Oral Argument September 13, 2013
Appeal from Pierce County Superior Court. Docket No: 10-2-05228-9. Judge signing: Honorable Brian Maynard Tollefson. Judgment or order under review. Date filed: 12/20/2011.
Rhys A. Sterling, for appellant.
Amy Jo Pearsall, City Attorney, and Mark D. Orthmann, Assistant, for respondent.
Authored by Thomas R Bjorgen. Concurring: Jill M Johanson, Joel Penoyar.
Thomas R Bjorgen, J.
[185 Wn.App. 310] [¶1] Robert Kanany appeals the trial court's denial of his summary judgment motion and its grant of summary judgment to the city of Bonney Lake (City), upholding civil penalties assessed by the City for various code violations at Kanany's properties. The published portion of this opinion addresses Kanany's argument that portions of Title 14 of the Bonney Lake Municipal Code (BLMC) deprived him of procedural due process because they did not provide an appeal process for all violations claimed and penalties assessed. On this issue, we hold that the relevant portions of Title 14 BLMC provided Kanany with a full opportunity to appeal the notices of violation and penalties at issue and therefore did not deprive him of due process. In the unpublished portion of the opinion, we reject Kanany's remaining arguments. Accordingly, we affirm the decision of the trial court.
[¶2] Kanany and Navid Kanani are co-owners of property in the City. In 2004, Kanany applied for a residential accessory building permit from the City, indicating his intent to [185 Wn.App. 311] build a duplex and a garage with a heated upstairs unit on the property. The City approved his permit and noted that " per code detached garage may not be converted to living space." Clerk's Papers (CP) at 212. After the duplex and garage were built, Kanany used the duplex as a rental property.
[¶3] Between 2007 and 2009, responding to complaints about Kanany's property, the City investigated the space above Kanany's garage to determine whether he was in compliance with the BLMC. In February 2007, the City sent Kanany a notice of civil violation, indicating that his property was in violation of BLMC 18.22.090 because he utilized or converted a portion of the garage into an " Accessory Dwelling Unit" (ADU). ADUs are prohibited in conjunction with a duplex. BLMC 18.22.090(C)(1). The City imposed a $1,000-a-day fine until Kanany became compliant. The notice stated that Kanany had 15 days to appeal the notice.
[¶4] In March 2007, Kanany sent Denney Bryan of the City a letter stating that his attorney had been told by the City that Kanany would not be in violation of the BLMC as long as the space above the garage did not contain a kitchen stove and washer/dryer and that Bryan had told him that the washer/dryer " is not an issue." CP at 216. Kanany stated that his tenants were using the space above the garage as a bedroom and recreational room and that " neither appliances" were in that space. CP at 216. This apparently satisfied the City for 2007. In 2008, responding to a complaint from a neighbor, the City again investigated and concluded that Kanany's property and the space above the garage still complied with the BLMC.
[¶5] On August 5, 2009, after another complaint, the City issued a letter to Kanany stating that the space above the garage violated BLMC 18.22.090(C)(1). The City asked Kanany to voluntarily comply with its requests to vacate tenants from the space and arrange an inspection of the property to verify the vacancy. The City gave Kanany 45 days to comply.
[185 Wn.App. 312] [¶6] On November 18, 2009, the City sent Kanany a notice of civil violation indicating that he had failed to respond to its letter within 45 days. The notice stated that under BLMC 14.130.070, it was imposing a $1,000-a-day fine until Kanany complied, and that under BLMC 14.130.080 and BLMC 14.120.020, the City's violation determination and subsequent fine were final unless Kanany appealed within 15 days. Kanany did not appeal.
[¶7] On January 8, 2010, the City filed a complaint against Kanany in superior court, asserting that he maintained an impermissible ADU in violation of BLMC 18.22.090(C)(1). Alleging Kanany's failure to respond to the November 2009 notice of civil violation, the City stated that its code violation determination and fines were final and collectible under BLMC 14.130.070.
[¶8] In the complaint, the City misidentified the property's address, and in June 2010, it moved under CR 15(a) for leave to file an amended complaint with the property's correct address. Kanany objected to the City's motion because the City had not joined Navid as a necessary party in the lawsuit under CR 19(a).
[¶9] In August, the trial court determined that (1) chapter 14.130 BLMC was constitutional on its face and as applied to Kanany, (2) Navid was not a necessary party to the action under the BLMC or CR 19(a), and (3) the City's motion to amend was proper under CR 15(a). The trial court granted the City's motion to amend.
[¶10] In November 2011, Kanany and the City filed cross motions for summary judgment. Kanany's motion asked the court to dismiss the city's complaint with prejudice. Kanany contended that beginning in 2004, he communicated with City officials several times about the space above his detached garage and they always told him that he was in compliance with the BLMC until the November 2009 notice [185 Wn.App. 313] of civil violation. Kanany asserted that he was not in violation of the BLMC because his tenants' use of the space above the garage had not changed between 2004 and 2009. Kanany also asserted that equitable estoppel prevented the City from assessing fines against him because it had previously agreed that Kanany was not in violation. Finally, Kanany argued that BLMC 18.22.090(C)(1) was invalid and unenforceable because it directly conflicted with an overriding BLMC provision and was fatally inconsistent with the City's comprehensive plan.
[¶11] To support his motion, Kanany filed a declaration attaching copies of several documents, including his 2007 and 2008 communication with the City, a June 2008 letter from the City to the complaining neighbor, the August 2009 letter and Kanany's letter in response, and the November 2009 notice of violation from the City. Kanany also supported his motion with a declaration from his attorney and attached copies of several city ordinances and the City's comprehensive plan.
[¶12] The City's cross motion for summary judgment asked the court to find that Kanany violated the BLMC and owed $48,000 in fines. The City argued that it gave Kanany proper notification of the violation and the consequences for failing to voluntarily correct the violation. The City stated that because Kanany failed to contact the City within 45 days of receiving the notice letter, it issued a notice of civil violation and imposed a $1,000-a-day penalty while the violation continued. In addition to the 45 days given to respond to the City's August 2009 letter, the City gave Kanany 15 days to appeal the November 2009 violation notice and penalty; however, Kanany still failed to respond. The City argued that there was no genuine issue of fact that Kanany failed to appeal the notice and fines and, absent any appeal, the City's notice of civil violation is final and the associated fines are collectible.
[¶13] In December 2011, the trial court granted the City's motion for summary judgment and denied Kanany's motion [185 Wn.App. 314] for summary judgment. The court entered judgment " against [Kanany] on behalf of the City for $48,000, the total amount of fines owed in connection to the Notice of Civil Violation as of the filing of ...