Class Action Summary

Class Action

Class action lawsuits allow a group of people to collectively seek remedies when laws are broken.

The military has carefully studied noise complaints.  They are predictable and they can cause problems for a base, including closure.  People complain when they are dumped with the expectation of providing their homes as an extension of a jet runway, where jets fly as low as 250 feet overhead practicing carrier landings.

The Department of Defense (DoD) developed guidelines for noise disclosure.   In 1993, Island County followed those guidelines to produce a noise disclosure intended to fully inform buyers of the roaring soundtrack they could expect if they purchased a home in the noise zones.  The goal was to prevent problems for buyers and the base, including the risk of closure.

Unimaginably, realtors failed to provide the disclosure.   When people realized the long-term life disruption and the health risks, they were devastated.  In 2013, they were enraged to learned they were denied legally required information that would have prevented their misfortune.

The Navy suffered harm.  The protests that should have been prevented have interfered with the Navy’s mission to defend our nation.  An Environmental Impact Statement was launched as a result of a lawsuit, training was dramatically interrupted, the capacity of the AULT was strained, and unplanned fuel and other costs were incurred.

Buyers suffered harm.  Imagine the terror of buyers trapped under that kind of roar. Their health and well-being has been severely impacted.   Because of the lie “they were told so they should shut up or move,” noise zone residents have also suffered community harassment and, more importantly, have been given no consideration in decisions related to unprecedented base expansion.

Many paid the costs to stage and sell their home, pay two mortgages, move their belongings, rearrange the needs of their family, delay leisure, and endure fatigue and illness.  There are few things in life as stressful as a move.

There is no legal relief for the above pain and suffering without expensive individual lawsuits. But one loss is shared by all, providing the opportunity for class representation and some small relief.  When these people sell their homes, they will lose an important part of their net worth because the full disclosure now required will likely decrease the value of their homes.

The class action remedy is simple.  Realtor companies failed to provide their brokers and agents with disclosure forms that included legally required information. NWMLS attorneys supplied the forms.  Home buyers should not pay the loss they might incur as a result.

For specific information, see:

  1. Class Action Filed
  2. Dismissal Summary from NWMLS web site
  3. Appeal Filed
  4. Defendants Respond to Appeal
  5. February 20, 2017   Ruling of court:   We conclude the trial court erred in dismissing the CPA claim under CR12(b)(6).  Additionally, because Deegan’s complaint does not resolve when he knew or reasonably should have known the basis for his cause of action, the trial court erred when it concluded his claim is barred by the statute of limitations.  Therefore, we reverse and remand for further proceedings. (the case will continue)

    Further information contained in the February 20, 2017 court ruling:

    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.  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 chapter 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.[2]

    The ICC 9.44.050 disclosure statement provides:

    No person shall sell, lease, or offer for sale or lease any property within an airport environs mapped area[ ] 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 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 DBA.[3]

    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.141

    ICC 9.44.060 states, “The obligation to comply with the provisions of this chapter [is] upon the property owner and their agents.” In 1993, the County Board passed a second ordinance, the Noise Level Reduction Ordinance (NLRO).5 The NLRO is part of the building code and contains noise abatement requirements that apply to any new construction in the affected areas. The NLRO also includes a map with two noise zones. The NLRO disclosure warns potential builders about construction restrictions and requirements in the zoned areas. The NLRO’s disclosure statement, ICC 14.01B 100, provides: 

    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: 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 Island County Noise Level Reduction Ordinance to determine the restrictions which have been placed on the subject property, if any.

    In 2005, the Navy began phasing out EA-6B Prowler jets, replacing them with the EA-18G Growler. “Over the following several years,” community complaints about the jet noise increased.6 Most complaints cited the increase in the frequency of flights, late night and early morning flights, and the increased noise from low flying Growlers.

    Island County Ordinance PLG-054-93 (October 11, 1993) (effective January 14, 1994). Amendments in 2002 did not alter the required disclosures.

    A citizen’s group commissioned a 2013 auditory study. According to Deegan and O’Grady, the noise levels “exceed the levels at which significant adverse health effects have been reported in the scientific literature.”7

    David Wechner, the Island County Director of Planning and Community Development, investigated and sent a memorandum to the County Board on December 17, 2013. Wechner noted that frequently-used Form 22W8 did not include the language required by ICC 9.44.050. Form 22W also did not include the airport environs map showing locations of the aircraft facilities and the impacted areas.°

    When Deegan and O’Grady purchased their homes, they received Form 22W containing “a generic airport notice indicating a significant noise level as a result of airport operations,” but not the more extensive disclosures required by ICC 9.44.050.10

    On November 14, 2014, Deegan and O’Grady sued the listing agents, alleging their failure to disclose material facts violated Washington’s CPA.11 Deegan and O’Grady specifically alleged the omitted information would have impacted their decision to purchase their homes and their obligation to disclose in any future sale would reduce their proceeds.

    The listing agents moved to dismiss under CR 12(b)(6). The trial court granted that motion and concluded the statute of limitations barred Deegan’s claim.  Deegan and O’Grady appeal.

    ANALYSIS

    We review a CR 12(b)(6) dismissal de novo.12 CR 12(b)(6) dismissal is proper where “it appears beyond doubt that the plaintiff can prove no set of facts, consistent with the complaint, which would entitle the plaintiff to relief.'”13 “We regard the plaintiff’s allegations in the complaint as true and consider hypothetical facts outside the record.”14 “Any hypothetical situation conceivably raised by the complaint defeats a CR 12(b)(6) motion if it is legally sufficient to support plaintiffs claim.”15 Because de novo review is based on the complaint and hypothetical facts, findings of fact by the trial court are superfluous.16

    CPA Claim

    Deegan and O’Grady contend their complaint states a viable CPA claim. The CPA was adopted to protect the public from unfair or deceptive acts or practices in trade or commerce and is to be liberally construed.17 The CPA significantly differs from traditional common law standards of fraud and misrepresentation. It “replaces the now largely discarded standard of caveat emptor with a standard of fair and honest dealing.”18

    To prevail on a CPA claim, a plaintiff must show that the defendant engaged in an unfair or deceptive act or practice that occurred in trade or commerce, that affected the public interest, injured the plaintiff’s business or property, and that there’s a causal link between the unfair or deceptive act and the injury suffered.18 “An unfair or deceptive act or practice need not be intended to deceive—it need only have ‘the capacity to deceive a substantial portion of the public.'”20 A “knowing failure to reveal something of material importance is ‘deceptive’ within the CPA.”21

    Causation under the CPA is a factual question to be decided by the trier of fact.22 “[W]here a defendant has engaged in an unfair or deceptive act or practice, and there has been an affirmative misrepresentation of fact, our case law establishes that there must be some demonstration of a causal link between the misrepresentation and the plaintiffs injury.”23 The plaintiff must establish that, but for the defendant’s affirmative misrepresentation, the plaintiff would not have suffered an injury.24 Reliance is one way to establish this causal link.25

    Finally, the listing agents do not offer compelling authority to support their other arguments. The alleged omission of material information as required by ICC 9.44.050 has the capacity to deceive.

    Therefore, viewing the alleged omissions of material fact and consistent hypothetical facts, the complaint adequately alleges an unfair or deceptive act or practice, in trade or commerce, affecting public interest. The listing agents do not establish a duty of inquiry. And, in view of the rebuttable presumption of reliance applicable to an omission of material fact, there are adequate allegations that the omissions caused Deegan and O’Grady harm. The trial court erred in dismissing Deegan and O’Grady’s CPA claims under CR 12(b)(6).566 . . .we reverse and remand for further proceedings.

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