CARL CONSTRUCTION v. CITY OF TACOMA, 20073-2-II

• Decision Date: 22 January 1999
• Docket Number: No. 20073-2-II,21382-6-II,20073-2-II
• Court: Washington Court of Appeals
• Parties: CARL CONSTRUCTION, AND DAVID LEE CARL; AND DONNA MAE CARL, HUSBAND AND WIFE, APPELLANTS, v. CITY OF TACOMA, A FIRST CLASS CITY; AND TACOMA CITY COUNCIL, AND RODNEY M. KERSLAKE, HEARINGS EXAMINER, AND KATHLEEN MILLS, LAND USE ADMINISTRATOR, AND JOSEPH QUILICI, LAND USE ADMINISTRATOR, AND CITY OF TACOMA PLANNING DEPARTMENT, AND TOM DOLAN, ZONING ENFORCEMENT OFFICER, AND ROBIN MOYER, PLANNING DEPARTMENT EMPLOYEE, RESPONDENT.

[1]
[2]	CARL CONSTRUCTION, AND DAVID LEE CARL; AND DONNA MAE CARL, HUSBAND AND WIFE, APPELLANTS,; v.; CITY OF TACOMA, A FIRST CLASS CITY; AND TACOMA CITY COUNCIL, AND RODNEY M. KERSLAKE, HEARINGS EXAMINER, AND KATHLEEN MILLS, LAND USE ADMINISTRATOR, AND JOSEPH QUILICI, LAND USE ADMINISTRATOR, AND CITY OF TACOMA PLANNING DEPARTMENT, AND TOM DOLAN, ZONING ENFORCEMENT OFFICER, AND ROBIN MOYER, PLANNING DEPARTMENT EMPLOYEE, RESPONDENT.
[3]	No. 20073-2-II Consolidated with 21382-6-II
[4]	Washington Court of Appeals
[5]	Source of Appeal: Appeal from Superior Court of Pierce County Docket No: 91-2-06470-4 Judgement or order under review Date filed: 10/27/95 Judge signing: Hon. Waldo F. Stone
[6]	January 22, 1999
[7]	Counsel: Counsel for Appellant(s) Richard D. Shepard Attorney At Law 1010 S I St PO Box 5327 Tacoma, WA 98415 Counsel for Respondent(s) Kyle J. Crews Assistant City Attorney Tacoma Municipal Bldg. 747 Market-Rm 1120 Tacoma, WA 98402 Kathryn B. Gerhardt Office of City Attorney 747 Market St Rm 1120 Tacoma, WA 98402-3767
[8]	The opinion of the court was delivered by: Hunt, J.
[9]	Judges: Authored by J. Robin Hunt Concurring: Carroll C. Bridgewater David H. Armstrong
[10]	UNPUBLISHED OPINION
[11]	David Carl appeals the City of Tacoma's (City) revocation of his Home Occupation Permit and business license and denial of a Home Occupation License and Side Sewer License, stemming from construction business equipment stored in his backyard.*fn1 Finding the City's permit and license revocations and denials supported by facts and law, we affirm.
[12]	FACTS
[13]	A. First Home Occupation Permit
[14]	On July 31, 1987, David Carl, dba Carl Construction (Carl), applied for a Home Occupation Permit (HOP)*fn2 to operate a general contracting business as a "home occupation"*fn3 on his residential property in a Tacoma neighborhood. Carl represented that he would be using the property: 40 hours a week. I'm only employing myself. 1 room to be used as an office. Parking my equipment in the back yard 15' x 20'. 1 small dump truck, and 1 small excavator will come and go between on{}e to three times a day.
[15]	The City of Tacoma (City) Planning Department issued Carl a conditional HOP on the day that he filed his application. Carl signed a Conditional Home Occupation Agreement included in the permit.*fn4 In so doing, he agreed not to store outdoors "equipment used in the home occupation" or to "generate nuisances such as traffic, . . . noise, vibration, . . . odors, . . . to any greater extent than what is usually experienced in the residential neighborhood." See footnote 4.
[16]	Sometime after the HOP was issued, Carl replaced the small dump truck with a larger one*fn5 and added another excavator and a trailer for towing the excavators behind the dump truck. Neighbors complained. On May 17, 1990, the City asked Carl to bring his equipment storage into compliance with his HOP. Carl responded that his actions did not violate the terms of his HOP. He agreed to advise the City of a time for inspection, when all the equipment normally stored at his residence would be on the premises, so that the City could determine whether his use violated his HOP.
[17]	On June 27, 1990, the Planning Department received a written complaint from Cynthia Karwoski,*fn6 one of Carl's neighbors, concerning noise, vibration, odor, and traffic from Carl's business. She attached photographs of a large dump truck and backhoe parked in Carl's backyard. On July 6, 1990, the City Zoning Enforcement Officer visited Carl's property and photographed the equipment stored in the backyard. Subsequently, representatives of the City met with Carl, who again contended that his use complied with the conditions of his HOP permit. He denied that his storage of equipment impacted the neighborhood, either with noise or traffic obstruction. Carl submitted letters from nine neighbors who did not object to his use of his premises.
[18]	On August 15, 1990, City Land Use Administrator Joseph Quilici revoked Carl's HOP. Quilici reasoned that the stated intent of the home occupation ordinance was "to regulate the operation of home occupations so that the average neighbor, under normal conditions, will not be aware of the existence of any such home occupation." Former Tacoma Municipal Code (TMC) Section 13.06.195. Quilici found that: (1) storage of the dump truck and excavator at the rear of Carl's property was inconsistent with the conditions attached to the July 31, 1987, HOP; (2) the noise, vibrations, and odors associated with Carl's operation of the stored construction equipment constituted nuisances in the residential neighborhood; and (3) Carl's use of the property was inconsistent with the intent of the HOP regulations. Carl requested reconsideration, which Quilici denied. Carl appealed to the City Hearing Examiner, arguing that the Land Use Administrator had erred in revoking his HOP. At a public hearing held December 11, 1990, Carl argued that he had complied with the conditions of the HOP, had detrimentally relied on the issuance of the HOP in "expand{ing}" his business, and would be financially ruined if he were not permitted to continue running his business as usual. The Hearing Examiner found that: (1) Carl's storage of equipment was "inconsistent with the residential setting" in which Carl's property is located and interfered with traffic in the area; (2) Carl's moving and operation of the equipment created nuisances, including excess noise, vibration, and odors not normally associated with such a residential neighborhood; (3) the HOP conditions were substantially similar to the criteria set forth in TMC 13.06.195; and (4) contrary to Carl's assertion, the City could not waive compliance with the HOP conditions even if it had issued the HOP in error. On January 17, 1991, the Examiner affirmed the Land Use Administrator's revocation of Carl's HOP.
[19]	At a hearing on June 11, 1991, the Tacoma City Council reviewed the Hearing Examiner's decision. Karwoski represented herself, her husband, Douglas Chaney, and her neighbors Jim and Judy Becker, as parties negatively impacted by Carl's use of his property. At the outset, Council Member Myklund declared that he was acquainted with Karwoski but did not believe that their acquaintance had any bearing on his decision-making. The Council upheld the Hearing Examiner's determination.
[20]	In Pierce County Superior Court, Carl sought: (1) a writ of certiorari; (2) damages for loss of income, increased cost, emotional stress and hardship; (3) compensation for "secondary liabilities incurred by Plaintiffs as a result of Defendant's actions"; (4) recovery of costs and expenses; and (5) invalidation of TMC 13.06.195. The City requested: (1) dismissal of Carl's complaint; (2) a declaration that TMC 13.06.195 was constitutional; (3) an injunction to stop Carl's continued operation of his home business in violation of TMC 13.06.195; and (4) costs and attorney fees. The superior court bifurcated Carl's claims into a writ of certiorari and a tort claim.
[21]	On the writ of certiorari, the court ruled that: (1) the decision of the Hearing Examiner was not arbitrary, capricious, or contrary to law; (2) the HOP regulations are constitutional because they promote health and safety; (3) Carl's parking of construction vehicles outside his home was inconsistent with the definition of "home occupation"; (4) although the original issuance of the HOP to Carl was in error, the City was not estopped from enforcing its zoning regulations in light of the Hearing Examiner's findings; (5) the City complied with RCW 42.17.250(2), entitled "Duty to Publish Procedures"; (6) the City's actions did not violate the appearance of fairness doctrine; and (7) the City's decision should not be reversed on grounds of arbitrary enforcement or construction. On September 24, 1993, the trial court clarified its ruling with findings of fact and Conclusions of law.
[22]	In a March 28, 1995, letter to counsel, the trial court addressed most of the tort claim issues, finding that: (1) Carl did not contest the City's arguments that the invalid HOP conferred no rights; (2) issuance of the HOP did not equitably estop the City from later revoking it; and (3) the City was entitled to summary Judgement on both theories, as well as Carl's theory of intentional interference with business expectancy, because there was no right to an HOP and (based upon the court's September 1993 decision) no right to park his construction vehicles at his home.
[23]	The trial court denied the City's motion for summary Judgement as to its contention that it had no duty to avoid wrongly issuing the HOP. The court reasoned that there was an issue of fact about whether a Tacoma City employee, Robin Meyer,*fn7 had formed a "special relationship" by his representations to Carl. At trial, the court found: (1) there was no "special relationship" between Meyer and Carl because Meyer was one of several employees to speak to Carl, and he was authorized to speak for the City in only a very limited capacity; (2) damages were speculative, partly because Carl had never stopped using his backyard to store his equipment; (3) Carl had violated the conditions of the HOP; and (4) Carl had failed to establish that the City had been negligent in issuing the original HOP permit. The court dismissed the case, and we granted review to Carl's Appeal No. 20073-2-II.
[24]	B. Second HOP; Revocation of Business License While the original actions were being litigated, Carl applied for another HOP on March 31, 1995. On August 4, 1995, Land Use Administrator Kathlyn Henderson denied the application, based upon Carl's stated disagreement with HOP conditions. She also recommended that the Tax and License Division revoke Carl's business license.
[25]	On August 18, Carl appealed the denial of this HOP. On August 25, 1995, the Tax and License Division denied Carl's Home Occupation License (HOL) and his Side Sewer Contract License because the Land Use

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