Loading...
APP-2019-0001 Decision Final CITY OF SPOKANE VALLEY HEARING EXAMINER Re: In the Matter of the Appeal of the ) administrative code enforcement ) determination by the City of ) Spokane Valley regarding ) Citizen Action Request, PRO- ) 2019-0004 FINDINGS, CONCLUSIONS, BARBARA J. HOWARD, ) AND DECISION Appellant, ) FILE NO. APP-2019-0001 v. ) CITY OF SPOKANE VALLEY, ) Respondent. SUMMARY OF APPEAL AND DECISION Summary of Appeal: Barbara J. Howard ("Appellant"), the owner of the property located at 11616 East Jackson Avenue, Spokane Valley, Washington, appeals an administrative code enforcement determination (PRO-2019-0004) by the City of Spokane Valley ("City"), rendered in response to a Citizen Action Request. In its determination, the City concluded that the property located at 11522 East Jackson Avenue, Spokane Valley, Washington, is in compliance with applicable provisions of the Spokane Valley Municipal Code (SVMC). Decision: The appeal is denied and the City's administrative code enforcement determination is upheld. FINDINGS OF FACT BACKGROUND INFORMATION Appellant: Barbara J. Howard 11616 East Jackson Avenue Spokane Valley, WA 99206 Represented by: Michael J. Beyer 5010 West Prosperity Lane Spokane, WA 99208 Property Owners: Martin R. Rodriguez 11522 East Jackson Avenue Spokane Valley, WA 99206 Represented by: Heywood Horn 221 West Main Avenue, Suite 100 Spokane, WA 99201 Page 1 of 25 Respondent: City of Spokane Valley 10210 East Sprague Avenue Spokane Valley, WA 99206 Represented by: Erik Lamb Deputy City Attorney City of Spokane Valley 10210 East Sprague Avenue Spokane Valley, WA 99206 Date of Decision being Appealed: February 7, 2019 Date of Appeal: February 20, 2019 Hearing Date: May 22, 2019 Testimony: Erik Lamb Michael J. Beyer Deputy City Attorney Attorney at Law City of Spokane Valley 5010 West Prosperity Lane 10210 East Sprague Avenue Spokane, WA 99208 Spokane Valley, WA 99206 Heywood Horn Attorney at Law 221 West Main Avenue, Suite 100 Spokane, WA 99201 Exhibits: Exhibits entered into record prior to hearing: HE-1 Staff Report and Recommendation to the Hearing Examiner dated 05/03/19, including: HE-1.1 Declaration of Nicole Montano, including: • Exhibit 1 —Code Enforcement Notes, Case# NUI-2017-0341 • Exhibit 2 — Business Information for MR Construction & Landscaping LLC • Exhibit 3—Code Enforcement Notes, Case# NUI-2018-0289 • Exhibit 4 — Barbara Howard's Citizen Action Request dated 01/07/19 • Exhibits 5 and 6 — Photographs of Accessory Structure • Exhibit 7 — Letter from the City to M. Beyer and B. Howard dated 02/07/19 re: PRO-2019-00004 with code enforcement notes and BLD-2017-3030 permit attached Page 2 of 25 HE-1.2 Declaration of Jenny Nickerson, including: • Exhibit 1 — Building Permit Number BLD-2017-3030 and site plan • Exhibit 2 — Home Business Application for MR Construction & Landscaping LLC HE-1.3 Declaration of Rory Lapka, including: • Exhibit 1 — Inspection History Report dated 11/14/18 HE-1.4 Declaration of Bob Bebout, including: • Exhibit 1 Inspection History Report dated 11/14/18 HE-1.5 Declaration of George Janssen, including: • Exhibit 1 — Inspection History Report dated 11/14/18 HE-2 Home Business Permit, Building Permit Application, and Building Permit HE-3 Code Enforcement Complaint, investigation Notes, and Letter to Ms. Howard regarding investigation HE-4 Howard Appeal APP-2019-0001, including HE-4.1 Notice of Representation by Heywood Horn dated 03/04/19 HE-4.2 PRO-2019-004 Appeal re: Barbara Howard, including: • Table of contents • Appeal Application • Fee Waver • Appellant Standing • Statement of Error • Statement of Facts • Exhibit A— Parcel Information • Exhibit B — Bobbet Rosas Cease and Desist Letter to Barb Howard • Exhibit C — Michael Beyer (Atty) Cease and Desist Letter to Bobbet Rosas • Exhibit D— Michael Beyer (Atty) Request for Enforcement to City Manager (Mark Calhoun) • Exhibit E — Barb Howard Citizens Action Request to City of Spokane • Exhibit F — Spokane Valley Reply (Nicole Montano) to Citizens Action Request • Exhibit G — Fairview Acres Mobile Homes Subdivision Restrictions and Covenant • Exhibit H — RCW 64.70.050 Covenants— Enforceability • Exhibit I — RCW 58.17.215 Alteration of subdivision — Procedure • Exhibit J—SVMC 19.40 Alternative Residential Development Options • Exhibit K — Photo (11522 E. Jackson) — 3 car garage not in compliance; photos (neighborhood garages) — 2 car garage in compliance • Exhibit L—SVMC 19.60 Permitted Uses • Exhibit M —SVMC 19.65 Supplemental Use Regulations • Exhibit N — Spokane Valley Building Permits Issued (11522 E. Jackson Ave) • Exhibit 0— Multiple Employee Parking Photo Page 3 of 25 • Exhibit P—Work Vehicle Parking Photos • Exhibit Q — Photo of 3-Car-Garage (11522 E. Jackson Ave) • Exhibit R — SVMC 22.50 Off-Street Parking and Loading Standards • Exhibit S—Spokane Valley Home Business Application • Exhibit T—SVMC 5.05 Business License Requirements • Exhibit U—Photos of Mobil [sic] RV being lived in on property • Exhibit V — SVMC 9.30 Miscellaneous Vehicle Regulations (No Truck Sign Provisions) • Exhibit W—Aerial Map of Fairview Mobile Home Subdivision and proposed new signage HE-5 Pre-hearing Correspondence Exhibits entered into record at time of hearing: A-1 Quitclaim Deed from Tye K. & Janice M. Hutchens to Martin R. Rodriguez for Parcel No. 45091.2004, 11522 E. Jackson Avenue, Spokane Valley WA 99216. FINDINGS AND CONCLUSIONS A. Background Facts 1. Building Permit (October 2017) On October 26, 2017, Bobbet Rosas applied' for a building permit to construct a 720 square foot, two-story garage (the "Building Permit") on the property2 located at 11522 E. Jackson Avenue (the "Rodriguez Property"). See HE-1.2 (Dec. of J. Nickerson, Ex. 1). On October 27, 2017, Ms. Rosas received the Building Permit for the garage. See id. The garage was approved as an accessory structure to an existing residence. See id. The Building Permit also authorized Ms. Rosas to improve the upstairs of the garage for use as an office and additional storage. See id. As of the date of the hearing, the garage appeared from the outside to be constructed.' However, the work on the garage has not yet concluded. Argument of H. Horn; see also HE-1.2 (Dec. of J. Nickerson 116). The Building Permit is still effective and remains valid until October 27, 2019. See HE-1.2 (Dec. of J. Nickerson 1[4). The Building Permit has never been appealed. See HE-1.2 (Dec. of J. Nickerson ¶ 5). The site plan attached to the Building Permit is stamped "received" and "approved"on October 26, 2017.See HE-1.2(Dec.of J. Nickerson, Ex. 1). However,the Building Permit was not issued until the following day, October 27, 2017.See id. 2 The Building Permit identifies Martin R. Rodriguez as the owner of the property.See HE-1.2(Dec.of J. Nickerson, Ex. 1). 3 This conclusion is based upon the Hearing Examiner's site visit to the property just prior to the commencement of the hearing. Page 4 of 25 2. Code Enforcement Complaint#1 (November 2017) On or about November 2, 2017, the Appellant contacted the City to complain that the Rodriguez Property was being used in violation of City codes. See HE-1.1 (Dec. of N. Montano 1113). The Appellant alleged that there were code violations related to work trucks, the operation of a business, and people living on the property. See id. The City opened a code enforcement claim under number NUI-2017-0341. See HE-1.1 (Dec. of N. Montano, Ex. 1). On November 3, 2017, the Code Enforcement Officer for the City of Spokane Valley, Ms. Montano, began to investigate the matter. See id. Her investigation did not reveal any code violations. See id. For example, she did not find non-residents living on the site or employees working at the property. See id. However, she did discover that the business license for Mr. Rodriguez's construction business had expired. See id. She advised Mr. Rodriguez to renew his license. See id. On November 6, 2017, the business license was renewed. See id.; see also HE-1.1 (Dec. of N. Montano, Ex. 2). Ms. Montano closed the case. See HE-1.1 (Dec. of N. Montano, Ex. 1). She then contacted the Appellant and advised her of the City's decision to close the case. See id. On November 17, 2017, the Appellant contacted the City to renew her complaints about the activities or uses of the Rodriguez Property. See id. The Appellant complained that 20 people were living on the property, including some residing in an RV, and that employees were parking their vehicles in the street. See id. Ms. Montana advised that she would re-open the case, but thus far had been unable to find evidence substantiating the alleged code violations. See id. On November 20, 2017, Ms. Montano continued her investigation of the matter. She contacted and discussed the matter with Ms. Rosas. See id. Ms. Rosas advised that the RV at the property was used for recreational purposes, not as a residence. See id. Ms. Rosas confirmed that only her family resides at her house. See id. Ms. Rosas advised that she has two employees who come to her house to pick up work vehicles. See id. Ms. Montano advised Ms. Rosas that the employees cannot park on the street. See id. Ms. Rosas stated that she would ensure her employees park only on her property. See id. Ms. Montano made an appointment to meet Ms. Rosas at her property on November 22, 2017. See id. On November 22, 2017, Ms. Montano conducted a site visit to the Rodriguez Property. See id. Ms. Montano again determined that there were no code violations at the property. See id. Ms. Montano again closed the case. See id. The Appellant did not appeal the City's determination of compliance in NUI-2017-0341. See HE-1.1 (Dec. of N. Montano ¶ 5). 3. Home Business Permit (July 2018) On July 24, 2018, Mr. Rodriguez applied for and received home business permit, identified as HPR-2018-0320 (the "Home Business Permit), to allow "MR Construction & Landscaping LLC" to operate its offices out of the Rodriguez Property. See Exhibit HE-1.1 (Dec. of J. Nickerson ¶ 7 & Ex. 2). The City issued the Home Business Permit subject to certain conditions, including the requirements that (1) all storage be enclosed Page 5 of 25 within the residence or garage; and (2) parking of all vehicles and equipment associated with the business shall be on the property and not on the public street. See id. The issuance of the Home Business Permit was not appealed. See Exhibit HE-1.1 (Dec. of J. Nickerson If 8). 4. Code Enforcement Complaint#2 (August 2018) On or about August 30, 2018, the Appellant contacted the City to allege code violations at the Rodriguez Property. See HE-1.1 (Dec. of N. Montano IT 6). The Appellant's complaint concerned allegations of an illegal business, illegal parking, and an illegal structure. See id. The City opened a code enforcement case under number NUI-2018-0289. See HE-1.1, Dec. of N. Montano, Ex. 3). That same day, Ms. Montano contacted Mr. Rodriguez to discuss the matter. See HE-1.1 (Dec. of N. Montano ¶ 7). From that conversation, Ms. Montano determined that employees would occasionally park for short duration in the street in violation of the Home Business Permit. See id. Ms. Montano advised Mr. Rodriguez that his employees could not park on the street, and that future complaints may result in a fine. See HE-1.1 (Dec. of N. Montano, Ex. 3). Mr. Rodriguez stated that he understood. See id. Ms. Montano mailed a warning notice to the property owners regarding the parking restriction. See id. On September 5, 2018, the Appellant contacted Ms. Montano and complained that there were people living in a tent in the back yard of the Rodriguez Property and asserting that the owners intend to use the garage as a residence as well. See id, Ms. Montano contacted Mr. Rodriguez who stated that there was no tent and no one was living in his back yard. See id. On September 10, 2018, the Appellant contacted Ms. Montano and alleged that four employee vehicles were parked on the street next to the Rodriguez Property. See id. Ms. Montano then contacted and spoke with Ms. Rosas. See id. Only one car, owned by Ms. Rosas' sister, was parked there and was related to the business. See id. Ms. Rosas agreed to move the car right away. See id. That same day, Ms. Montano conducted a site visit. See Id. Ms. Rosas' sister's car had been moved as promised. See id. The other cars were not related to the business being conducted at the Rodriguez Property. See id. Ms. Montano further determined that there were no ongoing code violations at the property. See HE-1.1 (Dec. of N. Montano ¶ 8). As a result, Ms. Montano closed the code enforcement case identified as NUI-2018- 0289. See id. The Appellant did not appeal the city's determination of compliance in NUI-2018-0289. See HE-1.1 (Dec. of N. Montano ¶ 9). 5. Citizen Action Request (January 2019) On January 7, 2019, the Appellant, through her attorney Mr. Michael Beyer, submitted a Citizen Action Request (CAR) to the City of Spokane Valley. See HE-1.1 (Dec. of N. Montano, Ex. 4). In the CAR, the Appellant alleged that there were code violations at the Rodriguez Property related to an illegal business, illegal parking, and an illegal structure. See id. Ms. Montano opened a code enforcement case, identified as PRO-2019-0004. See HE-1.1 (Dec. of N. Montano ¶ 10). Page 6 of 25 Through the CAR, the Appellant made five requests for action by the City: (1) acknowledge receipt of the CAR; (2) revoke the City's permission to construct the garage and require the unfinished garage to be brought into compliance with existing regulations; (3) revoke the permission to allow a construction business in an R3 neighborhood and to cease and desist all business activities not in compliance with governing laws, regulations, and covenants; (4) to provide clarity and a basis for future enforcement, install new signs at three locations for overweight vehicles; and (5) provide an official reply in writing from the City with interpretations of the foregoing issues as they apply to existing regulations and laws, and implement remedies addressing Ms. Howard's complaints. See Exhibit HE-1.1 (Dec. of N. Montano If 10 & Ex. 4). On January 8, 2019, Ms. Montano conducted a site visit to the Rodriguez Property to investigate the claims in the CAR. See Exhibit HE-1.1 (Dec. of N. Montano ¶ 11). She observed two vehicles parked on the Rodriguez Property. See Exhibit HE-1.1 (Dec. of N. Montano 1111 & Exs. 5-6). Ms. Montano did not observe any other business activity at the Rodriguez Property. See Exhibit HE-1.1 (Dec. of N. Montano ¶ 12). Ms. Montano then examined the City's files and determined that the property owners had obtained Building Permit BLD-2017-3030 for construction of the accessory garage with storage and an office on top. See Exhibit HE-1.1 (Dec. of N. Montano 1111). Ms. Montano also determined that the property owners had obtained a Home Business Permit HPR-2018-0320 to allow "MR Construction and Landscaping, LLC" to operate its offices out of the Rodriguez Property and to keep employee vehicles onsite. See id. The Building Permit files confirmed that "no deviations from the construction plans had been observed during inspections of the construction" of the garage. See Exhibit HE-1.1 (Dec. of N. Montano If 11). On November 2, 2017, a City plans examiner inspected the garage for setback requirements and footing requirements. See HE-1.3 (Dec. of R. Lapka ¶¶ 3-4). On November 3, 2017, a City building inspector inspected the garage for reinforcement requirements. See HE-1.4 (Dec. of B. Bebout ¶ 3). On September 13, 2018, a City building inspector inspected the garage for shear and brace wall framing requirements as well as for rough framing requirements. See HE-1.5 (Dec. of G. Janssen ¶¶ 3-4). On September 18, 2018, a City building inspector inspected the garage for roof deck sheathing requirements. See HE-1.5 (Dec. of G. Janssen ¶ 5). The inspections that occurred during construction have consistently demonstrated the accessory structure is being built consistent with the approved plans, and is compliant with Chapter 24.40 SVMC and the codes adopted therein. See Exhibit HE-1.3 (Dec. of R. Lapka IT 5); see also Exhibit HE-1.4 (Dec. of B. Bebout IT 4); see also Exhibit HE-1.5 (Dec. of G. Janssen if 6). Ms. Montano determined that the only business activity occurring at the property was the parking of two vehicles, and that activity was consistent with terms of the Home Business Permit. See HE-1.1 (Dec. of N. Montano ¶ 12). Ms. Montano concluded that there was no reasonable cause to find a violation for either the unfinished garage or the permitted business activity. See id. Ms. Montano concluded that the Rodriguez Property was being used in compliance with the SVMC. See id. On February 7, 2019, the City rendered its administrative code enforcement determination (PRO-2019-0004) in response to the CAR. See Exhibit HE-1.1 (Dec. of N. Montano, Ex. 7). In her determination, the Code Enforcement Officer responded to the five requests identified in the CAR. See id. Ms. Montano's determination further states: Page 7 of 25 This letter constitutes the City's code enforcement decision. As indicated herein and in my notes, 1 have determined no code violations exist at 11522 East Jackson, Spokane Valley, 99206. ... Pursuant to SVMC 17.90.040, this decision may be appealed within 14 days after written notice of this decision, or on or before February 21, 2019. See Exhibit HE-1.1 (Dec. of N. Montano, Ex. 7). 6. Appeal of Code Enforcement Determination (February 2019) On February 20, 2019, the Appellant appealed the administrative code enforcement determination to the Hearing Examiner. See Exhibit HE-4.2. The appeal includes the Appeal Application, the Statement of Errors, the Statement of Facts, and supporting documents and exhibits. See id. The issues raised by the Appellant, which are numerous, can be placed into four general categories: (1) Covenant Violations; (2) Zoning Violations; (3) Business Violations; and (4) Signage Issues. See id. The four categories and all of the issues raised in each category are summarized on Attachment A —List of Issues, which is provided at the end to this Decision. B. Issues Summarily Dismissed The hearing on the appeal was conducted by the Hearing Examiner on May 22, 2019. In accordance with the agenda circulated by the Hearing Examiner prior to the hearing, the hearing started with oral argument concerning the scope of the appeal and jurisdictional questions. Specifically, the Hearing Examiner requested that the parties address whether the alleged Covenant Violations, Business License Violations, or Signage Issues could properly be addressed in the appeal. The Hearing Examiner asked the parties to address two primary questions in their arguments: Question One: Were the issues set forth by Appellant properly raised in the administrative process prior to the appeal to the Hearing Examiner? Question Two: Does the Hearing Examiner have jurisdiction to adjudicate the issues raised by the Appellant? Following that argument, for the reasons discussed below, the Hearing Examiner made an oral ruling summarily dismissing all the issues listed in Categories 1, 3, and 4. In other words, the Hearing Examiner determined that he would not consider any of the allegations regarding Covenant Violations, Business License Violations, and Signage Issues, The Hearing Examiner then determined that the hearing should proceed on the merits concerning Category 2, i.e. the alleged Zoning Violations. 1. Covenant Violations (Category 1) The Hearing Examiner concludes that the Appellant properly raised the issue of covenant violations in the administrative process preceding the appeal. In the CAR, the Appellant rather broadly asserts that the City issued building and construction permits that allowed construction work on the Rodriguez Property in violation of the subdivision covenants. See Exhibit HE-4,2 (Statement of Facts; Ex. E). The Appellant also requested that the City Page 8 of 25 revoke permission for any business activities that are not in compliance with the covenants. See id. Although the appeal identifies certain covenant violations that were not explicitly addressed in the CAR, those issues were contemplated by the more general allegations in the CAR. The question of covenant violations is, therefore, properly within the scope of the appeal. Although the issue was properly raised, the Hearing Examiner does not have jurisdiction to adjudicate alleged covenant violations. Restrictive covenants are not created by legislative enactment and are not regulatory in nature. Restrictive covenants are created by private parties in the process of conveying an interest in real property. If a property owner wishes to enforce a covenant, that party must initiate an action in court. The remedy for breach of a restrictive covenant is an injunction against future violations of the covenant together with damages that may be due for any past breaches. See William B. Stoebuck, Running Covenants: An Analytical Primer, Washington Law Review, Vol. 52, p. 887 (1977). The covenants of"Fairview Acres Mobil Homes" incorporate this rule. The section entitled "Enforcements" states that enforcement shall be by "proceedings at law or in equity," either"to restrain violation or to recover damages." See Exhibit HE-4.2 (Statement of Facts; Ex. G). Thus, the covenants themselves clearly reference that enforcement is accomplished by court action. There is no administrative process to seek redress for covenant violations. The Hearing Examiner ordinance does not grant the Hearing Examiner with authority to interpret. apply, or enforce restrictive covenants. See SVMC 18.20.030(B)(5). There are no other statutes or ordinances that enable the Hearing Examiner to determine the effect of restrictive covenants or implement remedies for any violations that may exist. In the absence of such authority, covenant issues are outside the Hearing Examiner's jurisdiction. See Chausee v. Snohomish County Council, 38 Wn.App. 630, 639, 689 P.2d 1084 (1984) (concluding that the scope of a hearing examiner's authority is determined by the applicable statutes and ordinances). In any case, the Hearing Examiner's authority is necessarily limited by the powers of the City Council. Stated another way, the "City Council cannot delegate powers it does not have." See Exendine v. City of Sammamish, 127 Wn.App. 574, 587, 113 P.3d 494 (2005). The City Council does not exercise any power over the enforcement of private covenants. As the Washington Supreme Court recognized in Viking Properties, the City Council "'has no authority' to enforce or invalidate restrictive covenants." See Viking Properties, Inc. v. Holm, 155 Wn.2d 112, 130, 118 P.3d 322 (2005) (noting the City conceded its lack of authority to override preexisting covenants). The Hearing Examiner has no power to issue injunctions. See Chausee, 38 Wn.App. at 639 (holding that a hearing examiner lacks authority to grant equitable remedies). Similarly, the Hearing Examiner has no authority to impose penalties or award damages. Such powers have not been delegated to the Hearing Examiner by the legislature. Rather, that authority is reserved to the courts. In support of her contention that the City improperly issued permits in violation of the subdivision covenants, the Appellant cited to three legislative enactments: RCW 64.70.050; ROW 58.17.215; and SVMC 19.40.070. The Hearing Examiner concludes that none of these enactments are relevant to this case. ROW 64.70.050 is a statute that sets forth special rules designed to ensure the enforceability of"environmental covenants." For example, the statute provides that an "environmental covenant" is enforceable even if it is not appurtenant to the land, there is Page 9 of 25 no privity of estate or contract, or it has not been traditionally recognized at common law. See RCW 64.70.050(2)(a), (c), & (g). However, this appeal does not concern an "environmental covenant." The special rules related to these kinds of covenants provide no assistance in resolving this appeal. RCW 58.17.215 governs the procedure for the alteration of final plats. If a proposed alteration of a plat would violate a restrictive covenant, then all parties subject to the covenant must agree to the alteration. See RCW 58.17.215. However, no alteration of a final plat has been proposed, requested, or approved in this case. There are no facts that trigger the application of this statute, and the Appellant did not sufficiently explain how this statute bears on this matter. The Hearing Examiner concludes that the statute is not relevant to this appeal. Chapter 19.40 of the SVMC concerns "residential development options" that are considered an "alternative" to "traditional single-family dwellings and multifamily dwellings." See SVMC 19.40.010. In her appeal, the Appellant specifically cited to SVMC 19.40.070, which provides that the development standards for manufactured homes do not "override any legally recorded covenants or deed restrictions of record." See SVMC 19.40.070(C). As before, what is missing is a link between the statute cited and the facts of this case. This appeal does not concern a proposal to install/construct a manufactured home. The statute explicitly "applies only to manufactured housing units placed on individual lots." See SVMC 19.40.070(A). There is no indication that the ordinance applies outside the context of the placement of manufactured homes. It certainly does not constitute a general mandate that local government must always investigate the potential effect of private covenants before issuing any permits. The Hearing Examiner concludes that the statute is not relevant to this appeal. The Hearing Examiner acknowledges that, having already concluded that jurisdiction is lacking, the foregoing comments on the relevance of the statutes cited by Appellant may amount to dicta. However, the Hearing Examiner deemed it prudent to address the cited statutes, if for no other reason than to point out that the cited statutes do not identify any independent causes of action. All three statutes are cited in relation to the Appellant's allegation that Mr. Rodriguez and Ms. Rosas have violated the subdivision covenants and that the City permitted those violations to occur. 2. Business License Violations (Category 3) In her Statement of Error and Statement of Facts, the Appellant alleged that Mr. Rodriguez and Ms. Rosas, or both of them, were conducting business in violation of SVMC 5.05.020. See Exhibit HE-4.2. The violations primarily concerned (1) the alleged failure to obtain separate license registrations for each of the businesses being conducted at the Rodriquez property; and (2) the purported failure to maintain a valid Washington State business license registration and a valid City business license registration. See Exhibit HE-4.2 (Statement of Facts). However, in the CAR, the Appellant did not make any reference to the alleged violations of SVMC 5.05.020 or assert any allegation that Mr. Rodriguez or Ms. Rosas had failed to obtain any necessary business licenses. See Exhibit HE-4.2 (Statement of Facts; Ex. E). On the contrary, the CAR acknowledges that the City has `granted a business license for a construction business at this property," and asserts this was error because the property is zoned for residential use. See id. The CAR does broadly assert that the construction business is being operated in violation of"various Page 10 of 25 restrictions and requirements," but the failure to register business licenses is not mentioned. See id. The Hearing Examiner concludes that the Appellant did not properly raise a claim for failure to register business licenses. The CAR makes no reference to such allegations. For this reason, the Code Enforcement Officer's determination does not address the issue, nor should it. It is not proper for the Appellant to raise these specific, statutory violations for the first time in the appeal of the City's decision related to the CAR. Because the issue was not properly raised prior to the appeal, the Hearing Examiner concludes that the issue is outside the proper scope of the appeal and should not be considered. Assuming arguendo that the allegations in the CAR were sufficient to give notice of the business license registration claims, the Hearing Examiner would nonetheless dismiss those claims for lack of jurisdiction. As stated above, the Appellant's claims were based upon an alleged violation of Chapter 5.05, which sets forth certain business license requirements. See SVMC 5.05.010 et seq. Chapter 5.05 does not include any provisions that delegate authority to the Hearing Examiner to review decisions related to business license registration. See id. The Hearing Examiner ordinance likewise fails to include any language upon which the Hearing Examiner could assert jurisdiction to hear these kinds of appeals. See SVMC 18.20.030(B)(5). There are specific provisions in Chapter 5.05 that govern appeals relating to business license registration. Those provisions state that a person may appeal (1) the determination that Chapter 5.05 has been violated; (2) the denial, suspension, or revocation of a City business license registration; or (3) a determination that a person is engaged in business. See SVMC 5.05.080(A). An appeal of any of these determinations must be made within 14 days. See id. The city manager is charged with the duty to decide the appeal. See id. The SVMC describes the procedure to be followed: The city manager shall review the appeal and issue a written decision to uphold, modify, or reverse the determination within 30 days of receipt of the appeal. The city manager's decision is the final decision of the City and may be appealed to the Spokane County superior court within 21 days of the date of the city manager's decision. See SVMC 5.05.080(A). A person may also appeal the imposition of penalties by the City. See SVMC 5.05.080(B). However, those appeals must be directed to the courts of limited jurisdiction as provided in Chapter 7.80 RCW. See id. It is doubtful that the Appellant would have standing to bring an appeal under SVMC 5.05.080(A). The Appellant is not the applicant for the license and has no direct or indirect interest in the licensing process. However, to the extent that the Appellant would be permitted to bring an appeal concerning her neighbor's business license registration, the only appeal route available is stated in SVMC 5.05.080. That provision clearly states that any appeal will be decided by the city manager. Any decision of the city manager is then appealable to superior court. Under the explicit terms of Chapter 5.05, the Hearing Examiner is not the hearing body when it comes to licensing matters. As a result, the Hearing Examiner lacks subject matter jurisdiction over these claims and, therefore, cannot consider Appellant's claims. Page 11 of 25 3. Signage Issues (Category 4) In the CAR, the Appellant requested'that the City "provide (3) new signs at a) Marietta/Pines; b) University/Grace; and c) University/Fairview" in order to "provide clarity" and establish a basis for "future enforcement." See Exhibit HE-4.2 (Statement of Facts; Ex. E). In the Statement of Errors and Statement of Facts, the Appellant went a step further, asserting that the City violated the traffic codes and state law by failing to properly place or maintain signs limiting gross vehicle weights in the neighborhood and regulating parking. See Exhibit HE-4.2. Turning to the Hearing Examiner's first question, the Hearing Examiner concludes that the Appellant raised the issue of signage in the administrative process prior to commencing her appeal, as discussed above. The issue, therefore, is properly within the scope of this appeal. Turning to the second question, the Hearing Examiner concludes that he lacks jurisdiction to consider the matter. This conclusion is reached for several reasons. The Appellant's allegations regarding the miscellaneous traffic regulations do not constitute a code enforcement matter. The Code Enforcement Officer's authority is limited to addressing claims of nuisance under Chapter 7.05 and violations of the provisions of Chapters 17-24. See SVMC 17.100.010. The Appellant's complaint, however, concerns Chapter 9.30, which sets forth miscellaneous vehicle regulations relating to issues such as traffic, parking, and vehicular noise. See SVMC 9.30.010 et seq. The Hearing Examiner agrees with Ms. Montano's conclusion that the alleged violations of Chapter 9.30 do not constitute a code enforcement complaint and, therefore, she lacks jurisdiction to consider that issue. See Exhibit HE-4.2 (Statement of Facts; Ex. F). Any discretion to be exercised concerning the placement or maintenance of traffic signs is undoubtedly for the traffic engineers. See id. Decisions regarding enforcement of vehicle regulations are within the discretion of law enforcement. See id. In either case, the Code Enforcement Officer is not the entity that is charged to make the relevant decisions. Moreover, Chapter 9.30 does not delegate any authority to the Hearing Examiner to review such issues, to conduct hearings or consider appeals, or to make decisions concerning those regulations. See id. Instead, Chapter 9.30 provides that any person violating the provisions of this chapter shall be subject to a Class 1 civil infraction pursuant to RCW 7.80. See SVMC 9.30.080. The Spokane Valley Police is the agency with discretion to enforce the regulations, including the issuance of citations. See e.g. SVMC 9.30.040 (referencing a "citation" given by an "issuing officer"); see also Exhibit HE-4.2 (Statement of Facts; Ex. F). If a party wishes to contest a citation, that appeal must be lodged in court. See SVMC 9.30.080; see also RCW 7.80.010 (providing that all violations of local regulations may be resolved in the district or municipal courts). The Hearing Examiner ordinance, found in Chapter 18, does not change the analysis. There is no language in the Hearing Examiner ordinance that confers authority upon the 4 The Hearing Examiner doubts that a"request"to add signage to facilitate"future enforcement"can form a legally sufficient basis for an appeal.A mere request to take action(add signs)so that something might be done in the future (enforcement)seems insufficient.However,the Appellant's contentions changed in documents submitted in support of her appeal.In the appeal,she asserted that the city had violated the vehicle regulations and related state law by failing to place or maintain the proper signage.See Exhibit HE-4.2(Statements of Error and Statement of Facts). Page 12 of 25 Hearing Examiner to review alleged violations of miscellaneous vehicle regulations. See SVMC 18.20.030(6)(5) (setting forth the Hearing Examiner's authority to conduct hearings on variances, conditions use permits, preliminary plats, and other matters). The Hearing Examiner's authority to hear an appeal of a code enforcement decision does not authorize the Hearing Examiner to consider the signage issue. This is true because the alleged violation of vehicle regulations is not a "code enforcement matter," as explained above. Nor are the vehicle regulations properly considered a part of the development code or any "other land use code or regulation," within the meaning of the Hearing Examiner ordinance. See id. As a consequence, the Hearing Examiner has no jurisdiction to consider these matters. 4. Ownership Issues At the commencement of the hearing, the Appellant submitted a copy of a quitclaim deed as evidence that Mr. Rodriguez did not come into ownership of the Rodriguez Property until September 26, 2018. See Exhibit A-1. Based upon this information, the Appellant contended that Mr. Rodriguez did not have "standing" to apply for a Home Business Permit on July 24, 2018, approximately two months before he allegedly obtained his interest in the property. Argument of M. Beyer. The Appellant also contended that Mr. Rodriguez did not live at the premises and thus could not properly apply for a Home Business Permit to operate a business at that location. See id, The Appellant further contended, among other things, that Ms. Rosas was neither the owner of the property nor the operator of the business. See id. As a result, the Appellant argued, Ms. Rosas also could not be the applicant for the Home Business Permit. See id. The Hearing Examiner declined to consider these allegations. The assertion that either Mr. Rodriguez or Ms. Rosas did not have legal capacity to act as an applicant for a permit was not even remotely raised in the CAR. See Exhibit HE-4.2 (Statement of Facts; Ex. E). Nor was this issue set forth in the Appeal Application, the Statement of Errors, or the Statement of Facts prepared by the Appellant. See Exhibit HE-4.2. This legal question was raised for the first time at the commencement of the hearing on the appeal. Neither the Hearing Examiner nor the responding parties were prepared to consider or address this question as a result. It was too late in the administrative process to raise an entirely new legal issue. No explanation was given to justify the failure to raise this issue earlier in the process. Under the circumstances, the issue is outside the scope of the appeal and cannot properly be considered. C. Statute of Limitations and Exhaustion of Remedies The City contended that the Appellant's claims were barred because she failed to timely appeal the relevant administrative decisions. See Exhibit HE-1 (Staff Report, p. 5); see also Argument of E. Lamb. Specifically, the Appellant did not file an administrative appeal with respect to the Building Permit, the Home Business Permit, or either of the two code compliance decisions designated as NUI-2017-0341 and NUI-2018-0289. See id. Because the Appellant failed to timely appeal these decisions, the City maintains that she cannot collaterally attack those decision through her appeal of the City's more recent decision regarding the CAR. See id. Further, the Appellant failed to exhaust her administrative remedies and, therefore, is precluded from seeking further review. See id. Page 13 of 25 The Appellant made two arguments in response to these contentions. First, the Appellant contended that because the City responded to the CAR, the City waived its statute of limitations defense. Argument of M. Beyer. The Appellant insisted that the CAR called the prior decisions into question, and that if the City wished to avoid waiving the defense, the City should have refused to respond to the CAR. See id. Second, the Appellant contended that she could not be expected to appeal the Home Business Permit or the Building Permit because she was not notified of the issuance of those permits. See id. In other words, according to the Appellant, precluding her appeal on these matters would offend the principles of due process. See id. The Hearing Examiner concludes that, to the extent the Appellant is asserting claims that were already addressed in prior administrative decisions (that were not appealed), the Appellant's claims are barred. The specific issues that are precluded are discussed below. See Paragraph E. What follows is the Hearing Examiner's rationale for reaching this conclusion. 1. The Appellant was required to commence an administrative appeal of the prior ministerial decisions within 14 days of the issuance of those decisions. All of the prior administrative decisions, i.e. the Building Permit, the Home Business Permit, and the two code enforcement determinations, are all classified as Type I procedures under the municipal code. See SVMC 17.80.020(A) (generally defining Type I matters). Type I decisions explicitly include, among other things, (1) building permits5 not subject to the State Environmental Policy Act (SEPA); (2) administrative determinations by the building official (which would include code enforcement determinations by officials working under the building official); and (3) home business permits. See SVMC 17.80.030 (Table 17.80-1, entitled Permit Type and Land Use Application). Type I applications are issued administratively. See SVMC 17.80.020(A). There is no public notice procedure for Type I applications. See SVMC 17.80.070 (Table 17.80-2, Permit Type and Land Use Application). Thus, the notice of application procedure under Chapter 17.80.110 and the notice of public hearing procedure under SVMC 17.80.120 are "Not Applicable" to Type I applications. See id. However, certain parties must be notified by regular mail when final decisions on Type I applications are rendered. See SVMC 17.80.130(E) (requiring notice, for example, to the "applicant"). The Appellant was the complaining party who initiated both of the code enforcement determinations, NUI-2017-0341 and NUI-2018-0289. Thus, she was a party to those proceedings and certainly received notice of the decisions that were rendered. The Appellant did not claim lack of notice of the code enforcement decisions. With respect to the Building Permit and the Home Business Permit, however, the Appellant is not among the parties required to be notified. See SVMC 17.80.130(E). The only standard that might apply to Appellant is Section 17.80.180(E)(3), but this record 5 Table 17.80-1, entitled Permit Type and Land Use Application, classifies"building permits not subject to SEPA"as Type I procedures. See SVMC 17.80.030.The table cross-references SVMC 21.20.040,which lists the kinds of new construction projects that are exempt from SEPA review.The list of exempt projects includes single-family residences and storage buildings up to 30,000 square feet in size. See SVMC 21.20.040.The Hearing Examiner concludes that the building permit issued for the garage is,therefore, exempt from SEPA and qualified as a Type I procedure. Page 14 of 25 contains no evidence that she filed a written request for a copy of the notice of the final decisions. Further, Appellant did not claim that, having made such a formal request, the City ignored her request or neglected to fulfill it. In sum, the Appellant had no right to individual notice of the issuance of these permits. The appeal authority with respect to building permits and other Type I decisions is the Hearing Examiner. See SVMC 17.90.010 (Table 17.90-1, Decision/Appeal Authority). In order to challenge these decisions, an aggrieved party must commence an appeal "no later than 14 calendar days after written notice of the decision is mailed." See SVMC 17.90.040(A). This provision does not mean that the time to appeal is only triggered by written notice to the Appellant. The language must be read together with the provisions governing notice of Type I applications. The municipal code provides that the City shall send notice of the final decision to issue a Type I permit, by regular mail, to the applicant. See SVMC 17.80130(E)(1). A neighboring property owner, however, is not entitled to individual notice of a Type I decision, as discussed above. The Hearing Examiner concludes that the 14-day appeal period commences when the notice of decision is mailed to the parties entitled to notice. With respect to those who are not entitled to notice, the appeal period commences (in effect) upon the issuance of the decision or permit. The Appellant did not appeal any of the four administrative decisions made by the City concerning the Rodriguez Property. See HE-1.1 (Dec. of N. Montano IN 5 & 9); see also HE-1.2 (Dec. of J. Nickerson 1114 & 5). The Appellant did not dispute this fact. Her failure to commence an appeal, therefore, is fatal to any claims that were addressed in those proceedings, unless she can establish that there is a legal excuse for foregoing the opportunity to initiate administrative review. 2. The Appellant failed to file an administrative appeal within 14 days of actual or constructive notice of the existence of the permits. The Washington Supreme Court's most recent pronouncement on the issue makes it clear that the failure to file an administrative appeal is fatal to challenging a permit, even if the party contesting the permit did not receive notice of the issuance of the permit. See Durland v. San Juan County, 182 Wn.2d 55, 340 P.3d 191 (2014). In the Hearing Examiner's view, that case states the controlling law on this issue, as is discussed in greater detail below. Even so, there is at least one case that suggests that the time period to challenge a ministerial permit does not begin to run until an aggrieved party has actual or constructive notice of the permit. See Larsen v. Town of Colton, 94 Wn. App. 383, 973 P.2d 1066 (1999). Assuming, for the sake of discussion only, that the administrative appeal period started when the Appellant had actual or constructive notice, the Appellant still failed to initiate an appeal on the timely basis. Even if this more liberal rule somehow survives Durland et al., and applies here, the Appellant's claims are still barred. The Appellant had actual or constructive knowledge of the building permit shortly after the Building Permit was issued. The Building Permit was issued on October 27, 2017. See HE-1.2 (Dec. of J. Nickerson, Ex. 1). By November 2, 2017, a City plans examiner visited the site to inspect the project for setback and footings requirements. See HE-1.3 (Dec. of R. Lapka 713-4). On November 3, 2017, Ms. Montano spoke with Mr. Rodriguez, who confirmed that work on the garage was underway. See HE-1.1 (Dec. of N. Montano, Ex. 1). That same day, a City building inspector visited the site to inspect Page 15 of 25 that the owners were meeting the reinforcement requirements. See HE-1.4 (Dec. of B. Bebout ¶ 3). Thus, by early November 2017, the foundation of the garage was underway, providing neighbors, including the Appellant, with at least constructive notice of the Building Permit. See Larsen, 94 Wn. App. at 387 (holding constructive notice existed as of the date the owner began digging the foundation for their garage). Even if the initial construction work was not significant enough to provide constructive notice of the permit, the Appellant certainly had sufficient knowledge by September 5, 2018, when she called to complain that the owners were planning to use the top of the garage as living space. See HE-1.1 (Dec. of Montano, Ex. 3). In addition, City records confirm that inspections of the wall framing and roof deck sheathing took place on September 13 & 18, 2018, respectively. See HE-1.5 (Dec. of G. Janssen ¶¶ 3-4), see also HE-1.5 (Dec. of G. Janssen ¶ 5). By then, the structure was framed with roof sheathing installed. This was approximately 5 months before the Appellant submitted her appeal of the CAR. No appeal of the Building Permit has ever been filed. But even if the appeal of the CAR could serve that purpose, that appeal was submitted several months after the Appellant had notice of the Building Permit. The Appellant has had actual or constructive notice of the Home Business Permit since August-September 2018. The Home Business Permit was issued on July 24, 2018, See Exhibit HE-1.1 (Dec. of J. Nickerson ¶ 7 & Ex. 2). A little over a month later, the Appellant contacted the City to complain that an illegal business' was being conducted at the Rodriguez Property. See HE-1.1 (Dec. of N. Montano 116). On September 10, 2018, after investigating the matter, the Code Enforcement Officer closed the case, concluding that there were no ongoing code violations. See id. As the complaining party, the Appellant was certainly aware of this decision. The Appellant had sufficient information to be alerted that a permit had been issued for the business activity, and to take steps to appeal that permit if she had a basis to do so. In addition, the Appellant was informed of the outcome of code enforcement investigation, and also failed to appeal the code determination.. On January 7, 2019, when the Appellant submitted the CAR, she knew that the City had "granted a business license for a construction business at this property." See Exhibit HE-4.2 (Statement of Facts; Ex. E). If her knowledge of the Home Business Permit commenced the appeal period, she had two weeks after learning of permit to commence her appeal. Even if she learned about the permit on the day she filed the CAR, the deadline would have expired on January 21, 2019. However, she did not file her appeal of the CAR until February 20, 2019, at which time the appeal period had expired. See HE-4.2. Thus, even if the CAR could substitute for an appeal of the permit itself. her appeal was still too late. 3. The City did not waive its statute of limitations defense by responding to the Citizen Action Request submitted by the Appellant. A waiver is the intentional and voluntary relinquishment of a known right. See Bowman v. Webster, 44 Wn.2d 667, 669, 269 P.2d 960 (1954). A waiver may result from an express agreement or a waiver may be inferred from circumstances indicating an intent to waive. See id. The one against whom a waiver is claimed "must intend to relinquish 6 Actually,the Appellant began objecting to business uses of the Rodriguez Property as early as November 2, 2017.See HE-1.1 (Dec.of N. Montano'03). Page 16 of 25 such right, advantage, or benefit; and his actions must be inconsistent with any other intention than to waive them." See id. The Appellant did not point to any evidence that the City expressly waived its statute of limitations defense. In essence, the Appellant asserted that the City waived its defense by the mere act of responding to the CAR. Argument of M. Beyer. However, the Hearing Examiner rejects the notion that a waiver can be implied from the City's conduct in this case, for at least two reasons. First, the Appellant relies upon the City's response to the CAR as her evidence of an implied waiver. However, the City explicitly raised the statute of limitations defense in its response to the CAR. Answering the Appellant's request to revoke the Building Permit, the City specifically noted that the "permit was not timely appealed and so it remains a valid permit until October 27, 2019." See HE-4.2 (Statement of Facts; Ex. F). The City gave the same response regarding Appellant's request to revoke permission to use the property for business purposes. See id. The City pointed out that the Home Business Permit "was not timely appealed and so remains a valid home business permit." See id. It would be ironic, to say the least, to conclude that the very document which expressly raises a defense also implicitly waives that same defense. Stated another way, a waiver implied from conduct is much more likely to exist in a case where the party's intentions are unexpressed. Second, the City's act of responding to the CAR is perfectly consistent with the City's intent to reserve its defenses should the matter be further litigated. The City's response is an explanation of its investigation into the inquiry and the bases for its decisions. As relevant here, the City set forth its rationale for not taking the actions requested by the Appellant. While the Appellant may disagree with the City's reasoning, it is difficult to see how the City relinquished any of its rights in providing this response. And the mere act of providing a response to the Appellant's inquiry certainly does not demonstrate that the City actually intended to relinquish its rights. There is no evidence of an express or implied waiver in this case. In addition, the Appellant did not cite to any procedural rule, ordinance, statute, or case law to support the theory that the City waived its defenses merely by responding to a citizen's request for action. The Hearing Examiner is aware of no such authority, and was unable to ascertain from Appellant's argument precisely why the City's response constituted a waiver. The Hearing Examiner concludes that the City did not waive its defenses. 4. Appellant cannot state a claim under procedural due process because she does not possess a "property interest"in her neighbor's building permit. The Appellant argued that she did not receive notice of the Building Permit or Home Business Permit' and, therefore, cannot be held to the requirement to appeal those permits within 14 days. Argument of M. Beyer. In the Appellant's view, the principles of procedural due process require that notice be given before an appeal period can run or expire. While the Hearing Examiner is sympathetic to the Appellant's arguments The Appellant's due process argument only applies to her challenges to the Home Business Permit and the Building Permit.As stated previously, Appellant was the complainant in the code enforcement actions and certainly received notice of the final decisions in those matters. Page 17 of 25 regarding notice, the Hearing Examiner concludes that the Appellant's arguments were thoroughly considered and rejected by the Washington Supreme Court in Durland v. San Juan County, 182 Wn.2d 55, 61, 340 P.3d 191 (2014). In Durland, a property owner applied for a building permit to add a second story to a garage. See Durland, 182 Wn.2d at 61. The county granted the permit on November 1, 2011. See id. A group of neighboring property owners (collectively "Durland") would have challenged the permit because of the impacts on their views and the enjoyment of their property. See id. However, the county code does not require public notice when issuing building permits. See id. Durland was unaware that a permit had been issued until December 5, 2011, 34 days after the permit was issued. See id. "By that time, the deadline for filing an administrative appeal had passed. See id. The county code requires an administrative appeal of a building permit to be filed within 21 days of the issuance of the permit. See id. In an effort to resolve the dilemma, on December 19, 2011, Durland filed two actions, (1) a land use petition in superior court (Durland 1) and (2) an administrative appeal to the county hearing examiner (Durland II). See id. In Durland 1, Durland challenged the validity of the permit. See id. On review, the Washington Supreme Court sustained the superior court's ruling dismissing Durland's land use petition. See id., at 62. The petition was dismissed because Durland did not appeal the permit issuance to the hearing examiner prior to filing his land use petition in court. See id., at 63. Durland's failure to appeal administratively was fatal because there was no "final decision" from which to appeal, depriving the court of jurisdiction to review the matter. See id. Durland also failed to exhaust his administrative remedies, another fatal defect of the appeal. See id. Durland argued that he was not required to appeal to the hearing examiner because he had no notice of the permit until after his appeal window had closed. See id. The Washington Supreme Court rejected this argument. See id. The Court acknowledged that this result "may seem harsh and unfair," but ultimately concluded that this result was proper given the strong public policy in support of administrative deadlines. See id., at 59. The Court stated leaving land use decisions open to reconsideration after they are finalized "places property owners in a precarious position and undermines the Legislature's intent to provide expedited appeal procedures in a consistent, timely, and predictable manner." See id., at 59-60 (quoting Chelan County v. Nykriem, 146 Wn.2d 904, 933, 52 P.3d 1 (2002)). The Court emphasized that it has repeatedly concluded that the statutory time limits provide certainty, predictability, and finality for land owners and the government. See id., at 60. In Durland 11, the hearing examiner dismissed Durland's claim as untimely. See id., at 60. Durland challenged that dismissal in superior court, arguing that the "county violated his constitutional right to due process by failing to provide notice of the permit so that he could timely challenge it and by dismissing his administrative appeal as untimely." See id., at 69. The Washington Supreme Court ultimately held that there was no due process violation because Durland had no constitutionally protected property interest in the denial of his neighbor's permit. See id., at 61. The county code did not require the county to deny a building permit that might impair private views of the water. See id. In other Page 18 of 25 words, the county code did not grant adjoining property owners an entitlement to the protection of their views. See id., at 69. As a result, the court rejected Durland's due process claim. See id. The situation in Durland is closely analogous to the circumstances of this appeal. The Hearing Examiner concludes that the results reached in Durland apply with equal force here. There is no question that the Appellant did not appeal any of the prior administrative decisions, let alone within the required time frames. Under the Washington Supreme Court's reasoning in Durland, the Appellant cannot challenge the Business Permit or the Home Business Permit given that the appeal periods for those decisions expired long ago. The strong public policies in favor of the administrative deadlines and the certainty, predictability, and finality of land use decisions compel this result. Like the neighboring property owners in Durland, the Appellant objects that she was provided with no notice of the issuance of the permits and that, under such circumstances, denying her claim based upon the 14-day appeal period violates her right to due process. However, in order to claim a property interest in the denial of a permit, the claimant must demonstrate that a regulation "mandates protection of the third party's interest." See Durland, 182 Wn.2d at 72. It is not enough for the code to contain restrictions on construction, such as size and height limitations. See id. (denying the due process claim because the county code did not contain mandatory language requiring the protection of neighbors' views as a condition of a building permit). The SVMC does not include any mandatory language requiring the City to consider the Appellant's interests prior to issuing a permit. The Appellant did not cite to any such language. The Hearing Examiner reviewed the applicable provisions of the code and was unable to locate any requirement that the City account for a neighbor's interest when deciding whether to issue a building permit or a home business permit. As a result, under the holding of Durland, the Appellant does not have a "property interest" that can constitute the basis for a procedural due process claim. D. Zoning Violations (Category 2) The zoning code violations alleged by the Appellant can be broken down into four main issues. Each of those issues are discussed below, 1. Issue One — Chapter 19.40, Alternative Residential Development Options. The Appellant contended that the garage constructed on the Rodriguez Property is an accessory dwelling unit (ADU). The Appellant asserted that the garage was being used for a home business. The Appellant then contended that this use violated the zoning code because home businesses are prohibited in an ADU. See SVMC 19.40.030(D)(3). The Hearing Examiner rejects this claim for three reasons. First, there is no evidence in this record supporting the assertion that the garage is being used as a dwelling. There was evidence that, at one point, the owner inquired with the City about converting the Page 19 of 25 garage into an ADU. See Exhibit HE-2 (E-mail from B. Rosas 12-4-2019, 3:58 PM). But. merely inquiring about a potential use does not constitute the use itself. Mr. Beyer conceded that permission has not been formally sought to use the garage as a dwelling. Argument of M. Beyer. Mr. Beyer also conceded that no evidence existed that the garage is currently being used as a dwelling. See id. The primary premise of Appellant's argument, therefore, is unsupported. Second, the Appellant has asserted this claim prematurely. The owners have not yet formally requested to convert the garage into an ADU. Argument of E. Lamb; Argument of M. Beyer. In addition, the garage is not yet complete and no certificate of occupancy has been issued. Argument of E. Lamb; Argument of H. Horn. The Hearing Examiner concludes that the City is correct—the issue is not ripe for adjudication under the circumstances. Third, the claim that the garage is being improperly used for the owner's home business is a collateral attack on the previously obtained permits. The Appellant did not appeal the Building Permit or the Home Business Permit on a timely basis and, therefore, the Appellant is barred from challenging the validity of those permits. See Paragraph C above. The Building Permit authorizes the garage to be improved for office purposes and for storage. The Home Business Permit authorizes limited business activity at this residence. If those activities or uses are not proper, the Appellant should have appealed those permits. The permits are now legally unassailable. See Chelan County v. Nykriem, 146 Wn.2d 904, 929, 52 P.3d 1 (2002) (holding that a legally defective boundary line adjustment "became valid" once the time period to challenge the approval had passed); see also Wenatchee Sportsmen Association v. Chelan County, 141 Wn.2d 169, 4 P.3d 123 (2000) (holding that a rezone could not be challenged after the appeal period expired, even though the rezone improperly allowed development outside the urban growth boundary). 2. Issue Two– Violation of SVMC 19.60, Permitted Uses. The Appellant argued that a construction and landscaping business is not allowed in an R-3 zone. See SVMC 19.60.050 (Permitted Uses Matrix). The Appellant points out that the following uses, among other things, are not allowed in this residential zone: industrial service, office/professional, vehicle repair and maintenance, towing, and general indoor storage. See Exhibit HE-4.2 (Statement of Facts; Ex. L). Asserting that the Rodriguez Property was being used for all these purposes, the Appellant then concluded that the current business activity should be prohibited. The Hearing Examiner rejects the Appellant's claim for three reasons. First, the Appellant conceded that she has no actual knowledge or factual evidence that the property owners are doing anything in violation of the use restrictions in the R-3 zone. The City is correct that the Appellant failed to substantiate its claims, including the assertions about the presence of heavy equipment or vehicles. There was no specific evidence that the equipment or vehicles witnessed or photographed by the Appellant were actually related to the owner's business activity. Argument of E. Lamb. The Appellant's claim is based on speculation, suspicion, or fear, not on cognizable evidence. Second, the property owners obtained a Home Business Permit authorizing the business activity as an accessory use. See Exhibit HE-2; see also SVMC 19.65.180(A)(2) (home Page 20 of 25 businesses are allowed as an accessory use of a primary residence). The general provisions describing the permitted uses in the R-3 zone are not intended to preclude home businesses. The home business provisions carve out a specific exception to those restrictions, allowing certain low-intensity business uses to exist in residential areas, provided various conditions are honored. Third, the Appellant's argument constitutes a collateral attack on the validity of the Home Business Permit. To the extent the Appellant is challenging the business uses of property, as authorized by the permit, the Appellant's claim is barred, for the reasons discussed previously. 3. Issue Three — Violation of SVMC 19.65, Supplemental Use Regulations. The Appellant asserted that the property owners had violated various provisions of Chapter 19.65 of the SVMC, including elements of subsections 130, 170, and 180. Each of the Appellant's contentions will be considered in turn. The Appellant first contended that the garage constructed on the Rodriguez Property exceeded the size restriction on accessory structures. The relevant provision, which applies to lots equal to or less than 10,000 square feet in size, states that the combined building footprint of accessory structures in residential zones may not exceed 1,000 square feet. See SVMC 19.65.130(A)(1). The Hearing Examiner rejects the Appellant's claim. The Appellants did not submit any evidence that the footprint of the garage (alone or together with other accessory structures) exceeded 1,000 square feet. The Appellant conceded that she did not have any proof that the garage was oversize. Argument of M. Beyer. The record, however, confirms that the garage was constructed within the size requirements as well as other code standards. The Building Permit authorized the construction of a 720 square foot garage. See HE-1.2 (Dec. of J. Nickerson, Ex. 1). The garage has been inspected multiple times, and no deviations from the construction plans have been observed. See Exhibit HE-1.1 (Dec. of N. Montano ¶ 11). The footings were specifically inspected on November 2, 2017, without any deviations from code requirements being detected. See HE-1.3 (Dec. of R. Lapka ¶¶ 3-4). Appellant's arguments are barred in any case, because the Building Permit specifically authorized the precise structure that has been built and that permit was not timely appealed. Even if the Appellant is correct that the structure deviates from code requirements in some way, any alleged defect "became valid" once the time period to challenge the Building Permit had passed. See Nykriem, 146 Wn.2d at 929. During oral argument, the Appellant cited to SVMC 19.65.170 for the proposition that the owners were improperly using the garage for storage. See SVMC 19.65.170(A)(1) ("General indoor storage is only permitted as an accessory use in the NC zone.") The Hearing Examiner rejects this claim. First, this specific claim was not raised in the CAR or in the subsequent appeal submittals. Second, it is far from clear that this provision even applies. Subsection 170 refers to warehouse, wholesale, and freight movement, restricting "general indoor storage" to the NC zone. The Appellant failed to demonstrate that a warehouse or freight operation was being conducted at the property. Nor did the Appellant demonstrate that the Rodriguez Property was being used for "general indoor storage." Third, the Appellant had no evidence that documented what storage activities Page 21 of 25 were being undertaken, or that tended to show those storage activities deviated from any applicable standards. Finally, the Building Permit allows the garage to be used for storage, and that permit cannot be collaterally attacked now, as discussed above. The Appellant cited to various provisions of SVMC 19.65.180, claiming that the business use was not consistent with the residential nature of the area. The standards cited by Appellant are the very provisions that the City considers when deciding whether to approve a home business permit. The City approved the Home Business Permit and that approval has never been appealed. The Appellant's claims constitute an impermissible, collateral attack on the Home Business Permit and cannot be considered as a result. The mere fact that a business use is occurring in a residential area is unremarkable—the permit plainly allows that activity. Even if these issues raised could be considered, the Appellant conceded that she had no direct knowledge or evidence that any violations were actually occurring. Mr. Beyer conceded that the Appellant could "only speculate" because she could not legally obtain the information necessary to confirm her suspicions. Argument of M. Beyer. In other words, the Appellant has no evidence to support her appeal. The Appellant did not prove that the owners were currently engaged in illegal parking; that vehicles parked along the street were associated with the home business; that vehicle repair, hauling, or other prohibited activities were taking place; that more than two non-resident employees worked in the home business; or that any other code violations existed. There were some concerns raised in the prior code enforcement matters regarding parking, but those issues were resolved. See HE-1.1, Dec. of N. Montano, Exs. 1 & 2). Ultimately, the Hearing Examiner agrees with the City that the reason that Appellant has encountered such great difficulty gathering evidence of code violations is not because of lack of opportunity to observe or investigate, but because there is no such evidence. Argument of E. Lamb. 4. Issue Four– Violation of SVMC 22.50.020, Vehicle Parking. The Appellant contended that the off-street parking being allowed for the home business exceeded the limits for off-street parking in Chapter 22.50. See SVMC 22.50.010 et seq. At its core, this argument is an objection to the off-street parking condition found in the Home Business Permit. In other words, the Appellant is again collaterally attacking the Home Business Permit, despite having failed to timely appeal the issuance of that permit. As a result, this contention cannot be considered by the Hearing Examiner. Moreover, reading the code provisions as a whole, the Hearing Examiner does not believe that the general provisions of Chapter 22.50 are intended to govern the rather narrow class of activities that fall within the definition of a home business. The standards applicable to a home business are found in SVMC 19.65.180(A), not in the general parking standards that apply across the zoning categories. Finally, if there is any tension between the respective ordinances, the more specific provisions of 19.65.180(A) related to home businesses would govern over the more general terms elsewhere in the SVMC. Page 22 of 25 DECISION Based upon the findings and conclusions above, the Hearing Examiner concludes that the Code Enforcement Officer's decision was correct and should be upheld. The code enforcement determination is hereby sustained and the appeal is denied. DATED this 13th day of June 2019. Brian T. McGinn City of Spokane Valley Hearing Examiner NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL Pursuant to Chapter 17.90 of the Spokane Valley Municipal Code (SVMC) and Chapter 36.70C of the Revised Code of Washington (RCW), the decision of the Hearing Examiner on an appeal of a building official's determination is final and conclusive unless within 21 calendar days from the date of issuance of the Examiner's decision, a party with standing files a land use petition in Superior Court pursuant to RCW Chapter 36.70C. On June 12, 2019, a copy of this decision will be mailed by regular mail to the Appellant and to all government agencies and persons entitled to notice under SVMC 17.80.130(E). Pursuant to RCW Chapter 36.70C, the date of issuance of the Hearing Examiner's decision is three (3) days after it is mailed. The date of issuance of the Hearing Examiner's decision will be June 17, 2019. THE APPEAL CLOSING DATE FOR THE DECISION IS JULY 8, 2019. The complete record in this matter is on file during the appeal period with the Office of the Hearing Examiner, 808 W Spokane Falls Boulevard, Spokane, Washington, 99201; and may be inspected by contacting Kim Thompson at (509)625-6010. The file may be inspected during normal working hours, listed as Monday-Friday of each week, except holidays, between the hours of 8:00 a.m. and 4:30 p.m. After the appeal period, the file may be inspected at the City of Spokane Valley Community & Public Works Department-Building and Planning Division, located at 10210 E. Sprague Avenue, Spokane Valley, WA 99206; by contacting staff at (509) 921-1000. Copies of the documents in the record will be made available at the cost set by the City of Spokane Valley. Page 23 of 25 ATTACHMENT A— List of Issues Howard v. City of Spokane Valley Statement of Facts/Error Category 1. Covenant Violations (1) City allowed permits and licenses in violation of covenants (a) RCW 64.70.050—enforcement of covenants [Note: listed as separate issue in Statement of Error, but as a covenant issue in the Statement of Facts] (b) RCW 58.17.215—alteration of final plat[Note:listed as separate issue in Statement of Error, but as a covenant issue in the Statement of Facts] (c) SVMC 19.40, Alternative Residential Development Options [Note: listed as separate issue in Statement of Error, but as a covenant issue in the Statement of Facts; Statement of Error specifically references 19.40.070] (2) 3-car garage allowed in violation of covenants (3) Accessory garage not in harmony per covenant and neighborhood integrity (4) Detached garage not completely finished within 90 days (5) Temporary structures covenant violated (a) Tent in back yard for over 1 year (b) Garage allows living quarters (c) Use garage as office space for construction business (d) Height of garage not in harmony with neighborhood [note: only referenced in Statement of Error] Category 2.Zoning Violations (1) SVMC Chapter 19.40, Alternative Residential Development Options (a) Garage is an Accessory Dwelling Unit (b) Home businesses are prohibited in an ADU (2) Violation of SVMC 19.60, Permitted Uses (a) Construction business allowed in R-3 (b) Office permitted in garage (c) Vehicle repair on property (d) Vehicle towing on property (e) Garage used for storage, office, dwelling (3) Violation of SVMC Chapter 19.65, Supplemental Use Regulations (a) 19.65.130, Accessory Structures, garage oversize (b) 19.65.180(2b), residential appearance and character (c) 19.65.180(2d), limit of 2 non-resident employees, illegal parking (d) 19.65.180(J), parking greater than normal for residential neighborhood [Note: Statement of Error also references off-street parking must be on private property.] Page 24 of 25 (e) 19.65.180(K), detrimental to residential appearance and character not allowed as a home business (f) 19.65.180(3c,k), uses not permitted in a home business (i) Auto repair (ii) Truck hauling (iii) Construction business and/or storage (4) Violation of SVMC 22.50.020, Vehicle Parking (a) SVMC 22.50.020(61), nonresidential uses, parking in zone that allows the use (b) SVMC 22.50.020(B2), off-street parking on same parcel as use, unless joint parking agreement (c) Home Business Application states parking on the parcel [Note: this contention does not appear in the Statement of Error] (d) Table 22.50-1, Required Parking Spaces for Specific Uses (i) Industrial, 1 per 1,000 gross square feet (ii) Office, Professional, General, 1 per 500 gross square feet (iii) Dwelling, Accessory Units, 1 per dwelling unit Category 3. Business License Violations (1) Violation of SVMC 5.05.020, Business License Registration, must register each business at a location (a) Several business operated at the property (11522 E. Jackson) (b) Business and vehicle parking at another address (17500 E. Sprague) (c) Mobile home parked at Jackson address, later removed (2) Violation of SVMC 5.05.020, Valid License Registration (a) No valid annual business license registration (b) Mechanic work on property (c) Hauling vehicles on property Category 4. Signage Issues (Weight Limitations and No Parking) (1) Violation of Model Traffic Codes, SVMC 9.30, Miscellaneous Vehicle Regulations (a) SVMC 9.30.030, signs limiting gross vehicle weight within a neighborhood [Note: Statement of Error also reference RCW 46.44.080] (b) Appellant requested 3 additional signs. (2) City refused to replace unreadable"No Parking" signs near Wilbur and Jackson Page 25 of 25