City responds to Kenmore man’s court appeal over solar panels

The city of Kenmore contends that a local man, who the city ordered to take down his solar panels in January, misrepresented his structure as an arbor for grape vines and failed to obtain a permit for the unsafe structure.

The city of Kenmore contends that a local man, who the city ordered to take down his solar panels in January, misrepresented his structure as an arbor for grape vines and failed to obtain a permit for the unsafe structure.

Patrick O’Brien, who is running for Kenmore City Council, filed an appeal in February in King County Superior Court over the decision, claiming the issue is about local jurisdictions “taking control” of green energy. He claims 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.

Rosemary A. Larson, attorney for the city, filed a response on July 8 to O’Brien’s appeal, denying that the Hearing Examiner’s decision requiring O’Brien to take down his solar panels was erroneous.

Three years ago O’Brien built a structure by installing four wooden piers into his driveway and placing a 20-panel solar array on top.

His solar panels became an issue in 2010 when the city received a complaint that there was an un-permitted arbor on O’Brien’s property. The city’s code compliance officer came out to his house and observed the solar panels on the structure.

O’Brien had initially told the city he was constructing an arbor for grape vines when he applied for a building permit. However, he did not inform the city that he intended to place solar panels or any other covering on the arbor, the court documents state.

According to city code and state law, any alteration to a structure also requires a building permit.

“The panels are a structural modification to an arbor that requires city review to determine if the panels are safely installed …,” said the Hearing Examiner in his Jan. 19 ruling. “The purpose of the permit requirement is to help ensure safety of the structure, not to discourage solar energy.”

In the city’s response, Larson noted that although O’Brien obtained a permit for a grape arbor, “he either never intended to construct only an arbor or he altered the arbor by attaching the solar panels to the support posts. In either event, he must apply for a building permit for that work.”

O’Brien argued that the city cannot apply its permit requirement to solar panel structures because the building code is not specific to solar panel structures. He also claimed he followed the state’s requirements and process for such structures.

However, Kenmore city code “requires that a building permit be obtained for construction or alteration of any structure, and no exemption applies to solar panel supports,” court documents continue.

O’Brien also claimed the city’s building permit fee for his solar panel structure is an improper tax.

However, Larson said state laws exempt installation of certain solar panels from state sales and use tax – not from building permit fees. She continues that the city’s building permit fee is a valid regulatory fee.

In addition, O’Brien contended that the city discriminated against him when it required him to obtain a building permit for his solar panel structure. He said at least one property owner in Kenmore may have installed solar panels without obtaining a permit.

“However, … code enforcement in the city is generally driven by citizen complaints,” according to the city’s response. “The fact that one person may be in violation of the city code does not mean that the city’s application of the permit requirement to [O’Brien’s] structure is an equal protection violation.”

The court appeal also addresses a second code violation on O’Brien’s property relating to a retaining wall that could also be unsafe.

O’Brien seeks to reverse the city’s decision to have him take down his solar panels and obtain a building permit. He also seeks an award of attorneys’ fees and any further relief the court deems necessary.

The court is expected to make a decision on the appeal Aug. 5.

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