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APP-2019-0003 Appeal Decision Amended 110420.pdfPage 1 of 12 CITY OF SPOKANE VALLEY HEARING EXAMINER Re: Appeal of an Order of the Building Official determining that 7918 East Utah Avenue constitutes a nuisance BLAYNE DUTTON, Appellant, v. CITY OF SPOKANE VALLEY, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) SECOND AMENDED FINDINGS, CONCLUSIONS, AND DECISION FILE NO. APP-2019-0003 I. SUMMARY OF APPEAL AND DECISION Summary of Appeal: Mr. Blayne L. Dutton (“Mr. Dutton” or “Appellant”) has filed an appeal of a Notice and Order issued by the City of Spokane Valley (the “City”) determining that conditions at Mr. Dutton’s property located at 7918 East Utah Avenue, Spokane Valley, Washington, are in violation of chapter 7.05 of the Spokane Valley Municipal Code (SVMC) and constitute a nuisance. Decision: The City’s administrative code enforcement determination is upheld. The appeal is denied. II. FINDINGS OF FACT BACKGROUND INFORMATION Appellant: Blayne Dutton 7918 E. Utah Spokane Valley, WA 99212 Represented by: Douglas Phelps, Attorney at Law Phelps and Associates, P.S. 2903 North Stout Road Spokane Valley, WA 99206 Respondent: City of Spokane Valley 10210 E. Sprague Ave Spokane Valley, WA 99206 Represented by: Caitlin Prunty, Attorney for the City Aziza Foster, Rule 9 Legal Intern City of Spokane Valley 10210 E. Sprague Ave Spokane Valley, WA 99206 Page 2 of 12 Authorizing Ordinances: SVMC Appendix B; SVMC 7.05, et seq.; SVMC 17.90, et seq. Date of Decision being Appealed: August 23, 20192020 Date of Appeal: September 4, 20192020 Hearing Date: October 21, 2020 Testimony: Caitlin Prunty Attorney for the City City of Spokane Valley 10210 E. Sprague Ave Spokane Valley, WA 99206 Nicole Montano Code Enforcement City of Spokane Valley 10210 E. Sprague Ave Spokane Valley, WA 99206 Douglas Phelps Attorney at Law Phelps and Associates, P.S. 2903 N. Stout Road Spokane Valley, WA 99206 Aziza Foster Rule 9 Legal Intern City of Spokane Valley 10210 E. Sprague Ave Spokane Valley, WA 99206 Blayne Dutton 7918 E. Utah Avenue Spokane Valley, WA 99212 Exhibits: HE-1 Notice of Hearing setting hearing for March 18, 2020 (note: hearing date negotiated via email, no official notice issued) HE-2 City’s Staff Report dated March 11, 2020, including: HE-2A Declaration of Nicole Montano, including: HE-2A.1 Exhibit 1. Service Request 16058 HE-2A.2 Exhibit 2. Photographs dated July 22, 2019 HE-2A.3 Exhibit 3. Warning Notice dated July 22, 2019 HE-2A.4 Exhibit 4. Photographs dated August 23, 2019 HE-2A.5 Exhibit 5. Notice and Order dated August 23, 2019 HE-2A.6 Exhibit 6. Code Enforcement Notes HE-2A.7 Exhibit 7. Appeal Application dated September 4, 2019, including: HE-2A.7.1 Waiver of Fee on Appeal HE-2A.7.2 Part II. Reasons for Appeal HE-2A.7.3 Copy of August 23, 2019 Notice and Order HE-2A.8 Exhibit 8. Photographs dated February 28, 2020 Page 3 of 12 HE-2B Declaration of Caitlin Prunty, including HE-2B.1 Exhibit 1. Email dated September 10, 2019, from the City to Appellant’s legal counsel regarding written proof of Mr. Dutton’s indigent status. HE-2B.2 Exhibit 2. Letter dated November 20, 2020, from the City to Appellant’s legal counsel regarding formal follow up to email dated September 10, 2019, regarding Mr. Dutton’s indigent status. HE-2B.3 Exhibit 3. 2019 Social Security Benefit Amount statement for Blayne Dutton HE-2B.4 Exhibit 4. Declaration of Blayne Dutton HE-3 Email from City dated March 12, 2020 with photographs left out of the Enforcement File, including HE-3.1 Photographs dated June 28, 2016 HE-4 Letter to Parties regarding Hearing Agenda HE-5 Emails regarding Continuance due to COVID-19 HE-6 Notice of Hearing dated April 1, 2020, setting hearing for April 23, 2020 HE-7 Appellant’s Motion for Continuance dated April 10, 2020 HE-8 City’s Response to Appellant’s Motion for Continuance dated April 13, 2020 HE-9 Order Granting Continuance dated April 15, 2020, setting hearing for June 17, 2020 HE-10 Order Setting Briefing Schedule dated May 15, 2020 HE-11 Email correspondence regarding additional continuance HE-12 Order Granting Continuance dated May 18, 2020, setting hearing for August 5, 2020 HE-13 Email from Hearing Examiner’s office regarding additional continuance to accommodate an in-person hearing HE-14 City’s Objection to Hearing Examiner’s continuance dated July 9, 2020 HE-15 Appellant’s Response to City’s Objection dated July 17, 2020 HE-16 Hearing Examiner’s email indicating a decision on continuance would be made early the following week, dated July 17, 2020 HE-17 Emails regarding setting of new hearing date HE-18 Order Granting Continuance dated July 31, 2020 HE-19 City’s Witness List HE-20 Appellant’s Witness List HE-21 Appellant’s Brief re Procedural Matters HE-22 City’s Response to Appellant’s Brief re Procedural Matters HE-23 Recording of September 23, 2020, Hearing on Procedural Matters HE-24 Findings of Fact, Conclusions of Law, and Decision regarding Procedural Matters HE-25 Distribution of Hearing Examiner’s Decision regarding Procedural Matters HE-25.1 Appellant’s Receipt of Hearing Examiner’s Decision regarding Procedural Matters HE-25.2 City’s Receipt of Hearing Examiner’s Decision regarding Procedural Matters HE-26 Appellant’s Prehearing Brief HE-27 City’s Prehearing Brief HE-27.1 Supplemental Declaration of N. Montano HE-28 Prehearing Exhibit List Page 4 of 12 III. FINDINGS AND CONCLUSIONS A. Background Facts Mr. Dutton is the owner of the real property1 located at 7918 East Utah Avenue, Spokane Valley, Washington (the “Property”). The Property is Mr. Dutton’s primary residence. Testimony of B. Dutton. Mr. Dutton has lived at the property, “on and off,” since 1953. See id. Mr. Dutton moved into the Property, full-time, in approximately 2002, in order to care for his ailing mother, who owned the Property at that time. See id. Mr. Dutton became the owner of the Property in approximately 2005. See id. On July 20, 2019, the City received a complaint regarding the conditions at the Property. See Exhibit HE-2A ¶ 3 & Exhibit HE-2A.1. The complaint asserted that there were “multiple vehicles and junk” on the Property. See Exhibit HE-2A.1. On July 22, 2019, the City’s Code Enforcement Officer, Nicole Montano, conducted a site visit to the Property in order to investigate the complaint. See Exhibit HE-2A ¶ 4. Ms. Montano observed several items being stored in violation of SVMC 7.05.040(D), including building and construction materials, vehicle parts, appliances, and fencing materials, among other things. See id. Ms. Montano also observed three junk vehicles being stored on the premises in violation of SVMC 7.05.040(N). See id. Ms. Montano took several photographs to document these conditions. See Exhibit HE-2A.2. Based upon that site visit, Ms. Montano concluded that the conditions on the Property violated SVMC chapter 7.05. See Exhibit HE-2A ¶ 4. That same day, Ms. Montano issued a Warning Notice, notifying Mr. Dutton of the code violations and giving him until August 22, 2019, to bring the Property in compliance with City codes. See Exhibit HE-2A ¶ 5 & Exhibit HE-2A.3. The Warning Notice notified Mr. Dutton that the Property was in violation of SVMC 7.05.040(D), entitled “Accumulation of Materials, Garbage, Recyclables, Furniture, Machinery” and SVMC 7.05.040(N), entitled “Junk Vehicles.” See Exhibit HE-2A.3. The Warning Notice further provided that if Mr. Dutton did not bring the Property into compliance by the stated deadline, the City would issue a Notice and Order and impose a minimum civil penalty of $500. See id. On August 23, 2019, Ms. Montano conducted a second site visit to the Property in order to determine whether Mr. Dutton had taken steps to bring the Property into compliance with City codes. See Exhibit HE-2A ¶ 6. Based upon her observations, Ms. Montano determined that the Property remained in violation of SVMC 7.05.040(D) and SVMC 7.05.040(N). See id. Ms. Montano took several photographs to document the conditions at the Property during her site visit. See Exhibit HE-2A.4. That same day, Ms. Montano issued a Notice and Order related to the code violations and assessing a $500 civil penalty against Mr. Dutton. See Exhibit HE-2A ¶ 7 & Exhibit HE-2A.5. The Notice and Order listed the actions required to bring the Property into compliance with City codes. See Exhibit HE-2A.5. The Notice and Order also advised Mr. Dutton that he had the right to appeal the Notice and Order to the Hearing Examiner, provided that such appeal was filed within 14 days. See id. 1 Mr. Dutton also owns the adjacent real property, commonly known as 3034 N. Ella. Testimony of B. Dutton. The adjacent property, however, is not a subject of this appeal. Page 5 of 12 On September 4, 2019, Mr. Dutton filed a timely appeal2 of the Notice and Order. See Exhibit HE-2A ¶ 9 & Exhibit HE-2A.7. On February 28, 2020, Robin Holt, the City’s second Code Enforcement Officer, conducted a site visit to the Property in order to determine whether Mr. Dutton had taken steps to bring the Property into compliance with City codes. See Exhibit HE-2A ¶ 10. Ms. Holt took several pictures to document the conditions on the Property. See Exhibit HE-2A.8. Based upon her review of these photographs, Ms. Montano concluded that the Property remained in violation of the City’s codes. See Exhibit HE-2.A ¶ 10. On October 14, 2020, Ms. Montano conducted another site visit to determine whether the previously identified code violations had been addressed. See Exhibit HE-27.1 ¶ 3. The condition of the Property was substantially the same as was observed on August 23, 2019. See id ¶ 4. Based upon her observations, Ms. Montano concluded that the Property remained in violation of SVMC 7.05.040(D) and SVMC 7.05.040(N). See id. Ms. Montano also took photographs to document the condition of the Property at the time of this site visit. See Exhibit 1 to Exhibit HE-27.1. On October 21, 2020, the Hearing Examiner conducted a hearing on the appeal. Due to the restrictions necessary because of COVID-19, the appeal was conducted remotely using an online conferencing tool. The parties were permitted to make arguments, present evidence, and call and cross-examine witnesses. The proceedings were recorded and include both audio and video of the hearing. B. Discussion of Facts and Law The Appellant claims that the Code Enforcement Official’s decision was erroneous for a range of reasons. The arguments raised in this appeal generally fall into one of the following categories: (1) nuisance conditions; (2) subject matter jurisdiction; (3) constitutional claims; and (4) arbitrary and capricious acts. The Hearing Examiner will discuss the Appellant’s contentions with respect to each of these categories. 1. Appellant has allowed nuisance conditions to persist on the Property in violation of SVMC 7.05.040(D) & (N). Therefore, the City of Spokane Valley did not err in issuing the Notice and Order. The City issued a Notice and Order requiring the Appellant to bring his property into compliance with the City’s nuisance code. The Appellant challenged the Notice and Order, arguing that the City’s allegations were “untrue and inaccurate.” See Exhibit HE-2A.7.2. The Appellant generally denied all of the City’s contentions. See HE-26, p. 4. The Appellant claimed there were no violations of SVMC 7.05.040 on his Property. See Exhibit HE-2A.7.2. The Appellant also contended that he used the Property in “harmony” with the neighborhood. See id, p. 2. Despite the Appellant’s arguments, the City clearly established that the Appellant has allowed nuisance conditions to persist on his Property. The municipal code declares that the 2 The City did not receive complete documentation in support of Mr. Dutton’s request for a waiver of the appeal fee until November 26, 2019. See Exhibit HE-2B ¶¶ 6-7. The City considered the appeal application complete as of that date. See id ¶ 8. The City did not assert that the appeal was untimely or defective because of this delay. Page 6 of 12 accumulation of materials (e.g. construction materials, appliances, or inoperable equipment not in an enclosure, etc.) on a person’s property constitutes a public nuisance. See SVMC 7.05.040(D). The City’s Code Enforcement Officer confirmed, in sworn statements and testimony, that there was a large and exposed collection of construction materials, vehicle parts, appliances, equipment, and other things accumulated on the Property. See Exhibit HE-2A ¶ 4; Testimony of N. Montano. The photographs taken by Code Enforcement show construction waste (wood, metal, wire, etc.), rusted or old appliances, vehicle tires and hubs, fencing materials, and other things piled up in the yard of the residence. See Exhibits HE-2A.2, HE-2A.4, & HE-2A.8; see also Exhibit 1 to Exhibit HE-27.1. The Appellant did not contest the foregoing facts. On the contrary, the Appellant stated that the conditions present on the Property have been that way for years, well prior to the date the City of Spokane Valley incorporated. Testimony of B. Dutton. The Appellant suggested that there was no actual nuisance because these conditions persisted for many years without apparent consequence. Argument of D. Phelps. This claim also implied that a Code Enforcement action was not proper given that the conditions had persisted for so long. See id. The Hearing Examiner rejects this reasoning. The Appellant’s argument essentially concedes that a “public nuisance,” as defined by the code, exists on his Property. The fact that these conditions have existed for many years does not mean there is no public harm from the activity. Further, the Appellant did not cite any authority for the proposition that an owner can have “grandfathered” rights to maintain a nuisance. The Hearing Examiner’s own research did not reveal any such authority. Finally, the City has broad police powers to regulate and abate nuisances. Defining what constitutes a “nuisance” is a matter for the policy-makers. It is irrelevant that such conditions may have been tolerated or even allowed prior to the City’s incorporation. In short, the City’s authority to regulate ongoing nuisances is not truncated by the mere lapse of time. The Appellant’s only factual contention was that the stuff on his Property was not “garbage.” The Appellant contended that “garbage” means rotting, organic material. Argument of D. Phelps. The Appellant also noted that there was no “infestation” of pests on the Property attracted by such rotting material. See id. Based upon this reasoning, the Appellant concluded that there were no nuisance conditions on the Property. See id. The Hearing Examiner disagrees with this analysis. The Appellant is correct that this record does not establish the presence of rotting, organic materials or pest infestations. However, the code does not use the term “garbage” in the limiting sense used by the Appellant. The code section referencing “garbage” declares that “[a]ny accumulation of broken or neglected items, litter, salvage materials, or junk not in an approved enclosed structure,” constitutes a public nuisance. See SVMC 7.05.040(D)(2). Thus, the code uses the term “garbage” to refer to discarded items in a broader sense, not solely to rotting, organic matter. See id. To that extent, the large accumulation of materials on the Property, as shown in the photographs taken by Code Enforcement, qualifies as “garbage” within the meaning of SVMC 7.05.040(D)(2). The municipal code also provides that the placement of junk vehicles on a person’s property, outside a proper enclosure, constitutes a public nuisance. See SVMC 7.05.040(N). “Junk vehicles” are defined as vehicles that meet at least three of four criteria: (1) the vehicle is three years or older; (2) the vehicle has extensive damaged (including broken windows or windshield or missing wheels, tires, motor, or transmission); (3) the vehicle is apparently Page 7 of 12 inoperable; and (4) the fair market value of the vehicle is equal only to its approximate scrap value. See SVMC 7.05.020 (“Junk vehicle”). Code Enforcement observed three junk vehicles stored on the Property in violation of this provision. See Exhibit HE-2A ¶ 4. Those vehicles included “a rusted Cadillac, a white and yellow El Camino-style car, and a greyish/blue station wagon.” See id. The photographs document that these three vehicles are on the Property, outside an enclosure, are older vehicles (easily more than three years in age), and are apparently damaged or inoperable. See Exhibits HE-2A.2, HE-2A.4, & HE-2A.8; see also Exhibit 1 to Exhibit HE-27.1. Thus, these vehicles qualify as “junk vehicles” within the meaning of the municipal code, as the Code Enforcement Officer surmised. The Appellant did not present any evidence that the subject vehicles were less than three years old, were operable or were not extensively damaged, or that the vehicles otherwise did not fit the definition of “junk vehicles.” The only evidence in the record supports the opposite conclusion. The Appellant’s only argument was that he did not own a Cadillac, and thus Code Enforcement had erred in identifying the make of one of the vehicles. Testimony of B. Dutton. However, this correction to the record does not establish that the vehicle is not a “junk vehicle.” In addition, even if the misidentified vehicle is disregarded, the Appellant nonetheless allowed a public nuisance by storing the other two junk vehicles on his Property outside a proper enclosure. The Hearing Examiner finds that Mr. Dutton has allowed conditions on his Property that constitute a public nuisance within the meaning of SVMC 7.05.040(D) & (N). Code Enforcement did not err in issuing the Notice and Order based on those violations of the municipal code. 2. The Hearing Examiner has jurisdiction over the subject matter of this administrative appeal. The Appellant argues that the Hearing Examiner lacks subject matter jurisdiction because only the superior court has jurisdiction to prevent or abate a nuisance. The Appellant cites to Article IV § 6 of the Washington State constitution and Revised Code of Washington (RCW) 7.48 in support of this contention. The Hearing Examiner disagrees with the Appellant’s argument, for the reasons that follow. 2.1 The superior court’s original jurisdiction over nuisance actions does not deprive the Hearing Examiner of jurisdiction to hear an administrative appeal. The Appellant notes that the Washington State constitution confers “original jurisdiction” upon the superior court over “actions to prevent or abate a nuisance.” See Const. art. 4 § 6. Based upon this provision, the Appellant asserts that the Hearing Examiner has no jurisdiction to conduct an administrative hearing concerning a “public nuisance,” as that power is reserved to the courts. See Exhibit HE-26, pp. 2-3. The Hearing Examiner disagrees. The superior court’s original jurisdiction concerns “actions” and “cases at law.” An “action” or a “case at law” in this context means litigation in the court system. The constitutional provision does not address the resolution of controversies in administrative proceedings. There is no language in Article IV § 6 that clearly operates to preclude quasi-judicial proceedings, in particular with respect to matters that are traditionally within the police power of a municipality to regulate. Any questions about the foregoing were settled by the Washington Supreme Court’s Page 8 of 12 decision in City of Everett v. Unsworth, 54 Wn.2d 760, 762, 344 P.2d 728 (1959). In that case, the Court concluded: It is well settled that the enactment of reasonable ordinances of this kind are well within the police power of a municipality. … The appellant may be correct in his contention that an action to abate a nuisance must be brought in the superior court; however, the provisions in question do not purport to authorize the bringing in the justice court of actions to abate conditions which are fire hazards, and therefore nuisances, but merely set up an administrative procedure under which the existence of dangerous conditions can be ascertained and remedied. … There can be no doubt that the city, in the exercise of its police power, may declare a nuisance, may abate the same without resort to the courts, and may impose fines upon parties who create, continue or suffer nuisances to exist. RCW 35.22.280(31); Davison v. City of Walla Walla, 52 Wash. 453, 100 P. 981, 21 L.R.A., N.S., 454. See Unsworth, 54 Wn.2d at 763-64 (emphasis added). The local legislature conferred the Hearing Examiner with jurisdiction to hear and decide appeals of code enforcement decisions. See SVMC 18.20.030(B)(5)(f). As the Washington Supreme Court concluded, Article IV § 6 of the state constitution does not operate to deprive the Hearing Examiner of that authority. 2.2 RCW 7.48 does not prohibit an administrative process to enforce the City’s ordinances. The Appellant claims that superior court is the exclusive forum for the abatement of a nuisance. See Exhibit HE-26, p. 2. Specifically, the Appellant sites to RCW 7.48.280 for the proposition that the nuisance statute “…does not allow for an administrative action.” See id. The Hearing Examiner rejects this assertion. By the Hearing Examiner’s review, RCW 7.48.280 contains no language that expressly precludes an administrative appeal of a code enforcement decision. See RCW 7.48.280. Instead, the statute describes one method that is available to collect the costs of nuisance abatement. See id. The statute does not establish an exclusive means of remediating all conditions that may qualify as a nuisance. Nor does the statute proscribe municipal authority generally or to limit administrative options specifically. If there are any such intentions, it is certainly not apparent from the bare text of the statute. The Appellant does not explain how the text supports his conclusion. The Appellant also fails to draw attention to any case law or other authority to support its expansive interpretation of the statute. The relevant authorities uniformly support the conclusion that a city has broad authority to enforce its codes and regulations. Under the state constitution, the City of Spokane Valley has expansive authority to enact laws and enforce laws designed to protect the public welfare. See Const. art. 11, § 11. As the courts have confirmed, the power to regulate and abate a nuisance is well within the police power of a city. See City of Everett v. Unsworth, 54 Wn.2d 760, 763, 344 P.2d 728 (1959) (holding that a city can abate nuisances and impose fines, without resorting to the courts, as an exercise of its police power). Page 9 of 12 In addition, the state legislature has granted the City of Spokane Valley explicit authority to regulate and abate nuisances. As a code city, the City of Spokane Valley has all the authority granted to the cities of any class. See RCW 35A.21.160. Accordingly, the City of Spokane Valley has the power “to provide for the prevention and abatement of nuisances,” as well as to “declare what shall be a nuisance, and to abate the same, and to impose fines upon parties who may create, continue, or suffer nuisances to exist…” See RCW 35.22.280(29-30). The City has exercised the authority granted to it by the constitution and the legislature. See SVMC 17.100.010 et seq. To the Hearing Examiner’s knowledge, there is nothing in RCW 7.48 that operates to undermine that authority. The Hearing Examiner concludes that the state nuisance statute does not preclude the City from following its established administrative process to address the conditions existing at the Dutton Property. Therefore, the Hearing Examiner rejects the Appellants contention RCW 7.48 deprives the Hearing Examiner of subject matter jurisdiction over this appeal. 3. The City’s order requiring the Appellant to comply with its ordinances and imposing a $500 civil penalty was not “arbitrary and capricious.” The Appellant argued that the City codes were being enforced in an “arbitrary and capricious” manner in two respects. First, the Appellant claimed that RCW 7.05 set forth “an arbitrary and capricious standard lacking in any objective standard.” See Exhibit HE-26, p. 3. Second, the Appellant argued that the civil penalty assessed in the Notice and Order was “arbitrary and capricious” given the allegations in the Notice and Order. See Exhibit HE-2A.7.2. The Hearing Examiner rejects both of these claims. The Appellant did not sufficiently explain or brief his argument. The Appellant did not identify the “arbitrary and capricious standard” in SVMC 7.05, or identify any particular provision that failed to constitute an “objective standard.” The Appellant did not explain how the provisions of SVMC 7.05 were applied to him in a manner that was “arbitrary or capricious.” Nor did he cite to any case law or other authority in support of his claim. The Appellant also failed to describe how the “arbitrary and capricious” standard related to any legal theory he wished to advance. As the City pointed out, an “arbitrary and capricious” act is a “willful and unreasoning action,” taken without consideration of and in disregard of the facts and circumstances. See Exhibit HE-2, p. 8. The Notice and Order was based upon substantial evidence that nuisance conditions existed on the Property, as the findings of fact demonstrate. The Appellant may disagree with the Code Enforcement Officer’s assessment, but her actions were not “willful and unreasoning” or taken “without consideration” or “in disregard” of the facts and circumstances. She conducted an investigation, gathered the appropriate information, considered the code requirements, and then made a decision in light of the facts and circumstances. Based upon this record, there was nothing “arbitrary and capricious” about this process. The Appellant also asserts that the civil penalty imposed by the City was “arbitrary and capricious.” This claim suffers from the same shortcomings as the Appellant’s argument regarding SVMC 7.05. The Appellant did not cite any authority for his challenge to the civil penalty, and he did not explain how the $500 fine was improper. The Appellant simply declared that the fee was “arbitrary and capricious,” without any specific explanation or discussion of the ordinance provisions or the applicable law. This is insufficient to sustain an appeal. Page 10 of 12 Irrespective of the foregoing, the civil penalty was imposed in accordance with City ordinances. The municipal code explicitly authorizes the City to impose civil penalties for violations of its codes: The City is authorized to impose civil penalties upon a determination by the City that a violation has occurred pursuant to a notice and order. See SVMC 17.100.140(B). In addition, SVMC 17.100.250 provides that civil penalties for such code violations “shall be imposed for remedial purposes for violations identified in a notice and order” in accordance with the adopted assessment schedule. See SVMC 17.100.250(A) (emphasis added). The fine for the first violation is set at $500. See id. As the City emphasized, the fine is uniformly applied to all property owners who violate the municipal code. See Exhibit HE-2, p. 8. The fine is not discretionary and the amount was not determined by the Code Enforcement Officer. See id. The civil penalty imposed in this case arose from public policy, duly adopted by the City Council, and was imposed in a manner consistent with the standard practice. It is difficult to see, under such circumstances, how the fine can be criticized as “arbitrary” or “capricious.” The Hearing Examiner concludes that the allegation that the City acted in an “arbitrary and capricious” manner was not adequately raised or briefed, and thus cannot be the proper grounds for his appeal. However, even if the claim is considered, the Hearing Examiner concludes that, on this record, the City gave due consideration to the law as well as the facts and circumstances when making its code enforcement determination. As a result, the City did not act in an “arbitrary and capricious” manner. 4. The Hearing Examiner does not have jurisdiction to rule on constitutional claims. Therefore, the Hearing Examiner must deny the Appellant’s takings and due process challenges. The Appellant asserted the following constitutional challenges in his appeal: 1) The administrative process violates due process protections under the state and federal constitutions. See Exhibit HE-2A.7.2. a. The code enforcement process improperly shifts the burden of proof from the government to the Appellant. See Exhibit HE-26, p. 1. b. Because the only hearing is “appellate” in nature, the Appellant was deprived of the opportunity to be heard in a meaningful manner at a meaningful time. See Exhibit HE-26, p. 3. 2) The enforcement proceedings resulted in an unconstitutional taking of property under the federal constitution. See Exhibit HE-2A.7.2. In short, the Appellant contended that the administrative process violated his due process rights and resulted in an unconstitutional taking of property rights. These kinds of claims, however, are clearly outside the Hearing Examiner’s jurisdiction and, therefore, cannot be considered. Page 11 of 12 As a matter of law, the Hearing Examiner does not have jurisdiction to rule on constitutional challenges to the City’s code enforcement procedures. The controlling law provides that a Hearing Examiner does not have the power to enforce, interpret, or rule on constitutional challenges. See Exendine v. City of Sammamish, 127 Wn.App. 574, 577, 113 P.3d 494 (2005) (holding that the Hearing Examiner lacked jurisdiction, in a code enforcement case, to consider the constitutionality of previously issued search warrants). Therefore, the Hearing Examiner does not have the power to rule on the Appellant’s due process or takings claims. The Hearing Examiner also lacks the power to waive regulatory requirements, change duly adopted procedures, or disregard legislative enactments. See e.g. Chausee v. Snohomish County Council, 38 Wn.App. 630, 638, 689 P.2d 1084 (1984) (holding that a Hearing Examiner had no jurisdiction to exempt a landowner from the adopted road standards). The City followed its adopted code enforcement procedures in this case. The Appellant did not claim otherwise, arguing instead that those procedures were constitutionally infirm. However, the Hearing Examiner can neither strike an ordinance down nor modify its terms in order to fashion a remedy. The Hearing Examiner can only interpret and apply rules and regulations as they are written. The scope of the Hearing Examiner’s review on appeal is limited accordingly. Finally, the Hearing Examiner emphasizes, with respect to the takings claim, that he does not have jurisdiction to award damages. The Hearing Examiner’s jurisdiction is limited to the powers delegated to him. See HJS Development, Inc. v. Pierce County, 148 Wn.2d 451, 61 P.3d 1141 (2003). Those powers do not include the discretion to award compensatory damages. See SVMC 18.20.010 et seq. However, just compensation is the remedy for a taking of property. That relief, if it is available to the Appellant at all, can only be provided by the courts. The remedy is not available in this forum. IV. DECISION Based upon the findings and conclusions above, the Hearing Examiner concludes that Code Enforcement’s decision was correct and therefore should be sustained. The appeal is denied. DATED this 2nd day of November, 2020. Brian T. McGinn City of Spokane Valley Hearing Examiner c/o City of Spokane Office of the Hearing Examiner 808 W. Spokane Falls Blvd. Spokane WA 99201 509-625-6010 hearingexaminer@spokanecity.org Page 12 of 12 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 Hearing Examiner’s decision, a party with standing files a land use petition in Superior Court pursuant to RCW Chapter 36.70C. On November 2, 2020, a copy of this decision will be mailed by regular mail to the Applicant and to all government agencies and persons entitled to notice under SVMC 17.80.130(4). 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 November 5, 2020. THE APPEAL CLOSING DATE FOR THE PRELIMINARY PLAT DECISION IS NOVEMBER 27, 2020. The complete record in this matter is on file during and after the appeal period with 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. Pursuant to RCW 36.70B.130, affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation.