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2010-05-03 HEX# 10-003 Exhibit DExhibit "D" t2.eccl.-'� 10, � t o DImoN STEINACKER PS Attorneys at Law Reply to Tacoma Office 1401 Wells Fargo Plaza 1201 Pacific Avenue Tacoma, WA 98402 Telephone: (253) 572-1000 Facsimile: (253) 572-1300 April 8, 2010 4201 Bank of America Tower 701 Fifth Avenue Seattle, WA 98104 Telephone: (2o6) 621-1110 Facsimile: (253) 572-1300 City Clerk of Federal Way c% Carol McNeilly, City Clerk 33325 8`" Avenue South, 2"d Floor Federal Way, WA 98063 Thomas L. Dickson Kevin T. Steinacker Shane L. Yelish Robert P. Dickson Wendy L. Koch Andrew C. Cratsenberg, Jr. Notice of Appeal NOTICE OF VIOLATION, ORDER TO CORRECT VIOLATION Case No. 08-101739-00-VO Factual Background On April 1, 2010, this office received a Notice of Violation and Order to Correct Violation pursuant to Federal Way Revised Code no. 1.15.040. The general allegation is that Roy Swain, owner of the property in question at 30808 28" Ave. South, is improperly conducting a home business on the parcel. In approaching the various issues that are alleged to be on the property, it is important to bear in mind the larger context in which the property is being utilized. Mr. Swain owns a company called Earthtech, which specializes in landscaping projects and maintenance. It has been able to continue its business in spite of the severe downturn in the local economy which has persisted over the past few years. Earthtech provides gainful employment for dozens of individuals, which includes not only a living wage, but room for advancement within the organization. The use of the property is very subtle, and is in keeping with all of the surrounding properties. There is no heavy equipment in use on the property, nor are there obnoxious or loud noises, smells, or any other bothersome activity present which adversely affects the neighborhood. In fact, the property is entirely enclosed by a wood -slate fence. Code Enforcement Officer Cynthia Keirsey outlined several activities which she claims to be ongoing on the property. Unfortunately, much of her report was either inaccurate, or simply not a Appeal of Notice of Violation and Order to Correct Case No. 08-101739-00-VO April 7, 2010 Page 2 of 4 fair assessment of Mr. Swain's home business. Consequently, Mr. Swain respectfully appeals the entire Notice of Violation and Order to Correct. The following section discusses what specific issues are inaccurate, including specific responses to allegations which are not violations of the code, or in the alternative, are easily remedied. Analysis and Discussion 1. FWRC 19.125.160: Ms. Keirsey alleges that Mr. Swain has several storage sheds within the setbacks of the property. Mr. Swain measured the distances for his sheds, and observed that they were over four (4) feet from the property line, but not quite five (5). Consequently, he has agreed to shift them back one (1) foot in order to come into compliance. 2. FWRC 19.270.0301050: Ms. Keirsey alleges that Mr. Swain was improperly storing items on the outside of the property, and was utilizing the property as business improperly. To justify this claim, she states that she peaked through the slats in the fence and witnessed vehicles parked in the driveway, a secretary sitting in the home, a vehicles parked in other places on the property. The date of these inspections are spread out — one occurring on December 28, 2009, and the other on March 12, 2010. The main code provision cited for this infraction is FWRC 19.270.030. Mr. Swain contests and appeals the following provisions that were allegedly violated: a. FWRC 19.270.030(1)(a): Though Mr. Swain does own other property, he spends the majority of his time at this residence and considers it a home business. The City has not presented any definitive outline or definition of how a "residency" is established. Consequently, Mr. Swain appeals this component of the violation. b. FWRC 19.270.030(1)(d): The violation documents highlight a portion of the code which they state excludes any "pickup or delivery by commercial vehicles". This reference is incomplete. The code actually states that there can be no "pickups or deliveries by commercial vehicles over 26,000 gross vehicle weight...". Put in more common terms, commercial trucks that weigh 26,000 GVWR are trucks which resemble short -box semis. According to the National Truck Equipment Association, a "Class 7" trucks have a GVWR of 26,001 to 33,000 pounds. Ms. Keirsey cites this as an infraction, yet Mr. Swain does not receive nor accept deliveries from vehicles of this nature. In fact, the trucks that are listed as being on the property fall within the acceptable sizes allowed in a residential area, and are coincidentally, considered Class 2 or Class 3 vehicles (as their GVWR are within the 6,000 to 14,000 range). As a result of this oversight, Mr. Swain appeals this portion of the infraction. c. FWRC 19.270.(1)(e): The violation document next alleges that the business has more than the code limit of individuals visiting the property for goods and services. Specifically, the law states that no "more than four persons per day" may come "to the Appeal of Notice of Violation and Order to Correct Case No. 08-101739-00-VO April 7, 2010 Page 3 of 4 subject property for goods or services." Ms. Keirsey's characterization of the visitations by individuals is inaccurate. Not one individual she allegedly witnessed visiting Mr. Swain's property was there to either "purchase goods," or utilize "services" provided on the property. Just the opposite: if individuals were witnessed in or around the property, it was most likely the assembling of employees for purposes that are not related to the residence which houses the business. This code provision is intended to prevent businesses within a residential area from having large influxes of customers traveling to and from a property. The idea is that this might generate higher traffic, parking congestion, and disturb the surrounding properties. Individuals who stop by Mr. Swain's property are not there to obtain goods or services; rather, they are simply stopping there for a short period in order to assemble, or pick up material needed for their projects that day. As admitted in Ms. Keirsey's document, these individuals were there for a short time and left. It was not observed that they were there to purchase a good or utilize a service generated on the property. Given that this code provision was not violated, Mr. Swain appeals this portion of the citation as well. d. FWRC 19.270.(1)09: The violation notice highlights the contention that the use of the property is creating "noise, dust, glare, vibration, odor, smoke, or other impact adverse to a residential area." This statement is made without outlining how such factors have been observed other than simply stating that since other uses (in Ms. Keirsey's opinion) are in violation, it therefore means that the property is not in keeping with the surrounding neighborhood. Under the code, each home -occupancy code requirement carries an individual meaning. This means that each part is self-executing. In other words, the home occupancy requirement may be violated in terms of people coming to the property for goods and services, or by having improper storage outside, but STILL not create any "noise, dust, glare, vibration, odor, smoke, or other adverse impact[s]" to the surrounding neighborhood. In her violation paper work, Ms. Keirsey did not cite any observable disturbances beyond those already discussed in the other alleged code violations (as discussed above). Be that as it may, Mr. Swain's home business is primarily conducted off -site. Therefore, it literally creates no disturbances to the surrounding properties. He does not endeavor any activities which are out of the norm, other than occasionally have people park a few vehicles on the lot. It is telling that the single biggest complaints about his property, is that it appears that a business is being conducted at the home. No reference is made to any other visual or auditory disturbances (such as loud or obnoxious noises, sounds, vibrations, smoke, smell, dust, or glare). As a result, Mr. Swain also objects to this portion of the citation and requests that it be appealed. Conclusion and discussion of FWRC 19.270.030(2) Mr. Swain respectfully appeals the violation in general, and intends to explain in greater detail before a hearing examiner why his business comports with the City's code requirements. Even if his property is found to be in violation of that code provision, Mr. Swain intends to pursue relief through Appeal of Notice of Violation and Order to Correct Case No. 08-101739-00-VO April 7, 2010 Page 4 of 4 FWRC 19.270.030(2). This provision affords home occupations which don't fit perfectly into FWRC 19.270.030(1)'s strict limitations, with an opportunity to seek review and approval through "Process III." Mr. Swain's use of the property as a home business is a perfect candidate for this course of relief as his property as it falls within the rubric established in that code provision — Earthtech (a) does not harm the character of the surrounding neighborhood, (b) will not include outside storage of machinery or commercial vehicles or cause adverse effects to other properties, nor does it (c) endanger the comfort, repose, health, or safety of persons. Sincerely, DICKSON STEINACKER LLP Robert P. Dickson Cc. Client 040810 Swain 8210 DUPLICATE DUPLICATE DUPLICATE DUPLICATE CITY OF FEDERAL WAY CITY HALL MANAGEMENT SERVICES 33325 8TH AVE S FEDERAL WAY WA. 98003 Rey# #/Rcpt#: 001-00079902 L CR Accounting Date: Fri, Apr 9, 2010 Date/Time: Fri, Apr 9, 2010 3:36 PM 8035\PW - DEVELOPMENT REVIEW FEES 101-0000-000-345-81-002 N&O APPEAL EARTH TECH INDUSTRI FEE AMOUNT: $100.00 RECEIPT TOTAL. _ $100 00 Payment Data: Pmt# 1 Payer. EARTH TECH INDUSTRIES LLC Method: CK Ref#: 10609 AMOUNT = $100:00 RECEIPT SUMMARY TOTAL TENDERED r $100.00 RECEIPT TOTAL - $100,00 CHANGE DUE - $0.00 HAVE A NICE DAY! DUPLICATE DUPLICATE DUPLICATE DUPLICATE