2022-02-26 - Partial Summary Judgement Mann.pdf1
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BEFORE THE HEARING EXAMINER FOR
THE CITY OF FEDERAL WAY
David Mann
ORDER GRANTING PARTIAL SUMMARY
JUDGMENT
Administrative Appeal
The City's summary judgment motion is granted in part. The City's request for dismissal is
denied because material question of fact remains as to the degree of deference due to the City's
interpretation of its regulations. Under state law deference is only due if an interpretation is based upon
an established practice of enforcement. That issue is a question of fact that has not yet been addressed.
Beyond that question of fact, the subject appeal is anticipated to be resolved primarily as a question of
law. The City's motion for summary judgment is granted on the issue that the compliance issues of the
Appellant's neighboring ADU are beyond the scope of the subject appeal except to the extent those
issues are used to clarify the interpretation of the City's ADU definition. It is also agreed as asserted
in the City's reply brief that the Examiner has no authority to order an investigation process for future
ADU violation complaints.
Evidence Relied Upon
1. Appellant's Amended Notice of Appeal submitted December 15, 2021.
2. City's Motion for Summary Judgment dated February 8, 2022 with declarations.
3. Appellant's Response dated February 14, 2022.
4. City's reply dated February 17, 2022.
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Findings of Fact
The City issued a code interpretation on October 15, 2021 clarifying what qualifies as an ADU
under the ADU definition adopted by FWRC 19.265.020.
2. David Mann timely appealed the ADU interpretation by written appeal filed November 8, 2021.
3. A summary judgment motion, response brief and reply brief were filed as identified in the
"Evidence Relied Upon" section of this Order.
4. Mr. Mann's written appeal could be construed as contesting a code enforcement decision by City
staff that a neighboring ADU is compliant with the City's ADU regulations. The City had initially
opened a code enforcement file to investigate that ADU for compliance. The City concluded
there was no code violation and issued an email to the ADU property owner on September 21,
2021, cc'd to Mr. Mann, that it found no violation and was closing its code enforcement file.
Legal Analysis
The deference due to the City's interpretation of its ADU definition can potentially play a
determinative role in resolution of this appeal due to the ambiguities of the definition. As noted in
the City's motion for summary judgment, FWRC 19.70.120 requires that the Examiner "give great
deference" to the City's interpretation of its own regulations. However, this standard conflicts with
the judicial standard of review for land use decisions, including land use interpretations, which only
requires deference to "such deference as is due the construction of a law by a local jurisdiction with
expertise." See RCW 36.70C.130(1)(b). The courts have provided significant clarification to what
deference is "due" as follows:
The statute does not require a court to show complete deference , but rather, "such
deference as is due. " Thus, deference is not always due —in fact, even a local entity's
interpretation of an ambiguous local ordinance may be rejected. Instead, the interpreting
local entity bears the burden to show its interpretation was a matter of preexisting policy.
No deference is due a local entity's interpretation that was not part of a pattern of past
enforcement, but a by-product of current litigation. A local entity's interpretation need
not be memorialized as a formal rule but the entity must prove an established practice of
enforcement.
Ellensburg Cement Prods., Inc. v. Kittitas Cnty. & Homer L. (Louie) Gibson, 317 P.3d 1037, 1047
(2014)(citations omitted).
The Examiner unquestionably has no authority to invalidate or ignore City ordinances that apply to this
appeal. FWRC 19.70.120 must be applied whether or not it is consistent with RCW 36.70C.130(1)(b).
However, at the same time the City's regulations should be construed consistently with state law to the
extent feasible. It is logical to conclude under principles of judicial economy that the City Council
intends its adopted review standards to be consistent with those of judicial review. Further, in this case
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remand can be avoided if the RCW 36.70C.130(1)(b) due deference standard is applied in addition to
that of FWRC 19.70.120 if reconciling the two standards is not possible.
CR 56b only authorizes the granting of summary judgment "if there is no genuine issue as to any
material fact." There is a genuine issue as to whether the City's interpretation is due deference under
RCW 36.70C.130(1)(b) as a matter of pre-existing policy. That is a factual issue that was not addressed
in the City's motion for summary judgment. To harmonize FWRC 19.70.120 with RCW
36.70C.130(1)(b), it is concluded that the degree of "great deference" due to the City's interpretation is
partially dependent upon whether or not the interpretation under appeal is a matter of pre-existing policy.
Arguably, the City's motion could be granted without granting any deference. However, given the
ambiguities of the ADU definition it is safest to have a complete record on the issue in case of judicial
appeal.
Beyond the deference issue, the City's position on the Appellant's neighboring ADU is found to be
accurate — whether or not the City has correctly closed its code enforcement investigation on that ADU
is beyond the scope of this appeal. The City's email to the ADU property owner, cc'd to Mr. Mann as
identified in Finding of Fact No. 4, qualifies as a final land use decision regarding the legal status of the
ADU. Chumbley v. Snohomish Cmy., 386 P.3d 306, 315 (2016)(notation in County records that code
enforcement case was closed served as final land use decision on code enforcement investigation for
purposes of judicial appeal). As noted in Finding of Fact No. 4, that email was issued on September 21,
2021 and Mr. Mann filed his appeal on October 15, 2021. It's unclear what appeal filing deadline applies
to the City's closing of its code enforcement file; however, there is no potential applicable appeals
deadline that is longer than the 21-day deadline that would apply to a direct judicial appeal under the
Land Use Petition Act, Chapter 36.70C RCW. As such, it is too late to appeal the closing of the code
enforcement case. The email determination that the neighboring ADU is code compliant cannot be
collaterally attacked in this proceeding. See, e.g., See Habitat Watch v. Skagit County, 155 Wn.2d 397,
410-11 (2005)(under principles of judicial finality, administrative code interpretations that are not timely
appealed are binding even if incorrect).
Appellant raised in its response brief for the first time a request for the Examiner to order a code
enforcement investigatory process for future ADU violations. That issue is beyond the jurisdiction of
this forum. Agency decision appeals are "limited to the errors of law raised or the specific factual
findings and conclusions disputed in the notice of appeal." FWRC 19.70.125. Further, the Appellant's
request to create a new code enforcement process/program would have the Examiner encroach into the
legislative function of the City Council.
Decision
The City's motion for summary judgment is granted in part. The merits of the City's decision to
close its code enforcement file on the ADU adjoining the Appellant's property is outside the Examiner's
jurisdiction. That code enforcement case may be used by the Appellant for illustrative purposes to the
extent relevant to the Appellant's interpretation of the City's ADU regulations, but the validity of the
decision to close the case cannot be addressed in this proceeding.
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The Appellant's request for an investigatory program for ADU violations is beyond the
Examiner's jurisdiction.
The City's request for dismissal is denied because a material question of fact remains as to the
deference due to the City's interpretation as outlined in the legal analysis of this Order.
ORDERED this 26th day of February, 2022.
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Hearing Examiner for Federal Way