City of Selah v. Owens
| Decision Date | 02 February 2021 |
| Docket Number | 36793-2-III |
| Court | Washington Court of Appeals |
| Parties | CITY OF SELAH, a Washington, municipal corporation, Respondents, v. STEVE OWENS and JANET OWENS, husband and wife, ant the marital community composed thereof, Appellants. |
UNPUBLISHED OPINION
Property owners Steve and Janet Owens challenge on procedural and substantive grounds the superior court's grant of a summary judgment motion in favor of the city of Selah. The order declared an apartment complex to be a nuisance and required abatement of the nuisance. Because no procedural obstacle precluded the city's lawsuit for nuisance and because the undisputed facts established a nuisance, we affirm the grant of summary judgment.
Steve and Janet Owens own residential rental property, at 519 South First Street in Selah, constructed in the 1920s. The property consists of five multi-family buildings containing eighteen apartment units organized as 1-4, 5-6, 7-9, 10-13, 14-18 and two stand-alone units, 19 and 21. The multi-family dwellings likely result from merging smaller independent cabins. Each unit comprises a single story residence with an attic. The back of each unit includes an addition affixed after the original construction. Steve and Janet Owens rent the twenty units, complete with water, sewer, electricity, and gas, for $450 per month.
The original owners of the 519 South First Street complex built the housing before adoption of the Uniform Building Code or International Building Code. Thus no design requirements for structural adequacy existed at construction. Former owners also likely erected the back additions to each unit before adoptions of a code or at least before enforcement of a code by Yakima County or the city of Selah.
In 2016, the city of Selah issued citations for code violations to Steve and Janet Owens as a result of conditions at 519 South First Street. As a result, on November 1, 2016, Steve Owens signed a stipulated order of continuance in Selah Municipal Court, under which order he agreed that all property owned by him in Selah would comply with the city code. In the event of noncompliance, Owens would correct the violation within twenty days of notice from the city. The city of Selah would dismiss the pending citations if Owens avoided any further violations by October 31, 2017.
The events leading to this lawsuit begin with injuries to tenant Debra Redman. Debra and Robert Redman resided in unit 18 at 519 South First Street. On September 13, 2017, Debra Redman fell through a rotten floor in the residence. She could not free herself from between a door jamb and the toilet and bathtub. Her trapping constricted Redman's breathing. She summoned emergency responders.
Captain Andrew Wangler and a response team of the City of Selah Fire Department responded to Debra Redman's dispatch call. The team removed the door jamb, jack stud, and carpet in order to free Redman. In an incident report, Captain Wangler wrote:
When the structural members of the door and carpet were removed it was noted that the floor had immense water damage and rotting away. The floor had about 1x1 inch hole in the sub floor to the ground with numerous soft spots on the sub floor throughout the bathroom and entry way to the bathroom. The sub floor also was wet and rotted on the entry way. It was also observed to have cockroaches residing with the residents. After all this was done the patient was moved onto a long board and 6 individuals used it as a lever to move the patient to the bed where she was able to regain her breath and refused transport to the hospital.
Clerk's Papers (CP) at 1140. Steve Owens thereafter served an eviction notice on Debra and Robert Redman.
On October 2, 2017, the city of Selah received a complaint from Debra Redman regarding the substandard living conditions of her apartment. In response, City Administrator Don Wayman Code Enforcement Officer Erin Barnett, City Fire Marshal James Lange, and Director of Community Development and Building Official Jeffery Peters inspected the unit. Officials found the small dwelling dirty and cramped. They observed a hole with spongy flooring surrounding it covered by a linoleum piece. Black timbers indicated rot. Sheetrock in the restroom showed water damage. Strand board replaced some of the sheetrock. The area around the toilet and sink showed leakage and attempted repairs.
During the October 2, 2017 inspection, Building Official Jeffery Peters observed powder spread along window sills countertops, door jams, and trim. Debra Redmans' son stated the powder consisted of Comet cleaner and insect repellant. Peters and Code Enforcement Officer Erin Barnett walked along the other units at 519 South First Street and noticed numerous violations of the International Property Maintenance Code. The violations included deterioration of the outside of buildings, exposed electrical cords, sealed windows with flammable construction caulking, rotten sill plate, bowed siding, and rotten windowsills.
On returning to his city office, Building Official Jeffery Peters found Steve Owens waiting for him. Owens questioned the presence of city officials at his property without his permission. Peters informed Owens of the complaint. Owens indicated that he knew the identity of the reporting resident and that he intended to evict the tenants of unit 18 because he could not repair the floor of the unit while the tenants resided in the apartment. Owens asserted that Debra and Robert Redman permitted the apartment to fall into disarray. He highlighted that, when the Redmans took possession in 2013, the unit had no water leakage, floor rot, or pest infestation. The bathroom then had a door and the shower had a shower curtain. According to Owens, the Redmans failed to alert him to the apartment needing repairs or pest removal.
During the October 2 discussion, Jeffery Peters told Steve Owens that units at 519 South First Street had multiple violations of the International Property Maintenance Code, but added that he could not share the specific violations unless the city administrator so authorized him. Owens replied that he would repair the units if provided a list of violations.
On October 31, 2017, at the review hearing for the 2016 charges for violations of the city code, the city of Selah claimed that Steve Owens violated the November 1, 2016 stipulated order of continuance because of the September 13, 2017 accident and injuries to Debra Redman. Owens responded that he had since repaired the floor, door jamb, ceiling, and other defects in unit 18. He also argued that Selah had given him no notice of any violations. The municipal court continued the review hearing for twenty days for Steve Owens to demonstrate repairs to unit 18.
On November 16, 2017, the City of Selah filed the suit, pending before this court on appeal, against Steve and Janet Owens in Yakima County Superior Court. The City alleged violations of the International Property Maintenance Code, as incorporated by the city code, at 519 South First Street. In its lawsuit the city of Selah asserted only one cause of action, that being nuisance. Selah requested injunctive relief in the form of authorizing city staff to inspect the property, ordering Steve and Janet Owens to remedy all codes violations ordering demolishment of the buildings in the event that repairs were not feasible or economical, ordering vacation of the property by tenants during repairs, authorizing Selah to perform the repairs if the Owenses failed to do so, and authorizing Selah to file a lien on the property for any cost of repairs.
In its complaint, the city of Selah alleged that Steve and Janet Owens had taken no measures to correct the code problems or relocate the residents of the apartments to safe areas to address health and safety concerns. The city filed, with its complaint, declarations of Building Official Jeffery Peters Selah Code Enforcement Officer Erin Barnett, and Fire Department Captain Andrew Wangler, with the September 13, 2017 incident report attached to Wangler's declaration.
On November 16, 2017, the superior court issued an order for Steve and Janet Owens to show cause, on December 1, as to why a preliminary injunction should not be decreed. In response, Steve and Janet Owens argued that unit 18 of 519 South First Street did not represent the condition of the remaining apartments. The Owenses also contended that the tenants caused the damage to unit 18 and that they sufficiently repaired the damage. Finally, the Owenses maintained that they remained willing to perform additional repairs if the city submitted a list, which the city had so far failed to do.
On December 1, 2017, trial court granted the city of Selah's request for a preliminary injunction. The order for injunction read:
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