Paul W. Post, Petitioner, v. The City of Tacoma et al., Respondents, 167 Wash. 2d 300

J.M. Johnson, J. ¶1 The city of Tacoma’s building code enforcement department found many of Paul Post’s properties were in violation of Tacoma’s building codes and assessed hundreds of thousands of dollars in civil penalties. Post cooperated with Tacoma for some repairs but ultimately failed to bring all his properties into compliance. Post also sought to appeal many of the fines, but in most cases Tacoma denied a hearing. Post sued, seeking to bar Tacoma from enforcing its building code against him on numerous grounds, including that his rights to due process were violated. The trial court granted

summary judgment for Tacoma on the merits. The Court of Appeals affirmed, holding that all Post’s claims were barred because he failed to follow the procedures of the Land Use Petition Act (LUPA),

chapter 36.70C RCW. We reverse, holding that LUPA does not bar Post’s claims and the Tacoma code procedure violates due process. Facts and Procedural History ¶2 This case comes before the court on cross motions for

summary judgment. The material facts are complicated but undisputed. Paul Post owns numerous properties located in Tacoma, many of which are rental properties. This action arises out of Tacoma’s assessment of penalties against Post because 24 of his Tacoma properties were repeatedly found to violate city ordinances. ¶3 Tacoma regulates buildings through a Minimum Building and Structures Code (MBSC). Ch. 2.01 Tacoma Municipal Code (TMC). Under Tacoma’s MBSC, structures are assigned points for various violations. If a structure accumulates 50 points total at any time, that property is classified as substandard.

TMC 2.01.060(D)(4). If such a building also has problems that are considered more serious, it may be deemed derelict and unfit for human occupancy. TMC 2.01.060(E)(1). When a property has been classified as substandard or derelict, the MBSC requires that the owner be notified by letter of the violations and the actions to mitigate. TMC 2.01.060(D)(4)(a), tbl. A at 2-21 (providing for “Formal Notification of Infractions and Pending Penalties”). The owner has 30 days to respond to the letter and negotiate a

schedule for correcting the violations. TMC 2.01.060(D)(4)(a). The owner may also seek administrative review of this initial notice of violation. TMC 2.01.060(D)(6), (E)(5). ¶4 Owners are subject to civil penalties if they do not respond to the initial notice of violation or if violations are not corrected. TMC 2.01.060(D)(4)(b), (E)(3)(b). The first fine is $125 per property; the second, third, and fourth fines are $250 per property. TMC 2.01.060, tbl. F at 2-27. These fines are mandatory. TMC 2.01.060(D)(4)(b)-(e), (E)(3)(b)-(e).

The owner may seek administrative review of the first fine, but the MBSC makes no provision for review of any subsequent fines. TMC 2.01.060(D)(6), (E)(5). After each additional fine is assessed, another notification letter is sent, providing decreasing amounts of time for the owner to respond. Id. If owners still fail to respond to letters or to negotiate a repair

schedule after four fines are assessed, officials in the Building and Land Use Services Division have discretion to assess fines every calendar day. TMC 2.01.060(D)(4)(f), (E)(3)(e). Unlike the first four fines, daily fines are not mandatory but may be imposed until the violations have been corrected. Id. The MBSC contains no express procedure for administrative review of the later imposition of daily fines. ¶5 Post began purchasing property in Tacoma in the 1960s. Many of the properties were “run down.” Clerk’s Papers at 214.

Post undertook to make some repairs over the years, even gutting and rebuilding some properties. But many other properties remained in disrepair, leading to complaints by neighbors. ¶6 In 1999, Tacoma inspected many of Post’s properties and found 13 properties were substandard and 15 were derelict and uninhabitable. For one example, a single property was cited for pigeon infestation, missing smoke detectors, lack of heat in all habitable rooms, and defective exit stairs. Tacoma sent notice of violation letters for each property, notifying Post that the properties were either substandard or derelict.

These letters described the violations and advised Post how to seek administrative review of the violation notice. Post was given 30 days to respond to the notices and to negotiate a

schedule with Tacoma for correcting the problems. ¶7 For most of his noncompliant properties, Post responded to the notices by agreeing to work schedules. Repair schedules varied widely depending on the nature of the violations. For example, for one property Tacoma gave Post six months to paint the exterior, replace doors, and provide heat to bathrooms. However, Post did not respond to at least two of the notices of violation. ¶8 Post failed to comply with the agreed repair schedules for 17 properties. In response to Post’s noncompliance, Tacoma began issuing civil penalties in the amount of $125 per property pursuant to TMC 2.01.060(D)(4)(

b) and (E)(3)(b). The penalties were described in documents titled “Civil Infraction Penalty Assessment” that accompanied notice of violation letters describing 30 day appeal rights pursuant to TMC 2.01.060(D)(6)(

b) and (E)(5)(b). Although Post occasionally sought administrative review of these notices of violation and fines, his appeals were always untimely, with one exception. Post’s sole timely appeal was considered and rejected by a hearing examiner, and that ruling was affirmed on appeal. ¶9 Tacoma continued to inspect Post’s noncompliant properties. Post was not fined for those properties that were being repaired on schedule.

For others, where Post either had not responded to the notice of violation letters or did not agree to repair schedules, Tacoma imposed second, third, and fourth penalties of $250 per property. ¶10 In 2000, Tacoma began imposing $250 penalties on some properties on a daily basis. Tacoma again provided notice of violation letters, similar to earlier letters but not including information on appeal rights. Post attempted to appeal, but Tacoma denied the appeal as untimely, citing the MBSC’s requirement that notices of violation or first penalties must be appealed within 30 days.

By 2005, total accumulated penalties ranged from $4,000 to $84,000 per property, and Post claims he paid over $140,000 to Tacoma. Some of the past due amounts were referred to a collection agency. ¶11 Post instituted this action in Pierce County Superior Court, asking the court to declare the MBSC, the fining procedure, and the fines levied against him unconstitutional, and to enjoin enforcement of the MBSC against him. Tacoma counterclaimed for $411,000 in unpaid penalties. ¶12 On cross motions for

summary judgment, Pierce County Superior Court granted

summary judgment in favor of Tacoma. The court held that Post failed to exhaust his administrative remedies under

chapter 36.70C RCW (LUPA); that Tacoma’s fines were not unconstitutionally excessive, did not constitute double jeopardy, did not violate Post’s due process rights, and did not violate his civil rights under 42 U.S.C. § 1983; and that the penalties did not exceed Tacoma’s authority under

chapter 7.80 RCW. The court dismissed Post’s damages claim and his amended complaint and granted Tacoma’s

summary judgment motion. Post appealed. ¶13 The Court of Appeals held that Tacoma’s notice of violation and penalties were land use final determinations subject to the procedural requirements of LUPA, including a 21-day deadline for filing and serving; Post’s initial request for monetary damages had been dismissed; and Post’s remaining claims for injunctive and declaratory relief were barred by LUPA. See Post v. City of Tacoma, 140 Wn. App. 155, 165 P.3d 37 (2007). The Court of Appeals affirmed the trial court’s grant of

summary judgment without reaching the merits of Post’s constitutional claims. Post filed a petition for review with this court, which was granted. Post v. City of Tacoma, 163 Wn.2d 1038, 187 P.3d 268 (2008). Standard of Review ¶14 When reviewing an order of

summary judgment, this court engages in the same inquiry as the trial court. Morin v. Harrell, 161 Wn.2d 226, 230, 164 P.3d 495 (2007).

Summary judgment is rendered where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. CR 56(c). All facts and reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party. Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 693, 169 P.3d 14 (2007). Statutory

interpretation is a question of law that this court reviews de novo. In re Pers. Restraint of Cruz, 157 Wn.2d 83, 87, 134 P.3d 1166 (2006). The applicability of the constitutional due process guaranty is a question of law subject to de novo review. Wash. Indep. Tel. Ass’n v. Wash. Utils. & Transp. Comm’n, 149 Wn.2d 17, 24, 65 P.3d 319 (2003). Analysis A. LUPA’s Application to Post’s Claims ¶15 The threshold issue in this case is whether LUPA applies to Tacoma’s notices of violations and assessments of penalties. Post did not comply with LUPA procedures, which include a 21-day deadline for filing.

We hold that LUPA does not apply to bar these claims and, therefore, reach the merits of Post’s claims. ¶16 Prior to enactment of LUPA, an aggrieved person could challenge a local jurisdiction’s land use decision by petitioning for a writ of certiorari in the courts. Chelan County v. Nykreim, 146 Wn.2d 904, 916-17, 52 P.3d 1 (2002). The writ, originating in the common law, is both constitutional and statutory in Washington. See Const, art. IV, § 6; ch. 7.16 RCW. In 1995, the legislature enacted LUPA,

chapter 36.70C RCW. The legislature’s purpose was “to reform the process for judicial review of land use decisions made by local jurisdictions, by establishing uniform, expedited appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely judicial review.” RCW 36.70C.010; see also James v. Kitsap County, 154 Wn.2d 574, 115 P.3d 286 (2005) (surveying statute). LUPA procedures replaced only the writ of certiorari as the vehicle for appealing land use decisions. RCW 36.70C.030(1).

Thus, LUPA applies only to actions that fall within the statutory definition of a land use decision. ¶17 “Land use decision” is defined under LUPA as a “final determination” by a local jurisdiction on one of three subjects: (

a) An application for a project permit . . . ; (

b) An interpretative or declaratory decision regarding the application to a specific property of zoning or other ordinances or rules regulating the improvement, development, modification, maintenance, or use of real property; and (

c) The enforcement by a local jurisdiction of ordinances regulating the improvement, development, modification, maintenance, or use of real property. However, when a local jurisdiction is required by law to enforce the ordinances in a court of limited jurisdiction, a petition may not be brought under this chapter. Former RCW 36.70C.020(1) (1995) (emphasis added).

We have previously held that land use decisions under LUPA include the granting of a special use permit, the granting of a building permit, the imposition of an impact fee as a condition on the issuance of a building permit and approval of a site-specific rezone. Habitat Watch v. Skagit County, 155 Wn.2d 397, 409, 120 P.3d 56 (2005) (special use permit); James, 154 Wn.2d at 584 (impact fees); Nykreim, 146 Wn.2d 904 (building permits); Wenatchee Sportsmen Ass’n v.

Chelan County, 141 Wn.2d 169, 4 P.3d 123 (2000) (site-specific rezone). ¶18 This court has never had the occasion to determine whether LUPA applies to a city’s determination of violations and assessments of penalties. Our objective in interpreting a statute is to determine legislative intent. State v. Jacobs, 154 Wn.2d 596, 600-01, 115 P.3d 281 (2005). When statutory language is plain and unambiguous, the statute’s meaning must be derived from the wording of the statute itself. Nykreim, 146 Wn.2d at 926.

The “plain meaning” of a statutory provision is to be discerned from the ordinary meaning of the language at issue, as well as from the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole. Jacobs, 154 Wn.2d at 600-01. A reading that produces absurd results should be avoided, if possible, because we presume the legislature does not intend them. State v.

Vela, 100 Wn.2d 636, 641, 673 P.2d 185 (1983). ¶19 Because LUPA does not authorize petitions on the subject of ordinances that must be enforced “in a court of limited jurisdiction,” former RCW 36.70C.020(l)(c), we must determine whether the MBSC is such an ordinance. We hold that it is. The MBSC provides for the issuance of notice of violation letters and the assessment and collection of civil penalties. These actions are elements of what

chapter 7.80 RCW calls “a system of civil infractions.” In fact, the MBSC explicitly refers to violations as infractions. And, the notice letters Tacoma sends to property owners designate violations of the ordinance as civil infractions. Thus, in both name and substance, violations of Tacoma’s MBSC are civil infractions. ¶20 The authority of local jurisdictions to issue civil infraction notices and impose and enforce related penalties is governed by

chapter 7.80 RCW. This statute provides local jurisdictions two options for issuing and enforcing civil infractions. Under the default/judicial track, the entire civil infraction system is administered and supervised by the courts, from issuance of the notice to the collection of penalties. Infraction jurisdiction resides exclusively in the district and municipal courts, i.e., courts of limited jurisdiction. RCW 7.80.010(l)-(4), .050(5) (“A notice of infraction shall be filed with a court having jurisdiction . . . .”).

The statute does provide that a local jurisdiction may enforce civil infractions “pursuant to its own system established by ordinance.” RCW 7.80.010(5). But, to the extent cities do not establish a system for hearing and determining infractions, the judicial track is by default the system authorized by law. ¶21 Tacoma’s MBSC provides for a hearing to appeal only the first notice of violation and first civil penalty. However, Tacoma provides no process for hearing and determining subsequent infractions.

Where the city has no such process, it cannot be said that it has “its own system” in the sense intended by the legislature in RCW 7.80-.010(5). Such

interpretation would allow Tacoma to impose unlimited punishment on civil defendants, a result that the legislature did not authorize. Absent its own complete system, Tacoma is required by

chapter 7.80 RCW to follow the legislature’s default system and enforce its infractions in courts of limited jurisdiction. LUPA does not apply when a local jurisdiction is required by law to enforce the ordinance at issue in a court of limited jurisdiction. Former RCW 36.70C.020(l)(c). Moreover, even when a claim pertains to a “land use decision,” if the remedy sought is for money damages or compensation, as is the case here, that claim is “not subject to the procedures and standards, including deadlines” provided in

chapter 36.70C RCW for review. RCW 36.70C.030(l)(c). Therefore, Post’s claims with regard to all infractions and penalties are not barred by LUPA. B. Procedural Due Process Claim ¶22 Post claims that the MBSC violates his due process rights because it provides for an appeal only of the initial notice of violation and first monetary penalty, and not any penalties assessed thereafter. We agree. ¶23 Post argues that he ought to have an opportunity to be heard on each separate infraction, even if they are issued (i.e., penalties are being assessed) daily for the same violations.

Tacoma objects that this would allow owners like Post to relitigate the same violations. Tacoma claims that all subsequent penalties following an initial violation are related enforcement actions and should not require separate opportunities to be heard. ¶24 Though the procedures may vary according to the interest at stake, the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

To determine whether existing procedures are adequate to protect the interest at stake, a court must consider the following three factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335; Tellevik v. 31641 W.

Rutherford St., 120 Wn.2d 68, 78, 838 P.2d 111 (1992) (adopting and applying the Mathews test). ¶25 The private interest Post seeks to vindicate is the right against the assessment of erroneous or excessive monetary penalties. The risk of erroneous deprivation is apparent. Tacoma asserts that every penalty was “related” to an initial determination of violation and that it assessed additional penalties only after reviewing each property for compliance.

Although Post was provided an opportunity to be heard on the initial findings, he had no similar opportunity to bring potential errors to Tacoma’s attention with regard to any subsequent findings or penalties. In other words, the addition of any procedural safeguards would provide exceedingly greater mitigation against the risk of erroneous deprivation, rather than no safeguards at all. ¶26 Building standards serve the important interests of protecting public safety, protecting property values, and preventing declining neighborhoods.

And we recognize that municipal governments have a strong interest in the efficient administration and enforcement of their building codes. But Tacoma does not claim that providing an opportunity for Post to be heard on each separate infraction would be an overwhelming administrative burden. Rather, Tacoma complains that such hearings would give Post an opportunity to relitigate the underlying violations. This argument is misleading because Tacoma’s determination to assess additional penalties is based on property conditions at the time of each determination.

Nothing prevents Tacoma from limiting the scope of a hearing on additional infractions to the conditions of the property at the time it is found in violation, preventing the underlying violations from being relitigated. A notable illustration is when the owner has made some repairs — as Post did with many of his properties — but the inspector finds the property (still) noncompliant.

Owners such as Post may be heard to contend that such repairs have brought the property into compliance without being allowed to relitigate previous violations. ¶27 Where a local jurisdiction assesses civil penalties for noncriminal violations of law but provides no opportunity for civil defendants to be heard, the fundamental due process right to an opportunity to be heard at a meaningful time is violated. Because Tacoma has no procedures in place for civil defendants to appeal any but the first penalty, we need not speculate about what procedure might satisfy due process.

It is sufficient to hold that, where local jurisdictions issue infractions (finding violations and assessing penalties), there must be some express procedure available by which citizens may bring errors to the attention of their government and thereby guard against the erroneous deprivation of their interests. Conclusion ¶28 The MBSC violates Post’s procedural due process rights.

The sections of the MBSC purporting to authorize the unlimited and unreviewable issuance and enforcement of subsequent civil infractions and penalties without any system of procedural safeguards are unconstitutional on their face and as applied to Post. Accordingly, we reverse the Court of Appeals decision and remand with instructions that

summary judgment be entered for Post. Sanders, Chambers, Owens, and Stephens, JJ., concur. Additionally, Post asserts that when total penalties on a property reached $1,000, Tacoma filed a certificate of complaint with the county auditor to be attached to the title of the property, as required by the MBSC. Post asserts that these certificates act as liens and prevent him from selling or refinancing the properties. Post also sought reimbursement of his fines and monetary damages. Those claims were either dismissed by the trial court or abandoned by Post prior to appeal.

Post asserts he has refiled his damages claim under a separate cause of action. We recently noted that applying LUPA is consistent with our policy of favoring finality in land use decisions. Twin Bridge Marine Park, LLC v. Dep’t of Ecology, 162 Wn.2d 825, 843, 175 P.3d 1050 (2008). That policy applies in the enforcement context. See Samuel’s Furniture, Inc. v. Dep’t of Ecology, 147 Wn.2d 440, 457, 54 P.3d 1194 (2002). The statute provides exceptions for: (

a) Judicial review of: (

i) Land use decisions made by bodies that are not part of a local jurisdiction; (ii) Land use decisions of a local jurisdiction that are subject to review by a quasi-judicial body created by state law . . . ; (

b) Judicial review of applications for a writ of mandamus or prohibition; or (

c) Claims provided by any law for monetary damages or compensation.... RCW 36.70C.030(1). Post originally made a claim for damages but abandoned it prior to appeal. See supra note 2. Accordingly, it is not necessary to decide whether Tacoma’s actions were ‘land use decisions” within the meaning of LUPA. See former RCW 36.70C.020(l)(a)-(b). Similarly, this court defines infractions as “noncriminal violations of law defined by statute [or ordinance].” Wash. Infraction Rules for Courts of Limited Jurisdiction (IRLJ) 1.1(a), 1.2(i). See ch. 2.01 TMC, tbl. A at 2-21 (providing for “Formal Notification of Infractions and Pending Penalties”). Although the legislature enacted

chapter 7.80 RCW to decriminalize various violations of law then classified as misdemeanors, its scope is broad and includes all violations of local law and ordinances designated as civil infractions. See RCW 7.80.005, .010(1). As noted above, Tacoma’s MBSC and Tacoma’s own correspondence designate violations of the ordinance as civil infractions. Not coincidentally, many other Tacoma ordinances explicitly incorporate or refer to

chapter 7.80 RCW and other statutes governing infractions. See, e.g., TMC 3.12.060(C)(2) (cross-referencing

chapter 7.80 RCW); TMC 4.15.020, .040 (adopting by reference RCW 77.15.060 and 79A.60.020, which cross-reference infraction scheme in

chapter 7.84 RCW); TMC 5.16.080(A)(1) (incorporating traffic infraction rules of

chapter 46.63 RCW); TMC 8.27.030 (incorporating definition of “civil infraction” from

chapter 7.80 RCW); TMC 8.29.060(E) (referencing

chapter 7.80 RCW). See RCW 7.80.080 (notice of civil infraction must be filed in court; response to notice of infraction must be sent to court; penalties must be paid to court clerk; court must enter order recording defendant’s response; court assesses the penalty). For a similar building standards code that provides for judicial enforcement of civil infractions, see Seattle Municipal Code (SMC) 22.206.280(

G) and .315 (building code enforcement actions must be brought in Seattle Municipal Court). The Seattle code also provides for special assessments and liens on property, see SMC 22.208.100, .110, which must also be judicially enforced. See, e.g., ch. 82.32 RCW. This arrangement is reflected in the infractions rules promulgated by this court. See IRLJ 2.3 (except as otherwise specifically provided by statute or ordinance, an infraction case shall be brought in the district court district or the municipality where the infraction occurred).

Post also argues that the MBSC’s penalty provisions exceed Tacoma’s statutory authority under RCW 7.80.120, that the MBSC’s penalty provisions violate the excessive fines clause, and that the accumulation of penalties violates substantive due process. Because we grant

summary judgment for Post on the procedural due process issue, we do not address Post’s other claims. We note that Washington’s largest municipality has opted to follow the judicial track of

chapter 7.80 RCW. SMC 22.206.280(G), .315 (building standards enforcement actions must be brought in Seattle Municipal Court).