Moses Lake loses land use lawsuit

SPOKANE — A Washington state appellate court upheld a decision prohibiting Moses Lake from requiring a homeowner to change a vacant lot.

The Washington state Court of Appeals Division Three ruled in favor of Anthony and Pam Holiday, Moses Lake homeowners, after a Grant County Superior Court decided code violations issued in 2009 violated a 2008 prohibition order.

SPOKANE — A Washington state appellate court upheld a decision prohibiting Moses Lake from requiring a homeowner to change a vacant lot.

The Washington state Court of Appeals Division Three ruled in favor of Anthony and Pam Holiday, Moses Lake homeowners, after a Grant County Superior Court decided code violations issued in 2009 violated a 2008 prohibition order.

The Holidays’ own a vacant lot next to their home where they park vehicles and were issued an infraction by Moses Lake in March 2006, according to court records. The officer said the Holidays needed to change the boundary line so the two lots became one and place the vehicles on a “city-approved surface.” The change would cost the homeowners about $3,000.

“A Grant County District Court commissioner, sitting as a judge pro tem for the municipal court, responded, ‘That is the dumbest thing I ever heard,’ and dismissed the infraction,” according to the decision.

Moses Lake City Manager Joe Gavinski said the city decided not to appeal the commissioner’s decision, because in the city’s ordinance it states each day of a violation counts as a new violation.

“We simply thought we had another violation. We thought it was easier to simply do that then go through the process on the first violation,” he said. “We believed the court commissioner based his dismissal on a personal opinion. The city thought this would be heard again with another infraction being issued.”

The city issued three more violation notices between March 7 and April 27, 2007, before suing them in June 2007 to collect an alleged $5,000 civil penalty. After the city notified the Holidays about a city council hearing to determine whether their property was a nuisance, the couple sued the city.

“On Jan. 4, 2008, the superior court prohibited the city from proceeding against the Holidays for violations of (the Moses Lake city code) arising out of their use of their lot and from collecting any fines or penalties for such violations with one exception for change of use,” according to court records.

The city issued another infraction in April after changing the ordinance. The Holidays brought the city to court for violating the order. Grant County Superior Court Judge John Antosz found the city violated the 2008 prohibition order, according to court records. The appellate court agreed with Antosz, pointing out the 60-day deadline to appeal the prohibition order had passed.

“The writ of prohibition prohibited the city from taking action against the Holidays except for a changed use. The record does not show a changed use. Thus, the city’s April 2009 code enforcement action violated the writ of prohibition,” according to the appellate court decision.

The city argued changing the ordinance in 2008 created a new law, allowing the city to issue new  violations, according to court records. The court disagreed, stating the section of the code the city used hadn’t changed.

Gavinski said the city plans to appeal the decision, because the court didn’t address the issue of each day a violation occurs becoming a new violation.

“How do you get compliance?” he asked. “We’d like to ask the supreme court. We don’t think we should be stuck.”

The Holiday’s attorney Harry Ries said they will continue with the process. He disagreed with Gavinski, saying the court did address the argument about the new violation.

“Obviously the court of appeals didn’t agree, nor did the trial court,” he said. “You have an identical ordinance. You can’t say every day is a new violation ... All the city did was change the number of the ordinance.”