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HomeMy WebLinkAbout12-18-2024 - Citys - Response to City Motion to Strike CODE23-000293CAUTION: This email originated from outside the City of Renton. Do not click links, reply or open attachments unless you know the content is safe. From:Sheila Madsen To:Phil Olbrechts; Kelly Carner; Carner, Kelly Cc:Cynthia Moya; Donna Locher Subject:RE: Response to City Motion to Strike CODE23-000293 Date:Wednesday, December 18, 2024 3:34:04 PM Good afternoon Mr. Hearing Examiner and Mr. Carner – In response to the Hearing Examiner’s email of December 13, 2024, the City does wish to cross examine each of the authors of the witness statements and Mr. Carner as to foundation for the photograph he submitted. We respectfully request a hearing date be set for cross examination, as well as due dates for our response to Mr. Carner’s submissions. Thank you, SHEILA MADSEN, Code Compliance Inspector City of Renton // Development Services Virtual Permit Center // Online Applications and Inspections office 425-430-7236 NOTICE OF PUBLIC DISCLOSURE: This message complies with Washington State’s Public Records Act – RCW 42.56 From: Phil Olbrechts <olbrechtslaw@gmail.com> Sent: Friday, December 13, 2024 11:31 AM To: Sheila Madsen <SMadsen@Rentonwa.gov>; Kelly Carner <kelvisss@gmail.com> Cc: Cynthia Moya <CMoya@Rentonwa.gov>; Donna Locher <DLocher@Rentonwa.gov> Subject: 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. 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?