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2010-06-02 HEX# 10-005 Final DecisionFINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF THE CITY OF FEDERAL WAY IMPROVEMENT OFFICER Date: June 2, 2010 To: Helen Christine Mason and Imad Ayla Abu 37458 18"' Ave. S. Federal Way, WA 98003 RE: 37458 18`h Ave. S. Parcel # 0721266-0100 File No.: 721266 0100 I. SUMMARY OF HEARING On June 2, 2010 at 2:00 p.m., the City of Federal Way Improvement Officer held a hearing to determine if the above building meets the definition of an Unfit Building under Federal Way City Code (FWCC) 1-30; and if so, whether the building should be repaired, vacated, or demolished under FWCC 1-31. Mr. Abu contested the authority of the Examiner to preside over the hearing. Mr. Abu asserted that any order to repair or vacate should be issued by the judicial branch. The Examiner explained that he has authority to require repair pursuant to Chapter 35.80 RC W and that the judiciary did have final authority over any such order through the appeal process. Mr. Abu also explained that the subject premises had been vacated and that he and Ms. Mason had relinquished their interest back to the bank. He noted that 90% of the furniture is gone. The Examiner asked if the interests of Mr. Abu and Ms. Mason had been transferred by deed to the bank and Ms. Mason replied that had not yet occurred. The Examiner stated that until ownership had transferred, Mr. Abu and Ms. Mason were still the proper parties for the hearing and the hearing would proceed. The City had no objection to proceeding in this manner. Cindy Keirsey provided the initial testimony on behalf of the City. Ms. Keirsey summarized why staff believed the home qualified as a dangerous building. She noted that an expanded deck and work to the home itself were dangerous structures. She noted that all construction was done without permits. Ms. Keirsey is a certified building inspector and is currently a code enforcement officer. She has experience in conducting building inspections, but will also be presenting testimony of building inspectors on the structural integrity of the building. Ms. Keirsey noted that the deck expansion did not include any bracing for structure stability. She noted that a new concrete wall placed next to existing foundation. She noted that the bracing of the walls for the bottom story of the home was compromised by the extension of the wall facing the backyard away from the bracing. Ms. Keirsey stated that the new floor system had not been engineered so the City does not know where the factor of safety is. {PA0795300DOC,1113041,9000M } Scott Sprout, assistant City Building Official, testified that he was a certified plans and building inspector. He noted that the deck expansion was composed of two-inch wood when it should be supported by 4-inch x 8-inch or 4-inch x 10-inch beams with vertical posts. In his opinion there is a danger of collapse due to the lack of reinforcement. Mr. Sprout noted that he has been looking at deck design for over six years and that he is familiar with the fact that a deck is a hazard when it is missing support such as the required beams. R. Lee Bailey, the City's Building Official, noted that the City's building code is prescriptive. He noted that the building work did not follow the City's building codes and was not engineered. He noted that in any kind of seismic event that at least some of the house was coming down. He noted that there was nothing in the foundation of the home to support it and that the absence of lateral support created to the instability. Mr. Bailey testified that the noncompliance with building codes directly related to the safety and stability of the home. Mr. Bailey has extensive experience as both a building official and construction contractor. Mr. Ayla Abu testified that the home was built prior to annexation to the City of Federal Way. Mr. Ayla Abu asked for blue prints of the home so he could put it back into its original condition. He said the City did not have the blueprints, so the City does not know what modifications have been made. He noted that the staff's comments on what modifications had been made are based upon opinion, not fact. He noted that he also wanted to make sure the house was stable, since he was not interested in having the home fall upon his head. He noted that he had asked Mr. Sprout to explain how he had concluded that the soils were not load -bearing and that he had asked Mr. Sprout to provide some engineering evidence to support this conclusion. He noted that the City did not provide any engineering evidence. He noted that the burden had been placed upon him as property owner to demonstrate the home is safe. He noted that the house is sitting on cement and that the beam in the middle of the home is sitting on the cement. He explained that the new cement wall is just a retaining wall for dirt and was not designed to support the home. He also asked staff to do a load bearing calculation to make an engineering determination whether the house is stable. Staff declined to do such a calculation. He noted that staff should not be basing an engineer determination upon visual observation only. He said he does not have the money to prove his home is stable, that the City should hire an engineer to prove the home is not stable. He asked if the City always requires remodels to be engineered. He said that if the City cannot show a policy of asking for engineered remodels that he has been subject to discrimination. Mr. Ayla Abu testified that the original deck had a hot tub. Mr. Ayla Abu noted that he removed the hot tub because he didn't think there was sufficient for the hot tub. He noted that most of the deck had been originally approved for the home. Mr. Ayla Abu emphasized that the City had not proven that the home is unstable. It had not provided any engineering evidence that the home is unstable. The City's position is based entirely upon opinion and speculation. In rebuttal, Ms.Keirsey acknowledged that the City does not have the original plans to the home. She noted that staff was able to determine what was new construction by the contrast of new to old wood and the excavation materials (a pile of dirt) located outside the home. She said you fPA0795300.DOC;1113041.9000001) (PAO687733.DOC;1/13041/900000) 2 could see where the dirt used to be in the basement area by staining on the foundation. Mr. Sprout testified that not all new construction requires engineering. He noted that novel construction and additions that affect load bearing walls typically require engineering. He noted that since the work of this case was overlain with two stories that engineering would have been required as part of building permit review. He noted that the native soils are compact and native bearing and that the property owners had removed soil to below the city so that the foundation walls were located on a ledge. The Examiner advised the property owners that his decision would be mailed to the subject home address unless the owners supplied a different address. Mr. Ayla Abu stated that he would be checking the mail that is sent to the subject home. II. EXHIBITS The exhibits admitted in this record are comprised of the staff report and attached Exhibits A -I plus the staff's power point presentation presented during the hearing. III. FINDINGS OF FACT Based on the City's Building Official and Code Enforcements Officers investigation of this matter, as evidenced in the Exhibits entered into the record, and information provided at the hearing, the Improvement Officer Finds the Following Facts: 1) The City issued a Complaint of Unfit Building on May 13, 2010, for an unsafe and uninhabitable building / structure located at 37458 18f1' Ave. S. Included in the complaint were violations FWCC 1.15.170 (3), (8) and (11). Counting the basement, the subject home is three stories tall. 2) The City through its Code Enforcement Officer posted a copy of the above referenced complaint at the subject site, and another staff member mailed the same by certified mail to 37458 18`11 Ave. S., FederaI Way, WA 98003 on May 13, 2010. In addition, a copy of the complaint was recorded with the King County Auditor. 3) The complaint called for a hearing to be held on June 2, 2010, at 2:00 p.m. in the Federal Way City Council Chambers before the Improvement Officer. The hearing was set not less than ten days and not more than thirty from time of service. 4) R. Lee Bailey, Federal Way Building Official, has years of experience and training in assessing the dangers and structural integrity of dangerous buildings. 5) The building experience of staff, presence of new wood, excavation activity and staining on the foundation of the subject establishes the following modifications to the home, done without building permits: {PA0795300.DOC;1113041.900000\) (PA0687733.DOC;1/13041/900000) 3 A. Load bearing soils have been removed from the foundations of the home to a level below the bottom of the foundations, leaving the foundations resting upon the edge of a ledge without lateral support from load bearing soils. B. The first floor on the south side of the home has been modified with three openings. The estimated size of the openings are two 9-foot x 8-foot and one 3-foot x 7- foot openings. The openings are part of a wall that has been expanded outwards to increase the size of the basement. The wall is a load bearing wall that had been used to bear the weight of the two stories above. C. The deck has been expanded. Deck joists are missing cross and vertical beams for support and there is no bracing. D. A cross beans has been added to support the new construction that does not meet code requirements for size and is probably not properly integrated into the engineered floor system of the first floor that it is intended to support. 6) The City's building official and assistant building official, both of whom have extensive experience in building construction and construction measures necessary to assure stability, have concluded that the home is unstable and dangerous. The building official specifically testified that at least portions of the home would collapse in a seismic event. The assistant building official testified that the deck was not properly stabilized to support any significant weight. The Examiner finds that more likely than not (the burden of proof in a civil proceeding), the City has established that the home is dangerous and unstable. In addition to the expertise of the staff, the Examiner bases this finding upon the following: A. The foundation is missing lateral support from load bearing soils. B. A load bearing wall has been displaced and replaced with a wall of several large openings. C. The deck has been expanded and the expansion area is unsupported by load bearing cross and vertical support beams. D. A composite cross beam for the basement area has been inserted that does not meet dimensional requirements required by code. E. All of the missing support structures identified above are required by code or, in the opinion of staff, engineering standards. The point from Mr. Ayla Abu is well taken that the City has not presented any engineering evidence that the home is unstable. However, the failure to comply with code requirements designed to provide for building stability, the multiple modifications to load bearing features and the extensive experience of staff certainly satisfies the "more likely than not" preponderance of evidence standard applicable to civil proceedings, especially given that Mr. (PA0795300.DOC;11130419000001 ) (PA0687733.DOC:1/13041/900000) 4 Ayla Abu presented no evidence to the contrary except that the basement beam was resting upon the concrete foundation wall. IV. CONCLUSIONS OF LAW I. Authority. FWCC 1.15.160 designates the City of Federal Way Hearing Examiner as the "Improvement Officer" for purposes of conducting hearings and issuing final decisions on the designation of dangerous buildings pursuant to RCW 35.80 RCW and FWCC 1.15.140 through. 1.15.250. 2. Review Criteria/Dangerous Building Determination. FWCC 1.15.170 identifies the criteria for what qualifies as a dangerous building. Satisfaction of any one of the several criteria qualifies a building as a dangerous building. As asserted in the complaint of this action, the Examiner concludes that the subject building is dangerous because it satisfies three of the FWCC 1.1.5.170, each of which is quoted and assessed below: FWCC 1.15.170(3): Those which have improperly distributed loads upon the floors or roofs in which the same are overloaded, or which have insufficient strength to be reasonably safe for the purpose used; 3. As noted in the Findings of Fact, the building is unstable and could not withstand a seismic event because load bearing soils providing lateral support have been removed from the sides of the foundation, lateral load bearing walls have been displaced outwards and compromised by large openings for windows and doors and the new construction is supported by a beam that has does not meet code requirements for size and has not been engineered for integration into the engineered floor system of the first floor. The deck expansion is also not designed to properly bear loads because it does not have vertical or cross beams of sufficient size as determined necessary by applicable codes and the testimony of staff. FWCC 1.15.170(8): Those which have parts thereof which are so attached that they may fall and injure members of the public or property; 4. The lack of vertical and cross beams and bracing for the deck expansion, as identified in the Findings of Fact, creates a significant risk of collapse. FWCC 1.15.170(11): Those which in whole or in part are erected, altered, remodeled or occupied contrary to the ordinances adopted by the City; 5. All of the work has been doing without building permits in violation of City ordinances. See FWRC 13.05.010; IRC R105.1. V. ORDER FWRC 1.15.180(1) provides that if the dangerous building can be reasonably repaired so that it is no longer a dangerous building, it shall be ordered repaired by the Improvement Officer. The {I1A0795300.D0C1113041.9000001 ) (PA0687733.DOC;1/]3041/900000) Hearing Examiner concludes that the building can be repaired. The repairs are ordered as follows; 1. The Mason/Abu family must submit a letter signed and stamped by a Washington State engineer stating that the Mason home construction projects have been inspected and the home is safe to occupy for residential living purposes. 2. The Mason/Abu family must submit engineered plans that address the corrections attached to the complaint of this action that were compiled after the March 8, 2010 inspection by building department staff. The submittal of the letter by an engineer as noted in No. 1 above does not relieve the Mason/Abu family of the responsibility to submit plans and obtain the necessary permits within 30 days. 3. Once the permit is issued, the work must commence within 10 days from the permit issuance and be completed within 30 days. VI. APPEAL You are entitled to appeal the instant Findings of Fact, Conclusions of Law and Order. You must request an appeal within thirty (30) calendar days after receiving this Determination. The appeal must be in writing to the Federal Way office of the City Clerk, 33325 8t1i Ave South, Federal Way, WA 98003. An appeal fee of $100.00 must be submitted with the written appeal request. An appeal hearing will be scheduled before the Federal Way Appeals Commission within 30 days from the date the appeal is filed. At that hearing you may present evidence and testimony from you and other witnesses, including new information not previously presented to the Improvement Officer, challenging this Findings of Fact, Conclusions of Law and Order. VII. REMEDIATION/PENALTIES If you do not appeal this ruling and fail to comply with the Findings of Fact, Conclusions of Law and Order, the Building Official may direct or cause the subject dwelling, building, structure or premises to be repaired, altered, improved, vacated, and closed, removed or demolished pursuant to RCW 35.80. The cost of any action taken by the Building Official under FWRC 1.15.250 shall be assessed against the subject property pursuant to Chapter 35.80 RCW and FWCC 1.15.250 through 1.15.270. Upon certification by the City of Federal Way Finance Director that the assessment amount is due and owing, the King County Treasurer shall enter the amount of such assessment upon the tax rolls against the subject property pursuant to the provisions of RCW 35,80,030. Questions regarding the Findings of Fact, Conclusions of Law and Order should be directed to Cindy Keirsey, Code Enforcement Officer at 253-835-2631 or cynthia.keirsey @city-offederalway.com. Phil A.Olbrects, Improvement Officer Date {PA0795300.DOC;1113041.9000W } (PA0687733.DOC,1/13041/900000) 6 DECLARATION OF MAILING Mason/Abu Unfit Building 09-102342-00-VO I, N. Kay Richards, make the following declaration: I am a resident of the State of Washington, over the age of 18 years, not a party to this action, and competent to be a witness herein. 2. On the 16th day of June, 2010, 1 mailed, via First Class U.S. Mail, a true and correct copy of the Findings of Fact, Conclusions of Law and Order of the City of Federal Way Improvement Officer, and this Declaration of Mailing to the following: Helen Christine Mason and Imad Ayla Abu 37458 18th Avenue South Federal Way, WA 98003 I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. EXECUTED at Seattle, Washington, this 16th day of June, 2010. N. Kay Riellards. f PA0795302.D0C;1113041.9000001 }