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White v. Vogt

Court of Appeals of Oregon

August 14, 2013

EVAN D. WHITE and PATRICIA A. WHITE, Plaintiffs-Appellants,
v.
JARED VOGT and CRYSTAL VOGT, property owners; and CITY OF SALEM, a municipal corporation, Defendants-Respondents, and KEVIN STONE, Contractor, Defendant.

Submitted on August 21, 2012.

Marion County Circuit Court 08C22773, Don A. Dickey, Judge.

Deryl K. Nielsen and Deryl K. Nielsen, P.C., filed the briefs for appellants.

Daniel A. Hill and Adams, Hill & Hess filed the brief for respondents Jared Vogt and Crystal Vogt.

Kenneth S. Montoya, Assistant City Attorney, filed the brief for respondent City of Salem.

Before Armstrong, Presiding Judge, and Hadlock, Judge, and Brewer, Judge pro tempore.

HADLOCK, J.

Plaintiffs brought this action alleging violations of several provisions of the Salem Revised Code (SRC) stemming from excavation and construction of a home and a retaining wall on property that adjoins and lies downhill from their property. Defendants are Jared and Crystal Vogt, who own the neighboring property, Kevin Stone, the contractor who performed the excavation and construction, and the City of Salem. Plaintiffs asserted claims for declaratory relief, writ of review, writ of mandamus, negligence, and injunctive relief. They alleged that Stone had excavated the Vogts' property in a manner that removed lateral support for plaintiffs' property, leaving it vulnerable to landslides. Plaintiffs also alleged that the city had allowed the excavation and subsequent construction of a home and a retaining wall without properly conducting a landslide hazard analysis and without requiring Stone and the Vogts either to prove that the excavated slope is safe or to build a taller retaining wall and restore the slope to the minimum otherwise allowed by the SRC.

The trial court dismissed the claims against the Vogts and all but the writ of review claim against the city. On that claim, the court granted summary judgment in the city's favor. The court also awarded prevailing-party fees to the Vogts and the city as well as attorney fees to the Vogts. Plaintiffs appeal the limited judgment disposing of the claims against the Vogts and the city and the supplemental judgment awarding defendants their fees.[1] We dismiss the appeal from the supplemental judgment and otherwise affirm.

Before we recite the pertinent facts, an overview of some of the SRC provisions at issue is helpful. Two chapters in the code are pertinent. The first, SRC chapter 65, governs excavation and filling of property. SRC 65.040 generally describes conditions under which an excavation permit is required. SRC 65.050(a), which limits excavation under certain circumstances, provides, in part:

"Except as provided in this subsection and in SRC 65.080, no excavation shall leave a cut slope greater than two horizontal to one vertical.
"EXCEPTION: Excavations may exceed this limitation when they are in conjunction with a building permit and the final grade after backfill will not exceed a 2:1 slope."[2]

Under SRC 65.080, the limitations imposed in SRC 65.050

"may be varied by the director [of public works] if a qualified engineer designs and oversees the prescribed work and provides the director with all supportive data necessary to establish to his satisfaction that the alternative design provides equal or better safety, durability, and protection of ...

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