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HomeMy WebLinkAboutKousoum Ltr & Decision Denis Law Mayor City Clerk-Jason A.Seth,CMC November 4, 2019 Sonya Kousoum P.O. Box 33161 Seattle, WA 98133 Re: Hearing Examiner's Decision Code Case No: CODE-18-000542 Dear Ms. Kousoum: I have attached the Hearing Examiner's Decision in the above referenced matter. If you have any questions or concerns, please feel free to contact me. Sincerely, Jason A. Seth City Clerk cc: Hearing Examiner Craig Burnell, Building Official Donna Locher, Code Compliance Inspector Robert Shuey, Code Compliance Inspector Kevin Louder, Code Compliance Inspector Anna Felicio, Administrative Secretary I Herlinda Corn, Accounts Receivable . 1055 South Grady Way,Renton,WA 98057 • (425)430-6510/Fax (425)430-6516 • rentonwa.gov OFFICE OF THE HEARING EXAMINER CITY OF RENTON REPORT AND DECISION—APPEAL OF FINDING OF VIOLATION AND ORDER TO CORRECT (CODE18-000542) Appellant: Sonya Kousoum PO Box 33161 Seattle, WA 98133-0161 Alleged Violation: Construction without building permit. Location of Violation: 8031 S 130th St. Seattle, WA 98178-4942 Public Hearing: October 15, 2019 - Decision: Appeal sustained and FOV dismissed on basis that FOV fails to identify illegally constructed improvement; no fines imposed. SUMMARY OF DECISION Sonya Kousoum appeals a Finding of Violation that alleges she made some improvements without a building permit. Her appeal is sustained and the Finding of Violation is dismissed. The FOV is dismissed due to a procedural technicality. The FOV asserts that Ms.Kousoum constructed an improvement without a building permit. The FOV is dismissed because the FOV fails to identify what was constructed without a permit. At hearing it took a significant amount of time for the Examiner and Ms. Kousoum to figure out that the alleged improvement was a wall. None of the documentation submitted by the City identified the wall. The evidence in the record is also very unclear as to whether any walls had been constructed without a building permit. Ms. Kousoum initially testified that the walls were already part of her garage, but appeared to subsequently relent and admit that she had built new walls for the bathroom. The City offered no evidence on the existence of a wall except for testimony from the code enforcement officer that it was her understanding from the building inspector that Ms.Kousoum had built a wall. The failure of the FOV to identify the wall made a material difference in the appeal proceeding because Ms.Kousoum was clearly confused as to the basis of the code enforcement action and was not in a position to fairly defend herself. The fact that Ms. Kousoum evaded a fine on this appeal does not mean she has complied with City regulations. Far from it,the record strongly suggests that Ms.Kousoum did in fact construct a wall without a building permit. Ms. Kousoum needs to understand that if she did build a wall without a permit,which appears to be very likely, she unquestionably violated City regulations and on that basis alone the FOV would have been upheld. It is completely immaterial that the electrical and plumbing inspectors didn't advise Ms. Kousoum about the need for a separate permit for the wall. The electrical and plumbing inspectors were there to inspect electrical and plumbing code compliance, not to advise Ms. Kousoum on Appeal of Finding of Violation Page 2 her duty to comply with other building code regulations. In point of fact, if Ms.Kousoum had a contractor build the wall for her,that contractor should have advised her of the need for a building permit. Once it was established that Ms. Kousoum had built a wall without a building permit, the only remaining issue would be whether there were any mitigating circumstances that justified reducing the fine or eliminating the fine altogether. Given Ms. Kousoum's cooperation with the City in acquiring electrical and plumbing permits, it is fair to conclude that Ms. Kousoum genuinely didn't know she also needed a building permit. Had she then diligently cooperated with the City in acquiring a building permit upon being told of the need for the permit,her fine likely would have been significantly reduced if not eliminated altogether in this appeal. However, the record shows that Ms. Kousoum likely did not cooperate in a reasonable manner to abate her code violation. There were at least a couple times in her work with the City that Ms.Kousoum didn't respond to Ms.Locher's requests for information and/or permits for several months. The most notable lapse was initiated on April 24, 2019. On that date Ms. Locher sent an email to Ms. Kousoum noting that it had been two months since her last correspondence, and nothing had happened. Ms. Locher requested Ms. Kousoum to file for a building permit application by May 9, 2019. Ms. Kousoum's architect gave Ms. Locher a status report that same day and then on May 8, 2019 advised Ms. Locher that he had uploaded plans for a preapplication meeting and was awaiting structural engineering review. After that May 8, 2019 communication Ms. Locher didn't hear anything more from Ms. Kousoum for almost four months so Ms. Locher filed the FOV four months later on September 4, 2019. Four months of no response is no reasonable cooperation. Ms. Kousoum made a reference during the appeal hearing to a preapplication conference she attended, so it appears she made some progress in securing her building permit. However, if the preapplication conference was the only work she did with the City between Ms. Locher's April 24,2019 letter and the September 4, 2019 FOV1, it is unlikely that Ms. Kousoum would have seen much of a fine reduction if any at all had the FOV properly identified what improvements were constructed without a building permit. Although Ms. Kousoum has avoided the fines for the FOV under appeal, she should also be aware that the City can issue more FOVs if she continues to fail to acquire a building permit. Under City code, each day that the wall stands without a permit is a separate violation. If the City does choose to issue a properly written FOV for another day of violation, Ms. Kousoum will have a very difficult time justifying any reduction in fines given that the amount of time she's had to take care of the situation. For this reason, Ms. Kousoum is highly encouraged to acquire a building permit as quickly as possible to avoid another FOV. SUMMARY OF HEARING TESTIMONY Note: This summary is solely provided for the convenience of the reader,for 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 The Examiner is aware that Ms. Kousoum may have actually been diligently working with building permit staff to acquire her building permit. However,Ms.Kousoum was given the opportunity to provide more information on her efforts to cooperate with the City at the appeal hearing and declined to do so. Given Ms.Kousoum's reluctance to provide any further information and the fact that more likely than not Ms.Locher was conferring with building department staff on Ms. Kousoum's progress, it is reasonable to conclude from the administrative record of this appeal that Ms.Kousoum was not diligently working with the City in abating her code violation. Appeal of Finding of Violation Page 3 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, Renton Code Compliance Officer, spoke on behalf of the city. She noted that Ms. Kousoum's home is on a septic system. The City originally understood that she was adding a bedroom to her home and this would require septic approval. Later she clarified that she was just adding a bathroom to her house. There were delays in communication due to not having a correct mailing address. She then came in with a contractor to figure out how to hook up to sewer and abandon the septic design. As they went through November 2018 the application materials to hook up to sewer were never submitted so in December 21, 2018 Ms. Locher issued a Finding of Violation for $250. She dismissed that due to problems with the mailings. On 2/5/19 Ms. Kousoum filed a King County Operations Monitoring Report for her septic system. The only time that would be required is if Ms.Kousoum were to add bedrooms and Mr. Kousoum said she wasn't adding bedrooms. By September 24, 2019 Ms. Kousoum still hadn't filed an application for a sewer hook up or a building permit. After a year, the situation hasn't been resolved. Permit techs had advised Ms. Locher that the septic was failing, which is what started the City's involvement. The City isn't sure what she's building, it appears she converting the garage into living space with a bedroom. The City knows that work has been done because she had an electrical permit subject to inspection and from that inspection it was determined she needed a building permit as well. Ms. Kousoum noted she's spent$18,000 on work for the house. She started out just building a bathroom in the garage. Before the Finding of Violation she was just going to build a bathroom and she now wants to build an ADU. The City is saying her septic is failing but it's not failing. Ms; Locher confirmed that if Ms. Kousoum is adding an ADU she has to either connect to sewer or get King County approval for expanded use of septic. She would also need a building permit to put up walls if she was just constructing a bathroom. Ms. Kousoum noted that the first three inspectors had not said she needed a permit. Ms. Locher said that the first three inspectors were reviewing the project for their area of review and were not there to determine if a building permit was necessary. If there was no failing septic and/or added bathroom,the only incorrect part of the Finding of Violation was the corrective action requiring a hook up to septic. Before issuance of the Finding of Violation, Ms. Kousoum was obtaining an electrical permit. The electrical inspections were passed each time. She also had a plumbing permit and passed all plumbing inspections as well. She was building walls for the bathroom. Only the last, fourth inspector said she needed a building permit for the walls. Ms. Locher noted that the plumbing inspector only reviews for plumbing and that the electrical inspector only reviews for electrical work. Ms. Locher noted she told Ms. Kousoum she needed a building permit six months ago. Appeal of Finding of Violation Page 4 Ms. Kousoum noted she's passed pre-application. Ms. Locher noted that was six months ago. Ms. Kousoum noted that she had to have surveys done that take six months, she also needs structural engineering and geotechnical review. When Ms. Kousoum got the Finding of Violation' she hired an architect and that's when she decided to construct the ADU. The examiner asked Ms. Locher if she needs to talk to building permit staff to find out if she's been making reasonable process on her ADU application. Ms.Locher said that the problem with Ms.Kousoum is that she hasn't been updating the City on her progress. She hasn't been responding to Ms. Locher's requests for her status on resolving the code violations. • Ms. Kousoum says the engineers are very busy and she keeps emailing them all the time to push them along. Everyone involved in construction is very busy and it's difficult to get anyone to work. Ms.Locher noted that an ADU permit should not take six months. Ms.Kousoum responded that the City asked her to work on a lot of issues, such as putting in asphalt to expand the driveway to 20 feet, cutting down trees and talking to the neighbors. Ms. Kousoum stated that her electrical and plumbing permits identified she was just working on a bathroom initially. Ms. Locher stated that her communications with Ms. Kousoum were mostly emails as opposed to phone calls and they were mostly with Ms. Kousoum's designer. Ms. Kousoum said, she always responded to Ms. Locher's contacts, but it takes time to get her professionals to respond. EXHIBITS The following exhibits were admitted during the October 15, 2019 hearing: 1. Scheduling letter 2. Finding of Violation 3. Code compliance narrative 4. 2/17(19?)/19 email from Ms. Kousoum 5. 3/27(2)/19 email from Locher to Kousoum; 6. 4/24/19 email from Ms. Locher; 7. 2/17/19 email from Kousoum to Locher; 8. 2/18/19 email from Locher to Kousoum; 9. 3/27/19 email from Locher to Kousoum; 10. 5/13/19 email from Locher to Rich(chain). 11. Plumbing and electrical permits 2 It appears that Ms.Kousoum meant to say she hired an architect when she got the correction notice from the fourth inspector in October,2018,not the Finding of Violation in September,2019. Appeal of Finding of Violation Page 5 FINDINGS OF FACT 1. Appellant. Sonya Kousoum owns the property subject to the appeal and is the Appellant. 2. Property. The subject property is located at 8031 S 130th St., Seattle, WA 98178-4942 3. Finding of Violation. A Finding of Violation ("FOV")was issued to Mr. Kousoum on September 4,2019. The FOV asserts that Ms.Kousoum failed to acquire a building permit. The FOV doesn't identify what Ms. Kousoum constructed without a building permit. At hearing, Ms. Locher, the City's code enforcement officer, testified that the improvement was a wall(s). The wall was not identified in any documentation provided by the City. The corrective action in the FOV was limited to requiring health department approval of a septic system or a sewer system connection. 4. Appeal. Ms. Kousoum mailed her appeal on September 14, 2019 and it was received by the City on September 16, 2016. 5. Chronology: 10/1/18: Building Inspector Phil Hudgens issued a correction notice to obtain a building permit for work within Ms. Kousoum's garage. Ms. Kousoum was in the process of acquiring plumbing and electrical permits for construction of a bathroom. From hearing testimony, it appears the unauthorized work was for walls built to enclose a bathroom. Ms. Kousoum states that her only objective at that time was to build a bathroom. She had no intention to build an accessory dwelling , unit or any bedrooms. In response, Ms. Kousoum went to City hall with a contractor to identify what needed to be done. She planned on abandoning her septic system and hooking up to sewer. This action would only be required if her existing septic system was failing or she planned on adding bedrooms. If necessary, the action was required prior-to filing the required building permit. October 9, 2018: Rich Melchior, Ms. Kousoum's architect, went to City Hall to discuss permits. He wanted to let code compliance know that work stopped on the house until the permit was issued. December 21, 2018: No activity on property so Ms. Locher sends a $250 Finding of Violation. Ms. Locher subsequently dismisses the Notice because the mailing came back"Return to Sender." February 5, 2019: Sometime prior to 2/5/19 Ms. Kousoum submitted a King County Operation/Performance Report for her septic system to Ms.Locher.Ms.Locher sent a letter to Ms. Kousoum dated February 5,2019 thanking her for the Report but noting that the Report still didn't identify any additional bedrooms were being approved. Ms.Locher's letter required County health department approval and a building permit for the work done without building permits due by Appeal of Finding of Violation Page 6 2/20/19. The Report found no problems with the septic system3. February 17, 2019: Ms. Kousoum responded by email dated 2/17/19. In that letter she identified that she was not adding any bedrooms, but at the same time wrote "[ais you know I have an architect working on designing a dwelling family unit instead of a toilet in a shop." During the hearing,Ms. Kousoum stated that she changed her plans to include the addition of bedrooms once she received the violation letter, which the examiner and Ms. Locher understood to mean the Finding of Violation under appeal, which wasn't issued until almost seven months later, on • September 4,2019. It appears that Ms.Kousoum may have meant she changed her plans to include a bedroom upon receiving the October 1,2018 correction notice from Mr.Hudgens. Ms.Kousoum also noted that she didn't want to have to get County health department approval for septic because she was going to connect to sewer. February 18, 2019: Ms. Locher emailed Ms. Kousoum to let her know that the City was not requiring a sewer connection and that this would only be required if the septic system is failing or the Health Department refused to approve new construction for the septic system. March 27,2019: Ms. Locher emailed Ms.Kousoum to let her know that to date no paperwork had been received regarding her sewer connection and that the connection was necessary prior to approving any building permits. She noted that no building permit had been filed either. Ms. Locher asked for status on these issues and stated that the items must be taken care of without further delay. April 24, 2019: Ms. Locher emailed Ms. Kousoum and noted that it had been two months since her last correspondence,noting there still had been nothing filed for a sewer hook-up. Ms. Locher requested that Ms. Kousoum identify if she planned on sewer or septic. She also noted that no building plans had yet been submitted and that the plans must be submitted by May 9, 2019. Rich Melchior responded to Ms. Locher by email on the same day stating that the current septic system was in good order,that building plans for an ADU addition were completed and were with a structural engineer and that once that review was done the plans would be filed. Mr. Melchior asked how to schedule a preliminary review meeting for the building permit. Ms. Locher responded by email the same day on how to schedule a preapplication meeting. May 8, 2019: Rich Melchior notes that he has uploaded building plans and submitted a request for a pre-application meeting and that Ms.Kousoum is still waiting for the completion of structural engineering review. September 4, 2019: Ms. Locher issues a Finding of Violation issued for failure to acquire a building permit. 3 The Report and Ms.Locher's 2/5/19 letter were not admitted into evidence as exhibits,but since the FOV was dismissed its contents can be evaluated without prejudice to either party in order to provide more accurate advice to Ms.Kousoum as to the consequences of a continued failure to acquire a building permit. Appeal of Finding of Violation Page 7 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. Code Violation: The code violation identified in Finding of Fact No. 3 is quoted below and applied to this appeal via a corresponding conclusion of law. RMC 4-5-060(E)(11): 105.1 Required. Any owner or owner's authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by the Construction Codes and the Construction Administrative Code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit. FOV Dismissed for Failure to Identify Code Violation or Unauthorized Improvement. Case law is clear that penalty orders such as FOVs must be specific about the asserted violations, about the government's authority, and about the requirements it imposes. Miller v. City ofSammamish, Mun. Corp.,No.78528- 1-I, p. 14 (Wash. Ct. App. Aug. 19, 2019). The FOV of this appeal fails to identify what part of the code is violated. More important, it also doesn't identify the factual basis of the code violation, i.e. the FOV identifies that Ms.Kousoum constructed something without a building permit,but doesn't identify what she constructed without a building permit. The failure of the FOV to identify the code and factual basis of her violation deprived Ms. Kousoum of a fair opportunity to defend herself under due process as required by the Miller case. Either Ms. Kousoum is a good actress or she clearly had no idea why the FOV was issued against her. It took repeated questioning from the examiner before it was finally revealed that the basis of the FOV was construction of a wall. The bases of a code violation should never be so well hidden from a property owner. As required by Miller,the FOV is dismissed for failure to properly identify the code and factual basis of the violation. DECISION The FOV of this case is dismissed for failure to identify the code and factual basis of violation for the reasons identified in Conclusion of Law No. 2 above. DATED this 4th day of November, 2019. Phi A.Olbrechts Hearing Examiner Appeal of Finding of Violation Page 8 NOTICE OF RIGHT TO APPEAL 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. OFFICE OF THE HEARING EXAMINER CITY OF RENTON REPORT AND DECISION—APPEAL OF FINDING OF VIOLATION AND ORDER TO CORRECT (CODE18-000542) Appellant: Sonya Kousoum PO Box 33161 Seattle, WA 98133-0161 Alleged Violation: Construction without building permit. Location of Violation: 8031 S 130th St. Seattle, WA 98178-4942 i Public Hearing: October 15, 2019 Decision: Appeal sustained and FOV dismissed on basis that FOV fails to identify illegally constructed improvement; no fines imposed. SUMMARY OF DECISION Sonya Kousoum appeals a Finding of Violation that alleges she made some improvements without a building permit. Her appeal is sustained and the Finding of Violation is dismissed. The FOV is dismissed due to a procedural technicality. The FOV asserts that Ms.Kousoum constructed an improvement without a building permit. The FOV is dismissed because the FOV fails to identify what was constructed without a permit. At hearing it took a significant amount of time for the Examiner and Ms. Kousoum to figure out that the alleged improvement was a wall. None of the documentation submitted by the City identified the wall. The evidence in the record is also very unclear as to whether any walls had been constructed without a building permit. Ms. Kousoum initially testified that the walls were already part of her garage, but appeared to subsequently relent and admit that she had built new walls for the bathroom. The City offered no evidence on the existence of a wall except for testimony from the code enforcement officer that it was her understanding from the building inspector that Ms.Kousoum had built a wall. The failure of the FOV to identify the wall made a material difference in the appeal proceeding because Ms.Kousoum was clearly confused as to the basis of the code enforcement action and was not in a position to fairly defend herself. The fact that Ms. Kousoum evaded a fine on this appeal does not mean she has complied with City regulations. Far from it,the record strongly suggests that Ms.Kousoum did in fact construct a wall without a building permit. Ms. Kousoum needs to understand that if she did build a wall without a permit, which appears to be very likely, she unquestionably violated City regulations and on that basis alone the FOV would have been upheld. It is completely immaterial that the electrical and plumbing inspectors didn't advise Ms. Kousoum about the need for a separate permit for the wall. The electrical and plumbing inspectors were there to inspect electrical and plumbing code compliance, not to advise Ms. Kousoum on Appeal of Finding of Violation Page 2 her duty to comply with other building code regulations. In point of fact, if Ms.Kousoum had a contractor build the wall for her,that contractor should have advised her of the need for a building permit. Once it was established that Ms. Kousoum had built a wall without a building permit, the only remaining issue would be whether there were any mitigating circumstances that justified reducing the fine or eliminating the fine altogether. Given Ms. Kousoum's cooperation with the City in acquiring electrical and plumbing permits, it is fair to conclude that Ms. Kousoum genuinely didn't know she also needed a building permit. Had she then diligently cooperated with the City in acquiring a building permit upon being told of the need for the permit,her fine likely would have been significantly reduced if not eliminated altogether in this appeal. However, the record shows that Ms. Kousoum likely did not cooperate in a reasonable manner to abate her code violation. There were at least a couple times in her work with the City that Ms. Kousoum didn't respond to Ms.Locher's requests for information and/or permits for several months. The most notable lapse was initiated on April 24, 2019. On that date Ms. Locher sent an email to Ms. Kousoum noting that it had been two months since her last correspondence, and nothing had happened. Ms. Locher requested Ms. Kousoum to file for a building permit application by May 9, 2019. Ms. Kousoum's architect gave Ms. Locher a status report that same day and then on May 8, 2019 advised Ms. Locher that he had uploaded plans for a preapplication meeting and was awaiting structural engineering'review. After that May 8, 2019 communication Ms. Locher didn't hear anything more from Ms. Kousoum for almost four months so Ms. Locher filed the FOV four months later on September 4, 2019. Four months of no response is no reasonable cooperation. Ms. Kousoum made a reference during the appeal hearing to a preapplication conference she attended, so it appears she made some progress in securing her building permit. However, if the preapplication conference was the only work she did with the City between Ms. Locher's April 24,2019 letter and the September 4, 2019 FOV', it is unlikely that Ms. Kousoum would have seen much of a fine reduction if any at all had the FOV properly identified what improvements were constructed without a building permit. Although Ms. Kousoum has avoided the fines for the FOV under appeal, she should also be aware that the City can issue more FOVs if she continues to fail to acquire a building permit. Under City code, each day that the wall stands without a permit is a separate violation. If the City does choose to issue a properly written FOV for another day of violation, Ms. Kousoum will have a very difficult time justifying any reduction in fines given that the amount of time she's had to take care of the situation. For this reason, Ms. Kousoum is highly encouraged to acquire a building permit as quickly as possible to avoid another FOV. SUMMARY OF HEARING TESTIMONY Note: This summary is solely provided for the convenience of the reader,for 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 1 The Examiner is aware that Ms. Kousoum may have actually been diligently working with building permit staff to acquire her building permit. However,Ms.Kousoum was given the opportunity to provide more information on her efforts to cooperate with the City at the appeal hearing and declined to do so. Given Ms.Kousoum's reluctance to provide any further information and the fact that more likely than not Ms.Locher was conferring with building department staff on Ms.Kousoum's progress, it is reasonable to conclude from the administrative record of this appeal that Ms.Kousoum was not diligently working with the City in abating her code violation. Appeal of Finding of Violation Page 3 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, Renton Code Compliance Officer, spoke on behalf of the city. She noted that Ms. Kousoum's home is on a septic system. The City originally understood that she was adding a bedroom to her home and this would require septic approval. Later she clarified that she was just adding a bathroom to her house. There were delays in communication due to not having a correct mailing address. She then came in with a contractor to figure out how to hook up to sewer and abandon the septic design. As they went through November 2018 the application materials to hook up to sewer were never submitted so in December 21, 2018 Ms. Locher issued a Finding of Violation for $250. She dismissed that due to problems with the mailings. On 2/5/19 Ms. Kousoum filed a King County Operations Monitoring Report for her septic system. The only time that would be required is if Ms. Kousoum were to add bedrooms and Mr. Kousoum said she wasn't adding bedrooms. By September 24, 2019 Ms. Kousoum still hadn't filed an application for a sewer hook up or a building permit. After a year, the situation hasn't been resolved. Permit techs had advised Ms. Locher that the septic was failing, which is what started the City's involvement. The City isn't sure what she's building, it appears she converting the garage into living space with a bedroom. The City knows that work has been done because she had an electrical permit subject to inspection and from that inspection it was determined she needed a building permit as well. Ms. Kousoum noted she's spent$18,000 on work for the house. She started out just building a bathroom in the garage. Before the Finding of Violation she was just going to build a bathroom and she now wants to build an ADU. The City is saying her septic is failing but it's not failing. Ms. Locher confirmed that if Ms. Kousoum is adding an ADU she has to either connect to sewer or get King County approval for expanded use of septic. She would also need a building permit to put up walls if she was just constructing a bathroom. Ms. Kousoum noted that the first three inspectors had not said she needed a permit. Ms. Locher said that the first three inspectors were reviewing the project for their area of review and were not there to determine if a building permit was necessary. If there was no failing septic and/or added bathroom,the only incorrect part of the Finding of Violation was the corrective action requiring a hook up to septic. Before issuance of the Finding of Violation, Ms. Kousoum was obtaining an electrical permit. The electrical inspections were passed each time. She also had a plumbing permit and passed all plumbing inspections as well. She was building walls for the bathroom. Only the last, fourth inspector said she needed a building permit for the walls. Ms. Locher noted that the plumbing inspector only reviews for plumbing and that the electrical inspector only reviews for electrical work. Ms. Locher noted she told Ms. Kousoum she needed a building permit six months ago. Appeal of Finding of Violation Page 4 Ms. Kousoum noted she's-passed pre-application. Ms. Locher noted that was six months ago. Ms. Kousoum noted that she had to have surveys done that take six months, she also needs structural engineering and geotechnical review. When Ms. Kousoum got the Finding of Violation2 she hired an architect and that's when she decided to construct the ADU. The examiner asked Ms. Locher if she needs to talk to building permit staff to find out if she's been making reasonable process on her ADU application. Ms.Locher said that the problem with Ms. Kousoum is that she hasn't been updating the City on her progress. She hasn't been responding to Ms. Locher's requests for her status on resolving the code violations. Ms. Kousoum says the engineers are very busy and she keeps emailing them all the time to push them along. Everyone involved in construction is very busy and it's difficult to get anyone to work. Ms. Locher noted that an ADU permit should not take six months. Ms. Kousoum responded that the City asked her to work on a lot of issues, such as putting in asphalt to expand the driveway to 20 feet, cutting down trees and talking to the neighbors. Ms. Kousoum stated that her electrical and plumbing permits identified she was just working on a bathroom initially. Ms. Locher stated that her communications with Ms. Kousoum were mostly emails as opposed to phone calls and they were mostly with Ms. Kousoum's designer. Ms. Kousoum said she always responded to Ms. Locher's contacts, but it takes time to get her professionals to respond. EXHIBITS The following exhibits were admitted during the October 15, 2019 hearing: 1. Scheduling letter 2. Finding of Violation 3. Code compliance narrative 4. 2/17(19?)/19 email from Ms. Kousoum 5. 3/27(2)/19 email from Locher to Kousoum; 6. 4/24/19 email from Ms. Locher; 7. 2/17/19 email from Kousoum to Locher; 8. 2/18/19 email from Locher to Kousoum; 9. 3/27/19 email from Locher to Kousoum; 10. 5/13/19 email from Locher to Rich (chain). 11. Plumbing and electrical permits 2 It appears that Ms.Kousoum meant to say she hired an architect when she got the correction notice from the fourth inspector in October,2018,not the Finding of Violation in September,2019. Appeal of Finding of Violation Page 5 FINDINGS OF FACT 1. Appellant. Sonya Kousoum owns the property subject to the appeal and is the Appellant. . 2. Property. The subject property is located at 8031 S 130th St., Seattle, WA 98178-4942 3. Finding of Violation. A Finding of Violation("FOV")was issued to Mr. Kousoum on September 4,2019. The FOV asserts that Ms.Kousoum failed to acquire a building permit. The FOV doesn't identify what Ms. Kousoum constructed without a building permit. At hearing, Ms. Locher, the City's code enforcement officer, testified that the improvement was a wall(s). The wall was not identified in any documentation provided by the City. The corrective action in the FOV was limited to requiring health department approval of a septic system or a sewer system connection. 4. Appeal. Ms. Kousoum mailed her appeal on September 14, 2019 and it was received by the City on September 16, 2016. 5. Chronology: 10/1/18: Building Inspector Phil Hudgens issued a correction notice to obtain a building permit for work within Ms. Kousoum's garage. Ms. Kousoum was in the process of acquiring plumbing and electrical permits for construction of a bathroom. From hearing testimony, it appears the unauthorized work was for walls built to enclose a bathroom. Ms. Kousoum states that her only objective at that time was to build a bathroom. She had no intention to build an accessory dwelling unit or any bedrooms. In response, Ms. Kousoum went to City hall with a contractor to identify what needed to be done. She planned on abandoning her septic system and hooking up to sewer.This action would only be required if her existing septic system was failing or she planned on adding bedrooms. If necessary, the action was required prior to filing the required building permit. October 9, 2018: Rich Melchior, Ms. Kousoum's architect, went to City Hall to discuss permits. He wanted to let code compliance know that work stopped on the house until the permit was issued. December 21, 2018: No activity on property so Ms. Locher sends a $250 Finding of Violation. Ms.Locher subsequently dismisses the Notice because the mailing came back"Return to Sender." February 5, 2019: Sometime prior to 2/5/19 Ms. Kousoum submitted a King County Operation/Performance Report for her septic system to Ms. Locher.Ms.Locher sent a letter to Ms. Kousoum dated February 5,2019 thanking her for the Report but noting that the Report still didn't identify any additional bedrooms were being approved. Ms.Locher's letter required County health department approval and a building permit for the work done without building permits due by Appeal of Finding of Violation Page 6 2/20/19. The Report found no problems with the septic system3. February 17,2019: Ms. Kousoum responded by email dated 2/17/19. In that letter she identified that she was not adding any bedrooms, but at the same time wrote "[a]s you know I have an architect working on designing a dwelling family unit instead of a toilet in a shop." During the hearing,Ms. Kousoum stated that she changed her plans to include the addition of bedrooms once she received the violation letter, which the examiner and Ms. Locher understood to mean the Finding of Violation under appeal, which wasn't issued until almost seven months later, on September 4,2019. It appears that Ms.Kousoum may have meant she changed her plans to include a bedroom upon receiving the October 1,2018 correction notice from Mr.Hudgens. Ms.Kousoum also noted that she didn't want to have to get County health department approval for septic because she was going to connect to sewer. February 18, 2019: Ms. Locher emailed Ms. Kousoum to let her know that the City was not requiring a sewer connection and that this would only be required if the septic system is failing or the Health Department refused to approve new construction for the septic system. March 27,2019: Ms.Locher emailed Ms.Kousoum to let her know that to date no paperwork had been received regarding her sewer connection and that the connection was necessary prior to approving'any building permits. She noted that no building permit had been filed either. Ms. Locher asked for status on these issues and stated that the items must be taken care of without further delay. April 24, 2019: Ms. Locher emailed Ms. Kousoum and noted that it had been two months since her last correspondence,noting there still had been nothing filed for a sewer hook-up. Ms. Locher requested that Ms. Kousoum identify if she planned on sewer or septic. She also noted that no building plans had yet been submitted and that the plans must be submitted by May 9, 2019. Rich Melchior responded to Ms. Locher by email on the same day stating that the current septic system was in good order,that building plans for an ADU addition were completed and were with a structural engineer and that once that review was done the plans would be filed. Mr. Melchior asked how to schedule a preliminary review meeting for the building permit. Ms. Locher responded by email the same day on how to schedule a preapplication meeting. May 8, 2019: Rich Melchior notes that he has uploaded building plans and submitted a request for a pre-application meeting and that Ms.Kousoum is still waiting for the completion of structural engineering review. September 4, 2019: Ms. Locher issues a Finding of Violation issued for failure to acquire a building permit. 3 The Report and Ms.Locher's 2/5/19 letter were not admitted into evidence as exhibits,but since the FOV was dismissed its contents can be evaluated without prejudice to either party in order to provide more accurate advice to Ms.Kousoum as to the consequences of a continued failure to acquire a building permit. Appeal of Finding of Violation Page 7 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. Code Violation: The code violation identified in Finding of Fact No. 3 is quoted below and applied to this appeal via a corresponding conclusion of law. RMC 4-5-060(E)(111: 105.1 Required. Any owner or owner's authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by the Construction Codes and the Construction Administrative Code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit. FOV Dismissed for Failure to Identify Code Violation or Unauthorized Improvement. Case law is clear that penalty orders such as FOVs must be specific about the asserted violations, about the government's authority, and about the requirements it imposes. Miller v. City of Sammamish, Mun. Corp.,No.78528- 1-I, p. 14 (Wash. Ct. App. Aug. 19, 2019). The FOV of this appeal fails to identify what part of the code is violated. More important, it also doesn't identify the factual basis of the code violation, i.e. the FOV identifies that Ms.Kousoum constructed something without a building permit,but doesn't identify what she constructed without a building permit. The failure of the FOV to identify the code and factual basis of her violation deprived Ms. Kousoum of a fair opportunity to defend herself under due process as required by the Miller case. Either Ms. Kousoum is a good actress or she clearly had no idea why the FOV was issued against her. It took repeated questioning from the examiner before it was finally revealed that the basis of the FOV was construction of a wall. The bases of a code violation should never be so well hidden from a property owner. As required by Miller,the FOV is dismissed for failure to properly identify the code and factual basis of the violation. DECISION The FOV of this case is dismissed for failure to identify the code and factual basis of violation for the reasons identified in Conclusion of Law No. 2 above. DATED this 4th day of November, 2019. Pht A.Olbrechts Hearing Examiner Appeal of Finding of Violation Page 8 NOTICE OF RIGHT TO APPEAL 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.