Staff Report - Ex. 4.pdf( 1�1
.11TY OF EDMONDS
121 5TH AVENUE NORTH - EDMONDS, WA 98020 ® 425-771-0220 - FAX 425-771-0221
Website: www,c1.edmords.wa.us
PUBLIC WORKS DEPARTMENT
Engineering Division
GARY HAAKENSON
MAYOR
BUILDING DIVISION & ENGINEERING DIVISION
REPORT & RECOMMENDATION TO THE HEARING EXAMINER
Project: Ken Reidy Appeal of Notice of Civil Violation for addition to or
maintenance of existing shed built in violation of building permit and
located in setback area and public right of way,
File Number: APL 2009-0004
Date of Report: January 27, 2010
Prepared by: Jeanie McConnell, Engineering Program Manager
W. Scott Snyder, City Attorney
Public Hearing: February 4, 2010 at 3:00 PM
Edmonds Public Safety Complex: Council Chambers
250 - 5th Avenue North, Edmonds WA 98020
1. SUMMARY OF PROPOSED ACTION AND APPEAL
A Notice of Civil Violation was issued to Ken Reidy, property owner of 771 Daley Street for:
* Maintenance of a shed structure within the 7 1/2 foot construction easement retained by
the City of Edmonds associated with the alley vacation approved under Ordinance No.
3729,
* Extension of a permitted structure into the side yard setback without a permit.
* Violation of side yard setback.
The applicant/appellant, Ken Reidy, appeals the Notice of Civil Violation. The appeal is
attached as Exhibit 9.5 to this report.
The following is staff's analysis of the project.
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2.1 Request: Appeal of a Notice of Civil Violation for the property located at
771 Daley Street, requesting dismissal of the civil enforcement action for the reasons set forth in
the appeal.
2.2 An Order to Correct Violation Notice was issued with respect to the
subject site on August 24, 2009 (Exhibit 9.8). Mr. Reidy appealed that Notice on August 31,
2009 (Exhibit 9.10). This appeal was scheduled before the Hearing Examiner and withdrawn by
the appellant on November 4th, 2009 (Exhibit 9.11). Accordingly, a Notice of Civil Violation
was provided pursuant to ECDC 20.110.040(B). A copy of the Notice of Civil Violation is
attached as Exhibit 9.6.
2.3 Relevant Code Sections:
(a)
ECDC 19.05.000 (International Residential Code adopted)
(b)
IRC 105.1 (Permit required)
(c)
IRC 102.2 (Other laws)
(d)
ECDC 19.05.010 (Work exempt from permit)
(e)
ECDC 16.20.030 (RS -Table of site development standards)
(f)
ECDC 16.20.A40 (RS - Site development exceptions)
(g)
ECDC 18.70.000 permits required)
(h)
ECDC 19.05.005(A)(1) Notices and Orders
(i)
ECDC 20.110 (Civil violation enforcement procedure)
0)
ECDC 19.80 (Board of Appeals)
2.4 Owner: Ken Reidy
2.5 Applicant / Appellant: Ken Reidy
2.6 Location: 771 Daley Street (Exhibits 9.3 & 9.4)
2.7 Zoning: Single-family Residential (RS -6) (Exhibit 9.3)
3. HISTORY / BACKGROUND
On July 11, 2007 the City received a Request for Code Enforcement Action (Exhibit 9.24)
alleging the subject shed was located within the City right-of-way. It should be noted that a
portion of the subject shed also encroaches upon the adjacent property to the north, 509 - 9th
Avenue North and at the time the complaint was received, there was an encroachment permit and
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subdivision application 5-05-09 under review by the City for development of 509 - 9th Avenue
North.
The subdivision in question had been the subject of a Land Use Petition Act (LUPA) appeal.
Judge Eric Z. Lucas upheld the applicant Thuesen's appeal and remanded the matter to the City's
Hearing Examiner for limited further proceedings. Nothing in the record of the LUPA
proceeding indicated the existence of a dispute between Mr. Reidy and Mr. Thuesen regarding
ownership of the property, nor the existence of an adverse possession claim by Mr. Reidy.
A search of City archived building permit records revealed permit 239-62 (BLD19620239) was
issued on July 31, 1962 for a tool shed with a minimum side yard setback of 5 feet (Exhibit
9.12). No building permit was found for the addition to the shed within the 5 foot side yard
setback, nor has the appellant submitted a copy of a permit issued by the City of Edmonds for the
shed addition into the setback. Please refer to the record of survey dated February 13, 2008
(Exhibit 9.13) showing the location of subject shed, and Exhibit 9.14 for photographs of the
subject shed and vacated alley area.
The Development Services Director determined, as noted in the violation report (Exhibit 9.24),
that the issues stated in the July 11, 2007 code enforcement request were to be addressed through
the civil review process of the subdivision. A history of Hearing Examiner decisions and
Superior Court appeals can be found in Exhibits 9.18 and 9.19. The City of Edmonds and Eric
Thuesen/Eric Thuesen Custom Homes, LLC (Petitioner) entered into a Settlement Agreement
and Release on July 20, 2007 to provide for full dismissal of the City's appeal to the Court of
Appeals upon the terms and conditions set forth in the agreement (Exhibit 9.20). Reidy asserts in
his appeal application (Exhibit 9.5) that the Settlement Agreement effectively finalized Mr.
Thuesen's 2 lot plat for which a response has been provided in Exhibit 9.2, the Pre -Hearing Brief.
Mr. Reidy also asserts that Mr. Thuesen's encroachment permit was approved by the City on July
20, 2007 when in fact, the City approved Mr. Thuesen's civil construction drawings for his 2 -lot
short plat at 509 9th Avenue North on July 20, 2007 with a redline note on the civil drawings
stating the proposed wall "shall not be constructed until encroachment permit is finalized and
issue with structure encroaching into alley right-of-way has been resolved" (Exhibit 9.25). On
August 8, 2007 Eric Thuesen, via e-mail, confirmed his intent to withdraw the encroachment
permit application for improvements located within the City alley right-of-way, in association
with subdivision file number 5-05-09 (Exhibit 9.26). On August 10, 2007 the City approved a
construction change to the subject civil construction drawings which showed relocation of the
retaining wall from City alley right-of-way onto Mr. Thuesen's private property (Exhibit 9.27).
In a letter dated November 7, 2007, Development Services Director Duane Bowman informed
Mr. Reidy's attorney Matthew Cruz that the unpermitted outbuilding (the subject shed) which
encroached into the alley right-of-way was unlawful and must be terminated. He then stated the
City's intent to initiate formal enforcement proceedings if the structure was not removed or
lawfully permitted by December 31, 2007 (Exhibit 9.28). On November 13, 2007 Vera Reidy
informed the City they would not be able to meet the December 31, 2007 deadline due to the
unavailability of surveyors to perforin the required property survey (Exhibit 9.29). A record of
survey for Vera Reidy was recorded against the property on February 13, 2008 (Exhibit 9.13).
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Resolution No. 1178 was passed by City Council on June 24, 2008 initiating review of vacation
of a portion of an unopened public alley lying between 8th Avenue North and 9th Avenue North,
parallel to and north of Daley Street and setting a public hearing (Exhibit 9.30). A public
hearing was held on July 22, 2008 and continued to September 16, 2008 (Exhibit 9.31).
Ordinance No. 3729 was passed by city council March 17, 2009 and recorded with Snohomish
County April 19, 2009 vacating the subject public alley and reserving an easement for
construction purposes (Exhibit 9.31). Mr. Thuesen filed an appeal of the alley vacation to
Superior Court on April 7, 2009 (Exhibit 9.17).
The Development Services Director and City Attorney met with the attorneys representing the
appellant (Reidy) and applicant for the subdivision (Thuesen) at various times over the following
year with no resolution to the issues, including removal or relocation of the shed. As a last resort
the City began enforcement action.
An Order to Correct Violation Notice (OTC) was issued to Ken Reidy on April 3, 2009 requiring
him to submit a work plan/schedule for removal of that portion of the shed which encroached
into the right of way within 20 days of the issuance of the notice. Implementation of the work
plan would be stayed until final approval of application 5-07-76 or final approval of the civil
construction plans for 5-07-76, whichever occurred first (Exhibit 9.16). A work plan/schedule
was submitted by Mr. Reidy on May 1, 2009 (Exhibit 9.16). Counsel for Mr. Reidy notified the
City of their adverse possession claim March 17, 2007 (Exhibit 9.15). Upon approval of the civil
construction plans for subdivision file number 5-07-76 on 8/13/2009, a second Order to Correct
Violation Notice (OTC) (Exhibit 9.8) was issued on August 24, 2009 to Ken Reidy, property
owner of 771 Daley Street for:
® Maintenance of a shed structure within the 7 1/2 foot construction easement retained by
the City of Edmonds associated with the alley vacation approved under Ordinance 3729.
e Extension of a permitted structure into the side yard setback without a permit.
Violation of side yard setback.
The applicant/appellant, Ken Reidy, appealed the Order to Correct Violation Notice (Exhibit
9.10) stating that it was improper for the City to attempt to force removal of the shed during the
pendency of their Quiet Title and ejectment suit currently in Snohomish County Superior Court
(Snohomish County Superior Court Cause No. 09-2-03815-3), and requesting that the OTC be
stricken for the following reasons (excerpts taken directly from appeal document (Exhibit 9.10)):
1) The City should take no action affecting the property in question before our
prescriptive claims are resolved because the location of the retaining wall cannot yet be
determined.
2) The OTC requires us to remove all of our concrete slab and lean to a portion of our
shed, but only a small portion of those improvements interfere with the reserved temporary
construction easement.
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3) The temporary construction easement granted to Mr. Thuesen is invalid on a number
of reasons.
a) The alley was not subject to vacation for two reasons:
i) The City held no interest to vacate pursuant to the applicable non-use
statute (RCW 36,87.090); and
ii) The City manifestly abandoned the alley.
b) The temporary construction easement is also invalid because it was not
properly adopted by the Council.
4) The City should not treat Mr. Thuesen's 2 lot plat as final.
The appeal of the Order to Correct was withdrawn by the appellant on November 4, 2009
(Exhibit 9.11). The City requests the Hearing Examiner find that the appellant abandoned all
issues presented in the initial Appeal. The appellant does not dispute that the 1962 building
permit required a five-foot setback, that no building permit was obtained for an addition to the
shed, nor that the shed encroaches within the setback area. These issues are addressed in the
Prehearing brief of the City Attorney which is attached to this staff report (Exhibit 9.2).
4.1 ECDC 19.05.000 (International Residential Code adopted)
The City has adopted the 2006 edition of the International Residential Code (IRC) under the
statutory authority of RCW 19.27.031 and 19.27.074. The provisions of the, IRC apply to
construction, alteration, movement enlargement, replacement, repair, equipment use, occupancy,
location, removal and demolition of the one- and two-family dwellings, including their accessory
structures.
4.2 IRC 105.1 (Permit Required)
This section states that any owner or authorized agent who intends to construct, enlarge, alter,
repair, or move, demolish or change the occupancy of a building shall first make application to
the building official and obtain the required permit.
4.3 IRC 102.2 (Other Laws)
This section states that the provision of this code shall not be deemed to nullify any provisions of
local, state or federal law. The encroachment permit and zoning regulations are local law and are
not nullified by requirements in the building code.
4.4 ECDC 16.20 (RS - Single -Family Residential)
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Development standards in RS -6 are defined in ECDC 16.20.030", reproduced below in part:
Zone
Minimum
Minimum
Minimum
Minimum
Lot Area
Street
Side
Rear
Minimum
Minimum
(sq. ft.)
Setback
Setback
Setback
Lot Width
Coverage
RS -6
6,000
20'
5'
15'
60'
35%
4.5 ECDC 18.70.000 (Permit Required)
This section sets forth requirements for using or encroaching upon a public place. For
encroachments, it states that no person shall use or encroach upon any public space, right-of-way
or easement area with permanent structures, including but not limited to, building extension,
fence, retaining wall or any other building or structure. The subject shed structure located within
the City right-of-way/easement and owned by Mr. Reidy, is considered to be a permanent
structure and therefore requires an encroachment permit.
4.6 ECDC 19.05.005(A)(1) Notices and Orders
This section amends IRC RI04.3 Notices and Orders, to include that the Building Official is
authorized to use ECDC Chapter 20.110 (Civil violation enforcement procedure) for code
compliance,
4.7 ECDC 20.110 (Civil Violation Enforcement Procedure)
This Chapter sets forth the procedures to enforce the Edmonds Community Development Code
and other City regulations. The first stage of enforcement procedures is the issuance of an Order
to Correct Violation Notice (ECDC 20.110.040). This section sets forth the required content of
the notice and service of the order. The subject OTC (Exhibit 9.8) contained the minimum
content requirements required by this section. ECDC 20.110.040(A)(3) states that the Code
Enforcement Officer must either serve the person to whom it is directed, post a copy
conspicuously on site, or send via US Mail to the last known address of the person responsible
for the violation. The OTC was posted conspicuously on the property (Exhibit 9.9) on August 24,
2009 by the City's Code Enforcement Officer, and was also sent via US Mail to the property
owner. According to Snohomish County Assessor records, Ken Reidy is the property owner. The
appellant did not claim that he did not receive the notice. An appeal of the Order to Correct
Violation Notice was withdrawn.
Following withdrawal of the appeal of the Order to Correct Violation Notice, a Notice of Civil
Violation was issued by the City (Exhibit 9.6). The Notice of Civil Violation was served by
posting a copy on the site. (See ECDC 20.10.040(8)(1)) A copy of the posted Notice and
photograph of posted Notice are attached as Exhibits 9.6 and 9.7.
(a) Appeal. Pursuant to ECDC 20.10.040(C)(1) a notice of appeal
may be filed in writing within ten (10) days of the date the notice is placed in the mail or seven
r The same five foot setback is required by the Code in effect in 1962. See Exhibit 9.32.
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(7) days from the date of posting. The appeal was received by the Development Services
Department on November 24, 2009.
(b) ECDC 20.110.040(0)(2) provides that notice of hearing will be
sent "by mail, posted on the site, or served in person upon the violating party no less than five
calendar days before the time fixed for the hearing." As the attached Affidavit of Mailing
indicates (Exhibit 9.23), notice of the hearing was sent by mail upon Mr. Reidy on January 26,
2010, more than five calendar days prior to the date set for the hearing.
(c) Appeals from decisions of the violations Hearing Examiner: The
filing of a land use petition for review does not automatically stay proceedings upon the decision
appealed but the court may grant a stay in accordance with the Land Use Petition Act. All
decisions of the board are appealable by Land Use Petition Act to Snohomish County Superior
Court (ECDC 19.80.025 Chapter 36.70(C) RCW.)
A copy of a letter submitted by Eric Thuesen is attached as Exhibit 9.33.
6. CONCLUSIONS
6.1 The appellant does not dispute that a building permit was required for the
tool shed and its extension, nor that the permit issued required a five foot setback.
000-1
6.2 The appellant does not dispute that the shed is located within the setback
6.3 The appellant disputes title to the public right of way.
6.4 The hearing examiner has only that jurisdiction granted under City
ordinance. Specifically, the hearing examiner does not have jurisdiction to consider equitable
defenses nor to try title to land.
6.5 The right to develop the adjacent subdivision is vested under the
preliminary plat approval. The Superior Court's decision is set forth in the court's final order
(Exhibit 9.18) as confirmed by the settlement agreement between the city and the developer/
appellant (Exhibit 9.20) and the final decision of the Hearing Examiner (Exhibit 9.19).
6.6 Preliminary plat approval is not subject to collateral attack and the city's
review of improvements and other actions in fulfillment of preliminary plat approval
requirements is ministerial and not discretionary.
6.7 A challenge to the existence of the public right of way easement is beyond
the jurisdiction of the hearing examiner and represents a collateral attack on a decision of the
City Council that Appellant did not appeal.
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6.8 Obstructions to the public light of way are a public nuisance under RCW
7.48.140. The City has both a right and a duty to remove an obstruction and liability if it fails to
do so.
V�� t1l XOD104 ILVA 1010
Based on the analysis and attachments to this report, staff recommends DENIAL of the
appeal. The City requests that the Hearing Examiner order Appellant to comply with the
corrective action stated in the November 13, 2009 Notice of Civil Violation within twenty-one
(2 1) calendar days and levy a fine of Two Thousand One Hundred Dollars ($2,100), or $100 per
day, if the work is not completed by that date. Please note that ECDC 20.110.050 (F) has been
amended pursuant to Ordinance 3779, Exhibit 9.34.
Ken and Vera Reidy
771 Daley Street
Edmonds, WA 98020
City of Edmonds,
Building Division
9.1 Staff Report
Eric Thuesen
Eric Thuesen Custom Homes, LLC
509 - 9th Avenue North
Edmonds WA 98026
Matthew Cruz
BERESFORD BOOTH, PLLC
145 - 3rd Ave South, Suite 200
Edmonds WA 98020
9.2 Prehearing Brief to the Hearing Examiner
9.3 Zoning & Vicinity Map
9.4 Aerial Map
9.5 Letter of Appeal of November 13, 2009 Notice of Civil Violation
9.6 November 13, 2009 Notice of Civil Violation
9.7 Photo of posted November 13, 2009 Notice of Civil Violation
9.8 August 24, 2009 Order to Correct Violation Notice
9.9 Photo of posted August 24, 2009 Order to Correct Violation Notice
9.10 Letter of Appeal of August 24, 2009 Order to Correct Violation
9.11 Withdrawal of Appeal of August 24, 2009 Order to Correct Viloation
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9.12 Copy of Building Permit for Original Shed BLD19620239
9.13 Reidy survey dated February 13, 2008 showing location of shed
9.14 Photos of shed and vacated alley
9.15 Letter from Reidy Counsel dated March 17, 2009
9.16 April 3, 2009 Order to Correct Violation and resulting schedule for
demolition of the subject addition of the shed and slab by Mr. Reidy.
9.17 Complaint in Thuesen v. Edmonds (Appeal of Vacation)
9.18 Findings of Facts Conclusions of Law and Order- The Honorable Eric
Z. Lucas
9.19 Findings, Conclusions and Final Decision of the Hearing Examiner
(including Hearing Examiner Decisions for AP -06-45 and AP -06-48)
9.20 Settlement Agreement on Cross Appeals
9.21 Plat of City of Edmonds
9.22 ECDC Chapter 19.80 and ORD 3740
9.23 Public Notice Documents — Notice of Appeal and Hearing Examiner
Hearing, Affidavits of Mailing and Posting
9.24 Request for Code Enforcement Action and Violation Report
9.25 July 20, 2007 approved civil for 2 -lot short plat S-05-09
9.26 August 8, 2007 e-mail to City from Eric Thuesen
9.27 August 10, 2007 revised civil for 2 -lot short plat S-05-09
9.28 November 7, 2007 letter from City to Mr. Reidy's attorney
9.29 November 13, 2007 Vera Reidy notification regarding OTC
9.30 City Council Resolution 1178
9.31 Alley vacation Ordinance 3729
9.32 1959 Zoning Ordinance
9.33 January 20, 2010 letter from Eric Thuesen
9.34 Ordinance No. 3779
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BEFORE, THE EDMONDS HEARING EXAMINER
In Re the Appeal of: APPEAL NO, APL -09-02
Ken Reidy CITY'S PREHEARING BRIEF
COMES NOW, the City of Edmonds by and through its duly appointed City
Attorney and for its prehearing brief, provides the following legal citations and argument
to the Hearing Examiner in support of the staff report.
PRIMA FACIE CASE
In his appeal notice Matthew Cruz, on behalf of Mr. Reidy, presents a variety of
theories, The City concurs that it has an obligation to prove a prima facie case and
therefore the burden to establish the existence of a violation. In this matter, a violation is
proven by the following documents and exhibits.
I. The Plat of the Original City of Edmonds. The original plat of Edmonds
sets the boundaries for Mr. Reidy's lot and dedicates the adjacent 7 1/2 foot public right
of way. Exhibit 9,21.
2. Building Permit. The 1962 building permit authorized construction of a
tool shed, maintaining five foot setbacks. Exhibit 9.12.
3. Survey of Ken and Vera Reidy. This survey was submitted to the City by
the appellant clearly establishing that the shed and/or extension to the shed does not
observe a five 'foot setback, blocks the 7 1/2 public alley right of way and extends onto
(WSS760775, DOCJ \00006.900000\ Exhibit 9.2
CITY'S PRI" FARING 13RIFT 1 APL20090004
the adjacent property owner's property. Exhibit 9.13.
The majority of the appeal notice appears based on theories relating to title to the
public right of way and the City's reservation of an easement. The City's Notice of
Violation, however, lists three grounds for the violation. Grounds 2 and 3 are in the
alternative. While the shed appears at some time in the past to have been extended, the
City cannot establish when or if the shed was altered. No permit, however, exists for the
alteration of the shed. The 1962 permit is clear in that it requires a five foot "setback"
from the property line. At the time of the construction of the tool shed, a 7 1/2 foot
public right of way existed. Mr. Reidy's own survey clearly establishes that no five foot
setback exists either from the right of way or the Thuesen property line. Rather, the tool
shed completely blocks the 7 1/2 foot alley.
In the appeal notice, the only ground that appears to apply to the fundamental
question of compliance with building permit requirements is the assertion that Nykreim
prohibits the City from action.' This is a misstatement of the Nykreim doctrine. Under
Nykreim and its progeny, a public entity cannot condition or revoke a vested right
following the expiration of the Land Use Petition Act (LUPA) appeal period. A building
permit is a project permit subject to LUPA.?
Nykreim is not an authorization to violate the law. 1 --fore, the City gave approval
for a shed no closer than five feet from the property line. No encroachment permit exists
for the shed to block the alley. Whether the violation occurred at initial construction of
the tool shed or the tool shed was extended at some date in the future without permit, the
shed does not comport with the issued permit and therefore, no permit exists for the shed
1 Nykreim v. Chelan County, 146 W11.2d 904, 53 P.3d 1904 (2002).
2 Nykreim, at 929.
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CITY'S PREHEAR1NG BJUH 2
in its current location. Nykreim vests work done pursuant to a project permit approval;
not in violation of that permit. The City requests only that that portion of the shed within
five feet of the property line be removed, not the entire shed.3
BLOCKING THE RIGHT OF WAY
Holders of easements in favor of the public have a duty to remove obstructions
and encroachments into the public rights of way. RCW 7.48.140(4) declares it to be a
public nuisance to "... obstruct or encroach upon a public highway, private ways, streets,
alleys... " Municipalities have a duty to remove obstructions in the public ways and
liability if they fail to do so. Lund v. Cily of Seattle, 4; Turner v. City gffacoma 5. Given
that:
(1) the design to which the abutting property owner has vested originally
utilized the public right of way, and now the reserved construction easement;
(2) the Reidys failed to appeal the City's vacation of the alley and reserved
construction easement, and
(3) given the Hearing Examiner's lack of jurisdiction over title issues, the City
believes that the City and the Hearing Examiner are compelled to proceed in accordance
with the vested plat approval and take those actions required to permit the Thuesens to
develop their property.
TITLE ISSUES
The appeal grounds 1 (a), (b) and (c) and 2 ignore both the Appellant's well -
Please note that in 1962, Chapter RCW 36.700 had not been adopted, As the Supreme Coull stated in
Nykreznv "Before L.UPA, a line of Washington cases held that an improperly approved building permit is
void and may be rescinded by the agency which erroneously issued it. Those cases were based upon
holdings that a building permit issued in violation of law or under mistake of fact conferred no vested right
in the applicant," Therefore, Nykreinr, would not be applicable to bar vacation of a 1962 building permit
approval, had it been given to permit the construction of the tool shed in violation of setback requirements.
' 99 Wash, 300, 169 P. 820 (1918)
5 72 Wn.2d 1029, 435 P.2d 9276 (1967)
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CITY'S PRE'11IS' RING BRIEF 3
established obligations under Washington Iaw and the presumption which must be
afforded to municipal enactments,
Municipal ordinances are presumed to be valid, and
grants of municipal power are to be liberally
construed. Similarly the person challenging an
ordinance bears the burden of proving the ordinance
is unconstitutional.
Hinesrna v. City of Yancouver,6
Those who challenge an executive order or an ordinance "bear the burden of proving the
ordinance is invalid. Leskovar v. Nickels,. This burden of proof attaches whether an
appeal of municipal action occurs by writ of certiorari or under the Land Use Petition
Act, See RCW 36,70C. 130.
The Appellant therefore has the burden of proof when attacking the vacation
ordinance which is presumed valid. As the Hearing Examiner lacks both the jurisdiction
and authority to overturn an enactment of the City Council, and has no jurisdiction to try
title to land,$ Appellants' arguments attempt to turn the standard presumptions and
burden of proof on their heads. Given that the City Council's enactments are presumed
constitutional and have a presumption of validity, and the Hearing Examiner cannot
consider the grounds upon which the Appellant wishes to attack the Council action, and
these appeal points are without merit.
G 144 Wn.2d 556, 561, 29 11.3d 709 (2001) citing City of Bothell v. Guachmidt, 78 Wash. App. 654, 659-
660, 898 R2d 864 (1995).
140 Wash. App. 770, 773, 166 11.3d 1251 (Div. 1 2007) citing 2A Eugene McQuillin, The Laws of
Municipal (.'orporatlons, Section 10;6 at 399 (3rd Ed. 2006)
s Washington State Constitution Art. 1V, §6; RCW 2.08.010 original jurisdiction exclusive to Superior
Court.
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CITY'S PRI HFIARING BRIEF 4
VESTED APPROVAL / SETTLEMENT AGREEMENT
The adjacent property owner Mr. Thuesen's rights vested following a LUPA
appeal of preliminary plat approval. The "facts" associated with that approval were fixed
and are limited to those facts in the record of the original preliminary plat approval. The
City's Hearing Examiner decision is dated July 6, 2006. The record was therefore fixed
on that date. The order of Judge Eric Lucas remanded the matter to the City's Hearing
Examiner for limited proceedings. No title issue was included in that remand. Nothing
in the record of either the initial preliminary plat approval process not the limited remand
raised the issue of Mr. Reidy's purported interest in Mr. Thuesen's property.
The City received a complaint on July 11, 2007 from the adjacent developer, Mr.
Thuesen, alleging that Mr. Reidy's shed blocked the public right of way. Later
submittals by Mr. Thuesen, indicated that the shed not only encroached into the public
right of way, but also extended onto Mr. Thuesen's property. While these later
submittals raise the issue of what information Mr. Thuesen possessed regarding the
intrusion, it is clear that none of this information was in the record before the City in the
preliminary plat process.
City approvals before the Hearing Examiner and appealed under the LUPA
process are decisions on the record of the proceeding. Nothing in the record indicated the
existence of an adverse possession claim by Mr. Reidy. Mr. Reidy's attorney did not
formally assert the quiet title claim until March 17, 2009. Exhibit 9.15.
References to the City's settlement agreement are without merit. The City
requests that the Hearing Examiner review the document and note that the City has
agreed to defend only "final peri -nits." To date no -final approval has been given with
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CITY'S 1114-1-11"ARING BIU13F 5
respect to the subdivision, Under Halverson v, Bellevue,, the City cannot give final plat
approval until the title issue is resolved.
The City takes no position regarding the dispute over title between the Reidys and
the adjacent property owner Eric Thuesen. A quiet title action has been initiated by the
Appellants in Snohomish County Superior Court. Jurisdiction to try title to the land lies
exclusively with Superior Court.10 Neither the City nor its Hearing Examiner has the
authority to determine issues relating to ownership. In addition, the Thuesens, who are
anticipated to appear in this proceeding as an interested party, have appealed the vacation
of the underlying easement. See Exhibit 9.17 to the Staff Report. The Hearing Examiner
is requested to take notice that the Reidys have not appealed the vacation. The vaeatiaon
ordinance is final as to the Appellant.
HALVERSON V BELLEVUE. PROPERTY OWNER'S OBLIGATION TO
PURSUE
Thuesen's right to develop the two -lot subdivision in accordance with preliminary
approval is final. Under Nykreim v, Chelan Counly,1 I and the decisions which followed,
the Washington courts have strictly adhered to a doctrine of finality of judgment,
stressing the exclusivity of the Land Use Petition Act process under Chapter 36.70C
RCW, to challenge land use decisions. Now that the City has notice of Mr. Reidy's
adverse possession claim, it cannot give final plat approval to either the two- or three -lot
short subdivision pursuant to Halverson v. Bellevue. Halverson requires only that all
owners of property within a plat execute the dedication provision. Halverson is not a bar
to processing the preliminary actions necessary to conform to preliminary plat approval,
9 41 Wa, App. 457, 704 P.2d 1232 (1985).
10 Washington State Constitution, Article IV, §6, RCW 2.08.010.
11 Yupra.
{MS760775.DOC;1\00006.900000\
CITY'S PR ["11 1"A R I NG 1.3 R1 F' 6
Shadle v, Kailash Development, .LLC, 146 Wash, App. 1041 Not Reported in P.2d (Div 1
2008)12
The Washington courts have acknowledged the unique language of Chapter 58.17
RCW regarding plat dedications in Halverson v. Bellevue, supra. It is important to note
that that decision is limited to a requirement that all property owners sign the final plat
dedication. Upon the final approval of a preliminary plat, the final plat approval process
becomes ministerial. The Washington Court of Appeals, Division 11, in an unpublished
opinion, gives a helpful summary of the way the plat review process works:
Under RCW 58.17.110, when determining whether to
approve a preliminary plat, the local governmental body
makes a discretionary determination of whether the
proposed subdivision will serve the "public use and
interest." RCW 58.17.110(1). Once the conditions in the
preliminary plat are met, the County has no discretion in its
decision but must approve the plat in writing on the face of
the plat: `When the legislative body of the city, town or
county finds that the subdivision proposed for final plat
approval conforms to all terms of the preliminary plat
approval, and its said subdivision meets the requirements of
this chapter, other applicable state laws, and any local
ordinances adopted under this chapter which were in effect
at the time of the preliminary plat approval, it shall suitably
inscribe and execute its written approval on the face of the
plat.' Sanford v Clallarn County, 119 Wash. App, 1071,
not reported in P.3d (Div JI, 2003),' RCW 58.17.170
(emphasis added).
Therefore, the City has no discretionary authority in the review of Mr. Thuesen's
final plat. its review is limited to ensuring that the conditions of preliminary plat
approval have been met. It is axiomatic that the i-learing Examiner has only that
12 The Shadle case and the Sanford decision cited at pages 6-7 of this brief are unreported and therefore
lack precedential value. These cases do provide insight into the application of law in similar situations,
i3 Again, Sanford has no precedential value but is an excellent discussion of the distinction made in RCW
58.17.110 and .170 between the discretionary review of preliminary plats and the ministerial review of final
plats.
(WSS76077i.DOC; 1\00006.9000001 }
CITY'S PRf'l-11"ARING BRIEF
authority granted by the establishing ordinance, Chaussee v. Snohomish County Council,
38 Wn. App. 630, 689 P.2d 1084 (1984) (holding that the Hearing Examiner lacked
jurisdiction to consider equitable estoppel).
Given that the preliminary plat approval in this case was subject to a LUPA
review, the Nykreim doctrine controls. The Hearing Examiner is requested to note that
Halverson was decided prior to Nykreim, and its holding, if it remains valid, is limited by
Nykreim. Due to Appellant's failure to raise their adverse possession claims prior to
preliminary plat approval, the location of the improvements necessary to complete those
plat improvements are vested in the Thuesens. While the Reidys are free to pursue their
quiet title action and the LUPA action is not a bar to that proceeding, the City is bound as
a decision maker. See unreported decision in Shadle v..Kailash Development, LLC, 146
Wash. App. 1041 citing Asche v. Bloomquist, 132 Wash. App. 784, 133 P.3d 475 (Div.
II, 2006). The City is obligated to process the Thuesens' two -lot subdivision plat in
accordance with the vested preliminary approval. That obligation is the basis for the
City's enforcement action.
The City has consistently encouraged the parties to the underlying dispute (the
Thuesens and the Reidys) to resolve their dispute either judicially or through mediation.
The City's obligations under the vested preliminary two -lot subdivision plat, however,
continue, and the City is aware of no authority which would allow it, short of a stay or
other form of injunction issued by the Snohomish County Superior Court, to delay the
actions necessary to allow Mr. Thuesen to proceed with his vested preliminary plat
approval.
Therefore, at the present date, the Appellants Reidys:
wss?60775.I>oc;1 \aooa6.900000\
t;1'1'Y'S PIZEHEMUNG BR11 1' 8
I . Have failed to assert their adverse possession claim in the original
subdivision preliminary plat process. That process is final, has been through a Superior
Court proceeding, and the right to develop the two -lot subdivision is vested, Sinal plat
approval, as noted, will require resolution of the Reidys' adverse possession claim.
2. Attempt to collaboratively attack the existence of the 7-1/2 foot
alleyway (hereinafter "right of way") and reserved a construction easement in this
proceeding, The vacation of the right of way and reservation of a construction easement
was not appealed by the Reidys and they are not a party to the pending action in Superior
Court,
The Reidys raise a number of issues which are beyond the jurisdiction of the
Hearing Examiner to resolve. Others are collaterally estopped. In a nutshell, the Hearing
Examiner lacks jurisdiction to resolve the legal title claims raised. Appellant raises the
title as an affirmative defense. The City's vacation ordinance is presumed valid and that
presumption cannot be overcome or collaterally attacked in this code enforcement
proceeding, Given the limited subject matter jurisdiction of the Hearing Examiner and
the status of many of the challenges as collateral attacks on final decisions, the City
respectfully requests that the appeal be dismissed and Mr, Reidy ordered to comply, The
appeal is an attempt to shift Appellants' obligations to appeal the Council action
(vacation) to the City, in effect asking that it bring a judicial action to confirm what is
presumed to be valid.
CONCLUSION
Please note that the City has not ordered removal of the tool shed in its entirety,
but only that portion of the shed which extends into the construction easement and
(W S S760775 J)0C;1 \00006,900000\ }
CITY'S PR1 111:
thereby creates the required five foot side yard setback. The City takes this step only in
order to permit the adjacent property owner to complete improvements vested under the
preliminary subdivision approval. Halverson v. Bellevue provides a mechanism for Mr.
Thuesen and Mr. Reidy to resolve their dispute. The City has given the Appellant two
years to attempt to resolve his dispute with his neighbor and he has not done so. The
Appellant has also not taken advantage of numerous opportunities to exercise his right to
administrative or judicial appeals of various actions taken by the City.
Shifting the burden back to the City to bring a judicial action to confirm the
validity of its City Council's unappealed actions is absurd. This brief does not address in
detail the title theories raised by Appellant for several reasons:
I . The hearing Examiner does not need to reach the issue of whether the tool
shed blocks the right of way. The tool shed does not observe the required five feet
setback from the property line. No right has been vested in its current location.
Therefore, the tool shed is in violation of the City's setback provisions. That fact is not
contested in the appeal other than the reference to Nykreim.
2. The title issues raised are clearly beyond the scope of code enforcement
hearing. (laving established its prima facie case, the title issues raised by Appellant
should be considered affirmative defenses. The Hearing Examiner does not have
jurisdiction to determine these defenses. Having failed to exhaust his administrative
remedies, the Appellant should not be allowed to pass that burden back to the City.
Therefore, the City requests dismissal of the appeal.
REQUESTED RELIEF:
The city requests that the Hearing Examiner enter her order directing the
{ W S57G077>.l.)OC 1 \00006.9000001 }
CCPY's PRE'11-117Af21MO DI ,]; 10
Appellant Mr. Reidy to comply with the corrective action stated in the November 13,
2009 Notice of Civil Violation.
In addition, the City requests that the Hearing Examiner levy a fine of $2,100, (21
days times $100) if Mr. Reidy fails to remove the shed within twenty-one (21) calendar
days of the date of entry of her Order. Such an imposition would require additional
notice to the Appellant pursuant to the recently adopted interim ordinance.
DATED this 1�..day of January, 2010.
OGDEN MURPITY WA-I✓ACE, P.L.L.C.
B
W. Scott Snyder, WSB #12835
Attorney for City orE- monds
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