Biermann v. City of Spokane

• Decision Date: 14 April 1998
• Docket Number: No. 16716-0-III,16716-0-III
• Court: Washington Court of Appeals
• Parties: Elinore BIERMANN, Appellant, v. The CITY OF SPOKANE, a Washington municipal corporation, and Paul and Suzanne Markham, husband and wife, Respondents.

Page 816

90 Wn.App. 816

960 P.2d 434

Elinore BIERMANN, Appellant, v. The CITY OF SPOKANE, a Washington municipal corporation, and Paul and Suzanne Markham, husband and wife, Respondents.

No. 16716-0-III.

Court of Appeals of Washington,

Division 3,

Panel Three.

April 14, 1998.

Reconsideration Denied May 29, 1998.

Frederick J. Dullanty Jr., Witherspoon & Kelley, Kelly A. Nolen, Witherspoon Kelley et al, Jody M. McCormick, Spokane, for Appellant

Michael F. Connelly, Michael J. Piccolo, Spokane, for Respondents.

SCHULTHEIS, Chief Judge.

In 1995, Elinore Biermann complained to the City of Spokane about Paul and Suzanne Markham's construction of a garage in violation of certain provisions of the Spokane Municipal Code. The City issued three stop-work orders and threatened the Markhams with criminal action, but construction continued. The Markhams asked for a certificate of compliance and a City of Spokane Hearing Examiner granted the certificate. The superior court affirmed the decision because Ms. Biermann lacked standing. Ms. Biermann now appeals the superior court's ruling. We conclude that Ms. Biermann had standing and the issuance of the certificate of compliance is unsupported. We therefore reverse.

Facts

The Markhams applied for a building permit to build a 1,200 square foot garage in 1989. The Markhams' neighbor, Ms. Biermann, agreed to sign a side-yard waiver because During construction, the City conducted a number of inspections of the structure and did not report any code violations. Ms. Biermann, however, notified the Markhams and the City Building Department of code violations, as well as the lack of a valid building permit. The City issued stop-work orders in July and August 1995 and apprised the Markhams of the following violations: (1) the two story, 30-by 40-foot garage exceeds the one story, 28-by 36-foot dimensions specified in the building permit; (2) the area of the garage violates the accessory structure limit of 1,000 square feet; (3) the garage violates the 20-foot corner setback and is less than 5 feet to the adjacent lot; and (4) the 50 percent maximum rear-yard coverage may also be exceeded. The building official also found other building code violations, including unprotected openings and lack of parapet and firewalls. The Markhams continued construction. In response to their disregard of the orders, the City Attorney threatened the Markhams with possible criminal charges if they refused to correct the code violations or apply for a certificate of compliance.

the completed garage would encroach[960 P.2d 436] on her property. The City denied the permit because the plans exceeded the 1,000 square foot limitation on such structures. On June 28, 1993, the City issued a permit to construct a one-story, 1,008 square foot garage. Although the Spokane Municipal Code (SMC) states that building permits expire after 180 days, the Markhams did not begin construction until May 1994, over 120 days after the permit expired.

The Markhams applied for a certificate of compliance on July 10, 1996. After a hearing, the examiner granted the application and issued the certificate. Ms. Biermann appealed to superior court pursuant to the Land Use Petition Act. See RCW 36.70C.040. On April 10, 1997, the court ruled that Ms. Biermann did not have standing to object to the Markhams' lack of a valid building permit and affirmed

the examiner's decision. Ms. Biermann now appeals that decision.

Analysis

1. Standing. Ms. Biermann challenges the superior court's ruling that she lacked standing to assert the Markhams' lack of a valid building permit as a basis to challenge the certificate of compliance. She relies on the Land Use Petition Act as authority to challenge the decision. The City argues that it alone has the authority to issue building permits, and as a third party, Ms. Biermann cannot challenge the department's decisions.

Standing to challenge a court order or other court action requires a protectable interest that is adversely affected by such order or action. Vovos v. Grant, 87 Wash.2d 697, 699, 555 P.2d 1343 (1976); In re Marriage of T., 68 Wash.App. 329, 335, 842 P.2d 1010 (1993). "The interest must be more, however, than simply the abstract interest of the general public in having others comply with the law." T., 68 Wash.App. at 335, 842 P.2d 1010; see Vovos, 87 Wash.2d at 699, 555 P.2d 1343. Ms. Biermann's health, safety and comfort are directly affected by this garage. The Land Use Petition Act was intended to protect those interests. RCW 36.70C.060(2). That section grants standing to bring a land use petition to:

Another person aggrieved or adversely affected by the land use decision, or who would be aggrieved or adversely affected by a reversal or modification of the land use decision. A person is aggrieved or adversely affected within the meaning of this section only when all of the following conditions are present:

(a) The land use decision has prejudiced or is likely to prejudice that person;

(b) That person's asserted interests are among those that the local jurisdiction was required to consider when it made the land use decision;

(c) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the land use decision; and (d) The petitioner has exhausted his or her administrative remedies to the extent required by law.

RCW 36.70C.060(2). Ms. Biermann has standing to complain about the absence of a valid building permit and the code violation here.

2. Issuance of the Certificate of Compliance. In reviewing an administrative decision, we stand in the same position as the superior court. Wilson v. Employment Sec. Dep't, 87 Wash.App. 197, 201, 940 P.2d 269 (1997). We base our review on the administrative record. Snohomish County v. State, 69 Wash.App. 655, 664, 850 P.2d 546 (1993), review denied, 123 Wash.2d 1003, 868 P.2d 871 (1994). We review factual findings under the substantial evidence standard, and conclusions of law de novo. Wilson, 87 Wash.App. at 201-02, 940 P.2d 269.

Under the Land Use Petition Act, the reviewing court may grant relief from a local jurisdiction's decision if: (1) the decision is an erroneous interpretation of the law; (2) the decision is a clearly erroneous application of the law to the facts; (3) the decision is not supported by substantial evidence; (4) the land use decision is outside the authority or jurisdiction of the body or officer making the decision; or (5) the decision violated the constitutional rights of a party seeking relief. RCW 36.70C.130(1)(b) through (f).

An application for a certificate of compliance must include: "A copy of the building permit or other approval and other data necessary to demonstrate that the building was erected in good faith and after all reasonable efforts to comply with the code." SMC 11.02.0360(C)(2)(d). The burden of proving good faith and reasonable efforts to comply rests with the petitioner the Markhams. Douglass v. City of Spokane, 25 Wash.App. 823, 829, 609 P.2d 979, review denied, 94 Wash.2d 1006 (1980).

The Markhams' building permit expired before their construction began. The examiner concluded nonetheless that the City's inspections extended the deadline. The SMC requires that a person holding a current permit file a written request for additional time. SMC 11.01.203(B). The A legislature may delegate authority when it has provided "(1) appropriate standards to define what is to be done, and what administrative body is to accomplish it, and (2) procedural safeguards to control arbitrary administrative action." State v. Ermert, 94 Wash.2d 839, 847, 621 P.2d 121 (1980); Polygon Corp. v. City of Seattle, 90 Wash.2d 59, 578 P.2d 1309 (1978). The City's unpublished informal policy satisfies neither of these requirements.

Markhams made no request. The City nonetheless justified the extension by an unwritten, and, so far as this record shows, unpublished informal policy.

The Spokane Municipal Code sets out the procedure for requesting a building permit time extension. SMC 11.01.203. Nowhere in that section or SMC Title 11 is the power to modify that mandate delegated to the Department of Construction Services. The "unwritten policy" is an invalid delegation of power and the hearing examiner's reliance upon it was improper. The Markhams did not have a valid building permit for the garage.

Moreover, we do not believe that the examiner's findings support the conclusion of good faith. The findings summarize the problems in construction of the garage, including the City's failure to notice and cite code violations and Mr. Markham's admission that he gave the contractor the wrong plans. The examiner concluded that in the absence of direct evidence of bad faith, the omissions show that the Markhams proceeded in good faith. That is not the test. See Douglass, 25 Wash.App. at 829, 609 P.2d 979 (party requesting a certificate of compliance bears the burden of proving appropriateness of certificate).

Ms. Biermann does not have the burden of proving bad faith. The Markhams must show good faith. Here, given the code violations, an expired building permit and the continuing disregard of the stop-work orders, we conclude they cannot. Mr. Markham may have inadvertently given the wrong plans to his contractor. But even during the early stages of construction, the difference between the proposed one-story structure and a two-story garage We also disagree with the examiner's finding of no adverse impact. The examiner found that certain negative impacts on the neighboring property could be mitigated. The examiner also discounted Ms. Biermann's complaints of light and air blockage based on his personal visit to the property. But there is no indication of how these effects can be mitigated. And given the height and width of the building, we conclude that this finding is not supported by substantial evidence.

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