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HomeMy WebLinkAbout2024 - Appeal of Notice of Violation and Order - Nikolas Lowell Knutson-Bradac - 20241016001039Instrument Number: 20241016001039 Document:C Rec: 5311.50 Page -1 of 9 Record Date:10/16/2024 3:44 PM Electronically Recorded King County, WA Return Address: City of Tukwila — City Clerk 6200 Southcenter Boulevard Tukwila, WA 98122 Please print or type information WASHINGTON STATE RECORDER'S Cover Sheet (RCW 65.04) Document Title(s) (or transactions contained therein): (all areas applicable to your document must be filled in) 1. Hearing Examiner's Final Decision —Appeal of Notice of Violation and Order 3. 4. Reference Number(s) of Documents assigned or released: Additional reference #'s on page of document Grantor(s) Exactly as name(s) appear on document 1. City of Tukwila Additional names on page of document. Grantee(s) Exactly as name(s) appear on document 1. Nikolas Lowell Knutson-Bradac Additional names on page of document. Legal description (abbreviated: i.e. lot, block, plat or section, township, range) BENNETTS INTERURBAN TRS UNREC, PLat Block: Plat Lot: 39 Additional legal is on pageof document. Assessor's Property Tax Parcel/Account Number Assessor Tax # not yet assigned. 0733000205 The Auditor/Recorder will rely on the information provided on this form. The staff will not read the document to verify the accuracy or completeness of the indexing information provided herein. "I am signing below and paying an additional $50 recording fee (as provided in RCW 36.18.010 and referred to as an emergency nonstandard document), because this document does not meet margin and formatting requirements. Furthermore, I hereby understand that the recording process may cover up or otherwise obscure some part of the text of the original document as a result of this request." Signature of Requesting Party Note to submitter: Do not sign above nor pay additional $50 fee if the document meets margin/formatting requirements Instrument Number: 20241016001039 Document:C Rec: $311.50 Page -2 of 9 Record Date:10/16/2024 3:44 PM King County, WA BEFORE THE HEARING EXAMINER OF TUKWILA FINAL DECISION -- APPEAL OF FINDING OF VIOLATION AND ORDER FILE NUMBER: SITE OF VIOLATION PROPERTY OWNER: REVIEW AUTHORITY TYPE OF CASE: DISPOSITION: CE22-0177 3 818 S 116th St Nikolas Lowell Knutson-Bradac 3 818 S 116th St Tukwila, WA 98168 City of Tukwila Appeal of Notice of Violation and Order Alleged violations No. 1 and 2 sustained OVERVIEW Nikolas Knutson-Bradac appeals a Tukwila Notice of Violation and Order dated January 19, 2023. The two violations alleged in the NOV are not contested by Mr. Knutson-Bradac. Rather he contests the manner in which the NOV was initiated and pursued by the City. The two violations are sustained. At the outset, Mr. Nelson-Bradac should recognize that from a purely legal standpoint the City had no responsibility to explain the NOV to him. It was even debatable whether prior Requests for Compliancei were required. Mr. O'Toole had no legal responsibility to respond to any of Mr. Nelson-Bradac's emails. From a legal standpoint, the NOV was perfectly clear as to what violations had occurred and the required corrective action. It is certainly understandable that a layperson would have many questions about what needs to be done once receiving a document like the NOV. Those questions could have been easily answered by a one-hour consultation with a private municipal attorney. Without required building permit ' Tukwila Municipal Code 8.45.050D provides that "[n]othing in this section prohibits the Code Enforcement Officer from immediately issuing a civil infraction, Notice of Violation and Order or taking other enforcement action without first issuing a Request for Compliance, when the circumstances warrant more expeditious correction or when the person(s) responsible is a repeat of z Assistance from building permit staff likely was necessary to help Mr. Knutson-Bradac through the procedural technicalities of filing a complete building permit application. Mr. O'Toole encouraged Mr. Knutson-Bradac to Code Enforcement Decision -- 1 Instrument Number: 20241016001039 Document:C Rec: $311.50 Page -3 of 9 Record Date:10/16/2024 3:44 PM King County, WA review, the remodel to Mr. Knutson-Bradac's home is potentially a significant fire hazard that could jeopardize the lives of first responders and the lives and properties of surrounding home owners. One could even argue that taxpayer money shouldn't have to be spent on the staff time expended to help Mr. Knutson-Bradac abate the nuisance that his property poses to the surrounding community. Mr. Knutson-Bradac is certainly well justified at being frustrated for being held responsible for the actions taken by the previous property owner. The City is arguably in part responsible for that situation for not recording the February 13, 2018 Notice of Violation on the subject property prior to Mr. Knutson-Bradac's purchase of the property3. However, the primary and ultimate party responsible for placing Mr. Knutson-Bradac in this very unfortunate situation is the prior owner. Mr. Knutson-Bradac's understandable frustration should be directed at the prior owner, who apparently failed to disclose the subject property's code compliance problems. The City has just been doing what it must to protect the community from extensive home remodels that haven't been subject to building permit review. Of course, just because the bare legal minimum doesn't require the type of assistance sought by Mr. Knutson-Bradac doesn't mean that a City should leave code enforcement defendants fending for themselves. Most if not all cities and counties provide the type of customer service sought by Mr. Nelson-Bradac. Tukwila is no exception. Mr. O'Toole did in fact provide numerous detailed responses to Mr. Nelson-Bradac's questions. He quickly extended compliance deadlines with an Amended Request for Compliance when Mr. Nelson-Bradac requested more time. However, he did not contemporaneously give some clarification on the allegations as requested by Mr. Nelson- Bradac. Mr. O'Toole also assured Mr. Nelson-Bradac that he would get back to him on some next steps after talking to the community development director. Instead, Mr. O'Toole served Mr. Knutson-Bradac with the NOV. That is not perfect customer service. Likely Mr. O'Toole could have done better if Mr. Nelson-Bradac were his only code enforcement defendant, but of course he has other work to do. More difficult to justify is the fact that Mr. Nelson-Bradac received notice of the code violations and did nothing for almost four years. Mr. O'Toole gave notice of the code violations with his hand -delivered November 30, 2018 "Welcome to Tukwila" letter. Mr. Nelson-Bradac did nothing before finally responding to a Request for Compliance in December 9, 2022. Mr. Nelson-Bradac testified that he didn't take the November 30, 2018 letter too seriously because it concerned the actions of the former owner. However, the letter was very clear that the City still expected Mr. Nelson-Bradac to abate the violations. The letter identified a pending building permit application from the prior owner "that will require your immediate attention." As previously noted, the letter consult with the building official in his November 30, 2018 letter to Mr. Knutson-Bradac. Mr. O'Toole even included the business card of the building official to initiate that process. There is no evidence in the record to show that Mr. Knutson-Bradac attempted to contact the building official for that purpose. s State law and the Tukwila Municipal Code do not require and/or place a duty upon the City to record Notices of Violation. However, without making such a recording the 2018 Notice of Violation likely was not binding upon subsequent purchasers. That is presumably why the City issued a second Notice of Violation against Mr. Knutson- Bradac. The failure to record the 2018 Notice of Violation prior to the Nelson-Bradac purchase has no bearing upon the validity of the NOV currently under appeal. Code Enforcement Decision -- 2 Instrument Number: 20241016001039 Document:C Rec: $311.50 Page -4 of 9 Record Date:10/16/2024 3:44 PM King County, WA even gave Mr. Nelson-Bradac contact information for the building official to commence work on the building permit. In short, Mr. O'Toole was too busy to be on top of every request for information; Mr. Nelson- Bradac was too beset with personal misfortune to deal with what to him was a confusing code enforcement action. The parties did the best they could. Mr. Nelson-Bradac's code violation must still be abated. Finally, a core issue of understandable importance to Mr. Nelson-Bradac is why he's being held accountable for code enforcement violations committed by a prior owner. As repeatedly pointed out by Mr. O'Toole to Mr. Nelson-Bradac, that is because Mr. Nelson-Bradac qualifies as "maintaining" the violation by failing to abate it. TMC 8.45.020131 provides that it is unlawful 'for any person to ... maintain... the use of any structure... without first obtaining the permits ... required for the use." A building permit was required for the home remodel and a shoreline permit for the shoreline stairs. Mr. Nelson-Bradac "maintained" the use of those structures by both owning and using those structures without the required permits. Holding subsequent purchasers for the violations of prior owners is both necessary and arguably fair. Potentially hazardous properties such as the Nelson-Bradac home do not become safe by virtue of a change in ownership. The City must still address the situation to protect the community. The only other alternative would be for taxpayers to bear the cost of abating such nuisances. That is not historically how Washington cities and counties have allocated the financial burden of that type of abatement. It is also arguably a fair allocation since persons such as Mr. Nelson-Bradac likely have a cause of action against the initial responsible owner if that owner failed to disclose the code violation during sale. EXHIBITS The following exhibits were admitted during the appeal hearing on the NOV: The following exhibits as numbered from the City's May 8, 2024 Witness/Exhibit list and subsequent rebuttal witness/exhibit list were admitted during the May 15, 2024 hearing: Ex. 1-8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 29. All five numbered exhibits in the May 8, 2024 Knutson-Bradac exhibit list were admitted during the continued June 24, 2024 hearing date. Exhibits from the City are prefaced with "C" and those from Appellant with "A" in this decision. FINDINGS OF FACT 1. Appellant/Violation Site. The violation site is at 3 818 S 116th St, Tukwila. The Appellant and subject property owner is Nikolas Knutson-Bradac. The subject property is developed with a Code Enforcement Decision -- 3 Instrument Number: 20241016001039 Document:C Rec: $311.50 Page -5 of 9 Record Date:10/16/2024 3:44 PM King County, WA single-family home. The property is bounded to the north by the Duwamish River and the south by S. 116'h St. 2. Notice of Violation. The NOV under appeal was dated January 19, 2023 and was issued by Code Enforcement Officer Jim Toole. The NOV asserts two code violations: (1) failure to acquire building permit for remodel of single-family home; and (2) failure to acquire a shoreline conditional use permit for constructing stairs within the residential shoreline designation. 3. Appeal. Mr. Knutson-Bradac filed the subject appeal of the NOV on February 5, 2023. Mr. Knutson-Bradac does not contest whether the violations alleged in the NOV have been committed Rather he expressed concerns with how he had been treated by code enforcement personnel, the feasibility of required corrective action and the lack of substantiation for the alleged violations. 3. Hearing. A hearing on the appeal on May 15, 2024. The hearing was continued to June 24, 2024. The hearing was left open through July 3, 2024 for the parties to come to agreement on some personnel records Mr. Knutson-Bradac sought to introduce. The parties did not report back on their progress on the issue so the examiner emailed the parties on July 11, 2024 for status. The City and Mr. Knutson-Bradac advised on July 12, 2024 that no additional exhibits would be presented. The hearing record is found closed on July 12, 2024. The testimony presented at the May 15 and June 24 hearings was transcribed electronically and is made available for the convenience of the parties as Appendix A and B. The transcriptions are not admitted as evidence. The transcriptions are only roughly accurate and should just be used as a rough guide to what was said at the hearing. Actual recordings are available from City Hall should an accurate transcription be necessary. Enforcement Chronology. February 13, 2018: Notice and Violation and Order issued against V. Nguyen for the three violations consisting of unauthorized remodel work, unauthorized shoreline stairs and unauthorized tree removal on the subject property. Ex. C10. September 7, 2018: Notice of Assessment for $11,250.00 issued on February 13, 2018 Notice of Violation. September 28, 2018: Second Notice of Assessment issued for $22,500.00 on February 13, 2018 Notice of Violation. Code Compliance Narrative, 4/11/24 p. 4. November 20, 2018: Subject property purchased by Mr. Knutson-Bradac. Att. Alc. November 30, 2018: Letter hand delivered to Mr. Knutson-Bradac advising of the Notice of Violation issued against the former property owner, Ms. Nguyen, on February 13, 2018. The letter noted that Ms. Nguyen had filed a building permit application to correct the building permit violation noted in the February 13, 2018 Notice of Violation. The letter advised that Mr. Knutson- Bradac would have to complete the building permit process and finish the corrections required by the February 13, 2018 Notice of Violation. Accompanying the letter were the February 13, Notice of Violation and correction notices for the pending building permit application. Code Enforcement Decision -- 4 Instrument Number: 20241016001039 Document:C Rec: $311.50 Page -6 of 9 Record Date:10/16/2024 3:44 PM King County, WA February 27, 2019. Building Permit D18-0352 issued for unauthorized remodel work composed of two doors and five windows. No inspections were performed and the permit expired on August 26, 2019. August 8, 20 194 : Notice of Assessments and February 13, 2018 NOV recorded on subject property. Ex. C17, p. 2. August 27, 2019: An August 27, 2019 Request for Compliance was issued to Mr. Knutson-Bradac for the building permit violation alleged in the subject NOV and the February 13, 2018 Notice of Violation. December 9, 2022: Mr. Knutson-Bradac sends an email to Mr. O'Toole stating he had "just received" a request for compliance. He noted that the correction deadlines were 28 days away and he needed more time to take action. He also noted he didn't understand why he was being held responsible for the prior violations or what he was required to do. December 16,2022: An amended Request for Compliance was sent to Mr. Knutson-Bradac for the violations of the subject NOV. The amendment extended the compliance dates to the end of January 2023. The amended Request for Compliance was the first communication from Mr. O'Toole to Mr. Knutson-Bradac's December 9, 2022 email. The amended Request for Compliance required Mr. Knutson-Bradac to either remove the stairs or acquire a shoreline substantial development permit. It also required Mr. Knutson-Bradac to file for a new building permit application for the unauthorized remodel work. December 20, 2022. Email from Mr. Knutson-Bradac to Mr. O'Toole again asking for clarification on the Request for Compliance. Mr. O'Toole provided a detailed response on the same day. He also waived the assessments imposed for the February 13, 2018 Notice of Violation. January 3, 2023: Mr. O'Toole sent an email to Mr. Knutson-Bradac advising that he was scheduling a meeting with the Community Development Director to discuss how to resolve Mr. Knutson-Bradac's case, noting that "I will reach out to you once the meeting is held to discuss what will he required to bring your home and property into compliance." Mr. O'Toole also noted that the correction deadlines of the Request for Compliance should be considered suspended. January 19, 2024: NOV issued. Mr. O'Toole did not otherwise "reach out" as indicated in his January 3, 2023 email. February 5, 2024: Subject appeal filed by Mr. Knutson-Bradac. 5. Violation No. 1 Unauthorized Remodel. City staff established at hearing that the home had been remodeled sometime prior to 2018. As outlined in the NOV itself, Mr. O'Toole used exterior photographs taken between 2014 through 2022 to find that extensive renovations had been 4 The NOV states the 2018 Notice of Violation was recorded on August 8, 2019. This is consistent with the printout of King County recorded documents, Ex. C28, p. 1. Curiously, there was another NOV issued against the prior owner on March 14, 2017. It's unclear what this violation was for. This may explain why Mr. Toole testified that the NOV was recorded prior to the purchase of the property by Mr. Knutson-Bradac, when the 2023 NOV states otherwise. Code Enforcement Decision -- 5 Instrument Number: 20241016001039 Document:C Rec: $311.50 Page -7 of 9 Record Date:10/16/2024 3:44 PM King County, WA made to the home. The photographs were taken from King County Assessor's office Localscape / Analytics: 2015 - 2021, Google Street View: 2014 - 2022, and previous Code Enforcement Officer's photographs: 2016 — 20175. Modifications included work on windows (removal of older windows and reducing/ enlarging the size of the opening for new windows and enclosing window openings), doors (front/ south door was moved from original location to a new location on the front of the house, , single back door is now a French door), roof alterations, and an addition of a large concrete patio on the back/ north side of the house. Redfin real estate listings also showed renovations to windows, doors, siding, removal/ addition of interior walls, electrical, plumbing, mechanical. Mr. O'Toole also found that floor plans from King County Assessor's office shows the kitchen is currently located on the front/ south side of the house and the living room is located on the back/ north side of the house. This data was updated on July 25, 2022. He then compared that information to the Redfin Real Estate listing from 2018 and was able to determine that the kitchen was previously located on the back/ north side of the house and the living room was located on the front/ south side of the house. A real estate video of the interior of the house in 2015, Ex. 29, was shown at hearing by Mr. O'Toole to compare that to floor plans of the home filed in 2018. The differences, found to be the result of unauthorized interior construction, were testified by Mr. O'Toole as follows: Left photo is standing in the area that used to be the kitchen from the south side of the house looking north towards the west wall. And the French doors is in the approximate vicinity of where the single door was. And the two windows that you see in this is the approximal location where the large windows were that you saw in 2015. If you look at the top of this photo on the left, you see what looks like a ridge hanging out of the ceiling. I don't know what better way to explain it. That is where the kitchen wall used to be. And then on the far left side of the left photo is the portion view of the new kitchen, which is on the north side. Therefore it was moved f ^om the north side, excuse me, south side, as you saw in 2015 to now the new location on the north side of the house. The right photo is essentially standing in the new kitchen location looking west to the same door and windows that you see in the left ... The right, the left photo is in the vicinity of the dining room kitchen that you saw in the 2015 photos. As you can see, there's a stairs opening in the back of this photo. That is the stairs that go upstairs. The door, which you can see partly of But in the right photo, that door is the new front door that was closed_ from the door, original front door in the 2015 photos. And the couch is where the kitchen once was. This is 5 Some photographs used by Mr. O'Toole in his assessment of unauthorized work were taken by himself. Some of those photographs, in turn, may have been taken from the interior of Mr. Nelson-Bradac's property, on his driveway at a closed gate blocking the pathway to the front door. Mr. Nelson-Bradac asserts that those photographs should be excluded since they were taken on his property without permission. The hearing examiner does not have authority to rule upon constitutional trespass claims. See Exendine v. City of Sammamish, 127 Wn. App. 574 (2005)("The city council is a legislative body, and it does not have the power to enforce, interpret, or rule on constitutional challenges. The city council cannot delegate [to the hearing examiner] power it does not have."). Even if the photographs are excluded, the remaining evidence is overwhelming, conclusive and uncontested that the unauthorized work testified by Mr. O'Toole occurred. Code Enforcement Decision -- 6 Instrument Number: 20241016001039 Document:C Rec: $311.50 Page -8 of 9 Record Date:10/16/2024 3:44 PM King County, WA the bathroom that I showed a couple of pages ago. The entrance tube hit the back wall of the walk-in shower. That is where the original front door used to be. And then we can see how this whole area is and constructed to what you see here in both photos. As testified by Mr. O'Toole, the relocation of the kitchen wall and other interior modifications likely resulted in changes to electrical and plumbing fixtures, both of which would require permits. Mr. O'Toole testified that no City building permits were issued for the improvements identified above. In response to code enforcement actions taken by the City for the unauthorized work, the prior owner of the home had applied for a building permit, permit D 18-0352 for the installation of two (2) doors and five (5) windows. The permit was issued on February 27, 2019, but no inspections were performed and the permit expired on August 26, 2019. 6. Violation No. 2 Unauthorized Shoreline Steps. City staff established that steps were constructed within City shoreline jurisdiction without a required shoreline conditional use permit. Mr. O'Toole verified that the steps are located in the City's residential shoreline designation as identified in Tukwila iMap. The map identifies the Shoreline Residential - Inside Buffer encumbers the entire backyard (river side) and half of the house. See Ex. C26. The stairs are located on the waterside of the house. By comparing Google Street View pictures of the subject property, Mr. O'Toole determined that the stairs had been constructed sometime between 2014 and 2016. 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 two alleged code violations, which are quoted below in italics and assessed in corresponding conclusions of law. Violation No. 1 IRC 105.1 PERMITS REQUIRED (as adopted by TMC 16.04.020): Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolish, or change the occupancy of 'a building or structure, enlarge, alter, repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by this code, or to cause any such work to be done, shall first make application to the building official and obtain the required permit. 3. Violation Sustained. The alleged violation is sustained. As determined in Finding of Fact No. 5, extensive modifications were made to the subject home without required building permits. Violation No. 2 ENVIRONMENTALLY SENSITIVE AREAS: CONSTRUCTION OF CONCRETE STAIRS DOWN TO THE RIVER: TMC 18.44.030 requires a shoreline conditional use permit for unspecified uses in Figure 18-1. Shoreline stairs are not identified in Figure 18-1. Code Enforcement Decision -- 7 Instrument Number: 20241016001039 Document:C Rec: $311.50 Page -9 of 9 Record Date:10/16/2024 3:44 PM King County, WA 4. Violation Sustained. The alleged violation is sustained. Shoreline stairs are not listed in Figure 18-1 of TMC 18.44.030. As such the property owner must acquire a shoreline conditional use permit for their construction. As determined in Finding of Fact No. 6, shoreline stairs were constructed on the subject property without a shoreline conditional use permit. DECISION Violations land 2 of the NOV are found to have been committed and the NOV sustained for those violations as well as their associated corrective action. It is recognized that Mr. Knutson-Bradac is being held responsible for the actions of a prior owner and that this constitutes a severe financial hardship to him. Given these factors Mr. Knutson-Bradac shall have six months from the date of this decision to file the complete permits required by the NOV and/or remove the stairs. Construction shall be completed within one year of approval of required permits. City staff may require less than a year to make modifications necessary to abate violations that constitute an immediate hazard/threat to public health and safety. Decision issued July 29, 2024. C B �t A G���S ecly m ,..... ............. , . Hearing Examiner NOTICE OF RIGHT TO APPEAL Appeal to Superior Court. An appeal of the decision of the Hearing Examiner must be filed with Superior Court within twenty-one calendar days, as required by the Land Use Petition Act, Chapter 36.70C RCW. Code Enforcement Decision -- 8