Post v. City of Tacoma
| Decision Date | 15 October 2009 |
| Docket Number | No. 80684-5.,80684-5. |
| Parties | Paul W. POST, Petitioner, v. CITY OF TACOMA; City of Tacoma Department of Public Works, Building and Land Use Services Division; Risk Management Alternatives, Inc.; and Charles Solverson, Respondents. |
| Court | Washington Supreme Court |
Everett Allen Holum, Everett Holum PS, Tacoma, WA, for Petitioner.
Debra Ellen Casparian, Tacoma City Attorney's Office, Tacoma, WA, for Respondents.
¶ 1 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 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.
¶ 2 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.
¶ 3 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 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 (). 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.
¶ 4 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 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.
¶ 5 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.
¶ 6 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. 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.
¶ 7 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.
¶ 8 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 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.
¶ 9 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
¶ 10 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.
¶ 11 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.
¶ 12 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.
¶ 13 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 remaining claims for injunctive and declaratory relief were barred by LUPA. See Post v. City of Tacoma, 140 Wash.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 Wash.2d 1038, 187 P.3d 268 (2008).
¶ 14 When reviewing an order of summary judgment, this court engages in the same inquiry as the trial court. Morin v. Harrell, 161 Wash.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 Wash.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 Wash.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. Comm'n, 149 Wash.2d 17, 24, 65 P.3d 319 (2003).
¶ 15 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.
¶ 16 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...
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