Oral Argument April 23, 2014
Appeal from King County Superior Court. Docket No: 10-2-44876-4. Judge signing: Honorable Suzanne M Barnett. Judgment or order under review. Date filed: 04/19/2012.
Charles R. Horner (of Law Offices of Charles R. Horner PLLC ), for appellant.
Peter S. Holmes, City Attorney, and Patrick Downs, Assistant, for respondent.
Authored by Marlin Appelwick. Concurring: Mary Kay Becker, James Verellen.
[184 Wn.App. 11] Appelwick,
¶ 1 Johnson was cited by the City for parking more than three vehicles on his single-family lot. He subsequently established that he had a vested right to a legal nonconforming use to park five additional cars on his lot. Under the City's ordinance scheme, Johnson was unable to present evidence of his nonconforming use as a defense to his citations. This violated his right to procedural due process. We vacate the citations, reverse the dismissal of his § 1983 claims, and remand.
¶ 2 Tyko Johnson owns a single-family home in Seattle. He has lived in the home since 1959. Johnson is a self- [184 Wn.App. 12] described " car guy." Since he moved in, he has kept multiple trailers, cars, and " car type projects" on the property.
¶ 3 On June 25, 2010, the city of Seattle (City) issued Johnson a warning informing him that he was in violation of the Seattle Municipal Code (SMC or Code). The warning instructed Johnson that he must " [l]imit the number of vehicles parked outdoors on a single-family lot to three (3)." On July 30, 2010, the City sent a second warning to Johnson. It informed him that, if he did not " take care of this situation in a timely manner," he would be subject to citation.
¶ 4 On September 13, 2010, the City issued Johnson a citation with a $150 penalty. The citation indicated that Johnson had " more than the allowed 3 vehicles parked on
a single family lot" in violation of SMC 23.44.016. Johnson requested a citation hearing, which took place on October 28, 2010. At the hearing, Johnson argued that he had a legal nonconforming use. On November 4, 2010, the hearing examiner issued an order affirming the citation. The order stated that the Department of Planning and Development (Department) must determine whether a property use is legal nonconforming. Because Johnson had not established a legal nonconforming use at the time of the hearing, the examiner concluded that the citation was proper.
¶ 5 On December 15, 2010, the City issued Johnson a second citation for parking more than three vehicles on a single-family lot. The penalty for the second citation was $500. Johnson again requested a hearing, which took place on January 27, 2011. The examiner affirmed the second citation.
[184 Wn.App. 13] ¶ 6 On February 22, 2011, the City issued Johnson a third citation, again with a penalty of $500, for parking more than three vehicles on a single-family lot. Johnson again appealed. The City moved for summary judgment. The hearing examiner granted summary judgment on April 4, 2011.
¶ 7 On March 16, 2011, the City sent Johnson a letter explaining the process for applying to the Department to establish his nonconforming use for the record. On May 11, Johnson applied to the Department. On August 31, 2011, the Department determined ...