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HomeMy WebLinkAbout11-01-2024 - HEX Decision - storage violations -- Carner 2024 Code Enforcement Decision - 1 BEFORE THE HEARING EXAMINER OF RENTON DECISION FILE NUMBER: CODE23-000293 ADDRESS: 11135 SE 164th St Renton WA 98058 PROPERTY OWNER: Kelly Carner 11135 SE 164th St. Renton, WA 98058. REVIEW AUTHORITY: City of Renton TYPE OF CASE: Finding of Violation DISPOSITION: Three of the four alleged violations sustained (one just in part) and $200 of the $300 fine sustained; The fines shall be waived if required corrective actions are completed by November 1, 2025. 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. Three of the four violations are sustained. FOV Violation No. 2, alleging more than four parked vehicles, is reversed because the City did not disprove Mr. Carner’s contention that he had nine licensed drivers and associated vehicles registered to the violation site. Violation No. 3, alleging parking on an unauthorized surface, is sustained only in part. Contrary to the FOV, the gravel driveway on the violation site is found to be an authorized surface for the parking of vehicles. Mr. Carner has made considerable headway in challenging the alleged violations of the FOV. The one that is likely to still cause him the most difficulty is the City’s prohibition of residing in a recreational vehicle or travel trailer, RMC 4-4-030I. Given the burden that RMC 4-4-030I places upon Mr. Carner, amongst other factors, Mr. Carner is given a year to discontinue that use. Mr. Carner did not argue that the travel trailer use should be considered grandfathered. If the use was lawfully established prior to RCW 4-4030I, it might1 be protected as a nonconforming use. Mr. 1 Establishing a legal nonconforming use for the recreational vehicle use would likely be challenging. A court opinion issued since Mr. Carner’s 2019 code enforcement decision, CODE17-000628, would make his position even more difficult. See Icicle/Bunk, LLC v. Chelan Cnty., 537 P.3d 321 (2023). In the Icicle case Chelan County adopted an ordinance prohibiting more than one short term rental per lot. A property owner who had been renting out two short term rentals on a single lot challenged the application of the ordinance to him on the basis that he had lawfully operated Code Enforcement Decision - 2 Carner is free to make that argument upon a reconsideration request filed with the City Clerk by 5 pm November 20, 2024. The record would be re-opened for that purpose. City staff have done Mr. Carner a big favor by not contesting his position that the City has the burden of proof in regards to affirmative defenses, i.e the exceptions to the parking and storage requirements alleged in the FOV. Mr. Carner’s burden of proof argument was a major part of his post-hearing briefing. The City response to those arguments was that the City had the burden of proof. In doing so the City has essentially taken on the responsibility of proving negatives, e.g. that Mr. Carner’s gravel driveway was not established prior to the adoption of RMC 4-4-085.D.3 and that the excess vehicles parked on his lot are not registered to persons residing on the lot. As discussed in the legal analysis below, the law likely does not require the City to assume this burden of proof. Since Mr. Carner’s position is uncontested and marginally justifiable, the City is left taking on the responsibility it voluntarily took upon itself. The City failed to meet that burden of proof for the excess parking charge (Violation No. 2) and failed to do so for a couple vehicles parked outside an approved surface (Violation No. 3). As a result Violation No. 2 is reversed and Violation No. 3 is reversed in part as described in more detail below. HEARING The hearing on the appeal was held virtually on August 27, 2024 at 10:00 am via the Zoom application. Mr. Carner was given until September 3, 2024 to provide written argument in his defense and the City until September 10, 2024 to provide a written response. In review of the hearing transcript the Examiner found that Mr. Carner may have misunderstood that he had the burden of proof in asserting affirmative defenses to the alleged FOV violations. To give Mr. Carner a fair opportunity to assert his affirmative defenses, the Examiner re-opened the hearing for that purpose by email dated September 11, 2024. Mr. Carner was given until September 20, 2024 to present additional argument and evidence on this affirmative defenses, the City until September 27, 2024 to respond and Mr. Carner until October 2, 2024 to reply. The briefing on affirmative defenses was subsequently extended to October 18, 2024. The record was closed on October 18, 2024. the two units prior to adoption of the ordinance. The Icicle court found that the two units were not protected as nonconforming uses. It specifically held that the “use” to which the property owner was vested was short term rental use generally and not two short term rentals specifically. In the same vein, the “use” to which Mr. Carner has vested is generally residential use, not RV use specifically. As noted in Mr. Carner’s 2019 code enforcement decision, his nonconforming (grandfather) rights only attach to single-family use generally and not performance standards that regulate the manner in which that single-family use is conducted. The one distinguishing feature of the Chelan ordinance was that it expressly provided that nonconforming use rights didn’t attach to properties with multiple short term rentals. Renton’s nonconforming use regulations, Chapter 4-10- 060 RMC, are not that clear about what types of uses are grandfathered. However, as noted in the Icicle case, the “limited protection provided by a nonconforming use is still subject to ordinances regulating the manner or operation of use.” 537 P.3d at 327. These restrictions regulating “manner or operation” are the performance standards identified in Mr. Carner’s 2019 decision. RMC 4-4-030I and the other regulations cited in the FOV all likely qualify as these types of performance standards that can restrict Mr. Carner’s vested single-family use. Code Enforcement Decision - 3 TESTIMONY A computer-generated transcript of the hearing has been prepared to provide an overview of the hearing testimony. The transcript is provided for informational purposes only as Appendix A. EXHIBITS Exhibits 1-8 of Code File 23-000293 were admitted into the record during the August 27, 2024 hearing. The following exhibits were admitted subsequent to the hearing: Exhibit 9: Undated Carner written defense citing to legal dictionary Exhibit 10: Ausugst 27, 2024 email from Carner to C. Moya received at 11;21 AM. Exhibit 11: October 9, 2024 email from Examiner to Parties including string starting September 11, 2024. Exhibit 12: City of Renton Ordinance No. 5959 emailed September 11, 2024 by City Exhibit 13: Carner response to Ordinance No. 5959 emailed September 28, 2024 Exhibit 14: Undated letter from Mr. Carner to Examiner Responding to Ordinance 5959 emailed September 28, 2024 Exhibit 15: October 15, 2024 City Response Exhibit 16: October 17, 2024 Carner Reply 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 the RMC. The FOV was issued on June 17, 2024. 4. Violations. For ease of reference, the findings of fact below are linked to the violation numbers of the FOV for Case No. CODE23-000293. All references to the “violation site” are to Mr. Carner’s residence, 11135 SE 164th St, Renton, WA 98058. A. Violation No. 1: The Montana trailer parked on the violation site on February 29, 2024 was unlicensed. The second photograph of Ex. 6 clearly shows the trailer having a license tab dated for 2022. Ms. Madsen had confirmed with Washington State Department of Licensing records that the license was expired. Mr. Carner did not deny the vehicles is unlicensed. This determination is made without the DOL licensing record presented by Ms. Madsen at the hearing. Mr. Carner was not given the opportunity to review the document so the document has not been considered in issuing this finding. B. Violation No. 2: More than four vehicles were parked outdoors in public view at the violation site on February 29, 2024. Ex. 6 photographs show an SUV, a white van, Code Enforcement Decision - 4 three camper trailers and/or RVs and a storage trailer on the violation site on that date. Ms. Madsen testified that there are always more than four vehicles parked on the violation site. Mr. Carner doesn’t deny that more than four of these types of vehicles are parked on his property. Mr. Carner asserts in Exhibit 9 that he has nine drivers registered and living at his address. The City does not dispute this and provides no evidence to the contrary. Since the City has assumed the burden of proof in negating affirmative defenses, Mr. Carner’s statement in this regard is taken as a verity. Mr. Carner did not specifically posit that the drivers and vehicles are licensed to the violation site. However, since the City has the burden of proof to establish the contrary, it must be found as well that the nine drivers residing on the violation site are registered to that site along with their vehicles. C. Violation No. 3: At least two vehicles were parked off of a driveway on a graveled surface overrun with grass on February 29, 2024. The second photograph of Ex. 6 shows a graveled driveway access to a carport and potentially a second building to the left of the carport. To the right of the driveway is a graveled area overrun with grass upon which a storage trailer and camper trailer are parked. This area does not access any buildings and is not a necessary part of the drive aisle that leads to the carport. The Montana trailer and white van depicted in the Ex. 6 photographs are parked on the driveway. It’s unclear if the driveway has been in place since 2019. However, as identified in Mr. Carner’s 2019 code enforcement decision, multiple cars have been parked at the violation site since well before 2019. Given that the City has the burden of proof to establish that the gravel driveway hasn’t been in place since 2019, it must be concluded that the driveway has been in place since at least 2019. The graveled area abutting the driveway is not found to be a prior approved surface. Given the long history of the violation site used as parking before any such approvals were likely necessary and the absence of any assertion from Mr. Carner that the surface was approved, the preponderance of evidence (more likely than not) establishes that the gravel area abutting the driveway was never approved by any governmental entity. D. Violation No. 4: The Montana trailer located on the violation site was inhabited for residential purposes on February 29, 2024. Mr. Carner has also inhabited another camper trailer on the violation site. The photographs of Ex. 7 show the slide-outs of the trailer extended and a utility cord appended to the vehicle. Ms. Madsen testified that Mr. Carner had acknowledged that the vehicle was inhabited. Mr. Carner acknowledged at the hearing that his father had lived in the vehicle but had passed away. At hearing Mr. Carner also acknowledged that he has been inhabiting another trailer on the violation site. Mr. Carner has since removed the Montana trailer from the violation site. However, Mr. Carner acknowledged at hearing that he continues to live in another trailer or RV on the violation site. Code Enforcement Decision - 5 CONCLUSIONS OF LAW 1. Authority of Examiner: The Hearing Examiner has the authority and jurisdiction to review code violation as provided in RMC 1-10-5. 2. Burden of Proof. The City has the burden of proof in establishing both the elements necessary to prove the violations alleged in the FIOVs as well as establishing that Mr. Carner doesn’t qualify for any of the affirmative defenses to those violations. As to the affirmative defenses, that interpretation is only adopted because the City did not contest Mr. Carner’s position on that issue. RMC 1-10-5C4 requires that violations alleged in an FOV be established by a preponderance of evidence. RMC 1-10-5C4 further provides that if ”the Hearing Examiner determines that the evidence supports that a Violation was committed after reviewing the Notice of Violation, then the burden of proof shall shift to the Violator(s) to show by a preponderance of the evidence that a Violation has not occurred.” This appeal raises the question of whether RMC 1-3-2C4 places the burden of proof upon the City to establish whether Mr. Carner qualifies for affirmative defenses. A reviewing court would likely hold Mr. Carner to the burden of proof on affirmative defenses. However, the City is not advocating such an interpretation. Given that the City’s does not contest Mr. Carner’s position that the City has the burden of proof for affirmative defenses, Mr. Carner’s interpretation will be adopted and the burden of proof will be placed upon the City even for establishing affirmative defenses. Statutory exceptions qualify as affirmative defenses when they don’t negate an element of an alleged violation. See Kastanis v. Educ. Employees Credit Union, 122 Wn. 2d 483, 493 (1993). The courts rule that the defendant has the burden of proof in establishing an affirmative defense. Id. Two of the alleged FOV violations include affirmative defenses. RMC 4-4-085D4 prohibits the parking of four vehicles on residential property. This ordinance provides for three exceptions, none of which negate the elements of more than four vehicles on residential property. The other provision with affirmative defenses is RMC 4-4-085D3. The provision requires parking of vehicles on driveways or other approved surfaces. An exception to that provision provides that the parking restriction doesn’t apply to driveways consisting of compacted dirt or gravel established prior to the adoption of RMC 4-4-085D3. That exception also doesn’t negate the elements of RMC 4-4-085D3, which are limited to prohibiting parking outside of an approved surface. Since all of the afore-mentioned exceptions qualify as affirmative defenses, Mr. Carner would have the burden of proof to establish them in the absence of any code provision to the contrary. Code Enforcement Decision - 6 Construing the RMC 4-4-085D3 exception as an affirmative defense is also consistent with universal case law that assigns the burden of proof on defendants to establish nonconforming (grandfathered) uses. As previously noted, an exception to RMC 4-4-085D3 is for previously established driveways, which parallels2 nonconforming use law. The courts in Washington State and likely all other states have always ruled that property owners asserting nonconforming use rights have the burden of proof to establish them. See, e.g., Van Sant v. City of Everett, 69 Wn. App. 641, 648 (1993), First Pioneer v. Pierce Cnty, 146 Wn. App. 606, 614 (Wash. Ct. App. 2008); Univ. Place v. McGuire, 144 Wn. 2d 640, 647 (2001); Miller v. City of Bainbridge Island, 111 Wn. App. 152, 164 (2002) 8A E. McQuillin, Municipal Corporations § 25.188a (3d ed. 1986); Jacobs v. Mishawaka Bd. of Zoning Appeals, 182 Ind. App. 500, 507, 395 N.E.2d 834, 839 (1979). As noted in an Arizona decision discussing burden of proof in a code enforcement case: While the municipality has the initial burden of showing the property is in violation of the current code, the property owner can avoid enforcement of the current code if it shows it has satisfied the municipality's regulations regarding non-conforming uses. See ¶¶ 23-24, supra. Thus, the assertion that property is a non-conforming use constitutes an affirmative defense. See Black, Robertshaw, Frederick, Copple Wright, P.C. v. United States, 130 Ariz. 110, 114, 634 P.2d 398, 402 (App. 1981) (confession and avoidance an affirmative defense). As with affirmative defenses generally, the party asserting the defense "has the burden of pleading and proving it.” 218 Ariz. At 184. Mr. Carner devoted a substantial amount of his post-hearing briefing arguing that he doesn’t bear the burden of proof for establishing affirmative defenses. The City’s sole response to this position was that it has established by the preponderance of evidence that Mr. Carner committed the violations alleged in the FOV. The City does not contest Mr. Carner’s position that he doesn’t have the burden to establish affirmative defenses. In this regard, the City has waived objection to Mr. Carner’s position and his interpretation is found binding in this appeal. The City and Carner positions in assigning burden of proof to the City for affirmative defense is marginally supported by RMC 1-3-2(C)(4). As previously noted, RMC 1-3-2C4 generally requires that violations must be established by a preponderance of evidence and that the City must initially meet that standard in establishing that a violation has occurred. The City/Carner position can be reconciled with this requirement by construing all exceptions to code violations as elements of the violation. A more legally sound interpretation would be that the elements of a violation do not include its exceptions. However, the case law on this issue is sparse and with waiver from the City the interpretation taken by Mr. Carner is adopted. 2 The RMC 4-4-085D3 exception is technically broader than nonconforming use rights because it doesn’t require the previously established driveway to have been lawfully created. Code Enforcement Decision - 7 In his post-hearing briefing Mr. Carner argues that assigning the burden of proof to him for affirmative defenses violates his constitutional rights. Mr. Carner cites to no court ruling supporting this position and there very likely is none for civil code enforcement cases. Historically, the US Supreme Court has held that it is constitutionally permissible for legislatures to establish affirmative defenses to criminal charges and place the burden of proof with respect to these defenses on the defendant. See Leland v. Oregon, 343 U.S. 790 (1952) (insanity defense). Due process is satisfied when the government is required to prove all of the elements of the offense, as defined by the legislature. Due process does not require that the government accept the additional burden of disproving every fact constituting an affirmative defense to the charge. 3. Code Violations. The four code violations alleged in the FOV for the subject appeal, CODE23-000293, are all quoted below in italics and applied to the Findings of Fact of this decision through corresponding Conclusions of Law. Violation No. 1 - Parking of Unlicensed Vehicles RMC 4-4-085(D)(2): It is unlawful for any person to keep, store or park, or to permit any other person to keep, store or park, any disabled vehicle or boat, or unlicensed vehicle or boat, on any residentially zoned property within the City unless that vehicle or boat is stored and parked outside public view within a fully enclosed building at all times. Vehicles and boats which are kept on site and outside of an enclosed building shall be operational and currently registered. 4. Violation sustained. Violation No. 1 is sustained. As determined in Finding of Fact No. 4A, a Montana travel trailer parked on the violation site on February 29, 2024 was unlicensed. Mr. Carner disputes that the trailer qualifies as a vehicle. The Renton Municipal Code (RMC) is ambiguous as to whether the vehicles referenced in RMC 4-4-085(D)(2) must be motorized. RMC4-4-085 doesn’t define vehicle. RMC 4-11-220 defines “Vehicle, large” and “Vehicle, small” as motor vehicles including trucks, motorcycles etc. These definitions support Mr. Carner’s position, as the Montana trailer is a fifth wheel and not motorized. However, 4-4-085C4 defines a “recreational vehicle” as a “vehicle, with or without motive power, capable of human habitation…” (emphasis added). Title 4 RMC clearly has some inconsistencies on whether an unmotorized camper trailer should be considered a “vehicle.” The reference to “vehicle” in RMC 4-4-085 is construed as including unmotorized vehicles. In construing a statute, the court's paramount duty is to ascertain and give expression to the intent of the Legislature. State v. Yakima County Comm'rs, 123 Wn. 2d 451 (1994). RMC4-4-085 doesn’t expressly identify the purpose of prohibiting the parking of unlicensed vehicles on residential property. However, it’s clear that the purpose is to maintain residential character and aesthetics by preventing the visual incompatibility of residential lots used as parking lots for numerous vehicles. RMC 4-4-085 serves as one means to reduce the number of vehicles parked on residential lots. In this regard, prohibiting the parking of unlicensed Honda Civics while authorizing camper trails several times bigger would make little sense. Including camping trailers is also consistent with the common meaning of “vehicle.” Miriam Webster defines “vehicle” as “a means of carrying or transporting something.” “Vehicles” as referenced in RMC 4-4-085 is construed as including recreational vehicles and/or travel trailers without motors. Code Enforcement Decision - 8 Mr. Carner asserts that a legal dictionary should be used to evaluate the terms of the RMC. Legal dictionaries usually carry very little weight in the construction of ambiguous code provisions. As outlined in one court decision: When a term is not defined by a statute, judicial opinion, or pattern jury instruction, courts employ the common understanding of the term rather than its technical definition. To determine the ordinary meaning of a term, courts look to standard English language dictionaries. Courts typically do not rely on a legal dictionary unless there is some indication the term should be given its technical meaning. When "[t]here is no indication that the legislature intended to use the legal definition of the term ... [r]eliance on a legal dictionary definition is ... improper.” State v. Allen, No. 73046-1-I (Wash. Ct. App. July 25, 2016). Violation No. 2 -- Excess Parking RMC 4-4-085D4: [For residential uses composed of detached dwellings] … A maximum of four (4) vehicles, not including motorcycle or mopeds, may be parked on a lot unless vehicles in excess of the allowed number are kept within an enclosed building. Additional vehicles may be allowed if: a. More than four (4) licensed drivers reside at the same address, an additional motor vehicle for each licensed driver over four (4) may be parked at that particular address, provided that each licensed driver and said vehicle are registered to the same address; or b. An Additional Vehicles Permit is obtained (see RMC 4-9-105) c. RMC 4-4-080, Parking, Loading and Driveway Regulations, allows more off-street parking stalls for the subject property based on the presence of lawfully established structures and uses. 5. Violation Reversed. Violation No. 2 is reversed. As determined in Finding of Fact No. 4B, more than four vehicles were parked on the violation site on February 29, 2024. However, as further found in Finding of Fact No. 4B, the City has failed to prove by a preponderance of evidence that the exception created by RMC 4-4-085D4 doesn’t apply. Mr. Carner asserts that he has nine registered vehicle owners living on the violation site and so long as those owners live on the property nine vehicles are permitted to be parked. Violation No. 3 -- Impermissible Parking Locations RMC 4-4-085.D.3; Except for recreational vehicles and commercial vehicles being used for development activity pursuant to a valid City-issued permit, all motor vehicles shall be parked on a lawfully established driveway or an approved impervious surface. A separate violation of this Section shall be deemed to have occurred when, after issuance of a citation, twenty four (24) or more consecutive hours passes and the offending vehicle remains in an impermissible location, regardless of whether or not the vehicle has been relocated from the original location. For the purpose of this Section, driveways consisting of compacted dirt and/or gravel established prior to the effective date of this Section shall be considered a permissible parking location. Code Enforcement Decision - 9 6. Violation Partially Sustained. Violation No. 3 is partially sustained. As determined in Finding of Fact No. 4C, the storage trailer and camper trailer parked to the left of the driveway depicted in the second photograph of Ex. 6 were not parked on a driveway or approved impervious surface on February 29, 2024. Those two vehicles are parked in violation of RMC 4-4-085.D.3. However, as further determined in Finding of Fact No. 4C, the Montana trailer and white van were parked upon a gravel driveway in place since 2019. RMC 4-4-085.D.3 was adopted by Renton City Ordinance No. 5959, which went into effect on December 18, 2019. As such, under the last clause of RMC 4-4-085.D.3, the driveway is an authorized parking location. “Driveway” is not defined by RMC 4-4-085.D.3 or the Chapter 4-11 definitions. Miriam Webster defines a “driveway” as a “private road giving access from a public way to a building on abutting grounds.” The graveled portions of the violation site as depicted in the second photograph of Ex. 6 show a driveway for the portion of gravel that serves as a vehicular access route to the carport and adjoining home. The portion of the gravel to the right of the access drive does not qualify as a driveway because it doesn’t serve as an access way to any building or abutting grounds. Violation No 4 -- Habitation of Recreational Vehicle RMC 4-4-030 I: Habitation of Travel Trailers or Recreational Vehicles: Except as authorized in RMC 4-9-240, Temporary Use Permits, recreational vehicles, travel trailers, tents, or other temporary shelters shall not be used for habitation. 7. Violation sustained. Violation No. 4 is sustained. As determined in Finding of Fact No. 4C, two recreational vehicles have been used for habitation on the violation site. FINES RMC 1-10-7B: Civil Remediation: A Violation, as described in this chapter, is a civil code violation, and Violator(s) may be issued a Fine of up to two hundred fifty dollars ($250) for each final determination of a Violation. For Ongoing Violations, a new Fine shall be issued for each day (or portion thereof) in which the violation exists. Nothing in this chapter is intended to limit or prevent the pursuit of any other remedies or penalties permitted under the law, including criminal prosecution. The payment of any fees, Fines, or assessments pursuant to this chapter does not relieve a potential Violator of the duty to correct the Violation as ordered by the Administrator, or his or her designee. 10. As determined in prior conclusions of law, three of the four alleged violations in the FOV are sustained. A fine of “up to” $250 is authorized for each violation and the FIOV under appeal imposes a $100 fine for three of the four violations. One of the violations subject to a $100 fine has been reversed by this decision, leaving $200 in fines legitimately imposed. Although Mr. Carner has a long history of noncompliance with the City, it is understood that he is the victim of changing regulations that did not exist when he purchased his property. It is also recognized that Mr. Carner has been building a garage to abate some of the parking violations. Overall, Mr. Carner is making some effort to comply and the $200 in fines are of little consequence given the expense and inconvenience of further compliance requirements. For all these reasons, the $200 fine shall be suspended pending full abatement within a year. Code Enforcement Decision - 10 DECISION Violation No. 1, 3 and 4 are sustained. The corrective action required by the FOV for those violations shall be completed by November 1, 2025: provided that the driveway as identified in this decision shall be considered an approved surface and vehicles may be parked on that surface. $200 of the $300 fines imposed by the FIOV are also sustained. The $200 fine shall be waived if all corrective actions are completed within a year of this decision. DATED this 1st day of November, 2024. City of Renton Hearing Examiner NOTICE OF RIGHT TO APPEAL AND RECONSIDERATION Appeal to Superior Court. An appeal of the decision of the Hearing Examiner must be filed with Superior Court within twenty-one calendar days, as required by the Land Use Petition Act, Chapter 36.70C RCW. Requests for reconsideration shall be entertained if filed with the City Clerk prior to 5:00 pm, November 20, 2024. .