Whidbey judge silences jet-noise lawsuit against Whidbey real estate companies

A judge threw out a lawsuit against two Whidbey real-estate companies over disclosures related to aircraft noise Friday afternoon.

“We were victorious,” said Eric Mitten, broker and owner with Windermere Real Estate. “The judge ruled that the disclosure was adequate to put buyers on notice that there was aircraft noise.”

Attorneys representing two Coupeville residents, Jonathan Deegan and Alice O’Grady, filed the class action complaint for damages and injunctive relief against Windermere Real Estate and Acorn Properties on Nov. 18, 2014.

The lawsuit argued that the residents were given only one of two noise disclosures related to Navy aircraft noise that are required under Island County code.

Attorneys representing the real estate company filed a motion to dismiss in May. The motion argued, in part, that the defendants committed no unfair or deceptive acts under the state Consumer Protection Act because the disclosure that was provided was enough to alert the homeowners to the noise impacts and that reasonable inspection would have revealed the facts available in the other disclosure statement.

In the end, the judge agreed with the real-estate companies and dismissed the lawsuit. The hearing was heard in Skagit County Superior Court after Island County judges recused themselves.

Under Island County code, the commissioners require real estate agents to present two different disclosure forms to prospective buyers of homes within the “impacted areas” in the vicinity of Whidbey Island Naval Air Station’s Ault Field in Oak Harbor and the Outlying Field near Coupeville.

The lawsuit claimed violation of the state Consumer Protection Act. It asked for class-action status, as well as damages and a requirement that the real estate company provide the correct disclosure.

Real estate companies had been providing buyers with a one-paragraph disclosure, which comes from a 1993 ordinance regarding the sound-proofing of building in noise zones. But a different ordinance, adopted in 1992, includes much more detail for a separate disclosure, including a pronouncement that “noise generated by a single flyover of a military jet may exceed 100 DBA,” the lawsuit states.

The plaintiffs claimed that in recent years aircraft noise had increased with the introduction of the EA-18G Growler and additional practice flights at OLF Coupeville. The lawsuit stated that community members complained to the county commissioners that they were never told about the “extremely loud noise and vibrations.”

“After investigation, Island County’s government discovered that the complaints had merit — real estate sellers and brokers were not giving ICC 9.44.050’s mandatory disclosure,” the lawsuit states.

In December of 2013, the Island County planning director wrote a memorandum to the board of commissioners noting that sellers were not providing buyers with both disclosure statements. In response, the Whidbey Island Association of Realtors took “prompt action to correct its standard disclosure,” according to the motion to dismiss.

By the end of January of 2014, real estate agents started using an updated disclosure form that included language from both ordinances, the defendants’ motion states.