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HomeMy WebLinkAbout02-05-2025 - HEX email Re_ 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; Donna Locher Subject:Re: Carner Reconsideration Hearing Date:Tuesday, February 4, 2025 9:26:57 PM Mr Carner, Check in to make sure there are no more questions about next week's hearing. If you plan on submitting any exhibits or have any additional witness testimony beyond yourself please advise within the next couple days. Thank you and see you at the virtual hearing next week. On Tue, Dec 31, 2024 at 6:07 PM Kelly Carner <kelvisss@gmail.com> wrote: Sorry about The response was a mistake was responding from my iPhone and hit reply, Obviously I need submit the evidence, and I’m not worried about the City presenting new evidence because there is no evidence to say I was never not living in the trailer, other then when I travel for work, which doesn’t count since it is my place of residence. The only reason I’ve been asking for help on the email responses is my daughter is pregnant and I don’t want add undue stress on her, and the other 2 that live Baja like I stated. The City already knows all of this but they’re trying to get technicality that would not allow me to stay in my home which there is none. They could ask all the questions they want in emails that could then be answered with more thought and less stress on the individuals involved. The high their is plenty of case law that say is acceptable and would infer with doe process. As you know I’ve been dealing with this for sometime and the stress it has caused me is unacceptable. I shouldn’t have to be fighting for the place I’ve been living that doesn’t hurt anyone. This is Ridiculous. On Tue, Dec 31, 2024 at 7:48 PM Phil Olbrechts <olbrechtslaw@gmail.com> wrote: Mr. Carner, In all communications with me about your appeal please include the other parties to this email. I am not allowed to talk about the substance of your case without the City included and vice-versa. Other than scheduling with Ms. Moya, I have never communicated with the City about your appeal. If Ms. Madsen ever sent me anything about your case without your cc, I would forward that communication to you. If you feel that the information you provided during the hearing was enough to argue your nonconforming use rights for the trailer habitation charge, you are free to withdraw the new evidence you submitted with your reconsideration request. If you withdraw your new evidence, you and the City will not be allowed to present new evidence in the reconsideration review. It's up to you as to which route you'd like to take. The bottom line is that if you submit new evidence, there's no question that the City has a right to respond in kind by presenting its own new rebuttal evidence. On Tue, Dec 31, 2024 at 2:14 PM Kelly Carner <kelvisss@gmail.com> wrote: No it wasn’t in the final. I'm talking about the matter of the grandfathered and vested right that was part of my defense identified during the hearing in August and was not addressed during the hearing or your final decision. The pictures and statements were sent to show you I have proof i was never once asked to prove it, the question I’m asking is why you didn’t address this during the hearing since this has been my main argument since this all started, my Grandfathered rights, Vested rights and Unconditional use have been my defense throughout this. The letter that is attached is what am referring to which covered all these issues in August and i also disagree with me having full burden of proof in this matter, that means the City could accuse me of whatever they want and it's up to me me solely to defend myself, that's not like anything i've researched here is why attached below, the City never presented evidence that i haven't lived in my trailer or that anything i said was untrue. The City knows the pictures are real and is just trying muddy the waters with this game they are playing, the Witness testimonies shouldn't even be needed for you to make a decision, but they will all be available when the time is finalised. 2. Civil Cases In civil cases, the plaintiff bears the initial burden of proof, but once they establish a prima facie case, the burden may shift to the defendant to rebut it. • Key Legal Authority: • Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986): Discusses the standards for the burden of proof in civil trials, including preponderance of the evidence. On Tue, Dec 31, 2024 at 10:44 AM Phil Olbrechts <olbrechtslaw@gmail.com> wrote: 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. 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: 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.