HomeMy WebLinkAboutMiller Unfit Dwellilng Appeal
December 17, 2009
OFFICE OF THE HEARING EXAMINER
CITY OF RENTON
REPORT AND DECISION
APPELLANT: Diane Miller
1814 SE 21st Place
Renton, WA 98055
Mark Barber
Warren, Barber & Fontes
Sr. Assistant City Attorney
Renton, WA 98057
Representing: City of Renton
Marilyn Kamcheff
Code Compliance Inspector
Renton, WA 98057
Miller Unfit Dwelling Appeal
File No.: LUA 09-097, AAD/C09-0279
PUBLIC HEARING: After reviewing the Appellants’ written requests for a hearing
and examining available information on file, the Examiner
conducted a public hearing on the subject as follows:
MINUTES
The following minutes are a summary of the October 20, 2009 hearing.
The legal record is recorded on CD.
The hearing opened on Tuesday, October 20, 2009, at 9:00 a.m. in the Council Chambers on the seventh floor of
the Renton City Hall. Parties wishing to testify were affirmed by the Examiner.
Parties present: Mark Barber, Sr. Assistant City Attorney
Marilyn Kamcheff, Code Compliance Officer
City of Renton
Kirk Davis, Attorney for Appellant
Diane Miller, Appellant
The following exhibits were entered into the record:
Exhibit No. 1: Yellow file containing the original Exhibit No. 2: Transcript the Hearing Below
Miller Unfit Dwelling Appeal
File No.: LUA-09-097, AAD/C09-0279
December 17, 2009
Page 2
appeal, the decision in the appeal and the appeal to
Hearing Examiner, as well as other documentation.
There were no preliminary matters.
Mr. Barber stated that the City did not intend to present testimony from any persons present today, but to rely on
the record for the Director below.
Mr. Davis stated that he had just received the transcript in this matter yesterday. He had sent a copy to Mr.
Barber and filed the original with the Examiner.
It was evident that the Examiner had reviewed the material on this matter and looked at the record. The points
on appeal are well spelled out in the Motion that was filed to dismiss the Complaint. Exhibit 1 in the hearing
before the Director was not offered nor admitted, that is verified in the transcript, in the City’s case. In
Administrative Hearings, the rules of evidence are relaxed especially with regards to hearsay, the Director
naturally considers those matters. In the Renton Municipal Code, 1-3-5, Section F2 indicates that the hearing
shall be governed by the civil rules of Superior Court, but the strict rules of evidence shall not be applied.
There needs to be a basic fairness to the process. It was their contention that when a document or exhibit is
marked but not admitted it is essentially that the Director is considering evidence that was not admitted and it
does not give the opponent to that evidence a chance to object to the evidence, a chance to cross examine in
regards to that evidence because there was no proffer of the evidence. This procedure violated due process.
The Examiner asked if the evidence was discussed at the hearing. It was presumed that there was a basis for the
City’s unfit order and that in the proceeding there was argument against that decision based on neighbors’
testimony or submissions by neighbors, it is not like the appellant was oblivious to the record that existed.
In order to prepare for this hearing, someone must have come in and spent some time in reviewing the file. The
appellant knew that the City was concerned about the shape of this building, the City issued certain orders
regarding this building, the appellant was obviously aware of that and came in to protest that and check out the
information the City had. The appellant was not totally oblivious to the record of some kind prior to the hearing.
There was a record that someone dealt with, whether it was officially entered or not may not be relevant.
How did Exhibit 1 being marked and was available at the hearing but not being entered into the record at that
precise time prejudice your client?
Mr. Davis stated that they did, at the time Exhibit 1 was being mentioned, not know what was in it. After
getting Exhibit 1 and looking at it later, they understood the situation.
When an exhibit is marked and not admitted into evidence, it is not evidence. It prejudiced the client, it is not
something that can just be pulled out of the air, it certainly prejudiced his client because he was waiting for an
Miller Unfit Dwelling Appeal
File No.: LUA-09-097, AAD/C09-0279
December 17, 2009
Page 3
offer of that evidence before he cross examined anyone on it. He did cross examine people at the hearing, but
not on Exhibit 1.
He was waiting for the exhibit to be offered into evidence to go through that exhibit because they did not know
what exactly was in that exhibit. He was deprived of the ability to object to any parts of that record because it
was never offered into evidence and they had no idea of exactly what was in the exhibit. The hearing was to be
a fact finding hearing.
The Examiner asked if it did find facts, there was testimony and there was an opportunity to cross examine.
This was an administrative proceeding where strict rules of evidence and law are not necessarily complied with
other than as indicated in code. Cross examination is allowed but sometimes it is relaxed and dealt with through
the Examiner, it may even be suspended if it seems inappropriate, this is an administrative process, it is not a
court of law, the procedures are relaxed. Whether it was officially admitted or marked, it was at the hearing,
people were basing a lot of things upon it or what was in it and the Director based his decision on a lot of the
testimony he heard. There was testimony about the nature of the building, how long it had been unfit, how long
it had been abandoned, testimony from Mr. Miller and his purchase of lumber and his attempts to fix the
building but because of financial help or other constrains not being able to get to it. Those are the things that the
Director relied on to make the decision. This hearing and that hearing were both administrative and not jury
trials or trials before a judge where strict rules of evidence are complied with.
Mr. Davis stated that when a decision is reached there must be some basis for that decision and it has to be
based upon evidence that has been admitted. A large part of this exhibit does not apply to Diane Miller, it
applies to Robin Miller. It does apply to the property and home.
The Examiner stated that it does not matter who owns the home whether jointly or singly, the home is
determined to be unfit by a lot of testimony and by the Director. Diane Miller was not even at the proceeding
below. He will go over the Director’s decision again, see what he decided and relied upon in reaching his
decision and whether or not Exhibit 1, marked and not admitted was relevant or not.
Mr. Davis pointed out that the Renton Municipal court document was totally irrelevant with regards to the
administrative action. Exhibit 1 was relevant because there was no other evidence of personal service of the
complaint without the admission of this Exhibit 1. There would have been no jurisdiction to go ahead with the
hearing while the code requires that, they did object to jurisdiction at the hearing. Oaths need to be
administered individually, codes indicate that rules of superior court need to be followed. It was a clear
violation of the rule, the witnesses were not administered oaths individually. There is no knowledge of when the
witnesses testified if they were actually in the room at the time the oath was administered by just looking at the
record. Ms. Kamcheff was asked by the Director if she had been sworn in and she indicated that she had. Her
testimony would be okay in that event. The other witnesses were not asked that question by the Director and so
would be a violation of the City Code.
They further take issue with some of the conclusions reached by the Director, whether the house should be
demolished or repaired (page 9 of 14 of Director’s Decision, paragraph 7) the Director indicates that the City of
Renton Building Official testified that repairs needed would be extensive with everything above foundation
needing to be repaired or replaced. The cost of repairs would exceed 50% of the value of the current structure
based on the assessed value for tax purposes. Mr. Davis did not find any testimony where it stated that the cost
Miller Unfit Dwelling Appeal
File No.: LUA-09-097, AAD/C09-0279
December 17, 2009
Page 4
of repairs would exceed 50% of the value of the current structure. It is not clear whether the testimony of Mr.
Meckling was taken under oath or not, there is nothing in the record to support that conclusion.
Mr. Miller wants to repair this structure, when he and his wife are given ultimatums by the City to stop work
and to destroy the structure, all progress is stopped. The previous attorney sent a letter to Ms. Kamcheff
requesting clarification, there was never any response to that letter. There was an Order to Correct issued at the
same time as an Order to Demolish, the letter to Ms. Kamcheff was to request clarification as to whether or not
they could proceed with correction.
Finally, the Millers feel that their property was previously in King County, the City of Renton annexed the
property and this process was immediately started. The Millers feel that they have never been given the
opportunity to bring their property into compliance.
Mr. Barber stated that the Director’s decision should be given substantial weight as provided in the Renton
Municipal Code. After review of the evidence and file, the decision of the Director was not erroneous. The
Director’s file (Exhibit 1) not admitted into evidence appears to be a last argument, in court a Judge is permitted
to take judicial notice of the court file. In a trial all pleadings in that court file are not admitted into evidence.
Administratively in this instance, Exhibit 1 is the Director’s file and it is similar to a court file, it is where the
documents are filed.
The City by RMC 1-3-5F2 does have the burden of demonstrating by a preponderance of evidence that a
violation has occurred and required corrective action is reasonable. The City has met that burden.
The transcript was provided to the Hearing Examiner and he would have an opportunity to review that transcript
and determine whether or not the witnesses were under oath. This point was made by the appellant and is hyper
technical for an administrative proceeding, it is normal to have persons raise their hands and be sworn in at the
beginning of the hearing if they intend to present testimony. The code does state that the hearing shall be
governed by the rules of Superior Court for the State of Washington, but that does not change the character of
the administrative hearing and turn it into a court hearing.
All evidence produced before the Director is to be considered that includes all oral testimony. Regarding the
issue of not having sufficient time to deal with the structure, this structure has been in this dilapidated condition
for at least 15 years. The neighbors have been complaining the structure is not getting any better. It is clear
from Mr. Meckling’s testimony, the structure is dilapidated to such an extent that it is subject to demolition.
There is some confusion between the Order to Demolish versus the Order to Correct by Mrs. Miller’s previous
attorney. The Order to Demolish may be the decision that was rendered by the Examiner with regard to Mr.
Miller’s appeal, which sustained the Director’s decision to demolish the structure. However, with regard to the
Order to Correct that was issued to Mrs. Miller because the City wished to see that she had her due process
rights and the City was unaware that she was a co-owner of the property initially and so she was not named
along with Mr. Miller in the initial proceeding. The Order to Correct provided that she could within 30 days
submit approved building plans for the repair of the dwelling and within 90 days of the date if the plans were
approved, construction and required inspection would have to be completed and approved. The date of that
document was April 14, 2009. Mrs. Miller did nothing.
Miller Unfit Dwelling Appeal
File No.: LUA-09-097, AAD/C09-0279
December 17, 2009
Page 5
Mr. Davis stated that what was marked as Exhibit 1 at the hearing before the Director, he was given a copy of
that at the end of the hearing, there was no proof of personal service on Diane Miller, which was required in the
Renton City Code unless it can be shown that personal service cannot be obtained. There was an indication that
the declaration of personal service from the officer was in Exhibit 1, and he was unable to find that in his copy.
He does have a declaration of service from Donna Locher indicating that it was sent by First Class mail with
Return Receipt Requested.
Hearing Examiner stated that the top of page 8 of 14 in Finding 1 states the complaint was served to Robin
Miller the husband of Diane Miller by Officer Gould on May 28, 2009. Robin Miller testified in the hearing that
he personally delivered the notice to Diane Miller regarding the scheduled hearing and associated date.
Mr. Davis stated that that testimony by Mr. Miller came after the City has rested. The case had been moved for
dismissal. Mr. Davis stated that he first saw the file the morning of the hearing and had not had an opportunity
to thoroughly review the file. In a hearing evidence must be stated, properly marked and admitted, if that is not
the entire file, then what else is out there and there is no chance to object to that.
The Examiner will go through Mr. Watts decision and see what exactly he relied on. A lot of it was the
testimony at the hearing.
The Examiner called for further testimony regarding this project. There was no one else wishing to speak, and
no further comments from staff. The hearing closed at 9:55 a.m.
FINDINGS, CONCLUSIONS & RECOMMENDATION
FINDINGS:
1. The appellant, Diane Miller, filed an appeal of decision finding a residence an unfit building and
ordering that it be demolished.
2. The appeal was filed in a timely manner.
3. The appellant owns property located at 16855 125th Avenue SE in Renton, Washington. The property
is a single family home.
4. The home is located in the City of Renton. The property was annexed to the City in March 2008. Prior
to annexation the property was under the jurisdiction of King County.
5. The appellant and her husband co-own the property. Originally, an order to demolish this same property
was issued to appellant's husband and he appealed that order. That appeal was denied in a prior
proceeding. Since that order was issued, the City determined that it should have included Diane Miller
the co-owner of that same house. Since the City failed to notify Diane Miller at that time, it brought a
separate action against her and a similar order to demolish the home was issued by the Director.
6. The appellant Diane Miller did not attend the hearing. She was represented by counsel and her husband
Robin Miller did attend the hearing. It was agreed that the home is in a state of serious disrepair. Robin
Miller testified that he wanted to bring it back up to code but with a pending order of demolition, he did
Miller Unfit Dwelling Appeal
File No.: LUA-09-097, AAD/C09-0279
December 17, 2009
Page 6
not want to expend time and money under ambiguous circumstances and potentially see the home
demolished.
7. Mr. Davis is the attorney representing Diane Miller in this proceeding. He also represented her in the
proceeding below. He was not the original attorney in the earlier proceedings and came aboard to
represent Diane Miller just prior to the hearing.
8. On appeal the appellant's arguments are due process or procedural arguments. The appellant argues the
Exhibits, particularly Exhibit 1 was never admitted and, therefore, could not be relied upon by the
Director in reaching a decision in this matter. Under those circumstances, the appellant argues that there
is no record that the appellant received the appropriate notices and orders and hearing information. The
second main argument was that the oath was not properly administered to witnesses and, therefore, the
testimony was not properly sworn. Under this argument, nothing testified to by the various parties
would be admissible.
8. Section 1.3.4 provides the definitions of "unfit or abandoned structure":
"(22) Unfit or Abandoned Structure: Any structure, which has been
damaged by fire, weather, earth movement, or other causes, and which
is not fit for occupancy, and has been abandoned or unoccupied by lawful
tenants for a period of 90 days; or where the cost of repair exceeds the
value of the structure once repaired; or such a damaged structure whose
owner shows no intention of completing or making substantial progress on
completing such repairs within 90 days.
Included within this definition shall be any dwellings which are unfit for
human habitation, and buildings, structures, and premises or portions thereof
which are unfit for other uses due to dilapidation, disrepair, structural defects,
defects increasing the hazards of fire, accidents, or other calamities, inadequate
ventilation and uncleanliness, inadequate light or sanitary facilities, inadequate
drainage, overcrowding, or due to other conditions which are inimical to the health
and welfare of the residents of the City of Renton. (Ord. 5221, 9-11-2006)"
9. The record below established the costs of repair as exceeding the statutory values.
10. The director admitted Exhibits 1, 2 and 3 into the record. (At Page 64 of the transcript.)
11. After some introductory remarks and near the beginning of the proceeding the Director administered the
affirmation:
"At this time, I ask all parties who wish to testify to raise their right hand and take the following
affirmation. Do you and each of you affirm the facts you are about to give in the matter now
heard are the truth? If so, answer 'I do.'" (At Page 4 of the transcript.)
CONCLUSIONS:
Miller Unfit Dwelling Appeal
File No.: LUA-09-097, AAD/C09-0279
December 17, 2009
Page 7
1. The appellant has the burden of demonstrating that the decision of the City Official was either in error,
or was otherwise contrary to law or constitutional provisions, or was arbitrary and capricious (Section 4-
8-110(E)(7)(b). The appellant has failed to demonstrate that the action of the Director should be
reversed. The appeal is denied.
2. Arbitrary and capricious action has been defined as willful and unreasoning action in disregard of the
facts and circumstances. A decision, when exercised honestly and upon due consideration of the facts
and circumstances, is not arbitrary or capricious (Northern Pacific Transport Co. v Washington Utilities
and Transportation Commission, 69 Wn. 2d 472, 478 (1966).
3. An action is likewise clearly erroneous when, although there is evidence to support it, the reviewing
body, on the entire evidence, is left with the definite and firm conviction that a mistake has been
committed. (Ancheta v Daly, 77 Wn. 2d 255, 259 (1969). An appellant body should not necessarily
substitute its judgment for the underlying agency with expertise in a matter unless appropriate.
4. The appellant argues that the Director administered the oath to all potential witnesses at the beginning of
the hearing rather than administering the oath to each individual witness as they testified. The appellant
cites RMC 1-3-5(F)(2): "Any party wishing to testify shall be sworn on oath.: and then noted that the
hearings are to be governed by the civil rules of superior court. The objection was there was no way to
determine if any particular witness actually took the oath before testifying. Washington Law and
Practice, Vol. 5A, Section 603.1, pp 359-360 states:
"Before testifying, a witness must declare that he or she will testify truthfully. The
declaration must be by oath or affirmation calculated to awaken the witness's conscience
and to impress upon the witness the duty to tell the truth" ... "If the court inadvertently
fails to administer an oath, the opposing party should object and request that the oath be
administered. In the absence of such an objection, the error is waived."
Taken together those phrases would appear to remove an objection by the appellant to the manner in
which the oath was administered in this case. The first reference does not require individual oath-taking
- it merely says that "before testifying, a witness must declare that he or she will testify truthfully."
Administering an oath to the assembled witnesses would seem to provide the same objective - "to
awaken the witness's conscience and impress upon the witness the duty to tell the truth." The second
reference appears to remove the doubt that maybe one or more of the witnesses arrived after the group
oath was administered. The appellant was not heard to object until filling the appeal. The appellant
should have objected to the "group oath" procedure but failed to do so. The error, failure to administer
the oath, if it occurred, would be waived by the failure to object to it in a timely fashion. In addition,
there is no evidence that any particular witness failed to take an oath to tell the truth.
5. The appellant argues that Exhibit 1 was never admitted and, therefore, could not be considered. If the
exhibit were not admitted, then the argument goes, there was no evidence that the "complaint was
personally served..." (Page 2, Brief of Defendant). At Page 64 of the transcript of the hearing the
Director admitted Exhibits 1, 2 and 3 into the record. In any event, it is quite evident that the appellant,
Diane Miller, had notice of the hearing. She hired an attorney to take up matters with the City and
represent her and then replaced that attorney with the current attorney, Mr. Davis. The current attorney
Miller Unfit Dwelling Appeal
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December 17, 2009
Page 8
was present at the hearing before the Director demonstrating the appellant was appropriately notified
even if appellant, herself, did not attend. Her husband and co-owner of the property was also in
attendance at the hearing and testified.
6. This office can find no meaningful substance to the appellant's objection to either the record and its
exhibits or the possible failure to individually administer oaths to witnesses. The appellant apparently
changed attorneys very shortly before the hearing but herself had adequate notice of the proceeding.
The materials were available for review by the appellant or her attorney in a normal manner and the
only prejudice is that the last attorney hired may not have had as much time as he would have preferred.
The materials were referred to at the hearing and there was no substantive objection as they were
testified about by various witnesses. It is disingenuous to now argue that no argument was made against
those exhibits because Mr. Davis did not believe they were part of the record. Any defect in their
admission was rectified by the Director at the end of the hearing. The appellant did not object to the
oath being administered to the entire assembly when it occurred, nor did the appellant object when any
individual witness testified that the oath "ceremony" was defective. Modern Courts have determined
that rules should not be thrown up as impediments to reaching a fair hearing. They generally allow
amended pleadings, new witnesses and similar deviations that allow a fair hearing. The appellant's
reliance on such formalities is misplaced since the lower appellate body should have been given a
chance to "fix" any mistakes that may have occurred as opposed to bringing out the technical guns in
this appeal.
7. This office subscribes to the arguments in the City's brief - even if the rules of procedure for Court are
applicable to oaths, the court rules allow the testimony if there is no objection at the time it was offered.
It is late for the appellant to play the "oath card" when it should have been raised below. Similarly, the
record consists of the exhibits as entered into the record by the Director as they were part of the entire
file and always available for inspection by an attorney, if not this attorney, representing the appellant.
8. With those procedural issues dispensed with, there is the merit of the Director's Decision. The record
demonstrates that the residence is very badly deteriorated. There are holes in the roof and floor. The
interior walls and supporting structures are rotting. Walls are open and old pipes and wiring are
exposed. The building presents a hazard to those who would enter it. The period this building has been
in this state exceeds 90 days. The building is "unfit" by definition and that is what the Director found.
The definition does not confine itself to one jurisdiction or another - that is City or County. The
building has been in a serious state of disrepair in both jurisdictions for a long time, exceeding 90 days.
The evidence, both photographs and descriptions show a building that declined over a long period of
time. The decision is clearly correct. This single-family residence is unfit and the appellant admitted as
much at the appeal hearing while possibly using different phrasing. Experts provided evidence that it
was in such a state of disrepair that costs of repair exceed the statutory limits.
9. The appellant was given a full opportunity to refute the City's allegations about the nature of the
residence. The Director found the residence "unfit" after appropriate deliberation.
10. The decision below should not be reversed without a clear showing that the decision is clearly erroneous
or arbitrary and capricious. This office has found that the decision below was clearly supported by the
facts and the decision below should not be reversed or modified.
Miller Unfit Dwelling Appeal
File No.: LUA-09-097, AAD/C09-0279
December 17, 2009
Page 9
DECISION:
The decision is affirmed and the appeal is denied.
ORDERED THIS 17th day of December 2009.
FRED J. KAUFMAN
HEARING EXAMINER
Pursuant to Title IV, Chapter 8, Section 100Gof the City's Code, request for reconsideration must be filed in
writing on or before 5:00 p.m., December 31, 2009. Any aggrieved person feeling that the decision of the
Examiner is ambiguous or based on erroneous procedure, errors of law or fact, error in judgment, or the
discovery of new evidence which could not be reasonably available at the prior hearing may make a written
request for a review by the Examiner within fourteen (14) days from the date of the Examiner's decision. This
request shall set forth the specific ambiguities or errors discovered by such appellant, and the Examiner may,
after review of the record, take further action as he deems proper.
Owner has the right to petition the superior court of King County for appropriate relief within 30 days
after the order becomes final.
If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants, the
executed Covenants will be required prior to approval by City Council or final processing of the file. You
may contact this office for information on formatting covenants.
The Appearance of Fairness Doctrine provides that no ex parte (private one-on-one) communications may occur
concerning pending land use decisions. This means that parties to a land use decision may not communicate in
private with any decision-maker concerning the proposal. Decision-makers in the land use process include both
the Hearing Examiner and members of the City Council.
All communications concerning the proposal must be made in public. This public communication permits all
interested parties to know the contents of the communication and would allow them to openly rebut the
evidence. Any violation of this doctrine would result in the invalidation of the request by the Court.
The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as
Appeals to the City Council.