for

22

their real property on Whidbey Island than that property was worth and their property will sell

23

for less when it is resold.

24
25

51.

Plaintiffs and the Class are therefore entitled to an order enjoining the conduct

complained of herein; actual damages; treble damages pursuant to RCW 19.86.090; costs of

26
27
TERRELL MARSHALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF - 15

936 North 34th Street, Suite 300

Seattle, Washington 98103-8869
TEL. 206.816.6603 FAX 206.350.3 528

www .tmdwlaw.com

suit, including a reasonable attorneys' fees; and such further relief as the Court may deem

proper.

VIIl. PRAYERFORRELIEF

4
5
6

7
8
9
10

WHEREFORE, Plaintiffs, on behalf of themselves and the Class, pray for the following
relief:
A.

An Order certifying the proposed Class, designating Plaintiffs as Class

Representatives, and designating the undersigned as Class Counsel;

B.

An award to Plaintiffs and the Class members of compensatory, exemplary and

statutory damages, including interest, in amounts to be proven at trial;

C.

An award of equitable relief requiring Defendants to modify their disclosure

11

forms, policies and practices to comply with RCW 19.86 et seq., Island County Code 9.44.010

12

et seq., and any and all applicable laws and regulations;

13

D.

An award of attorneys' fees and costs, as allowed by law, including but riot

14

limited to attorneys' fees and costs pursuant to RCW 19.86.090 and under the common fund

15

doctrine;

16

E.

An award of pre-judgment and post-judgment interest, as provided by law;

17

F.

Leave to amend the Complaint to conform to the evidence obtained through

18
19

discovery or presented at trial; and

G.

Such other or further relief as the Court deems just and proper.

20
21

22
23
24

25

26
27
TERRELL MARSHALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF - 16

936 North 34th Street, Suite 300

Seattle, Washington 98103-8869
TEL 206.816.6603 FAX 206.350.3528

www.trnC>.'llaw.com

2
3
4

5
6

8
9

10
11

RESPECTFULLY SUBMITTED AND DATED this 14th day ofNovember, 2014.

TERRELL MARSHALL DAUDT & WILLIE PLLC

a~eth E. Terrell,
Email: bterrell@tmdwlaw.com
Michael D. Daudt, WSBA #25690
Email: mdaudt@tmdwlaw.com
Mary B. Reiten, WSBA #33623
Email: mreiten@tmdwlaw.com
Samuel J. Strauss, WSBA #46971
Email: sstrauss@tmdwlaw.com
936 North 34th Street, Suite 300
Seattle, Washington 98103-8869
Telephone: (206) 816-6603
Facsimile: (206) 350-3528

12
13
14
15
16
17
18

Steven A. Skalet (pro hac vice motion ts, be filed)

Email: sskalet@findjustice.com
Craig L. Briskin (pro hac vice motion to be filed)
Email: cbriskin@findjustice.com
MERRI & SKALET PLLC
1250 Connecticut Avenue NW, Suite 300
Washington, DC 20036
Telephone: (202) 822-5100
Facsimile: (202) 822-4997

Attorneys for Plaintiffs

19
20
21

22
23
24
25
26
27
TERRELL MARSHALL DAUDT & WILLIE PLLC

CLASS ACTION COMPLAINT FOR DAMAGES AND

INJUNCTIVE RELIEF - 17

936 North 34th Street, Suite 300

Seattle, Washington 98103-8869
TEL. 206. 816.6603 FAX 206.350.3528
www.tmdwlaw.com

V LIHIHX:I

AIRPORT AND AIRCRAFT OPERATIONS NOISE

DISCLOSURE ORDINANCE

9.44.010

Chapter 9.44
Airport and Aircraft Operations Noise Disclosure Ordinance
Sections:
9.44.010

Legislative Intent

9.44.020

Applicability

9.44.030

Definitions

9.44.040

Airport Noise Zones

9.44.050

Disclosure Statement

9.44.060

Limitation of Liability

9.44.070

Severability

9.44.080

Effective Date of Adoption

9.44.010

Legislative Intent

The Board of County Commissioners of Island County has considered, among other things, the
character of the operations conducted and proposed to be conducted at airports within Island
County, the current uses of surrounding property and the uses for which it is adaptable; the
Board of County Commissioners finds:
A.

There exist airports within Island County whose operations may impact the health, safety
and general welfare of the citizens of Island County.

B.

The purpose of this ordinance is to protect the public health, safety and general welfare by
providing for the full disclosure of the noise associated with the operation of aircraft from
the existing airports.

(Ord. C-32-92, May 11, 1992, vol. 34, p. 71)

9.44.020

Applicability

The noise disclosure statement set forth herein is applicable to all lands within the delineated
areas set forth on Airport Environs Map, and those maps that may be adopted by Island County
in the future, a representation map of which is attached hereto and adopted by this reference.
(Ord. C-32-92, May 11, 1992, vol. 34, p. 71)

401

1996

PUBLIC PEACE, SAFETY, AND MORALS

9.44.030
9.44.030

Definitions

As used in this ordinance, unless the context otherwise requires, the following definitions apply:

,,

A.

AIRPORT: Any area of land or water designed and set aside for the landing and taking off
of aircraft and utilized or to be utilized in the interest of the public for such purposes.

B.

AIRPORT ENVIRONS MAP: Those mapped areas which have been identified as being
impacted by airport noise or aircraft operation.

C.

AIRPORT NOISE ZONE: Those areas which have been identified as being significantly
impacted by airport noise.

D.

DAY-NIGHT AVERAGE SOUND LEVEL (LDN) : A basic measure for quantifying

noise exposure, namely: The A-weighted sound level averaged over a 24 (twenty-four)
hour time period, with a 10 (ten) decibel penalty applied to nighttime (10:00 P.M. to 07:00
A.M.) sound levels.

E.

DBA: The unit of corrected noise level measured in accordance with the "A-weighting
scale" which replicates the response characteristics of the ear.

F.

DECIBEL: A unit for measuring the relative loudness of sound or sound pressure equal
approximately to the smallest degree of difforence of loudness or sound pressure ordinarily
detectable by the human ear, the range of which includes about 130 (one-hundred-thirty)
decibels on a scale beginning with 1 (one) for the faintest audible sound.

G.

PERSON: Any individual, firm, co-partnership, corporation, company, association, jointstock association, or body politic, and includes any trustee, receiver, assignee or their
similar representative thereof.

(Ord. C-32-92, May 11, 1992, vol. 34, p. 71)

9.44.040

Airport Noise Zones

Airport Noise Zones are hereby established as follows:

Airport Noise Zone ..................... Ldn Values
2 ....................................................... . 65 to 75
3 ........ ...................... ............... Greater than 75
(Ord. C-32-92, M ay II, 1992, vol. 34, p. 71)

9.44.050

Disclosure Statement

No person shall sell, lease, or offer for sale or lease any property within an Airport Environs
Mapped Impacted Areas unless the prospective buyer or lessee has been given notice
substantially as follows: TO: The property at
is located within Airport
Environs mapped impacted area. There are currently 5 (five) active airport facilities in Island
County. The

1996

402

AIRPORT AND AIRCRAFT OPERATIONS NOISE

DISCLOSURE ORDINANCE

9.44.050

Oak Harbor Airpark, the South Whidbey Airpark, and the Camano Airpark are general aviation
facilities and are identified on the attached map. Ault Field and OLF Coupeville are tactical
military jet aircraft facilities and are also identified on the attached map. Both Ault Field and
OLF Coupeville are used for Field Carrier Landing Practice (FCLP) purposes. Practice sessions
are routinely scheduled during day and night periods.
Property in the vicinity of Ault Field and OLF Coupeville will routinely experience significant
jet aircraft noise. As a result airport noise zones have been identified in the immediate area of
Ault Field and OLF Coupeville. Jet aircraft noise is not, however, confined to the boundaries of
these zones.
Additionally, the noise generated by the single flyover of a military jet may exceed the average
noise level depicted by the airport noise zones and may exceed 100 (one-hundred) dba.
More specific information regarding airport operation and aircraft noise can be obtained by
calling the Community Planning Liaison Office at NAS Whidbey Island and the Island County
Planning and Community Development Department.
(Ord. C-32-92, May 11, 1992, vol. 34, p. 71)

9.44.060

Limitation of Liability

This chapter is not intended to create any class of persons to be benefited or protected nor to
create any reliance relationship :between .Island County and landowners, land purchasers, their
successors, occupants, or users 6:f structures built with or without a building permit, or ariy :other
persons. This chapter is not intended to create any duty running in favor of particular persons.
The obligation to comply with the provisions of this chapter are upon the property owner and
their agents. Acts or omissions to act by Island County, its officials or employees under this
chapter shall not create any liability on the part of Island County or its officials or employees.
(Ord. C-32-92, May 11, 1992, vol. 34, p. 71)

9.44.070

Severability

If any of the provisions of this ordinance or the application thereof to any person or
circumstances is held invalid, such invalidity shall not affect other provisions or applications of
the ordinance which can be given effect with the invalid provision or application, and to this end
the provisions of this ordinance are declared to be severable.
(Ord. C-32-92, May 11, 1992, vol.34, p. 71)

9.44.080

Effective Date of Adoption

This chapter shall be in full force and effect immediately.

(Ord. C-32-92, May 11, 1992, vol. 34, p. 71)

403

1996

.... .-.- -.. - ~------- -- . ..... ... ..

Noise Zone 2

. -J ... ~
;._.,, :_~ ..

Coupeville DLF
;-,...

Noise Zone 2

:-. );

J
.. :; .

-:; :: ~- ~.

.. ..

,. /.f.

Airpor ~. Environs Mo.o

I

Islo.nd Coun ~y
-

IMpo.c i.eci Areo.s

.

.,-

;J."

Istr.nd Ccun-:y ~ t oF Ptann;ng cmd Ccnnun."'ty Develoonen-:

Ne-: 'to sc:11.le.

' 1996

404

A:,rll 9. l~S? .

H iIHIHX3

ISL.A.ND {)()lJNTY,'WASHINGtON
AlR.PORt.AND AiRCRAFT OPERATIONS NOISEDlCL0SURE
GEN$RA.L CQMMENtS:
A. Noise p~,dosut~ ,prdinance,~~

Is~antl i<SQ\lfity :has two ordinances that reauit~ . seUers .: of

property located incertain areas .to maj<e discfosures i:eg(l).'ding noi$e re4tted. to .t:li~rts and
~ctt. Fotm.22W t;Ontainsboth, the discloi;w:esi:eqtiit~ii by thelslati~:co\llltyC<>cle.

The f;tst disclqsure appli_st9 ptopfty .l9c~~~4 wi1P,i ~ '~Airport E;Iiv1fort~ ~pped 4p,p~ptep

area" (lsland County 'Code Section 9.44;05Q)i,and llie second disciosure applies to prQpy
located 1n an '\Airport ,N9jse Zone. Z t>i 3, i:lp~fod tu-ea'' (!land Gonty Q9de, .$ectjcin
. 14.0 l!tlOO}i IfY8tJ bave"q~~$*~ns tegatging ~e:.dlsclosur~ teq~remertts,you shoula contact
the Island County'Planning and Gommunity;Development Department.

A$S1SI~CE FILLING]N THE BLANKS:.Thefo1fowh:ig numbers iefer io :,the : .numbers on

the sample form shown in this Manual.
.
l. iDate of Purchase anif Sale i\greenient,Insert thesame.d~te tha,t:is ij(the fop ofilie fu'stpage
.t:>fthe J>urchase @44 ~ale ,Agte~jijt.
.

2. Buye1\Jnsett the Buyert,11M1e(s) ~ qJ1:tli6 ~i.gqpase a,ijq;Sale AgreeD:l~m.

1 Seller/1nsertthe Sellei;s.1wne(~) ai; Pn the Plll'Qhijse ~d. S~l~ ,A.greernent~
4~ :Property. Insert the.Property acidress as on the Purcli~se.&nd'Sale ,Agr~ernent.
:.,'

?. liliiial~ andfiate. Buyer'(~)and Seller{s) shotila initial aridAiate this Addendwn.

CCopyright 2014
Northwest Multiple Listing Service

Form22W
Island County Noise Disclosure
Rev. 1/14

ALL RIGHTS RESERVED

Page 1 of 1

ISLAND COUNTY, WASHINGTON

AIRPO.RT AND AIRCRAFT OPERATIONS NOISE DISCLOSURE

The following is part of the Purchase and Sale Agreement dated _ _ _ _ _ _ _==1=='--------- 1
between - - - - - - - - - - - - - - - - - - - . . . i . - - - - - - - - - - ("Buyer")
and _ _ _ _ _ _ _ _ _ _ _ _ _ _3=-!_ _ _ _ _ _ _ _ _ _ _ _ _ _("Seller")

concerning _ _ _ _ _____......,.,___ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (the "Property").

Buyer should consult with the Island County Planning and Community Development Department to determine the 5
effect of airport and aircraft noise on the Property.
6
Island County Code Section 9.44.050 Disclosure Statement

The Property may be located within Airport Environs mapped Impacted area. There are currently 5 (five) active airport
facilities In Island County. The Oak Harbor Airpark, the South Whidbey Airpark, and the Camano Airpark are general
aviation facilities and are identified on maps available from the_Island County Planning and Community Development
. Department. Ault Field and OLF Coupeville are tactical military jet aircraft facilities and are also identified on maps
available from the Island County Planning and Community Development Department Both Ault Field and OLF
Coupeville are used for Field Carrier Landing Practice (FCLP) purposes. Practice sessions are routinely scheduled
during day and night periods.

8
9
10
11
12
13
14

Property .in the vicinity of Ault Field and OLF Coupeville will routinely experience significant jet aircraft noise. As a 15
result airport noise zones have been identified in the immediate area of Ault Field and OLF Coupeville. Jet aircraft 16
noise is not, however, confined to the boundaries of these zones.
17
Additionaily, the noise generated by the single flyover of a milita!)' jet may exceed the average noise level depicted by 18
the airport noise zones and may exceed 100 (one-hundred) dba.
19
More specific information regarding airport operation and aircraft noise can be obtained by calling the Community 20
Planning Liaison Office at NAS VVhidbey Island and the Island County Planning and Community Development 21
r1Apartmenl
22
Island County Code Section 14.01B.100 Disclosure Statement

23

The Property may be located within an Airport Noise Zone 2 or 3 impacted area. Persons on the premises may be
exposed to a significant noise level as a result of airport operations. Island County has placed certain restrictions on
construction of property within airport noise zones. Before purchasing or leasing the Property, you should consult the
Island County Noise Level Reduction Ordinance to determine the restrictions which have been placed on the
Property, if any.

24

rn

Initials: BUYER:-------

BUYER: - - - - - - -

Date: _ _ _ __
Date: _ _ _ __

SELLER:-----SELLER: - - - - - -

Date: _ _ _ __
Date: _ _ __

25

26
27
28

.,

::

.. .

..

-EXHIBIT C-

...

~
.
From:

To:
Subject:
Date:

David Wechner
Keith Higman
RE: Misrepresentation by County
Tuesday, October 08, 2013 6:08:06 PM

Check out Ord . C-32-92 - I think the County has already spoken on the noise issue, but real estate
disclosures are not taking place as planned.
David L. Wechner M.S. AICP

Director, Planning and Community Development

Island County
360-679-7339

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