HomeMy WebLinkAbout02-19-2025 - Carners Final closing statment Carner CODE23-000293DEFENSE OF MR. CARNER’S REQUEST FOR RECONSIDERATION, CLOSING
ARGUMENT.
I. Burden of Proof and the City's Obligation
Washington courts have established that the burden of proof in administrative enforcement proceedings falls on
the party asserting a violation. The City has relied on shifting this burden to Mr. Carner without first
demonstrating clear and convincing evidence that his use of the property was unlawful at the time of
establishment. In Anderson v. Island County (81 Wn.2d 312, 1972), the Washington Supreme Court held that
for a nonconforming use to be deemed unlawful, the government must prove that it was illegal when it began.
The City's argument that Mr. Carner must prove his nonconforming use status in response to an enforcement
action places an unfair evidentiary burden on him, conflicting with due process principles.
II. Grandfather Rights and Nonconforming Use Protections
Washington law protects legally established nonconforming uses under Seven Hills LLC v. Chelan County (198
Wn.2d 371, 2021). The legal principle of vested rights supports that if a use was legal when established,
subsequent zoning changes cannot retroactively strip property owners of those rights. The City has failed to
demonstrate that Mr. Carner’s use of his property—whether for parking, storage, or habitation—was not legally
established before the ordinance changes.
• The Washington State Supreme Court in Rhod-A-Zalea v. Snohomish County (136 Wn.2d 1, 1998)
acknowledged that nonconforming uses are disfavored but also recognized that they cannot be arbitrarily
eliminated. Mr. Carner has provided evidence that his use of the property predated the City's
enforcement actions, which supports his claim of grandfather rights.
• RCW 35.63.161(1) protects nonconforming uses, stating that local zoning authorities "may not prohibit
the continued use of a building or land for a use legally existing prior to the adoption of a zoning
ordinance." Renton’s actions contradict this statute by attempting to retroactively apply its zoning laws
to a use that was lawful under King County regulations.
• In City of University Place v. McGuire, 102 Wn. App. 658 (2000), the court held that municipalities
must respect preexisting lawful uses when annexing new areas, reinforcing Mr. Carner’s right to
continue his use.
III. Violation #1 – Unlicensed Vehicles and Boats
The City’s claim that unmotorized recreational vehicles must be licensed is ambiguous and inconsistent with
Washington law. Under RCW 46.04.320, a "recreational vehicle" is distinct from a "motor vehicle," and
licensing requirements for non-motorized trailers depend on specific regulatory provisions. If the law at the time
of Mr. Carner’s purchase did not explicitly require licensing, the City cannot retroactively enforce such a
requirement without violating principles of fair notice and due process (State v. Rice, 174 Wn.2d 884, 2012).
• RCW 46.16A.320(1) establishes that travel trailers and camper trailers are only required to be licensed if
they are "operated on public highways," not when parked on private property. The City’s enforcement action
conflicts with this statute, as Mr. Carner’s vehicles are stationary.
Moreover, Washington courts have ruled that ambiguous zoning and regulatory language must be interpreted in
favor of the property owner (Sleasman v. City of Lacey, 159 Wn.2d 639, 2007). The City has failed to
demonstrate a clear statutory mandate requiring Mr. Carner to license his unmotorized vehicle at the time of
purchase, and therefore, enforcement actions based on this alleged violation should be dismissed.
IV. Violation #3 – Impermissible Parking Locations
The City asserts that the area abutting Mr. Carner’s driveway was never formally approved for parking City has
not demonstrated any prior enforcement on this issue before 2024. However, the principle of nonconforming
use applies not only to explicitly permitted uses but also to long-standing customary uses that were never
expressly prohibited. Courts recognize that where property use has been continuous and unchallenged for an
extended period, enforcement actions must be supported by substantial evidence (Anderson v. Island County).
• Additionally, Washington law under RCW 36.70C.030 protects property owners from retroactive
enforcement of new zoning interpretations that alter established land use expectations. If the driveway
area has been in use since before 2019 without prior enforcement, the City cannot suddenly impose a
new restriction without violating the principles of equitable estoppel (Department of Ecology v.
Theodoratus, 135 Wn.2d 582, 1998) the court ruled that an agency could not reinterpret existing
regulations to retroactively impose new restrictions without clear legislative authority.
.
V. Violation #4 – Habitation of a Travel Trailer or Recreational Vehicle
Mr. Carner has presented evidence of continuous habitation in his travel trailer since 2008. The City claims that
habitation was prohibited under a 2002 ordinance, but it has not demonstrated that the ordinance was properly
applied, enforced, or that Mr. Carner was ever given notice of a violation before recent actions.
Furthermore, Mr. Carner’s property was annexed into the City of Renton from unincorporated King County in
2008. Prior to annexation, King County regulations permitted habitation in travel trailers on private property.
Under City of University Place v. McGuire (102 Wn. App. 658, 2000), a use that was legal before annexation is
entitled to nonconforming use status even after being absorbed into a new jurisdiction with different zoning
rules. The City of Renton cannot retroactively apply its 2002 ordinance to prohibit a use that was lawful under
King County regulations when Mr. Carner began living on his property. • RCW 35A.14.900 states that when a
city annexes an area, existing legal uses are allowed to continue unless specifically prohibited by a clear
transition plan. The City of Renton has provided no evidence that such a plan was enacted in 2008 to prohibit
travel trailer habitation at annexation.
Additionally, the Washington Supreme Court in Town of Woodway v. Snohomish County (180 Wn.2d 165,
2014) held that annexation does not automatically extinguish preexisting property rights. Mr. Carner's
habitation of his travel trailer was lawful under King County rules before the annexation, and Renton's
enforcement actions are an improper attempt to override his Vested property rights.
Additionally, the U.S. Supreme Court has ruled that retroactive zoning enforcement can violate constitutional
rights:
• In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Court held that regulatory
actions that eliminate established property rights may constitute an unconstitutional taking under the Fifth and
Fourteenth Amendments. Renton’s enforcement of post-annexation zoning against Mr. Carner’s habitation may
violate this precedent.
The City’s dismissal of witness statements as biased is unfounded. The burden is on the City to prove its case,
and it cannot arbitrarily reject testimony without substantive counter-evidence. Courts have held that credible,
firsthand witness testimony is valid evidence of historical land use (Thornton Creek Legal Defense Fund v. City
of Seattle, 113 Wn. App. 34, 2002).
VI. Legitimacy of the 2019 Decision and Due Process Violations
The City claims that service of the 2019 Decision was "complete upon mailing" under Renton Municipal Code
(RMC 1-3-2.B.8), but this does not preclude a challenge if actual notice was not received. Courts have
recognized that failure of actual notice can be a due process violation.
Due Process and the Requirement of Actual Notice
Under the U.S. Constitution, the Fourteenth Amendment guarantees that no person shall be deprived of property
without due process of law. The U.S. Supreme Court has clarified this principle in multiple cases, including
Jones v. Flowers, 547 U.S. 220 (2006). In that case, the Court ruled that due process requires the government
to take additional steps to ensure notice when mailed service is unreliable or likely to go unnoticed. If the City
relies solely on mailing without verifying receipt, and Mr. Carner never actually received the decision, then the
City’s method of service is constitutionally inadequate.
Furthermore, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) established that notice
must be "reasonably calculated" to inform interested parties of government actions affecting their rights. If the
City failed to confirm receipt or explore alternative means to reach Mr. Carner upon non-response, it violated
due process protections.
Washington Law on Proper Notice in Land Use Appeals
Under Washington’s Land Use Petition Act (LUPA), RCW 36.70C.040, a party must file a land use petition
within 21 days of being served with a final decision. However, the statute explicitly states that this deadline
only applies if the party actually receives proper notice. If service by mail did not result in actual notice, the
21-day appeal period does not begin to run.
Washington courts have reinforced this principle in cases such as Samuel’s Furniture, Inc. v. Dept. of
Ecology, 147 Wn.2d 440 (2002), where the Washington Supreme Court emphasized that administrative
deadlines are only enforceable when a party has been given an opportunity to be heard through proper notice.
Similarly, in Presidents Co. v. City of Mercer Island, 180 Wn. App. 409 (2014), the Court held that failure to
prove actual notice rendered an appeal deadline unenforceable.
Application to Mr. Carner’s Case
If the City cannot provide evidence that Mr. Carner actually received the 2019 Decision—such as a signed
acknowledgment of receipt, certified mail tracking, or other proof of delivery—then the appeal deadline
remains open. Given that U.S. Supreme Court precedent and Washington law both require actual notice in cases
affecting property rights, Mr. Carner’s challenge should be considered valid.
In conclusion, under both federal and state law, the City’s reliance on mere mailing does not suffice if actual
notice was never received. Without proof of delivery, the 21-day appeal period has not been triggered, and Mr.
Carner’s challenge to the 2019 Decision remains timely and legally sound.
This Following Email is to serve as proof that Mr. Carner did not receive the Decision of 2019 within the
allotted required legal time to appeal, which make the 2019 Decision invalid and he therefore challenges the
Decision as unjust and moves for the reference of the 2019 decision of a place of legal precedents, to be
removed from being used in this case.
Also to reference the below email, where Cynthia Moya stats he could write an email to let all involved know, it
was not Mr.Carners responsibility to make sure the City sends the proper notice at the allotted time, that falls
completely on the City. The City failed.
Cynthia Moya <CMoya@rentonwa.gov>
Wed, Oct 9, 2024, 12:19 PM
to Sheila Madsen
Thank you,
CINDY MOYA | CITY CLERK SPECIALIST
City of Renton / / City Clerk’s Office
cmoya@rentonwa.gov
Office (425) 430-6513
Work Schedule:
Tues, Wed & Thurs: City Hall
Mon & Friday: Work from Home
From: Cynthia Moya
Sent: Friday, March 22, 2019 12:38 PM
To: Phil Olbrechts <olbrechtslaw@gmail.com>
Cc: Craig Burnell <Cburnell@Rentonwa.gov>; Donna Locher <DLocher@Rentonwa.gov>; Kevin Louder
<KLouder@Rentonwa.gov>; Lynne Hiemer <LHiemer@Rentonwa.gov>; Robert Shuey <RShuey@Rentonwa.gov>
Subject: Kelly Carner Code Compliance Decision
Phil,
Mr. Kelly Carner came in to say he just received his letter from us (dated 2/22 - maybe due to the snow storm) and had
no time to put in a Motion to reconsider or take it to Superior court.
I told him to write an email to us letting us know and I would forward it to all and you would have the last word on the
timing of the decision.
As soon as I get something from him, today or Monday I will forward to all involved.
Thank you,
Cindy Moya, City Clerk Specialist
City of Renton - Administrative Services/City Clerk Division
cmoya@rentonwa.gov
425-430-6513
VII. Defense Against the City’s Dismissal of Witness Testimony
The City’s claim that witness statements supporting Mr. Carner’s case are biased is legally and procedurally
unfounded. The burden of proof remains on the City to substantiate its enforcement actions with clear and
convincing evidence. It cannot dismiss witness statements without providing substantive counter-evidence
or demonstrating why the testimony lacks credibility under established legal standards. Washington courts have
consistently upheld credible, firsthand witness testimony as valid evidence in land use disputes.
I. The Burden of Proof Rests on the City
Washington law is clear that in administrative enforcement actions, the burden of proof lies with the
government entity asserting the violation. The City cannot shift this burden to the property owner without
first establishing a violation with substantial evidence.
• RCW 34.05.570(1)(a) states that an agency action is invalid if it is “[in] violation of constitutional
provisions on procedural due process.” The City’s outright dismissal of supporting witness statements
without a substantive challenge violates Mr. Carner’s due process rights.
• In Thornton Creek Legal Defense Fund v. City of Seattle, 113 Wn. App. 34 (2002), the court
emphasized that testimony from individuals with direct, personal knowledge of land use history is
valid evidence in administrative and legal proceedings. The City’s attempt to disregard this testimony
without counter-evidence contradicts this precedent.
• In Lavezzo v. Port Townsend, 16 Wn. App. 524 (1976), the court ruled that local governments must
consider all relevant evidence, including witness testimony, before making determinations regarding
property use and zoning enforcement. Arbitrary dismissal of testimony is not legally defensible.
II. Witness Testimony is a Recognized and Reliable Form of Evidence
The Washington State Supreme Court has consistently upheld the importance of witness testimony in land
use disputes. Witness statements that describe continuous, observable use of a property are sufficient to
establish historical nonconforming use status unless contradicted by stronger evidence.
• In Hayes v. Yount, 87 Wn.2d 280 (1976), the court ruled that testimony from neighbors, family
members, and property owners regarding longstanding property use was competent evidence that
must be given weight in determining whether a nonconforming use existed before zoning changes.
• In Seven Hills LLC v. Chelan County, 198 Wn.2d 371 (2021), the Washington Supreme Court held
that nonconforming uses are “questions of both fact and law” and that firsthand witness testimony is
an essential factor in establishing historical land use.
The City cannot legally reject sworn witness statements without a specific factual basis. General claims of
bias are insufficient under Washington law unless the City presents evidence proving that the testimony is
fabricated, inconsistent, or otherwise unreliable.
III. The City Must Provide Contrary Evidence, Not Just Dismiss Testimony
Merely asserting that witnesses are “biased” is not a valid legal argument. Courts have ruled that an
enforcement authority must produce actual evidence that contradicts the testimony, rather than simply
dismissing it.
• In Overlake Fund v. Shoreline Hearings Board, 90 Wn. App. 746 (1998), the court ruled that
agencies must weigh all evidence objectively and may not dismiss evidence, including witness
statements, without showing why it is unreliable.
• In Norco Constr., Inc. v. King County, 97 Wn.2d 680 (1982), the court ruled that where local
governments attempt to enforce land use restrictions, they must rebut conflicting evidence with
independent, verifiable proof, rather than dismissing contrary testimony outright.
The City has failed to provide any such counter-evidence against Mr. Carner’s witnesses. If the City cannot
produce verifiable evidence disputing their testimony, the statements must be considered valid evidence
under Washington law.
IV. Credibility of Witness Statements is a Matter for the Examiner, Not the City
The credibility of testimony is a question for the hearing examiner, not for the City’s unilateral
determination. The Washington Administrative Procedure Act (RCW 34.05.461(4)) requires that a hearing
examiner must assess credibility based on evidence and argument, not on unsupported claims of bias by a
party.
• In Chrobuck v. Snohomish County, 78 Wn.2d 858 (1971), the court ruled that administrative decisions
must be based on an objective review of the evidence presented, not arbitrary dismissals of witness
credibility by an opposing party.
• In Biggs v. City of Seattle, 72 Wn.2d 871 (1967), the Washington Supreme Court ruled that
administrative bodies must evaluate testimony on its merits, and opposing parties cannot simply
dismiss evidence as biased without compelling reasons.
Since the City has provided no verifiable basis to reject the witness testimony, the Hearing Examiner must
consider the statements as part of the evidentiary record.
V. Due Process and Equal Protection Violations
The City’s arbitrary dismissal of witness testimony violates Mr. Carner’s constitutional rights under the
U.S. and Washington Constitutions:
• U.S. Constitution, Fifth and Fourteenth Amendments – Due process requires that a party facing
government enforcement be allowed to present evidence in their defense. The City’s refusal to
consider testimony violates this principle (Mathews v. Eldridge, 424 U.S. 319 (1976)).
• Washington State Constitution, Article I, Section 3 – Guarantees due process rights in administrative
proceedings. If the City dismisses valid testimony without justification, it deprives Mr. Carner of a
fair hearing (Pierce County Sheriff v. Civil Service Commission, 98 Wn.2d 690 (1983)).
• Equal Protection Clause (U.S. Constitution, Fourteenth Amendment & Washington Constitution,
Article I, Section 12) – The City’s actions treat Mr. Carner differently than other similarly situated
property owners, as others have been allowed to use similar witness testimony in defense of
nonconforming use claims. Courts have ruled that selective enforcement violates equal protection
rights (Village of Willowbrook v. Olech, 528 U.S. 562 (2000)).
VI. Conclusion
The City’s dismissal of witness testimony is legally improper and unsupported by case law.
1. The burden of proof remains on the City, and it cannot dismiss evidence without providing
substantive counter-evidence.
2. Witness testimony is a valid and recognized form of evidence in land use disputes.
3. The City must provide contrary evidence, not merely assert bias.
4. Credibility determinations must be made by the Hearing Examiner, not the City.
5. Dismissing testimony violates due process and equal protection rights under both Washington and
U.S. constitutional law.
For these reasons, the Hearing Examiner must reject the City’s attempt to arbitrarily dismiss witness
statements and fully consider the evidence supporting Mr. Carner’s claims.
CONCLUSION
The City’s enforcement actions against Mr. Carner fail on multiple legal grounds:
1. The burden of proof remains with the City to establish that his property use was unlawful at it’s
inception, the City has improperly shifted the burden of proof, violating state administrative law.
2. His claim of nonconforming use (grandfather rights) is supported by Washington case law and
statutory protections under Washington law prevent Renton from retroactively enforcing zoning
changes.
3. The City’s licensing and parking violations rely on ambiguous or improperly applied regulations
the requirement to license travel trailers on private property is not supported by state law.
4. His habitation of a travel trailer was lawful under King County regulations before annexation,
and Renton cannot retroactively prohibit it, Renton cannot override King County’s prior land use
regulations, which allowed habitation in travel trailers before annexation.
5. Retroactive enforcement of habitation restrictions may constitute an unconstitutional taking
Retroactive zoning enforcement could be an unconstitutional taking under Lucas v. South
Carolina Coastal Council.
6. Renton’s failure to ensure actual notice of the 2019 Decision violates due process under Jones v.
Flowers and Washington law.
7. The 2019 Decision is subject to challenge due to lack of proper notice.
8. The attempt by the City to dismiss witness Testimony is unlawful by State and Federal laws.
For these reasons, Mr. Carner’s request for reconsideration should be granted, and the alleged violations should
be dismissed.
Sincerely
Kelly Carner 02/19/2025