Appeal 20090004
In Re the Appeal of:
Kenneth & Vera Reidy
771 Daley St. • Edmonds WA 98020
Appeal No. AP20090004
Finis Tupper Declaration & Brief
COMES NOW, Finis Tupper testifying in support of the Kenneth & Vera Reidy Appeal and recommending the Hearing Examiner grant the appeal.
Introduction
Before the Hearing Examiner, the City of Edmonds and City Attorney request enforcement of Ordinance 3729, this Notice of Code Violation exceeds statutory authority of police power, absent both a rational basis and reasonable relationship to public necessity, public welfare, health and safety. In this code violation action, the City of Edmonds acts absent statutory authority, in bad faith, fraudulently, arbitrary and capriciously by defying Federal, State and Local laws. The City Attorney has acted arbitrary and capriciously by using the code enforcement violation process to run-over the appellant’s substantive and procedural due process rights, right to privacy and taking of his real property without compensation. Real Property is defined as, land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land. Real property can be corporeal (soil and buildings) or incorporeal (easements). Black’s Law Dictionary Abridged 7th Ed. (2000).
The City’s “prima facie” case as briefed to the Hearing Examiner, is without merit and unproven. The City and the City Attorney’s arguments are based solely on a disputed boundary line. The setback violation cannot be determined until the true boundary line is set by the Snohomish Superior Court, Case Number: 09-2-03815-3. The Reidys’ have filed suit to determine the rightful boundary between the subject properties.
The City provides no evidence the Reidys extended the shed without a building permit after January 1, 1981. Ex. 9.2 pg. 2. The City vacated its interest in the unopened right of way, and along with a Temporary Construction Easement (TCE) that awaits required judicial decision as to the public use, public necessity and the amount of compensation for damage. RCW 8.12.050. The City’s corrective action required statement in the Notice of Code Violation (NOV), includes removal of the allowed concrete slab. ECDC 16.20.040(C). The NOV makes no mention of the stairs, arbitrarily allowing the stairs to remain in the TCE area while requiring the demolition and removal of other real property. In the ordinance, the area description covered by the TCE encompasses a smaller area than the actual shed structure. The City Attorney failed to describe the property area accurately, calling the 500 Block, the 700 Block and not including all of the Lots that the Shed is constructed upon.
No matter what the circumstances are, every citizens deserves honest and evenhanded treatment including the execution of the rule of law in their land use dealings with the City of Edmonds.
Federal, State and Local Laws
A code city such as Edmonds has the broadest powers available under the constitution unless otherwise defined by statute. RCW 35A. These powers, including the power to condemn, abate, trespass and damage private property, must be liberally construed in favor of the city only if all federal, state and local laws have been properly followed. RCW 8.12.030. In this case, many of the required laws have not been applied and followed to resolve the underlying controversy.
Under the fourteenth amendment to the U.S. Constitution and article I, section 3, of the Washington State Constitution, a person cannot be deprived of life, liberty or property without due process of law. Procedural due process requires at minimum notice and an opportunity to be heard. Silver Firs Town Homes Inc. v. Silver Lake Water Dist., 103 Wn. App. 411, 425, 12 P.3rd 1022 (2000).
Washington State Constitution article 1, section 16, Eminent Domain. Private property shall not be taken for private use, except of private ways of necessity, and drains, flumes, or ditches on or across the lands of others for agricultural, domestic or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner irrespective of any benefit from any improvement proposed by corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil case in courts of record, in the manner prescribed by law.
City Attorney has on the table a settlement agreement between the City of Edmonds and Thuesen Custom Homes. On several occasions, the City Attorney has publicly asserted through this Court order and settlement Thuesen Custom Homes is granted the right to waste and trespass on the Reidy’s property.
After service of the original, unmentioned and premature March 25, 2009, Order to Correct, the City ignored Mr. Reidys’ requests for an administrative hearing. ECDC 20.110.040(A)(2)(g). Ex. A. Ordinance 3729 was not effective until March 27, 2009. Ex. 9.31.
The TCE established in Ordinance No. 3729 is an exercise of eminent domain. RCW 8. Upon passage of an eminent domain ordinance, the city is required to file a petition in Superior Court for a decree of public use, public necessity and a judicial determination of just compensation. City of Des Moines v. Hemenway, 73 Wn.2d 130, 138, 437 P.2d 171 (1968); RCW 8.12.060. The City of Edmonds though this code enforcement action may not assume this statutory authority. Absent a judicial decision, the Hearing Examiner lacks the same authority and police power to take the Reidys’ real property, the stairs, concrete slab and the tool shed.
The City administration of the Street Vacation, unopened right of way, between 8th Ave. N. & 9th Ave. N. and north of Daley St. is contrary to existing and long ago adopted city code.
On November 13, 2009, Finis Tupper reviewed the City file for the Alley Vacation of the unopened alley lying between the 700 (sic) (500) Block of 8th Ave. N. & 9th Ave. N. and parallel to and north of Daley Street in Edmonds, Washington. I discovered an incomplete file with missing required information including both a staff report and a hearing examiner advisory report showing compliance and consistency with Edmonds Comprehensive Plan.
Edmonds Municipal Code (EMC) 10.35 establishes the Hearing Examiner. Paragraph (F) Vacations and Dedications, states, the hearing examiner will review the comprehensive plan and report on the same prior to any street vacation or dedication as provided in ECDC 15.05.020. [Ord. 2381, 1983; Ord. 2215 § 1, 1981; Ord. 2169 § 2, 1980]
ECDC15.05 Comprehensive Plan, Adopted 1997, Repealed 15.05.020. (The Edmonds Comprehensive Plan became a separate document),
2008 Edmonds Comprehensive Plan, Effect of the Plan, states,
C. Street Vacations and Dedications.
The Comprehensive Plan shall be consulted as a preliminary to the establishment, improvement, abandonment, or vacation of any street, and no dedication of any street or other area for public use shall be accepted by the city council until the location, character, extent, and effect thereof shall have been considered by the Hearing Examiner with reference to the Comprehensive Plan. The Hearing Examiner's Report on the same will be at the time and part of his or her action on the vacation and/or dedication. [Emphasis added]
ECDC 20.70.80 Street Vacations, Staff report preparation, (A) Contents …containing the following information., (3) An analysis of the requested vacation in relation to the provisions of this chapter and the applicable provisions of the comprehensive plan; … One can only assume, if the staff analysis had been done a hearing examiner report would have been triggered.
Edmonds Municipal Code and Edmonds Community Development Code require Comprehensive Plan compliance and consistency. The language is mandatory and implemented by both the Planning Department and Hearing Examiner providing the Council with advisory opinion and analysis.
Furthermore, the Reidy use is ruled illegal, when in fact, the structure is grandfathered and allowed non-conforming accessory building. ECDC 17.40.020(H). Substantive evidence is ignored and misinterpreted. The city has a 1962 building permit.
Prior to 1980 and the purchase of 711 Daley St., Finis Tupper many times explored the woods and wetlands just north of 771 Daley St. with his good friend Jeff McMurphy who lived at 755 Daley St. in the late 60’s and early 70’s. Finis Tupper remembers seeing the entire structure as far back as 1968. The entire existing building existed when the Richmond and Cox families owned the property and prior to Reidy ownership.
Many people in Edmonds have sheds in their backyards on the property line. The city has not vacated the portion of the unopened right of way 500 Block between 7th Ave N. and 8th Ave. N and North of Daley Street. On this block, there are many examples of side or rear yard setback violations unenforced by the City of Edmonds. See Ex. 9.4. A most blatant and nearby violation is the Open Bible Church on the corner of 7th and Daley St. with a garage building & chimney encroaching over the existing open alley creating a vehicle safety hazard. Another example is the new house, 761 Daley St. permitted to place fixed improvements that obstruct access to an unopened & dedicated public right of way. An additional classic example on Daley St. and the 700 Block is the City’s fish ladder formally with a gazebo type structure constructed on top and located in the open street blocking the public right of way. Quoting Mr. Snyder, “Municipalities have a duty to remove obstructions in the public ways and liability if they fail to do so.” Lund v. City of Seattle, 99 Wash. 300, 166 P. 820 (1918).
The City must be evenhanded and scrupulously just in all dealings with the public.
Conclusion
To summarize, the City of Edmonds police power is limited by the Eminent Domain statute that requires judicial review and determination of public use, public necessity and the value of private property damaged. Without a Superior Court order granting this power, the City decision to enforce the TCE is overreaching. The City Attorney has failed to petition the Snohomish County Superior Court for these judicial determinations as required by law. The city staff report to Council for Resolution 1178 and Ordinance 3729 failed to follow the Edmonds Municipal Code, the Edmonds Community Development Code and the Edmonds Comprehensive Plan all having ministerial requirements including a Staff and Hearing Examiner analysis of compliance and consistency with the Comprehensive Plan prior to Council adoption of any Street Vacation ordinance. The Hearing Examiner failed to provide the City Council an advisory opinion prior to their legislative decision regarding the Street Vacation. Hence, the Street Vacation Ordinance fails to comply with the Comprehensive Plan. In this matter, the City Attorney has acted most unscrupulously.
I, Finis Tupper, being of legal age, hereby declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct this 30th day of January, 2010 at Edmonds, Snohomish County, Washington;
_________________
Finis Tupper
711 Daley St.
Edmonds WA 98020
Kenneth & Vera Reidy
771 Daley St. • Edmonds WA 98020
Appeal No. AP20090004
Finis Tupper Declaration & Brief
COMES NOW, Finis Tupper testifying in support of the Kenneth & Vera Reidy Appeal and recommending the Hearing Examiner grant the appeal.
Introduction
Before the Hearing Examiner, the City of Edmonds and City Attorney request enforcement of Ordinance 3729, this Notice of Code Violation exceeds statutory authority of police power, absent both a rational basis and reasonable relationship to public necessity, public welfare, health and safety. In this code violation action, the City of Edmonds acts absent statutory authority, in bad faith, fraudulently, arbitrary and capriciously by defying Federal, State and Local laws. The City Attorney has acted arbitrary and capriciously by using the code enforcement violation process to run-over the appellant’s substantive and procedural due process rights, right to privacy and taking of his real property without compensation. Real Property is defined as, land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land. Real property can be corporeal (soil and buildings) or incorporeal (easements). Black’s Law Dictionary Abridged 7th Ed. (2000).
The City’s “prima facie” case as briefed to the Hearing Examiner, is without merit and unproven. The City and the City Attorney’s arguments are based solely on a disputed boundary line. The setback violation cannot be determined until the true boundary line is set by the Snohomish Superior Court, Case Number: 09-2-03815-3. The Reidys’ have filed suit to determine the rightful boundary between the subject properties.
The City provides no evidence the Reidys extended the shed without a building permit after January 1, 1981. Ex. 9.2 pg. 2. The City vacated its interest in the unopened right of way, and along with a Temporary Construction Easement (TCE) that awaits required judicial decision as to the public use, public necessity and the amount of compensation for damage. RCW 8.12.050. The City’s corrective action required statement in the Notice of Code Violation (NOV), includes removal of the allowed concrete slab. ECDC 16.20.040(C). The NOV makes no mention of the stairs, arbitrarily allowing the stairs to remain in the TCE area while requiring the demolition and removal of other real property. In the ordinance, the area description covered by the TCE encompasses a smaller area than the actual shed structure. The City Attorney failed to describe the property area accurately, calling the 500 Block, the 700 Block and not including all of the Lots that the Shed is constructed upon.
No matter what the circumstances are, every citizens deserves honest and evenhanded treatment including the execution of the rule of law in their land use dealings with the City of Edmonds.
Federal, State and Local Laws
A code city such as Edmonds has the broadest powers available under the constitution unless otherwise defined by statute. RCW 35A. These powers, including the power to condemn, abate, trespass and damage private property, must be liberally construed in favor of the city only if all federal, state and local laws have been properly followed. RCW 8.12.030. In this case, many of the required laws have not been applied and followed to resolve the underlying controversy.
Under the fourteenth amendment to the U.S. Constitution and article I, section 3, of the Washington State Constitution, a person cannot be deprived of life, liberty or property without due process of law. Procedural due process requires at minimum notice and an opportunity to be heard. Silver Firs Town Homes Inc. v. Silver Lake Water Dist., 103 Wn. App. 411, 425, 12 P.3rd 1022 (2000).
Washington State Constitution article 1, section 16, Eminent Domain. Private property shall not be taken for private use, except of private ways of necessity, and drains, flumes, or ditches on or across the lands of others for agricultural, domestic or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner irrespective of any benefit from any improvement proposed by corporation, which compensation shall be ascertained by a jury, unless a jury be waived, as in other civil case in courts of record, in the manner prescribed by law.
City Attorney has on the table a settlement agreement between the City of Edmonds and Thuesen Custom Homes. On several occasions, the City Attorney has publicly asserted through this Court order and settlement Thuesen Custom Homes is granted the right to waste and trespass on the Reidy’s property.
After service of the original, unmentioned and premature March 25, 2009, Order to Correct, the City ignored Mr. Reidys’ requests for an administrative hearing. ECDC 20.110.040(A)(2)(g). Ex. A. Ordinance 3729 was not effective until March 27, 2009. Ex. 9.31.
The TCE established in Ordinance No. 3729 is an exercise of eminent domain. RCW 8. Upon passage of an eminent domain ordinance, the city is required to file a petition in Superior Court for a decree of public use, public necessity and a judicial determination of just compensation. City of Des Moines v. Hemenway, 73 Wn.2d 130, 138, 437 P.2d 171 (1968); RCW 8.12.060. The City of Edmonds though this code enforcement action may not assume this statutory authority. Absent a judicial decision, the Hearing Examiner lacks the same authority and police power to take the Reidys’ real property, the stairs, concrete slab and the tool shed.
The City administration of the Street Vacation, unopened right of way, between 8th Ave. N. & 9th Ave. N. and north of Daley St. is contrary to existing and long ago adopted city code.
On November 13, 2009, Finis Tupper reviewed the City file for the Alley Vacation of the unopened alley lying between the 700 (sic) (500) Block of 8th Ave. N. & 9th Ave. N. and parallel to and north of Daley Street in Edmonds, Washington. I discovered an incomplete file with missing required information including both a staff report and a hearing examiner advisory report showing compliance and consistency with Edmonds Comprehensive Plan.
Edmonds Municipal Code (EMC) 10.35 establishes the Hearing Examiner. Paragraph (F) Vacations and Dedications, states, the hearing examiner will review the comprehensive plan and report on the same prior to any street vacation or dedication as provided in ECDC 15.05.020. [Ord. 2381, 1983; Ord. 2215 § 1, 1981; Ord. 2169 § 2, 1980]
ECDC15.05 Comprehensive Plan, Adopted 1997, Repealed 15.05.020. (The Edmonds Comprehensive Plan became a separate document),
2008 Edmonds Comprehensive Plan, Effect of the Plan, states,
C. Street Vacations and Dedications.
The Comprehensive Plan shall be consulted as a preliminary to the establishment, improvement, abandonment, or vacation of any street, and no dedication of any street or other area for public use shall be accepted by the city council until the location, character, extent, and effect thereof shall have been considered by the Hearing Examiner with reference to the Comprehensive Plan. The Hearing Examiner's Report on the same will be at the time and part of his or her action on the vacation and/or dedication. [Emphasis added]
ECDC 20.70.80 Street Vacations, Staff report preparation, (A) Contents …containing the following information., (3) An analysis of the requested vacation in relation to the provisions of this chapter and the applicable provisions of the comprehensive plan; … One can only assume, if the staff analysis had been done a hearing examiner report would have been triggered.
Edmonds Municipal Code and Edmonds Community Development Code require Comprehensive Plan compliance and consistency. The language is mandatory and implemented by both the Planning Department and Hearing Examiner providing the Council with advisory opinion and analysis.
Furthermore, the Reidy use is ruled illegal, when in fact, the structure is grandfathered and allowed non-conforming accessory building. ECDC 17.40.020(H). Substantive evidence is ignored and misinterpreted. The city has a 1962 building permit.
Prior to 1980 and the purchase of 711 Daley St., Finis Tupper many times explored the woods and wetlands just north of 771 Daley St. with his good friend Jeff McMurphy who lived at 755 Daley St. in the late 60’s and early 70’s. Finis Tupper remembers seeing the entire structure as far back as 1968. The entire existing building existed when the Richmond and Cox families owned the property and prior to Reidy ownership.
Many people in Edmonds have sheds in their backyards on the property line. The city has not vacated the portion of the unopened right of way 500 Block between 7th Ave N. and 8th Ave. N and North of Daley Street. On this block, there are many examples of side or rear yard setback violations unenforced by the City of Edmonds. See Ex. 9.4. A most blatant and nearby violation is the Open Bible Church on the corner of 7th and Daley St. with a garage building & chimney encroaching over the existing open alley creating a vehicle safety hazard. Another example is the new house, 761 Daley St. permitted to place fixed improvements that obstruct access to an unopened & dedicated public right of way. An additional classic example on Daley St. and the 700 Block is the City’s fish ladder formally with a gazebo type structure constructed on top and located in the open street blocking the public right of way. Quoting Mr. Snyder, “Municipalities have a duty to remove obstructions in the public ways and liability if they fail to do so.” Lund v. City of Seattle, 99 Wash. 300, 166 P. 820 (1918).
The City must be evenhanded and scrupulously just in all dealings with the public.
Conclusion
To summarize, the City of Edmonds police power is limited by the Eminent Domain statute that requires judicial review and determination of public use, public necessity and the value of private property damaged. Without a Superior Court order granting this power, the City decision to enforce the TCE is overreaching. The City Attorney has failed to petition the Snohomish County Superior Court for these judicial determinations as required by law. The city staff report to Council for Resolution 1178 and Ordinance 3729 failed to follow the Edmonds Municipal Code, the Edmonds Community Development Code and the Edmonds Comprehensive Plan all having ministerial requirements including a Staff and Hearing Examiner analysis of compliance and consistency with the Comprehensive Plan prior to Council adoption of any Street Vacation ordinance. The Hearing Examiner failed to provide the City Council an advisory opinion prior to their legislative decision regarding the Street Vacation. Hence, the Street Vacation Ordinance fails to comply with the Comprehensive Plan. In this matter, the City Attorney has acted most unscrupulously.
I, Finis Tupper, being of legal age, hereby declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct this 30th day of January, 2010 at Edmonds, Snohomish County, Washington;
_________________
Finis Tupper
711 Daley St.
Edmonds WA 98020
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