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HomeMy WebLinkAbout12-23-2024 - Carners Claification to 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:Kelly Carner To:Sheila Madsen; Phil Olbrechts; Cynthia Moya Subject:Re: Response to City Motion to Strike CODE23-000293 Date:Monday, December 23, 2024 4:12:36 PM Let me clarify the question I asked because your trying to word maze around it, has the City Attorney helped you with any of the responses made during this hearing ? On Mon, Dec 23, 2024 at 3:59 PM Sheila Madsen <SMadsen@rentonwa.gov> wrote: Good afternoon Mr. Hearing Examiner and Mr. Carner; In response to Mr. Carner’s email dated December 22, 2024 asking whether I have “been using legal counsel provided by the City during these proceedings” – the City Attorney’s office represents City Departments including the Community & Economic Development Department. In my role as Code Compliance Inspector, I have consulted with the City Attorney’s office with respect to Mr. Carner’s appeal. The City Attorney’s office has not, to date, appeared on behalf of the Department. Mr. Carner’s December 19, 2024 email and attachment appears to make the following requests: A. Request a mutually agreeable hearing date. B. Establish deadlines for: a. The City to submit a response to Mr. Carner b. Notice of finalized hearing date C. Request for either remote or email cross-examination of Mr. Carner’s witnesses, as 2 reside in Baja Mexico, and 2 others have unspecified hardships (per his cover email). D. Limited cross-examination to: a. Authenticity and foundation of the submitted photograph b. Assess credibility of witness statements E. Preserve all witness responses. I answer in order: A. As the City has already requested establishing a hearing date, we have no objection to a mutually agreeable date. The City also wishes to clarify that we are requesting the following: a. A hearing date to cross-examine witnesses with respect to their written statements, and foundation for the photograph. b. A schedule to which both the City and Mr. Carner will be held, in order to: i. Provide notice of which witnesses (including Mr. Carner) will be available; and ii. Time and date of an in-person or remote video hearing to cross examine witnesses (including Mr. Carner); and iii. Schedule for: 1. Time and date for the City to Respond to Mr. Carner’s Motion for Reconsideration after the in-person or remote video hearing at which the City has an opportunity to cross examine witnesses and their statements which were provided by Mr. Carner on November 25, 2024; 2. Time and Date for Mr. Carner to Reply to the City’s Response; 3. To the greatest extent possible, whether any further briefings will be considered in this matter; 4. Final hearing, if needed, to provide a decision in the appeal. A. The City has also requested deadlines, and clarifies our request as noted in section A above. B. The City will stipulate to a remote video hearing for cross examination, but objects to e-mail cross-examinations. To the extent a written cross-examination is allowed, the City objects to pre-approved questions only, since the opportunity to further develop answers or replies in the course of cross- examination would be stymied and would limit the City’s ability to effectively cross examine the witnesses. a. We object to email cross examination because of concern for timeliness in response, ease of communications, and ability to adequately restate or clarify questions as needed. Mr. Carner, by seeking statements from witnesses who are out of the country, has effectively created the hardship for which he now seeks relief. In addition, the City believes that there are remote video-conferencing facilities in many places throughout the world, including in Baja Mexico. b. In his cover email, Mr. Carner also noted that the 2 witnesses in the United States have a “responsibility that would put an undue hardship on them.” The City has stipulated to a remote video hearing at a mutually agreeable date; it seems reasonable that the date could be established to work around the witnesses’ availability and/or responsibility. c. In the Hearing Examiner’s email decision of December 13, 2024, he stated that “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.” (emphasis added). d. If Mr. Carner is unable or unwilling to make any or all of his witnesses available for either in-person or remote video cross-examination at a mutually agreeable date, the City respectfully requests the Hearing Examiner exclude evidence associated with those witnesses. C. The City will stipulate to limiting its questions as provided for in the Hearing Examiner’s December 13, 2024 email: “cross examine the authors of Mr. Carner’s witness statements and to cross examine Mr. Carner on the foundation for his photographs.” The City will limit its cross examination to matters raised in the written statements, but will not agree to further limitations Mr. Carner may be proposing. D. The City does not object to, and presumes that, all witness responses on the record will be preserved. Please Note: City Hall and City of Renton offices will be closed December 24 and December 25, 2024, as well as January 1, 2025. Responses during this time will be limited. Also, I am out of office December 30, 2024, as a regularly scheduled flex day. \\ Thank you, SHEILA MADSEN, Code Compliance Inspector City of Renton // Development Services Virtual Permit Center // Online Applications and Inspections 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. office 425-430-7236 NOTICE OF PUBLIC DISCLOSURE: This message complies with Washington State’s Public Records Act – RCW 42.56 From: Kelly Carner <kelvisss@gmail.com> Sent: Sunday, December 22, 2024 12:12 PM To: Sheila Madsen <SMadsen@Rentonwa.gov> Cc: Phil Olbrechts <olbrechtslaw@gmail.com>; Carner, Kelly <kcarner@kingcounty.gov>; Cynthia Moya <CMoya@Rentonwa.gov>; Donna Locher <DLocher@Rentonwa.gov> Subject: Re: Response to City Motion to Strike CODE23-000293 One Question, Sheila, have you been using legal counsel provided by the City during these proceedings? On Fri, Dec 20, 2024 at 12:35 PM Sheila Madsen <SMadsen@rentonwa.gov> wrote: Good afternoon Mr. Hearing Examiner and Mr. Carner, The City will respond to Mr. Carner’s December 19, 2024 communication on Monday, December 23, 2024. 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 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. From: Kelly Carner <kelvisss@gmail.com> Sent: Thursday, December 19, 2024 12:05 PM To: Sheila Madsen <SMadsen@Rentonwa.gov>; Phil Olbrechts <olbrechtslaw@gmail.com>; Kelly Carner <kelvisss@gmail.com> Subject: Re: Response to City Motion to Strike CODE23-000293 Good morning Mr. Olbrechts and Ms Madsen below is an answer to the request and stipulations being requested of the Examiner, as 2 of the individuals live in Baja Mexico, and the others have responsibility that would put an undue hardship on them. On Wed, Dec 18, 2024 at 3:34 PM Sheila Madsen <SMadsen@rentonwa.gov> wrote: 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 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. 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?