                                                                                                          FILED
                                                                                                 COURT OF APPEALS
                                                                                                        DIVISION II

                                                                                              2014 DEC 30 AM 9: 42

                                                                                                 STATE OF WASHINGTON

                                                                                                 BY
                                                                                                             E ° UTY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                           DIVISION II



 CITY     OF     BONNEY               LAKE,          a    municipal                           No. 42988 -8 -II
 corporation,



                                             Respondent,                            PART PUBLISHED OPINION

          v.



 ROBERT KANANY,

                                             Appellant.




         BJORGEN, J. —           Robert Kanany appeals the trial court' s denial of his summary judgment

motion and     its   grant of     summary judgment to the                 City     of   Bonney   Lake (   City),    upholding civil


penalties assessed         by   the   City for   various code violations at             Kanany' s     properties.    The published


portion of this opinion addresses Kanany' s argument that portions of Title 14 of the Bonney Lake

Municipal Code ( BLMC) deprived him of procedural due process because they did not provide an

appeal process       for   all violations claimed              and   penalties assessed.     On this issue, we hold that the


relevant portions of Title 14 BLMC provided Kanany with a full opportunity to appeal the notices

of violation and penalties              at   issue       and   therefore did not        deprive him     of   due   process.   In the


unpublished portion of            the   opinion, we reject           Kanany'   s   remaining     arguments.        Accordingly, we

affirm   the decision      of   the trial    court.
No. 42988 -8 -II




                                                                     FACTS


           Kanany and Navid Kananil are co- owners of property in the City. In 2004, Kanany applied

for a residential accessory building permit from the City, indicating his intent to build a duplex

and a garage with a heated upstairs unit on the property. The City approved his permit and noted

that " per   code   detached         garage   may   not   be   converted    to   living   space."    Clerk' s Papers ( CP) at 212.


After the duplex and garage were built, Kanany used the duplex as a rental property.

           Between 2007 and 2009, responding to complaints about Kanany' s property, the City

investigated the space above Kanany' s garage to determine whether he was in compliance with

the BLMC. In February 2007, the City sent Kanany a notice of civil violation, indicating that his

property was in violation of BLMC 18. 22. 090 because he utilized or converted a portion of the

garage     into   an "   Accessory Dwelling           Unit" ( ADU). ADUs are prohibited in conjunction with a


duplex.      BLMC 18. 22. 090( C)( 1).              The   City imposed           a $   1, 000 -a -day fine until Kanany became

compliant. The notice stated that Kanany had 15 days to appeal the notice.

           In March 2007, Kanany sent Denney Bryan of the City a letter stating that his attorney had

been told by the City that Kanany would not be in violation of the BLMC as long as the space

above the garage did not contain a kitchen stove and washer /dryer and that Bryan had told him


that the   washer /dryer        " is   not an   issue."   CP at 216. Kanany stated that his tenants were using the

space above the garage as a bedroom and recreational room and that " neither appliances" were in


that   space.     CP     at   216.     This apparently         satisfied   the   City for    2007.    In 2008, responding to a




1 Because the last names Kanany and Kanani are similar, we refer to Navid Kanani by his first
name to avoid confusion, intending no disrespect.


                                                                     2
No. 42988 -8 -II




complaint from a neighbor, the City again investigated and concluded that Kanany' s property and

the space above the garage still complied with the BLMC.


          On August 5, 2009, after another complaint, the City issued a letter to Kanany stating that

the space   above   the garage violated BLMC 18. 22. 090( C)( 1).    The City asked Kanany to voluntarily

comply with its requests to vacate tenants from the space and arrange an inspection of the property

to verify the vacancy. The City gave Kanany 45 days to comply.

          On November 18, 2009, the City sent Kanany a notice of civil violation indicating that he

had failed to respond to its letter within 45 days. The notice stated that under BLMC 14. 130. 070,


it was imposing a $ 1, 000 -a -day fine until Kanany complied, and that under BLMC 14. 130. 080 and

BLMC 14. 120. 020, the City' s violation determination and subsequent fine were final unless

Kanany appealed within 15 days. Kanany did not appeal.

          On January 8, 2010, the City filed a complaint against Kanany in superior court, asserting

that he   maintained    an   impermissible ADU in     violation     of   BLMC 18. 22. 090( C)( 1).   Alleging

Kanany' s failure to respond to the November 2009 notice of civil violation, the City stated that its

code violation determination and fines were final and collectible under BLMC 14. 130. 070.


          In the complaint, the City misidentified the property' s address and in June 2010, it moved

under CR 15( a) for leave to file an amended complaint with the property' s correct address.2

Kanany objected to the City' s motion because the City had not joined Navid as a necessary party

in the lawsuit under CR 19( a).




2 The City identified Kanany' s city mailing address as the address in violation instead of the proper
address of the property containing the duplex and garage.


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No. 42988 -8 -II




           In August, the trial court determined that ( 1) chapter 14. 130 BLMC was constitutional on


its face   and as applied      to    Kanany, ( 2) Navid was not a necessary party to the action under the

BLMC       or   CR 19( a),   and (   3) the   City' s   motion   to   amend was proper under        CR 15(   a).   The trial


court granted the City' s motion to amend.

           In November 2011,           Kanany and the City filed cross motions for summary judgment.

Kanany'     s   motion    asked     the   court   to dismiss the       City' s   complaint   with   prejudice.      Kanany

contended that beginning in 2004, he communicated with City officials several times about the

space above his detached garage and they always told him that he was in compliance with the

BLMC       until   the November 2009           notice of civil violation.        Kanany asserted that he was not in

violation of the BLMC because his tenants' use of the space above the garage had not changed

between 2004        and   2009.      Kanany also asserted that equitable estoppel prevented the City from

assessing fines against him because it had previously agreed that Kanany was not in violation.

Finally, Kanany       argued      that BLMC 18. 22. 090( C)( 1)          was invalid and unenforceable because it


directly conflicted with an overriding BLMC provision and was fatally inconsistent with the City' s

comprehensive plan.




           To support his motion, Kanany filed a declaration attaching copies of several documents,

including his 2007 and 2008 communication with the City, a June 2008 letter from the City to the

complaining neighbor, the August 2009 letter and Kanany' s letter in response, and the November

2009 notice of violation from the City. Kanany also supported his motion with a declaration from

his attorney and attached copies of several City ordinances and the City' s comprehensive plan.




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No. 42988 -8 -II




       The City' s cross motion for summary judgment asked the court to find that Kanany violated

the BLMC and owed $48, 000 in fines. The City argued that it gave Kanany proper notification of

the violation and the consequences for failing to voluntarily correct the violation. The City stated

that because Kanany failed to contact the City within 45 days of receiving the notice letter, it issued

a notice of civil violation and      imposed         a $   1, 000 -a -day penalty while the violation continued. In

addition to the 45 days given to respond to the City' s August 2009 letter, the City gave Kanany 15

days to appeal the November 2009 violation notice and penalty; however, Kanany still failed to

respond. The City argued that there was no genuine issue of fact that Kanany failed to appeal the

notice and fines and, absent any appeal, the City' s notice of civil violation is final and the

associated fines are collectible.


        In December 2011, the trial court granted the City' s motion for summary judgment and

denied Kanany' s motion for summary judgment. The court entered judgment " against [ Kanany]

on behalf of the City for $48, 000, the total amount of fines owed in connection to the Notice of

Civil Violation    as of   the   filing   of   the   original complaint    in this   matter."   CP   at   350.   Kanany

appeals.



                                                           ANALYSIS


        Kanany argues that under Post v. City of Tacoma, 167 Wn.2d 300, 217 P. 3d 1179 ( 2009),

BLMC 14. 120. 020, 14. 130. 070, and 14. 130. 080 are unconstitutional because they allow a single

notice of violation to impose subsequent daily penalties without any opportunity to appeal them.

The City argues that the BLMC is unlike the Tacoma city ordinances at issue in Post because the

BLMC provided express procedures for Kanany to raise any argument against the violation

determination, but Kanany declined to take advantage of any of the procedures. Kanany also




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No. 42988 -8 -II




raises a number of challenges discussed in the unpublished portion of this opinion. We affirm all

the challenged rulings of the trial court.


                                                 I. STANDARD OF REVIEW


            Summary judgment is appropriate where the pleadings and affidavits show there is no

genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR

56( c).     We   review questions of       law de    novo.   Berger v. Sonneland, 144 Wn.2d 91, 103, 26 P. 3d


257 ( 2001).      When reviewing a grant of summary judgment, we consider solely the issues and

evidence called to the trial court' s attention on a motion for summary judgment. RAP 9. 12.

                                               II. PROCEDURAL DUE PROCESS


            Title 14 BLMC provides the City' s enforcement authority for development code violations.

BLMC 14. 130. 010. Each             day   in   violation constitutes a separate offense.     BLMC 14. 130. 020( C).


BLMC 14. 130. 030( A) provides that any development code violation shall be a misdemeanor and

a civil violation,      the penalty   being $ 1, 000 for each day in violation. If the City determines that a

person is violating the development code, it attempts to secure voluntary correction of the problem

by explaining the violation and requesting correction before issuing a notice of civil violation.

BLMC 14. 130. 060.


            A notice of civil violation represents a determination that a violation of the development


code      has been   committed.     BLMC 14. 130. 070( A).         A property owner may file a written appeal of

the   notice   to the   hearing   examiner within      15 days   of its   issuance. BLMC 14. 120. 020( A), .130. 080.


At the hearing before the hearing examiner, the property owner and the City department director

may       participate   and call   witnesses.      BLMC 14. 130. 080.          The hearing examiner is required to

prepare findings as to whether a preponderance of evidence shows that the violation occurred and




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No. 42988 -8 -II




that the    required corrective action           is   reasonable.   BLMC 14. 130. 080.             The hearing examiner' s

decision may be appealed to superior court. BLMC 14. 120. 020( G).

           Our state and federal case law holds that the fundamental requirement of procedural due


process "   is the opportunity to be heard            at a meaningful     time   and   in   a meaningful manner."         Post,


167 Wn.2d at 313 ( citing 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.



Post, 167 Wn.2d           at   313 ( quoting Mathews, 424 U. S.      at   335);   see also     Tellevik   v.   Real   Prop.,   120


Wn.2d 68, 78, 838 P. 2d 111 ( 1992) (             adopting and applying the Mathews test).

           The analysis in Post illustrates the application of the Mathews test in a setting similar, but

not identical to that presented here. In Post, the City of Tacoma found many of Post' s properties

to be in    violation of various         city   standards.    Post, 167 Wn.2d          at   303.   Tacoma sent notices of


violation    for   each   property, " notifying       Post that the properties were either substandard or derelict."

Post, 167 Wn. 2d          at   305.   These notices " described the violations and advised Post how to seek


administrative review of the violation notice."               Post, 167 Wn.2d at 305. For most of his properties,


Post responded to the notices by agreeing to repair schedules. Post, 167 Wn.2d at 305. However,

he did not respond to at least two of the violation notices. Post, 167 Wn.2d at 306.




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No. 42988 -8 - II




             Post failed to comply        with   the   agreed repair schedules     for 17    properties."    Post, 167 Wn.2d


at   306.    In response, Tacoma began issuing civil penalties in the amount of $125 per property

pursuant     to the Tacoma Municipal Code 2. 01.              060( D)( 4)( b)   and ( E)(   3)( b). Post, 167 Wn.2d at 306.


As a result, Tacoma imposed hundreds of thousands of dollars in civil penalties. Post, 167 Wn.2d


at 303, 307. Post attempted to appeal many of the fines, but in most cases Tacoma denied a hearing,

taking the position that the appeals were untimely because its municipal code required an appeal

within      30 days   of   the first   notice of violation.    Post, 167 Wn.2d        at   306. Post   sued, "   seeking to bar

Tacoma from enforcing its               building   code against   him    on numerous grounds,"          including the claim

that his rights to due process were violated. Post, 167 Wn.2d at 303 -04.


            On appeal, the Supreme Court ultimately held that the civil infraction ordinance at issue

offended procedural             due    process   under    Mathews, 424 U. S.         at    333, because " it purport[ ed] to


authorize the unlimited and unreviewable issuance and enforcement of subsequent civil infractions


and penalties without            any    system of procedural          safeguards."        Post, 167 Wn.2d        at   315.   In its


Mathews analysis, the court in Post relied heavily on the risk of the erroneous deprivation of

property rights due to the absence of any procedural, safeguards after issuance of the first

mandatory fine,          including      subsequent     discretionary    fines. Post, 167 Wn.2d          at   313 - 15.   Because


those were separate decisions involving changed facts and risk of error, Post held that due process

required new appeal opportunities.                 167 Wn.2d at 314 -15.


            The mechanics of Tacoma' s flawed system, though, were different in critical respects from

that   of   the   City   of   Bonney    Lake. If, after issuance of a notice of violation, the violation was not


corrected, the Tacoma ordinance provided for four successive mandatory fines. Post, 167 Wn.2d




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No. 42988 -8 - II




at 304 -05. If the violation remained after the four fines, Tacoma had the discretion either to assess


or not   to   assess   fines for   each   day until   the   violation was remedied.           Post, 167 Wn.2d   at   305.   The


owner had the right to seek administrative review only after the initial notice of violation and after

the first mandatory fine.           Post, 167 Wn.2d         at   305.    The owner had no right to an administrative


appeal of any of the wholly discretionary fines Tacoma might impose after the mandatory

penalties. Post, 167 Wn.2d at 305.


          Here, in blunt contrast, there was nothing discretionary about the daily fines at issue. They

were automatic, and Kanany had the full opportunity to appeal the continuing fines for his specific

violation.      The November 18 notice of civil violation characterized itself as continuing in nature

and specifically described the nature of the violation, the code section violated, and the nature of

the   action required     for its remedy. The         notice   imposed     a    daily fine3   until compliance was achieved


and specifically stated that the violation was ongoing. The notice then expressly advised Kanany

that he could appeal under BLMC 14. 130. 080 and BLMC 14. 120. 020 by filing an appeal in writing

with the Bonney Lake Planning and Community Development Department within 15 days of his

receipt of     the notice.    BLMC 14. 120. 020 and BLMC 14. 130. 080 each specifically allow appeals

of notices of civil violations.



          Thus, the right to appeal that notice under BLMC 14. 120. 020 and. BLMC 14. 130. 080


afforded the full opportunity to challenge both the determination that the violation was occurring

and    the imposition        of    specific
                                              daily fines        until   that    violation    was   remedied.   This appeal


opportunity provided Kanany the vehicle to challenge the ongoing daily fines, whether accruing

before or after the end of the 15 -day appeal period.



3 No issue is raised whether the total amount of the fines assessed is excessive as a remedial
measure.
No. 42988 -8 -II




          In sum, Kanany was given the full opportunity to appeal all aspects of the notice of civil

violation, including the ongoing daily fine. That opportunity to appeal the entire assessment of

fines was the step that was absent in Post. The absence of that opportunity, the absence of that

safeguard against erroneous deprivation of property, was the flaw that led the court in Post to

find a due process violation under Mathews. Here, that safeguard is fully present.

          Returning to the test in Mathews, applied by our court in Post, 167 Wn.2d at 313, the

private      interest here is the   same     as   that   at stake     in Post, that         of   avoiding the "    assessment of




erroneous or excessive        monetary      penalties."    Post, 167 Wn.2d             at   313. The government interest is


also   the   same as   that in Post, "   protecting public safety, protecting property values, and preventing

declining     neighborhoods."       Post, 167 Wn.2d at 314. The critical weight in the Mathews test in the


present appeal is the second element, the risk of an erroneous deprivation of the private interest.


As noted, Post relied on the absence of any procedural safeguards when Tacoma decided whether

to issue its     discretionary    fines.    Post, 167 Wn.2d            at   314 -15.        As also noted, Kanany had the

opportunity to      appeal   his ongoing fines in full.              Requiring multiple opportunities to appeal the

same fines for the same violation, which accrue after the appeal period, does little, if anything, to

further      guard against erroneous       deprivation     of   the   private   interest         at stake.   Rather, its principal


effect is to burden the municipality with superfluous and costly administrative processes, which

directly erode the governmental interest protected by the third element in the Mathews test. Such

redundancies in procedure are not among the majestic requirements of due process. Under both




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No. 42988 -841




Mathews and Post, the City here did not deprive Kanany of procedural due process. 4

       Our decision of this appeal, of course, is confined to those issues properly raised by it.

Kanany' s due process challenge is to the ongoing fines imposed by the notice of civil violation.

He does not argue that he has attempted to remedy any lack of compliance or that the City has

erred in deeming any such attempt to be inadequate. Thus, his due process challenge fails

because he was given the opportunity to appeal his continuing daily fines for the violation found

in the notice, as described above. On the other hand, if Kanany were challenging the City' s

decision .on the adequacy of corrective measures he took, due process may well require the City

to afford an administrative appeal of that decision and the continuation of the remedial fines. 5

See Post, 167 Wn.2d       at   315.   Kanany, however, is not raising such a challenge, either in an as

applied or   facial   sense.   The trial court was correct in ruling that the City' s actions before us did

not deprive Kanany of procedural due process.




4
 Alternatively, Kanany argues that the BLMC is also unconstitutional in that it does not provide
a complete  system for enforcing civil infractions.  The system is incomplete, Kanany argues,
because the hearing examiner is not authorized to decide constitutional or equitable matters. The
City responds that the BLMC comports with chapter 7. 80 RCW and is constitutional because
constitutional and equitable arguments can still be raised through appeals in the state court system
as provided    in BLMC 14. 120. 020( G).        Kanany' s argument rests on Post. The citations he gives
from Post, however, come from the Supreme Court' s discussion of whether the Land Use Petition
Act, chapter 36. 70C RCW, barred Post from challenging Tacoma' s imposition of penalties. Post,
167 Wn.2d at 308 -12. Because neither party in this case raises a land use challenge, this portion

of Post cannot be read for the remarkable proposition that hearing examiner systems throughout
the state are unconstitutional because examiners are not authorized to decide equitable or
constitutional questions. The BLMC is not unconstitutional for this reason.

5 The City stated at oral argument that its municipal code would afford Kanany an opportunity to
appeal in such a situation. Wash. Court of Appeals oral argument, City ofBonney Lake v.
Kanany, No. 42988 -8 -II (Sept. 13, 2013), at 15 min., 06 sec. ( on file with the court).


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No. 42988 -8 -II




         A majority of the panel having determined that only the foregoing portion of this opinion will

be printed in the Washington Appellate Reports and that the remainder shall be filed for public record


in accordance with RCW 2. 06. 040, it is so ordered.


                                                III. REMAINING ISSUES


         Kanany next argues that the trial court improperly granted the City' s summary judgment

motion, thereby denying his motion for summary judgment, because ( 1) the space above his garage

is   not an   ADU   as   defined by   the BLMC; ( 2)       equitable estoppel prevents the City from claiming

that Kanany' s property is in violation of the BLMC; and (3) the portion of the BLMC that the City

is enforcing is in direct conflict with the City' s comprehensive plan and the state Growth

Management Act, chapter 36. 70A RCW.


         The City responds that the trial court properly granted it summary judgment because ( 1)

Kanany        failed to timely   challenge     whether    the space   was   an   ADU; ( 2) equitable estoppel is


unwarranted ;       and ( 3) the BLMC is not in direct conflict with the City' s comprehensive plan or

the state Growth Management Act, chapter 36. 70A RCW. We hold that Kanany is precluded from

factually challenging the validity of the initial violation, that Kanany fails to meet all of the

elements of equitable estoppel, and that the BLMC is not in conflict with the City' s comprehensive

plan or the state Growth Management Act.


A.        Whether the Space is an ADU


          Citing the BLMC' s ADU definition, Kanany argues that the space above his garage is not

an   ADU because it did      not   have   a   kitchen   stove and washer /dryer appliances.   The City responds

that because Kanany failed to respond to the City' s November 2009 notice of civil violation, as




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No. 42988 -8 -II




required      by    the BLMC, the           City' s    ADU determination         was   final   and   conclusive.     BLMC


14. 130. 070( A)      flatly   states   that   a notice of civil violation      is final, " unless   appealed as provided



herein."    Kanany did         not appeal      the   notice at   issue.   Therefore, the City is correct that Kanany is

precluded from making this factual challenge.

B.       Equitable Estoppel


         A party claiming equitable estoppel must establish by clear, cogent, and convincing

evidence that



          1) the conduct, acts, or statements by the party to be estopped are inconsistent with
         a claim afterward asserted by that party, (2) the party asserting estoppel took action
         in   reasonable        reliance     upon     that conduct, act, or statement, and ( 3)          the party
           asserting estoppel would suffer injury if the party to be estopped were allowed to
         contradict the prior conducts, act, or statement.

Sorenson      v.   Pyeatt, 158 Wn.2d 523, 538 -39, 146 P. 3d 1172 ( 2006);                  Kramarevcky v. Dep' t ofSoc.

     Health Servs., 122 Wn. 2d 738, 743, 863 P. 2d 535 ( 1993).                    In addition to satisfying each of the

above elements, the party asserting equitable estoppel must have proceeded in good faith and have

 clean   hands,'"     or be free from fault in the matter. Mut. ofEnumclaw Ins. Co. v. Cox, 110 Wn.2d

643, 650, 757 P. 2d 499 ( 1988).


           The application of equitable estoppel against state or local governments is disfavored.


Kramarevcky,         122 Wn.2d        at   743.   Consequently, where a party asserts equitable estoppel against

the   government,        it    must   meet     two    additional    requirements: (    1)    equitable estoppel must be


necessary to prevent a manifest injustice, and ( 2) the exercise of governmental functions must not

be impaired as a result. Kramarevcky, 122 Wn.2d at 743. The promulgation of zoning ordinances

is a governmental function and generally estoppel does not apply to government enforcement of

zoning ordinances, even when its officers have issued building permits, allowed construction

contrary to regulations, have given general approval to regulation violations, or have remained

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No. 42988 -8 - II




inactive in the face of such violations. City ofMercer Island v. Steinmann, 9 Wn. App. 479, 483,

513 P. 2d 80 ( 1973).


          Kanany fails to meet the requirements to successfully assert equitable estoppel against-the

City. He argues that he and the City had an express agreement that absent a kitchen stove and

washer /dryer, the City would not consider his property to be an ADU. He asserts that he has " lived

up to his side" of the agreement °and that therefore the City should be equitably estopped from

assessing monetary             penalties against      him. Br.   of   Appellant   at   35.   However, Kanany fails to cite

any evidence that was before the trial court at summary judgment which supports his assertion that

he has lived up to his side of the agreement as far as these appliances are concerned. Because he

failed to   appeal       the   initial   violation,   he   cannot challenge   its validity     now.   Kanany has failed to

show any inconsistency in the positions taken by the City, not to mention any manifest injustice if

the City is not estopped from enforcing its ordinances. Therefore, he has not met the requirements

for equitable estoppel.


C.        Whether the BLMC is in Conflict with the City' s Comprehensive Plan and State Growth
          Management Act



          Kanany argues that BLMC 18. 22. 090( C)( 1) is in direct conflict with BLMC 18. 16. 020( A),

the   City' s   comprehensive plan, and               the Growth Management Act.              Former BLMC 18. 16. 0206 is


titled " Uses permitted outright" for medium density residential districts, and provides, in part,

          The following uses are permitted in an R -2 zone, subject to the off -street parking
          requirements, bulk regulations and other provisions and exceptions set forth in
          this code:


          A.        Residential Uses:
                    1. Single Family residence;
                    2. Duplexes ( two- family residences);


6 BLMC 18. 16. 020 was repealed in 2010 but was in effect during the time at issue here.

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No. 42988 -8 -II




                     3.    Modular homes on individual lots;
                     4. Manufactured homes on individual lots;
                     5. Accessory dwelling units.

Emphasis        added.)      BLMC 18. 22. 090( C)( 1) provides, in part,


          One accessory unit shall be allowed per legal building lot as a subordinate use in
          conjunction with any single -family residence; no ADU will be permitted in


          conjunction with any duplex or multiple -family residence.

          Contrary to Kanany' s argument, these two subsections are not in conflict. Rather, former

BLMC 18. 16. 020 allows ADUs in medium density residential districts, subject to other provisions

and exceptions set           forth in the   City' s development   code.    BLMC 18. 22. 090( C)( 1)   is one such


provision in the development code that limits ADUs. Thus, these provisions are wholly consistent.

          Kanany          also argues   that BLMC 18. 22. 090( C)( 1)'    s prohibition of ADUs in conjunction


with a duplex violates the Bonney Lake Comprehensive Plan and the Growth Management Act.

These arguments also fail. Although comprehensive plan policy 3 - 7a states the policy of allowing

ADUs in all residential zones, the plan does not suggest that ADUs must be allowed in every

location and every situation in those zones. Nor does the reasonable regulation of ADUs, including

their prohibition in conjunction with duplexes, jeopardize the policy of allowing them in all

residential zones. That prohibition is not inconsistent with the Bonney Lake Comprehensive Plan.

          Kanany' s claim of inconsistency with the Growth Management Act fails for the same

reason. He argues that because the City' s regulations are inconsistent with its comprehensive plan,

they also violate the requirement of RCW 36. 70A.040( 3)( d), part of the Growth Management Act,

that "   each   city ...    shall adopt a comprehensive plan under this chapter and development




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No. 42988 -8 -II




regulations    that   are consistent with and          implement the    comprehensive plan."         As just held, Kanany

has not shown any inconsistency between the City' s development regulations and its

comprehensive plan. Therefore, he also has shown no violation of RCW 36. 70A.040( 3)( d).

D.         Motion to Amend Complaint


           Kanany assigns error to the trial court' s order granting the City' s motion for leave to amend

its complaint. Kanany argues that the trial court should have denied the City' s motion because the,

City failed to join Navid to the lawsuit and, as a co- owner, Navid was a necessary and

indispensable party.

           We require appellants to argue assignments of error with citations to authority and

references    to   relevant parts of    the   record.     RAP 10. 3(   a)(   6). "   Passing treatment of an issue or lack

of reasoned argument           is insufficient to       merit   judicial   consideration."      Joy v. Dep' t of Labor &

Indus., 170 Wn.        App.    614, 629, 285 P. 3d 187 ( 2012) ( quoting               West v. Thurston County, 168 Wn.

App.    162, 275 P. 3d 1200 ( 2012)),          review    denied, 176 Wn.2d 1021 ( 2013) (          alteration omitted).




           We do not consider Kanany' s argument that the trial court erred when it granted the City

leave to amend its complaint because he failed to provide sufficient argument or provide relevant




7
    Kanany argues also that the lack of necessary parties deprived the trial court of subject matter
jurisdiction. This argument misunderstands the nature of subject matter jurisdiction. Washington
superior courts       have broad     subject matter      jurisdiction. See WASH. CONST.           art.   IV, § 6. The critical

factor in determining whether a court has subject matter jurisdiction is the type of controversy.
Cole v. Harveyland, LLC, 163 Wn. App. 199, 209, 258 P. 3d 70 ( 2011). The superior court has
original jurisdiction over all cases and proceedings in which jurisdiction has not been vested
exclusively in some other court. WASH. CONST. art. IV, § 6; Wimberly v. Caravello, 136 Wn. App.
327, 333, 149 P. 3d 402 ( 2006). Therefore, a court' s jurisdiction does not depend on the presence
or absence of a       party.    Wimberly,       136 Wn.    App. at 334. Instead, failure to join affects only the
court' s   authority   over    the   absent   party.    Wimberly, 136 Wn. App. at 334.



                                                                 16
No. 42988 -8 -II




authority   sufficient   to   merit   further judicial   review.   Accordingly, we do not address Kanany' s

arguments on this issue.


                                                  CONCLUSION


       We affirm the trial court' s decision.




 We concur:




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