Citizens Harmed By Deceptive Disclosure - Trapped, Not Told

At the outlying field (OLF) in Coupeville Washington, 17 miles south of the Naval Air Station Whidbey Island, EA-18 Growler pilots routinely practice carrier landings. Their prescribed flight path takes them 250 feet directly over civilian neighborhoods as they descend to “bounce” less than one mile away.  During practice sessions, the sound is literally deafening, producing a decibel level of 134 dBA , equal to an air raid siren screaming overhead every few minutes.

How could this happen?  The Department of Defense spent tens of thousands of dollars measuring the noise and providing guidelines for disclosure of levels that the Navy deems unhealthy for base living or for flight crews.  The County wrote a law requiring that sellers and their agents disclosure the presence  of the base and specific military jet noise information provided by the Navy to protect both buyers and the base.   But for 22 years, Realtors used a form (copyrighted by NWMLS realtor attorneys), that contained none of the required information, a practice that went unnoticed.

Knowing buyers had signed a noise disclosure, everyone – legislatures, the Navy, and the community – assumed they had willingly chosen a restricted lifestyle and the harmful affects of extreme noise in exchange for a cheaper house. When they protested with lawsuits, trips to the capital, in the media, and to leaders at every government level, the response was “you were told so shut up or move.”  The result was devastation for many families, community conflict, and problems for the Navy.

The myth “they were told” resulted in unprecedented military expansion, community harassment, and persecution by local, state, and national leaders. Those who could moved, but were often replaced by new uninformed buyers.

Everyone won except the unsuspecting buyers. Sales were easier, properties turned faster, prices were higher, more taxes were collected, leaders were free to ignore complaints, and base operations freely expanded.

Finally, in 2014, the Island County Prosecutors Office put realtors on notice to follow the law.  Instead of offering any explanation or apology for their actions, many realtor companies and the MLS continued to blame buyers for the suffering they themselves could have prevented had they followed the law.

For the Executive Summary of the Disclosure Deception, see 2014 Noise Disclosure. You’ll see the current legal disclosure and compare it with the previously used deceptive form.

Currently the Navy strains to use the field as little as possible.  But the Environmental Impact Study has been released, with the Navy giving itself a clean bill of health to provide the training they need for 36 additional aircraft using the OLF to ensure “the best training” for Growler pilots.  The Navy’s Preferred Alternative would increase Growler operations at OLF from 6,250 operations per year to 35,100  The area will sound like a war zone and life for the families living there will be a nightmare.

For a detailed history of the real estate disclosure deception, how it remained a secret for so long, and the resulting harm to Noise Zone buyers, scroll past the numbered items below to the Overview.

These items have been added or updated most recently:

1. Class Action Suit:  See Class Action Summary for information regarding the continuing class action lawsuit against real estate companies for failing to provide any legally required military jet noise disclosure for over 20 years.  The case was dismissed in August 2015, was appealed, and on February 20, 2017, the Court of Appeals reversed the trial court’s decision, and sent the case back to the trial court to proceed to discovery to prove the case.
   • When the case was first dismissed, Eric Mitten, a Windermere Real Estate owner, said “We were victorious.”   He did not say why legally required military jet noise information was not provided, which would have given buyers a clear choice to buy elsewhere and kept the base safe. See 2014 Disclosure for details.
   • The NWMLS reported on their web site that the judge determined that reasonable inspection would have revealed the facts available in a second more detailed disclosure statement.   It is unclear what kind of inspection would have been deemed “reasonable” for buyers who were presented with a disclosure statement copyrighted by the NWMLS.  Why would home buyers go looking for a second  disclosure mentioned as useful for home builders?
   • See Realtors Speak for past comments from Mr. Mitten and others to see the degree to which people in the real estate community take responsibility for this very sad outcome.
2. Flight Path 14:  The Navy has resumed use of Flight Path 14, previously  deemed unsafe for Growler practice.  But since additional Growlers are on their way, all flight paths may be used to capacity.  This will produce unthinkable living conditions along with increased crash risk for both pilots and civilians.  See Crash Zones Hidden for details of Navy deception that is potentially more harmful that deceptive noise disclosure.
3.  The Environmental Impact Study (EIS) has degraded down to deception. The National Environmental Policy Act (NEPA), the law intended to protect communities from over-zealous military activities, required a study of the transition from EA-6B Prowlers to EA-18 Growlers before Growlers were first based at NASWI.  Instead, “No Impact” was determined because the Navy declared that Growlers were quieter than Prowlers and fewer operations would be flown.  Neither turned out to be true.   An independent professional noise study was conducted at key locations around the OLF revealing extreme noise levels creating actual ear pain and a severe health emergency.  It required a court injunction to stop the flights after they exceeded the yearly limit by May of 2013. But the Navy resumed those flights, again in violation of NEPA.  It is clear that the EIS was merely a legal and political maneuver.  The intent was not to study impact; the intent was to justify escalation.  NEPA is no longer a tool for civilian protection.  Controlled by the Navy, it is the ideal smoke screen for a raging war machine and the military-industrial complex that is restrained by nothing.
4. Contact Congress:  Use the new and more targeted Email Directions and List for Congressional Staffers to make contact with decision influencers and ask for investigation and change.  Our local leaders will not act; to do so would spell defeat in their next election.  Too many voters and financial supporters benefit from the current noise abuse.  We must go directly to Congressional Committee Members and inform them of the extreme danger of Growler noise and the Navy’s reckless indifference to civilians
5. COER Action:  In April of 2015, COER again filed a Motion for Preliminary Injunction against navy harm.  See KOMO video coverage at:  http://www.komonews.com/news/local/Group-sues-Navy-over-loud-planes-Its-a-random-assault-in-your-home-301642121.html?mobile=y&clmob=y&c=n  June 5, 2015, COER responded to the Navy. On July 17, 2015, COER held a press conference in front of the Federal Courthouse in Seattle after arguments were presented.

OVERVIEW OF THE DISCLOSURE DECEPTION

Read the following for an overview of the damage done because home buyers were not provided with legally required military jet noise information. 

Disclosure Deception Background

There are two Island County Noise Disclosure Statements required by law since 1992 that realtors and sellers must present, and buyers and renters/lessees of properties in jet noise zones must sign. One is written for builders and the other for buyers and renters/lessees.

In the county ordinance, the stated intent of both disclosure statements is to protect the public health, safety and general welfare by providing for the full disclosure of the noise.  A signature protects realtors and sellers from being sued for non-disclosure.

Families actually live 250 feet directly under Growler jets cycling over every minute or so, hour after hour. It’s like living on an aircraft carrier.  People are subjected to noise that completely disrupts lives in ways that would be unimaginable for anyone who hasn’t lived under a flight path.

Full disclosure helps protect the Navy from predictable complaints and action against the noise which affects base operation.  The 1992 Island County Noise Disclosure was written, in part, because Naval Air Station Whidbey Island (NASWI) was being considered for closure.

It would follow, then, that buyers and renters in the noise zones were, through disclosure, given the information they needed to be able to decide whether or not to buy or rent there.  It would seem their signature on the disclosure form shows they were told, and have no justification for complaints, lawsuits, or other actions. But is that assumption true?

Ironically, the opposite has been true.  Instead of disclosing the legally required military jet noise information, until January of 2014, realtors and escrow agents used a form that did not disclose the presence of a military air base or jet noise at all.

Discovery of the Disclosure Deception

A signature on a disclosure form dated between 1993 until December, 2013 does not show proof of disclosure, because no jet noise information was given.  Many buyers and renters were, in effect, trapped in a home under the jet path because they were not told about the noise. 

In November 2013, the County discovered the deception, and the community was informed of the legal requirements  in a commissioners meeting and in several newspaper articles.  Surprisingly, leaders in the Whidbey Island real estate community made public statements at a commissioners meeting, defending their practice of non-disclosure, even after being told by the Planning Director that it fell far short of the law. They have commented online, as well.

What is the Loss and Who Should Pay?

People who bought over the past 21 years are discovering that listing realtors prevented them from receiving noise information required by law when they bought and that those same realtors will now provide alarming noise information when they sell.  They will realize that the entire market was propped up by lack of noise information for two decades and the entire market will probably go down and they may get thousands of dollars less.  Fortunately, they will have the opportunity to decide whether they should pay the loss, or join a class action law suit to determine what the loss is likely to be and compel the listing realtor companies and/or NWMLS (Northwest Multiple Listing Service) attorneys to pay.

Additional Results of this Deception

Buyers and renters have felt guilty because their decision had such a horrible outcome:

• They thought they must have been warned by the form they signed because it had the words “noise disclosure” at the top;
• Many took responsibility for their confusion, not realizing the form they didn’t understand wasn’t written for them and said nothing about jet noise;
• They were forced to either try to mentally adjust their attitudes toward the noise or go crazy as the planes roared overhead – or pay thousands of dollars and months in time to move; and
• Many became distressed, worn down, and depressed and developed a host of physical and psychological ailments.

One of the worst results of the deception has been that important NASWI decisions about the escalation of noise and the numbers of jets flying have been made, in part, because leaders have assumed that jet noise was disclosed to people living in the noise zones.  Here are a few examples

• The Navy had a copy of the 1992 disclosure, sent it out when asked about disclosure, and thought it was being used routinely by realtors.
• The new County Commissioners assumed the law was being followed and denied it when they were told that realtors were using the wrong form.
• Elected representatives at the state and national level have been unaware that buyers were deceived instead of informed. They may have been willing to sacrifice the health and quality of life of citizens to military and economic interests, in part, because “they were told.”
• The latest escalation of the numbers of jets has been announced.  One hundred and fifty-three jets have been funded, to arrive by 2017, all requiring carrier landing practice at the OLF Coupeville right over civilian neighborhoods.  In response, an Open Letter to the House and Senate Armed Services Committees has been sent to all members, and a 153 Growlers? Move the OLF campaign has been initiated.

The general belief has been that full disclosure was occurring and buyers and lessees should have known what they’d be getting, and if not, the fault was theirs.  So  everyone discounted their complaints and made decisions that affected them based on the assumption that they were told.

Another result of this deception is that “they were told” has become the weapon of choice by OLF supporters, giving some of them confidence to bully their neighbors, despite their suffering. Others have harassed them on the Internet, used derogatory signage on their cars, discriminated against them in social situations, boycotted their Coupeville businesses, and more.

This weapon was used when Pro OLF petition circulators gathered signatures from thousands of people, spreading the lie like a virus (petition 1) (petition 2).

The petitions were then presented to the Navy by community leaders who were among the few people who did know there has been no jet noise disclosure, including Commissioner Jill Johnson, Oak Harbor Chamber President Jason McFadyen who is a realtor, and Oak Harbor Mayor Scott Dudley.  See Petition Deception.

Persecution is defined as “the infliction of harm or suffering by the government, or persons the government is unwilling or unable to control, to overcome a characteristic of the victim.”  Persecution of the victim, noise zone complainers, is rampant on Whidbey Island. This has contributed to an uniquely high noise annoyance level that has severely elevated the health and psychological harm beyond that inflicted by the noise volume levels, alone.

Why didn’t anyone know? 

The noise disclosure was one of the best kept secrets in Island County. No one except the realtors and escrow agents who presented it to buyers and lessees seemed to know what the disclosure said. Many people who signed it at their escrow meeting still don’t know.

The few buyers who may have recognized the deception in the form after they bought were unlikely to point it out.  They would have to use the same disclosure when they sold, or risk losing money and possibly be unable to sell at all. Good people would be tempted to just pass on the problem for another 20 years.

What information is required in the legal disclosure?

The 1992 Island County Noise Disclosure law for buyers/lessees requires the following information:

• 100+ decibel noise levels (terribly out of date now with recent measurement four times louder),
• the description of “tactical military jet aircraft facilities,”
• noise which may extend outside the contours of the map,
• an attached map of the OLF and AULT,
• routine flights, occurring day and night, and
• phone numbers to call to get more specific information through the Navy and the County.

The Realtor Form, used for probably 20 years and originally written for builders, is a four-line statement:

• The description of “tactical military jet aircraft facilities” from the 1992 disclosure was replaced with “significant airport noise” and all other information for buyers/renters was omitted.
• It does include a reference to the Noise Level Reduction Ordinance (found in the Building Code) to determine possible building restrictions, if any.  This section is particularly confusing because it is not intended for buyers or renters who are not building.  It is not provided, and no help for finding it is given.

Compare them both to see the differences and ask yourself, “Why would so much information be omitted?”

Who determines the kind of disclosure realtors use? 

The Northwest Multiple Listing Service (NWMLS) attorneys mandated the use of the very same statement from the builder’s section of the county ordinance in their form for buyers.  They copyrighted the form, despite the fact that the 1992 law was still on the books.  It is hard to imagine the reasoning of either the realtor attorneys or the individual realtors using it, to omit the 1992 disclosure information. At some point in real estate offices island wide, one pile of forms was replaced with another and no realtors spoke out for people who would likely be trapped under jet noise as a result. Professional ethics and sympathy for buyers was not a factor. Concern for liability was not a factor, either.  Most realtors carry insurance for non-disclosure.

Did realtors want to change it? 

Initially, with the exception of a few, realtors did not want to change it. With angry defensiveness, many have said that every realtor fully discloses. Unfortunately, countless lawsuits against realtors demonstrate that is not true. They have said that part of their customer base does not want it changed. They have said they rely on their attorneys to provide them with all of their disclosure forms.

After the public has been informed of the truth, a very different statement was made.  Jason Joiner, government affairs director for the Whidbey Island Association of Realtors, said, when interviewed for the Whidbey New Times article on disclosure:

“It’s the opinion of our association that we want to disclose as much as we possibly can,” and that he believes local Realtors would be in favor of a “stricter, more informational, disclosure.”

For a second article on disclosure, he was unavailable for comment.

A class action lawsuit was filed.  Read the notice, the Press Release, and the reaction of the initial defendants named in the suit.

What kind of determination will be made in the courts regarding NWMLS  attorneys who produced a form that seems to disregard county law to disclose information that buyers needed?  What kind of determination might a court of law make regarding real estate offices that used it?

What kind of judgment might the general public make of professionals who, individually and as a group, ended up trapping buyers under terrible jet noise instead of fully disclosing it?  What decisions might be made based on the fact that the disclosure violates the intent of the law to protect citizens, that it was written for builders, and found in the builders section of the county ordinance?

The result of not using the 1992 disclosure has been devastating in three ways:

• First, and most importantly, citizens were deprived of the opportunity to weigh noise as a factor in their home purchase or rental choice. Houses under the jet path are less expensive than comparable homes elsewhere.  They might be on Ebey’s Reserve, near the beautiful town of Coupeville, or have a view.  Sellers are more motivated so terms are better.  Buyers think they have found a “good deal” and are anxious to move on it. They are an easy sell for realtors compared to other properties. Many people, especially those coming here to retire, know nothing of the jets.  A drive by view of the OLF would be of no help, either. No runway, military looking buildings or signage, and no jets unless they happen to be flying. They unknowingly buy homes with jet noise and community harassment instead of one where life could be normal.
• Second, the 1992 Noise Disclosure is the law, and realtors now use it.  Property values are likely to tank for all buyers, because the new disclosure will adversely affect every seller, regardless of whether they did or did not know about the noise when they bought, and regardless of what their realtor did or did not do to personally tell them about the noise.
• Third, because everyone has assumed “they were told” is true, including the Navy and the County Commissioners who in December discovered that realtors use the wrong form, people in noise zones have been ignored and persecuted. Jets became louder and flew more. Promises were not kept. Misinformation abounds. People are harassed by neighbors, hatefully and gleefully. This lie kills compassion and fuels much of the mean-spirited battle over the OLF. Because it is so ingrained and creates a righteous, party-like atmosphere, many will probably never give up the taunt “you were told so shut up or move,” even when they learn the truth. County Commissioners and Oak Harbor City Council members openly display disregard for complaints about the worst noise imaginable by wearing I Love Jet Noise T-shirts to Commissioner/City Council Meetings and writing County Resolutions supporting the Navy to show exactly where they stand, regardless of the suffering.  At the EIS Scoping Meeting, Commissioner Jill Johnson presented petitions with a statement that included the lie at the top.  She knew the truth, but insisted on being a part of the formal presentation. She clutched them to her chest and refused to let anyone see the statement before presenting them to the Navy. The use of persecution is tempting because of the benefits it provides – votes, money, power, popularity, security, and more. The pain of people living under Growler jets would be harder to ignore without the lie to justify this grossly cruel behavior. As COER (Citizens of Ebey’s Reserve) increases the documentation of the adverse affects of Growler jet noise, the lie becomes more and more important. It would be much more difficult to dismiss the staggering amount of documentation of physical and psychological harm without discrediting the people who are hurting.

The Navy, the County, and the City of Oak Harbor are complicit in realtors using the noise disclosure for builders from 1993 to January 2014. 

The Minutes of the August 12, 2002 Island County Commissioners Meeting shows Navy Liaison, Rich Melass, “supporting and recommending” the ordinance that contained the disclosure statement in use until January, 2014.

Commissioners Mike Shelton, Mac McDowell, and William Thorn adopted the Ordinance (see meeting minutes above) containing the disclosure for builders that was in stark contrast to the 1992 disclosure. The County should explain why, after participating on a Task Force that noted the importance of a strong disclosure as a step to stop a BRAC in their 1993 BRAC Report, the important information in the disclosure was eliminated for builders and two separate disclosures were left to create confusion.

The County has been collecting taxes for the last 22 years based on inflated values on sales resulting from non-disclosure. After the Navy changed their flight paths over the past years, at least one owner has appealed her tax bill because Growlers now fly directly over her home which she has been unable to sell.  It was denied. The attitude and comments made at the meeting were unprofessional and mean.  See County Taxes for more.

Since the deception has been revealed, no local official has voiced any concern that the Navy is flying Growler jets over a community where there has been no disclosure at all since 1993.

The Damage Can’t Be Undone

Listing realtors will now follow the law, but past buyers will pay the price.  All buyers who were misled about jet noise will now have to disclose it to future buyers and lessees. Future buyers will be alarmed by the noise disclosure and do further Internet noise research.  They will find the Lilly report, revealing that the100+ decibel level included in the disclosure can actually be as much as 134 decibels (in bursts).  And they will find documentation of the seriously detrimental effects of the noise.  They will find noise volume information and charts which will reveal painful, illegal, roaring noise where few people will want to live.

At some point the NWMSL forms committee might decide to follow the law and attach a map.  That will halt many sales, especially for properties that are directly under the jets.

The 22 year gap in disclosure is the legacy of the actions of a few people who used their leadership roles to disrupt what had been a normal, visible view of property value.  Because it has now been masked for so long and the jets have become so loud, the market will drop, and may never fully recover. The lives of many people who have been forced to live with the jets will never recover, either, a loss each would have to pursue independently.

Will people joining the class action suit against realtors be acting against the Navy? 

You may have known about the jets before you bought, fully support the Navy, accept or even love the jet noise, and yet be unwilling to pay the price of a drop in property values because realtors failed to use the required disclosure. Part of the suit will include a thorough assessment completed by experts of exactly how much the drop in value of your property is likely to be. Paying this loss yourself instead of real estate companies (or their insurance companies, or the NWMLS, or other entities that may be liable) will not help the Navy.  Realtors have already tried to frame litigation in this way for obvious reasons. See realtor quotes on the class action.

If legal disclosure had been consistently provided, most of the complainers would not be living in the noise zones because they would have bought somewhere else.  Imagine this community without the noise controversy.  That’s what the Navy wants and needs.

What can you do?

You can’t undo the harm of an uninformed decision because the law was not followed.  But you can do a lot to ensure the Navy follows the National Environmental Protection Act guidelines before dramatically increasing the number of Growlers that fly. Go to the 36 More Growlers? Move the OLF page for more and the Contact Congress page for instructions on how to make contact with people who can ensure the right thing is done.  Our local leaders have no stake in our protection.

You can also share this information with other people living in the noise zones in both Coupeville and Oak Harbor.  Share the Press Release so that they have complete information, including the details in the Complaint.  Copy this URL    https://disclosuredeception.wordpress.com/class-action-filed/press-release-2/   and paste it into emails for people who should know.

Share your story on this site and ask others to tell their story.  Your stories may or may not include names, but each story makes a huge difference. Read a few of them to understand what they’ve been through, then add  your own.

Go to the Citizens of the Ebey’s Reserve page for further action.

What we bought; what we got. 

A mental picture is worth a thousand words.  Remember what you thought you were getting when you bought your home.  You may have imagined you could play at the beach, bike ride, hike, and, in general, enjoy a normal life. See it in your minds eye.  Next, remember when you discovered what life under the jets really was, and realized what you could expect for your future.      Click to enlarge.

Deprived of the opportunity to accurately weigh options

Remember the options you considered when you bought your home.  Remember the factors you considered when making your decision. If you had not been deprived of noise information, would you have made the same decision?   Click to enlarge.

What will you do now?

You are not to blame for the decision you made.  You should have been told, but you were not. Where you live is one of the most important decisions you make – it affects your health and quality of life for you and for your family. Remember, you were trapped, not told.  It is time to take Action.