Arhur Rojsza v. City Of Ferndale ( 2014 )

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STATE 07 IV,
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
ARTUR AND MARGARET ROJSZA, No. 69259-3-1
Respondents,
CITY OF FERNDALE, a Washington
municipal corporation, UNPUBLISHED OPINION
Appellant. FILED: April 7, 2014
Verellen, J. — This appeal, brought pursuant to the Land Use Petition Act
chapter 36.70C RCW, concerns a dispute between the City of Ferndale (City) and Artur
Rojsza, a homeowner who remodeled his house for years without a permit, then
repeatedly exceeded the scope of his permit despite the City's ongoing enforcement
actions. When the City required Rojsza to apply for a new permit and to provide a
$30,000 performance bond, Rojsza appealed to a hearing examiner, who concluded his
appeal was untimely. The Whatcom County Superior Court reversed. The City
appeals. We conclude that there was no final administrative decision by the City and
that Rojsza's appeal is, accordingly, premature. We reverse and remand for dismissal.
FACTS
In 2005, Rojsza began to remodel his Ferndale home without obtaining a building
permit. In 2008, he started building an adjoining clock tower, also without a permit. City
of Ferndale officials issued Rojsza a notice of violation on September 18, 2009. The
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City informed Rojsza that it would undertake a criminal enforcement action if Rojsza did
not meet with its development personnel to obtain building permits. Rojsza did not
comply.
In December 2009, the City initiated a criminal enforcement action. In
conjunction with the enforcement, Ferndale prosecutor David Nelson informed Rojsza's
counsel by letter that the City planned to require Rojsza to hire a structural engineer and
to apply for a building permit. Rojsza agreed to take these steps and thereafter applied
for a permit. Rojsza stated in his application that he would bring the earlier remodeling
work into compliance and that he planned to complete the clock tower and make other
additions to the southern side of the home. The City granted the permit, but Rojsza's
subsequent construction work exceeded the scope of the permit.
On July 29, 2010, Jori Burnett, the City's community development director,
issued a stop-work order requiring Rojsza to immediately cease work and provide
engineering drawings to allow a full structural inspection. Rojsza agreed to submit
updated plans by August 20. The City lifted the stop-work order. The City later agreed
to extend the August 20 deadline until the end of October, then subsequently extended
the deadline until May 2011.
In April and early May 2011, Burnett asked Rojsza for an update. Rojsza
informed Burnett that the cited nonconforming portions of his earlier remodel work had
been corrected. However, Rojsza claimed that the clock tower and southern addition
were "not a part of our specific agreement" and that he did not have a time estimate for
completing the tower.1 Rojsza also requested that the City inspect the property.
1 Clerk's Papers at 587.
No. 69259-3-1/3
Burnett explained that an inspection was not possible because Rojsza had not
submitted engineering drawings as required. In a May 5, 2011 e-mail response, Rojsza
reiterated his view that "the structural part of the project that needs to be in compliance
is done" and that he considered the "completion of the clock tower addition" a "separate,
independent" project.2 Also on May 5, 2011, Rojsza telephoned the City's inspection
hotline to repeat his request for an inspection.
In his May 9, 2011 e-mail, Burnett asserted that Rojsza had not met his
obligations under the February 19, 2010 criminal enforcement "settlement agreement":
While you have continued to work on this project, you have done so
without periodic inspections by your structural engineer or the City. ... As
these inspections have not taken place, and as since the deadline for
adherence to the settlement agreement has passed, the Prosecuting
Attorney and City staff agree that the City has no other legitimate option
but to pursue its enforcement action ....
As per the building permit itself, more than 180 days has passed
since your last inspection. We understand by your e-mails that you feel
that you requested an inspection. However, due to the non-prescriptive
method that you have elected to build this structure, the City had notified
you that inspections would occur two weeks after structural drawings,
architectural drawings, and a report from your structural engineer was
submitted to the City. The last inspection that took place was October 18,
2010. The next legitimate request for an inspection was last week, seven
months after the last inspection, and that request did not include structural
engineering or reports.131
Two days later, Burnett sent Rojsza a letter explaining that the building permit
had expired. However, he indicated that the City would continue working cooperatively
with Rojsza if he met certain conditions:
2 Clerk's Papers at 573.
3 Clerk's Papers at 564.
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To bring what we consider to be final closure to this ordeal and to
avoid costly and lengthy litigation, the City proposes the following:
- A penalty of $500 shall be paid by you ... for failure to
comply with the intent of the agreement and to compensate the City
for ongoing legal and administrative expenses.
The City will delay further enforcement action . . . provided that all
of the following occur:
- At or prior to June 1, 2011, your structural engineer shall
conduct a structural observation of the entire structure, including all
elements proposed by the building permit or built subsequent to
that permit's issuance.
- Within ten days of this structural observation, a report and
engineered plans from the structural engineer will be submitted to
the City....
- An inspection will be requested at the time of submittal of
the structural observation report....
- The City inspector shall conduct an inspection.141
Rojsza did not satisfy these conditions.
In a June 16, 2011 letter to Rojsza, Burnett set out new requirements. These
required Rojsza to schedule an inspection by July 1, 2011 and to provide "building
permit applications and accurate structural, engineered, and architectural plans within
ten business days of the inspection."5
Following the structural observation, the City communicated to Rojsza that
although "elements of the building . . . have been constructed without a permit," "[t]he
City will not cite the Rojszas for the existing violations" provided that Rojsza submit
architectural drawings by July 8, 2011 and engineering calculations and drawings by
4 Clerk's Papers at 546-47.
5 Clerk's Papers at 277.
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August 5, 2011.6 The letter imposed a 21-day time limit for Rojsza to complete a siding
project on the house. Rojsza submitted the architectural plans as required, but did not
submit engineering drawings.
On August 18, 2011, the City cited Rojsza for failing to apply for a building permit
for alterations to a structure or deviating from approved plans. On August 19, 2011,
Burnett reiterated in an e-mail to Rojsza's counsel that Rojsza needed to applyfor a
new building permit. The e-mail also stated that the City would "require that the Rojszas
submit a reasonable performance bond to ensure completion [of the siding work] within
the time limit set."7 Burnett explained that
we would expect to receive a bond amount equal to 150% of the valuation
the City determines on the building permit. ... We will expect to call that
bond ifthe work is not completed [and inspected] within six weeks of
permit issuance. ... Ifthe Rojszas are able to complete the work ahead of
the deadline, the City would be able to release the bond.[8]
In an August 31 e-mail to Rojsza's counsel, Burnett again stated that the City
would require a performance bond or assignment of savings:
One thing that was missing from the application was an estimate of
the cost of the work, including an estimate to complete the exterior siding
for purpose of determining an appropriate bond/Assignment of Savings
amount. . . . [In] the event that the Rojszas are unable or unwilling to
complete the work in the six-week time frame after issuance, the City
would be required to pay fair market value for both materials and labor in
order to complete the workJ9]
Rojsza submitted application materials. On September 7, 2011, the City
informed Rojsza's counsel that it was ready to issue the building permit but would
6 Clerk's Papers at 1445.
7 Clerk's Papers at 1448.
8 Clerk's Papers at 1448.
9 Clerk's Papers at 387.
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require an assignment of funds or bond in the amount of $30,000. Rojsza opted not to
pick up the new permit. In follow-up e-mail correspondence with Rojsza's counsel,
Burnett stated that "from the City's perspective, there needs to be a new permit
regardless of whether the previous permit. .. expired or not" and that Rojsza could
avoid the bond requirement by simply completing the siding work.10
On September 16, 2011, Rojsza filed an administrative appeal. The hearing
examiner concluded that Rojsza's appeal was untimely as to every issue except the
specific amount of the performance bond required. The hearing examiner upheld the
requirements that Rojsza obtain a new building permit and post a $30,000 performance
bond or assignment of savings.
Rojsza appealed to the Whatcom County Superior Court pursuant to chapter
37.70C, the Land Use Petition Act (LUPA). The superior court reversed, concluding
that Rojsza's administrative appeal was timely, that the earlier permit did not expire, that
Rojsza's permit application was for an amendment to the original permit, and that the
City therefore lacked statutory authority to require a performance bond.
The City appeals.
ANALYSIS
The threshold issue is whether there was any final administrative decision by the
City from which Rojsza could appeal. We conclude there was not. Rojsza's appeal is
therefore premature.
10
Clerk's Papers at 352.
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When reviewing a superior court's decision under LUPA, this court stands in the
shoes of the superior court, reviewing the ruling below on the administrative record.11
On appeal, the party who filed the petition bears the burden of establishing one of the
following:
"(a) The body or officer that made the land use decision engaged in
unlawful procedure or failed to follow a prescribed process, unless the
error was harmless;
"(b) The land use decision is an erroneous interpretation of the law,
after allowing for such deference as is due the construction of a law by a
local jurisdiction with expertise;
"(c) The land use decision is not supported by evidence that is
substantial when viewed in light of the whole record before the court;
"(d) The land use decision is a clearly erroneous application of the
law to the facts;
"(f) The land use decision violates the constitutional rights of the
party seeking relief."[12]
A "land use decision" is defined under LUPA as "a final determination by a local
jurisdiction's body or officer with the highest level of authority to make the
determination."13 A land use decision is "final" for purposes of LUPA when it "'leaves
nothing open to further dispute'" and '"sets at rest [the] cause of action between the
parties.'"14
11 King County Dep't. of Dev. and Envtl. Servs. v. King County, 177 Wash. 2d 636,
643, 305 P.3d 240 (2013).
12 City of Federal Way v. Town & Country Real Estate, LLC, 161 Wash. App. 17,
36-37, 252 P.3d 382 (2011) (quoting RCW 36.70C. 130(1)).
13 RCW 36.70C.020(2) (emphasis added).
14 Durland v. San Juan County. 174 Wash. App. 1, 13, 298 P.3d 757 (2012)
(alteration in original) (quoting Samuel's Furniture. Inc. v. Dep't of Ecology, 147 Wash. 2d
440, 452, 54 P.3d 1194 (2002)).
No. 69259-3-1/8
The City's communication with Rojsza does not support the conclusion that any
individual letter or e-mail from Burnett was a final determination or decision requiring an
appeal. Rather, the correspondence reflected an ongoing collaborative effort to arrive
at mutually acceptable compliance. Such efforts are laudable, but only a genuine final
decision is appealable.
Land use decisions become final and appealable only if the decision finally and
unequivocally settles the pending dispute. For example, in Durland v. San Juan
County, this court recognized a distinction between "an interlocutory decision" made by
an administrative official and a "final" decision, which "'leaves nothing open to further
dispute'" and "'sets at rest [the] cause of action between parties.'"15 "Mere decisions
about the process to be followed in making a land use decision are not final land use
decisions."16 This court has also held that "[a]n agency's letter does not constitute a
final order unless the letter clearly fixes a legal relationship as a consummation of the
administrative process" and that "[t]he letter must be clearly understandable as a final
determination of rights, and doubts as to the finality of such communications must be
resolved in favor of the citizen."17
Most of the City's correspondence with Rojsza and his representatives was
cooperative in tone. Even though Rojsza repeatedly failed to meet the requirements
placed on him, the City repeatedly responded by changing the requirements and
moving back the deadlines. For instance, although the May 11, 2011 letter from Burnett
15174 Wash. App. 1, 13-14, 298 P.3d 757 (2012) (alteration in original) (quoting
Samuel's Furniture, 147 Wn.2d at452).
16 id, at 14.
17 WCHS, Inc. v. City of Lvnnwood, 120 Wash. App. 668, 679, 86 P.3d 1169 (2004).
No. 69259-3-1/9
declares "your building permit has expired" and later refers to "expiration of the building
permit," the letter is entitled "RE: Potential Settlement Agreement" and proposes a new
settlement that could culminate in dismissal of the pending citation.18 The bulk of the
letter recites history and itemizes detailed conditions of a proposed settlement. The
May 11, 2011 letter provides no indication that the matter at issue has been "set at
rest."19
A June 16, 2011 letter from Burnett details two violations and directs that "you
must now comply."20 The letter directs Rojsza to schedule an inspection and provide all
necessary information, including building permit applications and accurate plans. Upon
completion of these steps, if the City deems the application materials "to be complete
and accurate," the City "will make the building permit available to you for issuance."21
The letter also quotes the municipal code section governing "[ajmended construction
documents" and the section on "[suspension or revocation."22 Burnett recites "that it
now appears that the permit was issued on the basis of incorrect, inaccurate and
incomplete information" and that penalties will be imposed if Rojsza does not correct the
violations.23 This letter falls short of an express and direct communication of a decision
setting the dispute to rest.
18 Clerk's Papers at 544-45.
19 See Durland, 174 Wash. App. at 13 (guoting Samuel's Furniture, 147 Wash. 2d at
452).
20 Clerk's Papers at 277.
21 Clerk's Papers at 277.
22 Clerk's Papers at 278-79.
23 Clerk's Papers at 279. Contrary to the City's argument, the letter makes no
express reference to a "new" permit. The multiple references to "permit application" and
making the "building permit available" could just as easily be read as referring to
No. 69259-3-1/10
The September 7, 2011 e-mail from Burnett to Rojsza's attorney merely itemized
fees for the permit and advised that the permit was ready to pick up and must be picked
up by September 21, 2011, that the bond amount was $30,000, and that the owner had
six weeks to complete exterior siding. It is understandable that a cautious owner might
not want to take the risk of missing the appeal period. But consistent with the prior
correspondence, the September 7, 2011 e-mail is not a decision allowing an appeal as
it does not purport to resolve the dispute between the parties.
The City has not yet set forth a clear and express final decision. The
communications back and forth were almost all informal, casual, and ongoing
negotiations of attempts to resolve the evolving dispute. None of the communications
expressly and clearly set forth a decision by the City purporting to set the dispute to
rest.
Rojsza argues that this issue was not raised by the City before the hearing
examiner. But we review the decision of the hearing examiner de novo. The question
of whether the appeal was premature is squarely before us.24
We decline to further address the status of the permit and of the enforcement
efforts of the City. The administrative appeal before the hearing examiner was
materials for an amended permit consistent with the code section on amended permits
quoted in the letter. Burnett recites that the existing permit was issued on incorrect,
inaccurate, and incomplete information but does not expressly state that the City has
revoked the existing permit.
24 As counsel for Rojsza acknowledged at oral argument, this court is not bound
by any manifestation by the parties that a particular communication was an appealable
decision. See Perkins Coie v Williams, 84 Wn. App 733, 741, 929 P.2d 1215(1997)
(party could not "reduce the scope of issues" before reviewing court by stipulation);
Schneider v. Setzer, 74 Wash. App. 373, 375, 872 P.2d 1158 (1994) (parties' stipulation
regarding appealability and scope of appellate review did not bind appellate court as to
nature and scope of review of an arbitrator's decision).
10
No. 69259-3-1/11
premature, the hearing examiner's decision has no binding effect, and the LUPA appeal
is appropriately dismissed.
We reverse and remand for dismissal.
WE CONCUR:
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