APP-2020-0001 Decision Final.pdfPage 1 of 16
CITY OF SPOKANE VALLEY HEARING EXAMINER
Re: In the Matter of the Appeal of Code Enforcement Orders Imposing Civil Penalties MICHAEL SCHMEDDING d/b/a BUDGET ARBOR & LOGGING, LLC, Appellant, v.
CITY OF SPOKANE VALLEY,
Respondent.
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FINDINGS, CONCLUSIONS,
AND DECISION
FILE NO. APP-2020-0001
SUMMARY OF APPEAL AND DECISION Summary of Appeal: Michael Schmedding d/b/a Budget Arbor & Logging, LLC (“Appellant”), appealed three Code Enforcement Orders Imposing Civil Penalties (“Orders”) by the City of Spokane Valley (“City”). In its determination, the City concluded
that on three separate occasions (February 3, 2020; March 10, 2020; and March 13, 2020) the Appellant was conducting work in the City right-of-way without a permit in violation of Spokane Valley Municipal Code (SVMC) 22.130.100. For the reasons discussed below,
only the last two Orders (March 10, 2020 and March 13, 2020) are a subject of this appeal. Decision: The appeal is denied.
FINDINGS OF FACT BACKGROUND INFORMATION Appellant: Michael Schmedding Budget Arbor & Logging LLC PO Box 30594 Spokane WA 99223 Represented by: Robb Grangroth Phillabaum, Ledlin, Matthews & Sheldon, PLLC 1235 N. Post, Suite 100 Spokane, WA 99201
Respondent: City of Spokane Valley 10210 East Sprague Avenue
Spokane Valley, WA 99206
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Represented by: Erik Lamb, Deputy City Attorney Caitlin Prunty, Attorney
City of Spokane Valley 10210 East Sprague Avenue Spokane Valley, WA 99206 Date of Decisions being Appealed: March 10, 2020 and March 13, 2020
Date of Appeals: March 20, 2020 Hearing Date: August 26, 2020 Testimony:
Respondent Appellant
Caitlin Prunty, Attorney Erik Lamb, Deputy City Attorney Shane Arlt, Street Maintenance Superintendant
Nicole Montano, Code Enforcement Officer Robin Holt, Code Enforcement Officer Greg Baldwin, Development Services Coordinator Candice Powers-Henderson, Administrative Assistant – CIP Scott Wallace, Right of Way Inspector
Robb Grangroth Michael Schmedding
Exhibits:
1. APP-2020-0001 Appeal Application dated February 7, 2020 2. APP-2020-0002 Appeal Application dated March 20, 2020 3. APP-2020-0003 Appeal Application dated March 20, 2020 4. Prehearing Order of Consolidation dated April 15, 2020 5. Notice of Appearance by Robb E. Grangroth dated April 22, 2020 6. Appellant’s Request for Continuance dated April 22, 2020
7. City’s Response to Appellant’s Request for Continuance and Motion Requesting Briefing Schedule dated April 23, 2020 8. Order Granting Continuance dated April 23, 2020
9. Order Setting Briefing Schedule dated April 24, 2020 10. Agreed Motion to Continue Hearing Date dated June 10, 2020 11. Order Granting Continuance dated June 11, 2020 12. Appellant’s Motion to Stay dated August 6, 2020 13. City’s Response to Appellant’s Motion to Stay dated August 7, 2020 14. Order Denying Appellant’s Motion to Stay (e-signed) dated August 10, 2020 15. Hearing Examiner’s Email regarding Order Denying Motion to Stay dated August 10, 2020 16. Order Denying Appellant’s Motion to Stay with signature dated August 10, 2020 17. Appellant’s Pre-Hearing Brief dated August 14, 2020 18. City’s Pre-Hearing Brief dated August 19, 2020, including the following declarations: A. Signed Declaration of C. Driskell dated August 18, 2020 B. Signed Declaration of S. Wallace dated August 19, 2020 C. Signed Declaration of N. Montano dated August 19, 2020
D. Signed Declaration of G Baldwin dated August 19, 2020
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E. Signed Declaration of C. Powers-Henderson dated August 19, 2020 F. Signed Declaration of R. Holt dated August 19, 2020
G. Signed Declaration of G. Stauffer dated August 19, 2020 H. Signed Declaration of T. Schroeder dated August 19, 2020 I. Signed Declaration of S. Arlt dated August 19, 2020 19. Appellant’s Hearing Exhibits submitted August 25, 2020 FINDINGS AND CONCLUSIONS A. Background Facts
1. On March 7, 2020, the Appellant engaged in a project trimming trees on City property near the intersection of Herald Road and Sprague Avenue. See Exhibit 18E
(Dec. of C. Powers-Henderson ¶ 3). The work extended into Sprague Avenue, as we confirmed by photographs taken at that time. See id. (Dec. of C. Powers-Henderson ¶ 3, Exs. 1-2). The Appellant did not have a right-of-way permit to conduct work in or partially
obstruct that arterial. See Exhibit 18F (Dec. of R. Holt ¶ 3). In addition, the Appellant did not have permission to trim any trees on City property. See Exhibit 18I (Dec. of S. Arlt ¶ 4).
2. On March 10, 2020, Code Enforcement issued a Notice and Order concerning the project at Herald and Sprague, imposing a civil penalty of $10,000 against the Appellant for creating a public nuisance and failing to obtain a permit for conducting work within the public right-of-way. See Exhibit 18F (Dec. of R. Holt ¶ 5, Ex. 3).
3. On March 13, 2020, the Appellant engaged in a project trimming trees at property located at 702 N. Herald Road, near the intersection of Herald Road and Broadway Avenue. See Exhibit 18G (Dec. of G. Stauffer ¶ 3, Ex. 1). The work extended into Herald Road, as was confirmed by photographs taken at that time. See id.; see also 18F (Dec. of R. Holt, Ex. 4). The Appellant was working in the right-of-way without a traffic control plan. See Exhibit 18F (Dec. of R. Holt ¶ 7). The Appellant did not have a
right-of-way permit to conduct work in or partially obstruct that arterial. See Exhibit 18G (Dec. of G. Stauffer ¶¶ 3-4).
4. On March 13, 2020, Code Enforcement issued a Notice and Order
concerning the project at 702 N. Herald Road, imposing a civil penalty of $10,000 against the Appellant for creating a public nuisance and failing to obtain a permit for conducting work within the public right-of-way. See Exhibit 18F (Dec. of R. Holt ¶ 8, Ex.
5).
5. On March 20, 2020, the Appellant submitted an Appeal Application to the City of Spokane Valley, challenging the Notice of Order issued on March 10, 2020, relating to the Sprague Avenue project trimming City trees. See Exhibit 2.
6. On March 20, 2020, the Appellant submitted another Appeal Application to the City of Spokane Valley, challenging the Notice of Order issued on March 13, 2020, relating to the project undertaken at 702 N. Herald Road. See Exhibit 3.
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7. On April 15, 2020, the Hearing Examiner issued an order consolidating all three appeals into one single proceeding designated as APP-2020-0001. See Exhibit 4.
8. On August 26, 2020, the Hearing Examiner conducted the hearing on the appeal.
B. Scope of Appeal
As set forth above, Code Enforcement issued three Notice and Orders imposing penalties against the Appellant. The first Notice and Order was issue on February 3, 2020. See Exhibit 18C (Dec. of N. Montano, Ex. 2). The next two Notice and Orders were issued on March 10 and March 13, respectively. See Exhibit 18F (Dec. of R. Holt, Exs. 3 & 5). The Appellant appealed all three of the Notice and Orders to the Hearing Examiner. See Exhibits 1-3. On or about July 24, 2020, Code Enforcement dismissed the first Notice and
Order, issued on February 3, 2020, because the Appellant had obtained a right-of-way permit in compliance with the order. See Exhibit 18C (Dec. of N. Montano ¶ 11). Based upon the Appellant’s corrective action, Code Enforcement waived the civil penalty and
closed the case. See id. (Dec. of N. Montano ¶ 12). There is no case or controversy to be resolved by the Hearing Examiner
regarding the Notice and Order dated February 3, 2020. That Notice and Order has been dismissed by the City and the penalty has been waived. Therefore, the February 3, 2020, Notice and Order is not a subject of this appeal. The Hearing Examiner concludes that this appeal only concerns the Notice and Orders issued by Code Enforcement on March 10 and March 13, 2020.
C. Issues on Appeal
The Appellant presents four issues in this appeal:
Issue 1 – The City violated the Appellant’s constitutional rights to due process or equal protection by (1) failing to provide a hearing prior to concluding that the
Appellant had committed code violations or imposing civil penalties; (2) improperly placing the burden of proof on appeal upon Budget Arbor, the appealing party; and (3) charging a $500 appeal fee.
Issue 2 – The City’s decision to impose civil penalties in the amount of $10,000 (x3) violates the Excessive Fines Clause of the U.S. Constitution because the
amount of the fine is grossly disproportionate to gravity of the offense that the fine is designed to punish.
Issue 3 – The City has not granted the Hearing Examiner the authority to conduct a hearing to determine, in the first instance, whether the Appellant had committed code violations or was subject to civil penalties. The Hearing Examiner’s authority is limited to code enforcement appeals. Issue 4 – The Appellant was exempt from the requirement to obtain right-of-way permits because the work it performed constituted normal repair or maintenance of landscaping within the meaning of SVMC 22.130.040.
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See Exhibit 17. The Appellant also made other arguments in its original appeal
applications. See Exhibits 2-3. The Hearing Examiner concludes that those arguments are tangential to the relevant facts, were not seriously pursued by the Appellant at the hearing or in its briefing, and were not material or relevant to the outcome of this case in any event. The Hearing Examiner, therefore, confines his consideration of the appeal to Issues 1-4, set forth above.
D. The Hearing Examiner denies the challenges set forth in Issues 1, 2, and 3 because
the Hearing Examiner lacks authority to rule on those matters or fashion a remedy.
1. The Hearing Examiner does not have authority to disregard, modify, or invalidate ordinances or policies duly adopted by the City Council.
A hearing examiner only has the authority granted to it by statute or ordinance. See HJS
Development, Inc. v. Pierce County, 148 Wn.2d 451, 471, 61 P.3d 1141 (2003). In the City of Spokane Valley, the powers and duties of the hearing examiner are found in
Chapter 18.20 of the SVMC. That chapter authorizes the hearing examiner to conduct public hearings and render decisions on a discrete list of matters. See SVMC 18.20.030(B)(4)-(5).
The Hearing Examiner is the assigned decision-maker for certain applications, such as variances and conditional use permits. See e.g. SVMC 18.20.030(B)(5)(a) & (b). In other instances, the Hearing Examiner’s acts in an appellate capacity. That is the situation with respect to code enforcement. Specifically, the Hearing Examiner is authorized to hear “[a]ppeals from any administrative decision of the department of community development or the building official in the administration or enforcement of the Spokane Valley Uniform Development Code or other land use code or regulation.” See SVMC 18.20.030(5)(f). For matters within his purview, the Hearing Examiner can determine whether the
requirements or procedures set forth in the municipal code were followed, for example. The Hearing Examiner can also interpret an ordinance as written, in order to decide how it applies to a given set of circumstances. What the Hearing Examiner cannot do is 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 Appellant contends that the City was required to conduct a hearing prior to issuing any notice or order enforcing its codes. See Paragraph C (Issue 1). However, the municipal code contains no such requirement. The Hearing Examiner cannot create a new code enforcement procedure or require City officials to follow a different process than the one set forth in the municipal code. Changes to the adopted procedures would have to be made legislatively, by the City Council. Moreover, the Hearing Examiner’s authority is limited to appeals. The discretion to make code enforcement decisions, in the first instance, has been reserved to City officials. See SVMC 17.100.010 et seq.
Chapter 17.100 SVMC sets forth the enforcement procedures for violations of Chapter 7.05 SVMC (Nuisances) as well as Titles 17 through 24 of the municipal code. See SVMC 17.100.010. Pursuant to that ordinance, the City has express authority to
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determine whether code violations have occurred or are occurring. See SVMC 17.100.030(A). The City’s determination may be based upon information derived from a
variety of sources, including but not limited to field observations, relevant documents, statements of witnesses, and information in the City’s data collection systems. See SVMC 17.100.050(A). There is no requirement to conduct an administrative hearing at that stage. In this case, the City followed the adopted procedures when it made its code enforcement decisions, as the record confirms. The Appellant questioned the propriety of both the appeal fee and the civil penalties imposed in this case. See Paragraph C (Issues 1 & 2). However, the City only charged amounts that were sanctioned by its code. For example, 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). The assessment schedule states a penalty amount of $10,000 for a “[v]iolation which is likely to result in an economic benefit to the person responsible for the violation.” See id. The penalties imposed by the City were based upon this provision.
See Exhibit 18F (Dec. of R. Holt, Exs. 3 & 5). The appeal fee charged by the City is likewise explicitly authorized by ordinance. See SVMC 17.90.040(A)(5) (stating that the appealing party is required to pay an appeal fee). The fees charged for an appeal are set forth in the City’s 2020 Master Fee Schedule. See SVMC 110.010; see also Resolution No. 19-0191. According to that schedule, the fee for appealing an administrative decision of the Code Enforcement Department is $500. See id. The City followed its adopted procedures in issuing the Notice and Orders to the Appellant. The record clearly established, both by sworn statements (testimony and
written) and photographs, that the Appellant conducted work within the City right-of-way, without obtaining right-of-way permits, and obstructed or partially obstructed arterial roads. Mr. Schmedding’s testimony disputed whether vehicles could pass, and the
degree of the obstruction, but did not directly refute the material facts giving rise to the code enforcement action. Instead, the Appellant contended that the City’s procedures were constitutionally infirm (Issues 1-3) or did not apply to the Appellant in the first place
(Issue 4). These legal arguments will be considered below. 2. The Hearing Examiner does not have jurisdiction to rule on the constitutional
validity of legislative enactments.
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,
1 https://www.spokanevalley.org/filestorage/6836/6902/7160/Resolution_19-019_Fee_Resolution_2020.pdf.
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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).
The Appellant claimed that the City code enforcement decisions violated its constitutional rights to due process or equal protection. The Appellant asserted that due process required the City to hold a hearing prior to making its code enforcement decisions. See Paragraph C (Issues 1 & 3) 2. The Appellant argued that shifting the burden of proof to the Appellant also violated due process. See Paragraph C (Issue 1). The Appellant claimed that the charging a $500 appeal fee was an “obstruction and prohibitive under due process and equal protection rights.” See Exhibit 17, p. 2; see also Paragraph C (Issue 1). Finally, the Appellant asserted that the civil penalties imposed by the City violated the Excessive Fines Clause of the U.S. Constitution. See Paragraph C (Issue 2).
As previously discussed, there are specific provisions in the municipal code that authorize the city to abate nuisances, issue orders, impose civil penalties, and take other
actions. The Appellant did not directly address the myriad provisions in the municipal code that explicitly support the City’s actions in this case. Rather, the Appellant challenged the validity of those enactments on constitutional grounds. However, the
Hearing Examiner must consider and apply the code enforcement provisions as they are written. The Hearing Examiner does not have jurisdiction to invalidate ordinances due to alleged constitutional violations. Only the courts have that authority. As a result, the Hearing Examiner must deny the claims set forth in Issues 1, 2, and 3. In its briefing regarding Issue 4, the Appellant included a discrete constitutional challenge to the provisions of SVMC 22.130.100. Specifically, the Appellant claimed that the phrase “or otherwise engages in activity within existing City right-of-ways” is constitutionally void for vagueness. See Exhibit 17, p. 4. For the reasons stated above, the Hearing Examiner declines to consider this constitutional challenge.
E. The City has authority, pursuant to the municipal code and its police powers, to issue
administrative orders and enforce its codes.
In its briefing concerning Issue 1, the Appellant challenged the City’s authority to enforce
its codes. Specifically, the Appellant asserted: The CITY cannot “order” anyone to do anything, “orders” come from
judges. See Exhibit 17, p. 2. The Hearing Examiner disagrees. From the outset, the Hearing Examiner finds the Appellant’s argument lacking in two respects. First, the Appellant cites to no authority for its theory that the City lacks authority to issue administrative orders. Second, the Appellant’s argument appears to
2 Appellant’s Issue 3 merely states that the Hearing Examiner lacks jurisdiction to conduct a hearing as
part of the initial, code enforcement decision. This is an accurate statement of the law. However, the
Appellant did not explain how this legal conclusion entitles the Appellant to a remedy separate and apart
from the other issues being raised. The Hearing Examiner concludes that Issue 3 is merely an extension of Issue 1, i.e. it is inextricably connected to Appellant’s claim that due process required a hearing to support
the code enforcement decision. In short, Issue 1 and Issue 3 constitute a single issue on appeal.
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confound administrative orders with court orders. Those preliminary observations aside, the Appellant’s claim is incorrect on the substance. The City has well established and
broad authority to enforce its codes. Pursuant to the state constitution, the City of Spokane Valley has broad authority to enact laws and enforce laws designed to protect the public welfare. The Washington State constitution provides: “Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.” Const. art. 11, § 11. This power is very broad and certainly includes the authority to regulate the use public roads, a subject traditionally in the hands of local government. 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. Thus, 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).
Pursuant to the authority granted by the constitution and state law, the City of Spokane Valley enacted ordinances that spell out its code enforcement procedures. See SVMC 17.100.010 et seq. The city code confers City officials with express authority to issue orders and assess penalties for code violations. See SVMC 17.100.030(A)(2) (authorizing the issuance of notice and orders and the assessment of civil penalties);
see also SVMC 17.100.050(D) (stating that notice and orders may be issued when violations have been found); see also SVMC 17.100.130 (stating that “…the City is authorized to issue a notice and order to any person responsible for a code violation.”);
see also SVMC 17.100.140(B) (“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.”). It is well settled that ordinances of this kind are 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). The City of Spokane Valley’s authority to issue administrative orders in order to enforce
its code is fully supported by the state constitution, state statute, and local legislation. Therefore, the Hearing Examiner rejects the Appellant’s claim that the City has no power to issues orders.
F. The City did not improperly shift the burden of proof to the Appellant.
The Appellant contended that City improperly shifted the burden of proof on appeal to the Appellant. See Exhibit 17, pp. 1-2. The Appellant pointed to other types of cases, such as civil infractions and forfeiture proceedings, as evidence that the burden of proof properly resides with the government, not an appealing party. See id., p. 2. The City disagreed, arguing that the Appellant has the burden to establish that the City committed an error of law or fact in making its decision. See Exhibit 18. In addition, even if the burden is on the government, the record is sufficient to meet that burden, according to the City. See id.
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The Hearing Examiner generally agrees with the City. The city code provides that City officials have the discretion to make code enforcement decisions, and may utilize
information from various sources to inform that decision. Once a decision is made, the onus is on the person who is the subject of a code enforcement action to demonstrate that the decision was based on an error of fact or an error of law, per SVMC 17.90.040(A)(3). This implies, as the City argues, that the burden of proof in these cases is on the appealing party. This is common in the civil, administrative setting, as the Hearing Examiner rules acknowledge. See SVMC Appendix B § (E)(1)(c) (stating that the burden of proof is “typically the applicant on an initial application or the appellant in the case of an appeal.”). The city code could certainly stand to address the burden of proof more explicitly, rather than leaving the issue open to interpretation or inference. Nonetheless, the Hearing Examiner concludes, considering the language and purpose of the code enforcement provisions as a whole, that the burden of proof properly lies with
the Appellant in this case. It is true that, in other contexts, the burden of proof lies with the government, as the
Appellant argues. However, the fact that the government has the burden in certain civil forfeiture or infraction cases, to give two examples, does not mean that the same must be true in this case. The Appellant’s argument, in essence, is that the burden of proof
should lie with the City. Whether it should or should not is a policy question. The burden of proof is set by the rules or standards in place for each type of proceeding. There is no universal rule mandating that the burden of proof must always lie with the government. The issue is a question of context, legislative intent, and policy. Finally, the Hearing Examiner concludes that even if the City has the burden of proof, the City satisfied that burden. The facts underlying the City’s decision to issue the Notice and Orders were not genuinely contested. The Appellant completed work within City arterials, obstructed the roads in whole or in part, without satisfying the requirements for or obtaining a right-of-way permit. See Findings of Fact 3 and 5. The record establishes that the Appellant committed the code violations identified by the City. Therefore, unless
the Appellant is exempt from the permit requirements, as it claims, the City’s decision must be upheld.
G. The Appellant was not exempt from the requirement to obtain right-of-way permits
prior to conducting work within the public right-of-way. (Appeal Issue 4)
The Appellant’s landscaping work, to the extent it takes place within City right-of-way, is
not excused from the requirement to obtain a right-of-way permit. The Hearing Examiner agrees with the Appellant that “normal maintenance of landscaping” is a “development activity” that is exempt from the procedural requirements of Chapter 17.80. However, the “normal maintenance of landscaping” is not one of the “development approvals and permits” covered by SVMC 22.130.020. Nor does that provision operate to modify or eliminate the exemption language specific to right-of-way permits, found in SVMC 22.130.100. As a result, Appellant was required to obtain right-of-way permits for the work it conducted in March 2020.
1. The “normal maintenance of landscaping” is a “development activity” that is exempt from the procedural requirements of Chapter 17.80.
The Appellant argues that it was engaged in routine landscaping, an activity that is exempt under SVMC 17.80.040. This exemption is the basis for its later argument
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(discussed further below) that Appellant is also excused from the requirement to obtain a right-of-way permit. In relevant part, SVMC 17.80.040 states as follows:
…the following development activities are exempt from the procedural requirements of Chapter 17.80 SVMC:
… Normal or emergency repair or maintenance of public or private
buildings, structures, landscaping, or utilities.
See SVMC 17.80.040(A)(1) (emphasis added). The City counters that the work performed by the Appellant does not qualify as “development” and, therefore, the cited exemption does not apply. See Exhibit 18, p. 8. When a term is not defined by the statute, its dictionary definition is used. See id.
Applying this rule, the City points to a dictionary definition of “development,” explaining that the word means “the process of making a tract of land available or usable.” See id. Given that understanding, the City reasoned:
Appellant’s work does not make a tract of land available or usable—Appellant’s work involves the cutting, planting, and removing of trees on
land that is already developed. Appellant has provided no support for a
claim that it engages in development activity… If an activity is not a development activity, it does not matter if it meets the criteria of SVMC
17.80.040(A)(1)—it is not exempt. As Apellant’s work does not constitute a development activity, Appellant is not exempt from obtaining a right-of-way permit.
See Exhibit 17, p. 9 (emphasis added). The Hearing Examiner cannot accept the City’s reasoning, for at least two reasons. First, there is no clear dichotomy between “development activities” and the “normal
maintenance of landscaping.” On the contrary, SVMC 17.80.040(A)(1) states that “the following development activities are exempt,” and then sets forth a list that includes “normal maintenance of landscaping.” Clearly, then, landscaping work is being identified as one type of “development activity.” The City’s argument artificially separates the term “development activities” from the specific activities listed below that term. The City’s argument also disregards the word “following” from the opening phrase of the provision.
Second, the dictionary definition of “development,” cited by the City, does not govern the interpretation of the relevant ordinances. Under the rules of construction cited by the City, it cannot look to the dictionary to determine the meaning of a term that has been defined by the code. “Development” is defined in the municipal code, and it means:
Any manmade change to improved or unimproved real estate including,
but not limited to, buildings or other structures, mining, dredging, filling, grading, paving, excavation, drilling operations, or storage of equipment
or materials located within the area of special flood hazard.
See SVMC, Appendix A, Definitions, “Development.” This definition cuts against the City’s argument. For example, the City contended that the Appellant’s work concerned land that was “already developed,” and therefore it did not qualify as “development activity.” However, “development” includes changes to “improved or unimproved real
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estate.” In addition, the planting, pruning, or removal of trees, for example, would appear to qualify as “manmade changes” to real estate, in the same sense as grading, filling,
mining, or excavation. The Hearing Examiner concludes that “normal maintenance of landscaping” is a “development activity” within the meaning of SVMC 17.80.040. As a result, when the Appellant engages in routine landscaping work, it is not subject to the procedural requirements of Chapter 17.80. The next question, then, is whether this exemption also excuses the requirement to obtain a right-of-way permit, as the Appellant contends. This contention turns first upon the language of SVMC 22.130.020.
2. The term “new development approvals and permits,” as used in SVMC 22.130.020, does not contemplate “normal maintenance of landscaping.”
The Appellant contends that a right-of-way permit was not required because that obligation was excused by SVMC 22.130.020. That code provision states:
All new development approvals and permits as set in Chapter 17.80 SVMC, unless exempt pursuant to SVMC 17.80.040, shall comply with
Chapter 22.130 SVMC. See SVMC 22.130.020 (emphasis added). The Appellant contends that because “normal maintenance of landscaping” is exempt under SVMC 17.80.040, Appellant is not obligated to “comply with Chapter 22.130,” including its requirement to obtain right-of-way permits. The City again counters that SVMC 22.130.020 “only applies to new
development approvals and their related permits.” See Exhibit 18, p. 8 (italics in original). Therefore, extending the exemption to other types of approvals, such as right-of-way permits, is improper. See id. This time the Hearing Examiner agrees with the City. The Hearing Examiner already concluded that the “normal maintenance of landscaping”
qualifies as a “development activity” and “development” under the SVMC. Based upon this, one may object that the Hearing Examiner cannot now conclude that “normal maintenance of landscaping” does not also qualify as a “development approval or permit” under SVMC 22.130.020. Nonetheless, the Hearing Examiner does reach this conclusion, for several reasons.
First, there is a difference between “development” or “development activity,” on the one hand, and “new development approvals and permits,” on the other hand. The generic definition of “development” in the municipal code is intended to encompass a full range of activity on real estate, undoubtedly to ensure that general references to “development” include all the usual activities on land that may be subject to regulation. The phrase “development approvals and permits,” by contrast, refers to a class of approvals or authorizations that must be sought from the government in advance of development. It is also noteworthy that the exemption in SVMC 17.80.040(A)(1) refers to “development activities,” while the provisions of SVMC 22.130.020 refers to “development approvals and permits.” The Hearing Examiner believes different phrases were used in these two provisions for a reason—i.e. the phrases serve different
purposes. Second, the Hearing Examiner believes that the phrase “new development approvals and permits” is intended to cover new development projects and the permits related to
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those projects, as the City contended. Chapter 17.80 states, in its purpose sections, that the chapter is intended to create uniform standards for processing and review of
development projects. See SVMC 17.80.010(A). Chapter 17.80 also includes a comprehensive list of permits and authorizations, ranging from the administrative (grading permits) to the legislative (comprehensive plan amendments). See Table 17.80-1. This is the reason SVMC 22.130.020 refers to the “development approvals and permits” listed in Chapter 17.80. The question is the legislative intent behind the phrase “new development approvals and permits,” not just the meaning “development” in a vacuum. In context, the phrase encompasses a range of development proposals. In addition, the word “new”3 generally means “having recently come into existence,” as distinguished from something previously in existence. As the City argued, the term “development” is commonly
understood to mean acts designed to make land available or usable. This dictionary definition, while not controlling, does capture the Hearing Examiner’s understanding of what is intended by the phrase used in SVMC 22.130.020. Considering the provisions of
Chapters 17.80 and 22.130 as a whole, the phrase “new development approvals and permits” suggests that a land development project is being proposed, rather than normal maintenance of an improved lot, for example.
Third, the Appellant’s reading of SVMC 22.130.020 results in an inconsistent or strained construction of the code. For example, SVMC 22.130.020 refers to new development approvals and permits set forth in Chapter 17.80. The Appellant points out, correctly, that right-of-way permits are among the permits listed in Chapter 17.80. The Appellant then seems to suggest that because right-of-way permits are listed in Chapter 17.80, the exemption set forth in SVMC 22.130.020 must apply to right-of-way permits. If that is the Appellant’s argument, the Hearing Examiner disagrees. If “right-of-way permits” were considered one of the “development approvals and permits” referenced in SVMC 22.130.020, then the provision could be properly re-stated
as follows: “All new [right-of-way permits]…, unless exempt pursuant to SVMC 17.80.040, shall comply with Chapter 22.130 SVMC.” This does not make sense. The requirement to obtain right-of-way permits is set forth in Chapter 22.130. There is no
reason to proclaim that right-of-way permits must comply with Chapter 22.130—that is the source of the requirement in the first place.
If the City Council intended for SVMC 22.130.020 to apply to “right-of-way permits,” it could easily have said so. Instead, the City Council mandated that all “new development approvals and permits” listed in Chapter 17.80 should also be subject to Chapter 22.130. The proviso “unless exempt pursuant to SVMC 17.80.040” was intended to make it clear that the additional requirements imposed under Chapter 22.130 do not apply to projects that were already considered exempt from Chapter 17.80. It was not intended to cancel the effect of a more explicit exemption provision set forth later in the same chapter. There is another problem with Appellant’s interpretation of SVMC 22.130.020. As is discussed elsewhere, SVMC 22.130.100 dictates when right-of-way permits are mandatory, and when work within the right-of-way is exempt. On the facts of this case,
the Appellant’s work required a right-of-way permit and was not exempt. Appellant nonetheless claims it is exempt from the right-of-way permit under SVMC 22.130.020. In
3 https://www.merriam-webster.com/dictionary/new.
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other words, the Appellant is claiming an exemption (under .020) from the effect of another exemption (under .100). This cannot be what the drafters had in mind. The
resolution of this conflict is not to ignore or invalidate one or the other provision—it is to recognize that SVMC 22.130.020 and SVMC 22.130.100 serve two different functions.
3. Pursuant to the provisions of SVMC 22.130.100, the Appellant’s work within the
City’s right-of-way was not exempt from the requirement to obtain a right-of-way permit. SVMC 22.130.100 governs the issuance of right-of-way permits. That provision begins by stating: Unless exempt from permit requirements, a right-of-way permit is required
of any person or company who performs construction work or otherwise
engages in activity within existing City rights-of-way, or on City-owned infrastructure. A right-of-way permit authorizes a permittee to perform
work or conduct activity in a right-of-way or easement. See SVMC 22.130.100(A). The next paragraph specifies when right-of-way permits are
not required. Specifically, the code states: Permits shall not be required for the following:
... Work done by or for the City within its right-of-way.
… Work that is two hours or less in duration, as long as that work
does not require the closure of more than 50% of a nonarterial street, does not close any lanes on an arterial street, does not involve
excavation within the rights-of-way, or does not involve cutting or placement of pavement, sidewalks, curbs or gutters.
See id. (emphasis added). Whether a right-of-way permit is required or not is determined by SVMC 22.130.100, not Chapter 17.80. SVMC 17.80.040(A)(1) does not refer to work performed in a public right-of-way, let alone create a specific exemption for that activity. SVMC 22.130.100(A), on
the other hand, provides that any person or company that performs work in City right-of-ways must obtain a right-of-way permit. It must be acknowledged, however, that SVMC 22.130.100(A) starts with the proviso “unless exempt from permit requirements.” The Appellant assumes that the words “unless exempt” allude to the exemption found in SVMC 17.80.040 (as referenced in SVMC 22.130.020). The Appellant also argues that “SVMC 17.80.040 and 22.130.100 cross-reference one another,” suggesting there is an explicit connection between these two provisions that supports the Appellant’s interpretation. See Exhibit 17, p. 4. The Hearing Examiner disagrees with both of these contentions.
The Appellant’s assertion that “SVMC 17.80.040 and 22.130.100 cross-reference one another” is incorrect. Neither of these provisions cross-references the other. With respect to the opening proviso of SVMC 22.130.100(A), the Hearing Examiner agrees with the City—i.e. the phrase “unless exempt” is referring to the very next clause within
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the same subsection. That portion of SVMC 22.130.100(A) articulates precisely when a project is exempt from obtaining a right-of-way permit. That provision, quoted in full
above, governs when a permit is “not required.” The Appellant conducted work in City rights-of-way, triggering the requirement to obtain right-of-way permits pursuant to the plain language of SVMC 22.130.100. In the process of doing that work, the Appellant blocked (in whole or in part) two arterials. Therefore, the Appellant’s work did not fall within the exemption language of that ordinance. See SVMC 22.130.100(A). Under the Appellant’s reasoning, the Appellant is nonetheless exempt from obtaining a right-of-way permit due to the language of SVMC 22.130.020. The Hearing Examiner cannot agree with this argument, for a number of reasons. The Appellant’s interpretation elevates a general exemption related to “development
approvals and permits” as controlling over a more specific provision that directly governs “right-of-way permits.” However, when “there is a conflict between one statutory provision that deals with a subject in a general way and another provision that deals with
the same subject in a specific manner, the latter will prevail.” See Hama Hama Co. v.
Shoreline Hearings Board, 85 Wn.2d 441, 447, 536 P.2d 157 (1975). The Appellant’s interpretation turns this principle on its head.
The Appellant’s interpretation results in a conflict between SVMC 22.130.100 and SVMC 17.80.040. If Appellant’s arguments are accepted, the Appellant is allowed to place equipment, trees, debris, etc., obstructing City roads, without any permits, because its landscaping activity is allegedly exempt from regulation by virtue of SVMC 22.130.020. The Appellant is allowed to do this, it follows, even though the city code requires all work within the rights-of-way to be supported by a “right-of-way permit,” and even though the specific exemptions from that requirement have not been satisfied. See SVMC 22.130.100. By this logic, the Appellant is both exempt from the requirement to obtain a right-of-way permit, by virtue of SVMC 22.130.020 (via SVMC 17.80.040) and not exempt from that same mandate under SVMC 22.130.100(A).
In this case, the municipal code can and should be read to avoid the potential conflict. For example, not every landscaping project requires work within the right-of-way. In fact, working within the right-of-way is an option of last resort for a landscaping company.
Testimony of M. Schmedding. For landscaping work entirely within the boundaries of a client’s property, for example, the permit requirements (or availability of exemptions) can
be determined under Chapter 17.80 or other relevant code provisions. If, on the other hand, the Appellant proposes to place equipment, felled trees, etc., in the City right-of-way, then a right-of-way permit would be required under SVMC 22.130.100. It is only when the project impacts the right-of-way that SVMC 22.130.100 is implicated. In other cases, the more general permit standards would apply. In other words, there is no inherent conflict between SVMC 22.130.020 and SVMC 22.130.100. The conflict only arises if one interprets SVMC 22.130.020 as canceling the effect of the exemption language of SVMC 22.130.100. The Hearing Examiner is convinced that the language of SVMC 22.130.100(A), providing only limited exemptions from the requirements for a right-of-way permit, governs the outcome of this case. Even if SVMC 22.130.020, taken in isolation, would exempt landscaping work from the requirement to obtain a right-of-way permit, the
Hearing Examiner would still deny the appeal. The reason is that one cannot ignore
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the effect of SVMC 22.130.100, which creates a specific exemption related to right-of-way permits. To the extent there actually is any tension between SVMC 22.130.020
and SVMC 22.130.100, the latter controls. In the Hearing Examiner’s view, looking at the code provisions as a whole, the City Council did not intend to make right-of-way permits mandatory whenever the proposed work would obstruct an arterial, but completely exempt from those requirements if the obstruction happened to be a tree. The municipal code can and should be read more holistically, in order to fulfill its purposes. DECISION
The Hearing Examiner acknowledges that it was a struggle to come to a decision in this case. Both parties made compelling arguments supporting their respective interpretations of the code. However, after carefully considering the code provisions as a
whole, as well as the relevant evidence, the Hearing Examiner concludes that the Appellant was not exempt from the right-of-way permit requirement and, therefore, the City’s code enforcement decisions should be sustained. The appeal is denied.
DATED this 28th day of September, 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
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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 City 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 September 29, 2020, 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 October 2, 2020. THE APPEAL CLOSING DATE FOR THE DECISION IS OCTOBER 23, 2020. The complete record in this matter is on file and may be inspected at the City of Spokane Valley 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.