HomeMy WebLinkAbout02-18-2025 - Citys Closing Briefing - Carner (CODE23-000293)From:Sheila Madsen
To:Phil Olbrechts; Kelly Carner; Carner, Kelly
Cc:Cynthia Moya; Donna Locher
Subject:Closing Briefing: Carner (CODE23-000293)
Date:Tuesday, February 18, 2025 4:50:42 PM
RESTATEMENT OF MOTION FOR RECONSIDERATION:
On November 8, 2024, Mr. Carner moved for reconsideration of the Hearing
Examiner’s November 1, 2024 Decision (2024 Decision) on City of Renton
Code Case # CODE 23-000293. Mr. Carner sought reconsideration of “the
sustained violations” as the conditions and/or uses should be afforded
“protections [of] ‘grandfather rights’”.
For Violation # 1 (Disabled or Unlicensed Vehicles and Boats) he also has
asserted that definitions of “vehicle” and “recreational vehicle” are
inconsistent and ambiguous, and that the law at the time of purchase either
did not require him to have an unmotorized recreational vehicle to be
licensed, or if the requirement did exist it was not clear and therefore the fact
the vehicle was not licensed should not be deemed a violation.
With respect to Violation #3 (Impermissible Parking Locations), Mr. Carner
asserts that because the 2024 Decision concludes that the driveway has
been considered in use since 2019, the area abutting the driveway should
also be considered as an approved surface for the purposes of parking
vehicles.
As for Violation # 4 (Habitation of Travel Trailer or Recreational Vehicle), Mr.
Carner requests the Hearing Examiner to “recogniz[e] my use of the fifth-
wheel trailer and other structures under grandfather rights” to “prevent
repeated harassment over conditions that existed prior to the updated Code
interpretations.”
Finally, Mr. Carner uses his reconsideration of the 2024 Decision to “contest
the legitimacy of the 2019 Decision” since the City cannot prove service.
BRIEFING OVERARCHING ISSUE: Burden of Proof:
In the 2024 Decision, the Hearing Examiner clearly described the legal
standard for burden of proof for affirmative defenses, including
nonconforming uses and statutory exceptions that do not negate the
elements of the violation. In its initial response to Mr. Carner’s
Reconsideration, the City noted it had not in fact previously briefed on the
matter during the initial case, however it intended to preserve the matter. In
later responses, the City asserted – and asserts here – that the burden of
proof for an affirmative defense such as a nonconforming use is on the party
asserting the defense. The 2024 Decision provides legal standards for the
burden of proof and the City incorporates those standards here by
reference.
BRIEFING OVERARCHING ISSUE: “Grandfather Rights”
The City has consistently noted that “nonconforming uses” is the equivalent
term for “grandfather rights” for consideration and so will use
nonconforming use throughout this brief. At the February 11, 2025 hearing,
the Hearing Examiner noted that the question of legally nonconforming uses
are a question of both fact and law. The City contends that the threshold
question is whether the use at issue was legal at the time it was established
and if so, then a consideration of facts will be made.
Nonconforming uses are those which were legal at the time the use was
commenced, then because of changes to the law of regulations are no
longer an allowable use. Anderson v. Island Co. (81 Wn2d 312, 501 P.2d
594 (1972)) notes that “mere purchase of property and the occupying of it
are not sufficient factors to establish an existing nonconforming use:
(Anderson, p. 321). Consideration of whether a use is or is not legally
nonconforming is a fact-specific analysis (Seven Hills LLC v. Chelan County,
198 Wn.2d 371 (2021) ) and is not generally favored (Icicle/Bunk, LLC v.
Chelan County, 28 Wn. App. 2d 522, 537 P.3d 321 2023 Wash. App. LEXIS
1987, 28 Wn. App. 2d 522, 537 P.3d 321, 2023 Wash. App. LEXIS 1987).
In fact, “nonconforming uses are disfavored and are intended to preserve
only the right not to have the use immediately terminated. Rhod-A-Zalea,
136 Wn.2d at 7-8. The limited protection provided by a nonconforming use is
still subject to “‘ordinances regulating the manner or operation of
use.’” Id. at 9 (quoting 4 Arden H. Rathkopf, The Law of Zoning and
Planning § 51A.02 (Edward H. Ziegler ed., 1991)). ... if we were to read the
term “nonconforming use” to include the specific use of the property
intended by the owner it would effectively eliminate the county's ability to
regulate the nonconforming use.” (Icicle, p.26 (emphasis added))
Nonconforming Use and Allegedly Ambiguous Terms – Violation #1
(Unlicensed Vehicles and Boats)
Mr. Carner does not dispute that he has unlicensed camper trailers parked
on his property, and within the public view, and outside of an enclosed
building. His defense is that these are legally nonconforming because he
was not required to maintain their licensing because the terms “vehicle” and
“recreational vehicle” do not expressly require “unmotorized camper
trailers” to be licensed.
Similar to the business in Icicle, Mr. Carner seems to contend that his
purported understanding of “vehicle” – to exclude a camper trailer suitable
for road use – should control the general understanding of the term. The
court in Icicle, quoting earlier caselaw, stated “we avoid interpretations that
would lead to an absurd result ... State v. Votava, 149 Wn.2d 178, 186-87, 66
P.3d 1050 (2003).” (Icicle, p.15)
Milestone Homes, Inc. V. City of Bonney Lake (145 Wash.App 118, 186 P.3d
357, 2008) determined that, since the Hearing Examiner in that case had not
determined the language is ambiguous the jurisdiction was not required to
demonstrate a pattern of past enforcement as required under Sleasman v.
City Lacey, (159 Wn.2d 639, 151 P.3d 990 (2007)). Milestone goes on to
quote Development Services v. City of Seattle,138 Wash.2d 107, 117, 979
P.2d 387 (1999) that “[T]he law does not require strict construction in favor
of the landowner. So long as the proposed use is within the scope of the
ordinance, a zoning ordinance is construed to effectuate its plain purpose
and intent.” In his 2024 Decision, the Hearing Examiner noted there were
“some inconsistencies” but stopped short of determining the term as used
in the relevant citation was ambiguous and so the City contends that he did
not find the code ambiguous and therefore Milestone applies here.
Nonconforming Use – Violation #3 (Impermissible Parking Locations)
The City agrees with the 2024 Decision “that the gravel area abutting the
driveway was never approved by any governmental entity” and therefore not
afforded consideration as a nonconforming use.
The City met its burden to prove the vehicles were parked on an area that
does not meet code requirement, the burden shifts to Mr. Carner to prove
his affirmative defense – that is, that he had a legally nonconforming use of
the property. He has provided no evidence, and instead appears to rely on a
request to expand a separately designated area, which is counter to existing
Washington state law on the matter as described above (e.g., Icicle)
Asserted Nonconforming Use – Violation #4 (Habitation of Travel Trailers or
Recreational Vehicles)
Mr. Carner contends that he had a legally nonconforming right to use a travel
trailer on his property as habitation, and that he has in fact used a travel
trailer as habitation on his property since 2008.
The use of a travel trailer or recreational vehicle as habitation has been
prohibited by the City of Renton since 2002. Even if it were legal at the time
Mr. Carner began occupying the travel trailer, the City is not precluded from
exercising its police powers to reasonable regulate the use of his property
(Rhod-A-Zalea, p.9)
In 2002, the City passed Ordinance 4963 (linked here:
https://edocs.rentonwa.gov/Documents/DocView.aspx?
id=556852&dbid=0&repo=CityofRenton&searchid=3782e8b3-d803-428b-
a387-2ab093895a4b). At page 22 of the linked document, the City
prohibited use of travel trailers or recreational vehicles as habitation. That
language has been carried through and shows in the published 2004 RMC at
page 392 (Linked here:
https://edocs.rentonwa.gov/Documents/DocView.aspx?
id=1177761&dbid=0&repo=CityofRenton ) and in the published 2008 RMC
at page 449 (Linked here:
https://edocs.rentonwa.gov/Documents/DocView.aspx?
id=991227&dbid=0&repo=CityofRenton ).
Since Mr. Carner has presented evidence showing only that he has used a
travel trailer as habitation since 2008, it has not been possible for that to
have been in compliance with City law. Since he is unable to meet the legal
threshold establishing his use of the travel trailer as habitation was legal at
the time it was commenced, the City contends the matter is decided and he
has no legally nonconforming use of the travel trailer as habitation.
To the extent establishing the legal history of use is not sufficient, the City
asserts that the witness statements were provided by individuals who were
motivated to support Mr. Carner's claim without critical consideration. All
witnesses are related to, or extended family of, Mr. Carner. Only two
persons stated they were on the property the entire time of “habitation” and
therefore were the only parties able to actually note the continuous and
uninterrupted nature of his habitation. Finally – none of the witnesses
actually authored their witness statements. With respect to Mr. Carner’s
submission of photographic evidence, he admitted that it did not show any
elevations or angles which could clearly identify, on its own, that the aerial
was of a travel trailer that had been on site since 2008.
BRIEFING: LEGITIMACY OF 2019 HEX DECISION:
The City has previously submitted evidence that the 2019 Decision was
timely mailed to Mr. Carner, and that there was a delay in that delivery. The
City has also submitted evidence that when Mr. Carner came to inquire in
2019, as he had not received that Decision, he was also provided the
opportunity to contact the Hearing Examiner to seek an extension of the
timeline to appeal to the Superior Court based on extenuating
circumstances. He has not disputed the content of the documentation the
City provided, only that the City has not produced “official documentation”
of his receipt of the 2019 decision which he claims showed he was not
served.
In 2019, “Service” was defined in the published code at RMC 1-3-2.B.8 (pp
13-14) (Linked here:
https://edocs.rentonwa.gov/Documents/DocView.aspx?
id=1394895&dbid=0&repo=CityofRenton ) “service by mail is complete upon
deposit to the postal service … Service on the owner(s) of real property shall
be deemed completed upon mailing to the taxpayer of record at the
taxpayer’s listed address in the records of the King County Assessor’s
Office.” There was no requirement to retain proof of service at the time of
the 2019 Decision. Further evidence of his receipt may be found in the City
Clerk's records here: https://edocs.rentonwa.gov/Documents/Browse.aspx?
id=1433373&dbid=0&repo=CityofRenton .
The City objects to Mr. Carner’s attempt to relitigate the 2019 Decision as
significantly overdue. It is now more than 5 years after the Decision was
rendered, and he had been offered an opportunity to cure the delay at the
time. Washington’s Land Use Petition Act has a strict 21-day deadline to
appeal a decision “or be forever barred” (RCW 36.70C.040). Mr. Carner,
having missed his opportunity to appeal nearly six years ago may not now
collaterally attack that Decision under this new one.
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