HomeMy WebLinkAboutResponse to City for Exaimer-11-25-2024Defense for Kelly Carner Against the City of Renton's Claims.
To effectively argue in defense of Kelly Carner, his position should be supported by Washington
State and U.S. law. Below are key defenses to counter the City of Renton's response and to protect
Mr. Carner's property rights:
1. Legally Nonconforming Use
Argument:
Washington State law recognizes the doctrine of legally nonconforming use, which protects
property uses that predate zoning regulations if the use was lawful when established. Under RMC
4-10-060, legally nonconforming uses are allowed to continue despite n ew regulations. Mr. Carner
asserts that his Jayco fifth-wheel trailer was in compliance before Ordinance 5959 was enacted in
2019, since he has been using in the same manner since 2008 and had previous RV used in the
same manner since he purchased his property in King County in 1999.
Rebuttal to City's Position:
The City incorrectly shifts the burden of proving nonconforming use entirely onto Mr. Carner. In
cases such as Anderson v. Island County, 81 Wn.2d 312 (1972), Washington courts have
recognized that while property owners have some burden to show evidence of lawful pre-existing
use, municipalities must also act in good faith when enforcing zoning laws. The City must
substantiate its claim that the Jayco trailer was not legally used prior to 2019. (Also the City
response stated the Montana trailer, when it is documented that the Montana trailer hasn’t been
on the property and was sold back 5-6 months ago, we are assuming the City mis-spoke here.)
Suggested Evidence:
Documentation (e.g., dated photos, purchase records) showing the trailer's use on the property
before 2019.
Testimonies or affidavits/ Pictures supporting prior use. Mr.Carner has Also Provide pictures for
sole purpose of proving the Fifth Wheel has grandfathered rights Mr. Carner will attach to this
Document Testimonies supporting his claim.
Lack of enforcement or objection by the City before the ordinance's enactment.
2. Ambiguity in the Definition of "Vehicle"
Argument:
The City’s interpretation of “vehicle” under RMC 4-4-085 creates ambiguity. Fifth-wheel trailers are
distinctly classified under state law as nonmotorized recreational vehicles and not as "vehicles" in
the ordinary sense of the term. Washington State courts emphasize that zoning laws must be
interpreted narrowly to avoid infringing property rights (City of Seattle v. Long, 61 Wn.2d 737
(1963)).
Legal Basis:
RCW 46.04.670 defines "recreational vehicle" separately from motor vehicles.
The U.S. Supreme Court in FCC v. Fox Television Stations, 567 U.S. 239 (2012) held that
ambiguities in regulatory language that affect property use must be resolved in favor of the
individual to avoid retroactive penalties.
Rebuttal to City's Position:
The City’s reliance on the Hearing Examiner’s broad definition fails to address ambiguity in the law.
Clarifying ambiguity should not retroactively penalize property owners without proper notice.
3. Violation of Fifth Amendment Protections
Argument:
The City’s enforcement action violates the Fifth Amendment’s Takings Clause and Mr. Carner’s
right to due process. Zoning laws cannot arbitrarily deprive property owners of the reasonable use
of their land without just compensation (Penn Central Transportation Co. v. New York City, 438 U.S.
104 (1978)).
Just compensation in this case would be equal to a 1-bedroom apartment with storage in the area
where Mr. Carner lives, which would be equal to between 2000-2600 per month, if the City would
like to pay for that, then that can be negotiated at a later time .
Specific Concerns:
Overreach: By interpreting fifth-wheel trailers as “vehicles,” the City improperly restricts Mr.
Carner’s use of his private property.
Unlawful Seizure: Impounding or penalizing Mr. Carner’s trailer without providing adequate notice
or procedural safeguards violates his constitutional protections.
Rebuttal to City's Position:
The City argues that zoning regulations fall under its police powers, but this authority is not
unlimited. Courts have ruled that zoning actions must balance public purpose with private property
rights (Nectow v. City of Cambridge, 277 U.S. 183 (1928)). The City has failed to demonstrate how
Mr. Carner’s use disrupts residential character or aesthetics, making the enforcement arbitrary
and capricious. (this is not an HOA and cannot be treated as such).
4. Due Process Violations
Argument:
The City’s failure to properly notify Mr. Carner of the 2019 Hearing Examiner Decision infringed
upon his Fourteenth Amendment right to due process. According to Washington law, due process
requires timely and adequate notice of legal proceedings (Mathews v. Eldridge, 424 U.S. 319
(1976)).
The highlighted area below is when the 2019 decision was dated, and the email dated 3 -22-2019
stats by Cynthia Moya when Mr. Carner picked up the decision, Mr. Carner did not receive the
Notice of decision in the time period required for an appeal which makes the 2019 Decision
invalided.
(DATED this 21st day of February, 2019. City of Renton Hearing Examiner
NOTICE OF RIGHT TO APPEAL AND RECONSIDERATION
Appeal to Superior Court. An appeal of the decision of the Hearing Examiner must be filed with
Superior Court within twenty-one calendar days, as required by the Land Use Petition Act, Chapter
36.70C RCW. Requests for reconsideration shall be entertained if filed with the City Clerk prior to
5:00 pm,
March 8, 2019.)
From: Cynthia Moya
Sent: Friday, March 22, 2019 12:38 PM
To: Phil Olbrechts <olbrechtslaw@gmail.com>
Cc: Craig Burnell <Cburnell@Rentonwa.gov>; Donna Locher <DLocher@Rentonwa.gov>; Kevin Louder
<KLouder@Rentonwa.gov>; Lynne Hiemer <LHiemer@Rentonwa.gov>; Robert Shuey
<RShuey@Rentonwa.gov>
Subject: Kelly Carner Code Compliance Decision
Phil,
Mr. Kelly Carner came in to say he just received his letter from us (dated 2/22 - maybe due to the snow
storm) and had no time to put in a Motion to reconsider or take it to Superior court.
I told him to write an email to us letting us know and I would forward it to all and you would have the
last word on the timing of the decision.
As soon as I get something from him, today or Monday I will forward to all involved.
Thank you,
Cindy Moya, City Clerk Specialist
City of Renton - Administrative Services/City Clerk Division
Legal Basis:
RMC 1-3-2.B.8 requires proper service by mailing to the taxpayer of record.
However, courts recognize that actual receipt of notice is necessary for meaningful participation in
legal proceedings (Jones v. Flowers, 547 U.S. 220 (2006)).
Rebuttal to City's Position:
The City claims Mr. Carner received the notice, yet it provides no substantive proof beyond a
general allegation of mailing, and the email that was shared above clearly shows Mr. Carner did not
receive the decision within the time he needed, this deprived him of his right to appeal, making the
2019 decision invalid.
5. Equal Protection Violations
Argument:
The City’s selective enforcement of RMC 4-4-085 against Mr. Carner violates the Equal Protection
Clause of the Fourteenth Amendment. Courts have held that similarly situated individuals must be
treated equally under the law (Village of Willowbrook v. Olech, 528 U.S. 562 (2000)).
Rebuttal to City's Position:
If the City cannot demonstrate that others with similar property configurations were subject to the
same enforcement, this could indicate unequal application of the law. Mr. Carner has the right to
demand evidence of consistent enforcement practices.
Conclusion
Based on the arguments above:
Mr. Carner has a legitimate defense under Washington’s legally nonconforming use laws, requiring
the City to prove noncompliance prior to 2019.
The City’s ambiguous definition of “vehicle” and its retroactive application violate state and federal
due process protections.
The enforcement action infringes on Mr. Carner’s Fifth and Fourteenth Amendment rights.
Suggested Remedy:
Protected rights of Mr.Carner should be upheld .
The Hearing Examiner should vacate the violation and require the City to present clear and
convincing evidence of noncompliance before 2019.
The Hearing Examiner should also direct the City to provide detailed records of enforcement
consistency to evaluate equal protection claims.
Thank you. Sincerely
Kelly G Carner