2010-05-03 HEX# 10-003 Staff ReportCITY OF
Federal Way
STAFF REPORT TO THE FEDERAL WAY
HEARING EXAMINER
APPEAL OF NOTICE AND ORDER
File Number: 08-101739-00-VO
Issue: Appeal of Notice of Violation — Order to Correct Violation
("Notice and Order") (See Exhibit A)
Location of Violation: 30808 28th Avenue South, Federal Way, WA 98003
("Property") Tax Parcel No. 092104 9138
Property Owner: Roy A. Swain
(See attached King County Assessor's Records of Property as Exhibit Q.
Process Required: Federal Way Revised Code (FWRC) Chapter 1.15, "Civil Enforcement of the
Code — Appeal to the Hearing Examiner"
Date, Time, and Monday, May 3, 2010 at 2:00 PM
Place of Hearing: Federal Way City Council Chambers
Staff Representative: Cindy Keirsey
Code Enforcement Officer
Department of Community Development Services
33325 8t' Avenue South, PO Box 9718, Federal Way, WA 98063
I. STAFF RECOMMENDATION
Uphold the Notice of Violation and Order to Correct and deny the appeal.
II. AUTHORITY
FWRC 1.15.040, provides "[w]henever the code enforcement official determines that a violation has
occurred or is occurring, he or she may issue a notice of violation and an order to correct ("notice
and order") to any person causing, allowing or participating in the violation including the property
owner. The notice and order issued pursuant to this section represents a determination that a
violation of this Code has been committed." This determination is final and conclusive unless
appealed as provided here in. [emphasis added].
III. SUMMARY OF VIOLATIONS
FWRC Chapter 19: FWRC 19.125.160, Structures and improvements.
No improvement or structure may be in a required yard except as follows:
(9) In low and medium density residential zones, the applicant may, through process III, request
approval to locate a storage shed in a required yard, except a required front yard. The city may
approve the application if:
(a) The proposed structure is no more than eight feet high above finished grade;
(b) The maximum length of the facade of the proposed structure parallel to each property
line, from which the required yard is not provided, shall not exceed 10 feet;
(c) The proposed structure contains no more than 120 square feet in total area;
(d) No reasonable alternative location exists on the subject property due to special
circumstances regarding the size, shape, topography or location of the subject property or the
location for legally constructed pre-existing improvements of the subject property; and
(e) Permitting the intrusion onto the required yard will not create a material, negative impact
on the character of nearby residential uses.
Specifically:
• Six small storage sheds have been placed directly adjacent to the property line fence and within
the five foot required yard setback. Regardless of the home occupation, the placement of
detached storage sheds on a property that is zoned RS 7.2, a high density residential use that
encroaches into the five foot wide required side yard setback is a violation of the FWRC
19.125.160, "Structures and Improvements." Per FWRC 19.125.160 (9), only low and medium
density zones can have storage sheds in the setback and only after process III land use approval.
FWRC Chapterl9: FWRC 19.270.030, "Home Occupations," and FWRC 19.270.050, "Accessory
Structures."
19.270.020 Purpose.
The purpose of this chapter is to allow commercial occupations incidental to residential uses to be
located in residences while providing protection to all residents from excessive noise, excessive traffic,
nuisance, fire hazard and other possible effects of commercial uses being conducted in residential areas.
19.270.030 Home occupation.
(1) A home occupation is permitted if it meets all of the following requirements:
(a) The dwelling unit in which the business is located must be the primary residence of the
business owner.
(b) The business must be carried on by a family member(s) who resides in the dwelling unit.
(c) The use must have no outside storage, exterior indication, or outside activity.
(d) The use must not involve those heavy equipment, power tools, or power sources which are
not common to a residential use.
(e) The use must not involve any pickups or deliveries by commercial vehicles over 26,000
pounds gross vehicle weight rating (GVWR) as defined in RCW 46.25.010.
(f) The use must not include more than four persons per day coming to the subject property for
goods or services.
(g) The use must not create any noise, dust, glare, vibration, odor, smoke, or other impact
adverse to a residential area.
(2) A home occupation which does not meet the requirements of subsection (1) of this section may be
approved using process III, if:
(a) It will not harm the character of the surrounding neighborhood;
(b) It will not include outdoor storage or operation of machinery, commercial vehicles, building
materials, or tools which will be visible or audible from or have an effect on other properties; and
(c) It does not create a condition which injures or endangers the comfort, repose, health, or
safety of persons.
19.270.050 Accessory structure.
Structures, other than the dwelling unit, used to house or support the home occupation may not exceed
1,000 square feet in area.
Staff Report to the Hearing Examiner Page 2
Appeal of Notice And Order File Number: 08-101739-00-VO/Doc. I.D. 53683
Specifically:
• A review of the business registration application dated 10-4-2008 and Mr. Swain's driver's
license as shown on the Department of licensing website shows 510 SW 326t" Street as Mr.
Swain's primary residence. (Since this property is not Mr. Swain's primary residence, he is in
violation of subsection, 1, A).
• An early AM inspection on 12-28-09 revealed five fully outfitted landscape trucks with the
engines running and employees staging to leave for the day's work. The blinds were open in the
mobile home residence showing the receptionist sitting at her desk. (Employees that are not
resident family members and numerous trucks creating outside activity, traffic, noise and dust
early in the morning in violation of sub sections], B, C, & G).
• An early AM inspection on 12-28-09 revealed four additional vehicles were parked in the
driveways in front of the house. A commercial box van type truck was parked in the rear yard
behind the house as seen above the fence. A row of shovel heads was visible above the fence.
(Employees or clients creating additional outside activity, noise from commercial type trucks and
traffic in violation of subsection 1, C, F, & G).
• A site inspection on 3-12-10, revealed a commercial box van type truck, five fully outfitted
landscape trucks, and two additional white pickups without equipment in them parked in the rear
yard. A pickup and a car were parked in the front driveway areas. Rows of shovels and backpack
type sprayer equipment were hung up and visible above the fence. (Excessive outdoor storage of
business related vehicles and equipment, noise and outside activity created from starting and
loading of trucks, added traffic from employees that are not resident family members as vehicles
come and go from the property in violation of subsections], B, C, & G).
• The site inspections on 9-12-2008 and 3-30-2010 revealed the basement garage and the small
storage sheds being used for storage of sprinkler parts, bagged landscape supplies, and equipment
for the landscape business. (The basement garage is 720 sq feet and the six storage sheds are
approx 1OX12 or 120 sq. feet in area each. The accessory storage for the business may exceed the
maximum of 1, 000 sq feet in area in violation of FWRC 19.270.050).
FWRC Chapter 19: FWRC 19.130.250, "Parking and storage of commercial vehicles in residential
zones limited."
Parking or storage of commercial vehicles is prohibited on residentially zoned lots except as follows:
(1) A maximum of one commercial vehicle based on standard pick-up, light duty trucks, or passenger
vehicles, that does not exceed a maximum of 10,000 pounds gross vehicle weight rating (GVWR as
defined in RCW 46.25.010)may be parked on any residentially zoned lot;
(2) A maximum of one commercial vehicle regardless of GVWR may be parked or stored on any lot in
a single-family residential zone (RS 35.0) or a suburban estates zone (SE);
(3) Commercial vehicles may be parked on any lot in a residential zone for a maximum of 48 hours for
the exclusive purpose of loading or unloading the vehicle;
(4) Commercial vehicles may be parked on any lot in a residential zone for construction purposes
pursuant to a valid development permit;
(5) A maximum of one commercial vehicle not more than nine feet in height and 22 feet in length may
be parked on any lot if used for private construction purposes and when it is not visible from a right-of-
way or access easement and not parked in the driveway;
(6) Parking or storage as allowed by FWRC 19.130.270.
Except for commercial vehicles used for loading and unloading purposes and commercial vehicles for
construction purposes with a valid development permit, no more than one commercial vehicle is allowed
per lot.
Staff Report to the Hearing Examiner Page 3
Appeal of Notice And Order File Number: 08-101739-00-VO/Doc. I.D. 53683
Specifically:
• A commercial box van apparently over 10,000 lbs gross vehicle weight, license B23071K, has
been parked and stored in the rear yard and is visible above the fence. The registered owner of the
box van is Earthtech industries and it is registered as a commercially used vehicle.
• Regardless of the home occupation business, vehicles over 10, 000lbs cannot be parked and
stored at this residential property. My experiences with similar commercial vehicles have resulted
in this type of truck exceeding the weight limit. (Vehicles over 10,000 lbs gross vehicle weight do
not fit the code at this property due to 1) it not being under the weight limit, 2) property is not
zoned RS35.0 or SE, 3) the vehicles in not merely loading or unloading, 4)no valid development
permit or construction is taking place, 5) the box van is registered to Earthtech industries, is
commercially used, and is visible above the fence, 6), a process III land use approval has not
been granted to park oversized vehicles on the subject property.
IV. BURDEN OF PROOF
FWRC 1.15.060 (3, C), establishes the required burden of proof for the vacation, affirmance, or
modification of the appeal. It is the responsibility of the appellant to prove by a preponderance of the
evidence that no violation as substantially stated in the Notice and Order occurred.
V. APPEAL
An appeal of the Notice and Order was filed within the 14-day appeal period. A written appeal along
with the appropriate appeal fee was filed with the city on, 4-9-2010, Exhibit "D".
VI. BACKGROUND
As noted in the letter sent by Mr. Swain to city staff dated 7-7-2008, (Exhibit "G") after a home fire at his
personal residence, a business decision was made to consolidate the business to this retirement investment
property not knowing that a zoning violation was being committed. After contact with code enforcement
and being educated about the zoning code standards Mr. Swain was making steps to restructure the
business activity and bring the property into compliance. He sent a letter as noted above to the Building
Official Lee Bailey, admitting that the business could not be located in the residential zone, explaining his
position and requesting an extension of time until winter of 2008 (see Exhibit "G"). In keeping with
department policy, and with the business continuing to be in violation, a civil infraction was written
approximately three months later on September 24, 2008. After listening to a recording of the court
hearing, the infraction was dismissed by the court without review of the circumstances due to the wording
on the affidavit prepared by the code enforcement officer.
The period of time between January 2009 and December 2009 the business activity was not brought into
compliance. The site was further developed to accommodate the business and it has continued to be in
violation. On 3-30-2010 the date that the Notice of Violation was served, I was given permission by the
adjacent neighbor to view the rear yard as seen through the chain link fence between the parcels. The
view of the property revealed 17 vehicles onsite at 2:30 in the afternoon. Most of the Earthtech marked
vehicles appeared to be gone for the day. I believe that a number of the vehicles belong to the field crews
who park their personal vehicles and then drive away for the day's work. The view of the interior of the
basement garage revealed large bags of fertilizer and equipment associated with the business. The yards
had vehicle parking, cut logs, paving blocks, lengths of pipe under the deck and bagged trash that appear
to be related to the landscape business on the property.
Staff Report to the Hearing Examiner Page 4
Appeal of Notice And Order File Number: 08-101739-00-VO/Doc. I.D. 53683
VIL ANALYSIS AND RECOMMENDATION
In response to the Appeal Analysis & Discussion submitted by Robert P. Dickson:
1) FWRC 19.270.160 Mr. Swain admits that the sheds are in the setback and agrees to relocate the
sheds to be at least five feet from the property line.
2) FWRC 19.270.030 (1)
a) Mr. Swain lists his home address at 510 SW 326' Street on his business registration and
his driver's license. He also states in the letter sent to city staff dated July 7, 2008, that
he had a fire at his personal residence and consolidated the business to this address.
b) Although this section is highlighted in the N&O no observations or descriptions of
delivery or pickups by commercial vehicles were noted in the document. This is a non
issue.
c) I agree with the descriptions of the business in the appeal as traffic that is not generated
by individuals coming for goods or services. In a typical home occupation that does not
have employees coming to the residence, the business traffic would be generated only
by individuals coming for goods and services and the code limits the number to four per
day. On 3-30-2010, 17 vehicles were parked on the property in the middle of the day.
Two workers per truck have been seen returning at the end of the work day. The traffic
generated by the employees and other visitors who park out front in this case greatly
exceeds four individuals per day and as such is not in keeping with accepted residential
traffic activity levels for home occupations.
d) The indoor and outdoor storage of materials and equipment results in these items being
loaded into vehicles or employees coming to retrieve such items creating noise and
traffic. The noise generated from the arrival of employees early in the morning,
slamming of truck doors, talking, loading, starting and warming up of numerous
vehicles and ultimately leaving for the day is excessive for a residential zone due to the
sheer number of vehicles and persons involved. The gravel surfacing of the entire rear
yard increases the amount of noise generated from vehicles being moved. It is true that I
have witnessed and photographed mostly stationary conditions on the property; however
it is impossible to conduct the above mentioned activities and not create noise, dust and
traffic. I have lived on properties that have gravel driveways and know from personal
experience that as soon as a vehicle leaves a gravel surface and drives into either a grass
or paved area, the noise is lessened. The pictures that were taken thru the chain link
fence of the adjacent property show a parking lot full of vehicles instead of the grassy
back yard with trees and shrubs that existed prior to Earthtech industries being the
neighbor.
ANALYSIS
The detached storage sheds are in the five foot side yard setback in violation of FWRC, 19.25.160,
Structures and improvements, Mr. Swain has agreed to relocate the sheds and bring this violation into
compliance.
The conduct of the home occupation is in violation of FWRC, 19.270.030 & 19.270.050 due to;
(a) The dwelling unit in which the business is located must be the primary residence of the business
owner. Mr. Swain shows his primary or home address as 510 SW 326`h Street.
(b) The business must be carried on by a family member(s) who resides in the dwelling unit. The
business employs over 20 persons who are not family members and do not reside on the property. Many
of these persons come to the property to conduct the business.
Staff Report to the Hearing Examiner Page 5
Appeal of Notice And Order File Number: 08-101739-00-VO/Doc. I.D. 53683
(c) The use must have no outside storage, exterior indication, or outside activity. The property has
outdoor storage of business related vehicles, debris, supplies including pipe, lumber and landscape
materials. The outside activity includes vehicle traffic, loading and unloading of materials and supplies.
(f) The use must not include more than four persons per day coming to the subject property for
goods or services. The increased vehicle trips from non resident employees exceed four trips per day.
(g) The use must not create any noise, dust, glare, vibration, odor, smoke, or other impact adverse
to a residential area. The noise and dust associated with the vehicle traffic in the rear yard from the
employees, loading and unloading is excessive due to the sheer number of vehicles and items associated
with the business being stored. The appearance of the property is such that it can be recognized as
containing a business from the public right of way and from the adjacent property.
19.270.050 Structures, other than the dwelling unit, used to house or support the home occupation may
not exceed 1,000 square feet in area. The basement garage is 720 sq feet and the six storage sheds are
approx IOX12 or 120 sq feet in area each, totaling approx 1440 sq feet in area.
The parking of a commercial box van that appears to be over 10,000 lbs gross vehicle weight is in
violation of FWRC 19.130.250. This is a violation due to the property being located in an RS 7.5 single
family residential zone and not meeting any of the criteria for commercial vehicle parking in that zone.
RECOMMENDATION
The principal use of the property must be returned to be residential in nature. The home occupation
business must cease having employees that are not resident family members coming to the residence. The
parking and outdoor storage of vehicles, equipment, tools, supplies and debris associated with the
business must cease except as allowed by code. The traffic associated with the business must be reduced
to a level that is reasonable for a residential house and the storage in accessory buildings must be limited
to no more than 1,000 sq feet.
The detached storage sheds must be relocated from encroaching into the five foot required side or rear
yard setbacks. Mr. Swain has already agreed to relocate the sheds out of the setback as noted in the
appeal.
Parking commercial vehicles over 10,000 gross vehicle weight including the commercial box van on the
residentially zoned property must cease, except as allowed by code.
The city staff requests that if the Hearings Examiner upholds the notice of violation, order to correct dated
3-30-2010, that fines be assessed as authorized by code.
Exhibits
"A" Notice and Order served with declaration of personal service, March 30, 2010
• `B" Federal Way Zoning Map & 2007 Aerial photo
• "C" King County Parcel Information
"D" Appeal
• "E" Photos taken 4-15-2008 at the first inspection
• "F" Copy of Warning Letter sent dated June 2, 2008
• "G" Letter received by city staff from Roy Swain dated 7-7-2008
"H" Photos taken 9-12-2008 during follow up inspection
"I" Photos taken 3-30-2010
• "J" Slides from power point including photos taken on the dates noted, numbered 1-12
"K" City of Federal Way Business registration application dated 10-04-2008 & Driver's license
information from Department of Licensing printed 4-26-2010
Staff Report to the Hearing Examiner Page 6
Appeal of Notice And Order File Number: 08-101739-00-VO/Doc. I.D. 53683