WA Appeals Court Finds Building Official Did Not Violate Appearance of Fairness Doctrine

The Connells, owners of the Glen Grove Apartments in Bothell, decided to replace building’s existing framed windows and doors without applying for the required building permit for the work. The City then opened an investigation after receiving complaints about mold and water damage to apartments and found that plaintiffs performed the work without a permit. The City issued a determination of inconsistency as to the building code requirements. The plaintiffs later submitted multiple permit applications and the board found that the plaintiffs’ work did not comply with the requirements of the Internal Building Code, which required the exterior windows and doors be installed per the manufacturer’s instructions, exterior walls provide the building with a weather-resistant envelope and flashing be installed to prevent moister from entering the wall. The board found that the plaintiffs did not show that compliance with the code would be impractical and their proposal was unrealistic and ineffective. Michael Delack, the City’s building official, provided testimony on the relevant code provisions. The plaintiffs then appealed to the Court of Appeals of Washington after the lower court denied their petition.

In deciding whether the Board’s decision was supported by substantial evidence, the court of appeals found that the installation of the windows and door did not confirm with International Building Code (IBC) because the windows and doors were not installed per the manufacturer’s instructions. Specifically, the court found that the installation did not comply with the manufacturer’s retrofit instructions because the pre-existing aluminum frames were removed and the installation did not comply with the instructions for new construction because flashing was not installed. The court also found it proper for the City to find that the installation method was not equivalent in quality because a sampling of the new windows also showed there to be water leakage and mold growth. The court further found that the Board did not violate the appearance of fairness doctrine because Delack did not engage in ex parte communications with opponents or proponents with respect to the window installation. The court of appeals concluded in finding that there was no evidence that Delack had any financial interest in denying the plaintiffs’ application, and granted the City’s requests for attorney fees incurred.

Connell v. City of Bothell, 181 Wash. App. 1031 (unpub. 6/1/6/2014)

The opinion can be accessed at: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=701410MAJ