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HomeMy WebLinkAboutLam Decision 3 ltr , Denis Law Mayor � _ _ _ _ _ _- . __ _ _ _ City Clerk-Jason A.Seth,CMC November 28, 2017 Mr. Stanley Lam 5210 NE 8th Place Renton, WA 98058 Re: Hearing Examiner's Decision - Code Compliance Violation 3 Code Case No: CODE-17-000469 Dear Mr. Lam: I have attached the Hearing Examiner's Decision dated November 24, 2017, in the above referenced matter. If you have any questions or concerns, please feel free to contact me. Sincerely, Jason A. Seth, CMC City Clerk cc: Hearing Examiner Craig Burnell, Building Official Donna Locher, Code Compliance Inspector Tim Lawless, Code Compliance Inspector Robert Shuey, Code Compliance Inspector 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 DECISION FILE NUMBER: CODE-17-000469 SITE OF VIOLATION: 205 Logan Ave S Renton, WA 98057-2018 PROPERTY OWNER: Hong Zeng c/o Guonan Chen 5210 NE 8th Pl Renton, WA 98059-4699 REVIEW AUTHORITY: City of Renton TYPE OF CASE: Finding of Violation, RMC 4-2-060, prohibited use; RMC 6-1-3, Junk Vehicle; RMC 8-1-4(E), Bulky Waste DISPOSITION: Appeal sustained in part. $100 in fines is assessed for violating RMC 4-2-060, prohibited use (vehicle repair business). No fines are levied for violation of RMC 6-1-3, junk vehicles, and RMC 8-1-4(E), Bulky Waste, due to lack of specificity in Finding of Violation on identity of vehicles bulky waste and junk vehicles in violation. INTRODUCTION Mr. Lam, property manager for the property owner of the site of violation, has appealed a Finding of Violation alleging (1) a use (vehicle repair) prohibited by the City's zoning code, (2) outdoor storage of bulky waste; and (3)junk vehicles. The prohibited use was conducted by a tenant of the site of violation. Mr. Lam has demonstrated some effort in control(ing the actions of his tenant in this regard, but the fines are still levied because this is not the first time that vehicle repair has been an issue. Ex. A shows emails from the City in 2015 referencing Warnings of Violation issued for prohibited auto repair. Tim Lawless testified that in 2016 he had to advise a prior tenant that auto repair isn't allowed. As outlined in RMC 1-3-2(C)(2), a Finding of Violation may be issued against a "violator" for violation of City code provisions. RMC 1-3-2(A)(10) defines "violator" to include owners of property upon which the code violation has occurred. Landlords such as the property owner of this appeal can put provisions in their leases that authorize recoupment for any fines incurred due to actions of the tenant. Reasonable actions to control the actions of a tenant will be considered in mitigation or waiver of fines, but if the prohibited activity is recurring as in this case it is determined that more likely than not that the owner is not undertaking sufficient precautionary measures to prevent additional violations. Code Enforcement Decision-- 1 No fines are imposed for the junk vehicle violations because the Finding of Violation doesn't specifically identify what vehicles are subject to the Finding of Violation. There is little question that several of the vehicles in the pictures submitted by the City on the day of hearing qualify as junk vehicles. However, the Finding of Violation must specifically identify which vehicles the City found in violation so that the Appellant is able to adequately assess whether there is justification for appeal or to request mitigation within the ten-day appeal period. There are innumerable reasons why an Appellant may find it justified to appeal or seek mitigation on the fines for a specific vehicle, such as the vehicle is not on the property, the vehicle was only on blocks for a couple hours, the vehicle was in fact operable etc. Without knowing specifically which vehicles are singled out by the City, the Appellant is unable to ascertain whether there is cause for appeal and/or mitigation and is not given a reasonable opportunity to prepare for an appeal. The junk vehicle is distinguishable from the Appellants fence code violation that was addressed in a prior hearing, where even though there were no pictures or specific description of the fence subject to the Finding of Violation, there was no question as to what fence was subject to the fine. The bulky waste violation alleged in the Finding of Violation suffers from he same lack of specificity as the junk vehicle allegation. To exacerbate matters, it's highly unclear if anything on the property qualifies as solid waste except for some five-gallon drums used to store dirt from an on-going construction project on the site of violation. A barbecue and a chair identified as bulky waste during the hearing appear to be items actively used by the tenant of the premises. Due to lack of specificity in the Finding of Violation, no fines are levied for the bulky waste violation. TESTIMONY Tim Lawless, Renton Code Enforcement Officer, summarized the violations. In response to examiner questions, Mr. Lawless identified that he determined the property had junk vehicles because the junk vehicle definition includes vehicles that are inoperable. He noted that vehicles on the site of violation are clearly inoperable because one or more are on jacks, are missing a while, don't have license plates, are missing lights and have flat tires. Mr. Lam testified he advised the tenant that the property couldn't be used for vehicle repair, but could be used for storage. He wasn't aware vehicle repair was going on until "now." He noted he represents the owner. Mr. Lam inquired why the owner as opposed to the tenant is being cited for the zoning violations, since the tenant is the one who is violating the zoning laws. Mr. Lam noted he is in the process of evicting the tenant. He noted it's not possible to immediately evict a tenant upon being advised of code violations. Mr. Lam noted that the City has not responded to his inquiries or that of the tenant on how to comply. In response to examiner questions, Mr. Lam responded he is the property manager of the owner. Mr. Lam also noted the Finding of Violation didn't include any photograph. He couldn't tell from the Finding of Violation what vehicles qualified as junk vehicles. He first received photographs the day of the appeal hearing. Mr. Lawless had never responded to his phone calls inquiring about what vehicles are in violation. Mr. Lam asked what vehicles are in violation. Mr. Lawless identified that the vehicle on blocks in Ex. H 2 and 3 qualifies as a junk vehicle. The vehicle next to it, closest to the street in the Code Enforcement Decision--2 second picture of Ex. H, has no license plate in the rear. Ex. I, second picture, shows another vehicle on jacks, four from the building. There's a vehicle next to it with no headlights. Mr. Lam argued that Findings of Violation should be accompanied with photographs so that the property owner can ascertain what vehicles need to be removed. Mr. Lam noted that in another code enforcement action he received pictures with the Finding of Violation and from that was able to determine what was in violation. He submitted Ex. Q as an example. Mr. Lam he had the same problem with the bulky waste charge. Mr. Lam asserted he couldn't tell from the Finding of Violation what qualified as bulky waste. Without pictures of the waste, he can't tel( what qualifies as bulky waste. In response to cross examiner from Mr. Lam, Mr. Lawless responded the bulky waste is composed of [inaudible), five-gallon drums, a barbecue, and furniture. In response to questions from the examiner, Mr. Lawless identified that in Ex. D1 and 2, there are drums shown with junk on top. EI and 2 shows the same object still outside. E2 shows a barbecue and chair. Mr. Lawless didn't know if the barbecue was in use. Mr. Lam noted that the tenant is using the outdoor barbecue every day at night. He's seen them using it. In response to examiner questions, Mr. Lam noted he started the eviction process in the beginning of October. Mr. Lam tried working with the tenant to come into compliance with City code before starting the eviction process. He noted there are four barrels on the property and they are used for a plumbing repair project in the parking lot shown in Ex. F4. The barrels are used for storing dirt for the project. The barrels have been there since August, 2017. In response to yuestions from Mr. Lawless, Mr. Lam responded that his home address is the same as the address used for the owner. Mr. Lawless stated that he always responds to inquiries from property owners and Mr. Lam is the first person to claim to the contrary. Mr. Lawless noted that Mr. Lam had another tenant in the same building a year ago and he had to advise the tenant that auto repair isn't allowed. That tenant left. There's been plenty of time and advance notice to ascertain that auto repair isn't allowed. Mr. Lam stated he advised the current tenant that auto repair was not allowed before they occupied the building. EXHIBITS The documents identified in the City's Exhibit List, identified as Exhibits A-P, was admitted during the hearing. The Finding of Violation for 000441 was admitted during the hearing as Ex. Q. An email from Mr. Lam to Cynthia Moya, dated October 24, 2017 was admitted post-hearing as Ex. R. FINDINGS OF FACT 1. Violation Site. The violation site is located at 205 Logan Ave S, Renton, WA 98057- 2018. The property is owned by Hong Zeng c/o Guonan Chen, 5210 NE 8th Pl, Renton, WA. 2. Finding of Violation. A Finding of Violation ("FOV")dated October 9, 2017 was mailed to Mr. Zeng on September 28, 2017. The FOV alleges violations of RMC 4-2-060, prohibited use; RMC 6-1-3,Junk Vehicle; RMC 8-1-4(E), Bulky Waste. Code Enforcement Decision-- 3 3. Prohibited Use. It is uncontested that a current tenant of the site of violation was using the property for a vehicle repair business. Mr. Lam is in the process of evicting the tenant for operating the business. Mr. Lam initiated the eviction process on October 6, 2017 after receiving a Warning of Violation from the City, dated August 17, 2017. See Ex. C. Mr. Lam had also been warned of the code violation by email dated June 23, 2015 that the business was prohibited in the applicable zoning district. See Ex. A. Mr. Lawless testified that in 2016 he had advised a prior tenant that auto repair was not allowed at the site of violation. 4. Hearin . A hearing on the subject appeal was held on October 24, 2017. The hearing was left open until October 25, 2017 for Mr. Lam to provide documentation on his efforts to evict the tenant. CONCLUSIONS OF LAW 1. Authori� of Examiner: The Hearing Examiner has the authority and jurisdiction to review code violation as provided in RMC 1-3-2. 2. Zonin . The property is zoned CD. 3. RMC 4-2-060 Violation. The property owner has violated RMC 4-2-060. As noted in the Introduction section of this decision, property owners are responsible for the actions of their tenants. As determined in Finding of Fact No. 3, a tenant of the site of violation operated a vehicle repair business on September 28, 2017 as alleged in the subject Finding of Violation. RMC 4-2-060L prohibits automobile service and repair in the CD zone. Since the site of violation is in the CD zone, it was in violation of RMC 4-2-060 on September 28,2017. 4. No Violations for Junk Vehicle and Bulkv Waste. No violation is found for the alleged junk vehicle and bulky waste violations because the Finding of Violation does not specifically identify what vehicles and items on the property qualify as junk vehicles and bulky waste respectively. There is very little case law addressing the degree of clarity necessary for code enforcement notices. In Washington, apparently the only court opinion that addresses the issue for local civil violations is Bass Partnership v. King County, 79 Wn. App. 276 (1995). Bass involved the appeal of a Notice and Order issued from the King County Department of Development and Environment Services requiring a property owner to apply for permits for portable mini- warehouses or to remove them. The notice informed the property owner that he had failed to obtain "the required permit(s) and inspection approvals", citing §§ 21.34, 21.68 and 16.04 of the King County Code, and § 301 of the Uniform Building Code. On judicial appeal, the property owner claimed that the Notice and Order didn't sufficiently apprise him of the County's allegations. In its analysis,the Court of Appeals noted that Procedural due process requires notice that is `reasonably calculated under the circumstances to apprise affected parties of the pending action and to afford them an opportunity to present their objections. ' Code Enforcement Decision--4 79 Wn. App. at 282. Applying this standard, the Court determined that proper notice had been provided to the property owner. The Court noted that the cited code sections identified the required permits in plain terms and that the property owner "plainly understood that the Counry wanted him to obtain a building permit." Id. The standard applied by the Bass court is like the due process standard applied to criminal charging documents under the "essential elements rule," which requires that a charging document allege facts supporting every element of the offense, in addition to adequately identifying the crime charged. See Bothell v. Kaiser, 152 Wn. App. 466, 471 (2011). The primary purpose of the "essential elements rule" is to give notice to an accused so a defense can be prepared. City ofAuburn v. Brooke, 119 Wn.2d 623 (1992). Although, of course, criminal complaints are distinguishable from civil notices due to the differences in punishment, it is also important to recognize that a significant consideration in any procedural due process assessment is how much of a burden a particular safeguard may place on the government. See Post v. Tacoma, 167 Wn.2d 300, 312 (2009). Given that the burden in requiring clarity and specificity in civil notices is not significant, it is likely that a court will not find much cause to expect less clarity and specificity in a civil notice than that which would be required in a criminal complaint or citation under the `'essential elements rule." For the reasons identified in the Introduction section of this decision, the Finding of Violation under appeal does not provide sufficient notice under due process to apprise the Appellant what vehicles and items on his property violate junk vehicle and bulky waste regulations. DECISION The appeal is sustained in part. $100 in fines is assessed for violating RMC 4-2-060, prohibited use (vehicle repair business). No fines are levied for violation of RMC 6-1-3,junk vehicles, and RMC 8-1-4(E), Bulky Waste, due to lack of specificity in Finding of Violation on identity of vehicles bulky waste and junk vehicles in violation. Decision issued on the 24t"day of November, 2017. /��0�6�a.c�� Phil Olbrechts, Hearing Examiner Code Enforcement Decision--5