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STF0724 HE Decision.pdfrbc 1$()v CITY OF EDMONDS 121 5TH AVENUE NORTH • Edmonds, WA 98024 • (425) 771.0220 • FAX (425) 771-0221 HEARING EXAMINER In the Matter of the Review of the ) Hovde Home Occupation Permit ) authorized at } } 23830-101` Place West, Edmonds } ) NO. STF-2007-24 FINDINGS, CONCLUSIONS, AND DECISION SUMMARY OF DECISION GARY HAAKENSON MAYOR The request to revoke the administratively approved home occupation permit, or to require the Applicant to obtain a home occupation conditional use permit, to operate the approved home occupation in the single-family residence located at 23830 --101" Place West in Edmonds, Washington is DENIED, subject to strict compliance with the home occupation provisions of the Edmonds Community Development Code and the conditions imposed on the existing permit in the record at Exhibit 12. SUMMARY OF RECORD Request: City of Edmonds Code -Enforcement Staff(Staft) requested that the administratively approved home occupation permit of Tim Hovde (Applicant), authorizing the Applicant to operate a construction company as a home occupation in a Single -Family Residential zone at 23830 —101' Place West in Edmonds, Washington, be reviewed for possible revocation, for additional conditions of permit approval, or to require the Applicant to obtain a conditional use permit to authorize continued operation of the home occupation. Hearing Date: The City of Edmonds Hearing Examiner (Examiner) conducted an open record hearing on the request on February 21, 2007, and testimony continued on March 6, 2008. The Examiner conducted a site view prior to the hearing. After due deliberation, on March 20, 2008, the Examiner remanded the matter for an additional six month period of development during which the following actions were required of the parties: a. The City should conduct random site visits to document compliance or lack thereof. b. The Applicant should endeavor to complete construction of the garage. It is not acceptable to indefinitely postpone completion of the garage and then rely on the garage project to explain away construction -related neighbor complaints. c. Regarding the visits of friends or family members borrowing construction supplies, the burden is on the Applicant to conduct his personal affairs in a manner that can be Findings, Conclusions, and Decision City of Fdmondc Hearing Examiner Hovde Home Occupanon Permit Review, No. STF-2007-24 Incorporated August 11, 1890 Sister City - Hekinan, Japan page 1 of 12 distinguished from home occupation activities, such that he can demonstrate compliance with the requirements for retaining permission to operate a home occupation. d. Home occupation activities must occur exclusively indoors, including loading or unloading of equipment or materials. Home occupation activities must not generate noise in excess of that typically associated with a single-family residence. Hours of home occupation operation must respect the residential character of the neighborhood. e. In order to retain permission — granted as an exception to the zoning code — to operate a commercial enterprise from his home, the Applicant is strongly advised to take pains to prevent adverse impacts to surrounding residential uses. The matter was reset for hearing on October 2, 2008, at which time additional documents, testimony, and argument were submitted by the parties. Testimony: At the first open record hearing, held on February 21, and March 6, 2008, the following individuals presented testimony under oath: Mike Thies, City of Edmonds Code Enforcement Officer Tim Hovde, Applicant Ralph Larson Ann Mann Alvin Rutledge Mr. Richard Wurdeman, Attorney, represented the Applicant. At the reconvened hearing on October 2, 2008, the following individuals provided testimony under oath: Mike Thies, City of Edmonds Code Enforcement Officer Duane Bowman, City of Edmonds Development Services Director Tim Hovde, Applicant Alvin Rutledge Mr. Richard Wurdeman, Attorney, continued to represent the Applicant. Exhibits: The following exhibits were admitted in the record as of March 6, 2008: Exhibits submitted by City Staff: 1. Land Use Complaint Form; received June 9, 2004 2. City Correspondence to Applicant, dated June 21, 2004 3. City Correspondence to Applicant, dated July 16, 2004 4. Order to Correct Violation, dated July 26, 2004 5. Correspondence from Applicant, dated July 30, 2004 6. City Correspondence to Applicant, dated August 4, 2004 7. Photograph of subject property, taken August 20, 2004 Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 page 2 of 12 8. City Correspondence to Applicant, dated August 23, 2004 9. Correspondence from Applicant; dated September 1, 2004 10. Correspondence from owner of subject property, dated September 1, 2004 11, City Correspondence to Applicant; dated September 13, 2004 12. Administrative Home Occupation Permit and City business license, dated August 13, 2004 13. City Correspondence to Applicant, dated October 5, 2004 14. Request for Code Enforcement Action form; received by the City June 20, 2005 15. Photograph of subject property, taken June 21, 2005 16. Photograph of subject property, taken June 21; 2005 17. City Correspondence to Applicant, dated June 22, 2005 18. Order to Correct Violation; dated July 5, 2005 .19. Correspondence from Applicant, dated July 7, 2005 20, City Correspondence to Applicant, dated July 13, 2005 21. Revised Order to Correct Violation, dated July 13, 2005 22. Correspondence to City from neighbor, dated August 4, 2005 23. City Correspondence to Applicant, dated September 9, 2005 24, City Correspondence to Relative/Neighbor of Applicant, dated October 28, 2005 25. City Correspondence to Applicant, dated November 29, 2005 26. Correspondence to Development Services Director from Code Enforcement Officer, dated December 1, 2005 27. City Correspondence to Applicant, dated January 18, 2006 28. Correspondence to Development Services from neighbor, dated May 1, 2006 29. Photograph of subject property, taken May 15, 2006 30. Photograph of subject property, taken May 15, 2006 31, City Correspondence to Applicant, dated May 16, 2006 32. City Correspondence to Applicant, dated May 31, 2006 33. Correspondence to Development Services from neighbor, dated October 2, 2006 34. City Correspondence to Applicant, dated October 5, 2006 35. City Correspondence to Applicant, dated October 12, 2006 36. City Correspondence to Applicant, dated November 5, 2007 37, City Correspondence to Applicant, dated November 26; 2007 38. City Correspondence to Applicant, dated December 4, 2007 39, City Correspondence to Applicant, dated December 6, 2007 .40. City Correspondence to Applicant, dated December 10, 2007 41. City Correspondence to Applicant, dated January 18, 2008 . 42. Correspondence to Development Services from neighbor, dated February 5, 2008 43. Code Enforcement Staff Report, dated February 1, 2008, with attachments: 1. Zoning and Vicinity Map 2. Snohomish County records for single-family 3. State Department of Revenue database detail 4. Secretary of State Corporations data 5. State Department of Labor and Industries contractor information 44. McLaren public conunent letter, dated February 16, 2008 45. Memorandum from Jeannine Graf, City of Edmonds Building Official, dated February 26, 2008 Findings, Conclusions, and Decision City ofEdmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 page 3 of 12 46. State of Washington Department of Licensing owner information on license plate number A691385, a 1973 Ford pickup 47. State of Washington Department of Revenue records, printed on February 29, 2008 Exhibits submitted by the Applicant: Al. Job card for building permit 2005.0608, issued July 27, 2005 A2. Receipt for building permit 2005-0608 extension fee, dated. July 25, 2007 A3. Receipt for building permit 2005-0608 extension fee, dated July 19, 2006 A4. Angevine/Jones letter, dated January 7, 2008 A5. City of Edmonds Development Services receipt for plan check fee, dated July 73 2005 Ab. City of Edmonds Construction Permit application for building permit, dated July 7, 2005 A7. Right of way construction permit, issued July 27, 2005 A8. City of Edmonds Development Services receipt for right-of-way permit, dated July 27, 2005 A9. Rental agreement, dated August 31, 2006, with copies of two checks written for rental payments by Bob Hovde Construction Services A10. Thirteen photographs, numbered 1 through 13, taken by Bob Hovde of the subject property approximately one week prior to February 21, 2008 hearing date The following exhibits were admitted in the record on October 2, 2008: Exhibits submitted by City Staff. 48, October 2, 2008 Code Enforcement Staff Report, with attachments: Attachment 1 Letter from Ralph Larson, dated September 9, 2008 Attachment 2 Letter from Ann Mann, dated September 17, 2008, with copies of three photographs Attachment 3 Email from JP Murdoch, dated September 22, 2008 Attachment 4 Letter from Kristine Hovde, faxed to Staff on October 1, 2008 Attachment 5 Letter from Ralph Larson, dated September 24, 3008 Exhibits submitted by the Applicant: Al 1. Letter from Rick Wurdeman, dated September 25, 2008 Al2. Letter from Mike Thies, dated September 29, 2008 A13, Final City inspection job card from Hovde garage (City Form filled out by hand, two pages) A14. Dated list of activities Al 5. Color photographs of current site conditions A16. Email from Monica Angevine, dated September 30, 2008 Upon consideration of the testimony, exhibits, and argument submitted, the Examiner enters the following findings and conclusions: Findings, Conclusions, and Decision City ofEdmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 page 4 of 12 FINDINGS L The March 6, 2008 findings; conclusions; and decision are incorporated in full herein by this reference. All subsequent findings should be read as continuing from Findings 1 through 32 of the March 6, 2006 remand decision. 2. City Code Enforcement Staff (Staff) reported that random inspections of the site were conducted during the six-month remand period; consistent with the March 6; 2008 remand decision. During the remand period, Staff witnessed no violations of either the conditions of the existing home occupation permit or of applicable regulations. Staff noted that Staff ability to observe on-site activities is limited due to the construction of a solid wood fence, which prevents direct views of activities within its boundaries. Exhibit 48, Testimony of Mr. Thies. 3. Building permit #BLD20050608, under which Applicant's garage project was reviewed for compliance with applicable building codes, received final City approval on July 25, 2008, on which date construction of the Applicant's garage was complete. Exhibit 48, Exhibit A13. 4. During the six-month remand period, the City received neighbor letters purporting to detail the Applicant's home occupation activities on-site from Ms. Mann and Mr. Larson, both previous parties of record. An email was submitted from a P. Murdoch, also detailing activities alleged to be related to the home occupation on-site. These neighbors' letters cite such activities as: a white truck (not owned by Applicant or resident family member) parking on the street in front of Applicant's house; the Applicant coming and going from his residence with or without his work trailer; the Applicant parking his work trailer on and in front of his property; the Applicant loading and unloading the work trailer; unloading of construction materials into the garage by the Applicant and non- resident men; construction noise (power tools) late into the night; and a couple of occasions on which the Applicant was assisted by non-residents in loading and/or unloading his work trailer. Exhibit 48, Attachments 1, 2, and 3. Photographs were submitted depicting the Applicant's work trailer attached to his truck parked in the driveway in front of the residence, not inside the gate. Exhibit 48, Attachment 2. 5. The record contains two neighbor letters in support of the home occupation permit. One is from the neighbor whose residence is closest to the Applicant's garage and the area where he parks the work trailer. This neighbor email asserts that the neighbor closest to the garage has never observed the Applicant to use power tools late at night. ExhibitAl6, Angevine email. The other letter supporting retention of the home occupation approval notes, among other items, that the Applicant's house is dark by 9:30 most nights. Exhibit 48, Attachment 4. 6. At the reconvened October 2, 2008 hearing, Staff rescinded its earlier position recommending revocation of the home occupation permit, declining to take a position on revocation. It has been approximately a year since Staff was able to verify any failure on the part of the Applicant to comply with applicable regulations and/or permit approval. Based on neighbor complaints, Code Enforcement Staff recommended that the use be Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 page 5 of 12 required to apply for and comply with conditions established by a home occupation conditional use permit. Staff stated in the written report: Staff position is that if the home occupation can meet the criteria for a home occupation in perpetuity; the business should be allowed to continue. If the business cannot meet the criteria for a home occupation in perpetuity, the business should cease at the site. Staff believes the best solution was and is to apply for a conditional use permit to address the area of concern of the neighbors. The Applicant has stated that some equipment takes more than one person to load. A conditional use permit application could address and condition this physical requirement. Exhibit 48, pages 2-3; Testimony of Mr. Thies, 7. Code Enforcement Staff noted that if in fact non-resident persons are assisting the Applicant in loading and unloading equipment or supplies associated with the operation of his business, such assistance could be a violation of the home occupation provisions. Edmonds Community Development Code (ECDC) sections 20,20.010,A.1 and A:6 require home occupations to be " carried on exclusively by a family member residing in the dwelling unit" (ECDC 20.20. 01 D.A.1) and to exclude "any employees outside of the family members residing at the residence, including but not limited to persons working at or visiting the subject property" (ECDC 20.20. 010.A. 6). ECDC 20.20; Testimony of Mr. Thies. 8. The Applicant testified that the neighbors' comments about activities involving multiple people loading construction material that pre -date final approval of the garage building permit relate to construction of the garage, which he was required to complete by the March 6 Decision. The Applicant explained the other activities noted in neighbor letters as follows: delivery of a trowel machine and a sink to be installed in the garage on March 28, 2008; a friend or relative parking at the house while the Applicant and the friend went hunting on dates in May, June, and July 2008; lending the work trailer to someone else for their use off-site on August 19; 2008; and the Applicant's nephew assisting the Applicant in unloading items off the work trailer while the nephew happened to be visiting. The Applicant testified that some equipment he uses cannot be loaded and unloaded by one person. Exhibit A. 14; Testimony of Mr. Hovde. 9. Duane Bowman, City of Edmonds Development Services Director, appeared at the October 2, 2008 hearing. Reviewing the administratively approved home occupation permit in the record at Exhibit 12, Mr. Bowman indicated that the City Staff handwritten notes on the back of the permit were intended to and do have the force of conditions of administrative permit approval. Testimony of Mr. Bowman; Exhibit 12. 10. Item #4 on the back of the permit states: " Will the home occupation be conducted entirely within structures on the site; without any significant outside activity2" In the space provided, the Applicant indicated that loading and unloading of tools and equipment would occur outside structures on the site. No Staff comments were written Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007 24 page 6 of 12 next to Item #4. Mr. Bowman testified that the lack of conditions added to this statement by the Applicant indicated City approval of outdoor loading and unloading of equipment and tools. Exhibit 12; Testimony of Mr. Bowman: 11. Item 46 on the back of the permit application states: "Will vehicles be used in conjunction with the home occupation? If yes; please list all types; including gross vehicle weight of trucks." In the space provided, the Appliance wrote: "Pick up truck + flat bed 10,000 LBS". Next to the Applicant's statement, City Staff wrote: "off property — moved per Duane Bowman, DS Director", Exhibit 12. 12. As indicated in the record for the first hearing dates, the flat bed truck is not stored on- site. The pick up also serves personal, as opposed to business only, uses. The Applicant also transports equipment and materials on a trailer that he parks on-site. Testimony of Mr. Hovde; Exhibit A 15, d. 13. Item # 12 on the back of the home occupation permit addresses storage of home occupation -related materials at the residence, The Applicant indicated on the form that "shovels and such" would be stored "on side of garage". Written in by City Staff is a condition of permit approval stating: "No materials in conjunction with the home occupation will be stored outside...." Exhibit 12 {emphasis in the original). 14. Mr. Bowman testified that the activities complained of in the neighbor letters in the record do not constitute violations of the conditions of permit approval or of the home occupation code provisions. Mr. Bowman stated that the Applicant is allowed to park his work trailer on his property and to load and unload his trailer outside of the garage. Testimony of Mr. Bowman, 15. The Applicant indicated that he no longer stores concrete forms off-site, but that they are kept on the work trailer parked inside the fence surrounding his yard. The Applicant argued that the fence is a structure for the purpose of the home occupation condition prohibiting outside storage of materials in conjunction with the home occupation. Other equipment and tools used by the business are stored either on-site inside the garage or off-site at a rental storage location. Testimony of Mr. Hovde. 16. The Applicant met with City Staff on September 29, 2008 to discuss the home occupation permit. Among other topics covered, the parties discussed the ramifications of a home occupation conditionad use permit (CUP). The Applicant left that meeting with the understanding that a home occupation CUP would be necessary if he wanted to have employees assist him in the conduct of his home occupation at his residential property. The Applicant stated that he has no employees and that he does not intend to hire any employees, and he added that in his opinion, having employees visit his home occupation would only lead to increased conflicts with the neighbors. Testimony of M: Hovde, 17. Public comment testimony offered at the October 2, 2008 public hearing was limited to Mr. Rutledge's concern over having been left off the parties of record list on page 3 of the September 23, 2008 staff report. Testimony of Mr. Rutledge, Findings, Conclusions, and Decision City of EdmonA Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 page 7 of 12 CONCLUSIONS Jurisdiction: The Hearing Examiner has jurisdiction to hear and decide requests for review of approved hoarse occupation permits pursuant to ECDC 20.100.010.B.7 and 20.100.040. Criteria for Review of Approved Permits: Pursuant to ECDC 20.100.040.A; any permit approved by the City under the Community Development Code may be reviewed under this section if the conditions of the permit are not being met; the requirements of the city code of Edmonds are not being met; or the permitted activity is causing a nuisance or hazardous condition. A permit includes any City approval under the Community Development Code. Pursuant to ECDC 20.100.040.C, the following constitutes the established procedure for review of approved permits: 1. The Director of Community Services shall notify the permittee in writing that the permit is being reviewed, list the alleged deficiencies, and specify a reasonable .time for the permittee to correct the deficiencies. 2. If the permittee could reasonably correct the deficiencies, but fails to do so within the specified time; the director of community services may refer the matter to the city attorney for criminal or civil enforcement of the city code, or the conditions of the permit. 3. If the only reasonable ways to correct the deficiencies are for the permittee to cease the permitted activity, or for the city to impose new or changed conditions on the permit, the director of community services shall refer the matter to the hearing examiner for review. 4. The hearing examiner shall hold a public hearing under ECDC Chapter 20.91 to review the permit or approval, using criteria required for the original permit, and subsection A of this section. S. If the hearing examiner finds that deficiencies exist, and that they can be reasonably corrected by imposing new or changed conditions on the permit, the permit conditions may be changed. The hearing examiner's actions shall be final, unless the original approval required city council approval. In that case, the hearing examiner's action shall be a recommendation to the council to be considered by the council under ECDC 20.100.030. 6. If the hearing examiner finds that the only reasonable way to correct the deficiencies is for the permittee to cease the permitted activity, the hearing examiner may revoke the permit. The hearing examiner's action shall be appealable to the city council under ECDC 20.100.010: Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 page 8 of 12 7. If the permit is revoked, the permit shall be null and void, and all activity allowed by the permit shall cease. Home Occupation Standards: Pursuant to ECDC 20.20.000 Purpose: The purpose of this chapter is to allow residents to carry on home occupations on their property while guaranteeing neighboring residents freedom from excessive noise, excessive traffic, nuisance, fire hazard and other possible potential negative impacts from the maintenance of a commercial use within a residential neighborhood The purpose of this chapter is to permit two types of home use occupations while prohibiting other commercial uses in residential neighborhoods. Commercial enterprises employing only the residents of a structure which are operated entirely within the structure and which require no deliveries or other traffic are intended to be permitted activities. Other occupations such as music teachers, newspaper delivery and other commercial activity which are intended to serve the neighborhood and which promote traffic only within the neighborhood as opposed to attracting traffic to the neighborhood from outside, are also intended to be permitted uses. A home occupation is generally an economic enterprise operated within a dwelling unit, or buildings accessory to the dwelling unit which are incidental and secondary to the residential use of the dwelling unit, including the use of the dwelling unit as a business address in the phone directory or as a post office mailing address. Pursuant to ECDC 20.20.010, Home Occupation: A home occupation may be conducted as a permitted use in any residential zone of the city subject to the following regulations, A. Home occupation shall be a permitted use if it: 1. Is carried on exclusively by a family member residing in the_dwelling unit; and 2. Is conducted entirely within the structures on the site without an si i scant outside activi ;and 3. Uses no heavy equipment, power tools or power sources not common to a residence; and 4. Has no pickup or delivery by business related commercial vehicles (except for the U.S. Mail) which exceeds 20,000 pounds gross vehicle weight; and 5. Creates no noise, dust, glare, vibration, odor, smoke or other impact adverse to a residential area beyond that normally associated with residential use; and b. hoes not include arey employees outside of the frnraily members residing. at the. residence including but not limited to persons Mprlang at or visifft the subject property; and Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 page 9 of 12 7. [Complies with a]11 performance criteria established pursuant to ECDC 17.60.010.' (emphasis added Conclusions Based on Findings: 1: A home occupation is an economic enterprise operated within a dwelling unit, or buildings accessory to the dwelling unit, in a residential zone. The purpose of the City's home occupation provisions is to create an exception to allow commercial uses in residential zoning districts when such commercial uses do not negatively impact the residential uses. Home occupations can be administratively approved only when they can satisfy the criteria from ECC 20.20.010.A (listed in full above), which include being conducted exclusively by residents; exclusively within structures, without significant outside activity; and prohibit any non-resident employees visiting the site. Any home occupation that cannot comply with all seven criteria can only be approved via a conditional use permit process. ECDC 20.20.01 0.,4 and B. In addition to satisfying home occupation criteria for approval, the Applicant's administratively approved home occupation must comply with the conditions of permit approval hand written on the permit in the record at Exhibit 12: Conditions imposed on the approved permit, above and beyond the requirements of administrative home occupation permits generally, require the Applicant to keep the 10,000 -pound flat bed truck that he uses in his business off-site and prohibit outside storage of any materials in conjunction with the home occupation. The permit also, by inference, allows loading and unloading of tools and equipment outside of structures on-site. Findings Nos. 9, 10, 11, and 13. 2. Regarding vehicles used in the home occupation activities: the Applicant has complied with the first condition, causing the flat bed truck to be stored off-site. In addition to the ' 17.60.010 Standards. A. Noise. Noise emanating from any use shall be muffled so as to not become objectionable due to intermittent beat, frequency or shrillness, and where a use is within or adjoins a residential district, the noise loudness measured at the boundary line shall not exceed 45 decibels between the hours of 11:30 p.m. and 6:00 a.m., and 60 decibels at other hours. B. Lighting. bighting shall not be used in such a manner that produces glare on public streets, highways and neighboring property. Are welding, acetylene torch cutting or similar processes shall be performed so as not to be seen from any point beyond the outside of the property. C. Fire Hazards. In terms of fire and safety hazards, the storage and handling of flammable liquids, liquefied petroleum, gases and explosives shall comply with rules and regulations falling under the jurisdiction of the city fire chief; the laws of the state and other local ordinances. D. Electrical Interference. Provisions must be made for necessary shielding or other preventive measures against interferences occasioned by mechanical, electrical, electronic and nuclear equipment, uses or processes with electrical apparatus in nearby buildings or land uses. E. Odors, Gases. The emission of obnoxious odors of any kind shall not be permitted nor the emission of any toxic or corrosive fames or gases. Dust created by a use shall not be exhausted or wasted directly into the atmosphere. F. Particulate Matter. 1. The emission of smoke or particulate matter of density equal to or greater than number three on the Ringlemann Chart as currently established and used by the U. S. Bureau of Mines, is prohibited at all times. 2. Dust and other types of air pollution borne by the wind from such sources as storage areas and roads, shall be minimized by landscaping, paving, oiling or other acceptable means. Emission of particulate matter in excess of 0.2 grain per cubic foot of conveying gas or air measured at any property line, is prohibited_ 3. Smoke Emission Rates. The rate of emission of particulate matter from all sources on any property shall not exceed a net weight of one pound per acre of property during any one hour. G. Waste Disposal. Liquid and solid waste, storage of animal or vegetable waste which attract insects or rodents or otherwise create a health hazard shall be prohibited. No waste products shall be exposed to view from eye level from any property line. H. Open Storage. 1. All storage shall be located more than 20 feet from the street right -0f --way line and shall be enclosed with a heavy wire fence, bodge, board fence, or similar screening device at least six feet high, measured from the adjacent street level. 2. In case of the open storage of lumber, coal or other combustible material, a roadway shall be provided, graded, surfaced and maintained from the street to the rear of the storage area to permit free access of fire trucks at any time. 1. Vibration. Vibration shall not exceed three thousandths of one inch displacement applied to the frequency range of zero to 5,000 cycles per second, as measured at any point on the boundary of the property from which the vibration is produced. Findings, Conclusions, and Decision City ofEdmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 page 10 of 12 pick up, the Applicant has a work trailer. The Development Services Director indicated that storage of the work trailer on-site, in addition to the pick up truck, is consistent with both the home occupation provisions and the permit conditions of approval. The Examiner concurs. Findings Nos. 11, 12, and 14. 3. Regarding outside storage. home occupation regulations specifically addressing outside storage are limited to home occupations approved via the CUP process. (See ECDC 20.20.010.B.3.) However, conditions imposed on the Applicant's home occupation permit expressly prohibit outside storage of "materials in conjunction w/ home occupation'. The Applicant has argued that the six-foot solid wood fence satisfies the City's definition of a `structure', and that objects/activities enclosed by the fence should be considered not to occur `outside'.' Code Enforcement Staff disagreed, feeling the permit condition's reference to `outside' meant outside a building; however, the Director of Development Services testified that as currently operated, with materials stored on the trailer parked in the yard, the use is not in violation of the Code or permit conditions. It falls to the Examiner to decide what is required. Findings Nos. 7, 13, and 14. 4. The Applicant constructed a garage to house things used in his home occupation and also built a six-foot solid wood fence around the yard adjacent to the garage. When the work trailer is parked inside the fence, it is not visible from the street. The Applicant keeps some equipment on his work trailer, including concrete forms, while other tools and materials are stored inside the garage. Based on the Code definition of structure, the Development Services Director's position that there is no violation, and on all the facts in the record, the Examiner concludes that equipment and materials may be left on the Applicant's work trailer while the work trailer is parked inside the fence and the gate is kept closed. Parking the loaded work trailer in the front driveway is not allowed, because in that position, the trailer is not "enclosed" within the "structure" of the fence. Findings Nos. 3, 4, 8, and 14. 5. Administratively approved home occupations are voidable upon evidence of a single violation of ECDC 20.20.010.A.4 or A.6, relating to deliveries by vehicles exceeding 20,000 pounds gross weight or on-site participation by persons other than family members residing in the residence. ECDC 20.20.010. The Applicant testified that on at least one occasion he was helped by his nephew in unloading equipment used in the home occupation, and that some of the equipment used cannot be loaded and unloaded by one person. Finding No. 8. Revocation is only proper where the Examiner finds that the only reasonable way to correct the deficiencies is for the permittee to cease the permitted activity. Further, revocation is a discretionary remedy, rather than a mandatory action, as 2 ECDC 21.90.150 Structure. Structure means a combination of materials constructed and erected permanently on the ground or attached to something having a permanent location on the ground. Not included are residential fences -less than six feet in height, retaining walls, rockeries, and similar improvements of a minor character less than three feet in height. ECDC 21.30.020 Fence. Fence means any construction of wood, metal, masonry or other nonliving material which provides a visual and/or physical obstruction to an observer at ground level. This definition shall exclude any portion of a retaining wall which is below finished grade and which is contiguous with the fence. Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 page 11 of 12 expressed by the word "may" in ECDC 20.100.040.C.6, the section conferring revocation authority. ECDC 20.100.040. C. 6. To the extent that the review hearing reveals deficiencies in compliance with applicable requirements that can be reasonably corrected by imposing new or changed conditions on the permit, the permit conditions may be changed. ECDC 20.100.040.C.5. 6. The home occupation can comply with all code and conditional requirements. The Applicant must re jak from loading and unloading any equipment or materials on-site that he cannot handle by himself or with the help of resident hmft members only. All equipment and materials related to the home occupation requiring assistance from non- residents must be stored, loaded, and unloaded off-site. No additional condition of approval need be placed on the permit to reflect this requirement because it is explicitly stated in the applicable code provisions. Findings Nos. 7, S, 14, and 15. 7. The history of nieghbor complaints resulted in large part from the noise and traffic associated with construction of the garage. The garage is now completed. Aside from the Applicant's admission of a single instance of assistance from a non-resident in unloading the trailer, the only evidence in the record of any ongoing violation amounts to `he said/she said' testimony. Because the City has been unable to verify noncompliance for approximately a year, and because the Applicant has gone to extensive lengths to ensure compliance with all requirements (including major construction), the Examiner will accord little weight to the `he said/she said' evidence. Because the home occupation can comply with all requirements and because there is no evidence in the record of ongoing non-compliance, the Examiner declines to revoke the home occupation permit or to require application for home occupation CUP. based on the admission of one episode of non-compliance. Findings Nos 3, 4, 5, 6, 9, 10, 11, 12, 13, and 14. 8. The Applicant is reminded that a home occupation conditional use permit is a special exception to the zoning ordinance and the Applicant has the burden of persuasion that he/she comes within the stated purposes and criteria of this chapter. ECDC 20.20.020 C. DECISION Based on the preceding findings and conclusions, the request to revoke the administratively approved home occupation permit, or to require the Applicant to apply for a home occupation conditional use permit, to continue to operate the approved home occupation at 23830 –100 Place West in Edmonds, Washington is DENIED. The administratively approved home occupation may continue subject to strict compliance with the home occupation provisions of the Edmonds Community Development Code and the conditions imposed on the existing permit in the record at Exhibit 12. DECIDED this 1 d -ay of October 2008. Toweill Rice Taylor LLC City of Edmonds Hearing Examiners By: Sharon A. Rice Findings, Conclusions, and Decision City of Edmonds Heaving Examiner Hovde Home Occupation Permit Review, No. STF 2607-24 page 12 of 12 CITY OF EDMONDS GARY HAAKENSON MAYOR 121 5TH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221 HEARING EXAMINER C. 189\3 RECONSIDERATION AND APPEAL The following is a summary of the deadlines and procedures for filing requests for reconsideration and appeals. Any person wishing to file or respond to a request for reconsideration or an appeal should contact the Planning Division of the Development Services ftartinent for further pLocedural information. REQUEST FOR RECONSIDERATION Section 20.100.010(G) of the Edmonds Community Development Code (ECDC) requires the Hearing Examiner to reconsider his or her decision or recommendation if a written request is filed within ten (10) working days of the date of the initial decision by any person who attends the public hearing and signs the attendance register and/or presents testimony, or by any person holding as ownership interest in a tract of land which is the subject of such decision or recommendation. The reconsideration request must cite specific references to the findings and/or the criteria contained in the ordinances governing the type of application being reviewed. APPEALS Chapter 20.105 of the ECDC contains the appeal procedures for Hearing Examiner decisions. Pursuant to Section 20.105.040(A), persons entitled to appeal include (1) the Applicant; (2) anyone who has submitted a written document to the City of Edmonds concerning the application prior to or at the hearing; or (3) anyone testifying on the application at the hearing. Section 20.105.020(A) requires appeals to be in writing, and to state (1) the decision being appealed, the name of the project applicant, and the date of the decision; (2) the name and address of the person (or group) appealing the decision, and his or her interest in the matter; and (3) the reasons why the person appealing believes the decision to be wrong. Pursuant to Section 20.105.020(B), the appeal must be filed with the Director of the Development Services Department within 14 calendar days after the date of the decision being appealed. The appeal must be accompanied by any required appeal fee. TIME LiMf.TS FOR RECONSIDERATION AND APPEAL The time limits for Reconsideration and Appeal run. concurrently. If a request for reconsideration is filed before the time limit for filing an appeal has expired, the time clock for filing an appeal is stopped until a decision on the reconsideration request is completed. Once the Hearing Examiner has issued his or her decision on the reconsideration request; the time clock for filing an appeal continues from the point it was stopped. For example, if a reconsideration request is filed on day five of the appeal period, an individual would have nine more days in which to file an appeal after the Hearing Examiner issues his decision on the reconsideration request. NOTICE TO COUNTY ASSESSOR The property owner may, as a result of the decision rendered by the Hearing Examiner, request a change in the valuation of the property by the Snohomish County Assessors Office. • Incorporated August 11, 1890 • Sister City - Hekinan, Japan me lggv 121 5TH AVENUE NORTH - Edmonds, WA 98020 - (425) 771-0220 - FAX (425) 771-0221 HEARING EXAMINER OFFICE OF THE HEARING EXAMINER CITY OF EDMONDS, WASHINGTON APPLICANT ) Tim Hovde ) For a Conditional Use Permit I, Sharon A. Rice, the undersigned, do hereby declare: Case No. STF-2007-24 DECLARATION OF SERVICE 1. That I am a partner in the firm of Toweill Rice Taylor LLC, which maintains a professional services agreement with the City of Edmonds, Washington for the provision of Hearing Examiner services, and make this declaration: in that capacity, and that I am now and at all times herein mentioned have been a citizen of the United States, a resident of the State of Washington, over the age of eighteen (18), and competent to be a witness and make service herein; 2. That on October 15, 2008 I did serve a copy of the decision in case STF-2007-24 upon the following individuals at the addresses below by first class US Mail. Tins Hovde and Mary Hovde 23830 — 10 1 ` Place W. Edmonds, WA 98020 Ann Mann 23820 — 101s'Place W. Edmonds, WA 98020 Ralph Larson 23828 —102nd Avenue W. Edmonds, WA 98020 Alvin Rutledge 7101 Lake Ballinger Way Edmonds, WA 98026 Monica Angevine 23903 — 102nd Avenue W. Edmonds, WA 98020 Kristine Hovde 23805 —101st Place W Edmonds, WA 98020 I hereby declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct: DATED THIS 15�day of Odd , 2008 t Washington. Sharon A. Rice, Toweill Rice Taylor LLC • Incorporated August 11, 1890. • Sister City - Hekinan, Japan `n e.189v CITY OF EDMONDS 121 5TH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221 HEARING EXAMINER In the Matter of the Review of the } Home Occupation Permit } } of } } Tim Hovde ) NO. STF-2007.24 GARY HAAKENSON MAYOR — covXvextiUjq(1e. copy — FINDINGS, CONCLUSIONS, AND DECISION - SUMMARY OF DECISION The request to revoke the administratively approved home occupation permit allowing home business office use for a construction company in a single-family residence located at 23830 -- 100 Place West in Edmonds, Washington is REMANDED for continued development for a period of six months. SUMMARY OF RECORD Request: City of Edmonds Code Enforcement Staff (Staff) requested that the administratively approved home occupation permit of Tian Hovde (Applicant), authorizing the Applicant to operate a construction company as a home occupation in a Single -Family Residential zone at 23830 --101 Place West in Edmonds, Washington, be revoked. Hearin Date: The City of Edmonds Hearing Examiner conducted an open record hearing on the request on February 21, 2007, and testimony continued on March 6, 2008. The Hearing Examiner conducted a site view prior to the hearing. Testimony: At the open record hearing, the following individuals presented testimony under oath: 1. Mike Thies, City of Edmonds Code Enforcement Officer 2. Tim Hovde, Applicant 3. Ralph Larson 4. Ann Mann 5. Alvin Rutledge Mr. Richard Wurdeman, Attorney, represented the Applicant. Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 Incorporated August 11, 1890 Sister City - Hekinan, Japan page 1 of 15 I'7 Exlhtobits submitted by City Staf. GARY HAAKENSON MAYOR 1. Land Use Complaint Form, received June 9, 2004 2. City Correspondence to Applicant, dated June 21, 2004 3. City Correspondence to Applicant, dated July 16, 2004 4. Order to Correct Violation, dated July 26, 2004 5. Correspondence from Applicant, dated July 30, 2004 6. City Correspondence to Applicant, dated August 4, 2004 7. Photograph of subject property, taken August 20, 2004 8. City Correspondence to Applicant, dated August 23, 2004 9: Correspondence from Applicant, dated September 1, 2004 10. Correspondence from owner of subject property, dated September 1, 2004 11. City Correspondence to Applicant, dated September 13, 2004 12. Administrative Home Occupation Permit and City business license, dated August 13, 2004 13. City Correspondence to Applicant, dated October 5, 2004 14. Request for Code Enforcement Action form, received by the City June 20, 2005 15. Photograph of subject property, taken June 21, 2005 16. Photograph of subject property, taken June 21, 2005 17. City Correspondence to Applicant, dated June 22, 2005 18. Order to Correct Violation, dated July 5, 2005 19. Correspondence from Applicant, dated July 7, 2005 20. City Correspondence to Applicant, dated July 13, 2005 21. Revised Order to Correct Violation, dated July 13, 2005 22. Correspondence to City from neighbor, dated August 4, 2005 23. City Correspondence to Applicant, dated September 9, 2005 24, City Correspondence to Relative/Neighbor of Applicant, dated October 28, 2005 25. City Correspondence to Applicant, dated November 29, 2005 26. Correspondence to Development Services Director from Code Enforcement Officer; dated December 1, 2005 27. City Correspondence to Applicant, dated January 18, 2006 28. Correspondence to Development Services from neighbor, dated May 1, 2006 29. Photograph of subject property, taken May 15, 2006 30. Photograph of subject property, taken May 15, 2006 31. City Correspondence to Applicant, dated May 16, 2006 32. City Correspondence to Applicant, dated May 31, 2006 33. Correspondence to Development Services from neighbor; dated October 2, 2006 34. City Correspondence to Applicant, dated October 5, 2006 35. City Correspondence to Applicant, dated October 12, 2006 36. City Correspondence to Applicant, dated November 5, 2007 37. City Correspondence to Applicant, dated November 26, 2007 38. City Correspondence to Applicant, dated December 4, 2007 39. City Correspondence to Applicant, dated December 6, 2007 Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 page 2 of 15 • Incorporated August 11, 1890 • Sister City - Hekinan, Japan 40. City Correspondence to Applicant, dated December 10, 2007 41. City Correspondence to Applicant, dated January 18, 2008 42. Correspondence to Development Services from neighbor, dated February 5, 2008 43, Code Enforcement Staff Report, dated February 1, 2008, with attachments: 1. Zoning and Vicinity Map 2. Snohomish County records for single-family 3. State Department of Revenue database detail. 4. Secretary of State Corporations data 5. State Department of Labor and Industries contractor information 44. McLaren public comment letter, dated February 16, 2008 45. Memorandum from Jeannine Graf, City of Edmonds Building Official, dated February 26, 2008 46. State of Washington Department of Licensing owner information on license plate number A691385, a 1973 Ford pick up 47. State of Washington Department of Revenue records; printed on February 29, 2008 Exhibits submitted by the Applicant: Al. Job card for building permit 2005-0608, issued July 27, 2005 A2. Receipt for building permit 2005-0608 extension fee, dated July 25, 2007 A3. Receipt for building permit 2005-0608 extension fee, dated July 19, 2006 A4. Angevine/Jones. letter, dated January 7, 2008 A5. City of Edmonds Development Services receipt for plan check fee, dated July 7; 2005 A6. City of Edmonds Construction Permit application for building permit, dated July 7, 2005 A7. Right of way construction permit, issued July 27, 2005 A8. City of Edmonds Development Services receipt for right-of-way permit, dated July 27, 2005 A9. Rental agreement, dated August 31, 2006, with copies of two checks written for rental payments by Bob Hovde Construction Services A10. Thirteen photographs, numbered 1 through 13, taken by Bob Hovde of the subject property approximately one week prior to February 21, 2008 hearing date Upon consideration of the testimony and exhibits submitted at the open record hearing, the Hearing Examiner enters the following Findings and Conclusions: FINDINGS 1. The Applicant is the owner/operator of Tim Hovde Construction LLC; a general construction business. The Applicant reported that approximately 75% of his business is concrete work and the remainder is general residential construction. The Applicant primarily works in Edmonds. He indicated that he does not advertise and that his business has no employees. Testimony of Mr. Hovde: 2. The City received the first complaint about construction business activities at 23830 — 101s` Place West, in Edmonds (the subject property) on June 10, 2004.' The complainant ' The subject property fronts on both 101' Place West and 102nd Avenue West. Site visit. Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2407-24 page 3 of 15 alleged traffic and noise from the transporting of tools, trailers, large equipment, lumber, and concrete forms being loaded and unloaded between six and ten times per day. Exhibit 1. 3. On June 21, 2004, the City notified the owner of the subject property that a business license and home occupation permit were required to use a single-family residence for commercial purposes. Exhibit 2:, An Order to Correct Violation was sent to the owner of 23830 —101" Place West on July 26, 2004 requiring correction of several violations of the community development code, including the conduct of a home occupation without a permit.2,3 Exhibit 4. 4. The Applicant submitted an application for administrative home occupation permit on August 13, 2004. The application requested approval for a "home office" for Tim Hovde Construction LLC to be allowed to occupy 100 square feet of the existing residence. The submitted application proposed the following (paraphrased from Exhibit 12): • Hours of operation would be from 7:00 am to 6:00 pm; • Only the Applicant would work on-site in relation to the home occupation; • Loading and unloading of tools and equipment would occur outside the structures on-site; • A pick up truck and a 10,000 -pound flat bed truck would be kept on-site for business use; • "Shovels & such" would be stored outside of existing structures; • The home occupation would result in no noise; • No heavy equipment, power tools, or power sources other than those associated with typical single-family residences would be used or stored on- site; • No odors or dust would result from the use; • No deliveries by vehicles exceeding 20,000 pounds gross vehicle weight would occur; • No signage would be used; and • No employees other than family members residing on-site would participate in the home occupation. Exhibit 12. 2 Other violations noted included: construction of a metal structure without a building permit; failure of metal structure to comply with required setbacks from property lines; failure to obtain right-of-way construction permit approval prior to installation of a driveway at rear of subject property; and issues relating to fence height and location of a fence built on-site. Exhibit 4. This decision is limited to the question of home occupation permission and the other violations will not be addressed in detail in the findings. 3 At the time, the subject property was owned by Mary Hovde. Her son, Applicant Tim Hovde, was leasing the property with an option to purchase. Exhibit 5. Findings, Conclusions, and decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 page 4 of 15 5. On the back of the Applicant's home occupation application, which subsequently became the permit, City Planning Division Staff added notes.' To application item number 6, City Staff added a note indicating that the 10,000 -pound flat bed truck would be moved off-site. To item number 12, City Staff added a note indicating, "no materials in conjunction with home occupation will be stored outside." These added comments, which are not dated, are noted as "per Duane Bowman; Development Services Director". Exhibit 12, home occupation application, Testimony of Mr. Thies. The record does not contain the date of the City's approval of the home occupation permit. 6. Code Enforcement Staff testified that, consistent with City procedures, the notes added to the application by City Staff have the effect of conditions of approval on the administrative home occupation permit:' Testimony of Mr Thies, 7. The Applicant's business license application contains notes added by City Planning Division Staff (in the box designated "For City Use Only") that indicate Planning Department approval of business license application is "subject to conditions of admin home occupation" permit. The Planning Department's notes are dated September 2, 2004, and the approved business license was mailed to the Applicant on September 13, 2004. Exhibit 12, business license application. 8. In response to another neighbor complaint about construction business-related activities on-site, City Code Enforcement Staff visited the subject property on June 21, 2005 to investigate the complaint and took photographs documenting the condition of the site. The photographs depict large piles of lumber, smaller piles of buckets, crates, and other construction -related materials in the yard. Exhibits 15 and 16. Code Enforcement -Staff notified the Applicant by letter dated June 22, 2005 that the inspection had revealed "that there were concrete forms, a honey bucket, and other construction materials stored outside on the subject property." Exhibit 17. An Order to Correct Violation was sent to the Applicant on July 5, 2005 requiring correction of the violations noted in the June 22, 2005 letter. Exhibit 18. 9. The Applicant responded to the Order by letter dated July 7, 2005 stating that "most of the materials" outside the structure were to be consumed in the construction of a detached garage on-site; being built to contain materials for the home occupation, Exhibit 19. 10. A revised Order to Correct Violation was issued on July 13, 2005, requiring the following corrective action: 4 in administrative home occupations, the application for home occupation permit serves as the permit itself Testimony of Mr. Thies. s The Applicant denied ever having received a copy ofthe home occupation permit application with the notes added to items 6 and 12 and testified that he was unaware of any restrictions or conditions on hone occupation approval. Testimony of Mr. Hovde. Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Houde Home Occupation Permit Review, No. STF-2007-24 page 5 of 15 1. Obtain a building permit for garage, complete the garage within 3 months of the date of issuance; and enclose all outside storage within three months of garage permit issuance.... or 2. Remove outside commercial storage as per home occupation permit::: Exhibit 21. 11. On July 7, 2005, the Applicant applied for a building permit to construct a 960 square foot detached garage, which he anticipated completing in three months. He received building permit approval (permit number 2005-0608) on July 27, 2005. The building permit does not contain any language or indication that the three-month completion deadline established in the Order to Correct Violation is in effect on building permit approval. The building permit had an expiration date of July 27, 2006. Exhibit 19; Exhibit A6. The Applicant has applied for and received two extensions for building permit 2005-0608, which is still active and has a current expiration date of July 27, 2008. Exhibits A2 and A3; Exhibit 45. 12. The City continued to receive neighbor complaints about the home occupation. Exhibit 22; Testimony of Mr. Thies. By letter dated September 9; 2005; Code Enforcement Stam reminded the Applicant of the requirements for retaining home occupation permission, pursuant to ECDC 20.20.010.A, and advised the Applicant that the criteria must continue to be met during construction of the detached garage. The letter also reminded the Applicant that all home occupation related materials were required to be located inside the garage within three months of building permit issuance. Staff advised the .Applicant that he could apply for a home occupation as a conditional use, which could allow different performance standards to be met. Staff acknowledged that workers would be on-site for construction of the garage and reminded the Applicant that the workers could not participate in the home occupation. Exhibit 23. 13. The City continued to receive complaints about home occupation activities. Exhibit 25. Code Enforcement Staff visited the site on December 1, 2005 in response to a complaint. Staff saw a non-resident moving concrete forms from a trailer to an outside storage location. There were concrete forms, buckets, and other materials used in the home occupation stored outside the structures on-site. There were two trailers for hauling equipment related to the home occupation parked on-site and one vehicle not belonging to the Applicant. Exhibit 26. 14. Subsequently, Code Enforcement Staff and the Development Services Director met with the Applicant on-site in December 2005. The Applicant had moved the construction materials inside after the December 1" site visit. The City corresponded with the Applicant by letter dated January 18, 2006, noting that non-resident workers had been witnessed handling home occupation materials on the property. The letter reminded the Applicant of the criteria for home occupations. Exhibit 27. Findings, Conclusions, and Decision City ofEdmonds Hearing Examiner Houde Home Occupation Permit Review, No. STF-2007-24 page 6 of 15 15. At hearing„ the Applicant testified that the non-resident people working on-site were present at that time because they were helping him "clean up... on things left over from building the garage and things that were outside." Testimony of Mr. Hovde. 16. The City continued to receive complaints about the home occupation. A neighbor submitted a letter, dated May 1, 2006; with an attached log of observed events at the sub ect property alleged to be related to the home occupation. In a log spanning January 20 thru April 28h, the neighbor cited several instances of the Applicant loading cement forms into or out of the garage or vehicles with the help of a non-resident. The log notes numerous vehicles; by color; make; and occasionally license plate number, traveling to and from the site and various non-resident persons handling concrete forms and other materials with or without the Applicant at the subject property. Exhibit 28. 17. Code Enforcement Staff visited the site again on May 15, 2006 and photographed conditions on that date. The photographs show construction materials piled outside of on-site structures. Exhibits 29 and 30. On May 16, 2006, the City notified the Applicant by letter that open-ended site inspections would begin as of May 22, 2006 and any further violation of the home occupation requirements would result in revocation of the permit. Exhibit 31. 18. Multiple City Staff members subsequently met with the Applicant on-site and reviewed home occupation requirements. On May 31, 2006, the City decided that the "home office for a general construction company" would be allowed to continue on-site if there were no further violations. The City notified the Applicant that "the one trailer is considered the one commercial vehicle for the home occupation" and that he could not store additional commercial vehicles on-site.' Exhibit 32, Exhibit 34. 19. According to the City Building Official, building inspections of the detached garage project have been completed as follows: Foundation inspection: August 5, 2005 Exterior sheathing nailing inspection: September 2, 2005 Framing height approval inspection: May 26, 2006 Inspections still required before the structure can be officially approved for occupancy include a final engineering inspection of the driveway and a final inspection by the Building Division. The Building Official noted that the structure was substantially completed as of the May 2006 inspection and wondered what has been accomplished in the nearly two years since that time. Exhibit 45, 20. In October 2006, a neighbor again submitted a log of events on-site, detailing observed vehicle license plates and descriptions of on-site activities by date and time between June and October. The log alleges multiple days when the Applicant loaded into and out of 6 The Applicant disputes that a trailer can constitute a commercial vehicle under the Edmonds Community Development Code. Comment ofMr. Wurdeman. The Examiner declines to address this issue at ibis time. Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Houde Home Occupation Permit Review, No. STF-2407-24 page 7 of 15 the subject property concrete forms and other materials with assistance from other people. Exhibit 33. 21. In responding to the October 2006 neighbor complaint log, the Applicant identified, as an example, the entry on June 13t' at 9.15 pm in which a red Ford F150 pick arrived and left at 9:35 pm. The Applicant testified that his father owns the red F150 and that he dropped by for 20 minutes that evening. The Applicant stated that the continued vehicle traffic and men working on-site after May 2006 were related to helping him "clean up after building the garage" and related to pouring concrete for the fence and gate and/or that they were friends and family visiting his home to borrow tools or materials. Testimony of Mr. Hovde. 22. In 2007, the City continued to receive complaints relating to the home occupation. During a site visit conducted on October 5, 2007 at 10.45 am, Code Enforcement Staff noted excessive noise coming from the site. A truck not registered to the Applicant (or other residents) was parked on-site at the time. The Development Services Director notified the Applicant by letter, dated October 12, 2007, that his home occupation permit was under review. This letter indicated that any home occupation related activities outside the "home office" would be required to cease. Exhibit 35. On November 5, 2007, the City notified the Applicant that the home occupation permit was under review and that revocation was recommended. Exhibit 36. 23. Code Enforcement Staff conducted a site visit in early December 2007. No visible violations of the home occupation permit or regulations were visible at the time. However, Staff notified the Applicant by letter dated December 10, 2007 that because his home occupation required that someone other than a family member residing onsite to assist the Applicant in loading and unloading equipment or materials, it did not satisfy the requirements for an administratively approved home occupation permit, and the City intended to complete the revocation of the permit. The City stated that revocation procedures could be postponed if the Applicant submitted a complete application for conditional use approval for a home occupation. No CUP application was submitted. Exhibit 40, Testimony of Mr. Thies; Exhibit 43, page 5. 24. At hearing, the Applicant testified that the construction of the garage lasted more than the projected three months and was in fact still in progress at the time of the hearing. Since May 2006, the Applicant has installed backing for possible future sheetrock, skylights, hangers from the top plates, and some seismic hardware. A portion of the driveway must be poured and he must still obtain final engineering and building inspection and approval. The Applicant stated that he has not been able to afford to complete the driveway, which has held up the final inspection. The Applicant said he couldn't commit to completing the remaining work prior to the expiration of the current building permit. Testimony of Mr. Hovde. 25. In constructing the garage, fence, and gate, the Applicant hired a roofer, a concrete supply company, a concrete pumping company, and dirt work operators, and he had Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 page 8 of 15 lumber delivered to his residence from a lumber supplier for construction of the garage. Testimony of Mr. Hovde. 26. The Applicant tested that on all occasions when others were present during any construction -related activity on-site; they were either the hired contractors listed above or they were friends or family members who were visiting to borrow tools or supplies. The Applicant asserts that he has not had any employees or contractors on-site helping him with activities related to the home occupation. Of the vehicles documented by complaining neighbors to have been onsite, the Applicant stated that they belong to friends or family members who were visiting or that the vehicles were not associated with any activity on his property. Testimony of Mr. Hovde. 27. The Applicant testified that as of August 31, 2006, he has stored his concrete forms and work trailer off-site in a storage location shared with his father; Bob Hovde; who also owns and operates a construction company. Currently, the Applicant stores power tools and equipment including cement finishers, skill saws, generators, and other equipment in the garage. ExhibitA9, Testimony of Mr. Hovde, 28. The Applicant submitted photographs of the subject property, taken approximately one week prior to hearing, asserting that no construction materials are located outside the existing structures and that no evidence of ongoing violations exists. Exhibit AID; Testimony of Mr. Hovde. 29. As of the date of Code Enforcement Staff s last visit to the site in early December 2007, there were no apparent violations at the subject property. At hearing, Staff was unable to state whether there are currently any violations of the zoning code at the subject property. Testimony of Mr. Hovde; Testimony of Mr. Thies. 30. The Applicant, through his attorney, made the following arguments at hearing. He argued that there is no authority in the zoning code for the Director to place conditions or restrictions on an administrative hoarse occupation permit; that the home occupation regulations do not restrict administrative home occupations to vehicles under 10,000 pounds; that a trailer cannot be considered a commercial vehicle for purposes of the home occupation regulations; and that the home occupation regulations exempt commercial vehicles that are being loaded or unloaded. The Applicant argued that his home occupation permit is now in compliance with all requirements and requests that he be allowed to keep the current permit. Through his attorney, the Applicant argued that the hearing examiner's authority in reviewing approved permits does not extend to revocation where the permitted use is currently in compliance. Testimony of Mr. Hovde; Comments of Mr. Wurdeman. 31. Notice of the public hearing was distributed to parties of record consistent with the requirements of the City Code. Exhibit 1, page 6. The City received written public comments from two neighbors expressing support for the Applicant's request to retain his current home occupation permit. Exhibit A4; Exhibit 44. At hearing, there was public testimony from neighbors in support of the revocation of the home occupation permit. Findings, Conclusions, and Decision City ofEdmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007-24 page 9 of 15 Neighbor complaints about the home occupation have focused on the incompatibility of a construction business being operated in a residential zone and have related primarily to the noise from loading and unloading concrete forms and other materials; the noise and other traffic impacts of vehicles to and from the home occupation, especially the large flat bed truck; and the evening and weekend hours that the noise and traffic have been generated. Additionally, neighbors commented that the frequency and ease of access with which non-resident persons enter the subject property to deliver or take away materials and equipment makes the subject property appear to be a warehouse in which the Applicant is storing goods and materials for others, which is not consistent with the surrounding residential uses. Exhibits 1, 14, 22, 28, 33, and 42, Testimony of Ms. Mann, Testimony of Mr. Larson. 32. Public comment included testimony that the noise and traffic to and from the subject property have decreased since the concrete forms were removed from the site. Testimony of Mr. Larson. CONCLUSIONS Jurisdiction: The Hearing Examiner has jurisdiction to hear and decide requests for review of approved home occupation permits pursuant to ECDC 20,100.010.B:7 and 20.100.040. Criteria for Review of Aggroved Permits: Pursuant to ECDC 20.100.040.A, any permit approved by the City under the Community Development Code may be reviewed under this section if the conditions of the permit are not being met, the requirements of the city code of Edmonds are not being met, or the permitted activity is causing a nuisance or hazardous condition. A permit includes any City approval under the Community Development Code. Pursuant to ECDC 20.100.040.C, the following constitutes the established procedure for review of approved permits: 1. The Director of Community Services shall notify the permittee in writing that the permit is being reviewed, list the alleged deficiencies; and specify a reasonable time for the permittee to correct the deficiencies. 2. If the permittee could reasonably correct the deficiencies, but fails to do so within the specified time, the director of community services may refer the matter to the city attorney for criminal or civil enforcement of the city code, or the conditions of the permit. 3. If the only reasonable ways to correct the deficiencies are for the permittee to cease the permitted activity, or for the city to impose new or changed conditions on the permit, the director of community services shall refer the matter to the hearing examiner for review. Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Houde Home Occupation Permit Review, No. STF-2007-24 page 10 of 15 4. The hearing examiner shall hold a public hearing under ECDC Chapter 20.91 to review the permit or approval, using criteria required for the original permit, and subsection A of this section. 5. If the hearing examiner finds that deficiencies exist, and that they can be reasonably corrected by imposing new or changed conditions on the permit, the permit conditions may be changed. The hearing examiner's actions shall be final, unless the original approval required city council approval. In that case, the hearing examiner's action shall be a recommendation to the council to be considered by the council under ECDC 20.100.030. 6. If the hearing examiner finds that the only reasonable way to correct the - deficiencies is for the permittee to cease the permitted activity, the hearing examiner may revoke the permit. The hearing examiner's action shall be appealable to the city council under ECDC 20.100:010. 7. If the permit is revoked, the permit shall be null and void, and all activity allowed by the permit shall cease. Home Occupation Standards: Pursuant to ECDC 20.20.000 Purpose: The purpose of this chapter is to allow residents to carry on home occupations on their property while guaranteeing neighboring residents freedom from excessive noise, excessive traffic, nuisance, fire hazard and other possible potential negative impacts from the maintenance of a commercial use within a residential neighborhood. The purpose of this chapter is to permit two types of home use occupations while prohibiting other commercial uses in residential neighborhoods. Commercial enterprises employing only the residents of a structure which are operated entirely within the structure and which require no deliveries or other traffic are intended to be permitted activities. Other occupations such as music teachers, newspaper delivery and other commercial activity which are intended to serve the neighborhood and which promote traffic only within the neighborhood as opposed to attracting traffic to the neighborhood from outside, are also intended to be permitted uses. A home occupation is generally an economic enterprise operated within a dwelling unit, or buildings accessory to the dwelling unit which are incidental and secondary to the residential use of the dwelling unit, including the use of the dwelling unit as a business address in the phone directory or as a post office mailing address. Pursuant to ECDC 20.20.010 Home Occupation: A home occupation may be conducted as a permitted use in any residential zone of the city subject to the following regulations: Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007--24 page 11 of 15 A. Home occupation shall be a permitted use if it: 1. is carried on exclusively by a family member residing in the dwelling unit; and 2. is conducted entirely within the structures on the site, without any significant outside activity; and 3. Uses no heavy equipment, power tools or power sources not common to a residence; and 4. Has no pickup or delivery by business related commercial vehicles (except for the U.S. Mail) which exceeds 20,000 pounds gross vehicle weight; and 5. Creates no noise, dust, glare, vibration, odor, smoke or other impact adverse to a residential area beyond that normally associated with residential use; and 6. Does not include any employees outside of the family members residing at the residence, including but not limited to persons working at or visiting the subject property; and 7. [Complies with a]II performance criteria established pursuant to ECDC 17.60.010.7 Any permit granted to such an occupational use shall be immediately voidable upon proof of any visit to the site in excess of the standards provided in paragraphs A(4) and A(6) of this section or any visits by a customer, client or other persons purchasing goods or services from the home occupation. Proof of one such occurrence shall be sufficient to void the permitted use provided under this section and thereby requiring the home occupation to meet the permitting provisions hereinafter contained in this 7 17.60.010 Standards. A. Noise. Noise emanating from any use shall be mined so as to not become objectionable due to intermittent beat, frequency or shrillness, and where a use is within or adjoins a residential district, the noise loudness measured at the boundary line shall not exceed 45 decibels between the hours of 11:30 p.m. and 6:00 a.m., and 60 decibels at other hours. B. Lighting. Lighting shall not be used in such a manner that produces glare on public streets, highways and neighboring property. Arc welding, acetylene torch cutting or similar processes shall be performed so as not to be seen from any point beyond the outside ofthe property. C. Fire Hazards. In terms of fire and safety hazards, the storage and handling of flammable liquids, liquefied petroleum, gases and explosives shall comply with rules and regulations filling under the jurisdiction ofthe city fire chief the laws of the state and other local ordinances. D. Electrical Interference. Provisions must be made for necessary shielding or other preventive measures against interferences occasioned by mechanical, electrical, electronic and nuclear equipment, uses or processes with electrical apparatus in nearby buildings or land uses. E. Odors, Gases. The emission of obnoxious odors ofanr kind shall not be permitted northe emission ofany toxic or corrosive fumes or gases. Dust created by a use shall not be exhausted or wasted directly into the atmosphere. Is. Particulate Matter, 1. The emission of smoke or particulate matter o - fa density equal to or greater than number three on the Ringlemann Chart as currently established and used by the U.S. Bureau of Mines, is prohibited at all times, 2. Dust and other types ofair pollution borne by the wind from such sources as storage areas and roads, shall be minimized by landscaping, paving, oiling or other acceptable means. Emission of particulate matter in excess of 0.2 grain per cubic foot of conveying gas or air measured at any property line, is prohibited_ 3. Smoke Emission Rates. The rate of emission of particulate matter from all sources on any property shall not exceed a net weight of one pound per acre of property during any one hour. G. Waste Disposal. Liquid and solid waste, storage of animal or vegetable waste which attract insects or rodents or otherwise create a health hazard shall be prohibited. No waste products shall be exposed to view from eye level from any property line. H. open Storage. 1. All storage shall be located more than 20 feet from the street right-of-way line and shall he enclosed with a heavy wire fence, hedge board fence, or similar screening device at least six feet high, measured from the adjacent street level. 2. In case ofthe open storage of lumber, coal or other combustible material, a roadway shall be provided, graded, surfaced and maintained from the street to the rear ofthe storage area to permit ftm access of fire trucks at any time. I. Vibration. Vibration shall not exceed three thousandths of one inch displacement applied to the frequency range of zero to 5,000 cycles per second, as measured at any point on the boundary ofthe property from which the vibration is produced. Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Review, No. STF-2007 24 page 12 of 15 chapter. An example of an out right permitted home occupation is a writer or artist who develops a book or art work and does not show the work from the home. Conclusions Based on Find: 1. A home occupation is an economic enterprise operated within a dwelling unit, or buildings accessory to the dwelling unit, in a residential zone. The purpose of the City's home occupation provisions is to create an exception to allow commercial uses in residential zoning districts when such commercial uses do not negatively impact the residential uses. Home occupations are only allowed to the extent that can be carried on "... while guaranteeing neighboring residents freedom from excessive noise, excessive traffic, nuisance; fire hazard and other possible potential negative impacts from the maintenance of a commercial use within a residential neighborhood." ECDC 20.20.000. One way in which home occupations are required to avoid impacts to neighboring residential uses is to conduct all home occupation activity inside structures. ECDC 20 20.010.A.2. Administratively approved home occupations are voidable upon evidence of a single violation of ECDC 20.20.010.A.4 or A.6, relating to deliveries by vehicles exceeding 20,000 pounds gross weight or on-site participation by persons other than family members residing in the residence. ECDC 20.20.010. 2. The record contains neighbor and Code Enforcement Officer allegations of mulitple instances that the Applicant was assisted with home occupation -related activities on-site by non-residents. If even a single instance of on-site assistance in home occupation . activities were proven, the permit would be properly voided. The Applicant contends that in each instance in which he was assisted on-site by a non-resident person, such person was either: a) a friend or family member visiting his home for social purposes or to borrow construction -related tools or materials, or b) a worker hired to assist with on- site construction of the garage and fence. The evidence offered does not clearly prove either side to be correct. However, given that the bulk of garage construction was completed in May 2006, the credibility of 22 additional months of "garage construction workers" verses on-site assistance with home occupation activities is strained at best. Findings Nos. 3, 4, 7, 8, 12, 13, 14, 15, 16, 19, 20, 21, 22, 24, 25, 26, 27, and 32. 3. In the present case, the initially approved home occupation was a 100 -square -foot home office for a general construction business with some loading and unloading of equipment and supplies out of doors. Complaints of on-site activities in excess of those described on the home occupation applicationrp edate approval of the application. Such complaints relate primarily to noise, traffic, and activities occurring outside existing structures on- site involving non-residents. Rather than voiding the home occupation permit in 2006, the City ordered the Applicant to construct anew structure to enclose all home occupation activities, including loading and unloading of materials and equipment. According to the City's Order to Correct Violation, construction of the garage was to be completed by October 2005, a timeframe suggested by the Applicant. As of the date of the hearing, the garage was not yet completed. At hearing, the Applicant testified that he was unable to commit to completing the garage before expiration of the current building permit. Findings Nos. 3, 4, 7, 8, 10, 11, 12, 13, and 24. Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Revie%; No. STF 2007-24 page 13 of 15 4. Regardless of whether the complained of activities can be proven to relate to the home occupation, there is a construction -related home occupation at the subject property and neighbors complaining of adverse impacts to the residential character of the neighborhood from construction -related activities at the subject property. The fact that home occupation activities cannot be readily distinguished from other activities is a problem that is more properly the responsibility of the Applicant to solve than the City or the neighbors. It is also, itself; a "deficiency" as contemplated by ECDC 20.100.040.C.5. Findings Nos. 3, 8, 12, 13, 14, 15, 22, and 23. 5. On the date of Code Enforcement Staff's last site visit, there were no observable violations of the home occupation conditions. At the time of hearing, Staff was unable to state whether or not there are ongoing violations of the home occupation permit or regulations. One of the neighbors who most frequently complained of adverse impact conceded in his testimony that on-site activities have been less adverse to the residential character of the neighborhood since the Applicant moved concrete forms off-site. The Applicant asserts that completion of the garage would enable all home occupation activities to move indoors and would enable the home occupation to continue without impact to the adjacent residential uses. This is exactly what the City has been seeking since initial administrative approval of the home occupation permit. On the brink of garage completion, without current evidence of violation, revocation appears to be beyond what is necessary to ensure compliance. An additional period of observation in which the Applicant either successfully demonstrates — or fails to demonstrate - that his home occupation can be operated without adverse effects on adjacent residential uses would be appropriate. Findings Nos. 4, 18, 27, 28, 29, 30, 3.1, and 32. DECISION AND ORDER Based on the preceding findings and conclusions, the request to revoke the administratively approved home occupation permit for the residence at 23830 —101` Place West in Edmonds, Washington is REMANDED for six months. If at the end of six months, the Applicant has not shown that the home occupation can be conducted on-site without adverse impacts to the surrounding residential uses, the home occupation permit will be revoked. During that six months: a. The City should conduct random site visits to document compliance or lack thereof b. The Applicant should endeavor to complete construction of the garage. It is not acceptable to indefinitely postpone completion of the garage and then rely on the garage project to explain away construction -related neighbor complaints. c. Regarding the visits of friends or family members borrowing construction supplies, the burden is on the Applicant to conduct his personal affairs in a manner that can be distinguished from home occupation activities, such that he can demonstrate compliance with the requirements for retaining permission to operate a home occupation. d. Home occupation activities must occur exclusively indoors, including loading or unloading of equipment or materials. Home occupation activities must not generate noise in excess of that typically associated with a single-family Findings, Conclusions, and Decision City of Edmonds Hearing Examiner Hovde Home Occupation Permit Revie-og No. STF-2007--24 page 14 of 15 residence. Hours of home occupation operation must respect the residential character of the neighborhood. e. In order to retain permission — granted as an exception to the zoning code --- to operate a commercial enterprise from his home, the Applicant is strongly advised to tape pains to prevent adverse impacts to surrounding residential uses. The hearing on the request to revoke the home occupation permit will reconvene in six months, with proper notification to all parties of record. DECIDED this 2CP day of March 2008. Toweill Rice Taylor LLC City of Edmonds Hearing Examiners By: Sharon A. Rice Findings, Conclusions, and Decision City ofEdmonds Hewing Examiner Hovde Home Occupation Permit Review, No. STF-2007--24 page 15 of 15