HomeMy WebLinkAbout12-13-2024 - HEX email response
Cynthia Moya
From:Phil Olbrechts <olbrechtslaw@gmail.com>
Sent:Friday, December 13, 2024 11:31 AM
To:Sheila Madsen; Kelly Carner
Cc:Cynthia Moya; Donna Locher
CAUTION: This email originated from outside the City of Renton. Do not click links, reply or open attachments unless
you know the content is safe.
The City's motion to strike is denied in part. The new evidence presented by Mr. Carner will be admitted but the City
shall have a right to cross examine the authors of Mr. Carner's witness statements and shall also have a right to cross
examine Mr. Carner on the foundation for his photographs. If pertinent witnesses are not made available for cross-
examination, the associated evidence will be excluded. The City of course has no obligation to cross-examine. If it
chooses not to cross-examine the associated evidence will be admitted. The City should advise the parties and examiner
by email by 5 pm 12/18/24 whether it elects to conduct any cross-examination. The City will also be given an
opportunity to respond to Mr. Carner's reply once the cross-examination issue is resolved.
In their reconsideration argument the parties have been relying upon the Administrative Procedure Act (APA), Chapter
34.04 RCW, as legal authority on hearing procedures. The APA does not govern local code enforcement proceedings or
their judicial appeals. Code enforcement decisions are subject to judicial appeal under the Land Use Petition Act (LUPA),
Chapter 36.70C RCW. See RCW 36.70C.030; RCW 36.70C2c. New reconsideration evidence in land use permit (not code
enforcement) hearings subject to LUPA appeal are strictly prohibited to avoid violating the RCW 36.70B.050(2)
requirement of only holding one hearing per land use permit application. RCW 36.70B.050(2) was adopted to prevent
developers from being burdened with and the public being confused by multiple on-going hearings. RCW 36.70B.050(2)
doesn't apply to code enforcement proceedings.
The City's reliance upon the APA as an analogous source of legal authority on reconsideration review is understandable
but there is an important difference between the state agency proceedings covered by the APA and a local code
enforcement review process. State agency proceedings are much more formal and are presided over by administrative
law judges and review boards such as the Growth Management Hearings Board. Participation in those forums usually
necessitates legal representation. Local code enforcement in contrast is intended to be more accessible to the
public. Ideally persons should not have to pay for an attorney to be effectively heard. To make the forum accessible,
technical and complex procedural rules are avoided. In the place of technical procedural rules, the parties are given a
high degree of flexibility to present their evidence with the overriding due process principle that both sides are given
reasonable opportunity to both present evidence and respond to the evidence from the other side. The ultimate
purpose of a code enforcement hearing is to develop a record that accurately establishes the facts of a particular
case. So long as the costs of the proceeding are not unreasonable and the public is not prejudiced by added delay, new
evidence after the close of a hearing can be considered. In this case Mr. Carner was not initially made aware of how the
burden of proof operates for nonconforming use rights. To ensure that this defense was not impaired by this lack of
understanding it is appropriate to consider additional evidence on this issue. It's understood that Mr. Carner still asserts
that he doesn't have the burden of proof, but it is also reasonable for him to be given the opportunity to lay the
evidentiary foundation for meeting that burden of proof should he not succeed in prevailing on his position in a judicial
appeal.
Although land use proceedings are not subject to technical rules of evidence, in land use proceedings, cross-examination
of witnesses is considered a right when the hearing is distinctly adversary, the parties are represented by counsel, and
expert witnesses are called to give testimony on extremely complex, technical, and disputed factors. See Chrobuck v.
Snohomish County, 78 Wn. 2d 858 (1971). That is why the City is given an opportunity for cross-examination as
specified above.
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The City's response (when a due date is set) should clarify a couple points in its reconsideration argument. In an
11/22/24 email Ms. Madsen stated "The City recognizes its mistake in not contesting Mr. Carner’s position on
burden of proof for his affirmative defenses and preserves that argument for future cases." In a 12/6/24 email Ms.
Madsen argued that Mr. Carner has the burden of proof on affirmative defenses for this case. The City appears to
have reversed its 11/22 position Is the City now contesting Mr. Carner's position on burden of proof in relation to
nonconforming uses? A second point in need of clarification is Ms. Madsen's 11/22/24 email in which she asserts
that Mr. Carner had not established this his trailer use was a legal nonconforming use. Is the City conceding the
point that trailer use can be protected as a nonconforming use from new regulation? As identified in the 2019
Carner decision, Mr. Carner's use of the property for a single family residence is protected as a nonconforming use
but that use can be subject to newly enacted performance standards on that use such as standards regulating
outdoor storage. In general, nonconforming uses can be subject to new regulations so long as the vested use isn't
entirely terminated. Is the City agreeing that prohibiting trailer occupancy qualifies as the termination of a vested
use as opposed to regulation of Mr. Carner's residential use?
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