Miller v. City of Sammamish

• Decision Date: 19 August 2019
• Docket Number: No. 78528-1-I,78528-1-I
• Citation: 447 P.3d 593
• Court: Washington Court of Appeals
• Parties: Donald and Kathleen MILLER, Appellants, v. The CITY OF SAMMAMISH, a Washington municipal corporation, Respondent.

447 P.3d 593

Donald and Kathleen MILLER, Appellants,

v.The CITY OF SAMMAMISH, a Washington municipal corporation, Respondent.

No. 78528-1-I

Court of Appeals of Washington, Division 1.

FILED: August 19, 2019

Jane Ryan Koler, Land Use & Property Law, PLLC, 6659 Kimball Dr. Ste. B201, Gig Harbor, WA, 98335-5140, Mark Harris Adams, Attorney at Law, P.O. Box 2509, Gig Harbor, WA, 98335-4509, for Appellants.

Hillary Evans Graber, Michael R. Kenyon, Kenyon Disend PLLC, 11 Front St. S., Issaquah, WA, 98027-3820, Adam Rosenberg, Williams Kastner & Gibbs PLLC, 601 Union St. Ste. 4100, Seattle, WA, 98101-1368, for Respondent.

PUBLISHED OPINION

Mann, A.C.J.

¶1 After learning that Donald and Kathleen Miller systematically filled in and destroyed regulated wetlands on their property, the City of Sammamish (City) commenced a code enforcement action. Over the course of a year, the City issued a notice to comply, posted a stop work order on the property, and finally issued a notice and order to abate and imposed a penalty. The Millers appealed to the City’s hearing examiner. The hearing examiner concluded that the Millers violated the Sammamish Municipal Code (SMC), and the superior court affirmed. The Millers appeal arguing that the hearing examiner violated their due process rights, that the penalty order was unconstitutionally vague, and that substantial evidence does not support the hearing examiner’s conclusion that there were wetlands on their property.

¶2 We affirm.

I.

¶3 The Millers own 2.29 acres of residential property located within the Sammamish City limits. Two of the Millers’ predecessors, Donald and Ira Morin purchased the property in 1975. Donald Morin testified that he purchased the property for his daughter’s horses. He testified that he dug a pond for the horses on the lowest spot on the property and spread the spoils around the perimeter of the pond. Morin testified that the area was dry before he dug the pond and that he continually filled the pond with his garden hose.

¶4 The Morins sold the property three years later, in 1978, to Marvin and Vera Federman. The property was described in the 1978 sale as "residential, bare land." The Federmans sold the property to Judy Wendl in 1994. Bankers Trust Company of California foreclosed the property in 1998. The Millers purchased the property in 1999 from Bankers Trust.

¶5 In 2005, developer CamWest investigated developing a 38-lot residential subdivision on several parcels, including the Millers’ property. The Millers and CamWest entered an agreement allowing CamWest to prepare a feasibility study of the property. CamWest commissioned Talasaea Consultants, Inc. to prepare a sensitive areas report of the Millers’ property and adjacent parcels. The Talasaea report identified two areas of the Millers’ property as class III wetlands—wetlands K and L. The report identified wetland L as 0.11 acres of palustrine, emergent, saturated wetland primarily composed of mowed lawn vegetation located on the eastern border of the Millers’ property. To the southwest of wetland L, the report identified wetland K as 0.12 acres of palustrine, scrub shrub, unconsolidated bottom, permanently flooded, impounded wetland. The report determined that the farm pond excavated by Donald Morin was included within wetland K.¹ The City’s former wetland biologist reviewed and concurred in Talasaea’s findings in 2006. CamWest did not buy the Millers’ property or proceed with the proposed development.

¶6 In 2008, the landowner located to the south of the Millers commissioned Altmann Oliver Associates, LLC (AOA) to prepare a critical area study of their property in association with a potential residential development of that parcel. AOA determined that there were two wetlands present on the southern property. AOA also relied upon the Talasaea report to determine that there were three additional wetlands on the properties neighboring the study site, including wetland K on the Millers’ property. Using the state wetland rating form, AOA concluded wetland K was a category III wetland. AOA advised its client that the wetland K regulatory buffer would extend onto the client’s property. Summit Homes, LLC ultimately developed the property south of the Millers into a residential subdivision. The subdivision includes a native growth protection area along its north edge to encompass the portion of wetland K’s required regulatory buffer.

¶7 On January 12, 2016, the City’s wetland biologist, Kathy Curry, informed the City’s code correction officer, Chris Hankins, that she received a complaint that the Millers had been filling and grading wetlands on their property. Curry reported "Wetland K, which encompassed a farm pond, has been entirely filled and that Wetland L, which included a shallow depression, has been graded and filled."

¶8 After investigating the complaint, on February 12, 2016, the City informed the Millers by mail that the City had reason to believe unpermitted filling and grading had taken place on the Millers’ property. Donald Miller contacted Hankins a couple weeks later and said that over time there has been some filling and clearing activities on his property. Miller "was very terse in his response, saying that There are no wetlands on my property.’ " Hankins informed Miller that he required permits to continue filling and clearing on his property and that Hankins could help him get into compliance. Miller did not obtain such permits.

¶9 The City issued a second letter on April 14, 2016. The letter described three things that, at a minimum, must be done for the Millers to avoid further action against them: (1) have a certified wetland professional complete a wetland delineation report and mitigation plan, (2) complete a critical area review and submit it with a clear and grade permit application, and (3) stop further work until such a permit is issued.

¶10 During this time, Summit Homes agreed to purchase the Millers’ property. Summit Homes contacted Hankins to determine what Summit Homes had to do to make sure the property was in compliance. The City put its enforcement action against the Millers on hold, under the belief that Summit Homes would get the property into voluntary compliance. The Summit Homes deal ultimately fell through, however, due to the Millers’ insistence that "he should not have a wetland on his site."

¶11 In September 2016, Hankins again attempted to contact the Millers to get the property into compliance but the Millers refused to comply. Subsequently, in February 2017, the City received another complaint that the Millers were "stockpiling dirt on his property and continuing to fill and spread dirt throughout the site." At that point, Hankins visited the property and observed "substantial fill-dirt piles on the property ... [and] evidence of tracks and exposed dirt in the areas that [the City was] concerned about previously."

¶12 On February 10, 2017, the City posted a stop work order on the Millers’ property and mailed a letter to the Millers describing the city codes that the Millers were violating and how to bring their property into compliance. The City also issued the Millers a $500 fine for the stop work order and informed the Millers how they could appeal that decision.

¶13 After receiving the stop work order, "Mr. Miller did not follow through with any permit applications as required." Therefore, the City issued and recorded a notice and order to abate civil code violations (notice). The City determined that the Millers had committed "multiple code violations by authorizing clearing and grading, including the filling of wetlands and wetland buffers on the property, without obtaining the required permits from the City." The notice informed the Millers what they were required to do to correct the violations. The notice also assessed a $15,000 civil penalty for environmental damage and critical areas ordinance violations, plus daily penalties for every day the property remains noncompliant. The Millers appealed this notice to the City’s hearing examiner.

¶14 Prior to the hearing, the Millers retained Sewall Wetland Consulting, Inc. to assess their property and review the prior wetland studies. The City retained Nell Lund of the Watershed Company to do the same. The City also asked the Washington State Department of Ecology (Ecology) to review all of the relevant information and determine whether wetlands had existed on the Millers’ property. The Ecology assessment concluded:

Based on information obtained from the literature review it appears Wetlands K and L existed on this property prior to 2008. The fill material placed since then has eliminated both wetlands. None of the soil pits examined within this fill material by Sewall Wetland Consulting and The Watershed Company meet the three wetland criteria, which is not surprising. Although Ecology does not usually rely on wetland findings more than five years old, the Talasaea delineation is the only on-site description of the wetland conditions that preceded the fill material. Therefore, we concur with the Talasaea delineation of Wetlands K and L on the Miller property.

¶15 The hearing examiner held a two-day hearing. The first day of the hearing was held on August 24, 2017. The City presented expert testimony from Nell Lund, and Officer Hankins. The Millers’ presented testimony from Don Morin, Don Miller, and expert testimony from Ed Sewall. Due to a scheduling conflict, there was a two-month gap between the two hearing dates. During the interim the Millers continued to fill and grade the property. After Summit Homes dumped 20 truckloads of fill dirt on the Millers’ property, the Millers used the fill to create a driveway through wetland L.

¶16 The hearing examiner’s November 15, 2017, decision concluded that regulated wetlands were present on the Millers’ property. The hearing examiner further concluded "[t]here is compelling evidence and testimony that Miller either caused or allowed well in excess of 50 [cubic yards] of dirt to be...