CAR-03-616_Order Reversing Decision CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Notice of Violation Under City )
Ordinance No. 03-067 ) ORDER
Alleged Violator: Garth B. Peterson ) REVERSING
File No. CAR-03-616 ) DECISION
This matter coming on for reconsideration of the Hearing Examiner's decision
issued on December 29, 2003 in the above entitled matter,the Hearing Examiner, after
review of the request for reconsideration submitted by Garth Peterson, and the response
submitted by the City of Spokane Valley, and after a thorough review of the tape of the
hearing held in the above matter on December 18, 2003 and the entire record,hereby
makes the following findings of fact, conclusions of law and decision:
I. FINDINGS OF FACT
1. On December 29, 2003, the Hearing Examiner issued a written decision in the
above file,upholding the Notice of Violation and imposing a civil monetary penalty of
$250 against Garth Peterson and the subject property. The decision was sent the same
day by certified mail to Garth Peterson at his current address of 2619 W. Rockwell
Avenue, Spokane,Washington 99205; and at the site address of 122 N. Conklin Road,
Spokane Valley,Washington 99037-9513.
2. On January 20,2004, in response to an inquiry from Rena Peterson on behalf of
Garth Peterson, the Examiner advised such representative by e-mail that a request for
reconsideration regarding the decision could be submitted to the Examiner prior to the
expiration of the appeal period at 5:00 p.m. on January 23,2004.
3. On January 23,2004, at 8:30 a.m.,prior to expiration of the appeal period on the
decision, Garth Peterson submitted a request for reconsideration of the Examiner's
decision. This included a letter and three (3) attached exhibits. On the same day, the
Examiner issued a letter extending the appeal period to allow consideration of the request
for reconsideration.
4. On January 29,2004,the City of Spokane Valley submitted a response to the
request for reconsideration through its Deputy City Attorney, Cary Driskell.
5. The City's response correctly points out that the proper standard for
reconsideration of City Hearing Examiner decisions,including decisions under Ordinance
No. 03-067, is set forth in Section 14 of City Ordinance No. 03-057. Such standard
prevails over the standard for reconsideration set forth in the Hearing Examiner Rules of
Procedure, adopted by County Resolution No. 96-0294 and incorporated by reference in
Section 16 of City Ordinance No 03-057. See Section 16 of City Ordinance No 03-057.
Order Reconsidering Decision CAR-03-616 Page 1
6. The exhibits attached to the request for reconsideration reference some of the
legislative history of Ordinance No. 03-067, and other matters outside the record. Such
information is inadmissible under Section 14 of City Ordinance No. 03-057,because such
information was available and could have been presented at the public hearing. In
addition, Ordinance No. 03-067 is not ambiguous in its operative language, such that the
legislative history of the ordinance is relevant. The exhibits are therefore excluded from
consideration.
7. The Examiner's decision found that the 1958 Pontiac Starfire hardtop located at
the west edge of the front driveway of the subject property had a"broken"window, and
was therefore"extensively damaged". The only evidence of such damage in the record is
a statement made by Rena Peterson at the end of the public hearing that a windshield on
the vehicle"might"be cracked. Chris Berg, Code Enforcement Officer for the City, did
not claim that the windshield of this vehicle was cracked or broken based on any personal
observations,nor is such damage apparent from any of the photos in the record.
Accordingly, there is insufficient evidence to establish the vehicle as having a broken
window or being extensively damaged.
8. The Examiner's decision found that the front end of the 1953 Hudson Hornet,
located under a tarp in the carport,was"extensively damaged". The only evidence of
such damage in the record was Garth Peterson's statement during the hearing that the
front end of the vehicle was damaged,without elaborating on the extent of the damage.
Rena Peterson later qualified this statement by testifying that the front end of the vehicle
was only corroded, and that the remainder of the vehicle was in beautiful condition.
9. Garth Peterson testified that the 1953 Hudson Hornet had only 30,000 miles on it
and was worth$11,000 to $15,000 as a collector vehicle. The City did not claim that
such vehicle was extensively damaged based on any personal observations. The front of
the vehicle is covered and is not visible in any of the photos in the record. There is not
sufficient evidence to establish the vehicle as being extensively damaged.
10. The Examiner's decision found that at least two vehicles, or vehicle remnants, in
the back yard of the house on the site were visible through a gap in the fence located
along the west side of the property, and were extensively damaged. The Examiner based
such conclusion on the photos in the file,which show one vehicle with a tire on the top
and possibly the remnant of a vehicle closest to the fence.
11. The fact that a tire is stacked on top of the vehicle is not sufficient to prove that
such vehicle is missing a tire and therefore extensively damaged. Further,upon closer
review of the photographs,what the Examiner assumed was a vehicle hulk actually
appears to be something else, such as an old trailer. There is insufficient evidence in the
record to conclude that there were two extensively damaged vehicles located in the rear
yard.
12. Chris Berg did testify at the hearing that two of the other vehicles in the front
driveway, the 1967 Pontiac convertible and the 1967 Rambler convertible,had missing or
Order Reconsidering Decision CAR-03-616 Page 2
"broken"windows,based solely on the fact that the photos showed an open window on
the front driver's window on each vehicle. However,Rena Peterson testified that such
windows were not broken and likely just rolled down.
13. Chris Berg testified that the 1967 Pontiac convertible and the 1967 Rambler
convertible had flat or low tires,to which Rena Peterson testified that the tires were
simply low and not flat. These facts are irrelevant, since the tires must be missing to
establish the vehicles as being"extensively damaged".
14. The decision correctly concluded that the1967 Pontiac convertible and the 1967
Rambler located in the front driveway were not extensively damaged,because there was
insufficient evidence in the record to prove that such vehicles either had broken windows
or missing tires. and were therefore"extensively damaged".
15. Garth and Rena Peterson testified that the fair market value of all the vehicles on
the site exceeded the scrap value of the vehicles. The City did not rebut such evidence by
competent proof, for any of the vehicles on the site claimed to be"junk vehicles".
16. Several vehicles are located in the back yard of the property besides the vehicle
with a tire on the top, some of which vehicles are covered. The City did not present any
information regarding their age, condition or fair market value. Garth and Rena Peterson
conceded that these vehicles had been on the site for several years and were not currently
operable. The decision correctly did not find such vehicles to be"junk vehicles",because
the City did not establish that the vehicles were extensively damaged or have a fair
market value equal or less than scrap value.
17. It is quite possible that some of the vehicles on the site do meet the defmition of
"junk vehicles". However,the City did not present adequate evidence for the Examiner
to determine this.
18. Because no one currently lives on the property,the storage of vehicles on the site
may be in violation of the County Zoning Code as not being a lawful use of the property,
or accessory to a lawful use. However,this issue is not properly before the Examiner.
Garth Peterson did indicate a willingness to work with the City in eliminating vehicles
not lawfully located on the site.
19. With regard to the other issues raised in the request for reconsideration,the
Examiner rules in favor of the City, for the reasons set forth in its reply to the request for
reconsideration.
20. With regard to the claim in the request for reconsideration that the notice of
violation was not supported by a citizen complaint, Chris Berg testified that the
investigation was preceded by a citizen complaint received on October 15, 2003,without
naming the complaining party.
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21. The Examiner takes notice that this notice of violation was the first one to be
heard under Ordinance No. 03-067. Since that time,the Examiner has heard two other
notices of violation under this ordinance, and has become more experienced with the
burden of proof needed to establish a vehicle as a"junk vehicle".
22. The burden is on the City to establish a particular vehicle as meeting three of the
four criteria under the ordinance. This requires that the City provide specific information
regarding each vehicle claimed to be a junk vehicle. In some instances,this may require
City code enforcement staff to conduct an on-site investigation of the premises.
II. CONCLUSIONS OF LAW
1. The City did not establish that the vehicles located on the site substantially met
three(3)of the four(4) criteria set forth for a"junk vehicle"under City Ordinance No.
03-067.
2. The Examiner's decision is based on error of fact or judgment.
3. The Examiner's decision should be reversed and the Notice of Violation should
be dismissed.
4. Since the Examiner's decision is being reversed,the appeal period for the
decision, as reversed, should start anew.
III. DECISION
Based on the above Findings of Fact and Conclusions of Law,the Hearing
Examiner's decision dated December 29,2003 in File No. CAR-03-616 is hereby
reversed and the Notice of Violation in such file is hereby dismissed.
CITY HEARING EXAMINER PRO TEM
(O
Michael C.Dempsey,WSBA#re—
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NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL
Pursuant to chapter 36.70C RCW,the decision of the Hearing Examiner on a Notice of
Violation under City Ordinance No. 03-067 is final and conclusive unless within twenty-one
(21) calendar days from the issuance of the Examiner's decision, a party with standing files
a land use petition in superior court pursuant to chapter 36.70C RCW. Pursuant to chapter
36.70C RCW,the date of issuance of the Hearing Examiner's decision is three(3) days after
it is mailed.
This Decision, as revised,was mailed by Certified Mail to Garth Peterson at his
current residence address of 2619 W. Rockwell Avenue, Spokane, Washington 99205 on
February 3, 2004. The date of issuance of the Examiner's decision is accordingly
February 6, 2004, counting to the next business day when the last day for mailing falls on
a holiday.
THE LAST DAY FOR APPEAL OF THIS DECISION TO SUPERIOR
COURT BY LAND USE PETITION IS FEBRUARY 27,2004.
The complete record in this matter, including this decision,is on file with
the City of Spokane Valley Department of Community Development, Division of Current
Planning, 11707 E. Sprague Avenue, Spokane Valley, WA, (509)921-1000. The file
may be inspected during normal working hours, listed as Monday-Friday of each week,
except holidays,between the hours of 8:30 a.m. and 5:00 p.m. Copies of the documents
in the record will be made available at the cost set by the City of Spokane Valley.
t .
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