| [1] | IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
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| [2] | No. 30614-0-II
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| [3] | 2004.WA.0001043< http://www.versuslaw.com>
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| [4] | July 20, 2004; as amended August 17, 2004
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| [5] | THURSTON COUNTY, RESPONDENT,
v.
MERRELL CLIFFORD SAGER, APPELLANT.
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| [6] | Appeal from Superior Court of Thurston County Docket No: 02-2-00746-2 Judgment or order under review Date filed: 06/20/2003 Judge signing: Hon. Daniel J Berschauer
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| [7] | Counsel for Appellant(s)
Merrell C. Sager (Appearing Pro Se)
9845 Littlerock Rd.
Olympia, WA 98512
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| [8] | Counsel for Respondent(s)
Donald R. Jr Peters
Thurston Co Pros Attorney
2415 South Evergreen Park Dr SW Bldg C
Olympia, WA 98502-6051
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| [9] | The opinion of the court was delivered by: Van Deren, J.
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| [10] | Concurring: C C Bridgewater, J Dean Morgan
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| [11] | UNPUBLISHED OPINION
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| [12] | Landowner Merrell Sager appeals the trial court's grant of summary judgment to Thurston County for violations of county building and sanitary codes, which the County claimed created a public nuisance. Sager argues that the trial court erred by (1) finding a public nuisance even though his unpermitted structures were not statutorily enumerated public nuisances and that the County offered no evidence of interference with others' use of their property; (2) authorizing the County to abate the so-called nuisance; (3) issuing an impermissibly broad search warrant; and (4) denying his discovery motions.
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| [13] | We affirm the trial court's grant of summary judgment on the building and sanitary code violation claims, and the abatement order for the building code violation, but we remand to the trial court to determine the appropriate remedy for the sanitary code violations. We vacate the trial court's order authorizing the County to search Sager's property without first obtaining an administrative search warrant. We reverse the grant of summary judgment on the public nuisance claim and remand the issue for trial. Finally, we affirm the trial court's denial of Sager's motion to compel.
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| [14] | FACTS
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| [15] | I. Violations
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| [16] | Sager did not file a report of proceedings in this case, and the facts surrounding the underlying violations are sparse.
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| [17] | Jeff Raley, a building inspector and code compliance officer with the Thurston County Development Services Department, went to Sager's property as a result of complaints of building and zoning code violations received by his department and verified that Sager was building a garage on the property without a permit. Raley notified Sager that he was violating Uniform Building Code (UBC) sec. 106, adopted by reference in Thurston County Building Code (TCBC) 14.20.011, for building without a permit. Two months later, the Thurston County code compliance coordinator issued Sager a civil infraction for this violation. The Thurston County District Court found that Sager had committed this infraction.
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| [18] | According to Raley, Sager had also constructed an on-site sewer system on his property 'without permits, inspections or approval by Thurston County' in violation of the Thurston County Sanitary Code (TCSC). Clerk's Papers (CP) at 43. Sager has never allowed the County access to this property for inspection.
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| [19] | II. Procedural History
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| [20] | In May 2002, the County filed a complaint alleging (1) violations of the building and sanitary codes; and (2) public nuisance. Sager filed an answer and alleged counterclaims.*fn1 Sager filed his first motion to compel discovery on October 8, 2002. The trial court apparently denied this motion without argument, but there is no order in the record.
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| [21] | The County moved for summary judgment in April 2003, and the court heard the motion on May 9, 2003. In the meantime, Sager filed a second motion to compel on May 2, 2003, arguing that the County had failed to respond to his second set of interrogatories and requests for production. He stated that he had contacted the County's attorney but was unable to Ssecure his agreement to answer this discovery.' CP at 45.
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| [22] | On May 16, 2003, the court granted the County's motion for summary judgment ruling that: (1) Sager violated TCBC 14.20.011 and .012 by failing to obtain the necessary permits; (2) Sager violated several sections of the Thurston County Sanitary Code, Article IV by constructing the on-site sewage system without obtaining the proper permits; (3) these violations constituted a public nuisance; (4) Sager must either remove the unpermitted structures or obtain the necessary permits within 60 days of the order; (5) the County is authorized to enter the property with 24-hours notice to inspect for violations; (6) if Sager failed to comply with the order, the County could enter Sager's property to abate the nuisance, bringing the Thurston County sheriff if necessary; and (7) the County could recover all abatement costs.
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| [23] | The County then moved for summary judgment on Sager's counterclaims and Sager moved for reconsideration. The court granted the County's summary judgment motion and denied Sager's May 2, 2002 motion to compel, his motion for CR 55 findings, and his motion for reconsideration. Sager appeals.
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| [24] | ANALYSIS
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| [25] | I. Standard of Review
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| [26] | When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is proper only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437. The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).
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| [27] | After the moving party has submitted adequate affidavits, the burden shifts to the nonmoving party to set forth specific facts sufficiently rebutting the moving party's contentions and disclosing the existence of a material issue of fact. Seven Gables, 106 Wn.2d at 13. The court should grant the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wn.2d at 437.
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| [28] | II. Remedies for Code Violations
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| [29] | Sager does not dispute that he is in violation of the building and sanitary codes. Thus, we affirm the trial court's grant of summary judgment on these claims. We now must determine whether abatement was the appropriate remedy under each code.
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| [30] | TCBC 14.20.012 specifically provides that abatement is an available remedy for failing to obtain a building permit.*fn2 On the other hand, abatement of the septic system is not a remedy set out in TCSC sec. 25, which permits the health officer to 'initiate enforcement or disciplinary actions, or any other legal proceeding authorized by law,' including 'orders' directed to the owner of the on-site sewage system constructed in violation of TCSC Article IV. TCSC sec. 25.2. Authorized orders are limited to: (1) '{o}rders requiring corrective measures necessary to effect compliance with this article'; and (2) '{o}rders to stop work and/or refrain from using any {on-site sewage system} . . . until all permits, certifications, and approvals required by this article are obtained.' TCSC sec.sec. 25.3.1, 25.3.2.
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| [31] | Thus, to the extent the trial court's order may be read to allow abatement of the septic system, we reverse and remand for further consideration of the appropriate remedy under the sanitary code.
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| [32] | III. Search
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| [33] | Sager objects to the trial court's broad grant of authorization to the County to enter and inspect his property. We agree and vacate the trial court's order.
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| [34] | The Fourth Amendment's warrant requirements apply to administrative searches. Camara v. Municipal Court, 387 U.S. 523, 534, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967); City of Seattle v. Leach, 29 Wn. App. 81, 84, 627 P.2d 159 (1981). Generally, warrants are required for administrative searches of both private and commercial premises. Camara, 387 U.S. at 532-33. Traditional exceptions to the warrant requirement apply, and Sager's consent to the County's search would obviate the need for an administrative warrant. See generally, Michigan v. Clifford, 464 U.S. 287, 297-98, 104 S. Ct. 641, 78 L. Ed. 2d 477 (1984). But Sager refuses to give consent, thus, the County must obtain a valid administrative search warrant based on adequate probable cause to search his property for violations.
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| [35] | '{A} lesser degree of probable cause is necessary to satisfy issuing an inspection warrant than is required in a criminal case.' Leach, 29 Wn. App. at 84 (citing Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978)). An administrative warrant may be based either on specific evidence of an existing violation or on a general inspection program based on reasonable legislative or administrative standards that are derived from neutral sources. Marshall, 436 U.S. at 320; Leach, 29 Wn. App. at 84.
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| [36] | At the time of the summary judgment argument in 2003, there was specific evidence that Sager was violating both the building code and the sanitary code. First, Thurston County Development Services Department received complaints about building and zoning code violations on Sager's property. Jeff Raley confirmed that Sager was building a garage on the property without a permit. The County issued Sager a civil infraction, and the district court found that Sager had committed this infraction.
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| [37] | There was also specific evidence of an existing violation of the sanitary code in 2004. During oral argument, Sager admitted that he had constructed an on-site septic system on his property in 1989 and had never obtained any permits for the system.
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| [38] | But whether there is evidence to satisfy the administrative warrant requirements should be decided upon each application for a warrant to enter Sager's property.
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| [39] | IV. Public Nuisance
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| [40] | Sager argues that the County has failed to establish its public nuisance claim. We agree. As the County acknowledges in its complaint, RCW 7.48.120 defines nuisance as:
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| [41] | Nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property.
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| [42] | RCW 7.48.130 defines a public nuisance as 'one which affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal.' The statute further lists public nuisances,*fn3 and any nuisance not listed in RCW 7.48.140 is deemed a private nuisance. RCW 7.48.150.
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| [43] | The County merely asserts in its complaint that Sager 'has caused a nuisance on his property as defined by RCW 7.48.120 and a public nuisance as defined by RCW 7.48.130,' without specifying which of the enumerated public nuisances it is claiming exist on Sager's property and without alleging any resultant damage. CP at 8. Sager counters that (1) none of his actions fall under the statutory definitions of public nuisance; and (2) the County has failed to show any damage or injury to surrounding property as RCW 7.48.120 requires. Viewing the facts in the light most favorable to Sager as the nonmoving party, there is a genuine issue of material fact as to whether Sager's unpermitted structures qualify as a nuisance under the statutes. Accordingly, we reverse the trial court's grant of summary judgment on the public nuisance claim.*fn4
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| [44] | V. Motions to Compel
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| [45] | Sager's claim that the trial court erred by denying his requests for discovery and denying his motions to compel discovery is unpersuasive. Decisions on discovery requests are within the trial court's discretion and we will not disturb them on appeal unless they are manifestly unreasonable or based on untenable grounds. Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 777, 819 P.2d 370 (1991). The court noted in its order denying the motion that it considered the May 2, 2003 motion and motion for reconsideration filed May 16, 2003. The order states simply 'there is not sufficient evidence to support a motion to compel.' CP at 120. Sager does not provide any of the report of proceedings, so the court's oral ruling on the matter is not part of the appellate record.
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| [46] | The County argued that Sager failed to comply with CR 26(i), which provides:
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| [47] | The court will not entertain any motion or objection with respect to rules 26 through 37 unless counsel have conferred with respect to the motion or objection. Counsel for the moving or objecting party shall arrange for a mutually convenient conference in person or by telephone. . . . Any motion seeking an order to compel discovery or obtain protection shall include counsel's certification that the conference requirements of this rule have been met.
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| [48] | (Emphasis added.)
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| [49] | In his May 2, 2002 motion, Sager stated that he 'contacted plaintiff's counsel on May 1 concerning this matter and was not able to secure his agreement to answer this discovery.' CP at 45. We must determine whether this is sufficient to satisfy CR 26(i).
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| [50] | In Rudolph v. Empirical Research Sys., Inc., 107 Wn. App. 861, 867, 28 P.3d 813 (2001), we determined that under CR 26(i), written correspondence regarding a motion to compel is insufficient to satisfy the requirement that the conference be 'in person or by telephone' and that although the parties exchanged correspondence, the moving party's counsel failed to provide a certification that the conference requirements were met.
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| [51] | We acknowledged in Case v. Dundom, 115 Wn. App. 199, 203, 58 P.3d 919 (2002), that Rudolph did not address 'the precise language needed to satisfy the {certification} requirement,' but that that decision 'emphasized that literal compliance with CR 26(i) was necessary.' Case, 115 Wn. App. at 203. We went on to say that Rudolph demonstrated 'the strict interpretive approach to the rule.' Case, 115 Wn. App. at 204. We further noted that 'Case submitted nothing else that {the court} can construe as a certification,' thereby indicating that a party moving to compel discovery could satisfy CR 26(i) by submitting something less than a formal certification that it had met the conference requirements. Case, 115 Wn. App. at 204.
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| [52] | Sager filed a letter with the court on May 23, 2002, one week after the court granted the summary judgment motion, reflecting that he and the County's attorney had conducted a discovery conference as CR 26(i) required. This letter satisfied the rule's certification requirement. See Case, 115 Wn. App. at 204 (court looked to the period between time motion was filed and ruling on the motion to see if party submitted sufficient certification).
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| [53] | Despite Sager's compliance with CR 26(i), he still cannot show that the trial court abused its discretion by denying his motion to compel. He argues only that 'the Court entered an order denying {his} requests for discovery without even a cursory examination to determine if they were relevant.' Br. of Appellant at 17. This is contrary to the court's ruling on the motion, which states that it 'considered the arguments of the parties, declarations and pleadings filed in this action.' CP at 120. Sager fails to demonstrate that the trial court exercised its discretion in a manifestly unreasonable manner or on untenable grounds. Puget Sound Blood Ctr., 117 Wn.2d at 778 (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). Thus the court did not abuse its discretion in denying the motion.
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| [54] | VI. Owner Permit Requirements
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| [55] | A. Contractor Registration Provisions
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| [56] | Sager asserts that the exemption in RCW 18.27.090(6) that states that the contractor registration provisions do not apply to '{a}ny construction, alteration, improvement or repair of personal property performed by the registered legal owner' relieve him of any obligation to obtain a building permit. Br. of Appellant at 18-19 (emphasis added). This statute does not relieve Sager of his obligation to obtain a building permit under Thurston County Code (TCC) 14.20.011; it merely states that he does not have to register as a contractor to work on personal property on his land. Sager was not working on personal property; he had constructed a house and a garage, which are both considered real, not personal, property.*fn5 1 The County alleged that Sager violated TCC by failing to obtain a building permit for construction on his property in violation of TCC 14.20.011 and .0 12. TCC 14.20.011 provides that 'no building or structure regulated by this code shall be erected, constructed, enlarged, altered, repaired, moved, improved, removed, converted or demolished unless a separate permit for each building or structure has first been obtained from the building official.' This applies to real property, and is thus not inconsistent with RCW 18.27.090(6). Sager does not deny that he built his home and garage on his property in violation of the permit requirement, and thus did not raise any issue of material fact on these claims. Accordingly, summary judgment on the County's first cause of action was proper and we affirm.*fn6
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| [57] | B. Plumbing Laws
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| [58] | Sager then argues that RCW 18.106.150 supersedes any local requirement that he obtain permits for plumbing done on his own property. RCW 18.106.150 exempts landowners from obtaining a license or hiring a certified plumber to do work on their own property. This statute does not address permit requirements. The County alleged that Sager violated the County's Sanitary Code by failing to secure the required permits for constructing an on-site sewage system. The County code is not inconsistent with or superseded by RCW 18.106.150. Sager does not deny that he violated the Sanitary Code by failing to obtain the proper permits and again fails to raise a genuine issue of material fact, which would preclude summary judgment and, thus, we affirm summary judgment on this issue.
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| [59] | Affirmed in part, reversed and vacated in part, and remanded.
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| [60] | A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
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| [61] | Van Deren, J.
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| [62] | We concur:
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| [63] | Morgan, A.C.J.
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| [64] | Bridgewater, J.
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| | Opinion Footnotes |
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| [65] | *fn1 Sager alleged (1) violations of 42 U.S.C. sec.sec. 1983, 1985, and 1988; (2) unlawful taking; and (3) civil conspiracy.
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| [66] | *fn2 TCBC 14.20.012 states: 'Notwithstanding the existence or use of any other remedy, the Building Official may seek legal or equitable relief to enjoin any acts or practices and abate any conditions which constitute or will constitute a violation of this chapter or other regulations herein adopted.'
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| [67] | *fn3 RCW 7.48.140 provides: It is a public nuisance: (1) To cause or suffer the carcass of any animal or any offal, filth, or noisome substance to be collected, deposited, or to remain in any place to the prejudice of others; (2) To throw or deposit any offal or other offensive matter, or the carcass of any dead animal, in any watercourse, stream, lake, pond, spring, well, or common sewer, street, or public highway, or in any manner to corrupt or render unwholesome or impure the water of any such spring, stream, pond, lake, or well, to the injury or prejudice of others; (3) To obstruct or impede, without legal authority, the passage of any river, harbor, or collection of water; (4) To obstruct or encroach upon public highway, private ways, streets, alleys, commons, landing places, and ways to burying places or to unlawfully obstruct or impede the flow of municipal transit vehicles as defined in RCW 46.04.355 or passenger traffic, access to municipal transit vehicles or stations as defined in {}RCW 9.91.025(2)(a), or otherwise interfere with the provision or use of public transportation services, or obstruct or impede a municipal transit driver, operator, or supervisor in the performance of that individual's duties; (5) To carry on the business of manufacturing gun powder, nitroglycerine, or other highly explosive substance, or mixing or grinding the materials therefor, in any building within fifty rods of any valuable building erected at the time such business may be commenced; (6) To establish powder magazines near incorporated cities or towns, at a point different from that appointed by the corporate authorities of such city or town; or within fifty rods of any occupied dwelling house; (7) To erect, continue, or use any building, or other place, for the exercise of any trade, employment, or manufacture, which, by occasioning obnoxious exhalations, offensive smells, or otherwise is offensive or dangerous to the health of individuals or of the public; (8) To suffer or maintain on one's own premises, or upon the premises of another, or to permit to be maintained on one's own premises, any place where wines, spirituous, fermented, malt, or other intoxicating liquors are kept for sale or disposal to the public in contravention of law; (9) For an owner or occupier of land, knowing of the existence of a well, septic tank, cesspool, or other hole or excavation ten inches or more in width at the top and four feet or more in depth, to fail to cover, fence or fill the same, or provide other proper and adequate safeguards: PROVIDED, That this section shall not apply to a hole one hundred square feet or more in area or one that is open, apparent, and obvious.
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| [68] | *fn4 Both parties raised the issue of nuisance per se in their briefs but did not do so at the trial court, so, as we stated in note 3, supra, this issue is not properly before this court for consideration. RAP 2.5(a).
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| [69] | *fn5 'Personal property' is defined as: 'Any movable or intangible thing that is subject to ownership and not classified as real property.' Black's Law Dictionary at 1233 (7th ed. 1999) (emphasis added). '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 either corporeal (soil and buildings) or incorporeal (easements).' Black's at 1234 (emphasis added).
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| [70] | *fn6 Sager also argues that RCW 18.27.090(12) exempts him from the permitting requirement because he was working on his property. He does not argue this in his brief on appeal. Moreover, this subsection of the statute does not exempt Sager from obtaining building permits -- it merely exempts him from the requirement to register as a contractor. He mischaracterizes the language in RCW 18.27.110. The statute prohibits the County from issuing a building permit to any 'contractor required to be registered under this chapter without verification that such contractor is currently registered as required by law.' RCW 18.27.110(1) (emphasis added). As Sager acknowledges, he is not required to register as a contractor, so RCW 18.27.110(1) does not prelude the County from issuing him a building permit.
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