HomeMy WebLinkAbout12-31-2024 - HEX email - Carner Reconsideration HearingCAUTION: This email originated from outside the City of Renton. Do not click links, reply or open
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From:Phil Olbrechts
To:Kelly Carner
Cc:Sheila Madsen; Carner, Kelly; Cynthia Moya; Donna Locher
Subject:Re: Carner Reconsideration Hearing
Date:Tuesday, December 31, 2024 7:52:36 AM
As noted in my December 28o,2024 email, "[t]he scope of the virtual hearing will be limited
to the issues raised in Mr. Carner's motion for reconsideration." Due process works both
ways. Mr. Carner was given the extraordinary opportunity to have his hearing re-opened
twice to present new evidence. That's something I've never allowed in 30 years of code
enforcement hearings, but I found necessary to ensure that we get an accurate record of Mr.
Carner's past use. The City has the due process right to rebut that new evidence with its own
new evidence.
On Sun, Dec 29, 2024 at 4:05 PM Kelly Carner <kelvisss@gmail.com> wrote:
Attached is a Response to the Examiners email above.
On Sat, Dec 28, 2024 at 2:51 PM Phil Olbrechts <olbrechtslaw@gmail.com> wrote:
The City's right to cross will be handled remotely. Does February 11, 2025 at 9 am work
for the parties? The scope of the virtual hearing will be limited to the issues raised in Mr.
Carner's motion for reconsideration. In addition to cross, the City will also have the right
to present any additional new evidence pertinent to Mr. Carner's reconsideration issues.
Witness and exhibit lists will be required a week in advance. Since Mr. Carner has the
burden of proof on nonconforming use (grandfather) rights, he will be given the
opportunity to provide final rebuttal evidence at the hearing after the City's cross-
examination and presentation of response evidence. The parties will have the option of
written or verbal closings. I'll write up a prehearing order once the hearing date has been
set.
If any of Mr. Carner's witnesses have disabilities that require accommodation under the
American with Disabilities Act, he should seek to work out that accommodation with the
City first since the City hosts appeal hearings. If the parties are unable to reach agreement
on accommodation than Mr. Carner may raise the issue with the hearing examiner. Mr.
Carner should make his requests for accommodation to Ms. Moya (cc'd) by 5 pm January
10, 2025.
The City likely has a due process right to virtual as opposed to email cross examination.
Mr. Carner cites to RCW 34.05.491(3) as authority for email cross-examination. As noted
in my December 13, 2024 email, the Administrative Procedure Act (APA, Chapter 34.05
RCW) doesn't apply to local code enforcement proceedings. Further, RCW 34.05.491(3)
applies to "brief adjudications" that as defined by RCW 34.05.482 appear to be of a more
informal nature than local code enforcement proceedings. As noted in a prior email, the
more common full APA administrative review is generally more formal than local
proceedings, however the "brief" adjudications are on the other end of the spectrum. It is
recognized that the APA can apply by analogy in the absence of anything more directly
applicable. On this issue there is something more directly applicable. As identified in my
December 13 email, code enforcement proceedings are subject to the same judicial appeal
review as local land use permitting proceedings under the Land Use Petition Act (LUPA,
Chapter 36.70C RCW). In a pertinent LUPA case addressing cross-examination rights,
the trial court ruled that limiting cross examination in a permit hearing to written questions
violated the due process rights of the Applicant. The Court of Appeals ruled that it didn't
need to address the due process issue because that issue could be resolved by sections of
the Pierce County Code that expressly addressed the subpoena of witnesses.
See Weyerhaeuser v. Pierce County, 124 Wn. 2d 26 (1994). Unlike the Pierce
County Code, the Renton Municipal Code doesn't appear to address the authority
of the examiner to issue subpoenas or otherwise compel witness testimony.
Consequently, resort to due process is still applicable and the trial court's ruling
on that issue in the Weyerhaeuser case the most germaine. Further, in this case
live (albeit virtual) cross-examination can be markedly more effective at acquiring
an accurate rendition of facts since the City appears to be focused upon fleshing
out the veracity of witness statements as opposed to fleshing out the basis of
expert testimony or the like. Consequently, limiting the City to email questions
could materially impair their exercise of cross-examination and thereby violate its
right to due process.
On Thu, Dec 26, 2024 at 11:17 AM Sheila Madsen <SMadsen@rentonwa.gov> wrote:
Good morning Mr. Hearing Examiner and Mr. Carner,
In response to Mr. Carner’s continued request for information regarding the scope
of consultation with the City Attorney’s office, specific communications and/or
work product from the City Attorney’s are protected by the attorney-client
privilege. This privilege is the same one Mr. Carner enjoys with any
communications he has, or has had, or will have, with an attorney of his choosing
who represents him.
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
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From: Kelly Carner <kelvisss@gmail.com>
Sent: Wednesday, December 25, 2024 8:38 PM
To: Phil Olbrechts <olbrechtslaw@gmail.com>; Sheila Madsen
<SMadsen@Rentonwa.gov>; Cynthia Moya <CMoya@Rentonwa.gov>; Carner, Kelly
<kcarner@kingcounty.gov>
Subject: Response to City
This email is to Mr Olbrechts to respond to, a lot of questions that have been asked were
to the Hearing Examiner not the City, i would ask the Examiner take all the comments
into account when he give us guidance on how we will be expected to proceed.