FILED
JANUARY 11, 2024
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
CITY OF SPOKANE VALLEY, a ) No. 39178-7-III
municipal corporation, )
)
Respondent, )
)
v. )
)
BLAYNE DUTTON, J. DOE DUTTON, )
and any marital community comprised ) UNPUBLISHED OPINION
thereof, )
)
Appellants, )
)
J. DOE I-IV, and any marital community )
comprised thereof, )
)
Defendants. )
PENNELL, J. — Blayne Dutton appeals from a summary judgment order granting
the City of Spokane Valley a warrant to abate a nuisance on his property. We affirm.
FACTS
Mr. Dutton owns a home in the City of Spokane Valley. On July 22, 2019, the City
received a complaint about conditions at Mr. Dutton’s property. Nicole Montano, a code
enforcement officer for the City, went to the property to investigate.
Ms. Montano determined the condition of Mr. Dutton’s property constituted
a “nuisance” under two provisions of Spokane Valley Municipal Code (SVMC).
Ms. Montano observed an “accumulation of materials, recyclables, appliances, furniture,
No. 39178-7-III
City of Spokane Valley v. Dutton
and machinery not properly stored in an approved enclosed structure,” which is
proscribed by SVMC 7.05.040(D). Clerk’s Papers at 61. She also noticed three vehicles
visible on the property that appeared to meet the City’s definition of a “junk vehicle,”
a proscribed nuisance under SVMC 7.05.040(N). Id. Ms. Montano photographed the
property to document her observations and issued a warning notice. The warning notice
identified the relevant provisions of municipal code and gave Mr. Dutton one month—
until August 22, 2019—to remedy the purported nuisance. The warning notice explained
that a $500 penalty and a notice and order would issue if Mr. Dutton failed to comply.
On August 23, 2019, Ms. Montano returned to the property and observed “[t]he
junk vehicles were still present, and the accumulation of materials remained.” Id. at 62.
She took additional photographs. The same day, Ms. Montano issued a notice and order to
Mr. Dutton. The notice and order listed the continuing violations of the municipal code
and provided supporting citations to the code. The notice and order assessed a civil
monetary penalty of $500 and ordered Mr. Dutton to remove or properly store all
accumulated items on the property. As to the vehicles, the notice and order advised
Mr. Dutton to either prove they did not meet the City’s definition of “junk vehicle,”
remove them, or properly store them. The notice and order gave Mr. Dutton 20 days
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to pay the civil penalty and warned that the City may seek an abatement order from the
superior court.
The notice and order also advised Mr. Dutton that he had a right to appeal within
14 days to the City’s hearing examiner. Mr. Dutton timely appealed and a hearing was
held before the City’s hearing examiner in October 2020. Ms. Montano visited the
property one week before the hearing date and determined the nuisance conditions had
not been abated. She took photographs to document her observations.
The City’s hearing examiner denied Mr. Dutton’s appeal on November 2, 2020.
The hearing examiner concluded that the City had “clearly established” Mr. Dutton had
“allowed nuisance conditions to persist” on the property. Id. at 45. As to the ongoing
violation of SVMC 7.05.040(D), the City had proffered evidence that
there was a large and exposed collection of construction materials, vehicle
parts, appliances, equipment, and other things accumulated on the Property.
. . . The photographs . . . show construction waste (wood, metal, wire, etc.),
rusted or old appliances, vehicle tires and hubs, fencing materials, and other
things piled up in the yard.
Id. at 46. The hearing examiner noted that Mr. Dutton had “not contest[ed] the foregoing
facts,” but Mr. Dutton urged the hearing examiner to conclude there was no nuisance
because the condition of the property had remained the same for many years. Id. But the
hearing examiner reasoned that “[t]he fact that these conditions have existed for many
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years does not mean there is no public harm from the activity. . . . [T]he City’s authority
to regulate ongoing nuisances is not truncated by the mere lapse of time.” Id.
As to the ongoing violation of SVMC 7.05.040(N), the hearing examiner noted
that Mr. Dutton had “not present[ed] any evidence that the subject vehicles” did not meet
the City’s definition of “‘junk vehicles.’” Id. at 47. “The only evidence in the record
supports the opposite conclusion.” Id. Further, the hearing examiner rejected Mr.
Dutton’s arguments that (1) the examiner lacked subject-matter jurisdiction and (2) the
City’s enforcement of its code was arbitrary and capricious. The hearing examiner
declined to opine on constitutional claims brought by Mr. Dutton.
Mr. Dutton petitioned in Spokane County Superior Court for review of the hearing
examiner’s decision under the Land Use Petition Act (LUPA), chapter 36.70C RCW.
The superior court granted the City’s motion to dismiss, reasoning that the hearing
examiner’s decision was not timely appealed because Mr. Dutton failed to perfect
personal service of the petition on the City as required by LUPA. RCW 36.70C.040(2)-
(3), (5); RCW 4.28.080. Mr. Dutton appealed, but a commissioner of this court dismissed
his appeal as untimely.
In July 2021, the City initiated an action in superior court for a warrant of
abatement of the nuisance and injunctive relief. The complaint alleged that the conditions
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on Mr. Dutton’s property violated SVMC 7.05.040(D) and SVMC 7.05.040(N), and that
the “violations . . . have not been abated.” Id. at 7. The City averred that, given the
dismissal of Mr. Dutton’s LUPA appeal, the hearing examiner’s conclusion that the
conditions on the property constituted a “nuisance” was a final determination of that
issue. It requested Mr. Dutton be enjoined from maintaining the nuisance conditions and
that he be ordered to abate the nuisance. The City further requested that, if Mr. Dutton
failed to abate the nuisance within a time limit prescribed by the court, the superior court
authorize representatives of the City to enter the property to abate the nuisance, and Mr.
Dutton be responsible for all expenses incurred by the City in abating the nuisance.
Mr. Dutton retained counsel, answered the City’s complaint and asserted that the
City’s enforcement of its code against him violated his right to due process and
constituted an unlawful taking.
Ms. Montano visited Mr. Dutton’s property once more on March 30, 2022, and
“determined that the conditions . . . continue[d] to constitute a nuisance.” Id. at 63.
Days later, the City moved for summary judgment and for a warrant of abatement.
In addition to its motion and a supporting memorandum of authorities, the City
submitted a declaration from Ms. Montano, who described her observations of the
property and authenticated the photographs she had taken, which were attached.
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In his response to the City’s motion, Mr. Dutton pointed to the City’s most recent
photographs as evidence that he had “undertaken significant measures” to improve the
condition of his property, including erecting “a six-foot-tall wooden fence” and cleaning
up some of the accumulated items. Id. at 103. Mr. Dutton explained that, in the most
recent set of photographs, “[t]he only visible accumulation of materials . . . are a fridge,
grill, and other items near the house.” Id. at 105. Mr. Dutton conceded the junk vehicles
remained on the property but argued summary judgment was improper because the
property nevertheless “looks significantly different.” Id. at 106. Mr. Dutton also argued
his indigence made cleaning up the property financially burdensome.
The superior court held a hearing on the City’s summary judgment motion in May
2022. At the hearing, the City’s counsel asked the court to issue a warrant of abatement
giving Mr. Dutton 20 days to bring his property into compliance before the City would be
authorized to enter the property to abate the nuisance itself. The City explained that
“throughout time,” conditions on the property “have not changed much.” Rep. of Proc.
(May 17, 2022) at 7. The City’s counsel argued Mr. Dutton’s “[m]ere disagreement with
the City’s determination” was “not sufficient to overcome summary judgment.” Id. at 11.
In response, Mr. Dutton’s counsel pointed to the City’s own argument and exhibits,
claiming a genuine issue of material fact remained because Mr. Dutton had improved
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the condition of the property and erected a fence. The City’s attorney retorted by pointing
out that, the new fence notwithstanding, accumulated material remained “visible from the
right-of-way.” Id. at 13.
In its oral ruling, the superior court concluded that, “despite some efforts by
Mr. Dutton,” a nuisance remained on his property and had not been abated. Id. at 19.
Accordingly, the court granted the City’s motion for summary judgment and a warrant
of abatement. The superior court explained its reasoning by referencing the most recent
photographs taken by Ms. Montano:
[T]he most recent photographs from March of this year . . . indicate that the
vehicles still remain on the property and there are still materials seen on the
property . . . .
Now, Mr. Dutton indicates that he’s remedied the situation, and it
does appear to some extent he has, by erecting the 6-foot fence so that you
can no longer see what’s behind the fence. . . . However, there is a specific
exception that a fence, 6 feet or less in height, is not a structure, and that
does not serve to abate a nuisance based upon the code provision.[1]
And junk vehicles could be kept in a lawful structure, but in this case
they’re still observable, and there’s just simply no genuine issue of material
fact as to those junk vehicles based upon the code enforcement officer’s
declaration and [the most recent photographs], which indicate these vehicles
are still there and they meet the definition of junk vehicle. There’s been no
dispute in that regard. . . .
1
The court was referencing the municipal code’s definition of “structure,” which
specifically excludes a “fence of six feet or less in height.” SVMC App. A(B). This was
relevant because the code provides that a landowner can avoid a finding of nuisance by
storing offending items within an appropriate “structure.” See SVMC 7.05.040(D)(1),
(2)(b), (3)(a), (4); SVMC 7.05.040(N)(1).
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Regarding the other materials[,] . . . . again, in [the most recent
photographs] we do see items remaining in visible sight.
Id. at 17-18. Further, the court rejected Mr. Dutton’s constitutional claims. The court
ordered Mr. Dutton to abate the nuisance and provided that if the nuisance had not been
completely abated within 20 days, the City was authorized to enter and abate the nuisance
at Mr. Dutton’s expense.
The superior court adopted the City’s proposed order memorializing this ruling.
Mr. Dutton timely appealed.
ANALYSIS
Mr. Dutton contends the superior court erred in granting the City’s motion for
summary judgment because genuine issues of material fact remain as to the condition of
his property. The City responds by noting that the dismissal of Mr. Dutton’s LUPA appeal
made the hearing examiner’s conclusion, that the conditions on Mr. Dutton’s property
constituted a nuisance, a final determination. The City points to evidence it furnished
showing that the junk vehicles and materials constituting that nuisance had not been
removed. Because Mr. Dutton has not pointed to any specific facts that need to be
resolved by a fact finder, the City argues, the superior court properly granted summary
judgment.
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This court reviews summary judgment orders de novo, and applies the same
inquiry as the trial court, viewing the facts and reasonable inferences in the light most
favorable to the nonmoving party. Ramey v. Knorr, 130 Wn. App. 672, 685, 124 P.3d 314
(2005). Summary judgment is appropriate where there is “‘no genuine issue as to any
material fact and . . . the moving party is entitled to judgment as a matter of law.’” Id.
(quoting CR 56(c)).
The City has constitutional and statutory authority “[t]o declare what shall be a
nuisance, and to abate the same.” RCW 35.22.280(30); see RCW 35A.21.160; see also
WASH. CONST. art. XI, § 11. The City’s power to regulate land through its police powers
is “nearly plenary.” King County Dep’t of Dev. & Env’t Servs. v. King County, 177 Wn.2d
636, 646, 305 P.3d 240 (2013); see also Kittitas County v. Dep’t of Transp., 13 Wn. App.
2d 79, 88-89, 461 P.3d 1218 (2020).
Pursuant to this authority, the City has defined an unlawful “nuisance” broadly to
include “[a]ny accumulation . . . of building or construction materials”; “[a]ny
accumulation of broken or neglected items”; “[a]ny broken or discarded” household
furnishings or appliances; and “[a]ny broken or inoperable accumulation of . . . machinery
or equipment.” SVMC 7.05.040(D)(1), (2)(b), (3)(a), (4). A landowner can avoid having
such an accumulation designated as a nuisance by enclosing it within an approved
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“structure.” Id. The City has also designated “junk vehicles” 2 as an unlawful nuisance
if they are “visible from” the street and not “enclosed within a lawful structure.”
SVMC 7.05.040(N)(1).
Mr. Dutton has failed to demonstrate a material issue of fact that would
preclude the City’s entitlement to summary judgment and a warrant of abatement. See
RCW 7.48.260 (authorizing actions for a warrant of abatement); SVMC 17.100.320(B)
(same). The 2020 hearing examiner decision established that there was a visible
accumulation of items on Mr. Dutton’s property that met the criteria for a nuisance.
Although Mr. Dutton engaged in some remedial efforts, the undisputed facts before the
superior court at the time of the summary judgment hearing showed that the nuisance
had not been completely abated. Under the City’s municipal code, “any” accumulation
of prohibited materials outside of an enclosed “structure” is considered a nuisance.
SVMC 7.05.040(D)(1), (2)(b), (3)(a), (4). Furthermore, even though Mr. Dutton built
a fence that obscured some of the offending items, the fence was not high enough to
constitute a “structure” under the City’s code. See SVMC App. A(B) (providing that
2
A “junk vehicle” is a vehicle meeting at least three of the following four criteria:
(1) three years or older, (2) “extensively damaged”, (3) “apparently inoperable”, and
(4) the vehicle’s “approximate fair market value” is “equal only to the approximate value
of the scrap in it.” SVMC 7.05.020.
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a “structure” does not include “fence[s] of six feet or less in height”). Additionally,
Mr. Dutton has never contended that the vehicles parked on his property do not constitute
“junk vehicles” as defined by the City. SVMC 7.05.040(N); SVMC 7.05.020. The
undisputed evidence before the superior court was that the offending vehicles remained
visible.
At the time of the summary judgment hearing, it was undisputed Mr. Dutton had
failed to fully remediate the nuisance conditions on his property. Accordingly, the City
was entitled to summary judgment and a warrant of abatement.
CONCLUSION
The order granting summary judgment and a warrant of abatement is affirmed.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________
Pennell, J.
WE CONCUR:
______________________________ _________________________________
Staab, J. Cooney, J.
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