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HomeMy WebLinkAboutNeafus ltrDenis Law Mayor11;R City Clerk - Jason A. Seth, CIVIC October 10, 2018 Mr. Lenny Neafus 6205 24th St NE Tacoma, WA 98422-3301 Re: Hearing Examiner's Decision Code Case No: CODE-18-000046 & CODE-18-000048 Dear Mr. Neafus: Attached is your copy of the Hearing Examiner's Decision dated October 7, 2018 in the above - referenced matter. If I can provide further information, please feel free to contact me. Sincerely, AiaA. Sethlerk cc: Hearing Examiner Craig Burnell, Building Official Donna Locher, Code Compliance Inspector Robert Shuey, Code Compliance Inspector Kevin Louder, Code Compliance Inspector Lynne Hiemer, Administrative Secretary I Sandra Pedersen, Finance 1055 South Grady Way, Renton, WA 98057 • (425) 430-6510 / Fax (425) 430-6516 • rentonwa.gov BEFORE THE HEARING EXAMINER OF RENTON FILE NUMBER: ADDRESS: PROPERTY OWNER: REVIEW AUTHORITY TYPE OF CASE: DISPOSITION: DECISION CODE 18-000046 and CODE 18-000048 Tax Parcel No. 172305-9001 and 172305-9004. Lenny Neafus 6205 24th St NE Tacoma, WA 98422. City of Renton Finding of Violation $400 in fines sustained; fines due and owing within 30 days. INTRODUCTION Lenny Neafus appeals two Findings of Violation alleging numerous zoning code violations resulting from an outdoor storage operation he has conducted on his property since 1997. Four of the 12 total violations alleged in the two Findings of Violation are sustained for a total of $400 in fines, due within 30 days of the issuance of this decision. As previously noted, all of the violations alleged in the two FOVs arise from the Mr. Neafus' outdoor storage operation. Mr. Neafus' primary defense is that his business is "grandfathered" from when he established it in 1997. The legal term for "grandfather" status is legal nonconforming use status. As discussed in Conclusion of Law No. 4, Mr. Neafus' outdoor storage operation does not qualify as a legal nonconforming use because commercial outdoor storage was prohibited in 1997 when Mr. Neafus established his business and doesn't ever appear to have been authorized after that date. This decision has taken an unusually long period of time to prepare because several hundred City ordinances had to be reviewed to arrive at this conclusion. The specific ordinances that lead to this conclusion are identified in Conclusion of Law No. 4. All city ordinances are available on-line and can also be inspected at the City Clerk's Office. The reconsideration period for this decision is extended to October 26, 2018 to give Mr. Neafus a full opportunity to investigate his nonconforming use status, since it is recognized this is a key issue to the survival of his longstanding business. If Mr. Neafus finds any errors in the hearing examiner's analysis, he can request reconsideration and present the ordinances that he believes authorized an outdoor storage business on his property. The benefit to the City in extending the reconsideration period is that giving this opportunity to Mr. Neafus will conclusively and permanently resolve the nonconforming use status of Mr. Neafus' property. If Mr. Neafus doesn't Code Enforcement Decision - 1 request reconsideration or appeal this decision, it is very unlikely that any court would allow Mr. Neafus to raise nonconforming use rights again in any future administrative or judicial proceedings. At the appeal hearing, City staff indicated that the City did not have to consider nonconforming use rights in code enforcement actions. As identified in the conclusions of law below, the property owner has the burden of proof in establishing the facts for a nonconforming use. However, the City is required to correctly apply the law. Under that law, current outdoor storage restrictions don't apply to a commercial storage business that were authorized by the zoning code when established. The Appellant' storage business has been in place for two decades. Mr. Neafus notified the City of that fact in a written statement, Ex. 5, submitted to the City more than two months before the appeal hearing. Given the decades of time that have elapsed since Mr. Neafus started his business, it was reasonably possible that the storage business was lawfully established and hence exempt from current outdoor storage restrictions, especially since the City has not required the business to cease operations until now. Given these circumstances, the City should have been prepared to demonstrate at the appeal hearing that City regulations prohibited outdoor storage when the business was established. Except for the residential parking violation (dismissed as a matter of law2), Mr. Neafus may well have violated all the violations alleged in the Findings of Violation. Except for the residential parking violation, all dismissed violations were dismissed due to lack of evidence. Five of the violations were dismissed because the City provided insufficient evidence on the location of the violations. The outdoor storage operation is located on two adjoining parcels. One FOV alleges seven violations on the larger of the two parcels and the other FOV alleges five violations on the smaller parcel. The five violations on the smaller parcel are identical to five of the violations alleged for the larger parcel. There was no evidence in the record to establish upon which parcel each violation occurred. If the FOVs had been addressed separately as initially presented by the City, both would have been dismissed because there was no proof of location for either. Nothing in the record helped establish that the equipment, cars and solid waste depicted in the photographs and reports admitted into administrative record were located on one parcel as opposed to the other. In order to avoid dismissal due to this technicality, this decision combines the two parcels into one violation site, also collectively referred to as the "subject property." Since the five violations of the smaller parcel duplicate the five alleged for the larger parcel, the duplicated violations are dismissed from this appeal'. The legal principle that would prevent Mr. Neafus from ever raising the nonconforming use argument again is the judicial doctrine of finality. The doctrine of finality provides that once the appeals period for a land use decision subject to the Land Use Petition Act, Chapter 36.70C RCW ("LUPA") has expired, the decision can no longer be collaterally attacked in another administrative or judicial proceeding. See Nykreim Chelan County v. Nykreim, 146 Wn.2d 904 (2002); Habitat Watch v. Skagit County, 155 Wn.2d 397 (2005). Given that Mr. Neafus may not have fully understood the complexities of nonconforming use law when he filed his appeal, there is the possibility that a court will find the situation unfair and seek ways to circumvent the finality doctrine. Extending the reconsideration period ensures that Mr. Neafus has been given full opportunity to defend his nonconforming use claim. The extension also helps to ensure that the conclusions of this decision are accurate, which is clearly as important as ensuring that the review process has been conducted fairly and conclusively. Z See Conclusion of Law 7 below. s Arguably, duplicative violations could be assessed against Mr. Neafus for violations on the same violation site, e.g. one violation of outdoor storage restriction per each vehicle stored and item of bulky waste stored. However, the City has historically only assessed one violation per property for each code violation, e.g. one violation of the outdoor Code Enforcement Decision - 2 Another significant problem with the City's case is that staff identifies February 21, 20184 as the date of violation in the FOVs but then only presented evidence that violations occurred on January 12, 2018 and the day of hearing. Proving violations on the correct date is critically important since the City's enforcement code states that each day of violation constitutes a separate violation. The date of violation also locks in the restrictions that apply, since ordinances can be amended over the course of an enforcement action. Finally, and perhaps most important, alleging a proper date of violation is essential to provide due process notice to Mr. Neafus, who needs to know what date a violation allegedly occurred in order to reasonably defend himself. The City would have been more successful in its code enforcement action had it matched its date of violation with the bulk of evidence presented (i.e. January 12, 2018). I I I W.1 i1►`C!7 The appeal hearing of this case was held on August 16, 2016, at 10:00 a.m. at the Renton City Hall Council Chambers, Mason County Commissioner's Chambers, 1055 South Grady Way, Renton, WA 98057. 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.] Shuey, City of Renton Code Compliance Inspector, presented the City's case. He noted that the code enforcement case narrative lists the violated codes, which include vehicle habitation on the property, excess parking (the number of vehicles on the residential property exceeds four), and unlawful storage (the zoning table does not allow outdoor storage on property, parking of commercial vehicles on property, storage of motor vehicles on property, and shipping containers on property). Both parcels are residentially zoned and are fully undeveloped. As undeveloped residential properties, no outdoor storage is allowed. Mr. Neafus asserted that one of the parcels wasn't always zoned for residential but at one point was zoned for multi -family use. He has been occupying and using the properties in the same way since he gained the property in 1997. He has engaged in no illegal activities on the property. He motor vehicle storage restriction no matter how many vehicles are stored and one violation of the bulky waste restriction no matter how many items of bulky waste are stored etc. Given that the codes can be interpreted as only authorizing one violation per violation site and that the City would likely not have charged duplicative violations if the two parcels were enforced as one violation site, this decision adheres to the practice of not alleging duplicative code violations. ° The "investigation date" identified on the Findings of Violation is construed as the date of violation, since no other date is specified in the Finding of Violation form. The date of violation is an element of the offence because the RMC 1-3-I(E) provides that each date of violation constitutes a separate violation. If the investigation date is not construed as the date of violation, the Finding of Violation form would fail to allege an essential element of code violations. Code Enforcement Decision - 3 has done no mining activities since gaining the property. Mr. Neafus stated that the gravel pit operation probably ended in the early 1990s. He explained that part of the gravel pit was used for a construction/debris landfill and was meant to eventually become a cemetery. Conflicts between the contractor and Mount Olivet Cemetery resulted in abandonment of the cemetery project. In response to the Examiner's request for a timeline regarding when vehicles were stored on the property, Mr. Neafus responded that he has been using the property for his vehicles since he gained ownership of the property. Mr. Neafus explained it is not a junk yard and there are different types of vehicles stored there, including box trucks, antique cars, and regular cars. Outside of three inoperable cars the rest and two antique cars, all vehicles are licensed, operable and drivable apart. He's had a loader, excavator and bulldozer on the property since he bought it for his demolition company. Regarding what he considers to be grandfathered for the property, Mr. Neafus explained that he rents parts of the property for storage, including shipping containers. He has been renting these out for approximately 20 years. He has never operated the gravel pit. There is no junk on the property. He has used it for storage since he bought the property. The shipping containers were added in1998 or 1999. The city gave him citations to clean up a part of the property that belongs to Puget Sound Energy. He attempted to clean it up, but people were dumping on it, so he put up a fence. This was also in 1998. The City told him that he needed to get someone to live on the property to prevent people from dumping, so he did. City Rebuttal/Final Comments Mr. Shuey stated that he can't prove or disprove what was grandfathered. If Mr. Neafus bought the property in 1997 as he claimed, and if none of these activities were occurring at that time, then this is a violation. The property is well -hidden from public rights -of -way. Just because a use has gone on for a long time, if it started as an illegal use it is still an illegal use. Mr. Neafus noted that he has been dealing with the City for a long time regarding this property. He has spent time and money trying to work with the city. He feels that he has been harassed by the City. He has hauled lumber, firewood, and garbage off the property. He submitted receipts of his hauling activities into evidence. Mr. Shuey noted that the city has not been allowed on the property, so they have not seen any evidence of abatement. EXHIBITS Exhibits 1-8 of Code File 180046 and Exhibits 1-8 of Code File 180048 were admitted into the record during the April 10, 2018 hearing. Five photographs of the property taken on the day of hearing by the City were admitted as Ex. 9. A 2006 Photo from the Phase 1 Environmental Site Assessment for the former Mt. Olivet Landfill (Figure 2) was admitted as Ex. 10. Solid waste disposal receipts submitted by Mr. Neafus were admitted as Ex. 11. FINDINGS OF FACT Code Enforcement Decision - 4 Appellant. The Appellant is Lenny Neafus, 6205 24th St NE, Tacoma, WA 98422. 2. Violation Site. The violation site is composed of two parcels, Tax Parcel No. 172305- 9001 and 172305-9004. More than 20 years ago, the violation site was used for a gravel pit. Mr. Neafus acquired ownership of the property in 1997. Since that time, he has used the property for outdoor storage of vehicles, equipment and storage containers. 3. Appeal. This decision addresses Mr. Neafus' appeal (Ex. 1 of both appeals) of two Findings of Violation ("FOV") issued against outdoor storage and related violations that allegedly occurred on the violation site on February 21, 2018. The FOVs were both issued on February 21, 2018. The FOV for File No. CODE18-000048 alleges five code violations for Tax Parcel No. 172305-9001 and the FOV for File No. CODE18-000046 alleges seven code violations for adjoining Tax Parcel No. 172305-9004. The five code violations asserted for CODE18-000048 are all duplicated as five of the seven violations alleged for CODE18-000046. 4. Consolidation of hearing and parcels. The two appeals of the two FOVs identified in Finding of Fact No. 3 were consolidated into one appeal hearing on April 10, 2018. All references to "subject property" and "violation site" in this decision refer to the combination of Tax Parcel No. 172305-9001 and 172305-9004. The City submitted some photographs and an undated list of vehicles (Ex. 7 and 8) that were identical for each FOV. Five photographs taken on the date of the hearing, April 10, 2018, were also submitted by the City. The photographs. undated vehicle list and code compliance narratives was the only evidence presented in support of the alleged violations. None of that evidence gave any indication as to which parcel the items listed or photographed were located. For the date of violation, it cannot be determined upon which of the two parcels any of the violations occurred. 5. Violations. For ease of reference, the findings of fact below are linked to the violation numbers of Case No. 18-000046. All findings are based upon the violation located in the two parcels identified in Finding of Fact No. 4 on February 21, 2018. A. Violation No. 1: The City presented no evidence to support the NOV assertion that a trailer or any other vehicle or structure is being used for habitation on the subject property. Mr. Neafus stated that the City required him to have someone live on the property to prevent unauthorized dumping, so he did. However, from this testimony it cannot be ascertained whether someone was still living on the property on the February 21, 2018 date of violation and, more importantly, if the person is living in a recreational vehicle, travel trailer, tent, or other temporary shelter. B. Violation No. 2: Violation No. 1 requires the presence of a detached dwelling. No evidence was presented of a detached dwelling on the property. The property records submitted by the City, Ex. 3 to both appeals, identify no single-family dwelling on the property. None of the pictures, the only evidence of code violations presented, shows s The code compliance narratives stated that "after researching the property" and after viewing photographs, Mr. Shuey issued the FOVs under appeal. In the absence of any explanation as to how Mr. Shuey determined from the photographs and "researching the property" that the violations occurred on one parcel as opposed to the other, there is no way to ascertain whether Mr. Shuey's findings were based upon any reliable evidence or reasoning. Code Enforcement Decision - 5 any indication that a trailer or camper is being used as a dwelling. There is no basis to conclude that a trailer or camper is currently being used for a dwelling. C. Violation No. 3: Outdoor storage of solid waste that would not fit into a garbage can was depicted in the 8:15 photograph of Ex. 8 of both appeals. Wood depicted in that photograph may or may not qualify as solid waste, depending upon whether or not the wood is still fit and intended for use by Mr. Neafus. However, the items leaning against the red storage container are more likely than not solid waste, as they are composed of siding and other construction debris that does not appear fit for reuse. Beyond the photograph, the City presented no evidence on the existence of solid waste on the subject property. A major problem with the photograph is that it wasn't taken on the alleged violation dates of the appeals, but rather on January 12, 2018, which was more than a month prior to the February 21, 2018 date cited as the date of violation. However, Mr. Neafus submitted receipts, Ex. 9, showing the deposit of several tons of solid waste to solid waste receiving sites from dates ranging from February 11, 2018 through March 22, 2018. Mr. Neafus stated this solid waste was taken from the subject property. Combining the receipts with the January 12, 2018 8:15 photograph, it is determined that more likely than not Mr. Neafus stored solid waste outdoors on the subject property on February 21, 2018 and that the solid waste included items that were too large to fit into standard sized garbage containers. D. Violation No. 4: The January 18, 2018 photographs show one piece of equipment in the Ex. 8 photograph taken at 8:17 and the Ex. 7 list of vehicles found on the property identifies a bulldozer, an excavator and a loader. Mr. Neafus testified during the appeal that he's always had the bulldozer, excavator and loader on the subject property since he purchased it in 1997. From this evidence it is determined that on February 21, 2018 Mr. Neafus stored equipment on this property that at the least was composed of the bulldozer, excavator and loader. E. Violation No. 5: It cannot be determined that more likely than not the subject property was used for overnight parking of business vehicles over one ton in size or trailers other than recreational trailers. The City did not present any evidence on the weight of the vehicles depicted in the Ex. 8 photographs or identified in the Ex. 7 list of vehicles. The Ex. 8 photographs only showed two trucks (one shown in the 8:17 photo and the flatbed in the 8:15 photo) large enough to clearly be above two tons in weight and of such a size that they are more likely than not used for business purposes. The Ex. 7 list identified four utility trailers, but the list wasn't dated and there's no information as to how the list was compiled. Given that more than a month had expired between the time when the photographs were taken on January 12, 2018 and the February 21, 2018 violation date, it cannot be determined more likely than not that those two trucks were still on the property on February 21, 2018. Given the absence of virtually any information on how and when the Ex. 7 list was compiled, it also cannot be concluded that the four utility trailers identified in that list were on the property on February 21, 2018 either. Code Enforcement Decision - 6 F. Violation No. 6: The photographs of Ex. 8 to both appeals establish that the subject property has been used to store at least one shipping container (one is seen in the photograph marked as 8:15) but these photographs don't establish that the shipping container(s) were present on the date of violation February 21, 2018. However, the defendant acknowledged during the hearing that more than one shipping container is located on the subject property. From this collective evidence it is concluded that more likely than not the subject property was used for outdoor storage of one or more shipping containers on February 21, 2018, G. Violation No. 7: The Ex. 8 photographs to both appeals and an undated list of vehicles submitted as Ex. 7 to both appeals identify dozens of motor vehicles and commercial equipment located on the subject property. The evidence presented by the City on this issue does not establish that these vehicles were present on the date of violation, February 21, 2018. However, photographs taken by the City on the date of the hearing, April 10, 2018, Ex. 10, show numerous motor vehicles still on the property. Mr. Neafus acknowledged during the hearing that he uses the subject property to store several motor vehicles. From these facts it is determined that more likely than not the subject property was used for the outdoor storage of motor vehicles on February 21, 2018. 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. CODE18-000048 Dismissed. The five violations alleged in the FOV for CODE18-000048 are all replicated within the seven violations alleged in the FOV for CODE18-000046. As identified in Finding of Fact No. 4, the two adjoining parcels for CODE18-000046 and CODE18- 000048 have been consolidated into one violation site. As one violation site, the five violations identified in CODE18-000048 should not be assessed penalties twice by the additional penalties assessed by CODE18-000046 for the reasons identified in Finding of Fact No. 3 and are therefore dismissed. The consolidation is actually in the best interests of the City. If the adjoining lots had not been consolidated, both FOVs would have been dismissed. Without consolidation, the City had the burden of proving that each alleged violation occurred on the specific parcel subject to the FOV. As determined in Finding of Fact No. 4, there was no evidence presented that established upon which of the two parcels each violation occurred. In the absence of such evidence, the City could not have proven that the violations alleged in the CODE18-000048 FOV occurred on Parcel No. 172305-9001 or that the violations alleged in the CODE18-000046 FOV occurred on Tax No. 172305-9004. Proving the location of the violations is one of the required elements of proving City's case. As that was not possible from the evidence presented if the FOVs were addressed separately, both FOVs would have been dismissed. Code Enforcement Decision - 7 4. Nonconforming Use. Mr. Neafus did not contest most of the allegations made in the FOVs, but rather asserted that he his use of the subject property was "grandfathered" as he argued in his Warning of Violation response, filed with the City on February 5, 2018. See Ex. 5 to both appeals. If the subject property was in fact grandfathered to outdoor storage as asserted by Mr. Neafus, the code sections alleged as violated in the two FOVs of this appeal would be largely, if not entirely, rendered inapplicable. After months of researching hundreds of City ordinances, it is concluded that the property is not "grandfathered," or more accurately, outdoor storage does not qualify as a legal nonconforming use for the property. Since nonconforming use rights do not apply, the City appropriately cited Mr. Neafus with code provisions that were in place on the date of violation. 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. Neafus' property. RMC 4-10-060 provides that "[ajny legally established use existing at the time of enactment of this 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. Neafus can prove that his outdoor storage operation was authorized by the zoning code when' it was established, he would not be subject to current restrictions on outdoor storage. 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. Neafus' testimony that he started his storage business in 1997. Consequently, the evidentiary burden for establishing the date that the alleged nonconforming use has been met. The difficult part of this appeal is ascertaining what zoning laws applied when Mr. Neafus established his business in 1997. 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. Neafus' property when he established his storage business in 1997. As previously noted, ascertaining the authorized uses for the property in 1997 involves a long and tortured legal path. The first issue to be resolved is what zoning district applied to the property when the storage business was established in 1997. Once the district is determined, the district requirements that were in place in 1997 must be ascertained. The zoning classification for the subject property was set by Renton Ordinance No. 4628 in 1996. Ordinance No. 4628 adopted a zoning map for the entire City. No such map was adopted in 1997 (when Mr. Neafus established his storage use). Ordinance No. 4628 sets the zoning for Mr. Neafus' property as R8 pursuant to 6 Arguably, Mr. Neafus is not limited to 1997 as the time he established his storage business. If there was any period of time between 1997 and the present when commercial outdoor storage was authorized on Mr. Neafus' property, Mr. Neafus might be able to claim that his business was "established" during that period and is thus protected as a nonconforming use. The merits of such an argument need not be reached, because it doesn't appear there has ever been any period of time since 1997 that outdoor storage was authorized on Mr. Neafus' property. However, not every ordinance adopted after 1998 was reviewed in detail for this decision to ascertain whether there was any period when outdoor storage was authorized. If Mr. Neafus wishes to make the argument that his business vested sometime after 1997, 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. Code Enforcement Decision - 8 Panel No. 5317 of the "zoning book" adopted by that ordinance. Consequently, Mr. Neafus' use rights in 1997 are those authorized by the R8 zoning district in 1997. In order to ascertain R8 requirements in 1997, the only way to find the applicable ordinances using on-line City records is to work backwards from the R8 requirements in place today. From this review, it is concluded that Ordinance No. 4404, adopted in 1993, governed outdoor storage rights for the subject property in 1997 when Mr. Neafus established his outdoor storage operation. Currently, RMC 4-2-060(M), within a table of uses, expressly prohibits outdoor storage as a primary use in the R8 zone. The legislative history notes to RMC 4-2-060 identifies several ordinances as amending the table of uses, with the oldest identified as Ordinance No. 4736. Ordinance 4736 was adopted in August, 1998, after Mr. Neafus established his storage use. Ordinance 4736 also expressly prohibited outdoor storage in the R8 zone. Ordinance 4736 and current RMC 4-2-060(M) both use a table that links specific usage rights to each of the City's zoning districts. This use table was first adopted by Ordinance No. 4722, which also expressly prohibited outdoor storage as a primary use in the R8 zone. Like Ordinance No. 4736, Ordinance No. 4722 was adopted in 1998, after Mr. Neafus established his outdoor storage use. This was also the first time that the City's zoning code expressly addressed outdoor storage in the R8 zone. Prior to Ordinance No. 4722, usage rights were assigned to individual chapters for each separate zoning classification and outdoor storage was prohibited because it wasn't expressly authorized. Since Ordinance No. 4722 and 4736 were adopted in 1998, they do not set the usage rights of Mr. Neafus' property in 1997. Going further backwards in time through the ordinances, no pertinent amendments were made to the R8 zone until the adoption of Ordinance No. 4519, which converted the "SF" classification to the "R" designation without any associated changes to the use rights in the SF/R8 zone. Prior to adoption of Ordinance No. 4519, the most recent ordinance identifying and/or amending the use rights in the SF zone was Ordinance No. 4404 in 1993. Ordinance No. 4404 adopted a complete interim zoning ordinance that included all the zoning use rights applicable to the SF (now R8) zoning district. No amendments to the use rights regarding storage or any other primary use was made to the SF district between the adoption of the Ordinance No. 4404 in 1993 and 1998. Consequently, the interim zoning ordinance adopted by Ordinance No. 4404 set the use rights for Mr. Neafus' property when he started his outdoor storage operation in 1997. Chapter 4-31-5 of the interim ordinance (p. 56 of Ordinance No. 4404) governs the use rights for the SF zoning district. It contains a section listing permitted primary uses, permitted secondary uses, permitted accessory uses and authorized conditional uses. None of those sections authorizes commercial outdoor storage. Section 4-31-5(C) provides that if a use isn't expressly authorized as a primary, secondary, accessory or conditional use, the use is prohibited unless the City determines that the use is consistent with the purpose of the zone and similar to the expressly authorized uses. All of the uses authorized in the SF zone are residential in nature except for the public and community uses typically associated with residential use such as schools and churches. Commercial outdoor storage is nothing like the uses authorized in the SF zone. Consequently, it ' As identified in the Testimony section of this decision, Mr. Neafus asserts that part of the violation site was zoned multi -family. Ordinance No. 4628 shows that an insignificantly small portion of the violation site may have been zoned multi -family in 1997. The parcel boundaries in Ordinance No. 4628 don't match those of the parcel boundaries depicted in the property records in Ex. 3 of both appeals, so it is difficult to ascertain how much, if any, multi -family zoning applied to the property. In any event, the use rights attaching to the applicable multi -family zoning district are very similar to that of the R8 district and the multi -family zoning district also prohibited outdoor storage in 1997. Code Enforcement Decision - 9 must be concluded that commercial outdoor storage was not permitted in the SF zone at any time in 1997. 5. Code Violations. The seven code violations alleged in the FOV for CODE18-000046 are all quoted below in italics and applied to the Findings of Fact of this decision through corresponding Conclusions of Law. Unlawful Habitation - Violation No 1, FOV 18-000046 RMC 4-4-030(I): 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. 6. Violation No. 1 is dismissed. As determined in Finding of Fact No. 2A, there is insufficient evidence to support a finding that a recreational vehicle, travel trailer, tent or other shelter is used for habitation on the subject property. Excess Parking - Violation No 2, FOV 18-000046 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. 7. Violation No. 2 is dismissed. As determined in Finding of Fact No. 213, there is no evidence of a detached dwelling on the subject property. RMC 4-4-080(F)(10)(d) only sets a maximum parking limit of four for uses that involve a detached dwelling. Bulky Waste - Violation No 3, FOV 18-000046 RMC 8-1-4(E): Unlawful Storage of Bulky Waste: It shall be unlawful for any person in the City to store, maintain, keep, retain, dump or accumulate bulky waste on private real property in the City, except for any licensed ancillary disposal provider or licensed business in connection with bulky waste collection or disposal in an area zoned for the collection or disposal of bulky waste. RMC 8-1-2 "Bulky Waste" Definition: Large items of solid waste, including but not limited to items such as furniture; large household appliances, including but not limited to refrigerators, freezers, ovens, ranges, stoves, dishwashers, water heaters, washing machines, or clothes dryers; junk vehicles, vehicle hulks or any parts thereof as defined in RMC 6-1-2, as now worded or hereafter amended; and any other oversized solid wastes which would typically not fit into or be permitted for collection as garbage in garbage cans. 8. Violation No. 3 is sustained. As determined in Finding of Fact No. 2C, the subject property was used for outdoor storage of items of solid waste too large to fit into a standard sized garbage can on February 21, 2018. All elements of RMC 8-1-2(E) are met. Outdoor Storage - Violation No 4, FOV 18-000046 Code Enforcement Decision - 10 Table RMC 4-2-060(M): [In the R8 zone the following is prohibited:] "Outdoor storage, new " and "Outdoor Storage, existing. " RMC 4-11-190S ("Storage, Outdoor" Definition): The outdoor accumulation of material or equipmentfor 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 is sustained. As determined in Finding of Fact No. 21), a preponderance of evidence establishes that the subject property is used for outdoor equipment storage. Mr. Neafus testified that he uses the equipment for his demolition business. Since the equipment would have to be transported to work sites, the equipment is considered to be stored for purposes of "shipping to other locations." Overnight Parking - Violation No 5, FOV 18-000046 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. 10. Violation No. 5 is dismissed. As determined in Finding of Fact No. 2E, there is insufficient evidence to establish that there were any trailers or commercial trucks over a ton in size that were stored on the subject property on February 21, 2018. Excess Outdoor Storage - Violation No 6, FOV 18-000046 RMC 4-5-130(B)(4): ... 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. 11. Violation No. 6 is sustained. As determined in Finding of Fact No. 2F, the evidence establishes that at least one shipping container was stored outdoors on February 21, 2018. Vehicle Storage - Violation No 7, FOV 18-000046 Table RMC 4-2-060(M): [In the R8 zone the following is prohibited:] "Vehicle Storage." 12. Violation No. 7 is sustained. As determined in Finding of Fact No. 2G, numerous motor vehicles were stored outdoors on the subject property on February 21, 2018. Code Enforcement Decision - 11 FINES RMC 1-3-2(P): 1. The minimum penaltyfor the first violation shall be one hundred dollars ($100), not including costs or court costs, fees, and assessments. 2. The minimum penaltyfor the second violation of the same nature or a continuing violation shall be two hundred dollars ($200), not including costs or court costs, fees, and assessments. 3. The minimum penalty for the third violation of' the same nature or a continuing violation shall be three hundred dollars ($300), not including costs or court costs, fees, and assessments. 4. After three (3) prior violations, whether they occurred at the same time or in succession, the fourth violation shall constitute a gross misdemeanor. The Administrator and/or CCI has the authority to submit the violations to the prosecutor for criminal prosecution as provided in RMC 1-3-3. D. 13. As determined in prior conclusions of law, four of the seven violations are sustained. Each is a first time violation which is subject to $100 per violation as required by RMC 1-3-2(P). Total fines are $400. DECISION Four of the seven violations in the FOV for File No. CODE18-000046 are sustained. All remaining violations in the FOV for File No. CODE 18-000046 and File No. CODE18-000048 are dismissed. Total fines are assessed as $400, due within 30 days of the issuance of this decision. DATED this 7th day of October, 2018. Phr ,A. (?lbreehts City of Renton Hearing Examiner NOTICE OF RIGHT FOR RECONSIDERATON AND APPEAL Code Enforcement Decision - 12 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. Reconsideration. The parties may file a request for reconsideration with the City Clerk at any time up until October 26, 2018. New evidence may be presented in support of nonconforming use arguments. No new evidence is otherwise permitted. The parties may request an additional hearing if necessary to adequately evaluate new evidence pertaining to nonconforming use rights. Code Enforcement Decision - 13