STATEMENT OF FACTS
Plaintiffs became aware in the summer of 2012, that the Tinas Coma’s subdivision was constructed on the site of a former asbestos/talc mining operation called Asbestos-Talc Products of Washington, Inc. Plaintiffs also learned that asbestos is a naturally occurring mineral on Burlington Hill, where Tinas Coma is, and that over the years there have been radical artificial changes to the topography of the hill, involving the movement of massive volumes of rock and dirt back and forth within the subdivision. The movement of that earth and rock, came from certain acts undertaken by the City and the developer, but also by individual lot owners who have altered the natural terrain to build houses.
As Mayor Sexton stated in his November 18, 2013 Declaration; as follows:
“Once I learned more about the potential asbestos on Burlington Hill, I became concerned. Although I am not a health professional, I am aware that asbestos can be hazardous to human health.”
It is a known fact, that the disturbance of earth materials containing asbestos or talc creates a risk that microscopic, invisible asbestos/talc fibers will be inadvertently released into the air, and that human ingestion of such fibers can cause severe illness and death.
Plaintiffs are cognizant to the length of time that their family, and others, were exposed to the asbestos/talc from the Tinas Coma development, and the latency period that follows exposure. Plaintiffs and their family, and others, have been forced to mentally prepare for the possibility of severe illness such as pleural mesothelioma associated with non-Hodgkin's lymphoma, immunologic abnormalities, cancer or early death. To this day, no testing of the asbestos/talc materials has been performed by either Defendant.
The following facts below, will clearly articulate the City of Burlington’s Planner Margaret Fleek's reckless actions and grand compromise that was established during the 1997 and 1998 annexation process and the 1999 SEPA application of the Burlington Hill Tinas Coma’s subdivision.
The information Plaintiffs have obtained indicates that the City had information available that there was a potential asbestos/talc exposure issue on Burlington Hill when it approved the subdivision in 1999-2000, and when it made significant road repairs in 2006-2008. The City became specifically aware of the problem in October 2012, when it was openly disclosed to City officials during a deposition with the City Planner.
Therefore, in Plaintiffs case, the evidence obtained to date, supports the overwhelming record of facts which has always been available to the City regarding Burlington hill’s historic asbestos/talc quarry, therefore, contradicting the City’s counterclaim arguments against the Plaintiffs.
As Jill Smith City attorney articulated in her March 3, 2015 Declaration; as follows:
“As to the remainder of the Response, the City has never denied that there were documents in existence, buried in archives of public records, which discuss the historical presence of asbestos-related material on Burlington Hill. A jury may find that the City is charged with "record notice" of those facts…”
Additionally, Ms. Smith stated at a hearing on October 29, 2015; as follows:
“And…dives right into construction in that asbestos laden zone. The City has witnesses and photos that they didn't take any precautions regarding asbestos. No one wore a mask. No one is up there in a respirator. It's going to be an issue in the…case.”
At trial the jurors will be privy to the City’s counterclaim declarations stating their fears and concerns about the long-term dangers and risks of asbestos/talc exposure, and the potential long-term liability. See City attorney Jill Smith's asbestos related Declaration's below.
Additionally, the jurors will also be given the City’s declarations that purports to blame the Plaintiffs for contributing to the disturbance of the natural occurring asbestos/talc, by the Plaintiffs permitted building activities, which the City has stated in their declarations that exposure to asbestos/talc, may have long-term human risks, of course blaming the Plaintiffs argument will also fail.
In the summer of 2014, there was a Homeowner's Association Meeting. A guest at the meeting was City Administrator Mr. Harrison, apparently to address, at least in part, the asbestos issue. Mr. Harrison spoke to the group and said that his understanding was that there was not really any problem. Mr. Harrison was specifically asked if the City was planning on doing any testing to determine the risk that might exist. He said no, not at the present time. It was suggested that some testing funded by the City might be appropriate and he said he thought that might be a good idea and encouraged the families, as a group, to perhaps talk to the mayor about having the City do that.
The City's counterclaim is that asbestos exposure was caused by Plaintiffs construction activities within the Tinas Coma development. In those allegations the City specifically stated that Plaintiffs did not take any precautionary measures to ensure that asbestos would not be released during the construction activities, such that others around the site, including workers, would be exposed. Plaintiffs believe if that were true then it must be true now.
Most notably, the City bases its counterclaim entirely on one lot cherry-picked from Plaintiff’s Tinas Coma portfolio. This one lot forms the core of the City’s counterclaim and provides the basis for all the damages sought by the City. Yet, the City fails to identify even a single disturbance of asbestos by Plaintiffs. The City’s Declarations on these issues are extremely conflicting, and Plaintiffs believe it is only prudent that this Court enter some form of order which precludes or suspends building permits until the City verifies safety in the meantime. Plaintiffs feel especially strongly about this as it was the City in the first place that authorized this development when it should have known that Asbestos Talc Products of Washington, Inc. used to operate here. The least the City can do now is make sure there is no danger to residents. Plaintiffs believe the City's reluctance in this matter is because it allowed the subdivision to be built here.
What Jill Smith City attorney stated at a Hearing on August 17, 2018, regarding evidence that will be introduced at trial; as follows:
“When we go to trial in this matter, the issues at the core is that somebody disturbed the earth on Burlington Hill in the process of building the Tinas Coma’s subdivision, and there are at least three parties who disturbed the earth there, Property Investors being one, they built the roads, built the subdivision, put in all the infrastructure, the City being two, we rebuilt roads when the roads failed there in 2007-2008, three, Plaintiff Welch, who built homes on the hill and distributed dirt in the process of excavation for foundations.” So, when this comes to trial, and the issue is, “Who allegedly caused asbestos-related stigma damage to the plaintiffs?” there’s gonna be three lines on the jury verdict form, one for each person who potentially disturbed the earth up there. So, the City will need a line for Property Investors, whether they are a party, a non-party, but, they are one of the potentials at-fault “dirt-movers”, if you will."
1) Did Mr. Madlung [the developer] obtain a Forest Practices Permit prior to harvesting, clearing, blasting and constructing the roads on Burlington Hill. Short Answer: No.
2) Was Defendant City of Burlington aware of the illegal Forest Practices activities being conducted on Burlington Hill. Short Answer: Yes.
3) Did Mr. Madlung [the developer] build any of the existing roads on Burlington Hill. Short Answer: No.
4) Did Mr. Madlung [the developer] build any logging roads that would eventually become the public streets in the subdivision. Short Answer: No.
5) Did Mr. Madlung [the developer] build any of the public streets in the subdivision over any portion of the existing roads. Short Answer: Yes.
6) Were any of the existing roads near, or in close proximity to the Hillcrest Drive road failures. Short Answer: No.
7) Did the City of Burlington or Mr. Madlung [the developer] ever contact AGRA Earth and Environmental to oversee the 1999 construction of the public streets in the subdivision. Short Answer: No.
8) Was the Hillcrest Drive road constructed before the December 10, 1998 Annexation. Short Answer: No.
9) Were the Hillcrest Drive road failure locations constructed after the December 10, 1998 Annexation. Short Answer: Yes.
10) Was the City of Burlington aware of the fact, that Mr. Madlung [the developer] failed to construct the Hillcrest Drive roads to the 1998 WSDOT road building standards as per the approved plans. Short Answer: Yes.
11) In the June 15, 2006 Zipper Zemen and Associates Final Report, did the engineers conclude that the causation of the Hillcrest Drive road failures was: (1) an over-steepened slope fill condition that was placed over the original, very steeply sloping ground surface, that is not internally stable, and (2) the original ground was not terraced on the sides of the existing embankments; transitioning from cuts to fills. Short Answer: Yes.
To determine whether the City of Burlington’s conduct constituted the Tort of “Outrageous Conduct;" whether the evidence produced by the Plaintiffs could, under Washington law, justify a finding of “outrageous conduct” that is, the intentional infliction of emotional distress, or reckless infliction of emotional distress.
In response to the question above, the United States Court of Appeals for the Ninth Circuit, held in a tort case of “outrageous conduct,” the plaintiffs had demonstrated facts sufficient to justify a jury in finding a deliberate intention. Further, to the extent they alleged that such deliberate intention to injure was outrageous conduct, it was sufficient to reach the trier of fact.
Therefore, all the facts as stated above, along with the PDF documents below, points to the inescapable conclusion that the City of Burlington’s Planner Margaret Fleek’s reckless actions were so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Finally, the Court may have been correct in stating that in 1916 everyone “agreed that the blood of the workman was a cost of production,” that statement no longer reflects the public policy or the laws of Washington today.
The following PDF’s below will conclude that both the City and Developer were aware of the possibility of the roads failing years before the actual construction took place. See all permits, engineering, or lack thereof.