2010-05-03 HEX# 10-003 Notice of AppealCzeccl,- L� lot � to
DICKSON 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
7o1 Fifth Avenue
Seattle, WA 98104
Telephone: (2o6) 621-1110
Facsimile: (253) 572-1300
City Clerk of Federal Way
c/o 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`h 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(I)(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(I)(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.(I)(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
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Case No. 08-101739-00-VO
April 7, 2010
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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
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Case No. 08-101739-00-VO
April 7, 2010
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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 ofpersons.
Sincerely,
DICKSON STEINACKER LLP
Robert P. Dickson
Cc. Client
040810 Swain 8210