                                                                               f ILEArD+
                                                                        COURT OF APPEALS
                                                                              DIVISION 11

                                                                      2014 DEC   30 A9 9: 49
                                                                       STATE OF WASHINGTON
                                                                       BY
                                                                               GEC




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II

LEWIS COUNTY           and   DIANA YU, MD,                               No. 45578 -1 - II

Lewis County Health Officer,

                                   Appellants,


         v.




GOLDEN UNICORN FAMILY TRUST,                                      UNPUBLISHED OPINION
JACK A. NORTON, as trustee and as an
individual, R. LEO BELL, as trustee and as an
individual, and VICTOR BONAGOFSKI, as
trust representative and as an individual,


                                   Respondents.


         JOHANSON, C. J. —      Lewis County ( County) appeals the trial court' s decision that the

County is not entitled to recoup personnel costs incurred in abating a nuisance on real property

from the property'   s owners or occupiers.      It argues that the trial court erred in ignoring a Lewis

County   Code ( LCC)   provision   that specifically allows recovery for   personnel   costs   incurred in the
No. 45578 -1 - II



abatement.    We agree, vacate the judgment, and remand for entry of a new judgment to include

the personnel costs. 1

                                                    FACTS


        In 2004, the County filed a complaint against Golden Unicorn Family Trust, Victor

Bonagofksi, Jack A. Norton,         and   R. Leo Bell (Respondents),   alleging that they were storing solid

waste and vehicles on the property located at the 4000 block of Harrison Avenue, Centralia, Lewis

County (specifically, 4020 Harrison Avenue).2 In February 2013, the County moved for summary
judgment and requested a warrant of abatement based on violations of Title 8, chapters 5 and 45


of the LCC.3

        The   parties    appeared   on    March 22, 2013, for   argument.     The trial court ruled in the


County' s favor, finding that Respondents violated the LCC by maintaining solid waste and hulk

vehicles on their property. It declared the violations a nuisance and awarded the County a warrant

of abatement. With respect to abatement costs, the trial court provided,


        Lewis County and the Lewis County Sheriffs Office or their respective designees
        are authorized to abate the nuisance on the property and to use any proceeds from
        said abatement, including but not limited to any revenue derived from the disposal
        of each vehicle, to pay for said abatement. Any costs in excess of the proceeds of




1 A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 14 and then referred it to a panel of judges.


2 The registered owner of the subject property was the Golden Unicorn Family Trust. Bonagofski
was in possession of the property and was listed in the summons and trial court documents as a
trust representative. Bell is a trustee for the trust and filed the Respondents' brief. Norton is listed
as another trustee.


3 LCC 8. 05. 070 makes it unlawful for an owner or occupant to " maintain hulk vehicles on real
property."  Reply Br. of Appellant at 3. LCC 8. 45. 040         makes an owner or occupant responsible
for permitting solid waste storage on the property.
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No. 45578 -1 - II



          the abatement are to be borne by the Defendants and may, without limitation,
          constitute a lien against the property.

Clerk' s Papers at 38.


          The County abated the nuisance. It inventoried the property and provided a notice for each

of   the 194    vehicles stored on    the property.      In June 2013, it also hired a third party contractor to

perform the physical labor to remove the waste and vehicles. County personnel wages and benefits

for the time spent on the inventory, preparing the notices, and managing the contractor totaled

 11, 827. 05.      The    County    also   paid   the   sheriffs     office $     4, 703. 82 to    provide      security.   The


contractor, who was allowed to keep the profits from recycling the vehicles, ultimately paid the

County $ 5, 775. 00.

          The County requested reimbursement from Respondents in the amount of $16, 530. 87, less

the $ 5, 775. 00 it     received   from the   contractor,     for    a   total   of $ 10, 755.   87.   The trial court, after


hearing   argument,      denied the   County' s     motion as      to the $ 11,   827. 05 in personnel costs, reasoning

that it would not permit the County to recoup code enforcement expenses " for time that they were

just working       as   salaried employees."        Report    of   Proceedings ( Oct. 11, 2013)            at    6.   The order


entered by the trial court included only a judgment for the value of the check from the contractor,

which was to be applied to offset the sheriff' s costs and with any additional amount applied to any

other judgment held by the County against the Respondents. The County appeals.

                                                        ANALYSIS


          The    County   argues   that the trial   court   ignored LCC 1. 22. 030( 3),           which provides,




           3)   Recovery of Costs and Expenses
                    a) The costs of correcting a nuisance under this chapter, or under any
                   chapter of the county code, which is the subject of a warrant of abatement
                    or of a contempt order for violation of a permanent injunction against such
                    nuisance shall be billed to the person responsible for the nuisance and /or the


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No. 45578 -1 - II



                    owner, lessor, tenant, or any other person entitled to control the subject
                 property.
                  b) The costs of correction            shall   include " incidental       expenses, "   which may
                    include, but are not limited to, personnel costs, both direct and indirect and
                  including attorney' s fees; costs incurred in documenting the violation;
                  towing/hauling, storage, and removal /disposal expenses; cost associated
                  with service and enforcement of warrants, actual expenses and costs of the

                  county in preparing notices, specifications, and contracts associated with
                  the abatement and in accomplishing and /or contracting and inspecting the
                  work; the costs of any required printing and mailing, and interest at the rate
                  of 10 percent per annum on the costs of abatement incurred by the county.
                   c) Costs of correction shall become due and payable to the county treasurer
                  within 15 calendar days of the date of mailing the billing for abatement.
                   d) All costs of correction assessed by the county create a joint and several
                    personal obligation in all persons subject to a warrant of abatement or of a
                    contempt order for violation of a permanent injunction against such
                    nuisance.

                     e)    All such costs and expenses shall constitute a lien against the affected
                    property, as set forth in subsection ( 5) of this section.

 Emphasis     added.)      Respondents answer that the trial court lacked jurisdiction, the trial court erred


by allowing a " collateral attack" on the trust, and the trial court erred by allowing Bonagofski to

be the trust representative and by " exceeding [ its] authority over trustee' s [ sic] in their personal

capacity."    Br. of Resp' ts at 1.

         The County moved to strike the Respondents' brief or to disregard new issues raised in the

brief. A commissioner of this court denied the motion to strike and granted the motion to disregard


any   new    issues " because Respondent[ s] did             not    file    a notice     of cross -appeal."   See Spindle.


Accordingly,    the       sole   issue   on appeal   is the issue   raised    by   the   County:   whether the trial court



erred in denying the County' s request for personnel costs related to abating the nuisance in light

of   the costs allowed in LCC 1. 22. 030( 3).            Singletary    v.   Manor Healthcare        Corp., 166 Wn. App.

774, 787, 271 P. 3d 356 ( holding that absent a cross appeal, this court would not consider

Respondent' s argument for affirmative relief), review denied, 175 Wn.2d 1008 ( 2012).



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No. 45578 -141



          Statutory     interpretation is       a question of      law that   we review      de   novo.    Jametsky v. Olsen,

179   Wn. 2d 756, 761, 317 P. 3d 1003 ( 2014). The rules of statutory interpretation apply equally to

ordinances.         World Wide Video, Inc. v. City of Tukwila, 117 Wn.2d 382, 392, 816 P.2d 18 ( 1991),

cert.   denied, 503 U. S. 986 ( 1992).          Thus, when construing an ordinance, our fundamental objective

is to carry     out   the legislative      body' s   intent.   Dep' t    of Ecology    v.   Campbell & Gwinn, LLC, 146


Wn.2d 1, 9, 43 P. 3d 4 ( 2002).            When an ordinance has a plain meaning, we give the plain meaning

effect. Campbell &           Gwinn, 146 Wn.2d at 9. To determine the plain meaning of an ordinance, we

look to all that is written in the ordinance and in related ordinances that discloses the legislative

intent   of   the   provision   in   question.    Campbell &        Gwinn, 146 Wn.2d at 11. Presumptively, use of

the   word " shall"     denotes      an   imperative    and creates a       mandatory       duty. Clark County Sheriff v.

Dep' t   of Soc. & Health Servs., 95 Wn.2d 445, 448, 626 P. 2d 6 ( 1981).


          LCC       1. 22. 030( 3)( b) clearly       sets   out   that   recoverable    costs "    shall   include ` incidental


expenses. "'        Incidental     expenses,      in turn, " may include ...           personnel costs, both direct and


indirect,"     such as " costs     incurred in    documenting the violation;          ...   removal /disposal expenses; .. .


actual    expenses      and     costs     of   the county in preparing         notices,      specifications,    and   contracts




associated with the abatement and in accomplishing and /or contracting and inspecting the work;

 and]    the   costs    of   any   required     printing    and    mailing."    LCC 1. 22. 030( 3)( b).         The County' s

personnel costs include costs for inventorying the vehicles, preparing and mailing notices, and

supervising the        contractor.        Consequently, because these costs are recoverable under the statute,

the trial court erred in excluding the County' s request for personnel costs related to the abatement

of the nuisance. Accordingly, we vacate the cost judgment entered by the trial court and remand




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No. 45578 -1 - II



for entry of a new judgment to include the formerly -excluded personnel costs in the amount of

 11, 827. 05.


        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 in accordance with RCW 2. 06. 040,


it is so ordered.




 We concur:




 P




SUTTON, J.




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