HomeMy WebLinkAbout2023 - Hearing Examiner's Decision - Amy Clancy-Cox / Juan K Valdivia - 20231205000677Instrument Number: 20231205000677 Docun'ontzCRocz$212.50 Pugo1of10
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Electronically Recorded King County, WA
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City of Tukwila — City Clerk
6200 Southcenter Boulevard
Tukwila, WA 98122
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Instrument Number: 20231205000677 Document:C Rec: S212.50 Page -2 of 10
Record Date:12/5/2023 4:21 PM King County, WA
BEFORE THE HEARING EXAMINER OF
TUKWILA
FINAL DECISION -- APPEAL OF FINDING OF VIOLATION AND ORDER
FILE NUMBER: CE21-0147
SITE OF VIOLATION: 12834 34th Ave S
Tukwila, WA
PROPERTY OWNER:
Juan Valdivia
120 124th St SW, #F4
Everett, WA 98204
Amy Valdivia
310 E 33rd Ave.
Eugene, OR 97405
REVIEW AUTHORITY: City of Tukwila
TYPE OF CASE: Appeal of Notice of Violation and Order
DISPOSITION: Alleged violations No. 1-5 sustained; alleged violation
No. 6 reversed. Deadlines for corrective action for
Violations No. 1-5 extended four months.
INTRODUCTION
Amy Clancy -Cox & Juan Valdivia appeal a Second Amended Notice of Violation and
Order ("NOV"), dated July 11, 2023, CE21-0147, alleging six violations of the Tukwila
Municipal Code. Five of the six alleged violations are found to have been committed. The
City did not meet its burden of proof in proving Violation No. 6 of the NOV, alleging that
a vacant home on the violation site was improperly secured.
The Valdivias should recognize that the City's inability to prove Violation No. 6 does not
mean that the home of the violation site is properly secured. The City just didn't have
enough information to make its case that the home was improperly secured on May 3,
2023. Should the City acquire more evidence that the home was not properly secured on
another date, it could issue another Notice of Violation requiring correction. For this reason,
the Valdivias may find it prudent to consult with the City on whether additional measures
need to be taken to secure the home as required by City code.
Code Enforcement Decision --1
Instrument Number: 20231205000677 Document:C Rec: S212.50 Page -3 of 10
Record Date:12/5/2023 4:21 PM King County, WA
As discussed at the hearing, the Valdivias could face significant daily penalties if they fail
to correct the sustained violations of the NOV. Since five of the six violations have been
sustained, if the Valdivias fail to correct by the deadlines set by this decision, they could
face penalties as high as $1,250 per day. This decision extends the correction deadlines of
the NOV, other than those requiring immediate compliance, by four months. The City is in
a very good position to impose the full $1,250 daily penalty given the severity and long-
standing nature of the violations. The Valdivias should act expeditiously to correct the
violations to avoid these penalties.
The Valdivias primary defense to the violations was that the violations were committed by
other persons and/or they were misdirected or ignored by City officials in their attempts to
follow City requirements. It is recognized that the Valdivias made some effort to consult
with City staff on what actions were required to develop the violation site. However, given
that Mr. Valdivia has worked as a contractor for 23 years, it strains belief that he was
unaware that all of the grading and other development activity on his property could be done
without permits. The City's grading and critical area standards are not any more strict than
those found in any other city or county in Washington State. The City's tree standards are
also common in western Washington.
In any event, any misdirection or lack of cooperation from the City does not serve as a
legally cognizable grounds for waiving City development standards. Further, as owners of
the violation site the Valdivias still had a responsibility to correct on-going violations even if
some were initially committed by other people. Failure to acquire a required permit for a
development activity is generally an on-going daily violation until the permit is acquired or
the violation otherwise corrected.
EXHIBITS
All exhibits identified in the City's October 5, 2023 Witness and Exhibit List were admitted
into the record during the October 5, 2023 hearing. The July 16, 2023 Valdivia Letter of
Appeal was also admitted into the record.
FINDINGS OF FACT
1. Appellant/Violation Site. The violation site is 12834 34th Ave S, Tukwila. The
violation site is comprised of two tax parcels, one with a vacant single family home and the
other isvacant. The Appellants are Amy Clancy -Cox & Juan Valdivia.
2. Notice of Violation. A Second Amended Notice of Violation and Order to Correct,
CE21- 0147 was issued to the Valdivias on July 11, 2023. The NOV alleged six code
violations composed of (1) unpermitted use of right of way, TMC 11.08.040; (2)
unpermitted grading, TMC 16.54.040;
(3) unpermitted tree removal, TMC 18.54.030; (4) unpermitted clearing, TMC 18.45.070;
(5) unauthorized use, TMC 18.10.020; and (6) unsecured vacant building, TMC 8.28.030.
3. Appeal. The Valdivias filed an appeal of the NOV on July 16, 2023.
Code Enforcement Decision --2
Instrument Number: 20231205000677 Document:C Rec: S212.50 Page -4 of 10
Record Date:12/5/2023 4:21 PM King County, WA
3. Hearing. A virtual hearing on the appeal was held on October 16, 2023 at 1:00 pm,
Zoom. ID No. 279 057 498 538. A computer-generated transcript of the hearing is provided.
as Appendix
A. The transcript only serves to provide a general overview of hearing testimony. The
transcript has errors in transcription inherent in the limitations of the transcription
programming.
4. Violation No. 1 Unpermitted Use of Right of Way. City staff established that on
Mary 3, 2023 a gate and contractor storage yard occupied City right of way and also that
unauthorized grading and tree removal had been previously conducted on that right of way.
Code Enforcement Officer Toole testified that he personally observed the unauthorized use
and work referenced above on Mary 3, 2023 on the right of way of 34th Ave. S. He also
testified that the right of way to Tukwila International Boulevard was also used for grading
and storage. Officer Toole researched the City's permit tracking system and did not find any
permit for the gate, grading or tree removal activities.
Hearing exhibits corroborate Mr. Toole's observations. Exhibit 15 shows that the right of
way width for 34th Ave. S. is 60 feet wide and for Tukwila International Boulevard the
right of way is 60-65 feet. Mr. Toole testified that the centerline of 34th Ave S runs in the
center of this right of way width. Exhibit 8 and 12 photographs show the gate placed over
the asphalt road of 34th Ave. S as well as tree removal, storage, grading and placement of
ecology blocks within the 34th Ave S. and Tukwila International Boulevard right of way.
Officer Toole testified that the gate depicted in Exhibit 12 is the gate he observed on May
3, 2023.
The Valdivias do not contest the facts alleged by the City. Mr. Valdivia testified that the
fence was put up before they purchased the property. In their appeal they identify that the
gate has been up for five years without issue and that they tried to get the proper permit
from the planning department but planning staff were not able to help them.
5. Violation No. 2 Unpermitted Excavation and Grading. City staff established that
unpermitted grading existed at the violation site on May 3, 2023.
Code Enforcement Officer Toole testified and wrote in the NOV that on May 3, 2023 he
observed that areas to the north, west and south of the vacant home of the violation site had
been cleared of vegetation and trees and covered in gravel. He noted that the north side of
the house had been filled with soil and that a large amount of soil had been deposited on.
the west side of the home. Ecology blocks had been placed on the north side of the property
and backfilled to create a parking area. The south side of the property has also been filled
with soil and gravel to level with the west side of the house. He also observed about 12
ecology blocks along the base of Tukwila International Boulevard, which were also
supporting a large amount of fill.
Mr. Toole's observations are corroborated by the photos of Ex. 1.2. Those photos start with.
Code Enforcement Decision --3
Instrument Number: 20231205000677 Document:C Rec: S212.50 Page -5 of 10
Record Date:12/5/2023 4:21 PM King County, WA
a September, 2016 photo with no grading or ecology blocks, with large trees growing on
eitherside of 34th Ave. Subsequent photographs depict a dramatic change in grade and
removal of vegetation to the current condition of the violation site. Mr. Toole researched
the City's permitting system and did not find any grading permits authorizing this grading
activity.
Mr. Ronda, a city project manager, added to the testimony of Mr. Toole. He testified that
some raised soil used to support adjoining Tukwila International Boulevard had been
removed. In Mr. Ronda's opinion as a project manager with decades of engineering
experience, the removal of the soil undermined the stability of the concrete wall supporting
the Boulevard.
In their appeal the Valdivias state they discussed the retaining walls (presumably the
ecology blocks) with City staff in 2020 and were lead to believe that the walls were exempt
from permitting requirements.
6. Violation No. 3 Unpermitted Tree Removal. City staff established that ten or more
trees with a diameter at breast height (dbh) greater than 6" had been removed from the
violation site as of May 3, 2023.
Code Enforcement Officer Toole testified that on Mary 3, 2023 he observed the area
between violation site of the home and Tukwila International Boulevard cleared of all trees
greater than 4" dbh. According to the NOV he found numerous trees with dbh greater than
18" in that area in a 2018 Real Estate photograph, Google Street View and King County
Assessor's localscape/Analytics beginning in 2016-2022. The King County Assessor's
Localscape / Analytics (July 8, 2017, May 9, 2019, April 14,2021) show trees have been
removed on the south, east, and north sides of the house as well. At hearing Officer Toole
estimated that about 10 significant trees (dbh greater than 6") had been removed from the
violation site.
In their appeal the Valdivias identify that they acquired approval of tree removal for their
property in 2019. A copy of the decision is attached to their appeal. The decision authorizes
the removal of one live tree and two dead trees. Mr. Toole notes that the tree permit was
never final because the Valdivias never requested a final inspection to establish that they
had replanted trees as required by the permit. Mr. Toole testified that more than three trees
were removed and that the tree removal permit did not authorize trees to be removed from
the critical area buffer or right of way. He testified that it appeared that at least ten trees
qualifying as significant had been removed from the violation site. Mr. Valdivia testified
that he only removed one big tree and a couple dangerous trees as authorized by the tree
permit. He further testified that about three other trees fell on their own.
On balance, the substantial and preponderance of evidence establishes that at least ten trees
over six inch diameter at breast height were removed from the project site. Even if the tree
permit did authorize removal of three significant trees, at least seven others were removed
without such a permit. IExhibit 12 makes it fairly clear that a large number of trees with dbh
exceeding 6 inches have been removed from the property since at 2016. The Exhibit 12
Code Enforcement Decision --4
Instrument Number: 20231205000677 Document:C Rec: S212.50 Page -6 of 10
Record Date:12/5/2023 4:21 PM King County, WA
2016 and 2018 street level pictures show several trees with dbh that more likely than not
exceed six inches. This is further confirmed by the July 7, 2017 aerial photograph in
Exhibit 15, which show numerous tall trees between the home of the violation site and
Tukwila Boulevard. All of those trees in that area were removed as shown in the April 27,
2023 photograph of Exhibit 15. Given the exhibits and the experienced opinions of Mr.
Toole, it is determined that at least ten significant trees have been removed from the
violation site since 2016 without a tree permit as observed by Mr. Toole.
7. Violation No. 4 Unpermitted Work in Critical Areal. City staff established that on
May 10, 2023 the violation site exhibited unauthorized tree removal, grading and storage of
construction materials within 80 feet of Riverton Creek.
Code Enforcement Officer Toole testified that he personally observed the site conditions
identified above. Officer Toole found no permit authorizing the work and storage in the
City's permit tracking system.
Exhibits 11 and 14 depict the approximate location of Riverton Creek. A May 10, 2023
aerial photograph in Exhibit 11 shows the storage of a large amount of construction
materials within close proximity to the stream location depicted in the stream maps of Ex.
14. Eric Pritchard, a City project inspector, testified that he had walked the project site in
2019. Mr. Pritchard verified that a stream runs through the violation site. He took pictures
of the stream on his site visit, admitted as Ex. 23. Although the stream location is
approximate, it is clear from the Ex. 11 and 14 pictures that tree removal and storage of
construction materials has occurred within 80 feet of the stream.
Heidi Watters, the City's environmental specialist, testified that the City's stream mapping,
apparently used for the NOV, is out of date and that the stream is actually a Type F stream
with a 100 foot buffer as opposed to a Type Np stream with an 80 foot buffer.
Ms. Watters also testified that she had witnessed some clearing within the stream buffer by
a couple men. She took a picture of the incident on March 22, 2022, admitted as Ex. 22.
Ms. Watter's actual observance of clearing activities on March 22, 2022 corroborates Mr.
Toole's May 10, 2023 observation that the stream buffer had been subject to unpermitted
clearing activities. In Ms. Watter's opinion as an environmental specialist for the City for
2.5 years, she found the clearing activity to be within the critical areas buffer of the stream
at the violation site.
In their written appeal the Valdivias state that the activities within the buffer were
undertaken by the prior owners and neighbors.
8. Violation No. 5 Unauthorized Use. On May 3, 2023, the violation site was used to
store a portable power station, rolls of artificial turf, scaffolding, four (4) inch drainpipe,
portable toilet, detachable auger bits that could be used by a tractor, fuel tank for equipment
(skid steer) sitting on the ground, two excavators, single axle dump truck, pick-up truck
without a bed, pickup truck with a dump bed, a flatbed tow truck, small flatbed trailer to be
pulled by a pickup, and a large flatbed trailer to be pulled by a dump truck.
Code Enforcement Decision --5
Instrument Number: 20231205000677 Document:C Rec: S212.50 Page -7 of 10
Record Date:12/5/2023 4:21 PM King County, WA
The May 3, 2023 observations were identified in the NOV, which was not presented under
oath and which was not even signed by Officer Toole. Officer Toole also did not re -iterate
those observation during his hearing testimony. Nonetheless, his observations as written in
the NOV are found credible due to Exhibit 8 photographs showing similar types of storage
on September 6, 2023 at the violation site and the fact that the Valdivias did not dispute his
observations.
1"Critical area" is synonymous with "environmentally sensitive area." For this case, the critical area buffer is
the buffer to Riverton Creek.
In their appeal the Valdivias acknowledge that they have used the violation site for storage
of trucks, bikes, lounge chairs, RV, etc. They stated they couldn't store anything on the
vacant lot adjoining the lot with the vacant home and they have complied with that
directive.
9. Violation No. 6 Unsecured Vacant Building. On May 3, 2023, a vacant home was
located on the violation site. Mr. Valdivia confirmed at hearing that the home was vacant in
2023. On that date Code Enforcement Officer Toole observed the home with boarded
windows, missing siding, detached gutters and facia boards separating from the roof.
Officer Toole testified that although the windows were boarded, he can't tell if they were
boarded correctly with the thickness of plywood required by the International Property
Maintenance Code. It's unclear from the record whether or not the doors of the home have
been boarded. Officer Toole did not identify whether or not the doors were boarded in the
NOV or in his testimony.
CONCLUSIONS OF LAW
1. Authority of Examiner: The Hearing Examiner has the authority and jurisdiction to
review and issue final decisions on appeals of NOVs as provided in TMC 8.45.110.
2. Code Violations: The NOV of this case is based upon six alleged code violations,
which are quoted below in italics and assessed in corresponding conclusions of law.
Violation No. 1 Unpermitted Right of Way Work -- TMC 11.08.040A: It is unlawful for
any person, except the Department or its agent, to perform work of any kind in the right-of-
way, or to make private use of any right-of-way without obtaining a right-of-way use
permit pursuant to this chapter.
3. Violation Sustained. The Valdivias, as owners of the violation site, are found to
have violated TMC 11.08.040A by failing to acquire a right of way use permit for work
performed within City right of way. More specifically, as determined in Finding of Fact No.
4, a gate, storage, tree removal and grading were installed, placed and/or conducted within
the 30th Ave S. right of way without having acquired right of way use permit for those
activities or abated the unauthorized work as of May 3, 20232.
Violation No. 2 Unpermitted Grading -- TMC 16.54.050A: A permit is required all
Code Enforcement Decision --6
Instrument Number: 20231205000677 Document:C Rec: S212.50 Page -8 of 10
Record Date:12/5/2023 4:21 PM King County, WA
grading activities occurring within the City limits, except the Ibilowing:
4. Violation Sustained. The Valdivias, as owners of the violation site, are found to
have violated TMC 16.54.050A on May 3, 2023 for not having acquired a grading permit
or abated the unauthorized work by that date for unauthorized grading as determined in
Finding of Fact No. 5.
Violation No. 3 Unpermitted Tree Removal -- TMC 18.54.030A1: A Tree Permit is
required prior to work within the Critical Root Zone of any Significant, Exceptional or
Heritage Tree or
2 TMC 8.22.150A5 provides that every day of noncompliance comprises a separate violation. Consequently,
each day that a responsible party fails to acquire a required development permit for unauthorized work or
removed the unauthorized work is construed as a separate violation. The days of violation addressed in this
Decision are the May 3, 2023 and May 10, 2023 violation observation dates identified in the NOV.
prior to the removal or destruction of any of these trees within the City, unless the action is
exempt from this chapter.
5. Violation sustained. TMC 18.06.775 defines a significant tree as trees with a
diameter at breast height exceeding six inches. The Valdivias, as owners of the violation
site, are found to have violated TMC 18.54.030A1 on May 3, 2023 because as of that date
they had not acquired a tree removal permit or abated the unauthorized removal for at least
seven significant trees as determined in Finding of Fact No. 6.
Violation No. 4 Unpermitted Work in Critical Area -- TMC 18.45.070B: Permitted
Activities Subject to Administrative Review. The following uses may be permitted only after
administrative review and approval of a Type 2 Special Permission application by the
Director:
4. Enhancement or other mitigation including landscaping with native plants that requires
heavy equipment...
6. Violation sustained. The Valdivias, as owners of the violation site, are found to
have violated TMC 18.45.070B on May 3, 2023 by failing by that date to acquire a Type 2
permit to mitigate the impacts of unauthorized activities in the stream buffer as identified in
Finding of Fact No. 7, which according to the NOV necessitates heavy equipment.
It should be noted that the NOV citation to TMC 18.45.070B is a fairly indirect way of
providing notice that unauthorized activities have occurred in critical area buffers. TMC
18.45.07013 doesn't prohibit the activities conducted at the violation site but only applies to
the mitigation required to correct the violation. Nonetheless, TMC 18.45.070 as a whole
(not limited to subsection B) can be reasonably construed as implying that activities not
expressly permitted within critical area buffers are prohibited. There may be other critical
area provisions that identify even more directly that the grading and other activities
conducted at the buffer of the violation site are prohibited. In any event, the NOV
Code Enforcement Decision --7
Instrument Number: 20231205000677 Document:C Rec: S212.50 Page -9 of 10
Record Date:12/5/2023 4:21 PM King County, WA
reference to TMC 18.45.070B, even with its limitation to subsection B, still provides
reasonable notice that the activities identified in Finding of Fact No. 7 are prohibited.
Violation No. 5 Unauthorized Use -- TMC 18.10.020: [contractor yards not allowed in
LDR District]
7. Violation sustained. The Valdivias, as owners of the violation site, are found to
have violated TMC 18.10.020 on May 3, 2023 by using the violation site on that date as a
contractor storage yard. TMC 18.06.172 defines a contractor storage yard as a storage yard
operated by a contractor for storage of large equipment, vehicles or other materials
commonly used in a contractor type of business. As determined in Finding of Fact No. 8,
on May 3, 2023 the violation site was used to store trucks, materials and equipment
commonly used in contractor businesses.
Violation No. 6 Unsecured Vacant Building — TMC 8.28.030A: All vacant buildings,
structures and premises, and all vacant land„Mall be maintained in a clean„s'afe„5.ecure
and sanitary condition as required by the International Property .Maintenance Code.
8. Violation Reversed. The Valdivias are not found to have violated TMC 8.28.030A.
To establish such a violation, the City had the burden of proving that the house at the
violation site was vacant and improperly secured. As outlined in Finding of Fact No. 9, the
City did establish that the home was vacant, but provided no indication of why the house
was not secured as required by TMC 8.28.030A. Mr. Toole testified that the type of
plywood used to board the windows of the home may not have been of proper thickness,
but acknowledged he didn't know how thick the boards were. He didn't identify any other
reason the home should be considered improperly secured.
DECISION
Violations 1-5 of the NOV are found to have been committed and the NOV sustained for
those violations as well as their associated corrective action. The City did not meet its
burden in proving Violation No. 6 and that alleged violation is reversed and no corrective
action required. All compliance dates in the NOV for Violation No. 1-5, other than those
requiring immediate action, are extend four months.
Decision issued October 31, 2023.
AV,
hir A. Oihrechts
Hearing Examiner
Code Enforcement Decision --8
Instrument Number: 20231205000677 Document:C Rec: S212.50 Page -10 of 10
Record Date:12/5/2023 4:21 PM King County, WA
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 --9