Code Enforcement Handbook For Municipalities

//Code Enforcement Handbook For Municipalities

Code Enforcement Handbook For Municipalities

  1. Authority to Enforce the Code.

General.  The Washington Constitution provides that:  “

[a]ny city, county, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.”[1]

 Zoning.  Cities and towns in Washington have long been required to adopt comprehensive plans which serve the public interest by anticipating and influencing the orderly and coordinated development of land and building uses.[2]  Zoning ordinances implement and give effect to the comprehensive plan by dividing the city into appropriate zones within which specific standards regulate the use, density, location, height, bulk, number of stories, size of buildings and structures, setbacks, parking, etc.[3]  These regulations ensure compatibility of uses and buildings within zones, predictability of impacts associated with the use and appropriate location of infrastructure and utilities, all of which is desirable to the public.  To be constitutionally valid, a zoning regulation must provide a legitimate public benefit without being unduly burdensome on the individual property owner, and the adoption process must meet due process standards.[4]

In 1990, the Growth Management Act was adopted to address the “uncoordinated growth” and “lack of common goals expressing the public’s interest in the conservation and wise use of our lands” which poses a “threat to the environment, sustainable economic development and the health, safety and high quality of life enjoyed by the residents of Washington.”[5]  Highly structured comprehensive land use planning was mandated for certain municipalities, with citizen participation and cooperation in the planning process identified as one major goal to guide the development and adoption of such plans.[6]

In 1995, certain municipalities were also required to adopt ordinances establishing an integrated and consolidated permit project process, to be included in their development regulations.[7]  Notice to the public of the receipt of project permit applications is integral to this process, which notice includes substantial detail on the application, decisions made on the application to date, environmental information, statements of preliminary determinations on the application, as well as the date, time, place and type of hearing on the application.[8]  All of these procedures are calculated to provide notice to the public of the pending development application at the earliest possible stage.  Usually, the municipality also allows at least one administrative appeal of the project permit application, which provides additional public input in the decision-making process.

Drafting enforceable development regulations and permit conditions is beyond the scope of this article.  There are a number of tests that the courts apply to determine whether a code provision is valid and enforceable.  For example, (a) there must be a public problem or evil that the regulation will address; (b) the regulation must tend to solve the problem; and (c) the regulation must not be unduly oppressive upon the person regulated.[9]  The tests may differ depending on whether the penalties to be imposed are criminal or civil.[10]  In addition, the Washington courts have held that “[a]n ordinance is unconstitutionally vague if it does not provide fair warning and nondiscriminatory enforcement.”[11] “An ordinance is void for vagueness if persons of common intelligence must necessarily guess at its meaning and differ as to its application.”[12]  There are also constitutional provisions and state laws which impose limitations on development regulations and permit conditions.[13]

In sum, every town and city must adopt a comprehensive plan, even those not planning under the Growth Management Act.[14]  Every town and city must adopt an official zoning map and development regulations.[15]  The development regulations adopted by every town and city in Washington, must be consistent with the comprehensive plan.[16]  State law requires that “[e]ach local government shall adopt procedures to monitor and enforce permit decisions and conditions.”[17]

Subdivisions.  All subdivisions (division or redivision of land into 5 or more lots, except where a municipality has defined a short plat as a division or redivision of up to 9 lots)[18] must comply with the State Subdivision Act (chapter 58.17 RCW).[19]  Short plats must comply with the provisions of local regulations.[20]  Municipalities may adopt binding site plan ordinances as an alternative to the procedures in the Act.[21]

Enforcement procedures in the State Subdivision Act (chapter 58.17 RCW), set the penalty for violation of any provision of the Act or a local subdivision ordinance as criminal (gross misdemeanor).  There are other means of enforcement in chapter 58.17 RCW, such as the municipality’s ability to require bonds (RCW 58.17.130) and the refusal to issue development permits when land has been divided in violation of the Act (RCW 58.17.210).

Building.  The State Building Code (which includes the International Building Code, the International Residential Code, the International Mechanical Code, The International Fire Code, and the Uniform Plumbing Code[22]) is in effect in all cities and counties in Washington (and is updated on a regular basis).  In order to enforce these codes and impose penalties, local jurisdictions must adopt them by ordinance.[23] These ordinances should include detailed procedures describing the code enforcement process[24] because the penalties and procedures for enforcement in the International Codes are either missing or presented only in summary fashion.

FireSee, RCW 19.27.110.

Removal of vegetation overhanging sidewalks and streets.  RCW 35.21.310.

Unfit Dwellings, Buildings and Structures.  Chapter 35.80 RCW.

Nuisance.  Chapter 7.48 RCW.  Public nuisances are listed in RCW 7.48.140.  Beyond this list, a city has the authority to “declare what shall be a nuisance, and to abate the same and to impose fines upon parties who may create, continue or suffer nuisances to exist.”[25]

Junk Vehicles.  Any ordinance adopted by a municipality on the subject of unauthorized, abandoned or impounded vehicles must include the provisions of chapter 46.55 RCW and RCW 46.55.240.

2. Are Municipalities Required to Enforce the Code?

If cities were required to enforce all codes all of the time, cities would have money, time or personnel devoted to little else.  As a court outside Washington remarked:  “The Constitution does not require states to enforce their laws (or cities their ordinances) with Prussian thoroughness as the price of being allowed to enforce them at all.  Otherwise, few speeders would have to pay traffic tickets.”[26]

Subdivisions.  With regard to subdivisions, if land within a subdivision granted final approval is used in a manner or for a purpose which violates chapter 58.17 RCW (the State Subdivision Act) or any provision of the locally adopted subdivision code, or any condition of plat approval, and the municipality fails to act, the county prosecuting attorney or attorney general may commence an action “to restrain and enjoin each use and compel compliance” with state law, the local ordinance or the plat condition(s).[27]

Building.  While state law provides that “the state building code required by this chapter shall be enforced by the counties and cities,”[28] the Washington courts have held that in general, municipalities do not have a duty to enforce the building code.[29]  The duty to ensure compliance with the code “rests with individual permit applicants, builders and developers.”[30]

Enforcement codes drafted by cities should state that the Community Development Director (or other director and/or designee) is given the responsibility to enforce the code, not the duty to enforce the code.  This allows the Director the discretion to determine whether an enforcement action should be undertaken.  Some of the factors the Director should consider when making this determination are:  (1) has an actual duty to enforce arisen or is it possible that it may arise (see Duty to Enforce the Code below); (2) is there is a health and safety issue that must be addressed; (3) is the alleged violation serious enough to warrant action; (4) does the municipality have sufficient time and resources to allocate to the enforcement action; and (5) should local considerations weigh in favor or against enforcement (for example, the municipality may not be interested in enforcing a particular code because it has future plans to adopt a code amendment that would legalize the current violation).

Sometimes, a person may sue the municipality, demanding that it enforce the code against a neighbor.  These actions are usually unsuccessful, because code enforcement is discretionary in most cases.[31]  Neighbors have also filed lawsuits against municipalities demanding revocation of issued permits.  Some of these have been rejected by the Washington courts based on a failure to timely file an appeal of the permit within a very short appeal period (21 days after issuance of the decision) under the Land Use Petition Act.[32]  Courts will reject untimely challenges to land use decisions even where the decision is allegedly void.[33]

In one case, a neighbor was so insistent and rude in his communications with a city code enforcement officer over a two year period that the officer was required to obtain a temporary order of protection from harassment against the neighbor.[34] In his calls to the city enforcement officer, the neighbor screamed, used threatening language, used obscenities and called the officer names.  Once the order issued, the neighbor argued that it should be dismissed because his complaints to the city were constitutionally-protected activities.  The court disagreed, finding that “harassment is not protected speech.”[35]

3. Duty to Enforce the Code.

If there is an actual duty to enforce the code, the municipality may be liable in tort for failure to take the necessary enforcement action.  A duty to enforce the code may arise under certain limited circumstances, as discussed below.  Some statutes or ordinances actually create a mandatory duty to take specific action to correct the violation.[36]  No duty is created by a particular statute or ordinance if the same vests the public official with broad discretion.[37]

The municipality’s duty to an individual to enforce the code is usually addressed by the courts in lawsuits brought against the municipality for negligence.  “In order to recover in negligence against a municipal government, [the plaintiff] must prove all elements of the tort, including an existence of duty owed to him, breach of that duty, causation and damages.”[38]  “Whether a duty exists is a question of law.”[39]

However, immunity from liability in the negligence action may exist under the public duty doctrine, which “serves as a focusing tool for determining the scope of the duty owed.”[40]  Under this doctrine, no liability may be imposed for a public official’s negligent conduct unless it is shown that “the duty breached was owed to the injured person as an individual, and was not merely the breach of an obligation owed to the public in general (i.e., a duty to all is a duty to no one).”[41]  Said another way, municipal ordinances impose a duty upon municipal officials which is owed to the public as a whole, so that a duty enforceable in tort is not owed to any particular individual.[42]

There are four “exceptions” to the immunity afforded by the public duty doctrine.  If there are facts to support the existence of any of these exceptions in a particular case, a court may impose liability on the municipality.

–           Failure to Enforce.  This exception recognizes that a general duty of care that is owed to the public can be owed to an individual where:

[1] government agents responsible for enforcing statutory requirements [2] possess actual knowledge of a statutory violation, fail to take corrective action despite a statutory duty to do so, and [3] the plaintiff is within the class the statute is intended to protect.[43]

“Knowledge [of the inherently dangerous condition] does not include what an official might have known if he had performed his duties more effectively or vigilantly.”[44]   It is often difficult to supply direct evidence of actual knowledge.  In one particularly tragic case, the court was required to make the determination whether the county building inspector had knowledge of a violation after he passed away.[45]

In this case, a contractor hired to install a liquid propane furnace in the basement of a home called the county to request an inspection of the site and to advise him whether the proposed installation would conform to the code requirements.[46]  The county’s inspector performed the inspection of the site and approved the proposed installation – although the Uniform Mechanical Code in effect at the time prohibited the installation of propane furnaces in basements.  Later, the home was leased to a man who was severely injured in an explosion, which occurred when he tried to light the furnace.  In the subsequent lawsuit, the issue of fact – whether the inspector actually knew that the installation violated the code – raised a genuine issue of fact that had to be resolved before liability could be imposed.[47]

In another case, Campbell v. City of Bellevue,[48] a dead raccoon was observed in a creek, and when a neighbor attempted to remove the raccoon, she received an electrical shock.  A property owner had installed flood lights in the creek, which were hooked up to switches and a circuit breaker in his garage.  Apparently, the wiring had deteriorated, causing the problem.

A complaint was made to the city, and an inspector later visited the property to inspect the outdoor wiring.  The inspector discovered the deteriorated wiring and affixed a red tag to the front door of the house, advising that the wiring running through the creek was unsafe and that the situation had to be corrected immediately or service would be disconnected.  The inspector also called the caretaker, who assured the inspector that the outdoor wiring would be disconnected and not used until it was properly installed and inspected.  Nothing further was done by the inspector to follow up on the violation.

The caretaker switched off the circuit breaker and put red tape over the switches as a reminder not to turn them on.  However, he later switched them in order to open the garage door.  At the same time, a 6 year old boy was playing in the creek and received a paralyzing electrical shock.  His mother attempted to rescue him, but she also received a shock and fell into the stream.  The boy survived, but his mother did not.

In a subsequent lawsuit brought against the City for negligence, the court noted that the language of the code created a duty which required that the inspector disconnect the lighting system until it was brought into compliance.  The inspector’s failure to enforce the code under these circumstances resulted in municipal liability because the woman who was killed was within the class of persons that the code was intended to protect.[49]

No liability was imposed on the City of Kelso in another case involving the failure to enforce exception.  In Smith v. Kelso, homeowners claimed negligent subdivision plat and building permit approval, after a landslide destroyed their homes.[50]  The homeowners alleged that the city adopted a code requiring the city engineer to prepare minimum construction standards based on a number of site conditions, including topography, soil conditions and geology.  However, the code did not establish any requirements that the city could enforce against a developer or homeowner, so the court held that the city could not “fail to enforce anything.”  In addition, even though the city engineer was required to “prepare standards,” the actual standards were within the engineer’s discretion, so the code did not impose any duty.  With regard to the building permit issue, even if the city knew about the developer’s steep excavations or homes built on fill, the code did not require that the city take any specific action.[51]

–           Legislative Intent.  This exception to immunity under the public duty doctrine applies when the statute or ordinance identifies and is intended to protect a particular and defined class of persons.[52]  If the statute or regulation shows only the general intent to benefit a certain class (such as the people of the State of Washington), the legislative intent exception does not apply.[53]

Every city’s code enforcement chapter should include language which clearly states that it is not intended to benefit any specifically identified group of people.  Similarly, when the municipality adopts a zoning, property maintenance and/or subdivision code, it should not include any language which evidences a clear intent to identify and protect a particular class of persons.  Nothing in the Building Code meets this standard, and the Washington courts have held that the Building Code’s building permit and inspection requirements impose a duty which is only owed to the general public as a whole.[54]

Halvorson v. Dahl, [55]is an example of the operation of the legislative intent exception.  This lawsuit was brought against the City of Seattle and a hotel owner, by a widow of a man who died in a hotel fire.  She alleged that the City had been aware of the code violations in the hotel for at least 6 years prior to the fire.  While the City had embarked on enforcement programs of the building, housing and safety codes on several occasions, it never followed through to force the owners of the hotel to bring the structure into compliance.

The Halvorson court noted that “most codes are enacted merely for purposes of public safety or for the general welfare,” but the Seattle Housing Code actually stated that it was enacted for the benefit of the occupants of the buildings as well as the general public.[56]  This, and the “city’s long-term knowledge of, and inadequate response to, the inadequacy of the hotel’s compliance with code” allowed the court to find that the City breached its duty to the individual plaintiffs.[57]

–           Special Relationship.  The third exception to the public duty doctrine[58] is the special relationship exception, which imposes a duty of care where:  (1) there is direct contact between a public official and the plaintiff; (2) the public official provides express assurances, which (3) gives rise to justifiable reliance on the part of the plaintiff.[59]  An express assurance “occurs where a direct inquiry is made by an individual and incorrect information is clearly set forth by the government, the government intends that it be relied upon and it is relied upon by the individual to his detriment.”[60]

Radach v. Gunderson[61] involves a situation where the city’s failure to enforce the zoning code resulted in liability under this exception.  The Gundersons, who were not residents of Ocean Shores, hired a contractor to build their house, and left all the details to him.  In November of 1977, their neighbors, the Radachs, noticed that the foundation was being constructed too close to the ocean.  This was reported to the City’s building department by Mr. Radach because there were no workmen on the site and he did not know the Gundersons.  The City’s building inspector visited the site and determined that he had approved the building in the wrong location.  Then, the inspector left messages with the workmen on site for the contractor to contact him, but did not tell the workmen that the building violated the code.  He did not attempt to contact the Gundersons, and by this time, the exterior walls and roof were nearly completed.

At this point, the City sent letters to the Gundersons and the contractor, urging them to review the situation with their neighbors before continuing construction.  The letter did not state that the house violated the code or that construction could be stopped by the City.  The City contacted the Gunderson’s contractor who suggested that an application be filed for a zoning variance.  At the public hearing, the Radachs and other property owners objected to the variance and the Board denied it.  At this point, construction was stopped on the Gunderson house.

In early February, the City notified the Gundersons that the building permit would not be revoked and the City notified the property owners in the area that the City would allow the house to be completed.  Because the City notified the Gundersons that it had no objections to their continued construction, the Gundersons completed the house.

In the subsequent lawsuit brought by the Radachs against the City and the Gundersons, the court determined that the City was negligent and that the Gundersons innocently violated the zoning code.  The court ordered that the Gunderson’s house be brought back into compliance with the zoning setback requirements, and the City was required to pay the expenses associate with the move.

The public duty doctrine provided immunity to the municipality’s alleged negligence in Taylor v. Stevens County.[62]  The Taylors knew prior to purchase of their home that it was built without a building permit, and were assured by the realtor that the permit would be obtained prior to closing.  The realtor prepared the building permit application for the sellers and one day after the building permit issued, the Taylors purchased the home.  Two years later, the Taylors discovered defects in the construction, and at the Taylor’s request for an inspection, the county’s building inspector found numerous violations of the county building code.

The Taylor court held that the legislative intent exception to the public duty doctrine did not apply, because “the State Building Code Act’s building permit and inspection requirements impose a duty which is owed to the general public as a whole.”[63]  The special relationship exception was not applicable because the Taylors alleged negligence in the issuance of the building permit and the performance of the after-the-fact inspection.  As stated by the court:

We hold that no duty is owed by local government to a claimant alleging negligent issuance of a building permit or negligent inspection to determine compliance with the building codes.  The duty to ensure compliance rests with individual permit applicants, builders and developers.  . . .  [B]uilding codes are designed to protect the public safety, health and welfare, not to protect individuals from economic loss caused by public officials while carrying on public duties.[64]

In Rogers v. Toppenish,[65] the issue of justifiable reliance came into play.  Rogers, a real estate agent, inquired of the City’s building inspector (who had the responsibility of administering zoning ordinances) whether an apartment house could be built on a particular piece of property.  The inspector stated that it was, even though the City’s zoning map showed that only single family homes could be built on the property.  Rogers later purchased the property and the City issued him a building permit for an apartment building.  Neighbors complained to the City, and Rogers was informed that apartment use was prohibited and the building permit was rescinded.  A proposed rezone of the property was denied.

The City argued that Rogers was not justified in relying upon the representation of the building inspector but the court disagreed.  It held that “the most logical place to receive zoning information is from a zoning administrator who has the duty to give accurate information upon which a plaintiff has the right to rely.”[66] The building inspector was held liable to Rogers and the City was held vicariously liable to Rogers as well.

–           Rescue.  The rescue exception to the public duty doctrine is not covered in this Article.

4. “Selective” Enforcement and Discrimination.

The purpose of the Fourteenth Amendment is to protect individuals from arbitrary and intentional discrimination.[67]  In many cases, the defense raised by the property owner in the code enforcement action is that the municipality has denied him/her equal protection under the law.  As this concept was expressed by one court:

Though the law itself be fair on its face and impartial in appearance . . . if it is applied and administered by public authority with an evil eye and an unequal hand, so as to practically make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.[68]

However, the courts have held that “the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.”[69] With regard to zoning enforcement, a defendant alleging discriminatory enforcement must meet a “heavy burden,” to show “deliberate or purposeful discrimination based on an unjustifiable standard, such as race, religion or other arbitrary classification.”[70]

Even so, a successful equal protection claim can be brought by a “class of one” when a plaintiff “alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.”[71]  Three elements must be met in such cases:  (1) selective discriminatory state enforcement; (2) that is “intentional or purposeful” either on its “face” or in “design,” (3) for which “there is no rational basis for the difference in treatment.”[72]

In a recent California case, a property owner obtained building permits to begin construction of a residence on his property.[73]  The county held a hearing in which a code enforcement officer falsely testified to the county board of supervisors that there was an unapproved “shack” on the property, even though the building inspectors approved the construction of the “shack” at every phase.  The board of supervisors then refused to renew the building permits for the residence and threatened to demolish the structure.  In addition, the board required that the property owner file an application for a new building permit and comply with the new code requirement of including a sprinkler system in the structure.  The board also refused to allow the property owner to live on the property in a temporary trailer while he worked on the project, even though the property owner claimed that other homeowners had been granted lengthy periods to complete their homes and also had been allowed to live in their temporary housing during the construction.  Ultimately, the court held that the property owner had stated a “class of one” equal protection claim against the county because he was able to show that he was intentionally treated differently from others similarly situated, and that there was no rational basis for the difference in treatment.[74]

Keep in mind that property owners may also sue the municipality under the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA) and other applicable state and local laws for its code enforcement actions.  In one case, a city inspector initiated a code enforcement action based on a nuisance condition on the property (trash and debris) and ordered the property owner to clean it up within one month.[75]  The property owner had AIDS, and a patient advocate from an AIDS group attempted to contact the city inspector to discuss the enforcement action, but he didn’t return the call.  Members of this group later assisted the property owner in removing some of the trash and debris, but the city determined the progress to be insufficient.  A month after the deadline established by the city for the clean-up, the property owner was hospitalized with meningitis (an exacerbation of his disabling condition), and the patient advocate called the city inspector to request that the city stop the enforcement action.  This request was refused, and four days after the property owner left the hospital, the city hired a contractor to clean up the property.  After removal of the debris, the city charged the property owner $1,818.83 for the cost of removal and placed a lien on the house for that amount.

Subsequently, the property owner sold the home and satisfied the lien with the city – but later filed a lawsuit against the city.  The property owner alleged that the city discriminated against him when it denied his request for additional time to clean up the yard, which he alleged was a violation of the FHA, ADA and other laws because a “reasonable accommodation” was not granted.  In such lawsuits, the successful plaintiff can recover damages, penalties, attorneys’ fees and costs.  This case had not been factually developed to the point where the court could make a determination whether the city violated these laws, so the court remanded it to the lower court for a determination “with regard to the extent of a public agency’s obligation to accommodate an individual’s disabilities in its enforcement of municipal codes.”[76]

5. Who Enforces the Code?

Before adopting codes with enforcement sections, the municipality must decide who will have the authority to implement enforcement actions.  The decision usually depends on the code being enforced (i.e., the planning or community development director enforces the zoning code, the building official enforces the building code, the public works director enforces the public works standards).  In addition, the municipality must determine whether an administrative appeal of Notice of Violation will be allowed (for violations subject to civil penalties) and who will be the decision-maker(s) in the administrative appeal.

Where the violation is subject to criminal penalties, the criminal citation is enforced in municipal court (depending on the code, penalties and the jurisdiction of the court).  Some jurisdictions use the procedure in chapter 7.80 RCW to enforce violations subject to “civil infractions,” which carry a maximum penalty of $250.00 for a class 1 civil infraction.[77]

Other municipalities have adopted a procedure that allows for a public hearing on the Notice of Violation before a hearing examiner.  Procedures for an administrative hearing/appeal of the Notice of Violation for violations subject to civil penalties is recommended, so that a record can be developed for use in the event a judicial appeal is filed.  Administrative appeals are also useful because the municipality can correct any errors and mitigate possible damages before a judicial appeal is filed.[78]  Allowing an administrative appeal is also advantageous to the property owner, because there is the possibility of receiving the requested relief in a short period of time (compared to the delays associated with an appeal to court).  Also, the property owner can challenge the Notice of Violation in an informal administrative hearing without the expenses associated with hiring an attorney.

If an administrative hearing/appeal is allowed, and the mayor and city council are the decision-makers in this appeal, they cannot be involved in the code enforcement action prior to the public hearing.  This is because the public hearing is quasi-judicial, and the appearance of fairness doctrine applies.[79]  The appearance of fairness doctrine prohibits ex parte contacts (or communications outside of the public hearing) between any of the decision-makers, the appellant or any other “opponents or proponents.”[80]  If the property owner attempts to contact the mayor or councilmembers to discuss/complain about the subject violation, the latter should refuse to communicate about the code enforcement action until the public hearing.  The contact must also be disclosed at the outset of the public hearing by the decision-makers.[81]

Even in situations where the municipality has designated a hearing examiner as the decision-maker, the mayor and city council should keep in mind that by adopting enforcement procedures in the code, they have delegated enforcement responsibilities to staff.  The mayor or city council’s interference with staff’s enforcement activities could be interpreted as “actions in excess of their lawful authority.”[82] Such involvement could result in adverse consequences for the city.[83]

6. Types of Enforcement Programs – Complaint-driven, Structured.

 Many municipalities do not have the resources to employ full-time code enforcement personnel, and so staff may only have the time and resources to respond to complaints made by the public.  Usually, this involves the completion of a form describing the location of the alleged violation, date of complaint and other identifying information so that a staff member can schedule a visit and investigate the complaint.  The complaint can be completed by the complainant in person, by fax, e-mail or if the complaint is called in, the staff person can fill out the form on behalf of the complainant.  While the person making the complaint usually identifies him/herself, this information may be protected under the Public Records Act.[84]  The form should have a box to check when the complainant requests confidentiality.

Some municipalities also schedule regular inspections of certain properties/uses to ensure code compliance.   Or, the staff could engage in regulatory “touring” to spot code violations from public areas, such as driving through various neighborhoods.

In one “proactive” housing and building maintenance code enforcement program, a city selected 30 percent of its multi-family buildings for inspection, and then sent out letters to the owners and tenants, informing them of the upcoming inspection and asking whether they would consent to an inspection.[85]  Other code enforcement programs have involved a random inspection process.[86]  A city may decide that business licenses will not be granted until the municipality has performed an inspection of the premises to determine whether there are any code violations.[87]

Municipalities may establish their own system of determining code violations (and providing for hearings, appeals, and penalties), or they may follow the procedures established by state law.  Here are some examples:

Chapter 7.80 RCW relating to “Civil Infractions.”  This procedure involves the issuance of a notice of violation issued to the violator, which is “final” if it is not contested.[88]  If the violator contests the determination that an infraction is committed, a hearing is held without a jury by a court of limited jurisdiction.[89]  Under the procedures in chapter 7.80 RCW, the entire civil infraction system is administered and supervised by the courts, from issuance of the notice to the collection of penalties.  Appeals of the court’s determination on these types of civil infractions are not appealable under the Land Use Petition Act (LUPA).[90]  This procedure may be less expensive for many municipalities (as opposed to hiring a hearing examiner) because they already have a municipal court.

RCW 7.48.120, et seq.   Cities have the authority “to declare what shall be a nuisance,”[91] and nuisances (as defined in state law or city/county ordinances) may be abated under the procedures in state law.[92]  However, not all code violations are nuisances, and the city will still need to adopt procedures for enforcing the zoning, subdivision, building, etc. codes.   There are also a number of specific statutes addressing different types of nuisances, such as the overhanging or obstructing vegetation,[93] unfit dwellings and structures,[94] etc.  These statutes include procedures for abatement of specific nuisances and cannot be used as a model to be used for all code violations.  (For example, the RCW 35.21.310 provides for the city’s entry onto private property and the summary destruction of overhanging vegetation, if the owner does not respond to the notice demanding compliance because of the possible health and safety issues.  This type of procedure cannot be used to abate a zoning code violation such as a structure which encroaches two feet into the side yard setback.)

Code enforcement ordinances adopted locally.  The adoption of ordinances by the municipality to enforce codes provides the most flexible means of enforcement.[95]  First, it allows the municipality to tailor the ordinance to allow administrative/appeal hearings, which result in the development of an administrative record that is used in the judicial appeal.  Judicial appeals of such code enforcement decisions (if not enforced in a court of limited jurisdiction) can then be made subject to the procedures in the Land Use Petition Act (LUPA, chapter 36.70C RCW).[96]

Although the International Codes include some provisions relating to code enforcement, detail is lacking and there is a danger that non-attorney staff may implement procedures which avoid constitutional requirements.  Therefore, it is recommended that municipalities adopt amendments to these enforcement provisions to address each step in the enforcement process.

7.  Searches, Authority to Consent to Inspections.

The Fourth Amendment of the United States Constitution provides:  “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.”  Article 1, section 7 of the Washington Constitution provides:  “[N]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

While the Fourth Amendment prohibits unreasonable searches and seizures and provides that a warrant may not be issued without probable cause, the text of the Fourth Amendment does not specify when a search warrant must be obtained.[97]  “A warrant is generally required for a search of a home,”[98] but the ultimate touchstone of the Fourth Amendment is reasonableness.

The Washington courts have held that “a warrantless search is per se unreasonable, unless it fits within one of the . . . exceptions.”[99]  These exceptions include:  “exigent circumstances, consent, and searches incident to a valid arrest, inventory searches, the plain view doctrine, and Terry investigative stops.”[100]  There are other narrow exceptions to the warrant requirement as well, including the community caretaking function and the health and safety check exception.[101] In addition, entry without a warrant may be reasonable under the “open fields” exception.[102]

If consent is not given, a warrant is usually needed.    The warrant requirement of the Fourth Amendment to the U.S. Constitution applies to entries on private land to search for and abate suspected nuisances.[103]  “Generally, warrants are required for administrative searches of both private and commercial premises.”[104]

Consent.  Searches with consent do not require a warrant.[105]  Under the Fourth Amendment, tenants, not landlords, have a privacy interest in leased residences and may consent to a search of both their individual apartment units and the common areas, notwithstanding the objections by their landlords.[106]  With regard to common areas, “either of two parties who have common authority over the premises may consent to an entry or search.”[107]

A warrantless search of a house or apartment is reasonable when the sole occupant of a house consents, but what happens when there are two or more occupants?  Must they all consent?  Must they all be asked?  Is consent by one occupant enough?  “The consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom authority is shared.”[108]

Building, zoning and subdivision code enforcement usually involve either the plain view doctrine or a situation in which consent is given.  Under the “open view” doctrine, no search occurs “when a law enforcement officer is able to detect something by utilization of one or more of his senses while lawfully present at the vantage point where those senses are used.”[109]  As explained by the Washington courts:

The Fourth Amendment protects people, not places.  What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.  But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.[110]

People have a reasonable expectation of privacy in their homes.[111]  “Both the home and its traditional curtilage [are] given the highest protection against warrantless searches and seizures.”[112]  “Curtilage” is that area ‘so intimately tied to the home itself that it should be placed under the home’s umbrella of Fourth Amendment protection.”[113]  “Curtilage” questions are resolved with reference to four factors:

(1) the proximity of the area claimed as curtilage to the home; (2) whether the area is included in an enclosure surrounding the house; (3) the nature of the uses to which the area is put; (4) the steps taken by the resident to protect the area from passersby.[114]

“The primary focus is whether the area harbors those intimate activities associated with domestic life and the privacies of the home.”[115]  Where the public is invited onto property for commercial purposes, the courts have not found that the owner has a reasonable expectation of privacy, and there is no search.[116]

Consider these situations and the application of the above factors:

  • A health inspector did not violate the Fourth Amendment when he entered the outdoor premises of a factory without a warrant or consent and observed smoke plumes from the factory’s chimneys.[117]  Although he was on the factory’s property, he was not on property from which the public was excluded.
  •  A code enforcement officer did not need a warrant where construction materials were in the property owner’s yard in a residential neighborhood, behind a wire fence.[118]  “It is well-settled that if items within the curtilage are ‘readily visible,’ a warrant to search such an area is not required because officers [need not] shield their eyes when passing by a home on public thoroughfares.”[119]
  • County environmental health officers in a clearly marked county vehicle parked on a private road which accessed a RV park, and videotaped the RV hookups.   (The county had no records showing that the RV park owner had permits to construct a septic system, no records of an adequate water supply, etc., yet there were 15 RV hook-ups for water, sewer and electricity.)  While the court found that the owner had a “subjective” expectation of privacy because he posted a “no trespassing” sign and the access road was private, this expectation was not reasonable because the road was open to the public.[120]
  • Police officers entered commercial property with an office building to search for derelict vehicles. The officers tagged several vehicles, including a bus, and mailed notices to the property owner identifying the vehicles as public nuisances.  The property owner alleged that the search was illegal, but the court held that he had no legitimate expectation of privacy in the area where the bus was stored, because this area was open to people who wanted to transact business with the tenants of the lot.  The property owners also routinely allowed people unknown to them to visit the area without prior authorization and did nothing to prevent these people from seeing the bus.  “When a police officer enters a commercial area in the same manner as any member of the public and examines the area in the same way as might be expected of any other person, the officer has not conducted a ‘search’ within the meaning of the Fourth Amendment.”[121]
  • Homeless persons living in the Skid Row District of Los Angeles stored their personal possessions, including ID’s, birth certificates, medications, family memorabilia, cell phones, sleeping bags and blankets in mobile containers provided to them by social services agencies. When the homeless persons stepped away from their personal property, leaving it on the sidewalk so that they could shower, eat, attend court, etc., city employees seized and destroyed their personal property.[122]  The city employees were told by other people at the time of the seizure that the personal property was not abandoned, and these people implored the city employees not to destroy it.  In a lawsuit brought by the persons whose property was destroyed, the court found that the city meaningfully interfered with the homeless persons’ possessory interest in the property under the Fourth Amendment, regardless of whether there was any reasonable expectation of privacy in the seized personal effects.[123]

When a municipality knows in advance that enforcement of the conditions of a permit yet to be issued may be problematic, consider obtaining advance consent to a search.  In one case, the county held a public hearing on a conditional use permit, in which concern was expressed that the applicant would not comply with the conditions, given that the applicant had “shown that he does not follow directives” after years of dealing with the county. [124]  The applicant responded that he was willing to allow a schedule of inspections to determine compliance with the permit conditions, and the hearing examiner approved the permit, subject to conditions, including one that required him to allow county staff to monitor the site to ensure compliance.[125]  A right of entry was signed by the applicant, and on the third inspection two years later, the county observed several permit condition violations, resulting in a revocation of the permit.[126]

The applicant sued the county for damages, claiming that the county had unconstitutionally searched his property because the county did not obtain a warrant and he did not consent to the search.  However, the court found that the search was valid because the county did not conduct the search to obtain evidence for criminal prosecution, but instead to determine whether the applicant was complying with the conditional use permit.  And, the right of entry signed by the applicant eliminated the county’s need to obtain a warrant.[127]

8. Obtaining a Search Warrant.

Municipal courts have no inherent authority to issue administrative search warrants, so they must rely on an authorizing statute or court rule to allow issuance of an administrative inspection warrant.[128]  Therefore, the municipal court has authority to issue administrative search warrants supported by probable cause only if is it alleged there is a violation which constitutes a crime, rather than a civil infraction.[129]  This is true for entry in both residential and commercial premises.[130]

9. Warning Letters.

A warning letter can be sent prior to initiating a code enforcement action if: (1) the violation is not serious; (2) does not pose a public health or safety threat to anyone; (3) the violation will not become more serious as a result of the municipality’s inaction; and (4) the violation is not which the municipality has a duty to enforce. [131]  In the typical situation, the municipality can employ the procedures described below before initiating a formal code enforcement action.

Code enforcement officers usually send warning letters to property owners, explaining that failure to comply with the code by a date certain could result in the imposition of penalties.  However, prior to sending a warning letter, the code enforcement officer should discuss the correct procedure with the municipality’s attorney because there are situations in which the municipality is required to enforce the code without delay.  Issuance of a warning letter without immediate follow-up may result in a public health/safety issue or liability to the municipality. [132]

Repeated warning letters.  If the municipality issues a warning letter and the violation is not corrected, the next step is to issue a Notice of Violation.  Additional warning letters should not be sent.

Pre-deprivation “hearing.”  A property owner may allege that procedural due process requires that the municipality provide a “pre-deprivation hearing” prior to issuing a stop work order or notice of violation.  To determine whether a “pre-deprivation hearing” is required, the courts weigh several factors:

First, the private interest that will be affected by the official action, second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.[133]

However, “the pre-deprivation hearing need not be extensive, merely the opportunity for informal consultation with designated personnel empowered to correct a mistaken determination.”[134]  Keep in mind that “a pre-deprivation hearing is not required where the deprivation was not foreseeable or where it would otherwise be impracticable to provide such a hearing.”[135]

Informal meetings.  In some instances, a code enforcement officer can convince a property owner to comply with the code in a meeting.  In this meeting, the code enforcement officer usually explains the violation, what is needed to correct the violation, and the penalties for failing to comply with the code by a date certain.  The code enforcement officer should document this meeting and the outcome, so that there is a complete record of the efforts made by the municipality to obtain compliance.  Also, this is needed in case there is a claim that a pre-deprivation hearing was not provided.

10. Notice of Violation.

The Notice of Violation must include certain information in order to be enforceable, and it must be properly served on the property owner and/or the person responsible for the violation.  The protections of due process apply to code enforcement activities.[136]  “The fundamental requisites of due process are the opportunity to be heard and notice, reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”[137]  At a minimum, due process demands that a deprivation of life, liberty or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.[138]  This opportunity must be granted at a meaningful time and in a meaningful manner.[139]

Issuance of the Notice of Violation (NOV) formally starts the code enforcement process.  Here are the essential elements and the rationale for their inclusion in the NOV:

A.     Address (and sometimes legal description if the NOV will be recorded against the property) of the property in violation of the code.  A legal description is needed if the NOV is to be recorded against the property.  (Review “J” below on the subject of the notary block.)

B.     Property owner/persons responsible for the violation.  The municipality issues the NOV to the property owner, because the property owner is ultimately responsible for the condition of his or her property.[140]  Tenants may also be included, if they caused the code violation.  It is up to the municipality to decide who to cite, after considering the most efficient way to enforce compliance with the code.

C.     Identification of the specific code violated.  This should be the citation to the specific code violated, such as the provision in the code establishing that the minimum side yard setback for the principal structure in a residential zone is six feet.

D.     Description of the specific violation.  This is an “explanation” as to how the specific code section has been violated, such as:  “the residence, located in the single family residential zone, encroaches in the residential zone six foot side yard setback by three feet.”

E.     Description of the corrective action.  This includes a statement that all necessary permits must be applied for and obtained.  For example:  “the property owner must apply for and obtain a variance to encroach on the six foot side yard setback by three feet, or the structure must be reduced in size to conform to the setback.”  If there is no permit available to correct the violation, the corrective action must reflect this fact.  For example, if the use of a structure on the property is inconsistent with the underlying zone, the corrective action might be to either change the use of the structure to be consistent with the zone or provide evidence that the current use of the structure is legally nonconforming.

F.     Deadline for corrective action and compliance to take place.[141]  Here, the code enforcement officer must estimate how much time it will take the property owner to comply with the code.  The corrective action and deadlines must be drafted to only cover the property owner’s actions or actions that the property owner can control.  For example, the corrective action could be that the property owner must submit a variance application to encroach in the side yard setback on or before a date certain (estimating how long it would take to prepare the application) or remove the encroachment in the side yard setback on or before a date certain (estimating how long it would take to remove the encroachment).  This time estimate for compliance doesn’t include the time spent by the city between the property owner’s submission of the application and issuance by the city.

G.     Notice of the administrative appeal deadline and the code provision relating to appeals, which, among other things, describes what must be included in the appeal.

H.     A description of the consequences for failing to comply with the NOV, and/or appeal, such as the imposition of penalties, an injunction to force compliance or a statement that the NOV will be final and enforceable in a subsequent court action.

I.     A telephone number and name of the appropriate staff person to call in case the property owner has questions, or to schedule an inspection when compliance is achieved.

J.     The NOV should have a notary block on it, and be signed by the staff person, in case the city decides to record the NOV against the property.

Recording the NOV against the property.  Keep in mind that where the violation will be expensive to correct, a property owner may decide to sell in order to avoid compliance.  If the municipality has not recorded the NOV against the property, the owner may be able to sell without providing notice to the subsequent purchaser of the violation.  In addition, it may cost the municipality a significant amount of money and staff time to start the code enforcement process anew, against the new owner.  For his/her part, the new owner may seek to rescind the sale, which could involve the municipality in litigation.[142]  If a NOV has been recorded against the property, and the property owner corrects the violation, be sure to record a document against the property confirming compliance.

11.  Service of the Notice of Violation.

 One frequent defense raised by property owners in code enforcement actions is improper service of the NOV.  “Notice must be reasonably calculated, under all circumstances, to apprise all interested parties of the action and afford them the opportunity to present their objections.”[143]  While there are no cases addressing the proper manner of service of a NOV in a municipal code enforcement action, the Washington courts have approved service which consisted of the sending of a notice of violation (of WISHA) by certified mail to the employer, together with a posting of the citation at or near each place where the violation occurred.[144]  In a case challenging notice of suspension of a driver’s license, the court held that service by regular mail furnished reasonable notice and an opportunity to be heard, where the penalty was a misdemeanor.[145]

Because the enforcement action may be dismissed for the city’s failure to provide proper service of the NOV, this step should be carefully handled.  If service is improper, the city may be required to reinitiate the code enforcement process.  Many cities perform administrative abatement activities (without a superior court order of abatement).  If an out-of-town property owner is improperly served and only learns of the city’s demolition of her rental home when she next visits the property, the city will likely be involved in a damage lawsuit.  For the procedures used to serve summons and complaints in judicial actions, see, RCW 4.28.080(15) & (16).

Personal service.  The NOV can be delivered personally.  If delivered personally by a staff member, an affidavit or declaration of service should be prepared, to document the date, time and any circumstances surrounding the service.  For example, if the NOV was delivered to the violator at city hall during a meeting held with the code enforcement officer, this should be documented in the affidavit or declaration by the person who handed the NOV to the violator, together with the date and time.

Certified mail.  If the NOV is sent by mail, it should be sent certified and appropriately marked, so that the violator is required to sign the receipt (not anyone else in the office or home).  If the violator has experience with code enforcement processes, he/she may not accept any certified letters, so the municipality may wish to also send a copy of the NOV by regular mail.  If the letter is returned, or if the violator is avoiding service, the municipality should consider a different method of service (such as publication).

Posting.  The property should be posted, where possible.  The facts and circumstances surrounding the posting should be noted, and a picture taken of the NOV as posted on the property, with the date.  Posting is done in addition to personal service and is not a substitute for personal service (or publication under appropriate circumstances).

PublicationSee, Civil Rule 4(d) and RCW 4.28.100, 4.28.110.  Publication may be the only way to effect service, if these other methods don’t work to achieve personal service.

12.  Enforcement of the Notice of Violation.

Once the NOV is final (because no appeal was filed and service was proper, or once the decision on appeal is final) the NOV should be forwarded to the municipal attorney for further action.  This may include filing a complaint in superior court to enforce the code, injunction and/or collection of penalties.

13.  Stop Work Orders.

 If the code enforcement officer or building official is notified (or visits the property and learns) that the activity taking place on the property violates the code, a stop work order should be posted and served, ordering that such activity stop immediately. [146]  Stop work orders are also used when work is proceeding without a permit, under an expired permit,[147] or in situations where allowing the contractor/owner to continue with the work may make the violation worse and/or cause a public health and safety problem.  Otherwise, consider the use of a NOV.

The stop work order forms (bright neon orange) that are used by most municipalities do not include all of the information that would normally be in a Notice of Violation.  Some municipalities don’t even keep a copy of the stop work order that they post on the property (and are surprised when it is removed and destroyed).  It is therefore important that after posting a stop work order, the code enforcement officer should go back to city hall and issue a formal NOV, which will include all of the necessary information to initiate a code enforcement action.  This will also provide notice to the property owner that he/she may request an expedited hearing on the stop work order (in appropriate instances).

14.  Expedited Hearings on Stop Work Orders.

There are at least two good reasons to hold expedited hearing on stop work orders:  (1)  to eliminate an allegation that the local government violated the property owner’s due process rights; and (2) to reduce the possibility that delays associated with the stop work order will translate into a subsequent damage claim.  In addition, the courts have determined that a “pre-deprivation hearing” is required under circumstances affecting development permits.  A court would likely find the building permit to be a “cognizable property interest.”[148]  If there is such a property interest, a hearing might be required before the local government revokes the permit.[149]  The factors to weigh in a determination whether a pre-deprivation hearing is required are listed in Section 9 of this Article.[150]

The pre-deprivation hearing need not be extensive, “merely the opportunity for informal consultation with designated personnel empowered to correct a mistaken determination.”[151]  “Where the potential length or severity of the deprivation does not indicate the likelihood of serious loss and where the procedures are sufficiently reliable to minimize the risk of erroneous determination, a prior hearing may not be required.”[152]  “A pre-deprivation hearing is not required where the deprivation was not foreseeable or where it would otherwise be impracticable to provide such a hearing.”[153]

Therefore, it is not possible to provide a rule that must be followed in all circumstances on the issue this issue.  Staff should consult with the city attorney before issuing a stop work order and review the city’s documentation regarding the notice the city has already provided of the problem, as well as the nature of the problem.  If the City decides to provide a “pre-deprivation hearing” or if the city decides to immediately issue a stop work order, an expedited appeal hearing should be allowed.  This will give the property owner an opportunity to explain what he/she was doing and why he/she believed that it was consistent with the code, before significant delays on the jobsite are incurred.  If there is no hearing and the stop work order is later determined to have been erroneous, the property owner could file a claim for damages associated with the construction delays.  The longer the delay, the higher the potential damage claim.  To ensure that this issue is discussed at the earliest possible stage in the process, the city should include a procedure in the code enforcement chapter allowing a property owner to request an expedited appeal hearing when a stop work order issues.

15.  Abatement.

Failure to provide adequate notice, obtain warrants (when required), hold hearings or to follow established procedures for abatement can result in liability to the municipality and the individuals involved.[154]  In a case decided in 1990, a jury awarded damages of $71,000 and attorneys’ fees to a property owner, after the city, without the property owner’s consent, broke down their fence, entered their property, seized and eventually destroyed two vehicles.[155]

Even if a warrant is not required in a particular circumstance for entry onto private property, “removing personal property is a seizure within the meaning of the Fourth Amendment.”[156]  A seizure “occurs when there is some meaningful interference with an individual’s possessory interests in that property.”[157]  Furthermore, a court may find that a pre-deprivation hearing is required before the individual is finally deprived of a property interest.[158]  Claims may also be made that the municipality deprived the individual of post deprivation procedural due process by failing to inform the individual about the manner in which he/she could retrieve his/her seized property before it was destroyed or donated.[159]

The author of this Article does not recommend that municipalities perform any abatement actions without obtaining a warrant of abatement from the superior court, as provided in RCW 7.48.260.  Another factor to consider is whether the warrant should require the property owner to perform the abatement action, rather than the municipality (through its own forces or hired contractor).  If the court orders the property owner to perform the abatement action, the property owner will not be later suing the municipality for improper notice, unlawful entry onto the property, or unlawful destruction (or taking) of private property.  The municipality can enforce the warrant of abatement by asking the court for an order of contempt if the property owner doesn’t comply within the deadline established in the warrant.

16.  Revocation of Permits.

Before issuing a decision revoking a permit, the code enforcement official needs to decide whether the procedures for code enforcement will result in compliance.  In all but a few instances, a code enforcement action involving a notice of violation or stop work order is all that is needed.

Most municipalities do not have any code procedures addressing revocation, and they run into trouble by using an ad hoc, unwritten procedure, causing confusion and raising legal challenges.[160]  Or, the property owner whose permit has been revoked may defend in the action by claiming that the code did not delegate authority to the decision-maker to revoke the permit.[161]

Revocation is not appropriate in all instances and should be used only as a last resort.  In one case, the court determined that revocation was appropriate because the developer knowingly and deliberately violated permit conditions of approval that could not be remedied.[162]  (The court upheld the county’s revocation of a preliminary plat because the developer had cut down rare white oak trees, and therefore could not satisfy the preliminary plat condition which specifically prohibited removal of trees and vegetation in specified areas.  This meant that final plat could not be granted, because the municipality was required to make a finding at the final plat stage that all preliminary plat conditions have been met.[163])

Sometimes the permit conditions cannot be satisfied because the permit or approval has expired.  As an example, consider the situation where a developer obtains final plat approval by posting a bond in lieu of construction of the improvements in the plat, fails to construct the improvements and the bond expires.[164] In cases outside Washington, the courts have held that if the conditions of final plat approval have not been satisfied (because the subdivider obtained a bond in lieu of construction in order to obtain final plat approval), the final plat approval could be revoked.[165]

 Extreme care should be used when opting to revoke an issued permit is because it usually provokes the property owner into filing a lawsuit against the municipality for damages.[166]  A court may find that the property owner had a valid property interest in the issued permit, and that the municipality’s revocation or vacation of the permit violates the property owner’s constitutional due process rights.  There are important steps that must be followed in a revocation action, such as a pre-deprivation hearing.[167]  Even with a pre-deprivation hearing, there is always the possibility that a municipality’s decision may be reversed on appeal, and a damage action may result.

17.  Erroneously Issued Permits.

Sometimes, a complaint will arise after a structure has been constructed, and it may be more than 21 days after the permit has issued.  If the municipality made a mistake when it issued the permit, can it still enforce the code?  Should the permit be revoked?  These questions need to be considered by the local government’s attorney, in light of confusing case law.

Recently, the Washington courts have developed a new rule that land use decisions are “unreviewable by the courts if not appealed to the superior court within LUPA’s specified 21 day time line.[168]  The courts have now held that “even illegal decisions under local land use codes must be challenged under LUPA in a timely appropriate manner.  This includes defects in land use determinations that would have made the decision void under pre-LUPA cases.”[169]  Therefore, a municipality is likely barred from taking any action to revoke a permit that was issued in error.

In older case law, a property owner applied for a building permit for the construction of a photo dark room above an existing garage.[170]  The city issued and inspected the “photo dark room,” which was remodeled into an apartment with a living room, two bedrooms, a bathroom and a kitchen, with a separate outside entrance.  Five years later, the city began an enforcement action because the underlying zone did not allow multi-family use.  In this case, the court held that even though a building permit issued, the city could revoke the permit “at any time on the ground of invalidity of the structure of the use or from otherwise enforcing the ordinance.”[171]  Here is the language the court used to uphold the city’s action:

[A] municipality is not precluded from enforcing zoning regulations if its officers have issued building permits allowing construction contrary to such regulations, have given general approval to violations of the regulations, or have remained inactive in the face of such violations.  . . .  The public has an interest in zoning that cannot thus be set at naught.  The plaintiff landowner is presumed to have known of the invalidity of the exception and to have acted at his peril.[172]

In addition, the language of the Building Code appears to allow the municipality to determine that the permit is invalid or to revoke it, regardless of the lapse of time since issuance of a permit.[173] Because the law is confusing, the municipality’s attorney should be consulted before issuing a NOV based on violations relating to erroneous permit issuance.

18.  Burden of Proof.

The municipality has the initial burden of proof in cases involving regulatory orders and penalties.  The decision-maker is required to make a written final decision which includes findings of fact and conclusions of law, based on the preponderance of the evidence (civil) standard.

19.  Nonconformities.

A nonconforming use or structure is a use or structure which existed prior to the enactment of a zoning ordinance, and which is allowed to continue after the effective date of the ordinance, even though it does not comply with the applicable use restrictions.  Each jurisdiction adopts its own definition of “nonconforming uses and structures” as there is no state-wide definition.  If a property owner alleges that the use or structure is in compliance with the municipality’s code because the property’s development/use is legally nonconforming, the property owner has the burden to prove this claim.[174]

20.  Violator’s Alleged Lack of Notice; Failure to File Administrative Appeal.

 The property owner may allege that he/she did not receive notice of the NOV because service was not proper.   (“Though the procedures may vary according to the interest at stake, the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.”[175])  This issue needs to be discussed with the municipality’s attorney to determine whether service was proper.  If not, or if there is a question of fact, it may be a good idea to amend the original NOV to extend the deadline for filing an administrative appeal, re-serve it, and document the date and manner of service on the property owner.

21. Imposition of Penalties.

The State of Washington has delegated authority to cities and towns to impose penalties for code violations.  Here is an example of the authority applicable to code cities:

The legislative body of each code city . . . may adopt and enforce ordinances of all kinds relating to and regulating its municipal affairs and impose penalties of fine not exceeding five thousand dollars or imprisonment for any term not exceeding one year or both, for the violation of such ordinances, constituting a misdemeanor or gross misdemeanor as provided therein.  However, the punishment for any criminal ordinance shall be the same as the punishment provided in state law for the same crime.  Such a body alternatively may provide that violation of such ordinances constitutes a civil violation subject to monetary penalty, but no act which is a state crime may be made a civil violation.[176]

Under the above, a city can adopt penalties for violations of the zoning code that are either civil or criminal, because there is no state law establishing penalties for local zoning code violations.  The State Subdivision Act provides that violations of the Act and local ordinances adopted pursuant to the Act are gross misdemeanors, so a city can’t establish civil penalties for violations of the city’s subdivision code.  There is no limit on civil penalties.[177]

Some of the International Codes, such as the International Building and International Residential Codes do not establish penalties for violations, so a city could set them as either civil or criminal.[178]  The International Fire Code provides that violators are “guilty” of an offense and fine amount that must be identified by the municipality – which may limit the ability of the municipality to change the penalties from criminal to civil.[179]

When the Washington State Building Code is updated (through the adoption of the latest versions of the International Codes and various other state amendments), some local enforcement officials question whether the municipality is required to pass an ordinance formally adopting them.  There are at least two good reasons for this.  First, the municipality is required to follow certain procedures in state law for the adoption of codes “by reference,” which include, but are not limited to, keeping a copy of the code in the city clerk’s office “for use and examination by the public” during the adoption process.[180] In addition, the municipality needs to insert the penalties for violations of each of the codes in the adopting ordinance.  When determining the penalties, the municipality should consider:  (1) the difference in the burden of proof that the municipality will have in order to show a violation subject to civil vs. criminal penalties; and (2) whether the municipality will be able to obtain a search warrant to enter the property for suspected serious public health and safety violations.  If the penalty for violation of the particular codes is civil, the municipality will not be able to obtain an administrative search warrant to enter the property.[181]

It is important that the code enforcement procedures be crafted to include constitutional protections, such as procedural due process.  In a recent case, a court found that a city’s code enforcement procedures violated the property owner’s due process rights because it provided for an appeal only of the initial notice of violation and the first monetary penalty, and not any penalties assessed thereafter.[182]  As stated by the court:

Where a local jurisdiction assesses civil penalties for noncriminal violations of law but provides no opportunity for civil defendants to be heard, the fundamental due process right to an opportunity to be heard at a meaningful time is violated.  . . . where local jurisdictions issue infractions (finding violations and assessing penalties), there must be some express procedure available by which citizens may bring errors to the attention of their government and thereby guard against the erroneous deprivation of their interests.[183]

The imposition of penalties by another city for code violations was sufficient for purposes of due process, where the daily penalties were automatic, and the property owner had a full opportunity to appeal the continuing fines for the specific violation.[184]  The opportunity to appeal the entire assessment of fines was the step that was absent in the case described above.

22.  Waiver of Penalties.

Most municipalities are concerned with code compliance, and set a policy that if the property owner corrects the violation prior to a certain point in time (such as the filing of a lawsuit to force compliance), it will not pursue the collection of the penalties.  This policy relates only to penalties, as the municipality will still maintain a record of the violation as the second violation of the same code provision could result in the imposition of greater penalties (or result in criminal penalties).  The penalty amount should also be considered in light of the predicted amount of staff time and expense involved in pursuit of the violator for the penalties.  In any event, the municipality’s policy on this issue should be enforced equally to prevent equal protection claims.

23.  Municipality’s Recovery of Attorney’s Fees.

Zoning and Building.  If the municipality is the prevailing party, it will not be able to recover its attorneys’ fees incurred in the lawsuit it files to enforce the NOV or the decision issued after an administrative appeal, other than statutory attorneys’ fees under RCW 4.84.080.  “Washington courts traditionally follow the American rule in not awarding attorney fees as costs or damages absent a contract, statute or recognized equitable exception.”[185]  The “equitable exceptions” to the American rule are: (1) the common fund theory; (2) actions by a third person subjecting a party to litigation; (3) bad faith or misconduct of a party; and (4) dissolving wrongfully issued temporary injunctions or restraining orders.[186]  The Washington courts have “not awarded attorney fees on an administrative appeal where there is no statutory authority.”[187]

In sum, there is no support for the argument that municipalities have the authority to change the common law by including, in their code enforcement ordinances, a requirement for violators to pay the municipality’s attorney’s fees.

Subdivision.  Under RCW 58.17.310, when land within a subdivision granted final approval is used in a manner or for a purpose which violates any provision of the Subdivision Act (chapter 58.17 RCW) or any provision of the municipality’s subdivision code, an enforcement action may be initiated by the prosecuting attorney or the attorney general if the prosecuting attorney fails to act.  “The costs of such action may be taxed against the violator.”

LUPA appeal.  See, RCW 4.84.370.  In an unreported case, the court held that the municipality was not entitled to attorneys’ fees under RCW 4.84.370 because the appeal was of a code enforcement action (inoperable vehicles), not a development permit.[188]

 

[1]   Article XI, Section 11 of the Washington Constitution.

[2]   RCW 35A.63.060.  This article will include citations to the statutes applicable to code cities and code cities planning under GMA.

[3]    RCW 35A.63.100.

[4]   Girton v. Seattle, 97 Wash. App. 360, 368, 983 P.2d 1135 (1999).

[5]   RCW 36.70A.010.

[6]   RCW 36.70A.020(11).

[7]   RCW 36.70B.060.

[8]   RCW 36.70B.110.

[9]   Rhodes v. City of Battleground, 115 Wash. App. 752, 763, 63 P.3d 142 (2002); Burton v. Clark County, 91 Wash. App. 505, 958 P.2d 343 (1998).

[10]   For criminal ordinances, see, City of Spokane v. Douglass, 115 Wash.2d 171, 178-79, 795 P.2d 693 (1990); City of Tacoma v. Luvene, 118 Wash.2d 826, 827 P.2d 1374 (1992).  For civil ordinances, see, Anderson v. Issaquah, 70 Wash. App. 64, 75, 851 P.2d 744 (1993); Young v. Pierce County, 120 Wash. App. 175, 84 P.3d 927 (2004).

[11]   Young v. Pierce County, 120 Wash. App. 175, 182, 84 P.2d 927 (2004).

[12]   City of Pasco v. Shaw, 127 Wash. App. 417, 426, 110 P.3d 1200 (2005).

[13]   RCW 82.02.020; Citizen’s Alliance for Property Rights v. Sims, 145 Wash. App. 649, 187 P.3d 786 (2008); Stevens County v. Eastern Washington Growth Management Hearings Board, 163 Wash. App. 680, 262 P.3d 507 (2011); Olympic Stewardship Foundation v. Western Washington Growth Management Hearings Board, 166 Wash. App. 172, 274 P.3d 1040 (2012).

[14]   RCW 35A.63.060 for code cities.  RCW 35.63.100 for other cities and towns.

[15]   RCW 35A.63.100 for code cities.  RCW 35.63..080, 110 for other cities and towns.

[16]   RCW 35.63.125, “development regulations” has the same meaning as set forth in RCW 36.70A.030.  For code cities:  RCW 35A.63.105.

[17]   RCW 36.70B.160.

[18]   RCW 58.17.020.

[19]   RCW 58.17.030.

[20]   As long as they are adopted pursuant to RCW 58.17.060.  RCW 58.17.030.

[21]   RCW 58.17.035.

[22]   The State of Washington has also adopted amendments to these codes.  See, chapters 51-51, 51-52, 51-54, 51-56 of the Washington Administrative Code.

[23]   Many of the penalty provisions in these codes are blank.  Local jurisdictions need to adopt penalties for violations consistent with their statutory authority.  Also, these procedures need to be supplemented on a local level to address case law and relevant constitutional provisions – all explained in this article.

[24]   The codes must be adopted by reference using the procedures in RCW 35A.12.140 for code cities and RCW 35.21.180 for other types of cities.

[25]   RCW 35.22.280(30).  While this is the authority delegated by the State to a first class city, keep in mind that code cities “have all powers possible for a city or town to have under the Constitution of this state, and not specifically denied to code cities by law.”  RCW 35A.11.11.020.  See also, RCW 35A.21.160:  “A code city organized or reorganized under this title shall have all of the powers which any city of any class may have . . .”

[26]   Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir. 1985).

[27]   RCW 58.17.320.

[28]   RCW 19.27.050.  See also, RCW 19.27.110, which requires the county to enforce the International Fire Code in the unincorporated areas of the county.

[29]   Weston v. New Bethel Missionary Baptist Church, 23 Wash. App. 747, 753, 598 P.2d 411 (1978).

[30]   Taylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447 (1998).

[31]   See, Carkeek v. City of Seattle, 53 Wash. App. 277, 766 P.2d 480 (1989).

[32]   Chelan County v. Nykreim, 146 Wash.2d 904, 52 P.3d 1 (2002); but see, Larsen v. Town of Colton, 94 Wash. App. 383, 973 P.2d 1066 (1999) (neighbor’s action for injunctive relief to prevent construction of a garage on a parcel of property without a residence was not untimely, even though it was filed more than 21 days after the building permit issued, because the “triggering event” was actual or constructive knowledge of the building permit.  94 Wash. App. at 394.  Larsen issued prior to Chelan County, which includes a discussion of this timeliness issue.

[33]   Habitat Watch v. Skagit County, 155 Wash.2d 397, 120 P.3d 56 (2005).

[34]   Emmerson v. Weilep, 126 Wash. App. 930, 934, 110 P.3d 214 (2005).

[35]   Emmerson, 126 Wash. App. at 939

[36]   Smith v. City of Kelso, 112 Wash. App. 277, 282, 48 P.3d 372 (2002).

[37]   Id., 112 Wash. App. at 282.

[38]   Georges v. Tudor, 16 Wash. App. 407, 409, 556 P.2d 564 (1976).

[39]   Smith v. Kelso, 112 Wash. App. 277, 281, 48 P.3d 372 (2002).

[40]   Moore v. Wayman, 85 Wash. App. 710, 717, 934 P.2d 707 (1997).

[41]   Taylor, 111 Wash.2d at 163.

[42]   Weston v. New Bethel Missionary Baptist Church, 23 Wash. App. 747, 753, 598 P.2d 411 (1978).

[43]   Waite v. Whatcom County, 54 Wash. App. 682, 685, 775 P.2d 967 (1989).

[44]   Zimbelman v. Chausee Corp., 55 Wash. App. 278, 283, 777 P.2d 32 (1989).  See also, Atherton Condominium Apartment-Owners Ass’n Bd. Of Directors v. Blume Development Co., 115 Wn.2d 506, 533, 799 P.2d 250 (1990).

[45]   Id.

[46]   Id., 54 Wash. App. at 684.

[47]   Id., 54 Wash. App. at 688.

[48]   85 Wash.2d 1, 530 P.2d 234 (1975).

[49]   For a more recent case involving the court’s determination that the failure to enforce exception to the public duty doctrine applied, see, Gorman v. Pierce County, 176 Wash. App. 63, 307 P.3d 795 (2013).   In Gorman, the County’s code regarding dangerous dogs required that if the County was made aware of a likely potentially dangerous dog, it had a duty to evaluate the dog to determine if it was potentially dangerous.  Id., 176 Wash. App. at 804.  If it was declared potentially dangerous, the code mandated that the County take corrective action, seizing and impounding any dog whose owner allowed it to violate the restrictions.  In this lawsuit brought by a dog attack victim, the jury found the County liable because the failure to enforce exception to the public duty doctrine applied.  However, the jury also determined that the victim was contributorily negligent because she breached her duty by failing to exercise the care that a reasonable person would have exercised under the circumstances.

[50]   Smith v. Kelso, 112 Wash. App. 277, 48 P.3d 372 (2002).

[51]   Id., 112 Wash. App. at 286.

[52]   Fishburn v. Pierce County Planning and Land Services Dept., 161 Wash. App. 452, 464, 250 P.3d 146 (2011).

[53]   Taylor, 111 Wash.2d at 165.

[54]   Taylor, 111 Wash.2d at 164.

[55]   Halvorson v. Dahl, 89 Wash.2d 673, 574 P.2d 1190 (1978).

[56]   Id.

[57]   Id.

[58]   The fourth exception to the public duty doctrine (rescue) will not be discussed here.

[59]   Fishburn v Pierce County Planning and Land Services Dept., 161 Wash. App. 452, 471, 250 P.3d 146 (2011).

[60]   Fishburn. 161 Wash. App. at 471.

[61]   39 Wash. App. 392, 695 P.2d 128 (1985).

[62]   111 Wash.2d 159, 759 P.2d 447 (1988).

[63]   111 Wash.2d at 166.

[64]   111 Wash.2d at 170-71.

[65]   Rogers v. Toppenish, 23 Wash. App. 554, 596 P.2d 1096 (1979).

[66]   Id., 23 Wash. App. at 561.

[67]   Village of Willowbrook v. Olech, 528 U.S. 562, 564-65, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).

[68]   Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 1073, 30 L.Ed 220 (1886), cited in Burlington v. Kutzer, 23 Wash. App. 677, 681, 597, P.2d 1387 (1979).

[69]   Id., citing from Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed2d 446 (1962).

[70]   Id., citing from Spokane v. Hjort, 18 Wash. App. 606, 608, 569 P.2d 1230, 1231 (1977).

[71]   N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).

[72]   Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944).

[73]   Shanko v. Lake County, 116 F.Supp.3d 1055 (N.D. Calif. 2015).

[74]   Shanko, at 1063.  The court also found that the property owner had been able to make out a procedural due process and substantive due process claim against the county.

[75]   McGary v. City of Portland, 386 F.3d 1259, 1261 (9th Cir. 2004).

[76]   Id., 386 F.3d at 1270.

[77]   RCW 7.80.120(1).

[78]   See, Brower v. Pierce County, 96 Wash. App. 559, 984 P.2d 1036 (1999).

[79]   See, RCW 42.36.010.

[80]   RCW 42.36.060.

[81]   RCW 42.36.060.

[82]   See, Choi v. Fife, 60 Wash. App. 458, 464, 803 P.2d 1330 (1991).  In Choi, a property owner alleged that he could continue use of this property as a legal, nonconforming use even though he had abandoned such use, because the mayor wrote him a letter authorizing the continuation of the use.  Choi, 60 Wash. App. at 464.  The Choi court noted that nothing in the city’s code gave the mayor the authority to unilaterally allow the continuation of a nonconforming use, and only the city council could amend the code.  Therefore, the mayor’s letter was ultra vires and the City was not estopped from denying that the nonconforming use had been discontinued and was no longer legal.  Id., at 466.

[83]   See, Mission Springs, Inc. v. City of Spokane, 134 Wash.2d 947, 961, 954 P.2d 250 (1998) (city council’s delay of grading permit, after the council adopted an ordinance designating the building official as the official charged with the authority to issue grading permits, subjected the city and individual council members to liability for improper interference with the process by which a municipality issues grading permits).  See also, Caserta v. Zoning Board of Appeals of the City of Milford, 23 Conn. App. 232, 580 A.2d 528 (1990), reversed on other grounds, Caserta v. Zoning Board of Appeals of the City of Milford, 219 Conn. 352, 593 A.2d 118 (1991) (planner issued a permit, but planning commissioners subsequently determined that permit violated code and that the permit should be revoked. Acting under orders of the planning commission chair, the planner revoked the permit.  The property owner appealed the revocation and the court found that the planning commissioner’s order to revoke the permit usurped the authority of the planning commission under the code, and was therefore void.)

[84]   See, RCW 42.56.240(2), which is an exemption under the Public Records Act.

[85]   Seattle v. McCready, 124 Wn.2d 300, 302, 877 P.2d 686 (1994).

[86]   Margola Associates v. Seattle, 121 Wn.2d 625, 631, 854 P.2d 23 (1993).

[87]   Pasco v. Shaw, 127 Wn. App. 417, 110 P.3d 1200 (2005).

[88]   RCW 7.80.070.

[89]   RCW 7.80.100.

[90]  Post v. Tacoma, 167 Wn.2d 300, 311, 217 P.3d 1179 (2009).

[91]   RCW 35.22.280(30) relating to first class cities, but applicable to code cities under RCW 35A.21.160.

[92]   See, RCW 7.48.260.

[93]   RCW 35.21.310.

[94]   Chapter 35.80 RCW; see also, the Uniform Code for the Abatement of Dangerous Buildings.

[95]   Please contact the author of this Article for examples of model code enforcement chapters.

[96]   Because the author’s experience and preference is for locally adopted code enforcement procedures, not the statutory procedures in chapter 7.80 RCW, this article will focus on the former.

[97]   Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011), cited in Fernandez v. California, 134 S.Ct. 1126, 1132, 188 L.Ed2d 25 (2014).

[98]   Id., Fernandez v. California, 134 S.Ct. at 1132.

[99]   York v. Wahkiakum School District No. 200, 163 Wash.2d 297, 310, 178 P.3d 995 (2008).

[100]   York, 163 Wash.2d at 310.

[101]   State v. Weller, 185 Wash. App. 913, 922, 344 P.3d 695 (2015)

[102]   Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), cited in Warkintine v. Soria, 152 F.Supp.3d 1269 (E.D. Cal. 2016).

[103]   Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967); Conner v. City of Santa Ana, 897 F.2d 1487 (1990).  In Conner, the city, without the property owner’s consent, broke down their fence, entered their property and seized their automobiles.  The court held that the property owner had a reasonable expectation of privacy in their enclosed, fenced yard, and that the city’s warrantless entry was unconstitutional.

[104]   Camara v. Mun. Court of San Francisco, 387 U.S. 523, 533, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

[105]   Seattle v. McCready, 124 Wn.2d 300, 304, 877 P.2d 686 (1994); Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct. 2041 (1973); US v. Romero-Bustamente, 337 F.3d 1104 (9th Cir. 2003) (small, enclosed backyard immediately adjacent to defendant’s home qualified as part of “curtilage” of the kind protected by the Fourth Amendment).

[106]   Seattle v. McCready, 124 Wn.2d at 306.  See also, Chapman v. U.S., 365 U.S. 610, 616-17, 5 L.Ed.2d 828, 81 S.Ct. 776 (1961) (landlord had no authority to consent to a search of property leased to and occupied by others; the tenant enjoyed the privacy right in the leased premises and only the tenant could waive that right); Cranwell v. Seattle, 77 Wash. App. 90, 890 P.2d 491 (1995) (tenants could consent to inspection of common areas and landlord’s written refusal of consent to inspection of common areas did not override tenants’ subsequent consents to those inspections).

[107]   Seattle v. McCready, 124 Wn.2d at 306.

[108]   United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), cited in Fernandez v. California, 134 S.Ct. at 2233.

[109]   Peters v. Vinatieri and Lewis County, 102 Wn. App. 641, 9 P.3d 909 (2000).

[110]   Peters, 102 Wn. App. at 651.

[111]   State v. Young, 123 Wn.2d 173, 189, 867 P.2d 593 (1994).

[112]   United States v. Warner, 843 F.2d 401, 405 (9th Cir. 1988).

[113]   State v. Ridgway, 57 Wn. App. 915, 790 P.2d 1263 (1990).

[114]   State v. Johnson, 75 Wn. App. 692, 706-07, n. 7, 879 P.2d 984 (1994).

[115]   U.S. v. Brady, 734 F.Supp. 923 (E.D. Wash. 1990), citing, U.S. v. Calabrese, 825 F.2d 1342, 1350 (9th Cir. 1987).

[116]   Peters, 102 Wn.2d at 655.

[117]   Air Pollution Variance Bd. of Colorado v. Western Alfalfa Corp., 416 U.S. 861, 862-65, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974).

[118]   Archer v. Gipson, 108 F.Supp.3d 895, 906 (E.D. Cal. 2015).

[119]   Archer, 108 F.Supp.3d at 907.

[120]   Peters, 102 Wn. App. at 652.

[121]   Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001).

[122]   Lavan v. Los Angeles, 693 F.3d 1022 (9th Cir. 2012).

[123]   Id.

[124]   Bonneville v. Pierce County, 148 Wash. App. 500, 505, 202 P.3d 309 (2008).

[125]   Id., 148 Wash. App. at 505.

[126]   Id., 148 Wash. App. at 506.  Note the discussion in answer to Question 18 on permit revocation.

[127]   Id., 148 Wash. App. at 502-13.

[128]   Seattle v. McCready, 124 Wn.2d at 309.

[129]   Seattle v. McCready, 124 Wn.2d at 310.

[130]   See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967):  “We therefore conclude that administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure.”

[131]   Halvorson v. Dahl, 89 Wn.2d 673, 574 P.2d 1190 (1978).

[132]   Radach v. Gunderson, 39 Wn. App. 392, 395, 695 P.2d 128 (1985); Campbell v. Bellevue, 85 Wn.2d 1, 530 P.2d 234 (1975).

[133]   Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990).

[134]   Weinberg v. Whatcom County, 241 F.3d 746, 753 (9th Cir 2001).

[135]   Id.

[136]   The fourteenth amendment to the U.S. Constitution provides in part that no “State [shall] deprive any person of life, liberty or property, without due process of law.  Article 1, section 3 of the Washington Constitution likewise states that: “no person shall be deprived of life, liberty or property without due process of law.”

[137]   Olympic Forest Products, Inc. v. Chaussee Corp., 82 Wash.2d 418, 422, 511 p.2d 1002 (1973).

[138]   Id., quoting from, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed 865 (1950).

[139]   Id.

[140]   See, Seattle v. Koh, 26 Wn. App. 708, 614 P.2d 665 (1980) (intent was not an element of the crime of violating the city’s building code prohibiting changing the occupancy of any building without obtaining a separate permit, and so it was not necessary for the city to show that an apartment building owner participated in, or was even aware of the building code violation in his apartment building in order to hold him liable).

[141]  Review McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004) on a city’s alleged discrimination against a property owner with AIDS based on the city’s refusal to allow additional time for the property owner to clean up a nuisance condition  — in other words, to provide a “reasonable accommodation” under the FHA, ADA and local/state laws on discrimination.

[142]   Review RCW 58.17.210, which requires that the municipality issue a building permit, septic tank permit or other development permit for property that is illegally divided, when the applicant is an innocent purchaser without actual notice.

[143]   Washington Cedar & Supply Co., Inc. v. State, 137 Wash. App. 592, 154 P.3d 287 (2007).

[144]   Id., 137 Wash. App. at 606.

[145]   State v. Thomas, 25 Wash. App. 770, 610 P.2d 937 (1980).

[146]   Laymon v. Washington State Dept. of Natural Resources, 99 Wash. App. 518, 994 P.2d 232 (2000).

[147]   Biermann v. City of Spokane, 90 Wash. App. 816, 960 P.2d 434 (1998).

[148]   Weinberg v. Whatcom County, 241 F.3d 746, 753 (9th Cir. 2001).

[149]   Id.  Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 974, 108 L.Ed.2d 100 (1990).

[150]   Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), as quoted in Weinberg v. Whatcom County, 241 F.3d 746, 753, (9th Cir. 2001).

[151]   Weinberg, at 753.

[152]   Id.

[153]   Id.

[154]   See, Schneider v. County of San Diego, 28 F.3d 89 (9th Cir. 1994).  In Schneider, a vehicle owner brought a civil rights (1983) action against the county, dismantler and the dismantler’s president to recover for destruction of vehicles in order to abate a nuisance.  The court found that while a warrant was not required for the entry onto the property, the owner’s due process right to notice was violated.  “Loss of the use and enjoyment of a car deprives the owner of a property interest that may be taken from him only in accordance with the Due Process Clause.”  The car owner was notified that his vehicles were declared a public nuisance but only because they were parked in violation of the county’s code, not because they were junk vehicles.  Therefore, the county was required to follow its code which included a procedure for recovering the cost of the abatement, once the vehicles were removed – not dispose of the vehicles by sending them to a scrap yard.

[155]   Conner v. City of Santa Ana, 897 F.2d 1487 (9th Cir. 1990).

[156]   Warkentine v. Soria, 152 F.Supp.3d 1269, 1283 (E.D. Cal. 2016).

[157]   Id., 152 F. Supp.3d. at 1283.

[158]   Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed2d 18 (1976).

[159]   Warkentine, 152 F.Supp.3d 1269 at 1290.

[160]   See, RCW 36.70C.130(1)(a), which allows a court in a LUPA appeal to grant relief to the petitioner because the “body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless.”

[161]   HJS Development, Inc. v. Pierce County, 148 Wash.2d 451, 487, 61 P.3d 1141 (2003)

[162]   HJS, 148 Wash.2d at 484.

[163]   RCW 58.17.170.

[164]   The use of the correct bond form to address this problem will not be addressed in this article.  Many local jurisdictions accept “bonds” that are nothing more than personal promises.

[165]   Miller v. Board of County Commissioners of Santa Fe County, 144 N.M. 841, 192 P.3d 1218 (2008) (court found that because the subdivider of a plat approved in 1984 never complied with the conditions of subdivision approval, the approval was not valid and the final plat could be revoked twenty years later); Metropolitan Government of Nashville v. Barry Construction Co., 240 S.W.3d 840 (2007) (final plat was obtained on condition that a road be constructed, property in the plat changed hands, new owner argued that he did not have to construct road, but court held that failure to comply with plat conditions allowed the plat to be rescinded); Lane County v. Oregon Builders, 44 Or.App. 591, 606 P.2d 676 (1980) (subdivider could not assert laches as a defense to the county’s action to compel construction of sidewalks in the plat as required by final approval); Simpson Development Corp. v. City of Lebanon, 153 N.H. 506, 899 A.2d 988 (2006) (city’s approval of subdivision never became final because developer failed to perform conditions of subdivision approval); Parker v. Board of County Commissioners of Dona Ana County, 93 N.M. 641, 603 P.2d 1098 (1979) (where plat approval was subject to construction of a road, subdivider’s failure to construct the road was appropriate, and did not violate due process); Centex Homes LLC v. Township Committee of Township of Mansfield, 372 N.J. Super. 186, 857 A.2d 649 (2004) (local jurisdiction could terminate final plat approval for 414 unit residential development because the developer failed to develop the project and the developer acknowledged that it was unable to develop project as approved).

[166]   See, Congregation ETZ Chaim v. City of Los Angeles, 371 F.3d 1122, 1225 (9th Cir. 2004) (court finds that city is estopped from revoking permit pursuant to a settlement agreement); Valley Wood Preserving, Inc. v. County of Stanislaus, 785 F.2d 751 (9th Cir. 1986) (failure of conditional use permit holder to raise procedural due process claim before county board of supervisors, which revoked permit, barred permittee from later raising objection in a Section 1983 lawsuit against the board); Habitat Watch v Skagit County, 155 Wash.2d 397, 120 P.3d 56 (2005) (citizen group attempt to get county to revoke special use permit failed because it was not filed within 21 days after the county granted two permit extensions, even though the extensions were granted without public notice or hearing); Alger v. City of Mukilteo, 107 Wash.2d 541, 730 P.2d 1333 (1987) (city was liable for maliciously revoking permits allowing construction of houses, damage award of $1,369.400); Zink v. City of Mesa, 137 Wash. App. 271, 152 P.3d 1044 (2007) (city stipulated that it wrongfully terminated the Zink’s building permit, property owners are awarded over $30,000 in attorneys’ fees).

[167]   Weinberg v. Whatcom County, 241 F.3d 748, 754 (2001).

[168]   Mercer Island v. Tent City, 156 Wn. App. 393, 399, 232 P.3d 1163 (2010).

[169]   Asche v. Bloomquist, 132 Wn. App. 784, 796, 133 P.3d 475 (2006)

[170]   Mercer Island v. Steinmann, 9 Wn. App. 479, 481, 513 P.2d 80 (1973).

[171]   Id., 9 Wn. App. at 482.

[172]   Id., 9 Wn. App. at 483; see also, Choi v. City of Fife, 60 Wash. App. 458, 803 P.2d 1330 (1991) (doctrine of estoppel will not be applied to a governmental body where the act giving rise to the alleged reliance was ultra vires or void); Laymon v. Washington State Dept. of Natural Resources, 99 Wash. App. 518, 526, 994 P.2d 232 (2000) (where the representations allegedly relied upon are matters of law, rather than fact, equitable estoppel will not be applied).

[173]   Sec. 105.6 of the International Building Code, 2009 Ed., provides:

 

The building official is authorized to suspend or revoke a permit issued under the provisions of this code whenever the permit is issued in error or on the basis of incorrect, inaccurate or incomplete information, or in violation of any ordinance or regulation or any of the provisions of this code.

 

Sec. 105.4 of the same Code provides:

 

The issuance or granting of a permit shall not be construed to be a permit for, or an approval of any violation of any of the provisions of this code or of any other ordinance of the jurisdiction.  Permits presuming to give authority to violate or cancel the provisions of this code or other ordinances of this jurisdiction shall not be valid.  The issuance of a permit based on construction documents and other data shall not prevent the building official from requiring the correction of errors in the construction documents and other data.  The building official is also authorized to prevent occupancy or use of a structure where in violation of this code or of any other ordinances of this jurisdiction.

 

[174]   City of University Place v. McGuire, 144 Wn.2d 640, 648, 30 P.3d 453 (2001) (the initial burden of proving the existence of a nonconforming use is on the land user making the assertion; once established, the burden shifts to the party claiming abandonment or discontinuance of the nonconforming use to prove such).

[175]   Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

[176]   RCW 35A.11.020; for first class cities, see, RCW 35.22.280(35), for second class cities, see, RCW 35.23.440(29), for towns, see, RCW 35.27.362(14).

[177]   See, City of Seattle v. Sisley, 164 Wash. App. 261, 266, 263 P.3d 610 (2011), interpreting RCW 35.20.030 for a first class city.

[178]   IBC Section 114.4; IRC Section R113.4, which states that violators shall be subject to penalties “as prescribed by law.”

[179]   See, IFC Section. 109.4, which states that a violator shall be guilty of a _____ (specify offense) punishable by a fine of not more than _____ (amount) dollars or both such fine and imprisonment.

[180]   RCW 35.21.180 for non-code cities; RCW 35A.12.140 for code cities.

[181]   Seattle v. McCready, 124 Wn.2d 300, 877 P.2d 686 (1994).

[182]   Post v. City of Tacoma, 167 Wash.2d 300, 312, 217 P.3d 1179 (2009).

[183]   Post, 167 Wash.2d at 315.

[184]   City of Bonney Lake v. Kanany, 185 Wash. App. 309, 318, 340 P.3d 965 (2014).

[185]   City of Seattle v. McCready, 131 Wash.2d 266, 274, 931 P.2d 156 (1997).

[186]   Id., 131 Wash.2d at 275.  This case also lists cases addressing attorney fees as damages.

[187]  Clark v. Washington Horse Racing Comm’n, 106 Wash.2d 84, 720 P.2d 831 (1986).

[188]   Thompson v. Kittitas County, 178 Wash. App. 1023 (not reported in P.3d) (2013); Margitan v. Spokane Regional Health District, 192 Wash. App. 1024 (unpublished 1-21-16).

 


  1.  This Article is intended for use by cities, towns and counties.  The terms “city” and “municipality” may be used interchangeably.
  2.   Article XI, Section 11 of the Washington Constitution.
  3.   RCW 35A.63.060.  This article will include citations to the statutes applicable to code cities and code cities planning under GMA.
  4.   RCW 35A.63.100.
  5.   Girton v. Seattle, 97 Wash. App. 360, 368, 983 P.2d 1135 (1999).
  6.   RCW 36.70A.010.
  7.   RCW 36.70A.020(11).
  8.   RCW 36.70B.060.
  9.   RCW 36.70B.110.
  10.   Rhodes v. City of Battleground, 115 Wash. App. 752, 763, 63 P.3d 142 (2002); Burton v. Clark County, 91 Wash. App. 505, 958 P.2d 343 (1998).
  11.   For criminal ordinances, see, City of Spokane v. Douglass, 115 Wash.2d 171, 178-79, 795 P.2d 693 (1990); City of Tacoma v. Luvene, 118 Wash.2d 826, 827 P.2d 1374 (1992).  For civil ordinances, see, Anderson v. Issaquah, 70 Wash. App. 64, 75, 851 P.2d 744 (1993); Young v. Pierce County, 120 Wash. App. 175, 84 P.3d 927 (2004).
  12.   Young v. Pierce County, 120 Wash. App. 175, 182, 84 P.2d 927 (2004).
  13.   City of Pasco v. Shaw, 127 Wash. App. 417, 426, 110 P.3d 1200 (2005).
  14.   RCW 82.02.020; Citizen’s Alliance for Property Rights v. Sims, 145 Wash. App. 649, 187 P.3d 786 (2008); Stevens County v. Eastern Washington Growth Management Hearings Board, 163 Wash. App. 680, 262 P.3d 507 (2011); Olympic Stewardship Foundation v. Western Washington Growth Management Hearings Board, 166 Wash. App. 172, 274 P.3d 1040 (2012).
  15.   RCW 35A.63.060 for code cities.  RCW 35.63.100 for other cities and towns.
  16.   RCW 35A.63.100 for code cities.  RCW 35.63..080, 110 for other cities and towns.
  17.   RCW 35.63.125, “development regulations” has the same meaning as set forth in RCW 36.70A.030.  For code cities:  RCW 35A.63.105.
  18.   RCW 36.70B.160.
  19.   RCW 58.17.020.
  20.   RCW 58.17.030.
  21.   As long as they are adopted pursuant to RCW 58.17.060.  RCW 58.17.030.
  22.   RCW 58.17.035.
  23.   The State of Washington has also adopted amendments to these codes.  See, chapters 51-51, 51-52, 51-54, 51-56 of the Washington Administrative Code.
  24.   Many of the penalty provisions in these codes are blank.  Local jurisdictions need to adopt penalties for violations consistent with their statutory authority.  Also, these procedures need to be supplemented on a local level to address case law and relevant constitutional provisions – all explained in this article.
  25.   The codes must be adopted by reference using the procedures in RCW 35A.12.140 for code cities and RCW 35.21.180 for other types of cities.
  26.   RCW 35.22.280(30).  While this is the authority delegated by the State to a first class city, keep in mind that code cities “have all powers possible for a city or town to have under the Constitution of this state, and not specifically denied to code cities by law.”  RCW 35A.11.11.020.  See also, RCW 35A.21.160:  “A code city organized or reorganized under this title shall have all of the powers which any city of any class may have . . .”
  27.   Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir. 1985).
  28.   RCW 58.17.320.
  29.   RCW 19.27.050.  See also, RCW 19.27.110, which requires the county to enforce the International Fire Code in the unincorporated areas of the county.
  30.   Weston v. New Bethel Missionary Baptist Church, 23 Wash. App. 747, 753, 598 P.2d 411 (1978).
  31.   Taylor v. Stevens County, 111 Wash.2d 159, 759 P.2d 447 (1998).
  32.   See, Carkeek v. City of Seattle, 53 Wash. App. 277, 766 P.2d 480 (1989).
  33.   Chelan County v. Nykreim, 146 Wash.2d 904, 52 P.3d 1 (2002); but see, Larsen v. Town of Colton, 94 Wash. App. 383, 973 P.2d 1066 (1999) (neighbor’s action for injunctive relief to prevent construction of a garage on a parcel of property without a residence was not untimely, even though it was filed more than 21 days after the building permit issued, because the “triggering event” was actual or constructive knowledge of the building permit.  94 Wash. App. at 394.  Larsen issued prior to Chelan County, which includes a discussion of this timeliness issue.
  34.   Habitat Watch v. Skagit County, 155 Wash.2d 397, 120 P.3d 56 (2005).
  35.   Emmerson v. Weilep, 126 Wash. App. 930, 934, 110 P.3d 214 (2005).
  36.   Emmerson, 126 Wash. App. at 939
  37.   Smith v. City of Kelso, 112 Wash. App. 277, 282, 48 P.3d 372 (2002).
  38.   Id., 112 Wash. App. at 282.
  39.   Georges v. Tudor, 16 Wash. App. 407, 409, 556 P.2d 564 (1976).
  40.   Smith v. Kelso, 112 Wash. App. 277, 281, 48 P.3d 372 (2002).
  41.   Moore v. Wayman, 85 Wash. App. 710, 717, 934 P.2d 707 (1997).
  42.   Taylor, 111 Wash.2d at 163.
  43.   Weston v. New Bethel Missionary Baptist Church, 23 Wash. App. 747, 753, 598 P.2d 411 (1978).
  44.   Waite v. Whatcom County, 54 Wash. App. 682, 685, 775 P.2d 967 (1989).
  45.   Zimbelman v. Chausee Corp., 55 Wash. App. 278, 283, 777 P.2d 32 (1989).  See also, Atherton Condominium Apartment-Owners Ass’n Bd. Of Directors v. Blume Development Co., 115 Wn.2d 506, 533, 799 P.2d 250 (1990).
  46.   Id.
  47.   Id., 54 Wash. App. at 684.
  48.   Id., 54 Wash. App. at 688.
  49.   85 Wash.2d 1, 530 P.2d 234 (1975).
  50.   For a more recent case involving the court’s determination that the failure to enforce exception to the public duty doctrine applied, see, Gorman v. Pierce County, 176 Wash. App. 63, 307 P.3d 795 (2013).   In Gorman, the County’s code regarding dangerous dogs required that if the County was made aware of a likely potentially dangerous dog, it had a duty to evaluate the dog to determine if it was potentially dangerous.  Id., 176 Wash. App. at 804.  If it was declared potentially dangerous, the code mandated that the County take corrective action, seizing and impounding any dog whose owner allowed it to violate the restrictions.  In this lawsuit brought by a dog attack victim, the jury found the County liable because the failure to enforce exception to the public duty doctrine applied.  However, the jury also determined that the victim was contributorily negligent because she breached her duty by failing to exercise the care that a reasonable person would have exercised under the circumstances.
  51.   Smith v. Kelso, 112 Wash. App. 277, 48 P.3d 372 (2002).
  52.   Id., 112 Wash. App. at 286.
  53.   Fishburn v. Pierce County Planning and Land Services Dept., 161 Wash. App. 452, 464, 250 P.3d 146 (2011).
  54.   Taylor, 111 Wash.2d at 165.
  55.   Taylor, 111 Wash.2d at 164.
  56.   Halvorson v. Dahl, 89 Wash.2d 673, 574 P.2d 1190 (1978).
  57.   Id.
  58.   Id.
  59.   The fourth exception to the public duty doctrine (rescue) will not be discussed here.
  60.   Fishburn v Pierce County Planning and Land Services Dept., 161 Wash. App. 452, 471, 250 P.3d 146 (2011).
  61.   Fishburn. 161 Wash. App. at 471.
  62.   39 Wash. App. 392, 695 P.2d 128 (1985).
  63.   111 Wash.2d 159, 759 P.2d 447 (1988).
  64.   111 Wash.2d at 166.
  65.   111 Wash.2d at 170-71.
  66.   Rogers v. Toppenish, 23 Wash. App. 554, 596 P.2d 1096 (1979).
  67.   Id., 23 Wash. App. at 561.
  68.   Village of Willowbrook v. Olech, 528 U.S. 562, 564-65, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000).
  69.   Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 1073, 30 L.Ed 220 (1886), cited in Burlington v. Kutzer, 23 Wash. App. 677, 681, 597, P.2d 1387 (1979).
  70.   Id., citing from Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed2d 446 (1962).
  71.   Id., citing from Spokane v. Hjort, 18 Wash. App. 606, 608, 569 P.2d 1230, 1231 (1977).
  72.   N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).
  73.   Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944).
  74.   Shanko v. Lake County, 116 F.Supp.3d 1055 (N.D. Calif. 2015).
  75.   Shanko, at 1063.  The court also found that the property owner had been able to make out a procedural due process and substantive due process claim against the county.
  76.   McGary v. City of Portland, 386 F.3d 1259, 1261 (9th Cir. 2004).
  77.   Id., 386 F.3d at 1270.
  78.   RCW 7.80.120(1).
  79.   See, Brower v. Pierce County, 96 Wash. App. 559, 984 P.2d 1036 (1999).
  80.   See, RCW 42.36.010.
  81.   RCW 42.36.060.
  82.   RCW 42.36.060.
  83.   See, Choi v. Fife, 60 Wash. App. 458, 464, 803 P.2d 1330 (1991).  In Choi, a property owner alleged that he could continue use of this property as a legal, nonconforming use even though he had abandoned such use, because the mayor wrote him a letter authorizing the continuation of the use.  Choi, 60 Wash. App. at 464.  The Choi court noted that nothing in the city’s code gave the mayor the authority to unilaterally allow the continuation of a nonconforming use, and only the city council could amend the code.  Therefore, the mayor’s letter was ultra vires and the City was not estopped from denying that the nonconforming use had been discontinued and was no longer legal.  Id., at 466.
  84.   See, Mission Springs, Inc. v. City of Spokane, 134 Wash.2d 947, 961, 954 P.2d 250 (1998) (city council’s delay of grading rmit, after the council adopted an ordinance designating the building official as the official charged with the authority to issue grading permits, subjected the city and individual council members to liability for improper interference with the process by which a municipality issues grading permits).  See also, Caserta v. Zoning Board of Appeals of the City of Milford, 23 Conn. App. 232, 580 A.2d 528 (1990), reversed on other grounds, Caserta v. Zoning Board of Appeals of the City of Milford, 219 Conn. 352, 593 A.2d 118 (1991) (planner issued a permit, but planning commissioners subsequently determined that permit violated code and that the permit should be revoked. Acting under orders of the planning commission chair, the planner revoked the permit.  The property owner appealed the revocation and the court found that the planning commissioner’s order to revoke the permit usurped the authority of the planning commission under the code, and was therefore void.)
  85.   See, RCW 42.56.240(2), which is an exemption under the Public Records Act.
  86.   Seattle v. McCready, 124 Wn.2d 300, 302, 877 P.2d 686 (1994).
  87.   Margola Associates v. Seattle, 121 Wn.2d 625, 631, 854 P.2d 23 (1993).
  88.   Pasco v. Shaw, 127 Wn. App. 417, 110 P.3d 1200 (2005).
  89.   RCW 7.80.070.
  90.   RCW 7.80.100.
  91.  Post v. Tacoma, 167 Wn.2d 300, 311, 217 P.3d 1179 (2009).
  92.   RCW 35.22.280(30) relating to first class cities, but applicable to code cities under RCW 35A.21.160.
  93.   See, RCW 7.48.260.
  94.   RCW 35.21.310.
  95.   Chapter 35.80 RCW; see also, the Uniform Code for the Abatement of Dangerous Buildings.
  96.   Please contact the author of this Article for examples of model code enforcement chapters.
  97.   Because the author’s experience and preference is for locally adopted code enforcement procedures, not the statutory procedures in chapter 7.80 RCW, this article will focus on the former.
  98.   Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011), cited in Fernandez v. California, 134 S.Ct. 1126, 1132, 188 L.Ed2d 25 (2014).
  99.   Id., Fernandez v. California, 134 S.Ct. at 1132.
  100.   York v. Wahkiakum School District No. 200, 163 Wash.2d 297, 310, 178 P.3d 995 (2008).
  101.   York, 163 Wash.2d at 310.
  102.   State v. Weller, 185 Wash. App. 913, 922, 344 P.3d 695 (2015)
  103.   Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), cited in Warkintine v. Soria, 152 F.Supp.3d 1269 (E.D. Cal. 2016).
  104.   Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967); Conner v. City of Santa Ana, 897 F.2d 1487 (1990).  In Conner, the city, without the property owner’s consent, broke down their fence, entered their property and seized their automobiles.  The court held that the property owner had a reasonable expectation of privacy in their enclosed, fenced yard, and that the city’s warrantless entry was unconstitutional.
  105.   Camara v. Mun. Court of San Francisco, 387 U.S. 523, 533, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).
  106.   Seattle v. McCready, 124 Wn.2d 300, 304, 877 P.2d 686 (1994); Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct. 2041 (1973); US v. Romero-Bustamente, 337 F.3d 1104 (9th Cir. 2003) (small, enclosed backyard immediately adjacent to defendant’s home qualified as part of “curtilage” of the kind protected by the Fourth Amendment).
  107.   Seattle v. McCready, 124 Wn.2d at 306.  See also, Chapman v. U.S., 365 U.S. 610, 616-17, 5 L.Ed.2d 828, 81 S.Ct. 776 (1961) (landlord had no authority to consent to a search of property leased to and occupied by others; the tenant enjoyed the privacy right in the leased premises and only the tenant could waive that right); Cranwell v. Seattle, 77 Wash. App. 90, 890 P.2d 491 (1995) (tenants could consent to inspection of common areas and landlord’s written refusal of consent to inspection of common areas did not override tenants’ subsequent consents to those inspections).
  108.   Seattle v. McCready, 124 Wn.2d at 306.
  109.   United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), cited in Fernandez v. California, 134 S.Ct. at 2233.
  110.   Peters v. Vinatieri and Lewis County, 102 Wn. App. 641, 9 P.3d 909 (2000).
  111.   Peters, 102 Wn. App. at 651.
  112.   State v. Young, 123 Wn.2d 173, 189, 867 P.2d 593 (1994).
  113.   United States v. Warner, 843 F.2d 401, 405 (9th Cir. 1988).
  114.   State v. Ridgway, 57 Wn. App. 915, 790 P.2d 1263 (1990).
  115.   State v. Johnson, 75 Wn. App. 692, 706-07, n. 7, 879 P.2d 984 (1994).
  116.   U.S. v. Brady, 734 F.Supp. 923 (E.D. Wash. 1990), citing, U.S. v. Calabrese, 825 F.2d 1342, 1350 (9th Cir. 1987).
  117.   Peters, 102 Wn.2d at 655.
  118.   Air Pollution Variance Bd. of Colorado v. Western Alfalfa Corp., 416 U.S. 861, 862-65, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974).
  119.   Archer v. Gipson, 108 F.Supp.3d 895, 906 (E.D. Cal. 2015).
  120.   Archer, 108 F.Supp.3d at 907.
  121.   Peters, 102 Wn. App. at 652.
  122.   Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001).
  123.   Lavan v. Los Angeles, 693 F.3d 1022 (9th Cir. 2012).
  124.   Id.
  125.   Bonneville v. Pierce County, 148 Wash. App. 500, 505, 202 P.3d 309 (2008).
  126.   Id., 148 Wash. App. at 505.
  127.   Id., 148 Wash. App. at 506.  Note the discussion in answer to Question 18 on permit revocation.
  128.   Id., 148 Wash. App. at 502-13.
  129.   Seattle v. McCready, 124 Wn.2d at 309.
  130.   Seattle v. McCready, 124 Wn.2d at 310.
  131.   See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967):  “We therefore conclude that administrative entry, without consent, upon the portions of commercial premises which are not open to the public may only be compelled through prosecution or physical force within the framework of a warrant procedure.”
  132.   Halvorson v. Dahl, 89 Wn.2d 673, 574 P.2d 1190 (1978).
  133.   Radach v. Gunderson, 39 Wn. App. 392, 395, 695 P.2d 128 (1985); Campbell v. Bellevue, 85 Wn.2d 1, 530 P.2d 234 (1975).
  134.   Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990).
  135.   Weinberg v. Whatcom County, 241 F.3d 746, 753 (9th Cir 2001).
  136.   Id.
  137.   The fourteenth amendment to the U.S. Constitution provides in part that no “State [shall] deprive any person of life, liberty or property, without due process of law.  Article 1, section 3 of the Washington Constitution likewise states that: “no person shall be deprived of life, liberty or property without due process of law.”
  138.   Olympic Forest Products, Inc. v. Chaussee Corp., 82 Wash.2d 418, 422, 511 p.2d 1002 (1973).
  139.   Id., quoting from, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed 865 (1950).
  140.   Id.
  141.   See, Seattle v. Koh, 26 Wn. App. 708, 614 P.2d 665 (1980) (intent was not an element of the crime of violating the city’s building code prohibiting changing the occupancy of any building without obtaining a separate permit, and so it was not necessary for the city to show that an apartment building owner participated in, or was even aware of the building code violation in his apartment building in order to hold him liable).
  142.  Review McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004) on a city’s alleged discrimination against a property owner with AIDS based on the city’s refusal to allow additional time for the property owner to clean up a nuisance condition  — in other words, to provide a “reasonable accommodation” under the FHA, ADA and local/state laws on discrimination.
  143.   Review RCW 58.17.210, which requires that the municipality issue a building permit, septic tank permit or other development permit for property that is illegally divided, when the applicant is an innocent purchaser without actual notice.
  144.   Washington Cedar & Supply Co., Inc. v. State, 137 Wash. App. 592, 154 P.3d 287 (2007).
  145.   Id., 137 Wash. App. at 606.
  146.   State v. Thomas, 25 Wash. App. 770, 610 P.2d 937 (1980).
  147.   Laymon v. Washington State Dept. of Natural Resources, 99 Wash. App. 518, 994 P.2d 232 (2000).
  148.   Biermann v. City of Spokane, 90 Wash. App. 816, 960 P.2d 434 (1998).
  149.   Weinberg v. Whatcom County, 241 F.3d 746, 753 (9th Cir. 2001).
  150.   Id.  Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 974, 108 L.Ed.2d 100 (1990).
  151.   Zinermon v. Burch, 494 U.S. 113, 127, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), as quoted in Weinberg v. Whatcom County, 241 F.3d 746, 753, (9th Cir. 2001).
  152.   Weinberg, at 753.
  153.   Id.
  154.   Id.
  155.   See, Schneider v. County of San Diego, 28 F.3d 89 (9th Cir. 1994).  In Schneider, a vehicle owner brought a civil rights (1983) action against the county, dismantler and the dismantler’s president to recover for destruction of vehicles in order to abate a nuisance.  The court found that while a warrant was not required for the entry onto the property, the owner’s due process right to notice was violated.  “Loss of the use and enjoyment of a car deprives the owner of a property interest that may be taken from him only in accordance with the Due Process Clause.”  The car owner was notified that his vehicles were declared a public nuisance but only because they were parked in violation of the county’s code, not because they were junk vehicles.  Therefore, the county was required to follow its code which included a procedure for recovering the cost of the abatement, once the vehicles were removed – not dispose of the vehicles by sending them to a scrap yard.
  156.   Conner v. City of Santa Ana, 897 F.2d 1487 (9th Cir. 1990).
  157.   Warkentine v. Soria, 152 F.Supp.3d 1269, 1283 (E.D. Cal. 2016).
  158.   Id., 152 F. Supp.3d. at 1283.
  159.   Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed2d 18 (1976).
  160.   Warkentine, 152 F.Supp.3d 1269 at 1290.
  161.   See, RCW 36.70C.130(1)(a), which allows a court in a LUPA appeal to grant relief to the petitioner because the “body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless.”
  162.   HJS Development, Inc. v. Pierce County, 148 Wash.2d 451, 487, 61 P.3d 1141 (2003)
  163.   HJS, 148 Wash.2d at 484.
  164.   RCW 58.17.170.
  165.   The use of the correct bond form to address this problem will not be addressed in this article.  Many local jurisdictions accept “bonds” that are nothing more than personal promises.
  166.   Miller v. Board of County Commissioners of Santa Fe County, 144 N.M. 841, 192 P.3d 1218 (2008) (court found that because the subdivider of a plat approved in 1984 never complied with the conditions of subdivision approval, the approval was not valid and the final plat could be revoked twenty years later); Metropolitan Government of Nashville v. Barry Construction Co., 240 S.W.3d 840 (2007) (final plat was obtained on condition that a road be constructed, property in the plat changed hands, new owner argued that he did not have to construct road, but court held that failure to comply with plat conditions allowed the plat to be rescinded); Lane County v. Oregon Builders, 44 Or.App. 591, 606 P.2d 676 (1980) (subdivider could not assert laches as a defense to the county’s action to compel construction of sidewalks in the plat as required by final approval); Simpson Development Corp. v. City of Lebanon, 153 N.H. 506, 899 A.2d 988 (2006) (city’s approval of subdivision never became final because developer failed to perform conditions of subdivision approval); Parker v. Board of County Commissioners of Dona Ana County, 93 N.M. 641, 603 P.2d 1098 (1979) (where plat approval was subject to construction of a road, subdivider’s failure to construct the road was appropriate, and did not violate due process); Centex Homes LLC v. Township Committee of Township of Mansfield, 372 N.J. Super. 186, 857 A.2d 649 (2004) (local jurisdiction could terminate final plat approval for 414 unit residential development because the developer failed to develop the project and the developer acknowledged that it was unable to develop project as approved).
  167.   See, Congregation ETZ Chaim v. City of Los Angeles, 371 F.3d 1122, 1225 (9th Cir. 2004) (court finds that city is estopped from revoking permit pursuant to a settlement agreement); Valley Wood Preserving, Inc. v. County of Stanislaus, 785 F.2d 751 (9th Cir. 1986) (failure of conditional use permit holder to raise procedural due process claim before county board of supervisors, which revoked permit, barred permittee from later raising objection in a Section 1983 lawsuit against the board); Habitat Watch v Skagit County, 155 Wash.2d 397, 120 P.3d 56 (2005) (citizen group attempt to get county to revoke special use permit failed because it was not filed within 21 days after the county granted two permit extensions, even though the extensions were granted without public notice or hearing); Alger v. City of Mukilteo, 107 Wash.2d 541, 730 P.2d 1333 (1987) (city was liable for maliciously revoking permits allowing construction of houses, damage award of $1,369.400); Zink v. City of Mesa, 137 Wash. App. 271, 152 P.3d 1044 (2007) (city stipulated that it wrongfully terminated the Zink’s building permit, property owners are awarded over $30,000 in attorneys’ fees).
  168.   Weinberg v. Whatcom County, 241 F.3d 748, 754 (2001).
  169.   Mercer Island v. Tent City, 156 Wn. App. 393, 399, 232 P.3d 1163 (2010).
  170.   Asche v. Bloomquist, 132 Wn. App. 784, 796, 133 P.3d 475 (2006)
  171.   Mercer Island v. Steinmann, 9 Wn. App. 479, 481, 513 P.2d 80 (1973).
  172.   Id., 9 Wn. App. at 482.
  173.   Id., 9 Wn. App. at 483; see also, Choi v. City of Fife, 60 Wash. App. 458, 803 P.2d 1330 (1991) (doctrine of estoppel will not be applied to a governmental body where the act giving rise to the alleged reliance was ultra vires or void); Laymon v. Washington State Dept. of Natural Resources, 99 Wash. App. 518, 526, 994 P.2d 232 (2000) (where the representations allegedly relied upon are matters of law, rather than fact, equitable estoppel will not be applied).
  174.   Sec. 105.6 of the International Building Code, 2009 Ed., provides:The building official is authorized to suspend or revoke a permit issued under the provisions of this code whenever the permit is issued in error or on the basis of incorrect, inaccurate or incomplete information, or in violation of any ordinance or regulation or any of the provisions of this code.Sec. 105.4 of the same Code provides:The issuance or granting of a permit shall not be construed to be a permit for, or an approval of any violation of any of the provisions of this code or of any other ordinance of the jurisdiction.  Permits presuming to give authority to violate or cancel the provisions of this code or other ordinances of this jurisdiction shall not be valid.  The issuance of a permit based on construction documents and other data shall not prevent the building official from requiring the correction of errors in the construction documents and other data.  The building official is also authorized to prevent occupancy or use of a structure where in violation of this code or of any other ordinances of this jurisdiction.
  175.   City of University Place v. McGuire, 144 Wn.2d 640, 648, 30 P.3d 453 (2001) (the initial burden of proving the existence of a nonconforming use is on the land user making the assertion; once established, the burden shifts to the party claiming abandonment or discontinuance of the nonconforming use to prove such).
  176.   Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
  177.   RCW 35A.11.020; for first class cities, see, RCW 35.22.280(35), for second class cities, see, RCW 35.23.440(29), for towns, see, RCW 35.27.362(14).
  178.   See, City of Seattle v. Sisley, 164 Wash. App. 261, 266, 263 P.3d 610 (2011), interpreting RCW 35.20.030 for a first class city.
  179.   IBC Section 114.4; IRC Section R113.4, which states that violators shall be subject to penalties “as prescribed by law.”
  180.   See, IFC Section. 109.4, which states that a violator shall be guilty of a _____ (specify offense) punishable by a fine of not more than _____ (amount) dollars or both such fine and imprisonment.
  181.   RCW 35.21.180 for non-code cities; RCW 35A.12.140 for code cities.
  182.   Seattle v. McCready, 124 Wn.2d 300, 877 P.2d 686 (1994).
  183.   Post v. City of Tacoma, 167 Wash.2d 300, 312, 217 P.3d 1179 (2009).
  184.   Post, 167 Wash.2d at 315.
  185.   City of Bonney Lake v. Kanany, 185 Wash. App. 309, 318, 340 P.3d 965 (2014).
  186.   City of Seattle v. McCready, 131 Wash.2d 266, 274, 931 P.2d 156 (1997).
  187.   Id., 131 Wash.2d at 275.  This case also lists cases addressing attorney fees as damages.
  188.  Clark v. Washington Horse Racing Comm’n, 106 Wash.2d 84, 720 P.2d 831 (1986).
  189.   Thompson v. Kittitas County, 178 Wash. App. 1023 (not reported in P.3d) (2013); Margitan v. Spokane Regional Health District, 192 Wash. App. 1024 (unpublished 1-21-16).
2017-05-12T19:37:39+00:00 September 13th, 2016|Uncategorized|0 Comments

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