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HomeMy WebLinkAbout10-15-2024 - City's Response - CarnerOctober 15, 2024 RESPONSE (In Appeal of Code Case CODE23-000293) On October 9, 2024, Kelly Carner, the property owner of record at 11135 SE 164th Street submitted an email letter and assertions against the City. I have reviewed the email and its attachments and provide the following as directed by Hearing Examiner, Phil Olbrechts. I have separated the assertions, according to topic: THERE IS NO PROOF MR. CARNER RECEIVED THE 2019 DECISION: Code Compliance does not maintain a file on issuance or tracking of Hearing Examiner Decisions. I reached out to support staff for the Hearing Examiner, and was able to confirm that on or about March 22, 2019, Mr. Carner came to City Hall to verify he received the 2019 Decision which was dated February 22, 2019. (Emails attached) GRANDFATHERED PROPERTY USE: As I understand it, Mr. Kelly is arguing that since the updates to relevant parts of the Renton Municipal Code (“RMC”) did not occur until 2019, and he purchased his property in 1999, his current use is “grandfathered”. I take that to mean that Mr. Kelly believes he has a “legally nonconforming use” under RMC 4-10-060. As I explained previously in my letter to Mr. Carner (Exhibit 8 to the Report for the Code Compliance Appeal Hearing (“Exhibit 8”)), the City believes that this argument was substantially addressed in the Hearing Examiner’s Decision of February 21, 2019, for CODE17-000628. (“2019 Decision”) Mr. Carner alleges that the 2019 Decision allowed him to “have unlimited number of cars” on the property. In fact, as I pointed out in my letter at Exhibit 8, the 2019 Decision recognized that “up to five” vehicles were “grandfathered” he had one year to bring the number of vehicles to the currently allowed number. At the time of the 2017 violation that number was four, which was found in RMC 4-4-080.F.10(d) In 2019, based on amendments to the RMC, the requirement was moved to RMC 4-4-085.D.4 but remains at the same level of up to four vehicles. Response Page 2 of 3 October 15, 2024 RESOLUTION TO NUMBER OF VEHICLES: As I noted in my letter at Exhibit 8, Mr. Carner may exceed that number if he provides documentation that each licensed driver and vehicle are registered to the address (RMC 4-4-085.D.4(a)), or he has obtained an additional vehicle permit from the City (RMC 4-4-085.D.4(c) referencing RMC 4-9-105). He has not provided any such documentation. RE-ISSUED VIOLATIONS: Mr. Carner alleges the City “closed the original violations and then re-issued them”. It is not clear what violations Mr. Carner believes were closed and then re-issued. The City has not closed violations related to CODE23-000293, but suspended enforcement on violation of RMC 4-4-085.D.2 (Violation 1 of the Code Case) based on his progress toward resolving the violation, that he was seeking a permit to build an enclosed building for disabled or unlicensed vehicles and boats. BURDEN OF PROOF: RMC 4-9-100.G.3(f)(vii) describes the burden of proof necessary for a code enforcement hearing. I believe that the Exhibits to the Report for Code Compliance Appeal Hearing (“Exhibits”) meet the burden of proof for this civil case, that is that the evidence shows that the facts in dispute are more likely than not (“preponderance of evidence”). In the Exhibits submitted, I provided a narrative filed under penalty of perjury of the four separate RMC violations that occurred; and photographs taken from the public right of way that showing over time the violations related to: number of vehicles parked on the property; and, expired license tags and/or other evidence of inoperable or disabled vehicles not in an enclosed building; and, vehicles not parked on a driveway; and, recreational vehicles hooked to power and being used for habitation; and, warnings and notices of violations; and other communications providing background and means to correct the violations. CONSTITUTIONAL ISSUES: The City has a police power to protect public health, safety, and welfare of the entire community, which includes the ability to regulate or limit the use of property. This expressly includes the abatement of public nuisances and the establishment of building codes and safety standards. The regulation of this nuisance property, and the time provided in order for Mr. Carner to abate or come into compliance with valid regulatory requirements, does not rise to the level of a taking. The City is not depriving Mr. Carner of reasonable use of his property, merely unfettered use. This was also addressed in the 2019 Decision: “even if a regulation does operate to terminated a lawfully established use… the regulation can be imposed if the property owner is given a reasonable amount of time to terminate the use, i.e., is given a reasonable amortization period,” Response Page 3 of 3 October 15, 2024 The City and the Code Compliance team have treated Mr. Carner and his property substantially the same as any other property owner in this position. I fully reject any claims of discriminatory treatment. This is the City’s response to Mr. Carner’s email claims in CODE 23-000293. Respectfully submitted, Sheila Madsen Code Compliance Inspector City of Renton (425)430-7236 Attachment 1 October 9 email string CAUTION: This email originated from outside the City of Renton. Do not click links, reply or open attachments unless you know the content is safe. From:Kelly Carner To:Phil Olbrechts Cc:Sheila Madsen; Donna Locher; Cynthia Moya Subject:Re: Renton/Carner Code Enforcement -- CODECASE# 23-000293 -- Additional Opportunity for Comment Date:Wednesday, October 9, 2024 8:59:23 AM Thank you for the clarification. I do understand what was sent, In my field where i deal with legal documents on a daily basis nothing is assumed , if it's not in writing it doesn't matter, Also your condescending and belittling comments are uncalled for, and furthermore i sent you information prior to the 20th deadline, you trying shift the burden of prove to me, to take the burden away from the City since they are unwilling to prove the evidence of their claim, this goes against my constitutional rights is not happening the City is the accuser here, so from what i see the City missed the deadline for response, and now is trying give itself more time to respond. Am I missing something? On Tue, Oct 8, 2024 at 9:52 PM Phil Olbrechts <olbrechtslaw@gmail.com> wrote: Mr. Carner, In response to your email today your reply was extended to October 2, not the initial post hearing presentation of your parking defense. As outlined in the emails setting the post- hearing briefing schedule, your initial presentation was due september 20, the City's response September 27 and your reply to the City's response was due October 2. When I originally set up that briefing schedule I erroneously had your reply due before the City's response, which of course wasn't possible for the City. The October 2 extension simply logically made your reply due after the City's response. Lawyers would have understood what was going on since the presention/response/reply format is fairly standard, but of course people who don't work with that kind of format 40 hours a week would not catch on. I anticipated your very understandable misunderstanding and that's why I've accepted your 9/28 submission despite being technically late and have further extended the response and reply deadlines. My primary goal here is to make a fully informed decision on your defenses to the parking violation. The code gives you a couple potential outs that may apply to your case and you of course should take full advantage of them if they apply. On Tue, Oct 8, 2024 at 7:13 PM Kelly Carner <kelvisss@gmail.com> wrote: I’m pretty sure you know it was extended to October 2nd when you sent the email stating that it was unless I’m confused on what the October 2nd deadline was, since the wording said correction that would indicate you extended it at that point, otherwise the response would have been sent earlier. Thank none the less for your email. On Tue, Oct 8, 2024 at 3:48 PM Phil Olbrechts <olbrechtslaw@gmail.com> wrote: Mr. Carner, I've been checking in with the City Clerk on the status of the briefing on the RMC 4-4- 085D4 exceptions pertaining to your case. It doesn't appear that the deadlines set out in the email below have been followed. Your argument on those defenses was due September 20, 2024. As far as I can ascertain from the City Clerk, your argument on that issue (attached) didn't come in until September 28, 2024. It appears you might have confused the October 2, 2024 reply deadline with the September 20, 2024 deadline for your initial argument/evidence. Whatever the reason I don't see any significant prejudice to the City in accepting your late filing. You have been diligently advocating your case and I don't think you'd intentionally miss a deadline. The City of course could not submit a response to your submission by its September 27, 2024 deadline since your submission didn't come in until September 28, 2024. For these reasons I'll extend the City response deadline to the attached document to October 15, 2025. You can then file a reply to the City response by October 18, 2024. Of course, if I have misconstrued the attachment as your RMC 4-4-085D4 exceptions response please advise. Also, if you have any questions please feel free to ask. On Wed, Sep 11, 2024 at 2:04 PM Phil Olbrechts <olbrechtslaw@gmail.com> wrote: Correction to reply deadline in email below -- Mr. Carner's reply would be due October 2, 2024. On Wed, Sep 11, 2024 at 2:00 PM Phil Olbrechts <olbrechtslaw@gmail.com> wrote: Mr. Carner, This email provides Mr. Carner an additional opportunity for comment on the four vehicle limit rule, RMC 4-4-085D4. Additional opportunity is provided because Mr. Carner was not aware he had the burden of proof to establish conformance to the exceptions to that rule. In reviewing hearing testimony and post-hearing documents Mr. Carner is shown to express the understanding that the City has the burden of proof in establishing exceptions to the four vehicle parking limit imposed by RMC 4-4-085D4. Case law provides that the defendant has the burden of proof in proving affirmative defenses and that statutory exceptions qualify as affirmative defenses when they don't negate an element of the alleged violation. See Kastanis v. Educ. Employees Credit Union, 122 Wn. 2d 483, 493 (Wash. 1993). RMC 4-4-085D4 provides two exceptions that are pertinent to Mr. Carner's defense. RMC 4-4-085D4a authorizes more than four vehicles when there are more than four registered owners living on the property with their vehicles parked on the property. RMC 4-4-085D4c authorizes more vehicles to the extent that property has "more off-street parking stalls for the subject property based on the presence of lawfully established structures and uses." It should be noted that for this latter "grandfather" exception, case law is also clear that persons who wish to allege grandfather rights have the burden of proving them. Van Sant v. City of Everett, 69 Wn. App. 641, 648 (1993). If Mr. Carner would like to present evidence on the two exceptions authorized by 4- 4-085D4, please submit any such documentation to the parties to this email by 5 pm, September 20, 2024. The City may provide a response by 5 pm September 27, 2024 and Mr. Carner may submit a reply by 5 pm September 25, 2024. If Mr. Carner wishes an opportunity for additional oral argument please make your request by email to me cc'd to the other parties. To establish any grandfathered rights Mr. Carner will need to know when RMC 4-4-085D4 was adopted and amended by the City. The City's on-line code cites the ordinances adopting each section at the end of each section. Those ordinances are also available on-line and provide the necessary information as to dates of adoption. Mr. Carner should be able to get this information on his own. However, City staff probably can get this information more quickly since they were involved in the adoption process. It is requested that City staff provide Mr. Carner with copies of the ordinances that establish when RMC 4-4-085D4 was adopted. Attachment 2 Emails from 2019 CynthiaMoya From:CynthiaMoya Sent:Friday, March22, 201912:38PM To:PhilOlbrechts Cc:CraigBurnell; DonnaLocher; KevinLouder; LynneHiemer; RobertShuey Subject:KellyCarnerCodeComplianceDecision Phil, Mr. KellyCarnercameintosayhejustreceivedhisletterfromus (dated2/22 - maybeduetothesnowstorm) andhad notimetoputinaMotiontoreconsiderortakeittoSuperiorcourt. ItoldhimtowriteanemailtouslettingusknowandIwouldforwardittoallandyouwouldhavethelastwordonthe timingofthedecision. AssoonasIgetsomethingfromhim, todayorMondayIwillforwardtoallinvolved. Thankyou, CindyMoya, CityClerkSpecialist CityofRenton - AdministrativeServices/CityClerkDivision cmoya@rentonwa.gov 425-430-6513 1 CynthiaMoya From:KellyCarner <kelvisss@gmail.com> Sent:Friday, March22, 201912:13PM To:CynthiaMoya Subject:KellyCarner HiPhilIwaswantingtoappealbutdidn’treceivethisnoticeintimetorespondmaybe (snow) Idon’tknowwhy. Areyou abletoredatethissoIcanappeal? 1 CynthiaMoya From:CynthiaMoya Sent:Tuesday, March26, 20198:29AM To:'KellyCarner' Subject:RE: KellyCarner Kelly, Ithoughtyouweregoingtosubmitanemailrequestingadditionaltimetoreconsiderorappealthismatter. Pleaseget thatrequesttousassoonasyoucan. Thankyou, CindyMoya, CityClerkSpecialist CityofRenton - AdministrativeServices/CityClerkDivision cmoya@rentonwa.gov 425-430-6513 From: KellyCarner \[mailto:kelvisss@gmail.com\] Sent: Sunday, March24, 201911:46AM To: CynthiaMoya <CMoya@Rentonwa.gov> Subject: KellyCarner Hiheresomepicsofprogressmadesinceourmeetinglastyearwhichalottookplacewithinamonthofthe meeting. 1 CynthiaMoya From:KellyCarner <kelvisss@gmail.com> Sent:Tuesday, March26, 201910:16AM To:CynthiaMoya Subject:KellyCarner HiPhilI’maskingforadditionaltimeforreconsiderationorappeal, thefeesyouhavethatareowed, arebaseduponme notdoinganythingwhichisnotthecaseastheemailsandcorrespondenceIhavehadoverthespring/summerstate thatalongwithpictures, whencodeenforcement (askedifIwantedworkthingsout?) Ifeelitwasmisleading, Ifeelat thispointalotofmyVestedRightsOrGrandfatherRightsarebeingtakingawayWhichtheWebster’sLawdictionary statesIwouldhavetowillinglygiveupthoserights, theserightsarethesameasanyrightapersonhas. Youcouldthink ofitashavingaaccessroadonyourpropertyandsomeoneremovingthataccessafteryouhavebeenusingitforyears, theVestedRightorGrandfatheredLaws/ActsProtectthemfromAnyonecominginanddoingso. WiththatsaidIdo agreeIneededtocleansomeofthelittlepileshereandtheirupbutIdonotagreewiththeCitytryingtotakemyrights away. Iwouldreallyappreciateasecondopiniononthismatter. SidenoteaftertheCitydidn’trespondtothismatterwithinthe30dayswhichwaswhatIwastolditwoulddo. I consideredthematterclosedespeciallyafterIreceivedtheemailaskingtoworkthingsout, atnotimedidIaskforyour rulingtobeheld, Iaskedcodeenforcementwhatthemwanttoworkon. Thishasallbeenverystressfulandcausedmealotofanxiety! Sincerely KellyGCarner 1 Attachment 3 Hearing Examiner Decision dated February 21, 2019 Code Enforcement Decision - 1 BEFORE THE HEARING EXAMINER OF RENTON DECISION FILE NUMBER: CODE17-000628 ADDRESS: 11135 SE 164th St Renton WA 98058 PROPERTY OWNER: Kelly Carner A Fire Inside 11135 SE 164th St. Renton, WA 98058. REVIEW AUTHORITY: City of Renton TYPE OF CASE: Finding of Violation DISPOSITION: $400 in fines sustained; $300 of the fine due by April 1, 2019. The remaining fine shall be waived upon timely abatement of Violation No. 1 as detailed in the “Decision” section of this Decision. INTRODUCTION Kelly Carner appeals a Finding of Violation (“FOV”) alleging four code violations associated with outdoor storage for his single-family home located at 11135 SE 164th St Renton WA 98058. All four violations are sustained. However, one of the violations involves a use of property that was consistent with applicable zoning regulations at the time it was established. Specifically, Mr. Carner was authorized prior to his annexation into the City of Renton to park more than four noncommercial vehicles on his property. One of the four FOV violations asserts that Mr. Carner has violated RMC 4-4-080(F)(10)(d), a Renton regulation that currently prohibits parking more than four vehicles on residentially zoned property. Since Mr. Carner lawfully established the use that currently violates RMC 4-4-080(F)(10)(d), he will be given a year to abate that violation and upon timely abatement the $100 fine for that violation will be waived. None of the remaining violations is based upon a lawfully established use. The remaining three violations shall be abated by April 1, 2019 and the associated $300 in fines shall be paid by that time as well. Mr. Carner does not contest that he is in violation of the code sections cited in the FOV. Rather, for at least two of the alleged violations, he asserts that the use of his property is “grandfathered” against currently applicable use standards because the use of his property was lawful when the uses were established. As previously noted, Mr. Carner is correct that one of those two uses, unlimited parking of noncommercial vehicles, was consistent with applicable development Code Enforcement Decision - 2 standards at the time it was established. However, as shall be discussed, even though that use may be considered “grandfathered,” the City of Renton still has the authority to restrict it if to do so doesn’t operate to terminate the uses authorized for the property. The pertinent use authorized for Mr. Carner’s property is single-family use. Making him reduce the number of parked vehicles from five to four doesn’t terminate that use and is therefore a lawful exercise of Renton’s authority to regulate land uses. Determining what uses were lawfully established on Mr. Carner’s property is very complicated and involves a review of numerous King County ordinances because Mr. Carner’s property was annexed into Renton as part of the Benson Hill annexation on March 1, 2008. Immediately prior to annexation his property was zoned R8 under King County regulations. From the time Mr. Carner acquired ownership of the subject property in 1999 up until the March 1, 2008 date of annexation, the outdoor storage of unlimited operable and licensed noncommercial automobiles was authorized in the R8 zone. In that same time period, a single commercial vehicle was also authorized for delivery of materials to and from a home occupation. Mr. Carner established that at least immediately prior to annexation on March 1, 2008 he had used his property to store five noncommercial automobiles. Mr. Carner did not present any evidence that any of the commercial vehicles stored on his property were used for delivery of materials to and from a home occupation. For this reason, it is concluded that the only lawfully established use on Mr. Carner’s property was storage of five noncommercial motor vehicles. The other three violations alleged in the violation were not applied to lawfully established uses and are sustained. Although uses that are lawfully established often are protected from changes in zoning laws as legal nonconforming use (the legal term for “grandfathered”), the courts do not require that level of protection if the changes in regulation don’t operate to terminate the use. This concept is well summarized in Rhod-A-Zalea & 35th, Inc. v. Snohomish County, 136 Wn.2d 1, 10 (1998) as follows: Courts have consistently recognized that nonconforming uses are subject to subsequently enacted reasonable police power regulations. Only where the regulation would immediately terminate the nonconforming use have courts found the regulation to be invalid as applied to the nonconforming use1. These rulings are consistent with the principle that a nonconforming use has a “vested” or “protected” right to continue without being subject to immediate termination. Local governments, of course, can terminate nonconforming uses but they are constitutionally required to provide a reasonable amortization period. 1 In correspondence with the City, Mr. Carner argued that his legally established uses were protected from subsequent regulation under the vested rights doctrine. This argument was actually adopted by the Court of Appeals in the Rhod- A-Zalea case, but was rejected by the Washington State Court upon appeal as follows: Washington is one of only a few states that has adopted the "vested rights doctrine." However, this doctrine has no bearing on the issue of whether a nonconforming use is subject to later enac ted health and safety regulations, as the doctrine only applies to permit applications. 136 Wn.2d at 16. As noted by the Examiner at the appeal hearing, the vested rights doctrine only applies to permit applications and not to nonconforming use (grandfather) rights. Code Enforcement Decision - 3 As noted in the Rhod-A-Zalea case, so long as development standards don’t operate to terminate a use and are a valid exercise of the police powers, they can be validly enforced against nonconforming uses. How to apply Rhod-A-Zalea to Mr. Carner’s property depends in part upon how the uses on his property are characterized. If his use is just characterized as single-family use, then his use isn’t protected against any of the regulations cited in the FOV. The FOV only restricts outdoor use of Mr. Carner’s property, which doesn’t come close to terminating use of the property for single-family use. At the opposite extreme, if use of Mr. Carner’s property is found to include outdoor storage, then the regulations cited in the FOV would operate to terminate that type of use and Mr. Carner’s property would be protected from their operation. Of course, if the uses of a piece of property are parsed to include every type of use prohibited by a development standard, the Rhod-A-Zalea holding would be rendered meaningless, as cities and counties would never be able to adopt new performance standards that apply to existing, lawfully created uses. To optimize consistency with zoning codes and to give some meaning to the Rhod-A-Zalea holding, the most logical way to define a “use” is to apply the use classifications recognized in the zoning code. Under the King County zoning code, there are two uses that apply to Mr. Carner’s property – single family use and home occupation. Outdoor storage for the home occupation under King County regulations was limited to just one commercial delivery vehicle. As previousl y noted, Mr. Carner did not present any evidence that any of the commercial vehicles on his property served as delivery vehicles for a home occupation. With these circumstances in mind it is clear that none of the code citations cited in the FOV would operate to terminate either the single-family use or the home occupation if enforced. Since Mr. Carner does not dispute that he is in violation of the regulations cited in the FOV and the evidence in the record supports all of the violations, all four alleged violations in the FOV are sustained. As noted previously, the storage of noncommercial vehicles on Mr. Carner’s property is the only lawfully established use of the property that is subject to one of the alleged code violations of the FOV. Even though the regulations of the FOV can be applied to this lawfully established use for the reasons previously identified, this decision will take a more conservative and equitable approach and give Mr. Carner a quasi-amortization period to abate the violation. As quoted in the Rhod-A-Zhalea decision above, even if a regulation does operate to terminate a lawfully established use that is vested against changes in zoning regulations, the regulation can be imposed if the property owner is given a reasonable amount of time to terminate the use, i.e. is given a reasonable amortization period. Consequently, in the unlikelihood that a court would construe Mr. Carner’s storage of noncommercial vehicles as a vested use for purposes of nonconforming use rights, Mr. Carner is given a year-long amortization period to terminate (in this case abate) the use. HEARING The appeal hearing of this case was held on May 8, 2018, at 10:30 a.m. at the Renton City Hall Council Chambers, 1055 South Grady Way, Renton, WA 98057. The hearing was left open through May 14, 2018 for Mr. Carner to submit information on the date of annexation of the subject property and the uses of the property prior to annexation. The City was also given time to respond to that information. Mr. Carner submitted the requested information as Ex. 7. No response was made by the City. On June 4, 2018 the City subsequently asked the examiner by email to delay a Code Enforcement Decision - 4 ruling on the case as the parties were attempting to work out a resolution of the case. On October 31, 2018 the City advised the examiner by email that they had been unable to resolve the case. The City requested a ruling. TESTIMONY [This summary of oral testimony should not be considered a part of the Final Decision. It is solely provided for the convenience of the reader as an overview of testimony. Nothing in this summary should be construed as a Finding of Fact or Conclusion of Law or signifying any priority or importance to the comments of any individual. No representations are made as to accuracy. For an accurate rendition of the testimony, the reader is referred to the recording of the hearing.] Donna Locher, City of Renton Code Enforcement Officer, testified that on October 26 and 30 she conducted a site inspection due to a citizen complaint regarding outdoor storage on the property and two new structures. Ms. Locher observed a structure under construction, over four vehicles parked on the property, a cargo container, a commercial van, outdoor storage and a business license violation. Those violations were addressed in an October 31, 2017 Warning of Violation to Kelly Carner. Mr. Carner and she spoke on November 6. He checked with planning and it was determined that since the structure, a shed, was under 200 square feet, no building permit was required. He said he would get a business license for the pizza truck and take care of the outdoor storage and vehicles. On December 27 Ms. Locher did a follow up inspection and found all violations still remained except for the building permit violation for which it turned out he was exempt. On January 2, 2018 a second Warning of Violation was sent to Mr. Carner. On February 19 Ms. Locher did another inspection of the property and found all violations still not addressed except for the exempt building permit. On February 22, Ms. Locher issued a Finding of Violation for the least amount of money possible, $400 for four violations. March 9 was set as the compliance date. Mr. Carner filed an appeal on March 9. The property still remains in violation. Ms. Locher did not observe any abatement on the day of hearing, but she was limited in what she could see from the right of way. In response to examiner questions regarding Violation No. 3, which cites 10-10-13 for parking a commercial vehicle on public right of way, Ms. Locher stated that was just a warning not to park a commercial vehicle on public right of way and that Violation No. 3 was actually regarding 10-10-12, which prohibits overnight parking. Ms. Locher noted that the zoning districts in 10-10-12 are outdated and the planning department has found that 10-10-12 applies to the R8 district, which is the district of the subject property. The residential zoning districts in 10- 10-12 were all the residential zoning districts at the time it was adopted. Mr. Carner testified that he’s owned the property since 1999. He understood he was under King County regulations when he purchased the property. Mr. Carner said he was confused about the commercial vehicle violation since the City has used different code citations to assert a violation. He noted that the commercial truck is being transformed into a food truck. He will be having a garage sale in the upcoming weekend to sell the remaining items in the cargo container and he has the container already sold to a friend so it should be gone soon. The pizza truck and bus violations don’t make sense to him. He can’t afford to rent a commercial property to park the vehicles and he has plenty of space to park the vehicles on his residential property. It’s taken him a long time to abate the violations because of school and his disability. When he purchased the property in Code Enforcement Decision - 5 1999 he didn’t have the pizza truck and bus at that time, but he had other commercial vehicles parked on the property. At the time of purchase his property had a dump truck, a trailer and a bulldozer. Then he switched to a dump trailer, dump truck and mini-excavator. He was cited for the dump truck and he ended up selling it. He plans on moving the cargo container to Eastern Washington. He got the cargo container to collect all the items on his property and then remove them. He noted that another property in the area has a new container. When he purchased the property in 1999 he probably had five vehicles parked on the property, not as many as today. He has recently moved the Chevy pick-up off the property as well as the white van. There has been progress made on abatement. Mr. Carner acknowledged that he has let some storage get out of hand. He was annexed into the City in 2008. In 2008 he had more items stored on his property than in 1999. He noted he is working on abating the violations. Ms. Locher noted that Mr. Carner had only called her once regarding abatement and he still doesn’t have a temporary use permit or a business license for the pizza truck. Ms. Locher noted the business license violation isn’t part of the Finding of Violation under appeal. The hearing examiner asked Mr. Carner to send him a letter outlining when he was annexed into the City of Renton and what kind of uses were on his property at the time of annexation. The examiner noted that performance standards as opposed to use standards don’t vest and he will have to investigate whether the violations subject to the Finding of Violation are vested. EXHIBITS Exhibits 1-6 of Code File 17-000628 were admitted into the record during the May 8, 2018 hearing. An email with attachment dated May 8, 2018 from Mr. Carner to Ms. Locher was admitted a s Ex. 7. Email correspondence from the City to the Examiner dated June 4, 2018 and October 31, 2018 regarding the timing of the Decision on this appeal is admitted as Ex. 8. FINDINGS OF FACT 1. Appellant. The Appellant is Kelly Carner, 11135 SE 164th St, Renton, WA 98058. 2. Violation Site. The violation site is the Appellant’s residence, 11135 SE 164th St, Renton, WA 98058. The Appellant, Kelly Carner, is the owner of the violation site. 3. Appeal. This decision addresses Mr. Carner’s appeal of an FOV alleging four violations of outdoor storage and parking regulations on February 19, 2018. Violation No. 1 alleges noncompliance with RMC 4-4-080(F)(10)(d), which prohibits parking more than four vehicles at a time for lots zoned for single-family use. Violation No. 2 alleges noncompliance with RMC 4- 5-130(B)(4), which prohibits outdoor storage of shipping containers. Violation No. 3 alleges noncompliance with RMC 10-10-12, which prohibits overnight parking of specified types of trailers, commercial trucks, commercial buses and commercial vehicles over 12,000 pounds in weight. Violation No. 4 alleges noncompliance with RMC 4-5-130(B)(4), which requires outdoor storage to be limited to a 200 square foot area in parcels zoned R8. Code Enforcement Decision - 6 4. Prior Use. The subject property was annexed into the City of Renton on March 1, 2008 as part of what is commonly known as the Benson Hill annexation. At the time of annexation, the property contained the following vehicles: • Ford Dump truck F800 commercial. • Gator dump trailer. • 2000 F250 which is the vehicle that pulls the pizza trailer. • 97 Toyota Camry. • 2003 Nissan Altima. • 2000 Chevy pickup. • 94 Dodge E350 commercial. • 84 Chevy Corvette. • Mini Excavator. • 93 Nissan 300. The list of vehicles above was submitted by Mr. Carner as Ex. 7 upon request of the examiner. The City was given an opportunity to respond to the list and chose not to do so. Mr. Carner also testified that he purchased the subject property in 1999 and at that time the subject property had a dump truck, a trailer and a bulldozer. Then he switched to a dump trailer, dump truck and mini- excavator. The statements and list presented by Mr. Carner as outlined in this finding are taken as verities since they are consistent with the current use of the property, the testimony was made under oath, the testimony and list were uncontested by the City and Mr. Carner provided sufficient detail and objectivity in his comments to warrant credibility. 5. Violations. For ease of reference, the findings of fact below are linked to the violation numbers of the FOV for Case No. CODE17-000628. All references to the “subject property” are to Mr. Carner’s residence, 11135 SE 164th St, Renton, WA 98058. A. Violation No. 1: 10 motor vehicles were parked on the subject property on February 19, 2018. The vehicles were identified by license plate or vehicle description in the NOV. Mr. Carner does not dispute these observations of staff made on February 19, 2018. The staff observations in this regard along with photographs comprising Ex. 4 establish that over four vehicles were parked on the subject property on February 19, 2018. B. Violation No. 2: A shipping container was stored on the subject property on February 19, 2018. The FOV identifies that staff observed the shipping container on February 19, 2018. Mr. Carner does not dispute the observations of staff. The staff observations in this regard along with photographs comprising Ex. 4 establishes that a shipping container was stored on the subject property on February 19, 2018. C. Violation No. 3: A commercial vehicle was stored overnight on the subject property on February 19, 2018. The FOV identifies that staff on February 19, 2018 observed that a transit van “remains on the property.” Mr. Carner did not dispute that the transit van is parked overnight on his property. The transit van was shown parked on the same spot in photographs taken on February 19, 2018, Ex.4, as well as on October 26, 2018, Ex. 2. Given that photographs and staff observations were made of the transit van Code Enforcement Decision - 7 parked in the same spot over multiple days and the fact Mr. Carner does not dispute that the van was parked overnight, it is determined that the transit van was parked overnight on February 19, 2018. D. Violation No. 4: More than 200 square feet of outdoor space on the subject property was used for outdoor storage on February 19, 2018. Mr. Carner does not dispute this staff observation that was identified in the FOV. Photographs taken on February 19, 2018 show wood, oil drums, and solid waste stored in three difference locations, specifically the side of the house, close to the shipping container and under a tent. It isn’t entirely clear from these photographs whether the total area used to store these items exceeds 200 square feet. However, given the staff observations that the area does exceed 200 square feet, the lack of denial from Mr. Carner and the photographs that show the area reasonably could exceed 200 square feet, it is determined that on February 19, 2018 that more than 200 square feet of the subject property was used for outdoor storage of items such as wood, oil cans and solid waste. CONCLUSIONS OF LAW 1. Authority of Examiner: The Hearing Examiner has the authority and jurisdiction to review code violation as provided in RMC 1-3-2. 2. Burden of Proof. RMC 1-3-2(E)(3)(d) requires that violations alleged in an FOV be established by a preponderance of evidence. 3. Nonconforming Use. Mr. Carner does not contest the factual basis of the violations alleged in his FOVs, but rather asserts that his use of the subject property was “grandfathered” because he has been using his property for outdoor storage for a home business enterprise since he acquired ownership from his father in 1999. It is concluded that Mr. Carner is indeed “grandfathered” to the use of his property to store up to five noncommercial automobiles that are the subject of Violation No. 1 of the FOV, but not to any outdoor storage of commercial vehicles, the cargo container or the wood, oil drums and solid waste that is the subject of Violations No. 2-4. Further, even though the noncommercial automobiles are grandfathered, for the reasons identified in the Introduction section to this decision those grandfathered automobiles are still subject to current City regulations that limit the number of parked vehicles to four on Mr. Carner’s property. Mr. Carner’s grandfather arguments are more technically framed as nonconforming use arguments, i.e. uses that qualify as legal nonconforming uses are generally not subject to subsequently adopted regulations that would terminate them. Nonconforming use rights are often set by local nonconforming use ordinances. These nonconforming use ordinances are likely not subject to vesting. See Graham Neighborhood Ass’n v. F.G. Associates, 162 Wn. App. 98 (2011)(vested rights doctrine doesn’t apply to procedural requirements such as permit expiration). Consequently, the City’s current nonconforming use standards probably apply to Mr. Carner’s property. RMC 4-10-060 provides that “[a]ny legally established use2 existing at the time of enactment of this 2 The term “use” in RMC 4-10-060 brings up the same issue as that addressed for the Rhod -A-Zalea holding in the Introduction section of this decision – can the “uses” of a parcel be parsed down to every use prohibited or restricted Code Enforcement Decision - 8 Code may be continued, although such use does not conform to the provisions of this Title, provided it conforms with this Section.” Under this provision, if Mr. Carner can prove that his outdoor storage operation was a use authorized by the zoning code when3 it was established, he would not be subject to current restrictions on outdoor storage. In this case, Mr. Carner is asserting that the uses of his property vested prior to its annexation into the City of Renton in 2008; therefore, it must be ascertained whether applicable King County ordinances authorized the outdoor storage use prior to annexation. The initial burden of establishing a nonconforming use is on the property owner. Van Sant v. Everett, 69 Wash. App. 641 (1973). In this case the City did not contest Mr. Carner’s testimony that he had stored multiple commercial and noncommercial vehicles when he acquired the subject property in 1999 as well as at the time of annexation in 2008. Consequently, the evidentiary burden for establishing the dates that the alleged nonconforming uses were established has been met. The difficult part of this appeal is ascertaining what zoning laws applied when Mr. Carner acquired his property in 1999 and when he was annexed in 2008. The case law addressing burden of proof for nonconforming uses has only addressed the burden on the property owner to establish the facts supporting the nonconforming use, not the law. Given that the hearing examiner is tasked with correctly applying the law, it is concluded that it is the examiner’s responsibility to determine what laws applied to Mr. Carner’s property when he acquired the subject property in 1999 and when he was annexed in 2008. Ascertaining the authorized uses for the property in 1999 and 2008 under King County ordinances involves a long and tortured legal path. The first issue to be resolved is what zoning district applied to the property in 1999 and 2008. Once the district is determined, the district requirements that were in place at those times must be ascertained. According to a map prepared by the City of Renton dated February 27, 2007 entitled “Benson Hill Communities Annexation City Land Use if Adapted to King County Zoning,” the King County zoning classification of Mr. Carner’s property was R8 at the time of the 2008 annexation. In 19994 and from that point in time up until the Benson Hill annexation in 2008, the only uses authorized in the R8 zone that would permit any type of commercial vehicle on the property would be a Home Occupation or a Home Industry, by a development regulation or is it something more encompassing? In the context of RMC 4-10-060 the issue can be more broadly worded as did the Council intend its vesting clause to prohibit any application of subsequently enacted zoning regulations to lawfully established uses? A contextual analysis of the term “use” in the zoning code reaches the same conclusion as for the Rhod-A-Zalea analysis – “use” in the RMC 4-11-210 definitions section of the City’s zoning code generally limits the meaning of “use” to the uses specifically classified in the use tables of the zoning code. Further, as would be expected, the purpose clauses of Renton’s zoning districts as enunciated in RMC 4-2-020 place significant importance upon assuring compatibility of land uses. Give n the importance of subsequently enacted land use regulations in assuring compatibility and the contextual meaning of “use” within the City’s zoning code, it is determined that the “use” protected from subsequent zoning code legislation by RMC 4 -10- 060 are the uses generally classified in the City’s zoning use tables. More specifically, the uses that are protected for the subject property are single family use and perhaps home occupation use, but not ancillary vehicle parking. 3 Mr. Carner is not limited to 1999 and 2008 as the only time he established his allegedly grandfathered uses. If there was any period of time between 199 9 and 2008 when commercial outdoor storage was authorized on the subject property, Mr. Carner might be able to claim that his uses were “established” during that period and are thus protected as nonconforming uses. The merits of such an argument need not be reached, because it doesn’t appear there has ever been any period of time since 1999 that outdoor storage was authorized. However, not every ordinance adopted after 1999 was reviewed in detail for this decision to ascertain whether there was any period when outdoor storage was authorized. If Carner wishes to make the argument that his uses were lawfully established sometime after 1999, it is up to him to present the ordinance authorizing the use and the evidence necessary to establish that he was operating an outdoor storage operation when the ordinance was in effect. 4 As far as can be ascertained from King County ordinances available on -line, the zoning map classification for the subject property remained R-8 from 1999 to the 2008 annexation. Code Enforcement Decision - 9 pursuant to the use table adopted as KCC 21A.08.030. See King County Ordinance No. 12786, §2; No. 14045, §10; No. 14199 §232; No. 14279, §1; No. 15032, §10; No. 15606, §11; No. 15971, §93; No. 15974, §6; No. 16040, §3 and No. 16267, §19. During that same time period, a conditional use permit was always required for a home industry. Id. During that same time period, one commercial vehicle was authorized for outdoor storage for Home Occupations, if the vehicle was used for pickup of materials used by the home occupation or the distribution of products from the site and is less than a ton in weight. KCC 21A.30.080(E)(8); King County Ordinance No. 11621,§ 93; No. 15032, §37 and No. 15606, §19. Applying the ordinances of the preceding paragraph, the only commercial vehicles authorized for outdoor storage on the subject property from 1999 through the date of the 2008 Benson Hill annexation was one commercial vehicle less than one ton in weight as part of a home occupation or potentially multiple commercial vehicles authorized by a conditional use permit for a Home Industry. Mr. Carner has not presented any evidence of a conditional use permit authorizing a home industry for his property that involves outdoor storage of commercial vehicles. Further, Mr. Carner did not present any evidence establishing that any of the commercial vehicles stored on his property during that time frame were necessary to deliver materials to or from the home occupation. Consequently, Mr. Carner has not met his burden of proof in establishing any nonconforming use for storage of commercial vehicles. The nonconforming use rights for noncommercial vehicles is more easily ascertained for Mr. Carner’s property. Although KMC 21A.32.230 has long classified junk and inoperable motor vehicles as prohibited public nuisances, no KMC provision has ever otherwise limited the amount of operable and licensed vehicles that may be parked on a residentially zoned lot. As determined in Finding of Fact No. 4, Mr. Carner had at least five noncommercial vehicles parked on his property immediately prior to annexation. Consequently, he legally established the parking of up to five vehicles on his property before annexing into the City of Renton and being subject to the four vehicle restriction. However, as noted in the Introduction section of this decision, even legally established uses can be subject to subsequently enacted zoning restrictions if those restrictions don’t operate to terminate the use. Since the use at issue is a single family use, the limitation of parking to four vehicles clearly does not operate to terminate that single family use and can therefore still be applied. Mr. Carner did not present any evidence that his property had been used to store any oil drums, wood or solid waste prior to annexation. He also did not present any evidence that he had stored a cargo container on his property prior to annexation. Since Mr. Carner has the burden of proof in establishing legally nonconforming uses, it must be concluded that he did not establish any legally nonconforming outdoor storage use of cargo containers, oil drums, wood or solid waste. No nonconforming use rights attach to those uses. 5. Code Violations. The four code violations alleged in the FOV for the subject appeal, CODE17-000628, are all quoted below in italics and applied to the Findings of Fact of this decision through corresponding Conclusions of Law. Excess Parking - Violation No. 1 Code Enforcement Decision - 10 RMC 4-4-080(F)(10)(d): [For residential uses composed of detached dwellings] … A maximum of 4 vehicles may be parked on a lot, including those vehicles under repair and restoration, unless kept within an enclosed building. 6. Violation No.1 Sustained. As determined in Finding of Fact No. 5(A), ten vehicles were parked on the subject property on February 19, 2018, which exceeds the four vehicles authorized by RMC 4-4-080(F)(10)(d). Violation No. 1 is sustained. Prohibited Storage - Violation No. 2 RMC 4-5-130(B)(4): … [IPMC] 308.9 Prohibited materials: Shipping containers and other similar storage units do not qualify as accessory buildings on residentially zoned properties, and are prohibited. Hazardous materials are also prohibited for outdoor storage on residentially zoned properties. 7. Violation No. 2 Sustained. As determined in Finding of Fact No. 5(B), a shipping container was stored on the subject property on February 19, 2018. The subject property is residentially zoned as R8 and the shipping container, therefore, violates RMC 4-5-130(B)(4), Section 308.9. Violation No. 2 is sustained Overnight Parking - Violation No. 3 RMC 10-10-12: It shall henceforth be unlawful to park within any residential zone (SR-1, SR-2, R-1 through R-4, T and G) within the City from the hours of nine o’clock (9:00) P.M. to six o’clock (6:00) A.M. the following types of vehicles: A. All types trailers designed to be drawn by a motor vehicle except recreation trailers. B. Buses and trucks used for business purposes in whole or in part excluding pickup or panel trucks of less than one ton rated capacity. 8. Violation No. 3 Sustained. As determined in Finding of Fact No. 3, a transit van that qualifies as a “bus” was parked overnight on the subject property on February 19, 2018. RMC 10- 10-12 does not include R8, the zoning of the subject property, within its parenthetical examples of “any residential zone” within the City of Renton. However, RMC 10-10-12 was adopted in 1980 and the 1983 City of Renton Zoning Map shows the R8 district hadn’t yet been adopted by 1983. As indicated in City of Renton Administrative Interpretation CI-129, when code standards generally reference residential zones with outdated references to specific zoning districts, the more generally encompassing reference to all residential districts should supersede the specific references to include all residential zones currently in effect. Given the CI-129 interpretation, the reference to “any residential zone” in RMC 10-10-12 is interpreted to include the R8 zone. Since the transit van was parked in the R8 zone overnight on February 19, 2018, Mr. Carner as owner of the subject property has violated RMC 10-10-12 and Violation No. 3 is sustained. Outdoor Storage Location – Violation No. 4 Code Enforcement Decision - 11 RMC 4-5-130(B)(4): 308.2 Allowed residential outdoor storage: For RC and R1 zoned properties, a maximum of 400 square feet of area may be used for outdoor storage. For R4 and R8 zoned properties, a maximum of two hundred (200) square feet of area may be used for outdoor storage. 308.3 Prohibited areas for outdoor storage: Outdoor storage is prohibited on residentially zoned property in the following areas: Front yards Side yards Slopes greater than 15% Designated open spaces or restricted areas Critical areas, including wetland, streams and associated buffer areas 308.4 Emergency access: Outdoor storage areas shall not prevent emergency access to the residential structure or any other building. 308.5 Business related storage: Materials stored outdoors on residentially zoned properties shall not be owned by or used in any business or industry including a home occupation business. 308.6 Height limitations: Materials stored outdoors on residentially zoned properties shall be neatly stacked and not exceed a height of six feet (6'). Tarps may not be utilized for screening outdoor storage. RMC 4-11-190: STORAGE, OUTDOOR: The outdoor accumulation of material or equipment for the purpose of sale, rental, use on site, or shipping to other locations. This definition excludes hazardous material storage, warehousing and distribution, vehicle storage, and outdoor retail sales. 9. Violation No. 4 Sustained. As determined in Finding of Fact No. 4, more than 200 square feet was used on the subject property to store oil drums, wood and solid waste, all of which qualifies as “material” under the RMC 4-11-190 definition of outdoor storage. Since the subject property is zoned R8, Mr. Carner has violated RMC 4-5-130(B)(4) by using more than 200 square feet of the subject property for outdoor storage. FINES RMC 1-3-2(F)(1): Finding of Violation: A committed Finding of Violation, as described in this section, is a civil code violation, and Violator(s) may be issued a fine of up to two hundred fifty dollars ($250). Nothing in this section is intended to limit or prevent the pursuit of any other remedies or penalties permitted under the law, including criminal prosecution. The payment of a fine pursuant to this section does not relieve a potential Violator of the duty to correct the violation as requested by the CCI or as ordered by the Administrator. 10. As determined in prior conclusions of law, all four of the four alleged violations in the FOV are sustained. A fine of “up to” $250 is authorized for each violation and the $100 fine per violation imposed by the City is more than reasonable given the multiple prior efforts of the City to secure compliance from Mr. Carner. However, since the storage of noncommercial vehicles on the property was lawfully established prior to annexation of the property, the $100 fine for Violation No. 1 is suspended for a year and then waived upon abatement for the reasons outlined in the Introduction section of this decision. DECISION Code Enforcement Decision - 12 All four of the four violations alleged in the FOV for File No. CODE17-000628 are sustained as are the $400 in total fines imposed by the FOV. $300 of the $400 in fines are due by April 1, 2019. The remaining $100 fine is suspended for one year to April 1, 2020 pending abatement of Violation No. 1 of the FOV as specified in the FOV correction action. If Mr. Carner timely abates Violation No. 1, the remaining $100 fine shall be waived. Violations No. 2-4 shall be abated by April 1, 2019 as detailed in the FOV “corrective action” for Violations No. 2-4. DATED this 21st day of February, 2019. 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, March 8, 2019. .