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2006-01-19 Hearing Examiner MinutesCITY OF EDMONDS VERBATIM TRANSCRIPTS OF HEARING EXAMINER HEARING File Number AP-05-122 January 19, 2006 Mr. Largen: My name is Don Largen. I am the Hearing Examiner on today's case, which is Appeal Number AP-05-122 by Mr. William English of a staff decision regarding the discontinuation of a duplex use in a single-family zone. Mike Thies is the Code Enforcement Inspector, who is in attendance. Duane Bowman, Development Services Director is also in attendance, as well as Mr. English. Welcome. Mike, why don't you give us a quick run down of the history of this case so far, and then I have a couple of questions. Mr. Thies: Okay. The City received an inquiry regarding a duplex or triplex at this particular address, and the people were living the garage. I investigated and found out that their garage had been converted. I went through the records in the City to see if any permits had been obtained and saw that there weren't. I made contact with Mr. English. He went through the house with me, or went through the lower floor and the outside of the house and explained to me what had happened. Then the City came up with their position, which was that permits were required, both from planning and building to make any conversion of the house from a single-family house to anything other than that. Mr. English felt that because of the letter he had received from Jason Tourtellot that he had done his diligence and that it was okay, and the City's position continued to be that it needed permits in order to have gone any further from a single-family. Mr. Largen: I have, pardon me if my voice starts going south on me today, forgive me, I have been kind of getting over a cold myself. Mr. English, have you gotten staff s report and the various attachments? Mr. English: Yes. Mr. Largen: So you are aware of the information that's in here. I forget which note in here or where it occurred in this information, but there was a comment made in the City's correspondence that Tourtellot both neither had the authority to make the determination he did and that it was an error. Could you explain first the authority part, in this case the code inspector's authority begins and ends in relationship to this. The reason I am asking is, I didn't find a clear explanation within this body of materials back to Mr. English as to why Mr. Tourtellot's authority was limited in that case. Mr. Thies: Well, just in the logic that if a building permit is required, no person that works for the City can come up and say you don't have to get a building permit. Mr. Largen: So basically, in lieu of a permit, none of you have the ability to come in and say that's okay with me. Mr. Thies: Correct. Mr. Largen: All right. Relative to the other part that he was in error, was that referenced to the PRD allowing a duplex? Mr. Thies: No, there being that he made an error in making any kind of statement or sending out a letter that might have been construed as meaning you don't need a building permit. Mr. Bowman: In addition, he was, in fact, in error about the PRD, itself. The PRD, itself, does not specifically allow a duplex at this particular location. Duplexes were allowed in that PRD, but on very specific lots that were identified in the PRD. This lot is not one of those lots. Mr. Largen: Okay. That answers my second question. Thank you. Mr. English, you prepared a presentation, and I am sure you would like to give it to us. And just for the record, if you could state your name and address. Mr. English, does the presentation you are about to give us substantially follow the correspondence I have been privy to so far? Mr. English: Would you ask that again? Mr. Largen: I am sorry. The information you are about to show us up on the screen and your presentation, basically follows pretty much the argument that I have been finding in your letters and emails? Mr. English: Yes, it should, except I am putting in kind of a story form, if you will indulge me. Mr. Largen: I love stories. Mr. English: So this is basically what I am going to talk about. Who I am, I am going to introduce myself. Why am I here, and what do I hope to accomplish, and now what follows. First of all, who am I? You have already identified I am William English. I am 68 years old, and retired. I have purchased the place that we are talking about on Shell Valley Road. That was back on November 7, 2002. What do I hope to accomplish? Well, before I purchased the property, I was told by the City and by the seller and seller's agents, who had also been told by the City, that the property can be used as a duplex and that the apartment in the garage is not illegal. Mr. Largen: Okay, quick question for you. I am aware of the letter from Mr. Tourtellot to the previous owners, and that would cover the sellers and seller's agent. Your first statement was I was told by the City. Mr. English: Yes. I spoke to Mr. Tourtellot on the phone. Mr. Largen: Okay, so you had a conversation with Mr. Tourtellot, also. Okay, I just wanted that clarification. Thank you. Mr. English: Two and a half years later I have been told by the City that they have changed their mind. Hopefully, I can find someone who can see the wrongfulness of that and with enough integrity to provide me some redress. As I have just suggested, this is not strictly a land use issue, and it can't be adjudicated on the facts alone. The more important part of the picture has to do with integrity, right and wrong, points of view, and due process. In order to bring you into that picture, I will quickly run through a sort of storybook version of what got us to where we are today. Mr. English: First of all, let's talk about the PRD. Back in the 70's, this area, Shell Valley Road area, was developed. It was called a planned residential development, which was a sort of modern idea at the time, I guess, developing a strictly residential area, but with multiple land use configurations, including significant common area. There were to major points of voice that one could derive from the documents that I have looked at. They were looking for low -density structures, limited structures per parcel, and in some cases as many as three. Low -density population, mostly single-family dwellings with a smattering of plexes. Mr. English: In that era, Mr. Hugh McKenzie bought the property and built is home, and then continued over the years to make internal improvements. One improvement, the building of a family room, I think, altered the structure of the roof, and he obtained City approval. Otherwise, he did not. Mr. English: We have a complaint. Code Enforcement Specialist Tourtellot, this is in 1998, excuse me, this is Mr. Tourtellot that we have been speaking about, responds to the complaint, a fairly egregious violation of property restrictions, it would seem. They had a trailer parked out in the back, had wires hooked up to it and basically had established another structure on the property and people were living in it. Mr. Tourtellot told them they could stop doing that, and they did. They made all of the changes that he had requested so the complaint was resolved and Tourtellot closed the file. He says, in the letter to the McKenzies, violations of the ECDC no longer exist. Your lot can be used as a duplex. The apartment in the garage is not illegal, case file closed. Verbatim Hearing Examiner Transcripts File Number AP-05-122 January 19, 2006 Page 2 Mr. English: In 2002 the property went up for sale. Hugh had died and Betty, his wife, decided she wanted to go back to Georgia. The house at the time was being used as a duplex and was listed for sale as a duplex and the agent confirms it is a duplex. Along comes the English fellow and when inquiring, he was told, why don't you call the City and make sure that we are telling you right. So I did, I talked to Mr. Tourtellot, and he confirmed that the property meets with code. So I bought the place, take possession, and move my furniture into the lower unit, which is referred to in most of my correspondence as a mother-in-law suite. I managed to get a tenant for the main house about four months later. Two years later, then, a tenant of the main house that I had achieve leaves and the house is vacant for another six months. I might mention that all this time, even when I was looking to purchase the house, the garage apartment, studio apartment is occupied by a tenant who has been there since, well, he has been there for at least ten years. I changed property managers because the property manager wasn't getting me a tenant. In May 2005, I got a new tenant and about the same time I got the letter from Michael Thies. Mr. English: That's the background. Now, I wanted to talk to you a little bit about my assertion at the beginning that this isn't just a matter of facts. Much of what is going on here is strongly effected by language and interpretation. I want to show you some examples. The PRD language, and I am quoting here now and I hope you can see the clumsiness of this language. No lots shall be used except for residential purposes. No buildings shall be erected, altered, placed or permitted to remain on any lot other than on detached single-family dwelling with a private garage, except that. So on and so on, may contain six dwelling units, with a maximum of two units per structure. Mr. English: The City language, in 1999 from Jason, I will repeat again. During my last inspection, I concluded that the violations of the Edmonds Community Development Code no longer exists. Design of this, and as Michael has pointed out, PRD (whatever the number is) allows for your lot to be used as a duplex. The apartment in the garage is not illegal. Now, from my view, there is an interpretation there by Tourtellot of a language in the previous slide that says that he reads that it is possible they are talking about structures and not elsewise, and I will come to that in a minute. In fact, I would like to read that. My comments in my application said this. I am a qualified teacher, I teach English to foreigners. I am contracted by the University among other things, to help graduate students in the proper structure, grammar and presentation of their thesis work. On behalf of Hugh McKenzie, who built this house in 1979, I can easily see great difficulty in reading into the language that is there what the City is trying to read into it today. The part just quoted is trying to restrict building to one structure per lot. The first sentence of any paragraph sets the scene. We are talking about a residential development, with residential homes, for residential purposes. Consider the contrast, when it goes on to say, still in the same paragraph, except that Lot 9 in Division 1 and Lots 8, 10 and 34 in Division 2 may contain six dwelling units with a maximum of two units per structure. Even here, it is not clear whether they are talking about a permissible six structures, or only a maximum of three, but they are certainly addressing structures. Mr. English: Then in Michael's letter to me in September of 2005, the language that you just spoke about, Mr. Tourtellot did not have the authority to, nor was he correct in his determination that the garage apartment was not illegal. He did not have the authority to refer to it as a duplex. The City, in October of 2005, and in some exchange now with Duane Bowman, have this statement. The City does not dispute the fact that Jason Tourtellot said that there could be two dwelling units on your property. He did not, however, approve three dwelling units. Well, there is no dispute over that, but this language says to me, hey, what are we arguing about then. I am only asking for the status quo. I am asking for the fact that this is a duplex and house, and this letter from Duane seems to say, yes, we are not disputing that. But it turns out that it is really a little bit of double talk because they say that this language on the one hand, and then they come back to me and say, however, you have to get permission for one of the units to be an ADU. Now, that's different than a duplex, and I don't think I need to explain why. Mr. English: So, I finally sent a letter to Duane saying, I want you to take a position on this Tourtellot letter that is clear. I want you to say either we, the City, accept that the Tourtellot letter is a commitment of the City or to say that you disavow it, and then silence. Now, I am at a hearing that is slightly different in intent than what I originally thought. Now, it is said that I am challenging the staff decision regarding discontinuation of a duplex use. I don't know why that language changed, but it obviously was reflected in my request for a position on the Tourtellot letter. So now we have them accepting the idea that the Tourtellot letter was apparently okay, but now they want to discontinue that okay. So that's what I am here, as I said at the beginning, to try to accomplish. The City changing its mind and now reneging on what I was led to believe was a duplex, which influenced my purchase decision and will impact me significantly financially and otherwise. Verbatim Hearing Examiner Transcripts File Number AP-05-122 January 19, 2006 Page 3 Mr. Largen: Okay. Thank you. I don't have any questions right at the moment. Question for staff, and I may be putting you on the spot because you folks don't normally get into this kind of permitting. But do you know, in this particular PRD, how many duplexes were allowed at the time and whether it has come anywhere close to meeting the statutory limit? Mr. English: While they are looking that up, can I just add to that, that when I was about to purchase the property, not only did I check with Mr. Tourtellot, but I looked around. It might be of interest to you to know that right next door and next door and next door are duplexes. Mr. Largen: I understand. Mr. Thies: Just from the recorded Attachment 3, I am not sure exactly how many ended up existing there, but it does say no building shall be erected, altered or permitted to remain on the lot except that Lot 9 in Division 1 and Lots 8, 10 and 34 in Division 2 may contain six dwelling units with a maximum of two units per structure. So it basically just included those lots, that's Number 2 on Attachment 3. Mr. Largen: Right, I see that. Thank you. How many lots in that PRD? Do you know? Mr. Thies: I don't know. Mr. Largen: Okay. Since these reports were assembled, has there been any other new information from either the appellant or staff that's been uncovered that might shed some light on this? I was just wondering if, between the time that this packet of information was prepared, whether there has been any other new information that may affect this case, that you know of. It looks like both parties have done a pretty thorough job. There's been no uncovered letter or anything like that that has come down the pike? Okay, very good. Mr. English: The letter from Jason Tourtellot, that the previous owner managed to find in her file, was not in Michael Thiess' file. This file should be part of the (Mr. English was not at the microphone, so I could not hear what he was saying). Mr. Largen: So you weren't able to find it in the file, either. Mr. Thies: No. Mr. Largen: That's unfortunate. I just wanted to point one thing out to both staff and Mr. English, that in your presentation, I think it is your fourth box in talking about the more important part of the picture has to do with integrity, right or wrong, points of view and due process. In my capacity as the Hearing Examiner, I am allowed to function within the City's code, but I don't get to look at things like due process. That's outside the purview. I am quasi-judicial under state statutes. I just wanted to let you know that I have that limitation. Mr. English: Let me explain what I mean by that. When I got the letter from Mike Thies, I am not sure if I am pronouncing his name right, I am sorry, it included the application for a hearing or an appeal, excuse me. I wasn't really wanting to appeal the facts. The facts are there are no building permits for that. But I did want to appeal his denial or his overturning. To me, that was an issue that wouldn't really come before somebody like yourself. It isn't a land use issue. It is an integrity issue. It's a "my word is my bond" issue. So I even said in my appeal that I don't think this is the right process, but I don't know what else to do. Mr. Largen: Yeah, we have to kind of play the process out, as it were, and this is your next step. Mr. English: Then I hope that you can understand why I have emphasized the vagueness of the language in that.. . Anyway, the point is that on faith I bought a piece of property, not on faith, on fact. And it has turned out to be quite a burden for me, and I would like somebody to have some flexibility in listening to this to say, well okay, but in this case, maybe we need to have Mr. English get the building permits after the fact and make everybody copasetic with this. Instead, they offer me an ADU, is that the right term? And that, of course, doesn't satisfy me because I can't rent out both parts of the unit, then because it is not a duplex. Verbatim Hearing Examiner Transcripts File Number AP-05-122 January 19, 2006 Page 4 Mr. Largen: Right. I notice there are two other folks in the audience today. Would either one of you like to speak to this issue? And if you could please state your name and address for the record. Mr. Rutledge: Alvin Rutledge, 7101 Lake Ballinger Way, Edmonds. Going through the information here, I don't see some issues here that should be addressed. One is your seller and your buyer, real estate contract. When you buy a piece of property, you put amendment in them. This has been going on, I believe, since April here. I couldn't see anything in here that relates to that. If there is a problem with that, then it is just back to the City where you contact the real estate people and you put them on a list when you sell property in this City to make sure that they don't make a mistake again. That should be adjusted, and I don't see anything on that here. I think that's a very important issue. Mr. Rutledge: The next issue is, you know, there's a right-of-way clause in this state. I brought this up to the City quite a few years ago, back in the 90's and waterfront. Right-of-ways and streets for seven years. If you vacate a piece or if you don't go through it, it is open to anybody. I don't know where this would stand here, where this has been over seven years where nothing has been done with the City. Mr. Largen: I am sorry, I think you lost me. What are you referencing here? Mr. Rutledge: I am saying is that there is a state law for vacancy on a piece of property. Basically, that was put in for waterfront property. But basically, and you have a piece of ground that you have not maintained or done anything on, after seven years, anybody can apply to do anything they want on that piece of ground. The only thing I am saying here is, I do not know where that would apply in this situation where the City, apparently on the garage whatever, have not been out there and done anything on it for seven years. I don't know where that would go in. But that's an issue that you have to address to make sure this is a problem here. Mr. Rutledge: You did cover a lot of other issues here, like you know, your county and everything. So I think those questions are all answered here. The other one is, legal wise now. If this goes to City Council, I would address a legal issue because the illegal issue would be when you let Council Members to come into the Council for the following year, this issue is brought up here all in 2005, and anytime you have an elected official coming in, that person has to be voted on by the Council to be on this issue, or that person has to come these hearings and also to know the items. So I do address, if this here does go to the Council, I would first have to legalize that you have a new Council Member, and the Council Member should be here and should know all of these issues. I believe that covers exactly where I am... I think those are the main issues as that... I think that real estate issue is a very important issue, what is on that contract. Mr. Largen: Okay, thank you very much. Mr. Thorpe: My name is David Thorpe. I live at 21117 Shell Valley Road. Mr. Largen: Could you spell your last name for me, please? Mr. Thorpe: T H O R P E Mr. Largen: Oh, Thorpe, okay thank you. Mr. Thorpe: I am not very well versed and don't have the packet in my had early enough, so I just saw the sign and I came down with a couple of days. So I am not real prepared, but some of the comments that were made, I can understand the frustration by the homeowner. Having dealt with the City on different issues currently and in the past, I have always found in my instances, the City has been very open and receiving and fairly well informed. However, I have also noticed, which is sensible, when it comes down to anything that might be construed as legal advice, they steer clear and are neutral with that. Mr. Thorpe: The unfortunate letter that was written and the understanding from the previous City personnel no doubt is frustrating for the homeowner in this instance. But I also find that, along with City personnel, when you are dealing with real estate agents, you have to take their information with a grain of salt. I am going through something like that in that issue that we are dealing with on our own. Although they represent the buyers and the sellers, especially when homeowners are thinking of either remodeling, expanding, even possibly sub dividing, the onus is on the homeowner to do the homework to Verbatim Hearing Examiner Transcripts File Number AP-05-122 January 19, 2006 Page 5 make sure that everything is done. I guess sometimes you can do as much as you think you can, and if you go to the City and you get a verbal okay, that for some people, forges ahead and it can go through. But in this particular area, we are concerned with the number of duplexes that have gone up in the past. We are very diligent about keeping the area, as much as we can, single-family residences. It buffers the park and it is a great greenway to connect with that park. This house is also, in the last few years, it has been either rental or vacant a lot of the times. There was the trailer that was down there. That concerned myself and my wife, but we never called or did anything with that. Mr. Thorpe: But again, we are very concerned about trying to keep this single-family residential. We would strongly urge you to make that decision in that form. Unfortunately, somebody has to lose here, and I understand integrity and word of honor is here. I am not trying to judge on any of that. I am just selfish and I know the property owner has every right to develop as he wants, but from my point of view, I definitely would not want another duplex down on Shell Valley Road. Thank you. Mr. Largen: Just a quick comment, maybe to get your opinion on this since you are here. It has been used as a duplex for a number of years now. Has there been any serious problem with that in the past? Mr. Thorpe: No. Mr. Largen: Going back to your statement that you didn't want to see any more duplexes, and in a sense, from all practical purposes, have had a unit that has been functioning as one for a while now. I am just wondering if there has been serious negative impacts to the surrounding as a result. Mr. Thorpe: No. My only comment on that would be density increases and traffic increases. For most of the past few years, it has either been vacant or there was the trailer. There has been no problem outstanding, but it is density. Mr. Largen: Thank you, David. I appreciate it. At this point, I don't have any further questions. Mr. English, is there anything else you would like to add at this point? Mr. English: I guess, listening to Mr. Thorpe, reminded me that I was concerned about why this issue came up in the first place. I though perhaps it was a neighbor complaining, but I am pretty much sure that that wasn't the case. What I think it was, in the documentation I received, it was the person from the electric, the meter reader, or the person who turns on the electricity, who noted that the garage was being lived in. Mr. English: At the time, again going back to Mr. Thorpe's comments, there was only one person living in the whole building. He was in the studio unit in the garage. But the rest of the building was vacant, so in terms of population density, I don't think that's been too much of an issue. Even now, even now when I have the tenant in the main house, that's just two people there, so there's three people in the house. Most families are four people. Mr. Largen: Okay. Thank you. Again, I want to reiterate both to staff and Mr. English and the folks in attendance here that people often have the impression that someone sitting in my chair has a fair amount of latitude in what he can and can't do in the context of the City Code. I mentioned a little earlier that I don't have the authority to address things such as due process, for example. I just wanted to make sure that all parties are clear that my authority rests solely within the context of what's given to me by Council through City ordinances. Mr. English: That reminds me. One of the things that I wanted to suggest, and I did in some exchange, I think with Duane Bowman, the real lynch pin problem here is the idea of a duplex verses an ADU. What's the big difference there? Well, there's at least one big difference and that is that an ADU means I have to live in the building. And I talked to a lawyer, I couldn't afford to get one involved, but I talked to a lawyer and he suggested, see if there's any sort of ADU that doesn't require that. Is there, now you are talking about the latitude that you might have... Is there some compromise here that would satisfy the City's need and even satisfy Mr. Thorpe's need and yet not disadvantage me in being able to rent the place out. Mr. Largen: Understood. Thank you. Unless staff has any other comments today. Anything you would like to add in clarifications? Verbatim Hearing Examiner Transcripts File Number AP-05-122 January 19, 2006 Page 6 Mr. Thies: No. Mr. Largen: Then I am going to close the hearing on Appeal Case Number 05-122. Let the record show that that ended at 3:37 p.m. Thank you all very much. I TESTIFY THAT THESE VERBATIM TRANSCRIPTS ARE COMPLETE AND ACCURATE TO THE BEST OF MY ABILITY TO TRANSCRIBE THE PROCEEDINGS. Karin Noyes, Transcriber Date Verbatim Hearing Examiner Transcripts File Number AP-05-122 January 19, 2006 Page 7