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HomeMy WebLinkAbout12-31-2024 - HEX 2nd clarification - Carner Reconsideration HearingCAUTION: 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 To:Kelly Carner Cc:Sheila Madsen; Cynthia Moya; Carner, Kelly; Donna Locher Subject:Re: Carner Reconsideration Hearing Date:Tuesday, December 31, 2024 10:44:29 AM Mr. Carner, In response to your email below (not cc'd to the other parties), the new evidence referenced in my 12/31 email are the photographs and witness statements the City objected to in its December 4, 2024 email. If you are saying this information was already in the record for your final decision, please identify when the information was previously submitted. If those statements and photographs had been submitted prior to the close of the record for your final decision then that may change the scope of reconsideration review. On Tue, Dec 31, 2024 at 10:23 AM Kelly Carner <kelvisss@gmail.com> wrote: Phil my question was why was all this overlooked during the hearing because it was documented on record when the hearing started the pictures and witness statements were sent to show i had proff. On Tue, Dec 31, 2024 at 7:52 AM Phil Olbrechts <olbrechtslaw@gmail.com> wrote: 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. 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. 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: 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.