Posted by: Patricia Salkin | January 29, 2015

WA Appeals Court Holds Municipal Code Provisions Governing Imposition of Building Code Violation Fines did not Deprive Property Owner of Procedural Due Process

The City of Bonney Lake brought an action against the Kanany, a property owner, asserting that he maintained an impermissible accessory dwelling unit (ADU) above garage in violation of municipal code, and seeking to collect fines. The Superior Court, Pierce County, granted summary judgment in favor of city for $48,000. On appeal, Kanany argued that the codes in question were unconstitutional because they allowed a single notice of violation to impose subsequent daily penalties without any opportunity to appeal them.

The court first noted that Washington State and federal case law held that the fundamental requirement of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner, and that to determine whether existing procedures are adequate to protect the interest at stake, a court must consider the following three factors: 1) the private interest that will be affected by the official action; 2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and 3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The daily fines Kanany received were automatic, and he had the full opportunity to appeal the continuing fines for his specific violation. The November 18th notice of civil violation was continuing in nature and specifically described the nature of the violation, the code section violated, and the nature of the action required for its remedy. The notice imposed a daily fine until compliance was achieved and specifically stated that the violation was ongoing. The notice also expressly advised Kanany that he could appeal under BLMC 14.130.080 and BLMC 14.120.020 by filing an appeal in writing with the Bonney Lake Planning and Community Development Department within 15 days of his receipt of the notice. Accordingly, the due process challenge failed because Kanany was given the opportunity to appeal his continuing daily fines for the violation found in the notice.

City of Bonney Lake v Kanany, 2014 WL 7403963 (WA App. 12/30/2014)

The opinion can be accessed at:

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