2022-02-08 - City's Motion for Summary Judgment1
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BEFORE THE HEARING EXAMINER
FOR THE CITY OF FEDERAL WAY
In re: Appeal of Formal Code Interpretation,
File No. 21-104304-00-UP
DAVID LEELAND MANN,
Appellant,
CITY OF FEDERAL WAY,
RESPONDENT'S MOTION FOR
SUMMARY JUDGMENT
L INTRODUCTION AND RELIEF REOUESTED
This appeal concerns the City of Federal Way ("Respondent" or "City") Community
Development Director Brian Davis' October 15, 2021, formal written interpretation ("Code
Interpretation") of the Federal Way Revised Code's ("FWRC") accessory dwelling unit
("ADU") definition.
The Code Interpretation is not directed toward a particular property, but rather is a
broadly applicable citywide interpretation designed to clarify potential ambiguity in the
currently existing definition of ADU. Specifically, the Code Interpretation examined when
additional complete living facilities located within or attached to single-family residences
constitute ADUs, and when they do not. To determine the answer to that question, the Code
Interpretation spent many pages meticulously analyzing the construction of the ADU
definition and other relevant code sections, applying plain meaning and other legal
MOTION FOR SUMMARY JUDGMENT - 1
Federal Way City Attorney
33325 8th Ave South
Federal Way, WA 98003
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interpretive tools to the operative text, and ultimately issuing an interpretation based on a
thorough and complete analysis.
In contrast, Appellant's notice of appeal conflates a prior, unappealed, property -
specific land use decision with the Code Interpretation at issue, fails to provide more than
vague assertions of legal error, and lacks citation to any portion of the FWRC in support of its
claims.
As a result, and as explained in further detail below, Respondent respectfully moves
the Federal Way Hearing Examiner ("Hearing Examiner") pursuant to Hearing Examiner
Rules of Procedure ("ROP") 6(d) and 16 for summary judgment dismissing this appeal in its
entirety.
II. STATEMENT OF FACTS
1. Introduction.
In order to provide affordable housing to the citizens of the City and to comply with
the Growth Management Act, 36.70A RCW ("GMA"), ADUs are allowed in certain zones in
the City subject to the owner obtaining an ADU permit and complying with the applicable
zone -specific ADU regulations. (See FWRC 19.265.020(3) (permit required); see also FWRC
19.195.180 (ADUs in the suburban estate zone); FWRC 19.200.180 (ADUs in the single-
family residential zone)). ADUs may either be detached, freestanding units, or attached to the
primary dwelling unit on the property. (FWRC 19.05.010).
2. Potential ambiguity over when additional attached living facilities in a single-
family home constitute ADUs under FWRC.
The FWRC defines an ADU as:
either a freestanding detached structure, excluding outdoor storage containers and
similar structures used or designed to be used as living facilities, or an attached
part of a structure which is accessory to the main or primary dwelling unit located
on the subject property, providing complete, independent living facilities
exclusively for one single housekeeping unit, including permanent provisions for
living, sleeping, cooking and sanitation. See FWRC 19.265.020. ADUs include:
MOTION FOR SUMMARY JUDGMENT - 2
Federal Way City Attorney
33325 8th Ave South
Federal Way, WA 98003
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(1) "ADU, attached" means an accessory dwelling unit that has one or more
vertical and/or horizontal walls in common with or attached to the primary
dwelling unit.
(2) "ADU, detached" means a freestanding accessory dwelling unit that is not
attached or physically connected to the primary dwelling unit.
(FWRC 19.05.010). Over the years, City staff have generally been able to easily identify
when a particular detached structure constitutes an ADU as defined in City code. (Decl. of B.
Davis, IT 2-3). However, determining whether an attached addition to a single-family home
containing a second kitchen constitutes an ADU under FWRC (and thus requires an ADU
permit), or whether it is simply an addition to a single-family home that does not create an
ADU (and thus does not require an ADU permit), has been much more challenging for staff.
(Id., ¶¶ 4-5). This issue often arises in conjunction with residential remodels or additions that
add second kitchens to an existing single-family residence, or as a result of neighbor
complaints over a nearby single-family residence that may contain an unpermitted ADU. (Id.,
¶ 5; see also Amended Notice of Appeal, at 1-5 (describing Appellant's complaints regarding
a neighbor's allegedly unpermitted ADU)).
It is the City's opinion that the ADU definition in FWRC is potentially ambiguous as
to whether certain specific internal single-family home configurations with second sets of
attached living facilities constitute ADUs, and that the potential for ambiguity also creates the
potential for both inconsistent staff approaches in identifying ADUs, as well as lack of clarity
and confusion for property owners in the City regarding whether they need an ADU permit in
conjunction with a proposed development. (Decl. of B. Davis, ¶¶ 5-6).
3. Issuance of Code Interpretation.
As a result, "in order to clarify the potentially ambiguous application of the ADU
definition with respect to additional living facilities located within or attached to single-family
residences, and to promote consistent and clear City staff application of the ADU code and
associated permitting," the City issued the Code Interpretation on October 15, 2021. (Id., ¶ 7,
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Federal Way, WA 98003
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Ex. A;1 see also FWRC 19.50.020, .040 (providing that an interpretation may be issued on the
City's initiative to clarify conflicting or ambiguous application of the code)).
The Code Interpretation used traditional means of statutory construction to construe
the meaning of the ADU definition in FWRC, including in-depth analysis of the plain
meaning of the definition, and applied the result of the statutory construction to various
factual scenarios where single-family residences contain additional living facilities. (Code
Interpretation, at 2-6). Specifically, the Code Interpretation focused on the fact that ADUs
under FWRC are defined as independent and exclusive, and utilized the plain meaning of
those terms to determine when additional living facilities within a single-family residence are
sufficiently independent and exclusive to constitute an ADU as defined under code. (Id.).
Ultimately, the Code Interpretation determined that additional living facilities in single-family
homes that are internally connected to the remainder of the single-family residence constitute
an ADU as defined under FWRC "only when they are separated from the remainder of the
residence by a separate keyed entry in an entryway or foyer, or at minimum by a door that can
be internally locked from within the additional living facility." (Id., at 6). By contrast, when
"such additional living facilities are solely separated from the remainder of the residence by a
door that may be freely opened from the remainder of the residence, the additional living
facilities are not sufficiently `independent' or `exclusive' to constitute an ADU as defined
under FWRC." (Id.).
Notice of the Code Interpretation was properly posted on the City website and
published in the Federal Way Mirror on October 22, 2021. (Decl. of B. Davis, ¶ 8, Ex. B).
Appellant timely appealed the Code Interpretation on November 8, 2022. (Id., ¶ 9; see also
Original Notice of Appeal).
4. The City previously issued a land use decision which was not appealed
determining that Appellant's neighbor's additional living facilities within their
single-family residence do not constitute an ADU.
' For clarity, all future citations to the Code Interpretation will directly cite to the Code Interpretation and its
internal pagination, rather than the exhibit to the Declaration of Brian Davis containing the Code Interpretation.
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Federal Way City Attorney
33325 8th Ave South
Federal Way, WA 98003
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While the preceding factual details are the only facts directly relevant to issuance of
the citywide Code Interpretation at issue in this appeal, various portions of Appellant's
amended Notice of Appeal relate to or reference a separate, prior land use decision specific to
Appellant's neighbor's property. (See Appellant's Amended Notice of Appeal (referencing
Appellant's formal objection to an adjacent property owner's allegedly unpermitted ADU,
and the Appellant's belief that additional off-street parking is required on the adjacent
property as a result of the alleged ADU)). Thus, for clarity, and to aid the Hearing Examiner
in separating legal questions properly at issue in this appeal from issues that are not properly
before the Hearing Examiner, the following facts detail the history and final land use decision
regarding the Appellant's neighbor's property.
For several years, Appellant has believed and alleged that his neighbor's property
contains an unpermitted ADU. (See Original Notice of Appeal, at 6-11 (containing emails
from Appellant to City staff alleging same); Decl. of N. Kamieniecki, ¶ 3)). On the basis of
Appellant's complaints, the City opened a code enforcement case under 20-101766-VO
("Code Enforcement Case"), to investigate the alleged unpermitted ADU violation, determine
whether the neighbor's property contained an unpermitted ADU, and to require permitting if
an unpermitted ADU existed on the property. (Decl. of N. Kamieniecki, ¶ 4).
Appellant's neighbor submitted an ADU application on May 27, 2020, under 20-
102070-AU ("ADU Application"), but contended that his property did not in fact contain an
ADU and thus did not require permitting. (Id., ¶ 5). The ADU Application expired on July
28, 2021, due to inactivity, but the Code Enforcement Case remained open and pending. (Id.,
¶ 6). Subsequently, on the basis of renewed complaints from Appellant, the City requested
additional information from Appellant's neighbor in order to conclusively and finally
determine whether an ADU existed at the subject property. (Id., ¶ 7). After extensively
reviewing additional information from both Appellant as well the neighboring property
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Federal Way City Attorney
33325 8th Ave South
Federal Way, WA 98003
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owner, on September 21, 2021, the assigned planner issued an email ("Kamieniecki Email")
to the property owner, which stated:
The City of Federal Way followed up with you on the above referenced notice of
violation regarding a potentially unpermitted accessory dwelling unit (ADU).
Based on the information on file and additional submitted [sic] by you the city has
determined that no unpermitted ADU exists on the subject property and the
existing single-family residence is not in violation of the ADU code. Violation
number 20-101766-VO is considered closed and no further action regarding the
compliant [sic] will be pursued.
(Id., ¶¶ 8-9, Ex A). The Kamieniecki Email was forwarded to the Appellant in this action
that same day. (Id., ¶ 10). No person appealed the determination in the Kamieniecki Email
within 21 days of its issuance, nor at any time since.
III.ISSUE STATEMENT
The following issue is presented for resolution by the Hearing Examiner:
1. Whether the City is entitled to summary judgment dismissing this appeal.
IV. EVIDENCE RELIED UPON
This motion is based on the December 15, 2021, Declaration of D. Mann, the
Declaration of K. van Alstyne, the Declaration of B. Davis, the Declaration of N.
Kamieniecki, and the pleadings and papers filed in this action.
V. AUTHORITY AND ARGUMENT
A. Standards of Review.
1. Burden of proof and standard of review applicable to appeal of code interpretation.
Under FWRC 19.70.120, appeal of a formal code interpretation is governed by
Process IV, which places the burden on the appellant to "persuad[e] the hearing examiner by a
preponderance of the evidence that ... the applicant is entitled to the requested decision."
FWRC 19.70.120. This requires a showing by the appellant that the City's Code
Interpretation "is not in compliance with ordinance(s) authorizing that decision." ROP I I (a).
In determining whether the appellant has carried its burden, the "hearing examiner shall give
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great deference to the agency's interpretation of its own properly promulgated regulations,
matters within its expertise, and procedural determinations." Id. (emphasis added).
In essence, because the code interpretation at issue here is the City's interpretation of
its own properly promulgated regulation —the ADU definitionAppellant's appeal must be
denied unless, after according great deference to the Code Interpretation, the Appellant
demonstrates by a preponderance of the evidence that the Code Interpretation is in error.
2. Summary_ judgment standard of review.
The City makes this motion by analogy to the familiar standards of CR 56(b) and (c),
which provide in pertinent part:
CR 56 SUMMARY JUDGMENT
(b) For Defending Party. A party against whom a claim, counterclaim, or cross
claim is asserted or a declaratory judgment is sought may move with or without
supporting affidavits for a summary judgment in such party's favor as to all or
any part thereof
(c) Motion and Proceedings.... The judgment sought shall be rendered forthwith
if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.
CR 56(b), (c); see also Macias v. Saberhagen Holdings, Inc., 175 Wn.2d 402, 408, 282 P.3d
1073 (2012).
Under CR 56, a moving party is entitled to summary judgment if the pleadings and
evidence "show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." CR 56(c); see also Indoor
Billboard/Washington, Inc. v. Integra Telecom of Washington, Inc., 162 Wn.2d 59, 70, 170
P.3d 10 (2007); Saberhagen, 175 Wn.2d at 408. "Interpretation and construction of a statute
is a question of law." Kinnebrew v. CM Trucking, 102 Wn. App. 226, 231, 6 P.3d 1235
(2000) (citing Lumberman's of Wash. v. Barnhardt, 89 Wn. App. 283, 286, 949 P.2d 382
(1997). Questions of law are properly resolved via summary judgment. Solnicka v. Safeco
MOTION FOR SUMMARY JUDGMENT - 7
Federal Way City Attorney
33325 8th Ave South
Federal Way, WA 98003
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Ins. Co., 93 Wn. App. 531, 533, 969 P.2d 124 (1999) (citing Gerken v. Mutual of Enumclaw
Ins. Co., 74 Wn.App. 220, 225, 872 P.2d 1108, review denied, 125 Wn.2d 1005, 886 P.2d
1134 (1994)).
In determining whether the moving party is entitled to judgment as a matter of law, the
court "must view the evidence presented through the prism of the substantive evidentiary
burden." Sedwick v. Gwinn, 73 Wn. App. 879, 885, 873 P.2d 528 (1994). Summary
judgment in favor of a defendant or respondent is proper if the claimant has not established all
the necessary elements of the claim by the requisite evidentiary standard. 4dams v. Allen, 56
Wn. App. 383, 783 P.2d 635 (1989), overruled on other grounds by Caughell v. Group Health
Co-op of Puget Sound, 124 Wn.2d 217, 876 P.2d 898 (1994).
B. Summary Judgment Dismissing this Appeal is Appropriate because None of the
Errors of Law Raised in the Notice of Appeal Have Legal Merit.
Under FWRC, the scope of agency decision appeals —such as the instant appeal —is
"limited to the errors of law raised or the specific factual findings and conclusions disputed in
the notice of appeal." FWRC 19.70.125. Similarly, in rendering a decision on an agency
decision appeal, the "hearing examiner may only consider evidence, testimony, or comments
relating to errors of law raised or the disputed findings and conclusions." Id.
Appellant's Amended Notice of Appeal does not explain in detail the alleged errors of
law raised,2 but at most the Amended Notice of Appeal alleges two distinct errors of law: (1)
the Code Interpretation contravenes the plain language of the code because it adds language
not contemplated by the drafters of the ordinance; and (2) the Code Interpretation contravenes
the spirit and purpose of the drafters because it "eviscerates the parking requirements
contemplated by the drafters in the legislative body." See Amended Notice of Appeal, at 2:2-
3, 16-20 (alleging the Code Interpretation violates the plain language), 2:19-22, 5:4-8
'- The failure of the Amended Notice of Appeal to clearly delineate the applicable assignments of error is
particularly unfortunate given that the City requested and the Hearing Examiner ordered clarification of the
Original Notice of Appeal. See Dec. 15 Prehearing Order. While the Amended Notice of Appeal modified the
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(alleging the Code Interpretation violates the spirit and purpose of the drafters). Neither
alleged error has legal merit, much less legal merit sufficient to overcome the great deference
accorded to the City's interpretation of its own code, and summary judgment dismissing this
appeal should be granted.
1. The Code Interpretation properly analyzes the plain language of the ADU
definition in accordance with the rules of statutory construction.
Beyond the bare assertion that the Code Interpretation is "in direct contravention
of... [t]he plain language of the code," the Amended Notice of Appeal offers no detail or
argument to explain how or why the Code Interpretation is at odds with the plain language of
the ADU definition in FWRC. Amended Notice of Appeal, at 2. Nonetheless, careful
examination of the Code Interpretation clearly demonstrates that its interpretation and analysis
of the ADU definition and the definition's applicability to various factual scenarios was
expressly and properly founded on the plain meaning of the relevant code provision.
FWRC 19.50.040(2) provides that a code interpretation decision shall be based on,
among other factors, the "defined or the common meaning, as applicable, of the words in the
provision." Id.; see also FWRC 1.05.020 (terms not defined in Title 19 FWRC or under
FWRC 1.05.020 "shall be given their usual meaning"). Correlatively, in determining the
meaning of a municipal ordinance, the "same rules of statutory construction apply... as to the
interpretation of state statutes." Seattle Hous. Auth. v. City of Seattle, 3 Wn. App. 2d 532,
538-39, 416 P.3d 1280 (2018) (internal quotations omitted). In accordance with FWRC
19.50.040(2) and case law regarding interpretation of municipal code, the Code Interpretation
used traditional means of statutory construction to construe the meaning of the ADU
definition in FWRC. See Code Interpretation, at 2.
Chief among the traditional methods of statutory construction employed by the Code
Interpretation was an analysis of the plain meaning of the ADU definition. See id., at 2-4
original to reference the City's Code Interpretation as a footnote, no change to the body text of the original
Notice of Appeal was made.
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Federal Way, WA 98003
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(using plain meaning to determine that ADUs must be both independent and exclusively for
one single housekeeping unit). After determining the plain language of the ADU definition
required additional living facilities to be both independent and exclusive, the Code
Interpretation turned to dictionary definitions for each word to determine their respective
common meanings. See Code Interpretation, at 4 (using a dictionary to determine that
independent means not subject to control by others, while exclusive means having power to
exclude, or limit possession, control, or use to a single individual or group); FWRC
19.50.040(2). Finally, the Code Interpretation applied the common meanings of independent
and exclusive to specific factual scenarios in which single-family residences contain attached
additional living facilities, analyzing the degree by which residents of an additional living
facility under each factual scenario had power to exclude or limit possession of the additional
living facilities to only the residents inside. Code Interpretation, at 5 (applying the plain
meaning of the ADU definition and the words independent and exclusive to four different
factual scenarios).
Ultimately, the Code Interpretation determined that additional living facilities in
single-family homes that are internally connected to the remainder of the single-family
residence constitute an ADU as defined under FWRC "only when they are separated from the
remainder of the residence by a separate keyed entry in an entryway or foyer, or at minimum
by a door that can be internally locked from within the additional living facility." Id., at 6.
By contrast, when "such additional living facilities are solely separated from the remainder of
the residence by a door that may be freely opened from the remainder of the residence, the
additional living facilities are not sufficiently `independent' or `exclusive' to constitute an
ADU as defined under FWRC." Id. This conclusion was rooted in the understanding that a
locked door provides a level of "independence, ability to control access, and ability to exclude
others," while an unlocked or open passage "does not provide the ability for an occupant ... to
meaningfully control access, exclude others, or limit possession or use of the living facility by
other occupants" of the single-family residence. Id., at 5-6.
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Federal Way City Attorney
33325 8th Ave South
Federal Way, WA 98003
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In sum, contrary to Appellant's allegation that the City contravened the plain language
of the ADU definition in the Code Interpretation, the City expressly based its entire
interpretation on a rigorous examination of the plain language of the operative provisions.
The Code Interpretation does not add any language to the ADU definition as alleged, rather it
simply analyzes the existing language in accordance with code requirements. See FWRC
19.50.040(2). As a result, Appellant's first allegation of error must fail under any standard of
review, and summary judgment dismissing Appellant's first allegation of error is warranted.
2. The Code Interpretation is consistent with the intent of the drafters to require
additional off-street parking for an ADU only when an ADU exists on the
property.
Appellant's second allegation of error fares no better. Essentially, the Amended
Notice of Appeal appears to argue that because the Code Interpretation determines which
factual situations do or do not qualify as ADUs under the ADU definition, the Code
Interpretation is inconsistent with the drafters' intent because FWRC requires an additional
off-street parking space when a property has an ADU. See Amended Notice of Appeal, at
5:4-9 (arguing that the Code Interpretation "eviscerates the parking requirements
contemplated by the drafters in the legislative body" and referencing an online City ADU
FAQ document stating that single-family homes with ADUs require three off-street parking
spaces as opposed to the normal two off-street parking spaces for a single-family home
without an ADU). Presumably, Appellant believes that determining a specific factual
scenario does not constitute an ADU is problematic and contrary to the drafters' intent
because no off-street ADU parking will be required. See id.
Appellant's argument has it backwards; an ADU is not an ADU because there is a
perception that off-street parking is needed in a given area. An ADU is an ADU because it
meets the definition of ADU contained in FWRC. See FWRC 19.05.010 (defining ADU
without reference to parking); see also FWRC 19.265.020 (requiring an ADU permit for
ADUs as defined in Chapter 19.05 FWRC); FWRC 19.195.180 (providing that ADUs must
meet the definition for ADU); FWRC 19.200.180 (same). If a given land use constitutes an
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ADU, then FWRC requires an additional off-street parking space for the property. See FWRC
19.195.180 (requiring provision of one off-street parking space for ADUs in the single-family
residential zone); FWRC 19.200.180 (requiring provision of one off-street parking space for
ADUs in the suburban estate zone). But the requirement for an additional off-street parking
space is a result of the existence of the ADU—it is not determinative of what constitutes an
ADU in the first place.
This code structure and the relevant cited provisions have remained essentially
unchanged since first adoption of the ADU code in 1995 under City Ordinance No. 95-245
("Original ADU Ordinance"). See Decl. of K. van Alstyne, Ex. A (containing original
ordinance defining ADU in all relevant ways identically to current, and Exhibit A to the
ordinance providing that ADUs "shall meet the definition" and requiring one additional
parking space "for an ADU"). The drafters clearly intended to require one off-street parking
space for properties with ADUs—and just as clearly they did not intend to require an
additional off-street parking space for properties without ADUs.
Properly interpreting the ADU definition in FWRC to determine whether or not a
particular land use at a property constitutes an ADU, and then requiring additional off-street
parking when an ADU in fact exists, is entirely consistent with the drafters' intent. Summary
judgment dismissing Appellant's second allegation of error should be granted.3
C. Appellant's Policy Arguments Are Not Within the Defined Scope of an Agency
Decision Appeal under FWRC, and Must be Dismissed.
Various portions of the Amended Notice of Appeal touch on policy questions related
to parking, development, and land use policy in general. See, e.g., Amended Notice of
' To the extent that the Amended Notice of Appeal can be read to allege that the Code Interpretation is generally
inconsistent with the drafters' intent outside of the parking -specific intent issue (a point that the City does not
concede), the Original ADU Ordinance only provides additional support for the approach taken in the Code
Interpretation. Indeed, the findings of fact assert that ADUs are "self-contained, and provide separate facilities
for the sleeping, cooking and sanitation needs of a separate household." Decl. of K. van Alstyne, Ex A, at 3
(emphasis added). The emphasis on self -containment and separation only further bolsters the Code
Interpretation's conclusion that the ability to exclude via a locking door is a minimum requirement for additional
living facilities within a single-family residence to constitute an ADU.
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Federal Way, WA 98003
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Appeal, at 2:4-7 (arguing that the density that will result from the Code Interpretation will
cause "irrecoverable and deleterious changes to our City"), 2:12-14 (arguing that the Code
Interpretation has effectively indemnified the City and allowed City staff to deny any
accountability); 2-3 (referencing the light rail, homelessness issues, and the potential for
unchecked growth). While these are serious issues about which Appellant is clearly
passionate —and while Appellant's viewpoints and participation are encouraged and
welcomed at public meetings and hearings in the City —agency decision appeals are limited in
scope to only "the errors of law raised or the specific factual findings and conclusions
disputed in the notice of appeal." FWRC 19.70.125. These various policy statements are not
allegations of legal error, nor disputes over specific factual findings or conclusions in the
Code Interpretation. Thus, to the extent the Appellant is attempting to allege error on the
basis of policy rationales, Appellant's arguments should be dismissed. Id.
D. The City's Separate Land Use Decision Regarding Appellant's Neighbor's
Alleged ADU is Not at Issue in this Appeal, and Any Claims Specifically Based on
Appellant's Neighbor's Alleged ADU Should be Dismissed.
Finally, some parts of the Notice of Appeal discuss and link the instant appeal with the
question of whether Appellant's neighbor's property contains an unpermitted ADU. See
Amended Notice of Appeal, at 3-5. It is unclear, however, to what extent Appellant's claims
of legal error in the Code Interpretation are based on the specific circumstances of Appellant's
neighbor's property. While it is true that Appellant's previous complaint with respect to his
neighbor's alleged unpermitted ADU is illustrative of the issues City staff consistently
experience applying the ADU definition to attached building additions and/or neighbor
complaints regarding potentially unpermitted ADUs, the Code Interpretation is not directed at
nor specific to Appellant's neighbor's property —it is broadly applicable citywide.
As explained previously, City staff have consistently had difficulty determining
whether an attached addition to a single-family home containing a second kitchen constitutes
an ADU under FWRC, or whether it is simply an addition to a single-family home that does
not create an ADU. Decl. of B. Davis, ¶¶ 4-5. This issue often arises in conjunction with
MOTION FOR SUMMARY JUDGMENT - 13
Federal Way City Attorney
33325 8th Ave South
Federal Way, WA 98003
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residential remodels or additions that add second kitchens to an existing single-family
residence, or as a result of neighbor complaints (as in Appellant's situation) over a nearby
single-family residence that may contain an unpermitted ADU. The specific facts and
allegations with respect to Appellant's neighbor's property contained in the Notice of Appeal
are not allegations of error nor disputes over specific factual findings or conclusions in the
broadly applicable Code Interpretation. Thus, to the extent the Appellant is attempting to
allege error in the Code Interpretation on the basis of factual allegations specific to
Appellant's neighbor's property, Appellants arguments should be dismissed. FWRC
19.70.125.
Indeed, prior to the Code Interpretation, the City issued a final land use decision
specific to Appellant's neighbor's property pursuant to the Land Use Petition Act, 36.70C
RCW ("LUPA") via the Kamieniecki Email. See Decl. of N. Kamieniecki, ¶¶ 9-11, Ex. A;
see also Smoke v. City of Seattle, 132 Wn.2d 214, 222, 937 P.2d 186 (1997) (internal
quotations marks omitted) (quoting Valley View Indus. Park v. City of Redmond, 107 Wn.2d
621, 634, 733 P.2d 182 (1987) ("[a] letter from an agency will constitute a final order if the
letter clearly fixes a legal relationship as a consummation of the administrative process," but
only if the letter is clearly understandable as a final determination of rights); Verjee-Van v.
Pierce Cty., No. 48947-3-II, 2017 Wash. App. LEXIS 2948 (Ct. App. Dec. 27, 2017)4
(determining that an e-mail from a county code enforcement officer stating that the neighbor's
fence was not in violation of code was a final land use decision under LUPA). The
Kamieniecki Email conclusively determined that "no Unpermitted ADU exists on the subject
property and the existing single-family residence is not in violation of the ADU code." Id.,
Ex. A. The email also stated in no uncertain terms that the pending code enforcement case,
the only then -active file regarding Appellant's neighbor's property, was thereby closed and
"no further action regarding the complaint will be pursued." Id. In other words, the
4 Unpublished, cited pursuant to GR 14.1.
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Federal Way, WA 98003
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Kamieniecki Email was a final land use decision subject to LUPA. See Smoke, 132 Wn.2d at
222; Verjee-Van, 2017 Wash. App. LEXIS 2948. While the City is not legally required to
provide notice of such a decision to anyone other than the property owner, the City
nonetheless forwarded the Kamieniecki Email to Appellant the same day it was sent to his
neighbor. Id., ¶ 10. The decision has not been appealed, and any appeal of that decision now
would be time-barred.5 See FWRC 1.25.020; RCW 36.70C.040.
In sum, to the extent Appellant's Amended Notice of Appeal attempts to allege error
in the Code Interpretation due to factual allegations specific to Appellant's neighbor's
property, such allegations should be dismissed both because (1) they fail to allege legal error
specific to the Code Interpretation, and (2) such claims are time -barred under LUPA.
VL CONCLUSION
For the above reasons, the City respectfully requests the Hearing Examiner grant the
City's motion for summary judgment, and dismiss this appeal in its entirety.
DATED this 8th day of February, 2022.
Respectfully submitted,
By: s/Kent van Alstyne
Kent van Alstyne, WSBA #49928
Assistant City Attorney for the City of
Federal Way
s Indeed, it is questionable whether Appellant even has standing to bring the instant appeal given his allegations
of prejudice and injury are all tied to the impact of the Kamieniecki Email decision, rather than the Code
Interpretation. See RCW 36.70C.060(2)(a), (c), (d). Regardless, the City is not moving for dismissal on that
basis as the City would prefer this appeal to be disposed of on the merits.
MOTION FOR SUMMARY JUDGMENT - 15
Federal Way City Attorney
33325 8th Ave South
Federal Way, WA 98003