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HomeMy WebLinkAboutLam Decision 1 & 2 � Denis Law Mayor � City Clerk-Jason A.Seth,CMC October 25, 2017 Mr. Stanley Lam 5210 NE 8th Place Renton, WA 98058 Re: Hearing Examiner's Decision Code Compliance Violation 1 (9/5/2017) &Violation 2 (9/18/2017) Code Case No: CODE-17-000466 Dear Mr. Lam: I have attached the Hearing Examiner's Decision dated October 24, 2017, in the above referenced matter. If you have any questions or concerns, please feel free to contact me. Sincerely, Jason . Seth City Clerk cc: Hearing Examiner Craig Burnell, Building Official Donna Locher, Code Compliance Inspector Tim Lawless, Code Compliance Inspector Robert Shuey, Code Compliance Inspector Sandra Pedersen, Finance 1055 South Grady Way,Renton,WA 98057 • (425)430-6510/Fax (425)430-6516 • rentonwa.gov OFFICE OF THE HEARING EXAMINER CITY OF RENTON REPORT, DECISION AND REOUIRED CORRECTIVE ACTION—APPEAL OF NOTICES OF VIOLATION(CODE17-000466) Appellant: Stanley Lam 5210 NE 8t" PI Renton, WA 98059 Alleged Violations: Two separate days of violation of RMC 9-10-1 for construction of a fence and planter in City right of way without a permit. Location of Violation: 513 S 2°d St. Renton, WA 98057-2062 Public Hearing: October 17, 2017 at Renton City Hall. Decision: RMC 9-10-1 Violation sustained. A total of$250 in fines is imposed for violating RMC 9-10-1 on September 5, 2017. The $250 fine for violating RMC 9-10-1 on September 12, 2017 is waived. SUMMARY OF DECISION The Appellant appeals two Findings of Violation ("FOVs") alleging that a fence and planter has been constructed in City right of way without a required permit. The Appellant doesn't contest that a fence and planter has been built in right of way with a required permit,but rather asserts several defenses. Notably the Appellant references a letter from Renton's Development Engineering Manager,dated September 8,2017,which states that the fence and planter must be removed by October 13,2017. The two FOVs were issued on September 5,2017 and September 18,2017 for violations on September 5,2017 and September 12,2017 respectively. The fine for the violation on September 12, 2017 is waived because prior to that day of violation the City had informed Mr. Lam he had until October 13, 2017 to remove the fence and planter. The fine for the violation on September 5, 2017 is not waived because that was before Mr. Lam was led to believe he had a grace period to remove the fence and planter. Mr.Lam also asserted the FOVs should be dismissed because they did not include any photographs of the violation. Mr. Lam asserted that because of the lack of photographs, he was confused about the basis of the FOVs. Photographs are not required to be attached to FOVs. However, FOVs should clearly identify the basis of the violation. The FOVs under appeal do not anywhere assert that it is Mr. Lam's fence and planter are the cause of the violation,except to require its removal under corrective action. FOVs must clearly identify the reason why staff believes someone has violated a specified code section. The FOVs under this appeal should have alleged that RMC 9-1-10 has been violated by the construction of a fence and planter in City right of way. As a matter of procedural due process,the factual basis of a code violation must be clearly identified in an FOV so that appellants can defend themselves in appeals. However, in this case Mr. Lam understood the factual basis of the violations under appeal. Appeal of Notice of Violation Page 2 He was repeatedly apprised of the basis of the violation by City staff over the course of several years. At the appeal hearing Mr. Lam expressed no confusion over the fact he had constructed a fence within City right of way,but was understandably confused about why the City would issue FOVs for dates prior to the October 13, 2017 compliance deadline set by City staff. Since Mr. Lam was given actual notice of the basis of his code violation,the procedural defect in the FOVs has not prejudiced Mr. Lam and does not warrant any further reduction in fines. SUMMARY OF HEARING TESTIMONY Tim Lawless, City of Renton Code Enforcement Officer,presented the City's case. He noted that the case started in 2013-14 when Mr. Lam was told he needed to get a right of way permit to build a fence and planter in the right of way. Mr. Lam built the fence and planter in the right of way without a right of way permit. A couple warnings of violation were mailed. In response to examiner questions, Mr. Lawless noted that Mr. Lam had applied for a permit before he constructed the fence and planter. The permit was denied and Mr. Lam constructed the fence and planter anyway. Mr. Lam noted that he never received a decision on his right of way permit application, which was filed in 2014. He asked Mr. Lawless why he never received a decision on the permit. Mr. Lam identified Ex. 1(B) as his permit application. Mr. Lawless noted that he told Mr. Lam in meetings his 2014 permit was denied. In response to examiner questions, Mr. Lawless noted that a second permit application for a right of way permit was filed in 2017 and that was denied by Ex. 1(I). Mr. Lawless did not know what kind of decision was communicated to Mr. Lam by the planning department on the first application. Mr. Lam believes that the lack of a decision from the City on his 2014 application was discriminatory based upon his minority status. Mr. Lam noted he applied for the second permit as required and he was still fined while he was undergoing the application process. When the permit was denied he was given until October 13, 2017 by one department to remove the fence and planter, but meanwhile he was given a FOV from another department before the removal deadline expired. Mr. Lam noted that there was no photograph attached to his FOV so he had questions. He called Mr. Lawless several times and Mr. Lawless never returned his calls despite a voicemail greeting assuring return calls within 24 hours. Mr. Lam noted that other Warning of Violations have pictures attached,presenting Ex. 2 as an example. He believed that the lack of phone response and different treatment with the code enforcement documents was based upon discrimination. In response to examiner questions,Mr. Lam stated that he did ask Mr.Lawless and another City staff person about the decision on his 2014 application was verbally told the permit was disapproved but he never received any documentation on the decision. Mr. Lam stated that he followed procedure and filed a written application and he should have received a written decision in return. Mr. Lawless noted that he applies the code equally regardless of the identity of the defendant. EXHIBITS Exhibit 1 Code compliance narrative with attachments A-K Exhibit 2 Warning of Violation on CODE 17-000441 Exhibit 3 Finding of Violation on CODE 17-000465 FINDINGS OF FACT 1. Appellant/Propertv Owner. The property owner is Hong Zeng,c/o Guonan Chen, 5210 NE 8�'Pl.,Renton, Appeal of Notice of Violation Page 3 WA 989059. The Appellant is Stanley Lam, 5210 NE 8�h Pl, Renton, WA 98059'. 2. Property. The property subject to this appeal is located at 513 S. 2"d St., Renton WA 98057. 3. Subject of Appeal. The Appellant appeals two FOVs. One FOV was issued for a violation on September 5,2017 and the other for a violation on September 12, 2017. Both FOVs assert that a violation of RMC 9- 10-1 for work done without a right of way permit within City right of way. Both FOVs do not identify the work allegedly done,but do require the removal of a fence and planter under specified corrective action. 4. Fence and planter without Ri�ht of Wav Permit. It is determined that sometime prior to April 16, 2017 a fence and planter was constructed within City right of way at the subject property without an approved right of way permit. The fence and planter has remained in place at least through September 12, 2017. The existence and location of the fence and planter was determined by Code Inspector Tim Lawless. The Appellant does not deny these facts and has twice applied for a right of way permit,specifically identifying in one permit application that the Appel(ant wishes to build the fence within City right of way. See Ex. 1(B). 5. Prior Knowledge of Violation. When the subject FOVs were issued,the Appel(ant had actual notice that the unspecified "work" identified in Finding of Fact No. 3 herein was the construction of the fence and planter identified in Finding of Fact No. 4 herein. Mr. Lawless testified that he had advised the Appellant of the violation on multiple occasions. In response to these communications,the Appellant and his partner made two applications for right of way permits for the fence and planter. In response to examiner questions during the appeal hearing,the Appellant expressed no confusion over the factual basis of the violation, i.e. that the unpermitted work was the fence and planter identified in Finding of Fact No.4. 6. Conflictin�tv Compliance Date. By letter dated September 8,2017,the City's Development Engineering Manager gave the Appellant until October 13,2017 to remove the subject fence and planter. Subsequently, on September 12, 2017 the City issued a second FOV for not having removed the fence and planter before the October 13,2017 compliance date. CONCLUSIONS OF LAW 1. Hearin� Examiner 7urisdiction. The hearing examiner has jurisdiction to hear an appeal of a Notice of Violation as a designee of the Administrator of the Department of Community and Economic Development. See RMC 1-3-2(B)(1)and RMC 1-3-2(E). As designee of the Administrator,the examiner is authorized to require corrective action for Findings of Vio(ation that become final pursuant to 1-3-2(D)(2) 2. A�plicable Code provisions. The FOVs assert violation of RMC 9-10-1,which is quoted below in italics. RMC 9-10-1 PERMISSION REOUIRED: It shall be unlawful for any person,firm, corporation or association to construct, cut up, dig up, undermine, break, excavate, tunnel or in any way disturb or obstruct any street, alley or any street pavement, street curb, sidewalk, driveway or improvement in the City without first having obtained written permission as herein provided;provided,however, that in case of an emergency occurring outside the regular office hours whenever an immediate excavation may be necessary for the protection of life or private properry, such matter shall be reported immediately to the Department of Communiry and Economic Development of the Ciry, who may thereupon grant permission to make the necessary excavation upon the express condition ' This address is based upon the only address for the Appellant submitted by the parties,a letter to Mr.Lam and Mr.Zeng dated September 8,2017,Ex. 1(I). Appeal of Notice of Violation Page 4 that an application for a permit be made in the manner herein provided, on or before noon of the next following business day.Any violation of this Section shall be governed by RMC 1-3-2. RMC 1-3-1(E): Continuing Violation: Where any act which is of a continuing nature is forbidden or declared to be unlawful, each day or portion of a day such dury or obligation remains unperformed or such act continues shall constitute a separate offense. 3. RMC 9-10-1 violation sustained. The City has established that the Appe(lant constructed a fence and planter in City right of way without a right of way permit as determined in Finding of Fact No.4. However, to establish a violation of RMC 9-10-1, the right of way must qua(ify as a "street, alley or any street pavement, street curb, sidewalk or improvement." The quoted language suggests that a "street" encompasses more than just the improved portions of the right of way, since the remainder of the quoted language already encompasses all street improvements. Given the proximity of the fence and p(anter to the improved portions of the street, i.e. the sidewalk, and the absence of any dispute from the Appellant, it is concluded that the location of the fence is within the "street" as contemplated in RCW 9-]0-1. It is noteworthy that if the fence and planter were not considered to be in the "street," a permit would in any event likely be required under Chapter 9-2 RMC,which requires permits for work in unused portions of the right of way. 4. Mitigation of Fines. RMC 1-3-2(E)(3)(fl authorizes the examiner to mitigate fines. The fines for the second FOV are waived because prior to issuance ofthe September 18,2017 FOV the City had given the Appellant a compliance deadline of October 13, 2017. The Appellant was reasonably led to believe that the fence was authorized to stand until October 13, 2017 after receiving the compliance deadline by the City on September 8,2017 as detailed in Finding of Fact No. 6 herein. DECISION As determined in the Conclusions of Law above,both FOVs subject to this appeal are sustained but the$250 fine for the second FOV is waived in its entirety. The $250 in fines for the first FOV, issued September 5, 2017,as authorized by RMC 1-3-2(F)(1)remains due and owing to the City of Renton within 30 days of the date of this decision. The Appellant shall remove the fence located in City right of way by November 10, 2017. Failure to correct as ordered shall subject the appellant to criminal prosecution authorized by RMC 1-3- 2(F)(2). Failure to correct can be charged as a misdemeanor. The maximum penalties for a misdemeanor are 90 days in jail and$1,000 in fines. Decision issued October 24, 2017. � _.�-.�'�..�,.�...;..�-�.....�........................e �n��n�� Hearing Examiner Appeal of Notice of Violation Page 5 NOTICE OF RIGHT TO APPEAL AND RECONSIDERATION 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. Reconsideration requests are authorized for up to ten business days after issuance of this decision if filed with Renton City Clerk.