Sue Lani Madsen: Private property rights include the right to be an eyesore

Every neighborhood has at least one. The house where the lawn is more weeds than grass, if there’s anything green at all. Peeling paint, missing shingles, broken glass replaced with a sheet of plastic to make it through the winter. Or perhaps windows efficiently boarded up by a bank after foreclosure.

Sometimes that house is also a home, and the homeowners may be doing the best they can with limited resources. It doesn’t help when they are hit with administrative fees that could lead to foreclosure. And it almost happened to Henry Pierce, owner of the historic Eikenbary-Pierce house.

Pierce has been doing much of the restoration work himself over the last 10 years. Progress has been interrupted by family illness, recovery from a motorcycle accident and money. Always money.

Pierce’s first priorities were to repair the rubble foundation and the roof before starting on the more glamorous qualities of the 1911 house. It left an unappealing mess in the yard while underway. The neighbor across the street filed a complaint, thinking the house had been abandoned when Pierce was unable to work on it one summer.

The city of Spokane, like many municipalities, has a Code Enforcement office to respond to complaints about problem properties. The process is straightforward, the implementation is complex. One person’s peeling paint may be another’s shabby chic. There are reasons some private property owners seek out, or should, the iron hand of a homeowners association if community aesthetic standards are essential to their happiness. Private property rights include the right to be an eyesore.

Cities and counties have the authority under RCW 35.80 to adopt rules to protect the interest of the community when a building is determined to be “dangerous or injurious to the health or safety of the occupants of such dwelling … the occupants of neighboring dwellings, or other residents of such municipality.” The grounds for making a determination require judgment calls on the part of Code Enforcement staff and a quasi-judicial role for the building official. It all takes time, costs public money and results in administrative fees to the property owner.

According to Susan Freeman, of Moses Lake, trustee for the lender on the Eikenbary-Pierce restoration project, Pierce was forced to spend more than half of what he borrowed on fees to prevent the property from going into foreclosure. “It was $4,500 that could have gone to making further repairs,” said Freeman. “They can levy fines until they’re blue in the face, it’s the way they’re collecting them that’s unconstitutional.”

Jason Ruffing, of the city of Spokane Code Enforcement division, disagrees that the fees are a fine. “It’s just the reality of a lot of public dollars being spent on a piece of private property,” said Ruffing. “The goal is to see the conditions resolved through actions of the property owner.”

In the case of a nuisance property where the city takes action to make repairs or demolish a building, the out-of-pocket costs to the city can be recovered under state statute as “a lien against the property which shall be of equal rank with state, county and municipal taxes,” Ruffing said. That means if unpaid after three years, the county treasurer must start tax foreclosure.

Freeman questions the city’s treating administrative fees the same as the cost of physical work as defined by RCW 35.80. “No one should lose their property over administrative fees,” she said. Even the original complaining neighbor attended one of the last hearings and said leave this man alone, according to Freeman.

In November 2018, Rep. Marcus Riccelli requested an informal attorney general’s opinion on whether the administrative fees should be treated as taxes. Asked for an update this week, Brionna Aho, communications director for the attorney general’s office, replied by email that “it’s important to remember that if the legal issue in question were simple, it would not require an AGO Opinion. Furthermore, if Sen. Riccelli’s specific question were simple, it would already be complete.”

For property owners of limited means ensnared in a cycle of accumulating fines, the answer may not be simple but it’s essential. While an AGO opinion does not have the force of law, it can be the basis for the Legislature or the City Council to clarify the law.