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Judge rules in favor of Kenmore in solar panel dispute with local man

Kenmore resident Patrick O’Brien in front of his solar panel structure, before the city ordered him to take it down in January in response to a citizen complaint. - File photo
Kenmore resident Patrick O’Brien in front of his solar panel structure, before the city ordered him to take it down in January in response to a citizen complaint.
— image credit: File photo

A King County Superior Court judge on Aug. 16 ruled in favor of the city of Kenmore regarding a solar panel dispute with a local man.

The city contended that Patrick O’Brien, who the city in January ordered to take down his solar panels in response to a citizen complaint, misrepresented his structure as an arbor for grape vines and failed to obtain a permit for the unsafe structure.

O’Brien, who is running for Kenmore City Council, filed a Land Use Petition Act (LUPA) appeal in February in King County Superior Court over the decision, claiming the issue is about local jurisdictions “taking control” of green energy.

He claimed the Hearing Examiner, which upheld the city’s decision, erred in its ruling because the city does not have an ordinance that deals with the use and installation of solar panels.

But Judge Catherine Shaffer ruled that the city was not preempted by state law from requiring a building permit for the structure and that city code requires a permit for all structures - including solar panels.

Shaffer also found that O’Brien did not establish that the building permit fee constituted a tax because the fees pay for the costs of processing permit applications.

Kenmore city officials say the city has accrued more than $40,000 in legal and Hearing Examiner costs to defend this case.

“This case has been very clear-cut from the beginning,” said Mayor David Baker in a press release. “It’s a shame that so many resources and tax dollars had to go toward enforcing obvious violations of the city’s safety codes.”

City Manager Rob Karlinsey added “the unambiguous and decisive decisions by both the Hearing Examiner and the superior court judge speak to the professionalism and integrity of my co-workers who are tasked with enforcing the city’s safety codes.

"As a city, we value and encourage solar panels — in fact, Kenmore City Hall has solar panels. We also put a high priority on safety. When forced to choose between solar panels and safety, we will always choose safety. Obtaining building permits for the structural installation of solar panels will help ensure their safety.”

O’Brien said he is disappointed with the judge’s decision.

“I was aghast,” he said. “It was a Friday afternoon and the judge said, ‘You’ve got 10 minutes.’ I didn’t spend all that time and money for weeks and weeks to be given 10 minutes.”

He agrees with Baker that the city wasted tax dollars on this case.

“They can gloat,” O’Brien said of city officials, “but the city has spent more than [$40,000] on this and if they think that’s what a good use of their time and money is, that’s the city manager’s call. Where the blame lays on that is the thing to be debated.”

O’Brien said he is also considering appealing the decision to the Court of Appeals.

“What I see in this is that I lost the battle but I didn’t lose the war and it will be up to others in the city of Kenmore to come forward when they feel they are being abused,” O’Brien said.

O’Brien has 30 days from Aug. 16 to appeal the decision.

During the appeal hearing, Shaffer also ruled on a separate code enforcement action over a retaining wall, noting that substantial evidence supports the city’s and Hearing Examiner’s determination that the wall is unsafe.

 

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