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HomeMy WebLinkAbout03-12-2025 - HEX Recon Decision - Carner Code Enforcement Decision - 1 BEFORE THE HEARING EXAMINER OF RENTON DECISION UPON RECONSIDERATION FILE NUMBER: CODE23-000293 ADDRESS: 11135 SE 164th St Renton WA 98058 PROPERTY OWNER: Kelly Carner 11135 SE 164th St. Renton, WA 98058. REVIEW AUTHORITY: City of Renton TYPE OF CASE: Finding of Violation DISPOSITION: Two of the four alleged violations sustained (one just in part) and $200 of the $300 fine sustained. The fines shall be waived if required corrective actions are completed by the deadlines set by this decision. Mr. Carner has until April 15, 2027 to abate Violation No. 4 and until April 11, 2025 to abate Violation No. 3. Overview Mr. Carner’s request for reconsideration is granted in part. Violation No. 1 of the Notice of Violation (NOV)(parking unlicensed vehicles) under appeal is reversed. The term “vehicle” in RMC 4-4-085(D)(2) is found to be ambiguous. It’s unclear whether the referenced “vehicle” must be motorized. Since zoning ordinances must be strictly construed in favor of the property owner, the ambiguity of the “vehicle” term is resolved in Mr. Carner’s favor and RMC 4-4-085(D)(2) is not found to apply to nonmotorized vehicles. Violation No. 4, unauthorized habitation, is sustained. However, Mr. Carner’s abatement period is extended to two years given that he established that he used a travel trailer in good faith as his residence since 2008. Unfortunately, Mr. Carner was not able to prove that his trailer use was lawfully established. To establish lawful creation of the use he would have had to start inhabiting the trailer prior to March 1, 2008 when his property was annexed into the City. Mr. Carner established that the use was created in 2008 but not prior to March 1, 2008. Further, Mr. Carner was also not able to produce any compelling legal authority that supported his position that the trailer could be shielded from new regulations as a legal nonconforming use. As ruled in prior Code Enforcement Decision - 2 Carner decisions1, nonconforming use rights only attach to the primary single-family use of the property and do not extend to the trailer use. This hearing was re-opened an unprecedented number of times to give Mr. Carner every reasonable opportunity to defend his nonconforming use rights. At the original hearing Mr. Carner took a position against overwhelming case law that he did not have the burden of proof to establish his nonconforming use rights. Consistent with that position he didn’t present any evidence on that issue, thereby depriving himself of the ability to fully defend himself. Despite no obligation to do so, the Examiner subsequently re-opened the hearing to enable Mr. Carner to provide evidence on his nonconforming use rights. Mr. Carner provided some additional evidence but none on the Violation No. 4 habitation issue. The Examiner issued a final decision sustaining Violation No. 4. Mr. Carner requested reconsideration. In his reconsideration reply briefing Mr. Carner submitted a significant amount of new evidence that finally addressed his nonconforming use rights on Violation No. 4. New evidence is usually not authorized in reconsideration. Mr. Carner was given a third opportunity to present new evidence nonetheless to address this important issue. Bearing the burden of proof, it was Mr. Carner’s responsibility to find out what county and city ordinances addressed his habitation issues. City ordinances are available both on-line and at City Hall. County ordinances are also available for public inspection. The multiple re-openings of this hearing for Mr. Carner’s benefit exemplify the difficulties pro se litigants face in addressing complicated legal issues without the benefit of a law degree and the resources of a law office. Presumably the City is more interested in having an accurate factual record as opposed to prevailing in an appeal hearing because a pro se litigant doesn’t have the resources to hire a lawyer. That is the reason for the multiple re-openings of this appeal proceeding. Unfortunately, City staff didn’t reveal until their closing brief that the habitation prohibition underlying Violation No. 4 had been in effect since 2002. In his closing Mr. Carner asserts that he should have been notified earlier about the 2002 adoption date. City staff have no obligation to make Mr. Carner’s case for him at every step of this appeal proceeding. As earlier identified, Mr. Carner was the one responsible for researching the ordinances necessary to support his nonconforming use defense. Ideally the City would have identified the 2002 ordinance earlier in the review process anyway. However, it’s also understandable that City staff didn’t catch on to the relevance of that ordinance until they put their closing together. Given the circumstances it’s tempting to re-open the hearing for a remarkable fourth time to address the 2002 ordinance. However, little would be accomplished with this added delay. As noted in Footnote 1 of the November 1 2024 Carner decision, to prevail on his nonconforming use claim Mr. Carner would have to overcome the case law against his position in addition to establishing prior lawful use. Specifically, Mr. Carner had to establish that under cases such as the FN 1 referenced Icicle decision he would have to establish that the use protected as a nonconforming use was his travel trailer in addition to his single-family home. Mr. Carner did not identify any court opinion or argument that could lead to such a conclusion. Even if Mr. Carner 1 There are two prior Carner hearing examiner decisions referenced in this Decision Upon Reconsideration. One is the decision subject to Mr. Carner’s reconsideration request. That final decision was issued on November 1, 2024 for CODE23-000293 and is referenced as the “November 1, 2024 Decision.” The second decision was a final decision issued for other code violations on February 21, 2019 for CODE17-000628 and is referenced as the “2019 Carner Decision.” Code Enforcement Decision - 3 did establish lawful habitation prior to annexation, he still would not have created a protected nonconforming use under the Icicle decision and others like it. Given this consideration and the multiple re-opened hearings already granted to Mr. Carner, there is insufficient grounds for yet a fourth re-opening of the hearing. If Mr. Carner has a bill of sale, bank record or other document clearly showing that he purchased the trailer prior to March 1, 2008 that may be considered for re- opening the hearing an extraordinary fourth time, but otherwise the record is closed to any further requests for reconsideration. Mr. Carner still benefitted from establishing a factual record for his nonconforming use claim in the re-opened hearing. Should Mr. Carner succeed in overcoming the weight of legal authority against him on judicial appeal, he will have a factual record at his disposal to establish the facts of his nonconforming use defense. Absent the reopened hearing Mr. Carner could still win on the law but then lose on the facts because he failed to establish prior use. Mr. Carner’s efforts at establishing good faith long-term use also established good cause for an extended abatement period from one year to two years. HEARING and REHEARING The hearing on the appeal was held virtually on August 27, 2024 at 10:00 am via the Zoom application. Mr. Carner was given until September 3, 2024 to provide written argument in his defense and the City until September 10, 2024 to provide a written response. In review of the hearing transcript the Examiner found that Mr. Carner may not have understood that he had the burden of proof in asserting affirmative defenses to the alleged FOV violations. To give Mr. Carner a fair opportunity to assert his affirmative defenses, the Examiner re-opened the hearing for that purpose by email dated September 11, 2024. Mr. Carner was given until September 20, 2024 to present additional argument and evidence on this affirmative defenses, the City until September 27, 2024 to respond and Mr. Carner until October 2, 2024 to reply. The briefing on affirmative defenses was subsequently extended to October 18, 2024. The record was closed on October 18, 2024. A final decision on the Carner appeal was issued on November 1, 2024. Mr. Carner filed the subject request for reconsideration on or before November 8, 2024. By email dated November 12, 2024 the Examiner gave the City until November 22, 2024 to respond to the reconsideration request and Mr. Carner until November 26, 2024 to reply. The City responded on November 22, 2024 by email. Mr. Carner replied on November 25, 2024 with several declarations and a photograph presented to show that the travel trailer subject to Violation No. 4 had been used for habitation since before the adoption of RMC 4-4-030I. The City moved to strike the new evidence by email dated December 4, 2024. The examiner authorized the new evidence so long as Mr. Carner made himself and the authors of the declarations available for cross-examination. The hearing was re-opened on February 11, 2025 for purposes of conducting the cross-examination. Written closing briefs were authorized through February 25, 2025. The City and Ms. Carner both submitted written closings within that time period. The record was closed as of February 25, 2025. Code Enforcement Decision - 4 TESTIMONY A computer-generated transcript of the re-opened February 11, 2025 hearing has been prepared to provide an overview of the hearing testimony. The transcript is provided for informational purposes only as Appendix A. EXHIBITS All email communications involving the hearing examiner, City and Appellant together were entered into the record as reflected in the City Clerk’s website on the day of hearing2. The written closing briefs of the Appellant and City are also admitted into the record and considered for this final decision. Mr. Carner’s written closing includes both his February 19, 2025 email and the attachment to that email. FINDINGS OF FACT 1. The Findings of Fact of the November 1, 2024 Decision are adopted to the extent consistent with this Decision Upon Reconsideration. 2. Habitation of Trailer. Mr. Carner resided continuously in a trailer on the violation site since 2008 to present. Mr. Carner presented compelling testimony from Kris and Katie Amos, Caleb Carner, Morgan Ryberg and Tim and Stephanie Carner to support this position. Morgan Ryberg and Tim Carner were Mr. Carner’s children who lived in the trailer for several years with Mr. Carner. Tim Carner is Mr. Carner’s brother and has resided in Mr. Carner’s “stick built” home on the violation site since Mr. Carner moved into the trailer in 2008. Although almost all of the witnesses testifying on the trailer issue are close relatives of Mr. Carner, it is unlikely they exaggerated or manufactured any of their testimony. They signed declarations and testified under oath. They plausibly demonstrated that Mr. Carner moved into the trailer so that his brother and brother’s wife could move into the residence of the violation site. This was a logical and highly plausible means of dealing with the high housing costs of the Puget Sound area. Although Mr. Carner established that he established his trailer habitation in 2008, he did not establish that he did so prior to March 1, 2008. March 1, 2008 as identified in Mr. Carner’s 2019 Decision, is the date his property was annexed into the City of Renton. Given that March 1 is very early in the year, in the absence of any other evidence it would have to be concluded that more likely than not the habitation commenced after March 1, 2008. 2 The City Clerk distributed a screen shot of the indexed emails during the February 11, 2025 appeal hearing. The parties were also given the opportunity to verify the accuracy of the index over the next couple days after the hearing. No missing emails were identified in that time period. Code Enforcement Decision - 5 CONCLUSIONS OF LAW 1. Authority of Examiner: The Conclusions of Law (COL) of the November 1, 2024 Decision are adopted to the extent consistent with this Decision Upon Reconsideration. 2. Burden of Proof. The City’s waiver of burden of proof for affirmative defenses as referenced in COL No. 2 of the November 1, 2024 Decision is only found to apply to the first hearing and not the habitation nonconforming use issues raised in the February 11, 2025 reopened hearing. As identified in the November 1 Decision, the case law placing the burden of proof on the one claiming a nonconforming use (in this case Mr. Carner) is extensive and irrefutable . In his reconsideration request Mr. Carner cites to Anderson v. Island County, 81 Wn. 2d 312 (Wash. 1972) for the assertion that “for a nonconforming use to be deemed unlawful, the government must prove that it was illegal when it began.” The Anderson decision nowhere imposes such a ruling. Anderson dealt with a rezone adopted by Island County that the County justified in part on facilitating the operations of a nonconforming use. The validity of the rezone was in question. The Anderson court placed the burden of proof on invalidating the rezone on rezone opponents, holding that “one who asserts that a public authority has abused its discretion and is guilty of arbitrary, capricious, and unreasoning conduct has the burden of proof.” Id. at 317. Beyond the foregoing quotation, there was no discussion in the Anderson court about who had to prove that a nonconforming use did or did not exist. Rezone opponents in Anderson apparently had to prove that the County erroneously classified the use as nonconforming, but that was only because they were disputing the validity of the rezone. The circumstances of the case were a little unique because the burden of proof was arguably reversed when the validity of the rezone was put into play as opposed to the nonconforming use determination itself. Nonetheless, all of the case law dealing with the direct validity of a nonconforming use determination places the burden on the person claiming nonconforming use rights as detailed in the case law cited in the November 1, 2024 Decision. Reconsideration Issues Mr. Carner’s reconsideration issues are quoted below in italics and addressed in associated conclusions of law: Carner Allegation No. 1: Grandfather Rights Were Overlooked in Assessing Violation No. 1 3. Upon reconsideration, Mr. Carner is not found to have violated RMC 4-4-085(D)(2) as alleged in Violation No. 1 of the Notice of Violation (NOV) issued for CODE23-000293. This determination is not based upon nonconforming use rights as alleged in Mr. Carner’s topic header quoted above, but rather the ambiguity of the “vehicle” term in RMC 4-4-085(D)(2). In his reconsideration request, Mr. Carner correctly relies upon the fact that the term “vehicle” in RMC 4-4-085(D)(2) is ambiguous as to whether the vehicle must be motorized. As identified in the decision under reconsideration, the common meaning of the term as defined in an English Code Enforcement Decision - 6 dictionary doesn’t dictate that a vehicle be motorized. However, the zoning code definition of “large” and “small” vehicles identifies that the vehicle is motorized. To add a little further weight to Mr. Carner’s position, RMC 4-4-085(D)(2) identifies that vehicles in the open should be “operational,” which arguably suggests that they can be self-propelled. As identified in the November 1, 2024 Decision, construing unmotorized vehicles as “vehicles” is likely consistent with legislative intent since that intent is likely aimed at preserving and enhancing residential character of Renton neighborhoods. Enforcing RMC 4-4-085(D)(2) against nonmotorized vehicles is consistent with this intent. However, case law provides that zoning ordinances must be strictly construed in favor of the property owner. See, Milestone Homes v. City of Bonney Lake, 145 Wn. App. 118, 127 (Wash. Ct. App. 2008). Under this standard it must be recognized that the term “vehicle” in RMC 4-4-085(D)(2) can be reasonably construed as limited to motorized vehicles given the zoning code definitions for large and small vehicles. As to legislative intent, it is conceivable that the Council was thinking of lots with multiple rusting junk motor vehicles, a fairly common problem in some jurisdictions where some property owners like to accumulate these vehicles for parts and restoration. Strictly construing RMC 4-4-085(D)(2) in favor of Mr. Carner, there is some latitude to construe “vehicles” in RMC 4-4-085(D)(2) as limited to motor vehicles Mr. Carner is advised that the City Council may respond to this decision by amending RMC 4-4- 085(D)(2) to clarify that “vehicle” includes nonmotorized vehicles. Historically the City Council has quickly addressed these types of ambiguities in its codes by amendments that make clear its on-going objective to maintain and enhance residential character. If City staff present such an amendment to the City Council, they should also have the amendment clearly address nonconforming use rights. A case from the Chelan County referenced in the decision under reconsideration identifies how Chelan County made it clear how newly adopted short term rental restrictions were to be applied to existing uses. See Icicle/Bunk, LLC v. Chelan Cnty., 537 P.3d 321 (2023). That type of clarity would be highly beneficial in providing guidance on how to apply the City’s residential performance standards to established uses such as those of Mr. Carner. The only vehicle identified as subject to Violation No. 1 was a travel trailer. It is uncontested that the travel trailer is not motorized. Violation No. 1 is therefore dismissed. Carner Allegation No. 2: Inconsistencies in the Code Language Compounded by Failure to Apply Grandfather Rights 4. Issue 2 as quoted above serves as no basis for changing the original decision because Mr. Carner has no “grandfather” rights that shield him from changes in the law as applied in the NOV under appeal. As detailed in the CODE17-000628 decision, Mr. Caner’s nonconforming use (grandfather) rights are limited to single family use. Those protections don’t extend to how that use is exercised. The violations alleged in the NOV don’t preclude Mr. Carner from using his property for the zoning code use of single-family residential use. Those violations only regulate how storage and parking is to be conducted in that single-family use. As such, the regulations cited in the NOV qualify as performance standards that local governments are authorized to apply to existing uses as authorized by Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 136 Wn.2d 1, 10 (1998). Code Enforcement Decision - 7 The concept of performance standards applied to existing uses was most recently exemplified in Icicle/Bunk, LLC v. Chelan Cnty., 537 P.3d 321 (2023). In the Icicle case Chelan County adopted an ordinance prohibiting more than one short term rental per lot. A property owner who had been renting out two short term rentals on a single lot challenged the application of the ordinance to him on the basis that the two rental units qualified as nonconforming uses. The Icicle court found that the two units were not protected as nonconforming uses. It specifically held that the “use” to which the property owner was vested was short term rental use generally and not to two short term rentals specifically. In the same vein, the “use” to which Mr. Carner has vested is generally single-family residential use, not how he parks and stores vehicles on his property. Clearly if the Icicle court found it valid to shut down the use of an entire dwelling unit, that same court will have no problem in finding parking and storage restrictions as valid performance standards as well. Carner Allegation No. 3. Precedent for Recognizing Grandfather Rights in RMC 4-4-085(D)(3) (Violation No. 3) 5. Examiner CODE23-000293 decision did not set any precedent on protecting grandfathered (nonconforming) uses from newly adopted performance standards. Mr. Carner’s established parking was partially protected from RMC 4-4-085(D)(3) because that provision expressly granted nonconforming use rights to pre-existing driveways. The City Council is free to grant nonconforming use rights in the RMC beyond constitutional requirements to any extent it finds appropriate. The City Council has not deemed it necessary to add such rights to any other code sections cited in the NOV. The RMC doesn’t grant Mr. Carner any nonconforming use rights beyond those identified in RMC 4-4-085(D)(3) for the violations of this appeal. Carner Allegation No. 4: Importance of Grandfather Rights for Preventing Future Harassment and Ensuring Consistency 6. The hearing examiner has no authority to extend nonconforming use rights beyond that required by the constitution or authorized by the RMC. If Mr. Carner would like to have additional grandfather rights incorporated into the RMC he will have to persuade the City Council to adopt such added protections. 2019 CODE17-000628 Decision 7. Mr. Carner disputes that he received proper service of the 2019 CODE17-000628 examiner decision. That issue is beyond the scope of this appeal. The issuance of the 2019 Decision has no bearing on the results of this decision. The fines assessed in the NOV and adopted in the decision under appeal were not based upon any violations found in the 2019 Decision. Some of the reasoning of the 2019 Decision is referenced to save time on duplication, but the 2019 does not serve as any precedent for this decision. Nonconforming Use Rights for Violation No. 4 8. Mr. Carner does not directly challenge the COL on Violation No. 4 in his reconsideration request. However the issue is covered by his general contention that the November 1, 2024 Decision should have found that this trailer habitation met the criteria for “grandfathering.” Code Enforcement Decision - 8 As outlined in the City’s closing brief, habitation has been prohibited in travel trailers and recreational vehicles since the adoption of Ordinance 4963 in 2002. As outlined in the November 1, 2024 Decision, to prevail on a claim of nonconforming use the claimant must prove that use was lawfully established. As outlined in a recent nonconforming use judicial decision involving a property owner named Seven Hills: Seven Hills bears the initial burden of proof to establish the existence of a nonconforming use. Seven Hills must show (1) that the use existed before the County enacted the zoning ordinance, (2) that the use was lawful at the time, and (3) that it did not abandon or discontinue the use. Once Seven Hills has established the nonconforming use, then the burden shifts to the County to prove Seven Hills had abandoned or discontinued the nonconforming use. Seven Hills, LLC v. Chelan Cnty., 495 P.3d 778, 791 (Wash. 2021) (citations omitted). As outlined in the 2019 Carner decision and later affirmed in Icicle/Bunk, LLC v. Chelan Cnty., 537 P.3d 321 (2023), the “use” that is nonconforming is not every accessory use associated with the primary use of the violation site, but rather just the primary single-family home use itself. Mr. Carner’s nonconforming use defense doesn’t conform to the criteria above for two reasons, First, as a matter of law the only “use” protected as nonconforming is his residence. The associated travel trailer is not the primary use of the property and can be regulated or prohibited as necessary to implement the City’s police powers to protect public health, safety and welfare. Second, as determined in FOF No. 2 above, Mr. Carner has not met his burden of proof in establishing that the travel trailer use was established prior to his annexation into the City in 2008. If that use had been established while still in unincorporated King County and if that use was lawful under King County regulations at the time, then Mr. Carner would have met the requirements for establishing a legal nonconforming use if the use was a protected use (which it is not). Constitutional/Federal Civil Rights Mr. Carney raises several constitutional and federal civil rights claims. The Examiner has authority to address those types of claims. Administrative tribunals, including hearing examiners, are creatures of the legislative body that creates them. Lejeune v. Clallam Cty., 64 Wn. App. 257, 270– 71, 823 P.2d 1144 (1992); State v. Munson, 23 Wn. App. 522, 524, 597 P.2d 440 (1979); Chaussee v. Snohomish County Council, 38 Wn. App. 630, 636, 689 P.2d 1084 (1984). Their power is limited to that which the creating body grants. Lejeune, 64 Wn. App. at 270-71. Th e Renton City Council has not granted the hearing examiner any authority to adjudicate constitutional and civil rights claims. Code Enforcement Decision - 9 DECISION Violation No. 3 and 4 are sustained. Violation 1 is dismissed for the reasons identified in this reconsideration decision. Violation No. 2 is dismissed for the reasons identified in the November 1, 2024 Decision. The corrective action required by the FOV for Violation No. 3 shall be completed by April 11, 2025; provided that the driveway as identified in the November 1, 2024 Decision shall be considered an approved surface and vehicles may be parked on that surface. The corrective action required for Violation No. 4 shall be completed by April 30, 2027. During the abatement period only one travel trailer may be used for habitation. Habitation of any other travel trailer shall immediately cease upon issuance of this decision. $200 of the $300 fines imposed by the FOV are also sustained. The $200 fine shall be waived if all corrective actions are timely completed. DATED this 11th day of March, 2025. City of Renton Hearing Examiner NOTICE OF RIGHT TO APPEAL AND RECONSIDERATION Appeal to Superior Court. An appeal of the decision of the Hearing Examiner must be filed with Superior Court within twenty-one calendar days, as required by the Land Use Petition Act, Chapter 36.70C RCW. Requests for reconsideration shall be entertained if filed with the City Clerk prior to 5:00 pm, November 20, 2024. .