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HomeMy WebLinkAboutHEX Decision BEFORE THE HEARING EXAMINER OF RENTON REPORT AND DECISION – APPEAL OF FINDING OF VIOLATION AND ORDER TO CORRECT (CODE19-000137) FILE NUMBER: CODE-19-000137 SITE OF VIOLATION: 17025 125TH Ave. SE Renton, WA 98058 PROPERTY OWNER: Gwendolyn Pizarro 17240 116TH Ave. SE Renton, WA 98058 REVIEW AUTHORITY: City of Renton TYPE OF CASE: Finding of Violation, RMC 4-5-130(B)(4) – Outdoor Storage and RMC 6-1-3 Outdoor Storage of Junk/Inoperable Vehicle DISPOSITION: Appeal Denied. $100 fine suspended and waived upon abatement of junk/inoperable vehicles by November 29, 2019. INTRODUCTION Ms. Pizarro has been charged with violating RMC 4-5-130(B)(4) for outdoor storage violations and RMC 6-1-3(B) for junk vehicle violations. The violations are sustained. Ms. Pizarro has already abated the outdoor storage violation, but photographs establish that a front or side yard of the property was used for outdoor storage on June 4, 2019. The Finding of Violation is sustained as to both counts for the June 4, 2019 investigation date. The $100 fine shall be waived if Ms. Pizarro completely abates the violation by November 29, 2019, either by removing all junk and inoperable vehicles from her property or by completely enclosing them within a building as authorized by RMC 6-1-3(H). This appeal is problematical because the Finding of Violation doesn’t identify what vehicles on Ms. Pizarro’s property allegedly qualify as junk and/or inoperable vehicles. In fact, Department of Licensing information sent with the FOV to the Appellant was limited to vehicle information on a Volvo, yet when asked at hearing what vehicles were subject to the NOV the City responded it was an Impala and an Oldsmobile. However, Ms. Pizarro did not object to the lack of clarity in the FOV and she appeared to know what vehicles the City had in mind by her testimony that she placed tarp on the Impala believing that was all that was required to store it and her acknowledgement that the Oldsmobile would be operable if put back together. Photographs sent along with the FOV to Ms. Pizarro also depicted the Volvo, Impala and Oldsmobile. TESTIMONY Donna Locher noted that on March 14, 2019 she received approximately seven requests to check out violations in Ms. Pizarro’s neighborhoods. All complaints were based upon junk or inoperable vehicles. When she went to Ms. Pizarro’s property on March 18, 2019, she noted inoperable and unlicensed vehicles. There was bulky waste, which are items too large to fit into a garbage can, such as buckets or doors. For outdoor, City code authorizes 200 square feet of outdoor storage so long as it’s in the back yard and not front or side yard. Ms. Locher issued a Warning of Violation with a compliance date of April 3, 2019. Ms. Pizarro asked for an extension and this was extended to April 24, 2019. Ms. Locher did an inspection on April 30, 2019 and found that the vehicle, outdoor storage and bulky waste violations had not been abated. She sent a second Warning of Violation on May 7, 2019 with a compliance date of May 22, 2019. On June 4, 2019 she did an inspection and found that the bulky waste violation had been abated but the vehicle and outdoor storage violations remained. On June 10, 2019 she issued a Finding of Violation for $200 for the two outstanding violations. June 25, 2019 was the compliance date. An untimely appeal was filed. On July 8, 2019 Ms. Locher did another inspection and found that the two violations remained. On July 9, 2019 Ms. Locher issued a second Finding of Violation with a July 24, 2019 compliance. Ms. Locher did an inspection on September 16, 2019 and saw that the vehicle violation remained. On September 17, 2019 Ms. Locher issued a third Finding of Violation in the amount of $250 for an unlicensed vehicle violation with a compliance date of October 2, 2019. Ms. Pizarro noted that the vehicles subject to the FOV are covered, which back in 2013 was “an ok issue.” She had another compliance action in 2013 regarding the same thing and was told that if she covered her cars they would be ok. There are multiple code compliant violations up and down the street that are readily visible. The cars aren’t even completely covered. She did a records request to see if those properties had any cases against them and it doesn’t appear there are any. She feels like she’s being singled out. Most of the houses were built in the 1950s in King County before annexation. She’s not sure if there was a clean sweep done of all the properties when they were annexed into the City. She doesn’t know if code compliance cases are initiated by citizen requests or inspectors just driving down the street. In response to Examiner questions, Ms. Locher confirmed that the investigation/date of violation was June 4, 2019, the date photographs were taken. Looking at a June 4, 2019 photograph taken at 9:23 am, Ms. Locher identified that the vehicle in blue tarp with cellophane in front was the subject of the FOV. She stated that the vehicle was wrecked in the front. It’s not a full car. It could not be legally operable with the missing front. The tire shown in front of the blue tarp is a part of the vehicle and under the tarp. Ms. Locher also identified a yellow Oldsmobile shown in a 4/30/19 picture that hadn’t been moved in at least a year. Overgrown vegetation is shown on the vehicle. Ms. Pizarro noted that she made a records request to find out how many code enforcement cases were filed for properties on her street and there had been only four. In response to examiner questions, Ms. Pizarro noted that if the vehicles were put back together, she could drive them. The blue tarped vehicle is a 1967 Impala which she recently took out of storage this year. The Oldsmobile was recently moved to the front space because she is building a small storage unit to store all the things being seen from the road. The vehicles are in the side yard because her door doesn’t front the street. From the street you can’t really see everything. She also used to have a fence up that further concealed the vehicles that she has taken down to construct a storage building. She feels that if her neighbors aren’t clearing their junk vehicles that she’s being singled out. Ms. Locher explained that she got at least six or seven written requests to address vehicles in Ms. Pizarro’s neighborhood. Ms. Locher clarified that “neighborhood” wasn’t just limited to Ms.Pizarro’s street, but extended from 168th to 170th. Ms. Locher found violations on all the properties identified in the requests. There probably are many other violations in the neighborhood in addition to throughout the rest of the City. But the City doesn’t have enough inspectors to find every violation. Code enforcement is complaint based. Ms. Pizarro stated she had pictures of other violations. The examiner noted that the pictures would not be relevant since the existence of other code violations is not a defense to the violations on Ms. Pizarro’s property unless Ms. Pizarro is being discriminated against in violation of the equal protection clause due to factors such as race or national origin. Ms. Pizarro stated she doesn’t have the resources to abate the violation. In response to examiner questions, Ms. Locher stated that to avoid the violation the vehicles would have to be stored in an enclosed building. Ms. Pizarro noted that she’s lived in her home for 15 years and never had an issue with the cars being there. There was a fence and the vehicles were covered, but even with that it’s because they weren’t in the public view that there were no complaints. The fence was taken down in order to complete the storage building, which is still under construction. Ms. Locher noted that the City may have found the fence adequate before but it’s not currently. She noted that she’s already extended the compliance date once. Ms. Locher is willing to work with Ms. Pizarro, but Ms. Pizarro has not tried to reach out since that extension. A tarp over the vehicle doesn’t abate the violation. The City is trying to maintain residential character. Ms. Locher said she would look after other violations in the neighborhood if a complaint is filed. Ms. Locher said she is still advocating for the full $250 fine because she’s seen no additional effort to comply. Ms. Pizzaro responded that she was under the impression that tarping the vehicle would take care of the violation. She said in 2013 it was ok to cover her car according to a City official. Ms. Locher said she can’t imagine that a tarp would have been considered ok in 2013 but she doesn’t know what Ms. Pizarro was told. . EXHIBITS The staff’s exhibit list identifying 7 exhibits were admitted as Ex. 1-7 during the October 15, 2019 hearing. FINDINGS OF FACT 1. Violation Site. The violation site is a single-family residence located at 17025 125TH Ave. SE, Renton, WA 98058. The property is owned by Gwendolyn Pizarro, who resides at the violation site. 2. Finding of Violation. A Finding of Violation (“FOV”) dated June 10, 2019 was mailed to Mr. Pizarro on June 10, 2019. The FOV alleges violations of RMC 4-5-130(B)(4) for outdoor storage and RMC 6-1-3 for junk/inoperable vehicles. 3. Code Compliance History. Ms. Pizarro has received at least three Warnings of Violation and three Findings of Violation for the same set of offenses, namely storage of junk/inoperable vehicles (RMC 6-1-3), outdoor storage in a residential zone (RMC4-5-130B4), and outdoor storage of bulky waste (RMC 8-1-4E). The first Warning of Violation was issued on March 19, 2019 and the last Finding of Violation was issued on September 17, 2019. The first Warning of Violation set a compliance date of April 3, 2019. Ms. Pizarro requested and was granted an extension on the compliance date to April 27, 2019. In her request for extension, Ms. Pizarro said she was in the process of constructing a storage shed for the vehicles. Ms. Pizarro appealed the first and second Findings of Violation. The second Finding of Violation was dismissed by the hearing examiner as untimely. The first Finding of Violation is the subject of this appeal1. According to City staff, Ms. Pizarro has abated the outdoor storage violations and the outdoor storage of bulky waste violations. The outstanding violation is still at least two junk vehicles, an Impala and an Oldsmobile. Documentation and photographs submitted with the Finding of Violation also suggests that an inoperable Volvo may also still be stored on the Appellant’s property. 4. Hearing. A hearing on the subject appeal was held on October 15, 2019. 5. Outdoor Storage. Photographs taken 6/4/19 show buckets and car parts stored in the side yard or front yard of the Pizarro property. 6. Junk/Inoperable Vehicles. The 6/4/19 photographs show three vehicles that may qualify as junk and/or inoperable vehicles. The three vehicles are individually assessed as follows: A. Impala. What was identified by Ms. Pizarro as an Impala is shown in the photographs as placed under a blue tarp. Ms. Locher identified the Impala as an inoperable vehicle subject to the FOV. Ms. Locher testified that the tires depicted in front of the vehicle are part of the Impala. Given this information, it is clear from the June 4, 2019 photographs that the front grill and hood are missing. From photographs taken on 7/8/19 and 9/16/19, it appears that parts of the engine if not the entire engine are missing. Ms. Pizarro also acknowledged that “if put back together” the Impala would run, implying that it currently does not. From this information it is determined that the Impala could not operate on streets, both lawfully and functionally. B. Oldsmobile. Ms. Locher identified the Oldsmobile as an inoperable vehicle subject to the FOV. Ms. Pizarro also acknowledged that “if put back together” the Impala would run, implying that it currently does not. From this information it is determined that the Impala could not functionally operate on streets. 1 As outlined in the examiner’s order of dismissal for the second Finding of Violation, the first appeal was found to be timely because Ms. Pizarro’s signature line was dated June 28, 2019, the last day of the appeal period. At the appeal hearing Ms. Locher noted that the post mark on the envelope was dated after June 28, 2019. However, in its motion to dismiss the City didn’t present the post mark as evidence. The only evidence in the record of when Ms. Pizarro mailed her appeal was the date she put on her signature. That is why the date of filing had to be construed as June 28, 2019. C. Volvo. A Volvo is depicted in the June 4, 2019 photographs. Washington State Department of License records accompanying the FOV show the license for the Volvo as expired as of March 20, 2015. There is no indication in the record if the Volvo has been removed from the property. However, the June 4, 2019 photographs show that the Volvo, with an expired license, was stored on Mr. Pizarro’s property on June 4, 2019. CONCLUSIONS OF LAW 1. Authority of Examiner: The Hearing Examiner has the authority and jurisdiction to review code violations as provided in RMC 1-3-2. 2. Zoning. The property is zoned R-6. 3. Code Violations: The Finding of Violation of this case (Exhibit 2) is based upon the violation of RMC 4-5-130(B)(4). The applicable criteria are quoted below in italics with accompanying Conclusions of Law that apply those criteria to the Findings of Fact made above. Violation One -- Junk Vehicle and/or Inoperable Vehicle -- RMC 6-1-3: A. It shall be unlawful to store, maintain, keep or retain: a junk, wrecked, dismantled or an apparently inoperable vehicle, vehicle hulk, or any part thereof, on private real property in the City of Renton. B. The storage, maintenance or retention of junk, wrecked, dismantled or an apparently inoperable vehicle, vehicle hulk, or any parts thereof, on private real property in the City is hereby declared to be a public nuisance and subject to abatement in accordance with this Chapter and RMC 1-3-3, as now worded or hereafter amended…. H. Exceptions: This Chapter shall not apply to: (1) a vehicle or part thereof which is completel y enclosed within a building in a lawful manner where it is not visible from the street or other public or private real property, or (2) a vehicle or part thereof which is stored or parked in a lawful manner on private real property zoned for and in connection with the business of a licensed dismantler or licensed vehicle dealer and is fenced according to RCW 46.80.130, or (3) a vehicle or part thereof which is stored or parked in a lawful manner on private real property in an area zoned for and in connection with the business of a licensed auto body repair shop or facility. Definitions – RMC 6-1-2: INOPERABLE: A vehicle that is apparently not functioning or is inoperative or cannot be lawfully operated upon public roads or highways. 4. As determined in Finding of Fact No. 6, on June 4, 2019 Ms. Pizarro had an Impala, Oldsmobile and Volvo on her property that all qualified as inoperable. The Volvo was inoperable because it could not be lawfully operated upon public roads due to an expired license. The Oldsmobile and Impala are inoperable because they both are not functioning. Ms. Pizarro indicated at hearing it was her belief, based upon prior conversations with Renton code enforcement officer from several years before, that she could store junk and/or inoperable vehicles on her property so long as they were covered in a tarp. City regulations make no exception for covered vehicles. As identified in RMC 6-1-3H, quoted above, the only exception for Ms. Pizarro’s property would be for junk/inoperable vehicles stored in an enclosed building. Violation Two – Outdoor Storage -- RMC 4-5-130(B)(4): Section 308 is deleted in its entirety and replaced with a new Section 308 Residential Outdoor Storage, which shall read as follows: 308 Residential Outdoor Storage: 308.1 Purpose: The purpose of this section is to define and regulate the outdoor storage of materials on residential property while maintaining the character and use intended for single family residential neighborhoods. For purposes of this section, residentially zoned property is any property zoned RC, R1, R4 or R8. 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… 4. Violation. The City’s code interpretation, CI-129, provides that RMC 4-5-130(B)(4) as quoted above applies to R6 zoned properties. Ms. Pizarro’s property is zoned R6. RMC 4-5- 130(B)(4) prohibits outdoor storage in the front or side yards of residences. As determined in Finding of Fact No. 5, on the alleged violation date, June 4, 2019, Ms. Pizarro stored several items in her front or side yard, including buckets and car parts. Ms. Pizarro is found to have been in violation of RMC 4-5-130(B)(4) on April 24, 2018. DECISION The June 10, 2019 FOV is upheld along with its findings of outdoor storage violation and junk/inoperable vehicle violation. Ms. Pizarro has failed to comply despite three Warnings of Violation and three Findings of Violation over a six-month period. However, she has made some effort to comply and is in the process of constructing a storage building. She also may have a sincere belief that she legally could keep the vehicles on her property if they vehicles were kept under a tarp. For these reasons, the $100 fine imposed by the FOV is upheld but will be waived upon full abatement as outlined below. ORDER TO CORRECT Ms. Pizarro shall remove the Impala, Volvo and Oldsmobile from her property or store them within an enclosed building by November 29, 2019. The $100 fine imposed by the FOV shall be waived upon timely correction. If the violation for all three vehicles is not corrected by November 29, 2019, the $100 fine shall be due by December 31, 2019. Failure to correct as ordered shall subject the Appellant to criminal prosecution authorized by RMC 1-3-2(F)(2). Failure to comply with an Order to Correct can be prosecuted a s a misdemeanor. The maximum penalties for a misdemeanor are 90 days in jail and $1,000 in fines. Decision and Order issued November 4, 2019. Hearing Examiner NOTICE OF RIGHT TO APPEAL 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. Code Enforcement Decision -- 8