• Development Dispatch: Code Violations -- Can Local Government Preclude An Opportunity To Appeal A Fine?
  • October 27, 2009
  • Law Firm: Miller Nash LLP - Seattle Office
  • In Post v. City of Tacoma, the Washington Supreme Court announced today that a code enforcement action is not a land use decision and therefore not subject to Washington's Land Use Petition Act ("LUPA"). The City of Tacoma began fining Paul Post, a local landlord with several downtown properties, for various code violations. Mr. Post attempted to remedy the violations, but many of them lingered. So Tacoma began imposing fines, some reaching into the tens of thousands of dollars. Mr. Post appealed the fines. But Tacoma dismissed the appeals, claiming that Mr. Post had failed to appeal within 30 days. Mr. Post sued in Pierce County Superior Court, proclaiming that Tacoma had violated his constitutional and due process rights. Tacoma filed a cross-complaint, arguing that LUPA precluded Mr. Post from seeking a remedy in court because he had not followed the appropriate administrative procedures.

    The Superior Court granted Tacoma's summary judgment, awarded it the fines, and concluded that Tacoma had followed the constitution and due process. The Court of Appeals agreed with the Superior Court and further concluded (1) that notices of violations were land use decisions subject to the procedures of LUPA, and (2) that Mr. Post's failure to appeal the violations in a timely manner precluded the relief he sought.

    The Washington Supreme Court disagreed, holding that code enforcement actions were not included within the specific LUPA statutory framework. Thus, notice of violations and their appeals may either be governed by a local ordinance with an explicit system establishing a process or default to RCW 7.8, which requires a local jurisdiction to enforce its civil infractions/violations in court.

    The lesson: consult your attorney if you face a code violation to make sure that the local government is following due process.