Peter (phuc) Phan, Resp v. Pollution Control Hearings Board And The City Of Kirkland, App

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PETER (PHUC) PHAN,
No. 79392-6-I
Respondent,
DIVISION ONE
V.
UNPUBLISHED OPINION
POLLUTION CONTROL HEARINGS
BOARD,
Defendant,
CITY OF KIRKLAND,
Appellant.
FILED: March 2, 2020
APPELWICK, C.J. — This appeal asks us to determine whether seizure of
Phan’s vessel by the City was consistent with the statutory requirements of the
DVA1 and whether the Board properly awarded costs under the act. We reverse
the Board’s finding that the City properly took temporary possession of the vessel
under the DVA. We affirm the Board’s finding that the City properly took permanent
custody of the vessel on November 17. As a result, the City is entitled to recover
under the DVA only those costs related to taking permanent custody of the vessel.
The Board erred to the extent that it awarded the City other costs. We vacate the
order of the Superior Court and remand to the Board to amend its order in
accordance with this opinion.
1 Derelict vessels act, ch. 79.100 RCW.
No. 79392-6-1/2
FACTS
Peter (Phuc) Phan is the owner of a 57-foot catamaran. He purchased the
vessel in California in 2016 and transported it to Washington. With the help and
consultation of various professionals, Phan constructed a second story on the
vessel. Phan, a well-known musician, intended to use the vessel for musical
excursions around Puget Sound. He had never owned a boat before this vessel.
Phan initially obtained moorage for the vessel through a sublet in the
summer of 2017. After the sublet expired, Phan anchored the vessel in Lake
Washington, moving it between Juanita Bay and Andrews Bay as allowed by law.2
He testified that he and his wife were attempting to find permanent moorage for
the vessel during this time.
The vessel’s anchor proved to be ineffective at securing the vessel in place
while anchored in Juanita Bay. From September to October 2017, the King County
Sherriff’s Department, which the City of Kirkland (City) contracts with to police its
Lake Washington waters, received several calls concerning Phan’s vessel in
Juanita Bay. This led to communications between sheriff’s deputies and Phan.
The sheriff’s department claimed that Phan indicated he had intentionally run the
2 The Seattle Municipal Code (SMC) limits anchorage in Andrews Bay to 72
hours in any one week period. SMC 16.40.030(F). The Kirkland Municipal Code
(KMC) limits anchorage in Juanita Bay to 72 hours in any one week period or 216
hours in any one month period. KMC 14.16.030. Prior to the passage of this
limitation, the City of Kirkland’s waters were subject only to state regulations, which
allowed for a boat to be docked for up to 30 days, but not longer than 90 days in a
365 day period. WAC 332-52-1 55.
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No. 79392-6-113
aground.3 A sheriff’s deputy then reached out to the Department of Natural
Resources (DNR) to determine the legality of running a boat aground in Lake
Washington. The DNR advised the deputy that grounding a vessel in Lake
Washington, intentionally or not, was a violation of RCW 79.02.300.
On October 6, 2017, Phan’s vessel again became grounded in Juanita Bay.
Phan contacted his boat towing insurance provider, Tow Boat US, to have the
vessel towed. Once the vessel was dislodged, it began to take on water. The
towing company regrounded the vessel about 70 feet from a pier owned by the
City. Phan then contacted the sheriff’s department to report that the vessel was
taking on water. Concerned that the top heavy construction of the vessel would
cause it to tip over, deputies boarded the vessel and began dewatering efforts.
Deputies were able to keep the vessel from capsizing, and Phan was able to enlist
a commercial service, Aqua Dive Service, to fully dewater the vessel and plug the
leak. However, Aqua Dive was unable to tow the boat away due to worsening
weather conditions. The vessel was tied to the City’s pier. Sherriff’s deputies
informed Phan that he needed to remove his vessel the next day, when it was safe
to do so.
By the next morning, the vessel had sunk and was resting on the lakebed
in approximately two and a half feet deep water. Considerable damage had been
done to the City’s pier. Sheriff’s deputies again contacted Phan, informing him that
the vessel needed to be moved as soon as possible. Two days later, on October
~ Phan claims he never intentionally ran his boat aground and that he was
trying to communicate that he was not working hard to get it back on the water
after it had unintentionally grounded.
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No. 79392-6-1/4
9, the vessel had not been moved. Deputies informed Phan that the vessel would
be impounded if it was not moved immediately.
Phan then contracted with Seacrest Marine to move his vessel. It arrived
on scene and developed a plan to move the vessel, which could not move under
its own power and could not be towed in the condition it was in at that time. It
stated that it would begin removal efforts the next day. However, Seacrest Marine
did not arrive the next day, and could not be reached by phone.
The City called Blackwater Marine LLC, a diving and marine contractor with
whom it had an existing relationship. When Blackwater arrived, sheriff’s deputies
asked if it would give Phan a quote to have the vessel refloated. Blackwater
informed Phan that it would charge him $12,000 to refloat the vessel. Phan was
unable to pay that amount, so the City directed Blackwater to impound the vessel.
On October 11, 2017, with Phan present, Blackwater completed refloating
the vessel and towed it to the Lake Washington ship canal for impound. The next
day, Blackwater requested a condition and damage survey on the vessel from
Rhumb Line Maritime LLC. Rhumb Line determined that the vessel had sustained
significant damage. In the opinion of the surveyor, the vessel was a “total loss
due to the structural stern damage and from the flooding.” After some difficulty,
Blackwater was eventually able to store the vessel at Lake Union Dry Dock.
By October 17, 2017, Phan had still not redeemed his vessel from impound.
Representatives from the City and the King County Sherriff’s Department met with
Troy Wood of the DNR to discuss the vessel. At that time, the City was made
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No. 79392-6-1/5
aware of the process to seize a vessel under the derelict vessels act, chapter
79.100 RCW (DVA). The City then made the decision to utilize this process.
That same day, the City prepared a notice of intent to obtain custody, laying
out the reasons for the City’s seizure of the vessel, and indicated that the City
intended to take permanent possession on November 16. The notice included
information on what the owner needed to do to maintain possession of the vessel,
and indicated that the owner could appeal the order to the Pollution Control
Hearings Board (Board). The City posted the notice on the vessel that day, and
sent the notice to be posted on the DNR website. Either later that evening or the
next morning, a representative of the DNR confirmed that the notice had been
posted on its website. The City also sent Phan a letter by certified mail on October
27, 2017. The letter indicated that the City intended to take custody of Phan’s
vessel on November 17, provided the City’s reasons for taking possession, and
notified Phan of his ability to appeal the decision to the Board. The City then
posted the notice in the Seattle Times from November10 through 16, 2017.
On December 15, 2017, Phan submitted his appeal to the Board. In his
initial appeal, he did not dispute the City’s reasons for taking custody of the vessel.
Rather, he placed blame for the damages on Tow Boat US, the company he hired
to tow his vessel after it was grounded in Lake Washington on October 6. He also
challenged the reasonableness of the fees charged by Blackwater to impound his
vessel. He later indicated to the Board that he was challenging both the City’s
justification for taking possession of his vessel and whether it had followed proper
procedures in doing so.
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No. 79392-6-1/6
In its response, the City contended that it had taken emergency possession
of the vessel under the DVA on or about October 11. The City further contended
that it was justified in taking permanent custody of the vessel. Last, it argued that
the fees Blackwater charged to impound the vessel were reasonable.
The Board held a hearing on the matter on January 12 and 17, 2018. At
the hearing, the City argued that the initial seizure was made pursuant to the
Kirkland Municipal Code rather than the DVA. After the vessel had been
impounded, the City contended that it had started the process of taking custody
under the DVA after meeting with the DNR on October 17, 2017.
The Board found that it did not have jurisdiction to address the initial seizure,
but otherwise ruled in favor of the City. It found that the City correctly took
temporary possession of the vessel on October 17. It further found that the City
substantially complied with the DVA’s notice requirements, and that Phan’s vessel
was derelict under the DVA. Therefore, the Board concluded that the City could
rightfully take permanent custody of the vessel on November 1 7~4 Last, the Board
determined that the costs incurred by the City from October 17 forward were
reasonable, and that Phan was liable for those costs. It found that it did not have
jurisdiction to address costs incurred prior to October 17.
~ Though the City indicated in its notice and letter to Phan that it would be
taking possession of the vessel on November 16, the Board awarded custody
beginning on November 17. This is apparently due to the Board’s mistaken belief
that the City’s letter stated that it intended to take custody on November 17, rather
than November 16. Neither side challenges this error on appeal. A hearing
officer’s unchallenged findings of fact are verities on appeal. In re Disciplinary
Proceeding Against Conteh, 187 Wash. 2d 793, 800, 389 P.3d 591 (2017). We
therefore accept the Board’s finding.
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No. 79392-6-1/7
Phan petitioned for review of the Board’s decision in King County Superior
Court. He argued that the City had violated his due process rights by failing to
comply with the DVA’s notice requirements. He also argued that the Board erred
in finding that the costs associated with the taking were reasonable. The City cross
appealed the portion of the order that held that the Board did not have jurisdiction
over costs incurred prior to October 17. The superior court reversed the Board’s
order, finding that the City failed to follow the procedural requirements of the DVA
and violated Phan’s due process rights. The superior court reversed the decision
of the Board and dismissed the City’s cross appeal. The City appeals.
DISCUSSION
This appeal is brought pursuant to the Washington Administrative
Procedures Act (APA), chapter 34.05 RCW. We review the decision of the Board,
not the superior court. See City of Redmond v. Cent. Puget Sound Growth Mgmt.
Hearings Bd., 136 Wash. 2d 38, 45, 956 P.2d 1091 (1998). In reviewing the Board’s
order, we apply the standards of the APA directly to the record before the Board,
sitting in the same position as the superior court. j~ We will overturn the Board’s
decision if it violates constitutional provisions on its face or as applied, or if the
Board erroneously interpreted or applied the law. RCW 34.05.570(3)(a), (d). We
review issues of statutory construction and constitutionality de novo. State v.
Evans, 177 Wash. 2d 186, 191, 298 P.3d 724 (2013).
The DVA, provides a framework for governments to address abandoned or
derelict vessels found in their waterways. It is not intended to be the exclusive
mechanism or remedy. RCW 79.100.020. It does not limit a government’s
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No. 79392-6-1/8
authority to otherwise regulate such vessels. RCW 79.100.020, .080. It provides
a procedure for taking permanent custody of an abandoned or derelict vessel.
RCW 79.100.030, .040(1). It also provides a procedure for taking temporary
possession in certain emergency situations. RCW 79.100.040(3). It provides for
redemption of a vessel which has been seized and for an administrative appeal of
an attempt to take custody. RCW 79.100.120. When a government has followed
the statutory requirements, it is entitled to recover all reasonable and auditable
costs associated with obtaining custody of the vessel. RCW 79.100.060(1).
Attorney fees are available to the prevailing party on judicial review of a Board
decision. RCW 79.100.120(2)(a).
Phan has lost his boat and been assessed costs. The City has been denied
a portion of the costs it sought to recover. Resolution of the cost issue requires a
determination of the correctness of both the temporary taking of the vessel and the
permanent custody of the vessel under the DVA. Whether the City lawfully
impounded the vessel pursuant to its municipal code is outside the Board’s
jurisdiction, and therefore not before us. RCW 43.21B.110(1); Redmond, 136
Wash. 2d at 45. Whether Phan is entitled to damages for the loss of his vessel,
assuming it was unlawfully taken is outside the board’s jurisdiction, and therefore
is not before us. RCW 43.21B.110(1); Redmond, 136 Wash. 2d at 45. Though
constitutional arguments are made, this case is a matter of statutory interpretation
and application.
Phan argues the City did not follow the DVA procedures and violated his
due process rights. Therefore, he should not be liable for costs under the DVA.
8
No. 79392-6-1/9
The City makes two arguments. First, it argues that its seizure of Phan’s vessel
did not violate his due process rights. Second it argues that the Board should have
held Phan liable for all costs associated with impounding and storing the vessel,
including costs incurred prior to October 17. Both parties seek attorney fees
incurred in the judicial proceedings.
I. The Temiorary Taking
A. The October 11 lm~ound
The Board found that it had no jurisdiction to address either the propriety or
costs of the City’s October 11 impoundment of Phan’s vessel, because that action
was taken pursuant to the Kirkland Municipal Code. The City argues this was error
because the DVA allows it to recover all costs associated with impoundment of the
vessel, regardless of whether the initial seizure was made pursuant to the DVA or
to the Kirkland Municipal Code. Phan argues this was error because the initial
seizure violated his due process rights and should be overturned.
The Board is given limited jurisdiction to hear and decide appeals by RCW
43.21 B.1 10. That jurisdiction includes appeals of decisions by a public entity to
take temporary possession of a vessel under DVA. RCW43.21B.110(1)(n). The
statute makes no mention of authority to review decisions of a public entity to take
custody of a vessel pursuant to its municipal code. RCW43.21B.110(1).
Before the Board, the City acknowledged that it impounded Phan’s vessel
under its municipal code. The City now argues, however, that it is irrelevant that it
seized the vessel under the Kirkland Municipal Code, because it objectively
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No. 79392-6-Ill 0
complied with the requirements for taking temporary possession under the DVA.
But, the record does not support this claim.
The DVA requires that an authorized public entity make a reasonable
attempt to consult with the DNR or the United States Coast Guard prior to taking
temporary possession of a vessel to ensure other remedies are not available.
RCW 79.100.040(3)(b). The City made no efforts to contact the DNR to ask if
other remedies were available before impounding the vessel.5 The City did not
meet with the DNR to discuss options to seizure of the vessel until October 1 7~6
At oral argument, the City argued that its failure to meet with the DNR is not
relevant because it was a failure “to comply with some procedural requirement”
that did not automatically violate Phan’s right to procedural due process. This
argument is in part a response to Phan’s assertion that his due process rights were
violated. But, we need not reach the due process issue. The threshold question
is whether the City complied with requirements of the statute. It did not. The failure
to confer with the DNR prior to seizing the vessel is not an irrelevant procedural
violation.
~This was likely due to a lack of awareness of the statute prior to its October
17 meeting with the DNR. Lieutenant Saloum, the City’s representative during this
process, testified that the October 17 meeting with the DNR is “when we were
informed of the DNR process.”
6 The City points to a September 9 communication between sheriff’s
deputies and the DNR. This communication would not be sufficient to satisfy the
requirements of the DVA. Sheriff’s Deputy Mark Rorvik testified that he e-mailed
the DNR on that date to inquire as to the legality of Phan grounding his vessel.
The DVA requires an attempt to contact the DNR to ensure that remedies other
than a temporary seizure of the vessel are not available. RCW 79.100.040(3)(b).
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No. 79392-6-Ill I
The requirement to meet with the DNR is a substantive protection for the
owner of the vessel designed to ensure that other options are not available prior
to seizure. The statute provides,
(a) Any authorized public entity may tow, beach, or otherwise take
temporary possession of a vessel if the owner of the vessel cannot
be located or is unwilling or unable to assume immediate
responsibility for the vessel and if the vessel:
(i) Is in immediate danger of sinking, breaking up, or blocking
navigational channels; or
(ii) Poses a reasonably imminent threat to human health or
safety, including a threat of environmental contamination.
(b) Before takinci temporary possession of the vessel, the
authorized public entity must make reasonable attempts to consult
with the department or the United States coast ciuard to ensure that
other remedies are not available. The basis for taking temporary
possession of the vessel must be set out in writing by the authorized
public entity within seven days of taking action and be submitted to
the owner, if known, as soon thereafter as is reasonable. If the
authorized public entity has not already provided the required notice,
immediately after taking possession of the vessel, the authorized
public entity must initiate the notice provisions in subsection (1) of
this section. The authorized public entity must complete the notice
requirements of subsection (1) of this section before using or
disposing of the vessel as authorized in RCW79.100.050.
RCW 79.100.040(3) (emphasis added). The language of (b) is an express
limitation of the taking of temporary possession authorized in (a). It requires
reasonable efforts to contact a third-party with expertise to determine that there
are no other options. It does not contain any exceptions. It does not say, “unless
the consultation would have been futile.” It is not ambiguous. We have no
authority to add those words to the statute under the guise of interpretation. ~
Vita Food Prods., Inc. v. State, 91 Wash. 2d 132, 134, 587 P.2d 535 (1978).
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No. 79392-6-1/12
We affirm the Board’s finding that it lacked jurisdiction to rule on the
propriety of the October 11 impound under the Kirkland Municipal Code.7 Because
the impound was not a taking of temporary possession in compliance with the
DVA, the Board properly denied the City’s request for costs associated with the
October 11 impound.
B. Temporary Possession on October 17
The Board ruled that the City correctly took temporary possession of Phan’s
vessel under the DVA on October 17. Phan argues the Board was in error.
An authorized public entity may take temporary possession of a vessel if
the owner is unable to assume responsibility and the vessel poses a reasonably
imminent threat to human health or safety, including a threat of environmental
contamination. RCW 79.100.040(3)(a). In order to take temporary possession,
the City must first meet with the DNR or the United States Coast Guard to ensure
other remedies are not available. RCW 79.1 OO.040(3)(b). It must set out in writing
the basis for taking possession within seven days and send these reasons to the
owner “as soon thereafter as is reasonable.” RCW 79.100.040(3)(b).
Phan argues that whatever “emergency” existed when the vessel was
initially seized on October 11, no longer existed on October 17. He is correct. The
Board found that the vessel created a hazard to the public and the environment
when the City seized it under its municipal powers on October 10. It made no
findings that the vessel posed an imminent threat when the City sought temporary
a result, Phan’s argument that the taking under the city impound statute
violated his constitutional due process rights was not decided by the Board and is
not before this court.
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No. 79392-6-1/13
possession on October 17. The record makes clear that on that date, the boat was
safely dry-docked at Lake Union. No imminent threat existed on October 17 so
the City could not have been in compliance with temporary taking provision of the
DVA as of October 17.
Representatives of the City and the King County Sheriff’s Department met
with the DNR on October 17 and discussed the possibility of seizing the vessel
under the DVA. The City’s representative described the meeting as being
“informed of the DNR process” and being “provided the outline and guidelines for
the dates.” The testimony does not clearly establish whether remedies other than
temporary possession, as required by RCW 79.100.040(3)(b), were discussed at
the October 17 meeting. But, the meeting with DNR on October 17 could not
effectively determine if there were alternatives to seizure, because the vessel had
long been seized. This meeting did not satisfy the statutory requirement to confer
before seizing.
That same day, the City posted a written notice on the vessel setting out its
basis for taking possession. Ten days later, on October 27, the city sent a letter
to Phan by certified mail giving notice of taking possession and the basis for that
possession. Phan contends that the City failed to send him the letter “as soon
thereafter as is reasonable” because the City did not mail the notice until October
27. The statute does not define what a reasonable amount of time is. See RCW
79.100.040(3)(b). The Board concluded that that the letter was sent within a
reasonable time. Phan has not established why 10 days was an unreasonable
delay nor how he was harmed.
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No. 79392-6-1/14
The Board erred in finding the City could take temporary possession of the
vessel under the DVA on October 17. Therefore, it erred in awarding the City any
costs associated with taking or maintaining temporary possession of the vessel.
II. Permanent Custody on November 17
The DVA gives an authorized public entity authority to store, strip, use,
auction, sell, salvage, scrap, or dispose of a derelict vessel. RCW 79.100.030(1).
Prior to exercising that authority, the entity must obtain custody of the vessel. RCW
79.100.040(1). In order to obtain custody of the vessel, the entity must,
(a) Mail notice of its intent to obtain custody, at least twenty
days prior to taking custody, to the last known address of the
previous owner to register the vessel in any state or with the federal
government and to any lien holders or secured interests on record. A
notice need not be sent to the purported owner or any other person
whose interest in the vessel is not recorded with a state or federal
agency;
(b) Post notice of its intent clearly on the vessel for thirty days
and publish its intent at least once, more than ten days but less than
twenty days prior to taking custody, in a newspaper of general
circulation for the county in which the vessel is located; and
(c) Post notice of its intent on the department’s internet web
site on a page specifically designated for such notices. If the
authorized public entity is not the department, the department must
facilitate the internet posting.
j~ç[. The Board found that the City accomplished this custody on November 17,
2017.
A. Was the Vessel Derelict?
The Board found that Phan’s vessel was derelict as defined by the DVA.
Under RCW 79.100.010(5),
“Derelict vessel” means the vessel’s owner is known and can be
located, and exerts control of a vessel that:
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No. 79392-6-1/15
(a) Has been moored, anchored, or otherwise left in the
waters of the state or on public property contrary to RCW 79.02.300
or rules adopted by an authorized public entity;
(b) Has been left on private property without authorization of
the owner; or
(c) Has been left for a period of seven consecutive days, and:
(i) Is sunk or in danger of sinking;
(ii) Is obstructing a waterway; or
(iii) Is endangering life or property.
The Board found that Phan was exerting control over the vessel, that he had run it
aground in Lake Washington contrary to RCW 79.02.300, and that it had been tied
to the City’s pier in a way that was not permitted by the Kirkland Municipal Code.
The findings that the boat was aground in Lake Washington and that it had
been tied to the City’s pier are supported by substantial evidence. Both facts are
recorded in the King County Sheriff’s incident report. Sheriff’s deputies also
testified to these facts. There are photos in the record of the same.
RCW 79.02.300(1) forbids a person from occupying public lands or causing
waste or damage to the same without authorization. Phan’s vessel was in public
lands on Lake Washington, and had caused damage to the lakebed and the City’s
pier. It was there without authorization. The Kirkland Municipal Code also forbids
securing a vessel in City waters for longer than 72 hours. KMC 14.16.030. Phan’s
vessel was aground on the lakebed for at least seven consecutive days from
October 5 through 11.8 Sheriff’s deputies had informed Phan that he was not
8 The Kirkland Municipal Code has an exception for emergency situations,
and Phan’s vessel was initially docked to the pier on October 6 because it was
unsafe to move due to weather conditions. KMC 14.16.030(3). However, Phan
was informed that he needed to move his vessel the next day. Phan’s vessel
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No. 79392-6-1/16
authorized to have his boat at that location, and that it needed to be moved.
Therefore, Phan’s vessel was a derelict vessel in public waters on October 6, when
the City seized it.
The DVA contemplates that temporary possession may need to be taken
by a government prior to seeking permanent custody. RCW 79.100.040(3). And,
the DVA does not cut off impound of a vessel under other law prior to seeking
permanent custody under the act. RCW 79.100.020. If the vessel was derelict at
the time of taking temporary possession or impound, it is a derelict vessel for the
purposes of obtaining permanent custody.
We affirm the Board’s finding that Phan’s vessel was derelict under RCW
79.100.010(5).
B. Notice Provisions
Phan contends that the City failed to comply with the DVA’s notice
provisions. The DVA has a variety of notice provisions to ensure that the owner of
a vessel is able to challenge a public entity’s determination that their vessel is
derelict. RCW 79.100.040(1). Prior to taking permanent custody of a vessel, the
authorized public entity must,
(a) Mail notice of its intent to obtain custody, at least twenty
days prior to taking custody, to the last known address of the
previous owner to register the vessel in any state or with the federal
government and to any lienholders or secured interests on record. A
notice need not be sent to the purported owner or any other person
whose interest in the vessel is not recorded with a state or federal
agency;
nevertheless remained until October 11. This was due not to the initial weather
emergency, but due to Phan’s inability to move the vessel.
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No. 79392-6-1/17
(b) Post notice of its intent clearly on the vessel for thirty days
and publish its intent at least once, more than ten days but less than
twenty days prior to taking custody, in a newspaper of general
circulation for the county in which the vessel is located; and
(c) Post notice of its intent on the department’s internet web
site on a page specifically designated for such notices. If the
authorized public entity is not the department, the department must
facilitate the internet posting.
RCW 79.100.040(1)(a)-(c).
The City partially complied with notice requirements. It sent a notice of
intent to obtain custody to Phan by certified mail on October 27, twenty one days
prior to obtaining custody. Phan received the notice on November 2.~ The City
also posted the notice on the DNR website beginning on October 17 or 18. It
physically posted notice on the vessel on October 17. However, the City did not
comply with the newspaper provision of subsection (b).
The City published a notice of intent to obtain custody of the vessel in the
Seattle Times from November 10 through 16. The DVA requires publishing for at
least one day between ten and twenty days prior to the public entity taking custody.
RCW 79.100.040(1)(b). The City took custody of the vessel on November 17.
Thus, the posting took place for seven days immediately preceding when the City
took custody, rather than between ten and twenty days before it took custody as
the DVA requires. RCW 79.100.040(1)(b).
Phan does not allege a deprivation of notice or right to be heard. He had
actual notice and timely appealed. Nonetheless, Phan contends that the lack of
~ That Phan was unable to sign for the certified letter until this time is
immaterial. The statute requires only that the notice be mailed at least twenty days
prior to taking custody. RCW 79.100.040(1)(a).
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No. 79392-6-1/18
strict compliance with the DVA’s notice provisions violates his due process rights.
The Board found that the City substantially complied with the notice provisions.
A minor procedural error does not necessarily rise to the level of a due
process violation. State v. Storhoff, 133 Wash. 2d 523, 527, 946 P.2d 783 (1997).
Phan must allege that the error deprived him of notice or an opportunity to be
heard. Id. at 527-28. He argues instead that his due process rights were violated
because the language of the statute is mandatory. This is not sufficient to establish
a constitutional due process violation.
The Board concluded that the purpose of the DVA’s notice provisions is to
apprise the owner and lienholders that an authorized public entity intends to take
custody of the vessel. It is clear that the multiple notice provisions for taking
permanent custody are designed to create redundancies to ensure that notice is
effectuated. That purpose is met when actual notice is given. Failure to fully carry
out one of these redundancies can therefore be considered a minor procedural
violation for due process purposes and substantial compliance for statutory
purposes. Here, Phan received notice of the City’s intentions when he received
the notice by certified mail. Phan was then able to appeal the City’s decision to
take custody of the vessel, as contemplated by the statute. RCW 79.100.120.
Accordingly, he was given an opportunity to be heard at a hearing before the
Board.
The Board properly invoked and applied the substantial compliance
standard in determining that the City substantially complied with the DVA’s notice
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No. 79392-6-1/19
provisions. The Board did not err in concluding that the City properly took
permanent custody of Phan’s vessel on November 17.
lii. Costs
The DVA requires the owner of a derelict vessel to reimburse the public
entity that seizes their vessel “for all reasonable and auditable costs associated
with the removal or disposal of the owner’s vessel under this chapter.” RCW
79.100.060(1) (emphasis added).
The City also did not properly take temporary possession of the vessel
under the DVA on October 11 nor on October 17. See supra, Part II. Therefore,
the Board erred in awarding the City costs incurred in taking temporary possession
of the vessel. RCW 79.100.060(1). Recovery of any costs of impound under the
City’s municipal code, and the reasonableness of those costs, are outside the
Board’s jurisdiction and therefore not before this court. RCW 43.2 1B.110(1); Cent.
Puget Sound Growth Mgmt. Hearings Bd., 136 Wash. 2d at 45.
The City properly took permanent custody on November 17. We affirm that
Phan must reimburse the City for all reasonable and auditable costs associated
with obtaining permanent custody and disposal of the vessel. RCW 79.100.060.
IV. Attorney Fees
Each side requests attorney fees as the prevailing party on appeal under
RAP 18.1, or as the substantially prevailing party on appeal under RAP 14.2. The
DVA entitles a prevailing party in litigation to reasonable attorney fees and costs.
RCW 79.100.120(2)(a).
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Phan has prevailed on the temporary possession issue. The City has
prevailed on the permanent custody issue. Neither party is a substantially
prevailing party. Neither party is awarded attorney fees on appeal either at the
superior court or the Court of Appeals.
We vacate the decision of the superior court. We remand to the Board to
amend its order consistent with this opinion.
WE CONCUR:
Cl
/
I
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