Loading...
HomeMy WebLinkAboutHEX Decision - code violation -- De RenCode Enforcement Decision - 1 BEFORE THE HEARING EXAMINER OF RENTON DECISION FILE NUMBER: FOV#: CODE20-000483 VIOLATION SITE ADDRESS: 1824 NE 20th St. Renton, WA 98056 PROPERTY OWNER: Fu De Ren 1431 W 52nd Ave Vancouver, WA 98055-6300 REVIEW AUTHORITY: City of Renton TYPE OF CASE: Appeal of October 6, 2021 Finding of Violation – Outdoor Storage (No. 1), Garbage (No. 2); Excess Parking (No. 3); Business License (No. 4) and Commercial Vehicles (No. 5). RULING: Four of the five alleged violations are sustained for a total of $1,000 in fines. The fines are suspended pending execution of a compliance agreement and successful implementation of the agreement. SUMMARY Mr. De Ren has filed an appeal of a Finding of Violation (FOV) issued against him on October 6, 2021. The FOV alleges five code violations all associated with conducting a disruptive commercial operation located at 1824 NE 20th St., Renton, WA 98056. Mr. De Ren is an owner of the violation site. Four of the five violations are sustained for a total fine of $1,000. The fine is suspended pending execution of a compliance agreement and successful implementation of the agreement. Mr. De Ren did not contest that any of the violations occurred. Rather, he didn’t believe that he should be held responsible for the violations because they were caused by his tenants. According to Mr. De Ren’s representative at the hearing, the lease with the tenants is for residential use, not commercial use. However, under Renton regulations Mr. De Ren is responsible for the property violations of his tenants. The City amply demonstrated during the hearing that Mr. De Ren’s tenants use of Mr. De Ren’s property has been highly disruptive to the residential character of the surrounding neighborhood. It cannot be emphasized enough that fines will continue to accrue and escalate until Mr. De Ren finally takes care of the situation. At hearing Mr. Louder, the code enforcement officer handling this appeal, suggested that the hearing may address two FOVs – one issued on October 6, 2021 and another on October 12, 2021. The only Code Enforcement Decision - 2 written appeal and corresponding evidence submitted for the appeal hearing was associated with the October 6, 2021 FOV. This Decision only addresses the October 6, 2021 FOV. If Mr. De Ren did not appeal the October 12, 2021 FOV it is too late to do so now. If he did file a timely appeal, another appeal hearing will have to be held to address that FOV. The evidence at hearing clearly establishes that Mr. De Ren’s tenants are operating a highly disruptive business. These activities are the root cause of all the violations alleged in the FOV. Mr. De Ren appears to believe that some of the FOV violations are parking violations, but they are not. They are property use violations that are not compatible with surrounding residential use. Ironically, the alleged violation most directly related to problems caused by the business operations was not found to apply. The FOV alleges that a home occupation is being conducted at the violation site. However, a home occupation is defined as a business completely operated within a building or garage. The business at issue doesn’t qualify because most of its operations within Renton are conducted in the yards and adjoining street of the violation site. In lieu of being cited with accommodating a home occupation business, a more appropriate citation might have simply been conducting a prohibited commercial use in a residential zone and/or a business without a business license. The fines of this case are suspended because a COVID eviction moratorium deprived Mr. De Ren of the ability to threaten eviction to compel his tenants to cease illegal business operations. The eviction moratorium expired on October 31, 2021. Mr. De Ren will be given a reasonable opportunity to exercise his re-established authority to evict to compel his tenants to cease business operations. The City and Mr. De Ren are required to execute a compliance agreement. If they are unable to agree upon terms, either party may request the Examiner to set those terms. Failure to comply with the terms will result in imposition of the $1,000 fine. HEARING A virtual hearing was held on the alleged violations of this case on December 7, 2021. Mr. De Ren chose not to participate in the hearing and had Ms. Xu speak on his behalf. Mr. De Ren was given a link to the recording of the hearing and invited to submit a response by December 9, 2021. Mr. De Ren did not do so. TESTIMONY Kevin Louder, City of Renton Code Enforcement Officer, summarized the violations. He testified that the City first received complaints about the violation site on September 30, 2020. Since that time the activities have increased and the tenants have used the site as their business location. There are large amounts of insulation stored at the site. Every morning there are employees loading and unloading the insulation, creating noise that disturbs the surrounding neighbors. Many additional employees park to work there to work for the tenants. There is an almost weekly delivery of insulation by semi-truck that blocks all of NE 20th Street during unloading. Code compliance has received multiple complaints for the property from people living as far away as Jones Ave. NE and Aberdeen Ave. NE. The area and number of people affected by the activities on the property is extensive. The violations continue despite conversations with the tenants of the site, the manager of Attic Crew and the owner of the property, Mr. De Ren. Most communication with Mr. De Ren is via email, Ex. 7. Mr. De Ren is recorded as one of the owners of the violation site with the King Code Enforcement Decision - 3 County Assessor’s Office. Mr. Louder testified that the FOV under appeal was issued for violations on the property on October 5, 2021. On that date, Jason Churchill observed eight vehicles parked in or around the property , a pile of garbage bags in the driveway area, a ladder stored in the driveway area, two commercial vehicles, and insulation stored in the garage. These observations established a home occupation in violation of code. The observations are documented in Exhibit 2. The October 6 FOV is the seventh FOV issued for the property. Another FOV was issued on October 12, 2021 for the same violations. Mr. Churchill testified that he had inspected the property the morning of the hearing at 7:00 am. Ex. 10 are photos of that site visit. The time stamps of the photos are erroneous and an hour ahead. Mr. Churchill witnessed multiple commercial vehicles at the violation site, two pallets of material, workers going out to their vehicles being very loud joking with one another. Mr. Churchill was parked a block away and still heard them. Mr. Louder noted that the photographs just show one or two box trucks at the site and that code enforcement staff have seen up to six such vehicles at the site. There are no signs of improvement. Mr. Louder noted that the Attic Crew manager has told him two or three times that they are moving the Renton operations to a commercial property and it has yet to happen. Ms. Xu confirmed that Mr. De Ren did not wish to participate in the hearing and that he wanted Ms. Xu to express his explanation for the situation. Ms. Xu stated that Mr. De Ren had only leased the property for employee use, not commercial use. There are commercial vehicles because of COVID. The employees’ work has been cut and they cannot afford to use their personal vehicles to do their work. Mr. De Ren has no problem with the City ticketing the tenants. He doesn’t believe that he should be ticketed. There’s nothing he can do except get rid of the tenants, but there are COVID restrictions against eviction. The lease was not for commercial use, just living. Mr. Louder noted that the parking violations in the FOV are not police department citations, but rather zoning violations for which both the tenant and owner (Mr. De Ren) are responsible. He noted that his objective is not to have the tenants evicted, that is up to Mr. De Ren. Mr. Louder just wants to see the code violations stop. The Hearing Examiner advised Ms. Xu that a recording of the video and audio will be posted at the City’s website. The City Clerk agreed to send a link of the recording to Mr. De Ren for any written response he wanted to make. EXHIBITS The nine exhibits of the City’s Exhibit List were entered into the record during the hearing. In addition, three photographs emailed by Mr. Louder to the parties on the day of hearing were entered as Exhibit 10. Note that Page 2 of the Code Compliance narrative was missing from the exhibits distributed to the Examiner. FINDINGS OF FACT 1. Violation Site. The violation site is located at 1824 NE 20th St., Renton, WA 98056. According to King County Assessor records and a statutory warranty deed, Ex. 9, Mr. De Ren is Code Enforcement Decision - 4 one of the property owners. Mr. De Ren’s representative at hearing did not deny his ownership of the site and testified that Mr. De Ren had executed a lease with the tenants of the site. 2. Code Compliance History. The City has been in contact with Mr. De Ren on several occasions. The City first started getting complaints of the project site on September 30, 2020. Mr. De Ren was sent a Warning of Violation for the home occupation violations on October 6, 2020. In all, the City has issued five FOVs for the same type of violations at the violation site in the past year. FOVs were also issued against Mr. De Ren for the same type of violations on February 16, 2021, April 13, 2021, June 8, 2021, June 23, 2021 and June 24, 2021. See Ex. 6. Mr. Louder testified that another FOV had been issued against Mr. De Ren on October 12, 2021 as well. The City has also communicated at least seven times to Mr. De Ren by email as shown in the emails collected in Ex. 7. 3. October 6, 2021 FOV. The October 6, 2021 FOV alleges five code violations that were found on the property on October 5, 2021: Outdoor Storage (No. 1), Garbage (No. 2); Excess Parking (No. 3); Business License (No. 4) and Commercial Vehicles (No. 5). The findings below (4-8) regarding each violation are based upon photographs and observations made at the violation site on October 5, 2021 for the October 6, 2021 FOV. 4. Outdoor Storage (Violation No. 1). A ladder, insulation hoses and other items were stored on the front and side yards of the project site. The FOV identifies that all these items were observed by a code compliance officer. These observations were confirmed by the testimony of Mr. Louder during the hearing. The observations and findings of staff on this issue were uncontested by Mr. De Ren. 5. Storage of Garbage/Recyclables (Violation No. 2). Garbage was stored in plastic bags on the driveway outside of garbage cans. The FOV identifies that these items were observed by a code compliance officer. These observations were confirmed by the testimony of Mr. Louder during the hearing. These observations are also confirmed by the photographs of Exhibit 2. The observations and findings of staff on this issue were uncontested by Mr. De Ren. 6. Excess Parking (Violation No. 3). Eight vehicles were parked at the violation site. The FOV identifies that these vehicles were observed by a code compliance officer. Mr. Louder testified that the officer saw eight vehicles parked at the project site on the date of violation. These observations are also confirmed by the photographs of Exhibit 2. The observations and findings of staff on this issue were uncontested by Mr. De Ren. It’s somewhat unclear from the photographs if the excess vehicles would be considered parked in an area that would qualify as publicly available on-street parking. Taking judicial notice of King County property records1, it is clear that the driveway to the violation site is accessed via the panhandle of an adjoining panhandle lot. The panhandle connects the driveway to NE 20th. . It’s not entirely clear if the street frontage of the violation site on NE 20th would be considered an area available to the public for on-street parking. One of the photographs in Ex. 5 shows that the frontage is a 1 Readily available publicly recorded property records the authenticity of which cannot be reasonably disputed have been held appropriately subject to judicial notice. See Jackson v. Quality Loan Serv. Corp., 186 Wash. App. 838 (2015). In this case, judicial notice is only taken of King County assessor maps available on -line at the King County Assessor’s site to the extent that the records show the adjoining lot to the east is a panhandle lot and the violation’s site is connected to the panhandle. Code Enforcement Decision - 5 lawn area of the violation site. As a lawn area, the public would not find it appropriate to park their vehicles on this part of the violation site. It is determined that this portion of the violation site is not used by the public for on-street parking. The Ex. 2 photographs are determined to depict five passenger vehicles parked on the lawn area of the violation site fronting NE 20th and three vehicles along the panhandle frontage. The composition of barrier posts reveals the location of the frontages. The photos show that the posts located by the violation site driveway, along the panhandle, do not have lanterns on top. The posts along NE 20 th do have lanterns on top. The five excess vehicles in the Ex. 2 photos are parked along posts with lanterns and are therefore located on the NE 20th frontage. The three other vehicles are depicted on the driveway, which is on the panhandle frontage of the violation site. 7. Home Occupation (Violation No. 4). Commercial activities were conducted at the violation site. The FOV identifies that a code enforcement observed multiple commercial vehicles with the AtticCrew business designation on the side of the vehicle, construction materials stored outside and insulation stored in the garage. Mr. Louder testified that the violation site is used as a gathering place for AtticCrew employees who park their personal vehicles, load up insulation into the commercial vehicles and depart for work. City records show no business license for any business to be conducted at the violation site. The observations and findings of staff on this issue were uncontested by Mr. De Ren. 8. Parking Commercial Vehicles (Violation No. 5). More than one commercial vehicle was parked on the adjoining panhandle lot. The FOV identifies that a code enforcement observed more than one commercial vehicle at “this location.” More precisely, the trucks are located on the panhandle of the adjoining lot identified in FOF No. 6. The Ex. 2 photograph showing the front of a truck clearly establishes the truck across the panhandle from the driveway. That truck, therefore, is located on the panhandle lot. The Ex. 2 picture showing the back of a truck also appears to depict a truck located on the panhandle, given that the extensive vegetation located to the left of the truck is consistent with that only found in the panhandle area. The two trucks depicted in the Ex.2 photographs do not appear to be the same truck, since the truck facing the camera is facing NE 20th as established by the posts on the other side of the panhandle and the photo depicting the back of a truck is facing away from NE 20th since NE 20th is not visible in the photo. The Ex. 2 photos show that the two trucks are over nine feet in height. 9. Mitigating Circumstances. According to emails by Mr. De Ren, Ex. 7, Mr. De Ren was residing outside the United States when most if not all these violations occurred. Mr. De Ren believes that eviction restrictions prevented him from taking action against his tenants for violation property use regulations. Ms. Xu also testified at hearing that AtticCrew employees had to use commercial vehicles because they weren’t getting enough work during the pandemic to afford to use their own personal vehicles to drive to a commercial site. CONCLUSIONS OF LAW 1. Authority of Examiner: The Hearing Examiner has the authority and to review and rule upon appeals of Findings of Violation as provided in RMC 1-3-2. 2. Landlord Responsibility. Under City regulations, a landlord can be held responsible for property use violations committed by her or his tenants. RMC 1-3-2C2 authorizes a code compliance inspector to issue a finding of violation against a “violator.” A “violator” is defined by RMC 1-3-2B10 to include both tenants responsible for violations and the owner of the property. 3. Code Violation: The code violations identified in Finding of Fact No. 3 are quoted below and applied to this appeal via corresponding conclusions of law. Code Enforcement Decision - 6 Violation One – 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… 308.4 Emergency access: Outdoor storage areas shall not prevent emergency access to the residential structure or any other building. 308.5 Business related storage: Materials stored outdoors on residentially zoned properties shall not be owned by or used in any business or industry including a home occupation business. 308.6 Height limitations: Materials stored outdoors on residentially zoned properties shall be neatly stacked and not exceed a height of six feet (6'). Tarps may not be utilized for cover outdoor storage. 4. Violation No. 1 is sustained. The violation site is zoned R4, which qualifies it as “residentially zoned property” pursuant to section 308.1 of the regulation quoted above. Section 308.3 prohibits outdoor storage in front and side yards. As determined in FOF No. 3 and 4, on October 5, 2021 Mr. De Ren’s violation site was used for outdoor storage in its front and side yards on October 5, 2021. Violation Two – Unlawful Storge of Garbage and Recyclables – RMC 8-1-4C It shall be unlawful for any person to deposit, throw, dump, store, maintain, retain, keep or place garbage, recyclables or yard waste on private or public real property in the City, except in a garbage can or unit, recycling bin or yard waste cart for the purpose of storing such garbage, recyclables or yard waste until the next regular collection date by the City’s collection contractor or any other person authorized by the City to collect garbage or recyclables. This subsection shall not apply to yard waste in compost piles or receptacles so long as they are properly maintained free of all vectors and any odors traveling off-premises. Further, this subsection shall not apply to any business licensed to collect and store garbage and recyclables when done in an area zoned for the collection or disposal of garbage or recyclables. Code Enforcement Decision - 7 5. Violation No. 2 is sustained. As determined in FOF No. 3 and 5, on October 6, 2021 Mr. De Ren’s violation site was used for outdoor storage of garbage that was not stored in garbage cans. Violation Three – Maximum Number of Vehicles per Lot – RMC 4-4-085D4 A maximum of four (4) vehicles, not including motorcycle or mopeds, may be parked on a lot unless vehicles in excess of the allowed number are kept within an enclosed building. Additional vehicles may be allowed if: a. More than four( 4) licensed drivers reside at the same address, an additional motor vehicle for each licensed driver over four( 4) may be parked at that particular address, provided that each licensed driver and said vehicle are registered to the same address; or b. An Additional Vehicles Permit is obtained (see RMC 4- 9- 105). 6. Violation No. 3 is sustained. As determined in FOF No. 3 and 6, on October 6, 2021 eight vehicles were parked at the lot of Mr. De Ren’s violation site. As noted in FOF No. 6, five of the eight vehicles are parked along the violation site frontage of NE 20th. It was important to find in FOF No. 6 that the frontage was not used as publicly accessible on- street parking. Vehicles that qualify as parked for on-street parking should not be construed as violating RMC 4-4-085D4. Real property abutting right of way generally extends to the centerline of the right of way, since right of way is usually conveyed as an easement with the abutting owner retaining a fee interest in the underlying property. See, e.g. Holmquist v. King Cnty., 328 P.3d 1000, 1004 (2014), Rowe v. James, 71 Wash. 267 (1912). Consequently, vehicles parked on improved road shoulders designed for that purpose would still technically be located on the lot of the abutting property owner. Property owners with extensive road frontage abutting areas used for on-street parking will continuously have more than five vehicles on their lot. The City Council clearly did not intend to fine property owners because the public is legally parking on the shoulder of their frontage road. As determined in FOF No. 6, even if the right of way extends past the im proved portion of the road (as it usually does), the NE 20th road frontage of the violation site is not used for public on-street parking. As such, the five vehicles depicted in the Ex. 2 photographs are located on the violation “lot” for purposes of RMC 4-4-085D4. Violation Four – City Business License Required – RMC 4-9-090E A business license must be obtained from the City Finance Department. 4-9-090A. Home Occupation Definition: Any commercial use conducted entirely within a dwelling or garage and carried on by persons residing in that dwelling unit which is clearly incidental and secondary to the use of the dwelling as a residence. 7. Violation No. 4 is reversed. As identified in the definition above, a home occupation must be conducted “entirely” within a dwelling or garage. Although as noted in Finding of Fact No. 7 Code Enforcement Decision - 8 some insulation is stored within the garage of the violation site, most of the business activities observed by code enforcement officers was conducted outside, e.g. unloading of insulation, parking of commercial and employee vehicles and presumably, insulation work at job sites. There is nothing in the record to suggest that the inside of the home at the violation site is used for anything other than storage of insulation. Violation Five – Commercial Vehicles -- RMC 4-4-085E No more than one commercial vehicle shall park or otherwise be stored on any lot in any residential zone except as allowed through an additional vehicles permit; provided, that no semi-trucks, semi- cabs, or tractor trailers shall be permitted. The following vehicles shall be exempt from this subsection: 1. A vehicle that is being actively loaded or unloaded; or 2. A vehicle that is being used for the exclusive purpose of providing active and permitted construction or other hired services with the permission of the owner of the property at that location including, but not limited to, construction, carpentry, plumbing, landscaping, and moving services. RMC 4-4-085C1 Commercial Vehicle: Any motor vehicle that does not meet the definition of “recreational vehicle,” as defined herein, and (a) exceeds nine feet (9') in height measured from the ground to the highest part of the vehicle or frame-mounted cargo attachment, (b) has a cargo area, truck bed, or frame that extends more than nine feet (9') behind the vehicle’s passenger cab or seating area, (c) has a curb weight of more than ten thousand (10,000) pounds, or (d) can accommodate eight (8) or more persons not including the driver. … RMC 4-4-085C4 Recreational Vehicle: A vehicle, with or without motive power, capable of human habitation or camping purposes and/or used for sporting, recreation, or social activities including but not limited to trailers, motor coaches, motor homes, fifth-wheels, campers, camper shells, camper trailers, snowmobiles and snowmobile trailers, boats and boat trailers, all-terrain vehicles and all- terrain vehicle trailers, and utility trailers. 8. Violation No. 5 is sustained. As determined in Findings of Fact No. 3 and 8, two trucks over 9 feet in height were parked on the panhandle lot adjoining the violation site on October 5, 2021. 9. Mitigating Circumstances. RMC 1-3-2E(3)(f) grants the examiner discretion on the amount of fines imposed by a Finding of Violation. As asserted by Mr. De Ren, Governor Inslee’s eviction moratorium has certainly made it more difficult for Mr. De Ren to control the actions of this tenants. Governor Inslee first imposed an eviction moratorium by issuance of Proclamation 20-19 on March 18, 2020. This moratorium was modified and extended through October 30, 2021, at which point it expired as identified in Proclamation 21-09.1. The moratorium prohibited evictions and lease terminations for any reason unless an affidavit was attached to the eviction/termination documents attesting that eviction/termination was necessary to respond to a significant and immediate risk to the health, safety, or property of others created by the resident. Although the code violations of Mr. De Ren’s tenants have been highly disruptive to their neighbors, it may still be difficult to justify eviction as necessary to prevent a significant and immediate risk to health, safety or property. From the Ex. 7 email communications Mr. De Ren indicated he would at least try to speak to the Code Enforcement Decision - 9 tenants about the violations. If he in fact followed through on this assurance there is not much more he could have done to control their behavior. It is also recognized that Mr. De Ren was outside the United States when many of these violations occurred, which would have further hindered his ability to resolve the situation. The violation date for the FOV under appeal is October 5, 2021, which happened while the eviction moratorium was still in effect. Given Mr. De Ren’s limited ability to abate the on-going violations on his property, it would be unfair to levy the fines against him without giving him an opportunity to correct them now that the moratorium is no longer in effect. The fines will be suspended pending execution of a compliance agreement between Mr. De Ren and the City. Failure to comply with the deadlines set in the agreement shall result in imposition of the $1,000 fines sustained by this Decision. If the parties are unable to reach agreement, either party may request the Examiner to set the terms. DECISION Violation No. 1-3 and 5 of the October 6, 2021 FOV under appeal are sustained. A total of $1,000 in fines is imposed. The fines are suspended pending execution and implementation of a code compliance agreement. Failure to comply with the terms of the agreement will result in imposition of the $1,000 in fines. The Examiner will retain jurisdiction to set terms for a compliance agreement if the parties are unable to agree. Either party may request the Examiner to set terms if agreement cannot be reached. Decision issued December 20, 2021. 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.