Kelso looks at Seattle slide ruling

By Bonnie Yocum The Daily News

Both sides in the Aldercrest lawsuit against the city of Kelso disagree whether a recent ruling in a Seattle landslide-liability case has any bearing on the Kelso suit.

The Washington State Court of Appeals ruled Sept. 18 that owners of the Lakeview Boulevard homes that slid in January 1997 may sue Seattle for allowing the houses to be built on the precarious site.

Don Law, Kelso's attorney, says the ruling directly affects the Aldercrest case -- and contrary to expectation, it serves in favor of the city.

The Wall Street Journal reported Wednesday that the unanimous ruling in the Seattle case is based on a covenant between the city and developer. The covenant said that any owners of Lakeview Boulevard land waive the "right to assert any claim against the City for any loss ... resulting from soil movement ... "

But the appeals judges said the covenant was a contract between the city and developers, and did not apply to homeowners.

Law and James Solimano, attorney for the group of 148 Aldercrest homeowners suing the city, agree that the Seattle covenant is irrelevant to the Kelso case because no such compact exists for the Aldercrest developments.

But Law pointed out that despite the ruling in favor of the Seattle homeowners, the judges ruled unanimously against another claim the homeowners made: that Seattle should have performed more extensive studies of the land home-builders wanted to develop.

The question of whether Kelso had a similar duty is a major point in the local case. Law said the Seattle ruling "is highly supportive of our situation. In fact, it was really quite comparable."

But Solimano said a tiny difference between the two cases makes all the difference. The specific part of the statute in question for Seattle says that a city's planning director "may" require such tests. Kelso's 1970s municipal code stated that the director "shall" order the tests.

"Because the director has this discretion, we cannot say that he failed to meet his duty," the appeals judges wrote in their opinion.

But, Solimano said Wednesday, when the Aldercrest developments were approved, Kelso's planning director was obligated to order extra geotechnical studies.

"I don't think the new decision helps the city (of Kelso) at all. We're dealing with a statute that says 'shall,' not 'may,' " Solimano said.

Kelso "has always sort of ignored the language of the ordinance under which we're suing."

Law disagreed that the language in Kelso's law actually required a city engineer to conduct geotechnical investigations of the Aldercrest plats.

The city has said it should not be held responsible for the landslides, starting in 1998, that made Aldercrest the second-worst slide disaster in U.S. history.

Cowlitz County Superior Court Judge Don McCulloch decided in early August to allow Aldercrest homeowners, with a few exceptions, to sue the city. But both sides of the suit have asked the State Court of Appeals to hear the case, arguing that McCulloch committed "obvious error" in that hearing.

The appeals court will decide sometime this fall whether it will hear the Aldercrest case. If the higher court rejects the suit, a county Superior Court trial will proceed next year.