Post v. City of Tacoma – Application of LUPA and Procedural Due Process to Civil Penalties

In Post, the City of Tacoma imposed successive civil penalties for violations of the building code, without providing an opportunity for administrative review after each penalty was imposed.  In a plurality opinion, the Supreme Court majority held that because there was no opportunity for review after each penalty was assessed, the property owner’s procedural due process rights were violated.  Furthermore, LUPA’s 21-day statute of limitations did not apply to bar the plaintiff’s claims because Tacoma had not created a civil infraction system that provided the same procedural protections as afforded in the judicial system.  Consequently, the civil penalties had to be enforced in courts of limited jurisdiction, an exception to LUPA according to RCW 36.70C.020(2)(c).  Cities should ensure that they provide an opportunity for administrative review after each civil penalty is imposed.  For example, if the building code allows for the building official to impose civil penalties each day a property is in violation of the code, there must be an opportunity for a hearing for each civil penalty assessed.

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