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Opinion in PDF Format
Supreme Court of the State of Washington
Opinion Information Sheet
SOURCE OF APPEAL
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JUSTICES
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COUNSEL OF RECORD
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View the Opinion in PDF Format
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
PAUL W. POST, )
)
Petitioner, ) No. 80684-5
)
v. ) En Banc
)
CITY OF TACOMA; CITY OF ) Filed October 15, 2009
TACOMA DEPARTMENT OF )
PUBLIC WORKS, BUILDING AND )
LAND USE SERVICES DIVISION; )
RISK MANAGEMENT )
ALTERNATIVES, INC.; and )
CHARLES SOLVERSON, )
)
Respondents. )
)
J.M. JOHNSON, J. -- The city of Tacoma's (Tacoma) building code
enforcement department found many of Paul Post's properties were in
violation of Tacoma's building codes and assessed hundreds of thousands of
dollars in civil penalties. Post cooperated with Tacoma for some repairs but
ultimately failed to bring all his properties into compliance. Post also sought
Post v. City of Tacoma, et. al, No. 80684-5
to appeal many of the fines, but in most cases Tacoma denied a hearing. Post
sued, seeking to bar Tacoma from enforcing its building code against him on
numerous grounds, including that his rights to due process were violated. The
trial court granted summary judgment for Tacoma on the merits. The Court
of Appeals affirmed, holding that all Post's claims were barred because he
failed to follow the procedures of the Land Use Petition Act (LUPA), chapter
36.70C RCW. We reverse, holding that LUPA does not bar Post's claims
and the Tacoma code procedure violates due process.
Facts and Procedural History
This case comes before the court on cross motions for summary
judgment. The material facts are complicated, but undisputed. Paul Post
owns numerous properties located in Tacoma, many of which are rental
properties. This action arises out of Tacoma's assessment of penalties
against Post because 24 of his Tacoma properties were repeatedly found to
violate city ordinances.
Tacoma regulates buildings through a Minimum Building and
Structures Code (MBSC). Ch. 2.01, Tacoma Municipal Code (TMC). Under
Tacoma's MBSC, structures are assigned points for various violations. If a
2
Post v. City of Tacoma, et. al, No. 80684-5
structure accumulates 50 points total at any time, that property is classified as
substandard. TMC 2.01.060.D.4. If such a building also has problems that
are considered more serious, it may be deemed derelict and unfit for human
occupancy. TMC 2.01.060.E.1. When a property has been classified as
substandard or derelict, the MBSC requires that the owner be notified by
letter of the violations and the actions to mitigate. TMC 2.01.060.D.4.a;
ch. 2.01 TMC, tbl. A at 2-21 (providing for "Formal Notification of
Infractions and Pending Penalties"). The owner has 30 days to respond to the
letter and negotiate a schedule for correcting the violations. TMC
2.01.060.D.4.a. The owner may also seek administrative review of this initial
notice of violation. TMC 2.01.060.D.6, E.5.
Owners are subject to civil penalties if they do not respond to the initial
notice of violation or if violations are not corrected. TMC 2.01.060.D.4.b,
E.3.b. The first fine is $125 per property; the second, third and fourth fines
are $250 per property. TMC 2.01.060, tbl. F at 2-27. These fines are
mandatory. TMC 2.01.060.D.4.b-e, E.3.b-e. The owner may seek
administrative review of the first fine, but the MBSC makes no provision for
review of any subsequent fines. TMC 2.01.060.D.6, E.5. After each
3
Post v. City of Tacoma, et. al, No. 80684-5
additional fine is assessed, another notification letter is sent, providing
decreasing amounts of time for the owner to respond. Id. If owners still fail
to respond to letters or to negotiate a repair schedule after four fines are
assessed, officials in the Building and Land Use Services Division have
discretion to assess fines every calendar day. TMC 2.01.060.D.4.f, E.3.e.
Unlike the first four fines, daily fines are not mandatory but may be imposed
until the violations have been corrected. TMC 2.01.060.D.4.f, E.3.e. The
MBSC contains no express procedure for administrative review of the later
imposition of daily fines.
Post began purchasing property in Tacoma in the 1960s. Many of the
properties were "run down." Clerk's Papers at 214. Post undertook to make
some repairs over the years, even gutting and rebuilding some properties. But
many other properties remained in disrepair, leading to complaints by
neighbors.
In 1999, Tacoma inspected many of Post's properties and found 13
properties were substandard and 15 were derelict and uninhabitable. For one
example, a single property was cited for pigeon infestation, missing smoke
detectors, lack of heat in all habitable rooms, and defective exit stairs.
4
Post v. City of Tacoma, et. al, No. 80684-5
Tacoma sent notice of violation letters for each property, notifying Post that
the properties were either substandard or derelict. These letters described the
violations and advised Post how to seek administrative review of the violation
notice. Post was given 30 days to respond to the notices and to negotiate a
schedule with Tacoma for correcting the problems.
For most of his noncompliant properties, Post responded to the notices
by agreeing to work schedules. Repair schedules varied widely depending on
the nature of the violations. For example, for one property Tacoma gave Post
six months to paint the exterior, replace doors, and provide heat to
bathrooms. However, Post did not respond to at least two of the notices of
violation.
Post failed to comply with the agreed repair schedules for 17
properties. In response to Post's noncompliance, Tacoma began issuing civil
penalties in the amount of $125 per property pursuant to TMC
2.01.060.D.4.b and E.3.b. The penalties were described in documents titled
"Civil Infraction Penalty Assessment" that accompanied notice of violation
letters describing 30 day appeal rights pursuant to TMC 2.01.060.D.6.b and
E.5.b. Although Post occasionally sought administrative review of these
5
Post v. City of Tacoma, et. al, No. 80684-5
notices of violation and fines, his appeals were always untimely, with one
exception. Post's sole timely appeal was considered and rejected by a
hearing examiner, and that ruling was affirmed on appeal.
Tacoma continued to inspect Post's noncompliant properties. Post was
not fined for those properties that were being repaired on schedule. For
others, where Post either had not responded to the notice of violation letters
or did not agree to repair schedules, Tacoma imposed second, third, and
fourth penalties of $250 per property. 1
In 2000, Tacoma began imposing $250 penalties on some properties on
a daily basis. Tacoma again provided notice of violation letters, similar to
earlier letters, but not including information on appeal rights. Post attempted
to appeal, but Tacoma denied the appeal as untimely, citing the MBSC's
requirement that notices of violation or first penalties must be appealed within
30 days. By 2005, total accumulated penalties ranged from $4,000 to
$84,000 per property, and Post claims he paid over $140,000 to Tacoma.
Some of the past due amounts were referred to a collection agency.
1 Additionally, Post asserts that when total penalties on a property reached $1,000,
Tacoma filed a certificate of complaint with the county auditor to be attached to the title
of the property, as required by the MBSC. Post asserts that these certificates act as liens
and prevent him from selling or refinancing the properties
6
Post v. City of Tacoma, et. al, No. 80684-5
Post instituted this action in Pierce County Superior Court, asking the
court to declare the MBSC, the fining procedure, and the fines levied against
him unconstitutional, and to enjoin enforcement of the MBSC against him.2
Tacoma counterclaimed for $411,000 in unpaid penalties.
On cross motions for summary judgment, Pierce County Superior
Court granted summary judgment in favor of Tacoma. The court held that
Post failed to exhaust his administrative remedies under chapter 36.70C RCW
(LUPA); that Tacoma's fines were not unconstitutionally excessive, did not
constitute double jeopardy, did not violate Post's due process rights, and did
not violate his civil rights under 42 U.S.C. § 1983; and that the penalties did
not exceed Tacoma's authority under chapter 7.80 RCW. The court
dismissed Post's damages claim and his amended complaint and granted
Tacoma's summary judgment motion. Post appealed.
The Court of Appeals held that Tacoma's notice of violation and
penalties were land use final determinations subject to the procedural
requirements of LUPA, including a 21-day deadline for filing and serving;
Post's initial request for monetary damages had been dismissed; and Post's
2 Post also sought reimbursement of his fines and monetary damages. Those claims were
either dismissed by the trial court or abandoned by Post prior to appeal. Post asserts he
has refiled his damages claim under a separate cause of action.
7
Post v. City of Tacoma, et. al, No. 80684-5
remaining claims for injunctive and declaratory relief were barred by LUPA.
See Post v. City of Tacoma, 140 Wn. App. 155, 165 P.3d 37 (2007). The
Court of Appeals affirmed the trial court's grant of summary judgment
without reaching the merits of Post's constitutional claims. Post filed a
petition for review with this court, which was granted. Post v. City of
Tacoma, 163 Wn.2d 1038, 187 P.3d 268 (2008).
Standard of Review
When reviewing an order of summary judgment, this court engages in
the same inquiry as the trial court. Morin v. Harrell, 161 Wn.2d 226, 230,
164 P.3d 495 (2007). Summary judgment is rendered where there is no
genuine issue of material fact and the moving party is entitled to a judgment
as a matter of law. CR 56(c). All facts and reasonable inferences therefrom
must be viewed in the light most favorable to the nonmoving party. Biggers
v. City of Bainbridge Island, 162 Wn.2d 683, 693, 169 P.3d 14 (2007).
Statutory interpretation is a question of law that this court reviews de novo.
In re Pers. Restraint of Cruz, 157 Wn.2d 83, 87, 134 P.3d 1166 (2006). The
applicability of the constitutional due process guaranty is a question of law
subject to de novo review. Wash. Indep. Tel. Ass'n v. Wash. Util. & Transp.
8
Post v. City of Tacoma, et. al, No. 80684-5
Comm'n, 149 Wn.2d 17, 24, 65 P.3d 319 (2003).
Analysis
A. LUPA's Application to Post's Claims
The threshold issue in this case is whether LUPA applies to Tacoma's
notices of violations and assessments of penalties. Post did not comply with
LUPA procedures, which include a 21-day deadline for filing. We hold that
LUPA does not apply to bar these claims and, therefore, reach the merits of
Post's claims.
Prior to enactment of LUPA, an aggrieved person could challenge a
local jurisdiction's land use decision by petitioning for a writ of certiorari in
the courts. Chelan County v. Nykreim, 146 Wn.2d 904, 916-17, 52 P.3d
1 (2002). The writ, originating in the common law, is both constitutional and
statutory in Washington. See Const. art. IV, § 6; ch. 7.16 RCW. In 1995, the
legislature enacted LUPA, chapter 36.70C RCW. The legislature's purpose
was "to reform the process for judicial review of land use decisions made by
local jurisdictions, by establishing uniform, expedited appeal procedures and
uniform criteria for reviewing such decisions, in order to provide consistent,
predictable, and timely judicial review."3 RCW 36.70C.010; see also James
9
Post v. City of Tacoma, et. al, No. 80684-5
v. Kitsap County, 154 Wn.2d 574, 115 P.3d 286 (2005) (surveying statute).
LUPA procedures replaced only the writ of certiorari as the vehicle for
appealing land use decisions.4 RCW 36.70C.030(1). Thus, LUPA applies
only to actions that fall within the statutory definition of a land use decision.
"Land use decision" is defined under LUPA as a "final determination"
by a local jurisdiction on one of three subjects:
(a) An application for a project permit . . . ;
(b) An interpretative or declaratory decision regarding the
application to a specific property of zoning or other ordinances
or rules regulating the improvement, development, modification,
maintenance, or use of real property; and
(c) The enforcement by a local jurisdiction of ordinances
regulating the improvement, development, modification,
maintenance, or use of real property. However, when a local
jurisdiction is required by law to enforce the ordinances in a
3 We recently noted that applying LUPA is consistent with our policy of favoring finality
in land use decisions. Twin Bridge Marine Park, LLC v. State, 162 Wn.2d 825, 843, 175
P.3d 1050 (2008). That policy applies in the enforcement context. See Samuel's
Furniture, Inc. v. Dep't of Ecology, 147 Wn.2d 440, 457, 54 P.3d 1194 (2002).
4 The statute provides exceptions for:
(a) Judicial review of:
(i) Land use decisions made by bodies that are not part of a local
jurisdiction;
(ii) Land use decisions of a local jurisdiction that are subject to review by a
quasi-judicial body created by state law, . . .;
(b) Judicial review of applications for a writ of mandamus or prohibition;
or
(c) Claims provided by any law for monetary damages or
compensation. . . .
RCW 36.70C.030(1). Post originally made a claim for damages but abandoned it prior to
appeal. See supra note 2.
10
Post v. City of Tacoma, et. al, No. 80684-5
court of limited jurisdiction, a petition may not be brought
under this chapter.
Former RCW 36.70C.020(1)(a)-(c) (1995) (emphasis added). We have
previously held that land use decisions under LUPA include the granting of a
special use permit, the granting of a building permit, the imposition of an
impact fee as a condition on the issuance of a building permit and approval of
a site-specific rezone. Habitat Watch v. Skagit County, 155 Wn.2d 397, 409,
120 P.3d 56 (2005) (special use permit); James, 154 Wn.2d at 584 (impact
fees); Nykreim, 146 Wn.2d 904 (building permits); Wenatchee Sportsmen
Ass'n v. Chelan County, 141 Wn.2d 169, 4 P.3d 123 (2000) (site-specific
rezone).
This court has never had the occasion to determine whether LUPA
applies to a city's determination of violations and assessments of penalties.
Our objective in interpreting a statute is to determine legislative intent. State
v. Jacobs, 154 Wn.2d 596, 600-01, 115 P.3d 281 (2005). When statutory
language is plain and unambiguous, the statute's meaning must be derived
from the wording of the statute itself. Nykreim, 146 Wn.2d at 926. The
"plain meaning" of a statutory provision is to be discerned from the ordinary
meaning of the language at issue, as well as from the context of the statute in
11
Post v. City of Tacoma, et. al, No. 80684-5
which that provision is found, related provisions, and the statutory scheme as
a whole. Jacobs, 154 Wn.2d at 600-01. A reading that produces absurd
results should be avoided, if possible, because we presume the legislature
does not intend them. State v. Vela, 100 Wn.2d 636, 641, 673 P.2d 185
(1983).
Because LUPA does not authorize petitions on the subject of
ordinances that must be enforced "in a court of limited jurisdiction," former
RCW 36.70C.020(1)(c), we must determine whether the MBSC is such an
ordinance. We hold that it is.5 The MBSC provides for the issuance of
notice of violation letters and the assessment and collection of civil penalties.
These actions are elements of what chapter 7.80 RCW calls "a system of civil
infractions."6 In fact, the MBSC explicitly refers to violations as infractions.7
And, the notice letters Tacoma sends to property owners designate violations
of the ordinance as civil infractions. Thus, in both name and substance,
5 Accordingly, it is not necessary to decide whether Tacoma's actions were "land use
decisions" within the meaning of LUPA. See RCW 36.70C.020(1)(a)-(b).
6 Similarly, this court defines infractions as "noncriminal violations of law defined by
statute (or ordinance)." Wash. Infraction Rules for Courts of Limited Jurisdiction (IRLJ)
1.1(a), 1.2(i).
7 See ch. 2.01 RCW, tbl. A at 2-21 (providing for "Formal Notification of Infractions and
Pending Penalties").
12
Post v. City of Tacoma, et. al, No. 80684-5
violations of Tacoma's MBSC are civil infractions.
The authority of local jurisdictions to issue civil infraction notices and
impose and enforce related penalties is governed by chapter 7.80 RCW.8
This statute provides local jurisdictions two options for issuing and enforcing
civil infractions. Under the default/judicial track, the entire civil infraction
system is administered and supervised by the courts, from issuance of the
notice to the collection of penalties.9 Infraction jurisdiction resides
exclusively in the district and municipal courts, i.e. courts of limited
jurisdiction. RCW 7.80.010(1)-(4), .050(5) ("A notice of infraction shall be
8 Although the legislature enacted chapter 7.80 RCW to decriminalize various violations of
law then classified as misdemeanors, its scope is broad and includes all violations of local
law and ordinances designated as civil infractions. See RCW 7.80.005, .010(1). As noted
above, Tacoma's MBSC and Tacoma's own correspondence designate violations of the
ordinance as civil infractions. Not coincidentally, many other Tacoma ordinances
explicitly incorporate or refer to chapter 7.80 RCW and other statutes governing
infractions. See, e.g., TMC 3.12.060.C.2 (cross-referencing chapter 7.80 RCW); TMC
4.15.020, .040 (adopting by reference RCW 77.15.060 and 79A.60.020, which cross-
reference infraction infraction scheme in chapter 7.84 RCW); TMC 5.16.080.A.1
(incorporating traffic infraction rules of chapter 46.63 RCW); TMC 8.27.030
(incorporating definition of civil infraction from chapter 7.80 RCW); TMC 8.29.060.E
(referencing chapter 7.80 RCW).
9See RCW 7.80.080 (notice of civil infraction must be filed in court; response to notice of
infraction must be sent to court; penalties must be paid to court clerk; court must enter
order recording defendant's response; court assesses the penalty). For a similar building
standards code that provides for judicial enforcement of civil infractions, see SMC
22.206.280(G) and .315 (building code enforcement actions must be brought in Seattle
Municipal Court). The Seattle code also provides for special assessments and liens on
property, see SMC 22.208.100, .110, which must also be judicially enforced. See, e.g.,
ch. 82.32 RCW.
13
Post v. City of Tacoma, et. al, No. 80684-5
filed with a court having jurisdiction . . . ."). The statute does provide that a
local jurisdiction may enforce civil infractions "pursuant to its own system
established by ordinance."10 RCW 7.80.010(5). But, to the extent cities do
not establish a system for hearing and determining infractions, the judicial
track is by default the system authorized by law.
Tacoma's MBSC provides for a hearing to appeal only the first notice
of violation and first civil penalty. However, Tacoma provides no process for
hearing and determining subsequent infractions. Where the city has no such
process, it cannot be said that it has "its own system," in the sense intended
by the legislature in RCW 7.80.010(5). Such interpretation would allow
Tacoma to impose unlimited punishment on civil defendants, a result that the
legislature did not authorize. Absent its own complete system, Tacoma is
required by chapter 7.80 RCW to follow the legislature's default system and
enforce its infractions in courts of limited jurisdiction. LUPA does not apply
when a local jurisdiction is required by law to enforce the ordinance at issue
in a court of limited jurisdiction. Former RCW 36.70C.020(1)(c). Moreover,
10 This arrangement is reflected in the infractions rules promulgated by this court. See
IRLJ 2.3 (except as otherwise specifically provided by statute or ordinance, an infraction
case shall be brought in the district court district or the municipality where the infraction
occurred).
14
Post v. City of Tacoma, et. al, No. 80684-5
even when a claim pertains to a "land use decision," if the remedy sought is
for money damages or compensation, as is the case here, that claim is "not
subject to the procedures and standards, including deadlines" provided in
chapter 36.70C RCW for review. RCW 36.70C.030(1)(c). Therefore, Post's
claims with regard to all infractions and penalties are not barred by LUPA.
B. Procedural Due Process Claim
Post claims that the MBSC violates his due process rights because it
provides for an appeal only of the initial notice of violation and first monetary
penalty, and not any penalties assessed thereafter.11 We agree.
Post argues that he ought to have an opportunity to be heard on each
separate infraction, even if they are issued (i.e., penalties are being assessed)
daily for the same violations. Tacoma objects that this would allow owners
like Post to relitigate the same violations. Tacoma claims that all subsequent
penalties following an initial violation are related enforcement actions and
should not require separate opportunities to be heard.
Though the procedures may vary according to the interest at stake, the
11 Post also argues that the MBSC's penalty provisions exceed Tacoma's statutory
authority under RCW 7.80.120, that the MBSC's penalty provisions violate the excessive
fines clause, and that the accumulation of penalties violates substantive due process.
Because we grant summary judgment for Post on the procedural due process issue, we do
not address Post's other claims.
15
Post v. City of Tacoma, et. al, No. 80684-5
fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S.
319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). To determine whether
existing procedures are adequate to protect the interest at stake, a court must
consider the following three 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.
Mathews, 424 U.S. at 335; Tellevik v. Real Property, 120 Wn.2d 68, 78, 838
P.2d 111 (1992) (adopting and applying the Mathews test).
The private interest Post seeks to vindicate is the right against the
assessment of erroneous or excessive monetary penalties. The risk of
erroneous deprivation is apparent. Tacoma asserts that every penalty was
"related" to an initial determination of violation and that it assessed additional
penalties only after reviewing each property for compliance. Although Post
was provided an opportunity to be heard on the initial findings, he had no
similar opportunity to bring potential errors to Tacoma's attention with regard
16
Post v. City of Tacoma, et. al, No. 80684-5
to any subsequent findings or penalties. In other words, the addition of any
procedural safeguards would provide exceedingly greater mitigation against
the risk of erroneous deprivation, than no safeguards at all.
Building standards serve the important interests of protecting public
safety, protecting property values, and preventing declining neighborhoods.
And we recognize that municipal governments have a strong interest in the
efficient administration and enforcement of their building codes. But Tacoma
does not claim that providing an opportunity for Post to be heard on each
separate infraction would be an overwhelming administrative burden. Rather,
Tacoma complains that such hearings would give Post an opportunity to
relitigate the underlying violations. This argument is misleading because
Tacoma's determination to assess additional penalties is based on property
conditions at the time of each determination. Nothing prevents Tacoma from
limiting the scope of a hearing on additional infractions to the conditions of
the property at the time it is found in violation, preventing the underlying
violations from being relitigated. A notable illustration is when the owner has
made some repairs -- as Post did with many of his properties -- but the
inspector finds the property (still) noncompliant. Owners such as Post may
17
Post v. City of Tacoma, et. al, No. 80684-5
be heard to contend that such repairs have brought the property into
compliance, without being allowed to relitigate previous violations.
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. Because Tacoma has no procedures in place for
civil defendants to appeal any but the first penalty, we need not speculate
about what procedure might satisfy due process.12 It is sufficient to hold that,
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.
Conclusion
The MBSC violates Post's procedural due process rights. The sections
of the MBSC purporting to authorize the unlimited and unreviewable issuance
and enforcement of subsequent civil infractions and penalties without any
system of procedural safeguards are unconstitutional on their face and as
12 We note that Washington's largest municipality has opted to follow the judicial track of
chapter 7.80 RCW. SMC 22.206.280(G), .315 (building standards enforcement actions
must be brought in Seattle Municipal Court).
18
Post v. City of Tacoma, et. al, No. 80684-5
applied to Post. Accordingly, we reverse the Court of Appeals decision and
remand with instructions that summary judgment be entered for Post.
AUTHOR:
Justice James M. Johnson
WE CONCUR:
Justice Susan Owens
Justice Richard B. Sanders Justice Debra L. Stephens
Justice Tom Chambers
19
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