2022-03-18 HEX Decision Final1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
David Mann
Administrative
BEFORE THE HEARING EXAMINER FOR
THE CITY OF FEDERAL WAY
FINDINGS OF FACT, CONCLUSIONS OF LAW
AND FINAL DECISION
SUMMARY
The Appeal is denied and the City's October 15, 2022 code interpretation of the City Accessory
Dwelling Unit (ADU) definition is upheld.
This administrative appeal resolves a challenge to a formal code interpretation of the FWRC 19.05.010
definition of ADU. A major point of contention in the adopted interpretation is that if an attached
potential ADU does not have locked entryways, it does not qualify as an ADU. The Appellant believes
that a more nuanced approach should be taken, weighing several factors such as whether the potential
ADU is leased and whether the occupants of the potential ADU are related to the occupants of the
primary residence. The City's interpretation is found to be consistent with the plain meaning of the
ADU definition adopted by the City Council. It is also found to be more amenable to implementation
and enforcement than the definition advocated by the Appellant. The Appellant's interpretation suffers
from multiple conflicting interpretations that would as a practical matter significantly reduce the
opportunity for enforcement, thus undercutting City Council intent to mitigate the impacts of ADU
development in the City.
Administrative Appeal - 1
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
TESTIMONY
A computer generated transcript has been prepared for the hearing to provide an overview of the
hearing testimony. The transcript is provided for informational purposes only as Appendix A.
EXHIBITS
The exhibits identified in the City's February 25, 2022 Exhibit and Witness List as well as those
identifled in the City's March 1, 2022 exhibit list were all admitted during the March 4, 2022 hearing.
The Appellant did not submit any exhibits.
FINDINGS OF FACT
Procedural:
Appellant. David Mann, 302 SW 292" d St., Federal Way, WA 98023.
2. Appeal/Appeal Issues. The Appellant filed his appeal on November 8, 2021. As narrowed by
a summary judgment ruling, the appeal is limited to the validity of a formal Code interpretation dated
October 15, 2021. The code interpretation identifies when an attached living area qualifies as an ADU
under the ADU definition adopted into FWRC 19.05.010.
The November 8, 2021 appeal was unclear on the specific basis of the appeal. The appeal alleged
errors in a code interpretation in an ADU informational brochure issued by the City. The appeal also
asserted error in a City determination that a residence adjoining the Appellant's home didn't include
an ADU. In a motion for summary judgment filed on February 8, 2022, the City identified that the
informational brochure referenced in the appeal was based upon a formal code interpretation issued by
the City on October 15, 2021. The code interpretation identified that the deadline for appeal was
November 8, 2021, the date the Appellant filed his appeal. The City's summary judgment motion
construed the reference to the appeal as an appeal of the code interpretation. The Appellant did not
object to this characterization. Given that the brochure itself is not subject to appeal under City
regulations, the October 15, 2021 code interpretation is construed as the decision appealed in the
Appellant's November 8, 2021 appeal.
The City's Motion for Summary Judgment requested that the Appellant's assertions of error regarding
his neighbor's property be dismissed as untimely. The summary judgement motion was granted on
that issue. The Appellant had also requested that the Examiner order the City to undertake investigatory
processes for potential ADU violations. The City requested that this request be denied as beyond the
authority of the examiner. That request was also granted in the summary judgment ruling. Summary
judgment was otherwise denied because it was determined that the amount of deference due to the
City's October 15, 2021 interpretation involved a material question of fact.
3. Hearing. The hearing on the appeal was held virtually via Zoom on March 4, 2022, 995 2940
5388.
Administrative Appeal - 2
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Substantive:
4. Differences in Interpretation (mixed finding of law and fact). The only difference between the
Mann and City interpretations of what constitutes an ADU is that the Mann interpretation (1) considers
whether or not the ADU is leased and how ADU occupants are related to the occupants of the primary
residence; (2) would not disqualify a potential attached potential ADU solely because it's not locked
from the primary residence; and (3) would make the ADU assessment a more open-ended, subjective
determination than that advocated by the City.
The ADU definition under appeal provides as follows:
"Accessory dwelling unit (ADU) " means either a freestanding detached structure, excluding
outdoor storage containers and similar structures used or designed to be used as living
facilities, or an attached part of a structure which is accessory to the main or primary
dwelling unit located on the subject property, providing complete, independent living
facilities exclusively for one single housekeeping unit, including permanent provisions for
living, sleeping, cooking and sanitation. See FWRC 19.265.020. ADUs include:
(1) "ADU, attached" means an accessory dwelling unit that has one or more vertical and/or
horizontal walls in common with or attached to the primary dwelling unit.
(2) "ADU, detached" means a freestanding accessory dwelling unit that is not attached or
physically connected to the primary dwelling unit.
FWRC 19.05.010. (emphasis added).
The ADU interpretation under appeal focused upon what it means for an attached potential ADU unit
to qualify as independent and exclusive. The interpretation concludes that to be exclusive and
independent, the attached unit must either be locked from the rest of the primary residence or have a
separate entrance. Units that are not locked or have a separate entrance do not qualify as ADUs because
they are not exclusive and independent.
Mr. Mann does not definitively identify his interpretation of what constitutes an ADU. In his briefing
and oral argument, he generally suggests that the interpretation should be more open ended and not
rely so heavily upon whether a potential ADU is separately locked. Mr. Mann states that whether the
potential ADU is separately leased and whether ADU occupants are related to primary residence
occupants should be considered a factor. The City argues that a lease should not be a factor because
members of integrated family units sometimes lease space to each other. Mr. Mann also argues that
focusing so heavily upon locking is a poor policy choice, because it encourages landlords to not
provide locks. The City responds that landlord tenant laws require landlords to provide locks.
5. ADU Interpretation Not Solely Prompted by Appellant's ADU Complaint. The ADU under
appeal was not solely prepared in response to the classification of the potential ADU unit of a neighbor
of the Appellant. It was issued to resolve on -going City staff differences of opinion on how to apply
the ADU definition.
Administrative Appeal - 3
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Brian Davis, the City's Community Development Director, asked the City's planning manager, Mr.
Nevin, in early 2021 to prepare a formal code interpretation of the ADU definition. He did so because
staff over the years had taken different positions on how to interpret the ADU definition. Mr. Nevin
testified that the interpretation he put together, still in draft stage, had been used to find that Mr. Mann's
neighbor was not accommodating an ADU. The code enforcement file associated with Mr. Mann's
complaint was thus closed by email dated September 21, 2021. As previously noted, the ADU
interpretation was subsequently issued on October 15, 2021.
At the time he requested the ADU interpretation from Mr. Nevin, Mr. Davis was aware that the
Appellant had complained to the City about his belief that his neighbor had an unauthorized ADU. Mr.
Davis testified that the ADU interpretation "was not the reaction to it [Appellant complaint], rather
than a history of inconsistency that lead to it." The testimony of Mr. Davis is credible and taken as a
verity on this point. It is entirely plausible and logical that Mr. Davis would want to resolve the
ambiguities of the ADU definition because of historical difficulties in application of the definition as
opposed to bolstering the City's position on the complaint from the Appellant about his neighbor.
6. ADU Interpretation Not Based Upon Consistent Past Enforcement Practice. The formal ADU
interpretation under appeal is not based upon a consistent past enforcement practice. The purpose of
the interpretation, as testified by Mr. Davis, was to prevent inconsistent past enforcement practice. As
testified by Mr. Davis, the ADU definition had been inconsistently applied over the years and his intent
in requesting a formal interpretation was to rectify that situation. The interpretation under appeal was
applied to the property of Mr. Mann's neighbor prior to the interpretation's formal issuance, but there
is no evidence in the record that it was specifically applied to any other property prior to issuance of
the interpretation on October 15, 2021.
7. ADU Formal Interpretation ConsistentlyApplied. The ADU interpretation under appeal has
and will continue to be consistently applied. As testified by Mr. Davis, that is its purpose. Once the
ADU interpretation was issued, the City prepared an information brochure based upon the
interpretation. The City has routinely emailed that brochure to persons making inquiries about ADU
compliance. City Rebuttal Ex. 5 shows ten emails to City residents with the brochure attached since
issuance of the formal interpretation.
CONCLUSIONS OF LAW
1. Authority of Examiner. FWRC 19.50.060(1) provides that appeals of code interpretations are
governed by Process IV review. As outlined in Chapter 19.70 FWRC, in Process IV review the Hearing
Examiner holds a hearing and makes a final decision.
2. FWRC Deference due ADU Interpretation. FWRC 19.50.060(3) provides that appeals are
governed by Process IV review. FWRC 19.70.120 provides that the hearing examiner shall give "great
deference" to the City's interpretation of its own regulations.
Administrative Appeal - 4
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3. LUPA4 Deference due ADU Interpretation. Deference is due to the City's ADU interpretation
pursuant to RCW 36.70C.130(1)(b).
RCW 36.70C.130(1)(b) requires "such deference as is due the construction of a law by a local
jurisdiction with expertise." As identified in the summary judgment ruling of this case, the courts have
construed this requirement as follows:
The statute does not require a court to show complete deference , but rather, "such
deference as is due. " Thus, deference is not always due —in fact, even a local entity's
interpretation of an ambiguous local ordinance may be rejected. Instead, the interpreting
local entity bears the burden to show its interpretation was a matter of preexisting policy.
No deference is due a local entity's interpretation that was not part of a pattern of past
enforcement, but a by-product of current litigation. A local entity's interpretation need
not be memorialized as a formal rule but the entity must prove an established practice of
enforcement.
Ellensburg Cement Prods., Inc. v. Kittitas Cmy. & Homer L. (Louie) Gibson, 317 P.3d 1037, 1047
(2014)(citations omitted).
As determined in Finding of Fact No. 6, the ADU interpretation under appeal was not based upon any
consistent past interpretation. To the contrary, the interpretation was issued to prevent inconsistent
past interpretations. However, the Ellensburg case and the cases upon which they were based are
highly distinguishable. Those cases dealt with circumstances where the governmental interpretation in
dispute was made solely for the litigation at hand. There was no assurance that the interpretation would
continue to be applied in the same manner for future cases. Hence the Ellensburg court's statement
that "[n]o deference is due a local entity's interpretation that was not part of a pattern of past
enforcement, but a by-product of current litigation."
As argued by the City's counsel, the ADU interpretation under appeal is not an act of bootstrapping
designed to bolster the City's position in its differences with the Appellant on the ADU issues with the
Appellant's neighbor. The ADU interpretation was designed to create the consistency found necessary
by the Ellensburg court to justify deference. As determined in Finding of Fact No. 5, the interpretation
was not issued as a bootstrapping measure, but rather for the purpose of providing consistency in ADU
interpretation. As further noted by the City's counsel, FWRC 19.50.040(4) provides that "[a]n
interpretation of this title will be enforced as if its part of this title." Finally, as determined in Finding
of Fact No. 7, the City has consistently applied its October 15, 2021 ADU interpretation as required by
FWRC 19.50.040(4).
Ultimately, the ADU interpretation is based upon years of City experience dealing with the ambiguities
of the City's ADU definition. In the short period of time since issuing the ADU interpretation on
October 15, 2021, City Rebuttal Ex. 5 shows over ten emails applying that interpretation. The City is
clearly in a superior position to understand the policy objectives of the City Council in adopting the
a "LUPA" is the Land Use Petition Act, Chapter 35.70C RCW.
Administrative Appeal - 5
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
ADU definition and how that best can be met in its application. The City has also amply demonstrated
that issuance of its ADU interpretation was not done to bolster its position in its disagreement with the
Appellant, but rather to create an interpretation that can be consistently and predictably applied to all
property owners so they are treated in a fair and nondiscriminatory manner. For all these reasons, the
City's ADU interpretation is entitled to deference as contemplated in RCW 36.70C.130(1)(b).
4. City Interpretation Most Clearly Meets Council Intent. With or without deference to City staff,
the ADU interpretation under appeal is consistent with and most closely implements City Council intent
in application of the FWRC ADU definition.
The Appellant's primary disagreement with the ADU interpretation is its reliance upon locked doors,
i.e. that if there is no locked access for a potential attached ADU that the potential unit doesn't qualify
as an ADU. The City interpretation is a reasonable and compelling application of the ADU definition
that an ADU be exclusive and independent. It comports fully with the plain meaning rule of statutory
construction. A freely accessible living area is neither exclusive or independent, while the converse
is true for one that is locked.
The main problem with the Appellant's interpretation is that it lacks clarity, the very problem the code
interpretation was designed to solve. As outlined in Finding of Fact No. 4, the Appellant's
interpretation is based more upon a "you know it when you see it" assessment, that differs little from
how the definition was applied prior to adoption of the ADU interpretation. The Appellant doesn't
believe that an unlocked potential ADU should in all cases not qualify as an ADU. However, the
Appellant doesn't identify how other factors should be weighed in those circumstances. As asserted
by the Appellant, the existence of a lease and the degree of blood relation between occupants are
suggestive of the degree of independence between a potential ADU and the principal residence. But
in the absence of a locked door, how determinative are these other types of factors in assessing whether
a potential ADU area is in fact "independent" from the primary residence?
The answer to the preceding question is a highly subjective one. That answer that can differ from year
to year as City staff change year to year, the reason why the City position was subject to change as
testified by Mr. Davis. Ordinances subject to more than one reasonable interpretation can be voided
for vagueness under constitutional due process. See Anderson v. Issaquah, 70 Wn. App. 64, 75 (1993).
For that reason, as a practical matter for land use regulations, cities and counties must construe all
ambiguities in favor of the property owner to avoid a void for vagueness legal challenge. The net result
under the Appellant's interpretation is an ADU definition that will be sparingly applied, likely far less
often and far less strictly than the definition as clarified by the ADU interpretation under appeal. In
this regard, the results of the Appellant's definition will depart substantially further from Council
purpose and intent than that achieved by the ADU interpretation under appeal.
The Appellant raises the point that the ADU interpretation creates a dangerous incentive for landlords
to construct attached ADUs without secured entrances. However, as identified by staff, landlord tenant
laws require landlords to provided for secured entrances. See RCW 59.18.060(6). Given this
requirement, it remains to be seen whether the ADU definition will result in any material increase in
unsecured entry ways. As with any other law, City staff could change their interpretation or the City
Council can change the ADU definition if it turns out that the ADU interpretation does in fact create a
Administrative Appeal - 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
significant public danger as asserted by the Appellant. At this point, especially given the landlord
tenant law already in place, it is too speculative to jump to that conclusion.
DECISION
The Appeal is denied. The ADU interpretation dated October 15, 2021 is sustained.
DECISION issued this 18th day of March 2022.
Hearing Examiner for Federal Way
Appeal
As outlined in FWRC 19.70.010 and 19.70.260, this Decision is a final decision of the City of Federal
Way subject to judicial review under the Land Use Petition Act, Chapter 36.70C RCW.
Administrative Appeal - 7
This transcript was exported on Mar 16, 2022 - view latest version here.
Appendix A
Mann Appeal
Summary of March 4, 2022 Hearing Testimony
Note: This is a computer -generated transcript of the hearing. No assurances are made as to accuracy. The
transcript is just provided as a courtesy to those who want a detailed depiction of what was discussed at
the hearing. For a fully accurate rendition of what was said, a recording of the hearing is available from
the City Clerk's Office.
Phil Olbrechts:
Yeah. Why don't we wait until it's... You got that? There we go. Okay. For the record it's March 4th,
2022, 9:00 AM. I'm Phil Olbrechts Hearing Examiner for the City of Federal Way. This morning, we have
an appeal of an administrative interpretation of interpreting how to apply the city's ADU regulations.
The appellant is David Mann, who is here today, representing himself. And the city here is represented
by Kent Van Alstyne. All parties necessary to the appeal hearing are present. So, I think we can get
started. The hearing format was outlined in the pre -hearing order, which provides that Mr. Mann goes
first presents his evidence. Then the city, then Mr. Mann has the right to present rebuttal evidence.
Then we have closing from the city and appellant. Any pre -hearing matters we need to address before
we jump into this.
Mr. Mann:
Nothing from appellant Mr. Examiner.
Phil Olbrechts:
Okay. All right. Great. All right, Mr. Mann, since I guess you were appearing as a lawyer and your own
witness, correct? I think I probably need to swear you in then. So, just raise your right hand. Do you
swear, affirm to tell the truth, nothing but the truth in this proceeding?
Mr. Mann:
I do.
Phil Olbrechts:
Okay. All right, then go. Let's deal with the exhibits real quick too. The city has provided a witness and
exhibit list and also a rebuttal exhibit list. Mr. Mann, did you have any objections entry of any of the
documents listed in those, those lists?
Mr. Mann:
I don't have any objections to those. I simply will reserve the right to reference those and call those
witnesses as needed.
Phil Olbrechts:
Okay, great. I'll go ahead and enter those in the absence of any objections and Mr. Mann, from what I
recall, you did not have any exhibits you were presenting, correct? Is that correct?
Mann Hearing (Completed 03/16/22) Page 1 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Mann:
I have no exhibits of my own that's correct.
Phil Olbrechts:
Okay. All right, great. Okay. I think we can get started at this point then. All right, go ahead, Mr. Mann.
Mr. Mann:
Mr. Examiner, if I may, I'm going to go refill my water glass, just so I don't have any with getting cotton
mouth. I'll be right back.
Speaker 1:
Up for the big one.
Mr. Mann:
Okay. Let's see. I'm going to make the lighting adjustment here as well. Sometimes the glare from that
water is really strong even with the shades down, so okay. I guess as to an opening, Mr. Examiner, Mr.
City attorney and Mr. Davis and Mr. Nevin, I will be exceedingly brief. I think the Examiner understands
the issues and I would just like to put forth the proposition that the city has not met its burden as to
establishing a prior, consistent agency practice under the jurisprudence set forth in... Give just a
moment Ellensburg Cement, and it's referenced SleasMann versus City of Lacey whereby the court has
interpreted the relevant RCW and that the evidence will show that the very first time, the code
interpretation, that respondent interpreted the ADU in a court and consistent with the code
interpretation as promulgated late in 2021 was at the time of the inquiry into my neighbor's violations
of the ADU ordinance.
Mr. Mann:
Further, the evidence will show that the city failed to take into consideration the obvious loopholes that
would allow for a landlord to evade the attached ADU requirements, and that they did not take into
consideration basic safety requirements for the tenants living under those circumstances, which is a
duty with which they're charged.
Mr. Mann:
Thank you.
Phil Olbrechts:
Okay. And Mr. Van Alstyne, did you want to do an opening? I did have that pre -hearing order, but if you
want to do that's fine.
Mr. Van Alstyne:
I'm happy to, I'm happy to wait until my turn to do a brief introduction before calling Mr. David.
Phil Olbrechts:
Okay. All right. Okay. Mr. Mann, did you have any witness testimony you wanted to present or?
Mann Hearing (Completed 03/16/22) Page 2 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Mann:
I do, I would like to call, Mr. Brian Davis, if I could please.
Phil Olbrechts:
Okay. All right. Mr. Davis, let me swear you in just -
Mr. Van Alstyne:
Mr. Examiner, while Mr. Nevin was listed on Mr. Mann's witness and an exhibit list as one of his
witnesses, Mr. Davis is not. So, I have no objection to Mr. Mann, cross examining Mr. Davis when we call
him as a witness, but I don't think it's a primary witness that's listed for Mr. Mann.
Phil Olbrechts:
Okay, Mr. Mann, do you want to address that or?
Mr. Mann:
I would like to address that I have reserved the right to call any witnesses set forth by the city and to use
the exhibits as listed by the city. And with respect I don't find anything in the rules that prohibits that,
and it is consistent with the civil rules of superior court in the State of Washington.
Phil Olbrechts:
Okay. Yeah. Although, the witnesses you are going to use should have been listed in your witness and
exhibit list. But what I'll do is when Mr. Davis... I'll allow, of course you'll have an opportunity to cross-
examine Mr. Davis, and I'll be very liberal on the scope of that cross-examination I think you'll probably
be able to get all the testimony you wanted in through that process. So, anyone else you wanted to call
Mr. Mann, or any testimony you want to present yourself?
Speaker 2:
The appellant call Mr. Keith Nevin.
Phil Olbrechts:
Okay. All right, Mr. Nevin, you just raise your right hand do you swear for, and you'll need to unmute
yourself by the way first and for the record Mr. Nevin's, last name is spelled N-I-V-E-N. And Mr. Nevin,
do you swear, affirm to tell the truth, nothing but the truth, in this proceeding?
Mr. Nevin:
I do.
Phil Olbrechts:
Okay. All right. Great. Okay, go ahead, Mr. Mann.
u
Good morning, Mr. Nevin. We've met before. How are you?
Mr. Nevin:
Mann Hearing (Completed 03/16/22) Page 3 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Good morning, Mr. Mann. I don't think we've met personally. I still don't think we've met personally, but
we have through different correspondences, yes.
Mr. Mann:
That's true. I suppose I was remembering that we've seen each other via a video conferencing platform
like this, but I have not made your acquaintance in person, but we've talked on the phone several times.
Haven't we?
Mr. Nevin:
Yes, we have.
Mr. Mann:
Okay. Just a few questions for you. Isn't it true at the time that you investigated or that you oversaw the
application for an ADU permit by my neighbor, that it was during that application process, that was the
first time that you interpreted the ADU ordinance language in accord with the newly promulgated code
interpretation. Is that true, Mr. Nevin?
Mr. Nevin:
I'm going to respond with what I think you asked, and if that's incorrect, please let me know.
Mr. Mann:
It. Wasn't very good of a question, but if you understand, please go ahead.
Mr. Nevin:
I wrote down all the pieces, I'm going to coble it together to, help me understand what I think you
asked, which was, I think what you asked was, was our decision relay to Mr. Holly's residential
expansion, the first instance where the city, followed the soon to be interpretation that was issued by
Mr. Davis. If that was your question, I believe the answer is yes.
Mr. Mann:
Okay. Does it make sense to you that the inquiry as to whether a landlord is operating an unpermitted
ADU should end upon determining that the door connecting the apartment unit to the rest of the single
family residence has, or doesn't have a certain type of locking mechanism?
Mr. Nevin:
I guess the way I would answer your question and we can go on around with this, if we need to, is I
believe what the city determined is that the space that was in question as to whether it was an ADU on
the Holly property was determined not to be, and it's not solely related to a lockable door. It has a
number of different parameters that ultimately led to that decision.
ZfEAF Ems
Do you have any information that you can reference supporting that response as to the other factors
that you considered?
Mann Hearing (Completed 03/16/22) Page 4 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Nevin:
So, again I don't, that is my understanding from -
Mr. Mann:
Thank you. That's okay I understand. Does it not make more sense, Mr. Nevin, to make a very basic fact
finding inquiry as to these other elements of an attached ADU and to simply require that landlords that
have what appears in every other respect to be an attached ADU, to require those landlords, to provide
a lock, a very basic safety and privacy feature for their tenant, that locks from the inside, from the
tenant side, so to speak. That was also not a great question. I can rephrase it if you'd like, but if you
understand it, please go ahead an answer.
Mr. Nevin:
I don't think I understood it. So, please rephrase it.
Mr. Mann:
Let me try again. Doesn't it make more sense to conduct a very basic fact finding inquiry as to these
other elements of an attached ADU, such as... strike that let me rephrase that again. Does it make sense
to you that the inquiry should end upon a termination of the locking feature, irrespective of whether
these other elements as contemplated by the drafters of the ordinance exist such as there's a lease in
place, there is a separate entrance, there is a kitchen, those types of things.
Mr. Nevin:
I guess the way I would respond. And if we need to go around with this, we can, the issue for why the
city issued the interpretation is the definition for ADU and city code identifies that an ADU is an
independent living facility and independent is not defined. And so things like does have a kitchen, does it
have a bathroom are easy to inspect and review for under, permit review, if it's new construction, but
getting to that outcome of what constitutes independent that's I believe what the intent of the
interpretation was intended to address was to give us clarity on what constitutes an independent living
facility now as to whether locks and tenants and landlords. I'm going to say that I know very little about
that. I believe the state statute has some provisions related requiring locks, and I'm going to stop there
because I'm already, probably in a place I shouldn't be.
Mr. Mann:
I think you probably are, but do I understand your testimony, Mr. Nevin, that you agree that it's easy to
inspect and inquire about whether there a separate entrance to the ADU, whether there's sufficient off
street parking, whether there's a kitchenette, whether there's a lease in place or if the owners know
these people from [inaudible 00:19:06]
Mr. Nevin:
I believe that I would not have included the lease in that laundry list but the other things, yes, sir.
Mr. Mann:
Okay. No further questions for this witness.
Phil Olbrechts:
Mann Hearing (Completed 03/16/22) Page 5 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Okay. Any other evidence Mr. Mann, you want to present at this point?
Mr. Van Alstyne:
Might I engage in cross examine?
Phil Olbrechts:
I'm sorry, of course Mr. Van Alstyne, go right ahead. Yeah.
Mr. Van Alstyne:
Thank you, Mr. Nevin, do you agree with the code interpretation as promulgated by the city?
Mr. Nevin:
Yes.
Mr. Van Alstyne:
And do you agree with the reasoning in the code interpretation promulgated by the city?
Mr. Nevin:
Yes
Mr. Van Alstyne:
Does the city, when determining whether a specific development is an ADU, does the city look to see if
there is a kitchen, a bathroom, a living space and a sleeping area?
Mr. Nevin:
Yes.
Mr. Van Alstyne:
Does anything in the code interpretation, in your opinion, change the city's duty to look for those four
specific things to determine whether something is an ADU?
Mr. Nevin:
►R.l
Mr. Van Alstyne:
Is there anything in the ADU definition that you aware of that references a lease?
Mr. Nevin:
fm
Mr. Van Alstyne:
Is there anything in the ADU definition that you're aware of that references a landlord or a tenant? No
further questions.
Mann Hearing (Completed 03/16/22) Page 6 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Phil Olbrechts:
Okay. Mr. Mann redirects?
Mr. Mann:
I do just briefly, Mr. Nevin, you just testified that the city does in fact make inquiry into whether there is
a kitchenette, whether there's a separate entrance and so forth. Is that right?
Mr. Nevin:
That is right.
Mr. Mann:
Okay. And does that inquiry consist of merely asking the landlord on a telephone call about those
aspects? Or does it involve someone actually showing up doing an inspection and so forth?
Mr. Nevin:
The latter, it includes inspection.
Mr. Mann:
Okay. Thank you. No further questions.
Phil Olbrechts:
Okay. Mr. Van Alstyne. No re -cross. Okay.
Mr. Van Alstyne:
Nothing further.
Phil Olbrechts:
Mr. Mann, any other witnesses or evidence to present?
Mr. Mann:
No other witnesses, Mr. Examiner.
Phil Olbrechts:
Okay. All right. Let's move on to the city's presentation at this point, Mr. Van Alstyne, do you have any
witnesses?
Mr. Van Alstyne:
I do. I think I'll start with a brief introduction while I pull up and before I call Mr. Davis.
Mr. Van Alstyne:
What the evidence today will show Mr. Examiner is that the city realized that prior to 2021, the city had
been at times inconsistent in how it had applied the ADU code and specifically how it had applied the
ADU code to particular internal configurations of potential attached ADUs. In early 2021 however, the
Mann Hearing (Completed 03/16/22) Page 7 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
evidence will show that the city set about determining and finalizing a formal interpretation regarding
internal ADUs, which ultimately became the code interpretation that was issued by Mr. Davis on
October 15th, 2021. As explained in length in the summaryjudgment briefing and which I'll do my best
to be brief in going over orally later, the city properly employed the standard means of statutory
construction to the code definition of ADU to determine its meaning nothing in appellant notice of
appeal in the briefing in appellant's presentation in the hearing today demonstrate legal error in the
city's code interpretation. Therefore, the code interpretation should be affirmed under any level of
deference and I'll discuss the deference coming up and this appeal should be dismissed. Mr. Davis, I'd
like to call you as the first witness.
Phil Olbrechts:
Okay. Mr. Davis, unmute yourself and let me swear you in raise your right hand. Do you swear, affirm, to
tell the truth, nothing but the truth proceeding?
Mr. Davis:
I do.
Phil Olbrechts:
Okay. All right. Great. Go ahead. Mr. Van Alstyne.
Mr. Van Alstyne:
Mr. Davis, could you state your job title and associated duties at the City of Federal Way?
Mr. Davis:
I'm currently the Community Development Director, which has oversight of the department of the same
name, which includes duties of city planning, urban growth, site development, building permits, code
enforcement, community services, housing. And then I'm also the interim city administrator, which has
duties all operations of city, government, personnel, budget development, and any other duties
assigned by the mayor.
Mr. Van Alstyne:
And particularly as to your duties as the Community Development Director, does that include
responsibility for reviewing and enforcing city development land use applications as well as code
enforcement?
Mr. Davis:
Yes.
Mr. Van Alstyne:
And does it also include the authority to direct and implement official city policy with respect to land use
and development issues in the city?
Mr. Davis:
Yes.
Mann Hearing (Completed 03/16/22) Page 8 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Van Alstyne:
And I believe you already touched on this, but does it include general supervisory authority over city
planners as well as city code enforcement officers?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Then I'm going to ask you a few questions next about the city's historic ADU interpretation, particularly
as that interpretation has applied to attached ADU or potential attached ADUs. In the Community
Development Department, which employees are generally charged with determining whether or not an
ADU permit is required for any specific development?
Mr. Davis:
Generally the planners.
Mr. Van Alstyne:
And are ADUs in the city allowed be in various different configurations?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Can you go into what some of those configurations might be?
Mr. Davis:
They could be, most notably detached versus attached ADUs and then just depending on the size as well
in both configurations.
Mr. Van Alstyne:
Sure. And now specifically as to those detached or physically separate ADUs in your experience with the
city and actually, let me pause there. How, long have you been the Community Development Director,
Mr. Davis?
Mr. Davis:
Since November 2016.
Mr. Van Alstyne:
Thank you. In your experience with the city since working at the city have stuff been able to easily
identify whether a additional set of living facilities that is physically detached or separate from the single
family residence on the property and whether that's an ADU.
Mr. Davis:
Mann Hearing (Completed 03/16/22) Page 9 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Yes.
Mr. Van Alstyne:
Do you have any idea about why that might be?
Mr. Davis:
Just for reasons you said, the physical separation provides the distinction that it makes it more easily
interpreted as being an accessory dorm unit.
Mr. Van Alstyne:
And would you say that physical separation makes it easy to determine whether a detached ADU is
independent from the main residents?
Mr. Davis:
I'm sorry, last part of your question.
Mr. Van Alstyne:
Would you say that the physical separation makes it easy for staff to determine whether or not a
detached ADU is independent from the main residents?
Mr. Davis:
Yes. It helps greatly.
Mr. Van Alstyne:
Now I'm going to switch over to these attached, ADUs as we've been referencing them in your
experience with the city, have staff been able to easily and consistently identify whether additional sets
of living facilities attached to the main single family residents are ADUs or are not ADUs?
Mr. Davis:
My observation upon coming to the city is that it was not necessarily consistent, consistently interpreted
how attached ADUs are applied.
Mr. Van Alstyne:
So, would you agree with the statement that in general, prior to 2021 staff have not consistently applied
a single rubric for determining whether a particular set of attached living facilities constitutes an ADU?
Mr. Davis:
I would say based on staff feedback, that there were periods of time where there were, periods of
consistency, but overall there was not overall consistency in how they were interpreted.
Mr. Van Alstyne:
And if you could speculate as to why you think that has been difficult for certain planners to determine
or to apply it consistently.
Mann Hearing (Completed 03/16/22) Page 10 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Davis:
Sure. The code as it's written provides enough ambiguity that different planners over time as there's
been turnover have interpreted it differently.
Mr. Van Alstyne:
Is it fair to say that prior to 2021, because of the ambiguity inherent in the ADU definition staff
application of the ADU definition to attached ADUs has been somewhat inconsistent?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Okay. Did you take action at some point to fix this historic lack of consistent application of the ADU code
to attach ADUs?
Mr. Davis:
••
Mr. Van Alstyne:
Could you describe when you did that and what that action was?
Mr. Davis:
Sure. It was early 2021. 1 asked Mr. Nevin who was newly arrived as the Planning Manager and I asked
him to look to this and to provide drafting interpretation or work with his staff and legal department on
drafting interpretation that I could approve that would provide that consistency that could be
documented so that when staff has a question in the future, they could all move forward with the same
consistency.
PART 1 OF 4 ENDS [00:29:04]
Mr. Davis:
There's a question in the future they can all move forward with the same consistency.
Mr. Van Alstyne:
Was that one of the first tasks that you provided to Mr. Niven for his hiring at the city?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Did you see that task as a priority for Mr. Niven?
Mr. Davis:
Mann Hearing (Completed 03/16/22) Page 11 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Van Alstyne:
I believe you addressed this directly earlier, but as part of your direction to Mr. Niven you directed him
to consult with the legal department in determining the correct interpretation.
Mr. Davis:
Yes
Mr. Van Alstyne:
Okay. What was the, I'm not so much speaking about the legal goal of that determination but in terms of
goals for the operation of the community development department, what were the goals of clarifying
the ADU definition in interpreting it consistently? What were the goals that you had in mind?
Mr. Davis:
Consistency in our answers to the public when asked about ADUs, different scenarios when customers
are interested in property, whether it's their own or a prospective property that they're interested in
they would ask about ADU possibilities or in some cases existing ADUs and if they were authorized or
not. Whenever those questions came in what I wanted was to have a goal where we could answer those
questions with this interpretation issued that are consistent so that not only staff and customers alike
would be operating from the same predictability.
Mr. Van Alstyne:
So when would you say approximately that the city reached its decision about the correct interpretation
of the ADU definition?
Mr. Davis:
It was late summer 2021.
Mr. Van Alstyne:
To be clear, your testimony is that the city reached its determination about what the correct
interpretation of the ADU code was prior to the issuance of the formal code interpretation in the middle
of October?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Are there any specific ADU decisions prior to issuance of the formal code interpretation that use the
same reasoning that was formalized in the later interpretation?
Mr. Davis:
That were issued prior to the interpretation?
Mann Hearing (Completed 03/16/22) Page 12 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Van Alstyne:
Correct.
Mr. Davis:
Yeah. Notably the Holley case.
Mr. Van Alstyne:
The Holley ADU case that you're referring to, is that the same case that Mr. Mann previously referred to
which involved his neighbor's property, is that correct?
Mr. Davis:
I believe so, yes
Mr. Van Alstyne:
Okay. Do you know approximately when the Holley ADU determination was made? I know it's in the
record before the court, but are you aware generally when that was?
Mr. Davis:
I believe it was September, if I'm not mistaken.
Mr. Van Alstyne:
Okay. So to your knowledge were planning staff applying the same reasoning that was later formalized
in the formal interpretation during the latter half of September and the first half of October?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Okay. I'm going to change gears now and discuss the issuance of the formal code interpretation. You
issued the formal code interpretation that's the subject of this appeal on October 15, 2021. Is that
correct?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Is the code interpretation the city's final decision on the meaning of the current ADU definition and its
applicability to attached ADUs?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Mann Hearing (Completed 03/16/22) Page 13 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Is the code interpretation the official adopted policy of the city with respect to attached ADUs?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Are you aware that the federal way revised code requires that formal code interpretations be enforced
as if they were part of the city code?
Mr. Davis:
Yes.
Mr. Van Alstyne:
So is it correct to say that city staff are legally required to apply the formal code interpretation in their
dealings with attached ADUs?
Mr. Davis:
Yes.
Mr. Van Alstyne:
And have planning staff been directed either by you or others to apply the formal code interpretation as
reasoning to all attached ADUs in the city of Federal Way?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Okay. I'm now going to, depending on whether or not I am sufficiently sophisticated with the screen
share, I'm going to attempt to bring up exhibit four.
Mr. Davis:
It's on screen.
Mr. Van Alstyne:
Excellent, thank you very much. Give me one second to make it more readable. All right, are you familiar
with this document, Brian?
Mr. Davis:
Yes.
Mr. Van Alstyne:
What is this document, generally?
Mann Hearing (Completed 03/16/22) Page 14 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Davis:
This is the handout. We have various handouts at the front counter for any number of topics that we get
frequently asked. This one relates to Accessory Dwelling Units that we can provide to the public. An
informational sheet, basically.
Mr. Van Alstyne:
So how does the city provide this document to the public, generally?
Mr. Davis:
Nowadays it's mostly sent through electronic means. It's on our website so the staff will link it and send
it to the customers, or if they're at the counter they'll either provide them the link or a hard copy.
Mr. Van Alstyne:
When you say counter you're referring to actually the physical counter that's in your background which
is where planners talk to the public about land use issues and give them advice on this?
Mr. Davis:
Yes. The counter being the city's permit counter.
Mr. Van Alstyne:
Do you know based on this document when the document was issued?
Mr. Davis:
Yeah. October 26, 2021.
Mr. Van Alstyne:
So this document was issued within two weeks after the issuance of the formal code interpretation?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Okay. I'd like to direct your attention specifically to the third bullet point that I'm hovering my cursor
over, it's the one I've highlighted here on page two of this document. Does this bullet point link to and
reference the ADU interpretation decision that you issued in October?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Okay.
Mr. Davis:
Mann Hearing (Completed 03/16/22) Page 15 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Assuming the link is correct, which I believe it is.
Mr. Van Alstyne:
Appears to link to a portion of the city's website, which I believe is correct. I don't believe I can click on
this and actually demonstrate that.
Mr. Davis:
Someone recently showed it to me and it did go to that, so I'm assuming that it's the same one that I
was shown.
Mr. Van Alstyne:
We'll stop sharing that document. I'd now like to move on to rebuttal exhibit five which I will open and
also attempt to screen share. Are you able to see the document that I'm sharing here that's, I guess,
titled with email one here at the top here Brian?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Okay. Have you reviewed this exhibit prior to this hearing?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Okay. In general what are these emails that are contained in this exhibit?
Mr. Davis:
If you could scroll down to the other ones just as a refresher? I believe these are emails from staff.
Based on the names these are planners at the city issuing information by email to customers who are
asking about Accessory Dwelling Units.
Mr. Van Alstyne:
Do each of the emails labeled two through 15 here, and I can scroll through each one but as I know
you've previously looked at this document, that may not be necessary, but I'm happy to do so. Do each
of emails two through 15 either reference via a link or attach the city informational document that we
previously looked at as exhibit four.
Mr. Davis:
Yeah. Based on this being the exhibit that goes through these emails I did look through them prior to the
hearing and yes, the answer to your question is yes, they either referred to it, linked it, or attach an
informational handout which then links to the interpretation.
Mr. Van Alstyne:
Mann Hearing (Completed 03/16/22) Page 16 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Okay. I'll stop sharing on this exhibit now and I'm going to pull up rebuttal exhibit six. Specifically here,
Mr. Davis, I'd like you to look at this first email which is labeled email one. I'll zoom out slightly. So this,
is it true that this appears to be an email chain from a member of the public to the city that was
responded to by one of the planners at the city?
Mr. Davis:
Yes.
Mr. Van Alstyne:
What question did the member of the public, what generally did the member of the public have in this
email chain?
Mr. Davis:
They were inquiring about a property that had two kitchens and they wanted to know if it was allowed
based on the zoning. And they were asking if it had permits if one was required.
Mr. Van Alstyne:
How did the city staff person respond to that question from the public?
Mr. Davis:
They responded that ADUs, they were allowed but there was no record of a second, a permit for a
second kitchen at this location and then provided information on Accessory Dwelling Units.
Mr. Van Alstyne:
As part of that response did the planners specifically quote and reference the code interpretation?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Okay. I'm now going to move on to email two in the same exhibit. It's over two pages, I'll show you the
first page first with the text. And then I'll show you the second page which has a building diagram. My
first question regarding this email is could you identify who Scott Sprowell is and his position at the city?
Mr. Davis:
Mr. Sprowell is the city building official.
Mr. Van Alstyne:
What question did Mr. Sprowell direct to planning staff in his email?
Mr. Davis:
It's would that, the floor plan that he provided to the planner, he asked them if this would be called an
Accessory Dwelling Unit.
Mann Hearing (Completed 03/16/22) Page 17 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Van Alstyne:
How did the planning staff respond to Mr. Sprowell?
Mr. Davis:
She indicated what their determination would be based on the floor plan and referred to the language
in the code interpretation and how it would then be classified as independent and exclusive and so on.
Mr. Van Alstyne:
Does it appear as if she, as referenced in the email and as seen on this diagram, does it appear as if she
keyed in on two doors and drew arrows regarding those two doors and identified that those two doors
and the nature of those doors would affect an outcome of whether an ADU was present or not?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Thank you. I don't have any more questions about the exhibits. My final question for you, Mr. Davis, is to
your knowledge and based on the exhibits generally that we've reviewed so far, have planning staff
been consistently applying the formal code interpretation since the time of its issuance?
Mr. Davis:
Yes.
Mr. Van Alstyne:
No further questions from me. Thank you.
Speaker 4:
Okay. Mr. Mann, any cross? Mr. Mann, you're muted. You need to unmute yourself.
Mr. Mann:
Apologies, folks. Thank you Mr. Examiner. Mr. Davis, good morning. We've met before, haven't we?
Mr. Davis:
Yes.
Mr. Mann:
Okay. You just testified as to a number of emails that constitute exhibits in support of the city's position,
is that right?
Mr. Davis:
Yes.
Mr. Mann:
Mann Hearing (Completed 03/16/22) Page 18 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Okay. Can you identify any emails in the exhibits you just reviewed that establish a pattern of past
enforcement with regard to the specific language and topics covered in the code interpretation that
establish an agent to practice and not simply, where they are not simply a byproduct of the incident
dispute?
Mr. Davis:
I'm going to restate it, let me know if I haven't captured your question correctly. So in those emails
you're wondering if there was any reference to the practice prior to the interpretation?
&
More or less. There are emails that have nothing to do with a locking mechanism or interpretation of
independent or exclusive and there are several emails that cover those topics that appear in 2022, or in
some period of time after the promulgation of the code interpretation. I guess my question is, are there
any emails that support the city's position that they establish a pattern of past enforcement consistent
with the code interpretation?
Mr. Davis:
By past you mean prior to the interpretation?
Mr. Mann:
Right, prior to the interpretation to show an agency practice that you're enforcing the ADU ordinance in
accord with the code interpretation. If you could identify just a single email ...
Mr. Davis:
Sure. I guess I still don't understand the question. So you want to know if there's an email, or an
example of an email, that says this is how we interpreted ADUs prior to the interpretation that is
consistent with the interpretation.
Mr. Mann:
Not exactly because there could be a lot of components consistent with the interpretation, but
specifically with respect to the ingress egress pathway, connective door, whatever we want to call it. Is
there anything in the history of time that the city has ever documented that shows that the, that
demonstrates a pattern of past enforcement with respect to the locking mechanism issue referenced in
the code interpretation as to the ambiguity and the need to resolve the ambiguity of the definition of
exclusive and independent?
Mr. Davis:
Okay, I think I understand your question now, but just to make sure I do.
Mr. Mann:
Thank you, I'm sorry it's a bit broad because it's difficult to nail it down without a lot of antecedent
clauses and so on. I apologize, I appreciate you working with me.
Mr. Davis:
Mann Hearing (Completed 03/16/22) Page 19 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Okay. So the question is, is there an email in existence somewhere that documents the language about
being independent and exclusive specifically to locking mechanisms prior to the interpretation, or a
history of that with the city in some form. Is that correct?
Mr. Mann:
Correct. Thank you, Mr. Davis.
Mr. Davis:
Yes. My answer would be within the exhibits I don't believe there is. There is likely some emails that
reference an interpretation of ADU language that referred to independent and exclusive, I can't speak to
whether that was in reference to locking mechanisms in the years prior to this.
Mr. Mann:
Okay. But with respect to the exhibits you just reviewed that constitute the evidence that the city is
putting forth today there's nothing in there, is that true.
Mr. Davis:
I believe that they reference the, I believe there was one if I'm not mistaken.
Mr. Mann:
If you could point that out to me I'd be curious about that. You have reviewed these, have you not?
Mr. Davis:
Yeah, I believe so. Bear with me for a second.
Mr. Mann:
Take your time. No rush.
Mr. Van Alstyne:
I'm happy to screen share the exhibit again if that would be of help to either of you.
ul�FTi11
Sure that would be helpful.
Mr. Davis:
Yeah, can you go to, I think it's five and it's the first email.
Mr. Van Alstyne:
I've pulled up rebuttal exhibit five. This is what's labeled email one.
Mr. Mann:
Okay. I guess you are looking, this is, can you tell me the subject matter of this ADU inquiry?
Mann Hearing (Completed 03/16/22) Page 20 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Davis:
Yes, bear with me for one second.
Mr. Mann:
Take your time, I apologize.
Mr. Davis:
[Silence 00:48:51] So in this first email it does, there is a reference to internal access to an addition.
Mr. Mann:
Why don't you go ahead and point that out to me if you would, Mr. Davis.
Mr. Davis:
It's the third paragraph.
Mr. Mann:
I'm going to read the first paragraph. Does it start with, "An addition to the existing ..."?
Mr. Davis:
Right.
Mr. Mann:
That one? Okay. "An addition to the existing house would not be considered an ADU if there is internal
access to the addition. An addition to the existing house would be considered exempt from the
shoreline substantial development permit. You will still need to apply for a shoreline exemption, refer to
the code."
Mr. Mann:
Can you tell me, when I ask the question again, is there anything in the history of time that references a
locking mechanism with respect to a doorway? I guess I'm trying to be specific, I'm not referencing if
there is internal access to the addition.
Mr. Davis:
Sure. In the history of time, I can't answer that. Within the exhibits, no.
ZfEAF Ems
Within the history of your knowledge in your position as the person who signed off on the promulgation
of this code interpretation, since the inception of the ADU ordinance as contemplated by the people
who enacted that, is there anything that you're aware of that would establish a consistent agency
practice and that it was not a result of the incident at matter, the dispute?
Mr. Davis:
Mann Hearing (Completed 03/16/22) Page 21 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Sure. What I can say, and I referred to this earlier, is that there have been periods of time, both in my
tenure and from what I'm told prior, that there was consensus among the planners of what would
constitute an Accessory Dwelling Unit. Those periods of time changed with staff. There were a number
of different tools that they used to provide clarity, albeit temporary in the long scheme of things,
temporary, to customers. I recall a number of different tools being used, a number of different factors
being used, locking doors being one of them. But to your question of is there an email in the history of
time I can't verify that.
Mr. Mann:
Okay. I want to get your best testimony, I don't want there to be any intimation or inference that you've
been evasive in any way in your answer. I'm just asking a basic yes or no question. Do you know of
anything that you've seen today in the evidence that's been proffered by the city that talks about the
provisions, the ambiguities that they're trying to clarify in that code interpretation?
Mr. Davis:
In the evidence being, in the exhibits and my testimony?
Mr. Mann:
Yes.
Mr. Davis:
Again, my testimony, within the exhibits the answer is no. Within my testimony and my experience with
the city my answer is there have been a number of tools, one of which has been locking mechanisms as
one of the factors included in distinguishing Accessory Dwelling Units.
ul�FTi",
Okay. You testified earlier under direct examination that there were periods of consistency and that
there were other times when it was somewhat inconsistent as to your staff's interpretation of what
constituted an attached ADU as far as the planners who are tasked with reviewing applications for ADU
permits, is that right?
Mr. Davis:
I'm sorry. If you wouldn't mind repeating it one more time?
Mr. Mann:
I'm sorry also. You stated earlier that there were periods of consistency and that occasionally it was
somewhat inconsistent.
Mr. Davis:
Yes.
Mr. Mann:
Mann Hearing (Completed 03/16/22) Page 22 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Okay. But you are not able to point to anything in your experience that would establish an agency
practice of enforcement, save for some issue regarding blocking a doorway from the tenant side, is that
what I understand?
Mr. Davis:
Not as formal as the interpretation, yes, that is correct.
&
Mr. Davis, when you were reviewing the code interpretation prior to signing off on it, did you consider
the fact that an unscrupulous landlord would easily be able to evade parking requirements, ADU permit
fees to the city, restrictions on home based businesses with regard to mother in law tenants or other
requirements that could be evaded?
Mr. Davis:
With most permits that we approve there's always that possibility.
Mr. Mann:
Did you consider the safety of the tenants?
Mr. Davis:
Yes.
Mr. Mann:
Did you consider the fact that the city was in fact being willfully blind, for lack of another term, in
allowing the possibility for a landlord to commit some crime or bad act in an extreme situation? There's
always a specter of bad actors. Did that come into your consideration when you were thinking through
the safety of the tenants?
Mr. Davis:
As far as wilful, I forget your verbiage there.
Mr. Mann:
Let me ask it again. When you were thinking of the safety of the tenants did it occur to you that a
landlord who was intent on a bad act of some kind, whether it's theft or worse, could enter into a
tenant's abode, domicile, apartment, at will under the rubric that was established and signed off on by
you?
Mr. Davis:
No more than I would approving an apartment complex where a manager has keys to all the
apartments.
Mr. Mann:
Does multi -family housing follow the same requirements as single family housing?
Mann Hearing (Completed 03/16/22) Page 23 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Davis:
To your question of were we mindful of tenants and other people having keys to their tenants, yes, we
employed the same review.
Mr. Mann:
I don't understand the answer. Are the requirements for multi -family housing the same as the
requirements for single family housing?
Mr. Davis:
Your question was did we consider the safety of the tenants. The answer is yes.
Mr. Mann:
That was a prior question. I guess I'm asking, you're suggesting that the analysis is exactly the same as
with an apartment building which is designed as an apartment building.
Mr. Davis:
No the design. The access to the units.
Mr. Mann:
So you are suggesting that the code as interpreted is somehow equally safe as a situation where there's
multi -family housing and a manager has keys to a given unit?
Mr. Davis:
I answered your question with that example, not with the intent of saying that we permit apartments
and single family dwelling, that the codes and design are the same. Your question was did we consider
the safety of the tenant because the next door neighbor could come into their unit with a key.
Mr. Mann:
I don't understand but I'm going to move on, Mr. Davis. Does it make sense to you that the inquiry as to
whether a landlord is operating an unpermitted ADU should end upon a ...
PART 2 OF 4 ENDS [00:58:04]
uf�F1I",
Operating an permitted ADU should end upon a determination about the locking mechanism.
Mr. Davis:
Is it my...
Mr. Mann:
Does it make sense to you?
Mr. Davis:
Mann Hearing (Completed 03/16/22) Page 24 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
I stand by the interpretation, if that's your question.
Mr. Mann:
Okay. Doesn't it make more sense to induct a very basic fact finding inquiry as to other elements of an
attached ADU when determining whether an permitted ADU exists, rather than simply ending the
inquiry upon determination of the existence or non-existence of some locking mechanism?
Mr. Davis:
If you could come out what you refer to by basic inquiry.
Mr. Mann:
Basic inquiry would be, as you do with other types of situations where there are multiple families living
in the same apartment unit. I attended a Community Development Council meeting recently, where one
of the issues discussed was how it was conducted to determine whether the multiple people living in a
given unit knew each other, were related, and so on. Those are basic inquiries that are done with other
aspects of city's duties. And my question is, doesn't it make sense that a similar fact finding inquiry is
done, as opposed to just simply saying, "Gee, we don't have to do anything further. We've determined
Mr. Holly doesn't have a lock on his door that can be locked from the inside." And even though these
other aspects of an attached ADU are perfectly consistent with the ordinance, we're done, we can walk
away. We don't have any responsibility. Does that make sense?
Mr. Davis:
I would answer again by saying I stand by the interpretation.
Mr. Mann:
Okay. I don't have any further questions for you.
Phil Olbrechts:
Okay, Mr. Van Alstyne, any redirect?
Mr. Van Alstyne:
Just some limited redirect if I could. Mr. Davis, in your knowledge, have there been any other formal
code interpretations issued by the city, with respect to attached ADUs?
Mr. Davis:
Not to my knowledge.
Mr. Van Alstyne:
Okay. Do you agree with the reasoning in the code interpretation?
Mr. Davis:
I do.
Mr. Van Alstyne:
Mann Hearing (Completed 03/16/22) Page 25 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Does the city engage in a fact finding inquiry when determining whether a certain development
constitutes an ADU or not?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Could you tell me how the city does that in the case of permitting of an addition?
Mr. Davis:
Yeah. If there's potential for the addition to have it's own separate living facilities, kitchen, bathing,
sleeping, we would look at the basic degree of looking at those plans, and then determining if the
addition is in fact separate and independent from the rest of the house. If it's free, you freely pass
between the addition and the existing one then it's less likely to be its own unit. Whereas if the
separation is more defined, specifically with the secure door locking mechanism that's provides us the
clear indication of it being its own unit.
Mr. Van Alstyne:
So if I understand your testimony correctly, the city still applies all the other portions of the ADU
definition, including the portions that require sleeping, sanitation, kitchen and living areas, in addition to
the portion of the definition that requires that the ADU be independent and exclusive, is that correct?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Does the code interpretation in your mind interpret anything about the ADU definition, other than the
words independent and exclusive and their influence on the correct interpretation of the ADU
definition?
Mr. Davis:
Sorry. One more time, my apologies.
Mr. Van Alstyne:
Does the code interpretation purport to interpret any other portion of the ADU definition other than the
portion that talks about independence and exclusivity?
Mr. Davis:
The interpretation provides that distinction.
Mr. Van Alstyne:
Yes. But that distinction is in addition to all the other parts of the ADU definition that the city regularly
enforces?
Mann Hearing (Completed 03/16/22) Page 26 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Davis:
Correct. It doesn't excuse the rest of the existing provisions of ADU code.
Mr. Van Alstyne:
Thank you. Does any portion of the ADU definition to your knowledge reference tenants or landlords?
Mr. Davis:
No.
Mr. Van Alstyne:
Does any portion of the ADU definition reference leases?
Mr. Davis:
No.
Mr. Van Alstyne:
Okay. No further questions. Thank you.
Phil Olbrechts:
Okay. Mr. Davis, I just a couple quick ones for you. I think you mentioned in a response to some
questions before that you had directed Mr. Nevin to investigate doing a formal code interpretation on
ADU issues, that was the beginning of 2021. Is that correct?
Mr. Davis:
Yes.
Phil Olbrechts:
Okay. And was Mr. Mann's neighbor, ADU issues, was that already in place at that time or had that
occurred afterwards?
Mr. Davis:
I don't believe it was.
Phil Olbrechts:
Oh, okay. Okay. So then your direction of Mr. Nevin wasn't at all based upon addressing Mr. Mann's
neighbor's property, is that correct?
Mr. Davis:
It wasn't a reaction to, if that's your question.
Phil Olbrechts:
It was not a reaction to it. Yeah, that's basically my question. Okay, great. Thanks, Mr. Mann, do you
have any other questions?
Mann Hearing (Completed 03/16/22) Page 27 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Mann:
I do have some follow up. Mr. Davis, you are aware that my first complaint to Doc Hansen as to my
neighbor's ADU was in 2020, were you not?
Mr. Davis:
Yeah. I would've to look that up, but I will take your word for it.
Mr. Mann:
Okay. Yeah. That's a matter of record.
Mr. Davis:
Yeah.
Mr. Mann:
So when you say that it's not in response to the instant matter, I think we heard Mr. Nevin testify earlier
that the inquiry into Mr. Holly's permitted ADU was the first time that any decision or finding was made
that is even remotely consistent with the code interpretation. And I would ask you again, is there
anything you can point to with respect to the Holly investigation that demonstrates that he met all of
the other requirements for an permitted ADU?
Mr. Davis:
Other than the decision that we issued?
Mr. Mann:
Yes.
Mr. Davis:
Let me understand the question, was [crosstalk 01:05:21] there evidence beyond a decision that
documented that we said it was not an ADU prior -
Mr. Mann:
Let me ask a different question. You testified just a few minutes ago that, in response to Mr. Van
Alstyne's question, you do in fact engage in a fact finding inquiry as to the other elements of an attached
ADU. And my question is this, irrespective of those things, if you make a determination that a locking
mechanism that connects the apartment to the rest of the structure does... If you determine that it only
locks from the landlord side or does not lock at all, that factor alone is dispositive as to the issue of
whether a landlord is operating an permitted ADU.
Mr. Davis:
.. Is that a question?
7017WAF Ems
That's a question. Is it true that a determination of the locking mechanism is dispositive alone, as a
standalone issue, irrespective of whether the other elements have been met.
Mann Hearing (Completed 03/16/22) Page 28 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Davis:
If it doesn't meet the threshold to begin with of being at separate unit, then a locking door, if it doesn't
meet the threshold of an accessory dwelling unit then a locking door it would be relevant at that point.
Mr. Mann:
I'm going to ask the question again, because I just don't think that was responsive. And I don't mean any
disrespect. It's a complicated question. I realize I'm struggling with how to ask it the best way. But if you
determine that there is an permitted ADU being operated with respect to every other element, save for
the locking mechanism. And if you determine under the code that you signed and promulgated, the
interpretation that you signed. If you make a determination that the door swings freely or that the
landlord can lock it from his side only, you get to walk away and say, "No, we don't have to enforce
anything. It's not an permitted ADU." Is that true?
Mr. Davis:
Yeah. If it meets all the requirements of the interpretation, then we would say it's an ADU.
Mr. Mann:
That wasn't my question. My question is, if the locking mechanism is inconsistent and there's no locking
mechanism on the tenant side, that element alone is dispositive for you and your planners in making a
determination. Is that true? That's a yes or no question. It's pretty straightforward.
Mr. Davis:
So I'm not trying to be evasive, but I would point to the interpretation, that's how we operate.
Mr. Mann:
Okay. That's okay. No further questions for this one.
Phil Olbrechts:
Okay. Mr. Van Alstyne, any redirect?
Mr. Van Alstyne:
Yeah, just very briefly. So I think you've already testified that your decision to charge Mr. Nevin with
creating a formal code interpretation of the ADU determination was not driven by Mr. Mann's
neighbor's complaint. Is that accurate?
Mr. Davis:
Correct.
Mr. Van Alstyne:
Were you even aware of Mr. Mann's neighbor complaint in early 2021 at the time that you directed Mr.
Nevin to start down that path?
Mr. Davis:
I was, yes.
Mann Hearing (Completed 03/16/22) Page 29 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Van Alstyne:
But it was not determinative of that decision?
Mr. Davis:
No. As I've mentioned before, this issue has evolved overtime at the city, and that's predicated on many
other example coming forward, where we've had to discuss what exactly is an accessory dwelling unit.
So there was, the Holly case was not the reaction to it rather than a history of inconsistency that led to
it.
Mr. Van Alstyne:
It would be fair to say that the Holly case was one of many instances that led to the city's direction in
this case. Is that true?
Mr. Davis:
Yes
Mr. Van Alstyne:
And indeed, in rebuttal exhibit 6, you reviewed two emails from planners that specifically implied the
code interpretation, after the code interpretation, is that accurate?
Mr. Davis:
Yes.
Mr. Van Alstyne:
And those two were both in the previous five months. Is that accurate?
Mr. Davis:
Yes.
Mr. Van Alstyne:
Is it fair to say that this issue with respect to internally connected to ADUs raises its head relatively
frequently?
Mr. Davis:
Yes. Based on the number of emails.
Mr. Van Alstyne:
Okay. Thank you.
Phil Olbrechts:
Okay. Let's see, Mr. Van Alstyne, any other witnesses that at this point?
Mr. Van Alstyne:
Mann Hearing (Completed 03/16/22) Page 30 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
I will call Mr. Nevin briefly.
Phil Olbrechts:
Okay. All right. Mr. Nevin, unmute yourself and well you've been sworn in so go ahead, Mr. Van Alstyne.
You can go ahead, Mr. Van Alstyne, he's already been sworn in, so.
Mr. Van Alstyne:
I apologize. I was pulling up my reference with that.
Phil Olbrechts:
Oh, okay. Sorry.
Mr. Van Alstyne:
Mr. Nevin, could you state yourjob title and associated duties at the city?
Mr. Nevin:
Sure. My job title is planning manager and my duties are many, but primarily I manage both long range
planning and current planning for the city.
Mr. Van Alstyne:
And as part of your job scope, that includes direct supervisory authority over city planners, correct?
Mr. Nevin:
Yes.
Mr. Van Alstyne:
How long have you held your position with the city?
Mr. Nevin:
Approximately 11 months.
Mr. Van Alstyne:
And do you recall approximately the date of your first hire?
Mr. Nevin:
Yeah. I was hired, my first day on the job was 31, March 2021.
Mr. Van Alstyne:
Okay. In the Community Development Department, which employees are generally charged with
determining whether or not an ADU permit is required for a particular development?
Mr. Nevin:
The planning staff.
Mann Hearing (Completed 03/16/22) Page 31 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Van Alstyne:
And are ADUs in the city allowed in various physical configurations?
Mr. Nevin:
Yes, they are.
Mr. Van Alstyne:
Can you go into a bit more detail about the physical situations in which ADUs are allowed in the city?
Mr. Nevin:
Sure. As Mr. Davis testified, they are both detached and attached. So detached refers to being part of a
separate structure than the existing single family residence, that could take the form of something, say
over a garage or in the backyard. Attached has multiple configurations, it could be put behind the house,
but still attached to the house. It could be in maybe an unfinished basement. There's a number of
different configurations that an attached ADU could take.
Mr. Van Alstyne:
So now specifically regarding attached to ADUs, in your opinion, at the time you joined the city early in
2021, were planning staff consistently applying a single rubric for determining whether a particular set
of attached additional living facilities constituted an ADU?
Mr. Nevin:
No, they were not.
Mr. Van Alstyne:
In your opinion, why do you think that's the case?
Mr. Nevin:
Because the code, as I mentioned before, and I think Mr. Davis touched on it. The code did not well
define the term independent. There was not clarity in the code related to that measure for what
constitutes an independent living facility.
Mr. Van Alstyne:
And so, in your opinion, would it be fair to say, that you believe the code is ambiguous as to whether or
not certain internal potential ADU configurations are sufficiently independent to constitute ADUs?
Mr. Nevin:
The code prior to the interpretation was, yes.
Mr. Van Alstyne:
Correct. Were you given direction to fix the lack of consistent application of the ADU code after you
joined the city?
Mr. Nevin:
Mann Hearing (Completed 03/16/22) Page 32 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Yes.
Mr. Van Alstyne:
And what were your goals in doing that, ultimate goals?
Mr. Nevin:
The ultimate goals was to provide consistency of messaging and actions by planning staff.
Mr. Van Alstyne:
And in developing that interpretation. Did you consult with the legal department?
Mr. Nevin:
Yes, I did.
Mr. Van Alstyne:
And in developing that interpretation in consultation with the legal department, without revealing any
interning client privilege information, did you specifically analyze the text and construction of the ADU
definition in determining the correct interpretation of the definition?
Mr. Nevin:
Absolutely. This was not a rewrite of code. This was taking an existing ambiguity in the code and
providing clarification. So it does rely on that existing code language.
Mr. Van Alstyne:
Okay. When would you say approximately that the city reached its decision internally about the correct
interpretation of the ADU definition as it applies to attached ADUs?
Mr. Nevin:
If I had to guess on a date, I started in March, really started working on tasks by May. We needed to
have internal conversations to figure out, to make sure that we were at a place where all the planners
could support the outcome. I would say that we had that clarity of position by the end of Summer, like
August, would be my guess.
Mr. Van Alstyne:
And so to backtrack a little bit, it seems as if this was quite a significant process. It wasn't immediate
decision on the correct interpretation of the code. Is that true?
Mr. Nevin:
Well, I took it the way that I needed to take it because being new to the city, I needed to give some
deference to existing staff and how they were interpreting the code. So there needed to be internal
conversations so I could understand why there was inconsistency in staff application of code first. So
that was my first task, was to just understand why we had a problem.
Mr. Van Alstyne:
Mann Hearing (Completed 03/16/22) Page 33 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
And so after discussing with the planners, you were heavily involved with the legal department as well in
developing this interpretation over time, is that correct?
Mr. Nevin:
Absolutely. With your predecessor and then you once you start it with the city.
Mr. Van Alstyne:
So I believe your previous testimony said that the city reached its internal decision about the correct
interpretation of the ADU definition sometime in late Summer. Is that correct?
Mr. Nevin:
Yes.
Mr. Van Alstyne:
And that is prior to issuance of the code interpretation, the formal code interpretation, is that correct?
Mr. Nevin:
That is correct.
Mr. Van Alstyne:
And are there any specific ADU decisions prior to issuance of the formal code interpretation that used
the same reasoning that was formalized in the later interpretation?
Mr. Nevin:
The one that I'm familiar with is the one that's been discussed this morning, which is related to the Holly
investigation.
Mr. Van Alstyne:
To your knowledge, we're planning staff applying the same reasoning that was formalized in the later
interpretation during at least the latter half of September and the first half of October?
Mr. Nevin:
Yes.
Mr. Van Alstyne:
I believe you testified that you don't know of any other specific ADU decisions prior to issuance of the
formal code interpretation other than the Holly ADU. Is that correct?
Mr. Nevin:
That is correct.
Mr. Van Alstyne:
Mann Hearing (Completed 03/16/22) Page 34 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Does that mean that there was no advice given by planners during the period of the latter half of
September and the first half of October, that was consistent with the ADU interpretation?
Mr. Nevin:
No, not at all. It just means I can't specifically cite any of them.
Mr. Van Alstyne:
Okay. I'm just going to ask just a couple last questions here about the code interpretation itself. You're
aware that director Davis issued the formal code interpretation on the 15th of October 2021?
Mr. Nevin:
Yes. And he told me not to say this, but it's my birthday. So yes, I remember that date.
Mr. Van Alstyne:
So much for witness prep, guys. Is the code interpretation the city's final decision on the meaning of the
current ADU definition and its applicability to attach ADUs?
Mr. Nevin:
Yes.
Mr. Van Alstyne:
Is the code of interpretation the official adopted policy of the city with respect to adopt ADUs?
Mr. Nevin:
Yes.
Mr. Van Alstyne:
Are you aware that Federal Way Revised Code requires that the formal code interpretation be enforced
as if it is a part of the city code?
Mr. Nevin:
Yes.
Mr. Van Alstyne:
Is it then true that the city is legally required to apply the formal code interpretation to ADU
determinations now?
Mr. Nevin:
Yes.
Mr. Van Alstyne:
Have planning staff been directed to apply the formal code interpretation and it's reasoning to all
attached to ADUs in the city?
Mann Hearing (Completed 03/16/22) Page 35 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Nevin:
Yes.
Mr. Van Alstyne:
Thank you. No further questions.
Phil Olbrechts:
Okay. Mr. Mann, any cross?
Mr. Mann:
No.
Phil Olbrechts:
All right.
Mr. Mann:
It's been addressed ad nauseam, Mr. Examiner, and I am ready for closing.
Phil Olbrechts:
Okay, fantastic. Have you finished, Mr. Van Alstyne?
Mr. Van Alstyne:
I think this is the appropriate time to discuss some legal issues relevant to the deference question now
that we have sufficient facts to delve into those. And so prior to my closing statement, which I'll focus on
the merits of the appeal, I'd like to take this time to discuss the deference issue specifically.
Phil Olbrechts:
Okay.
Mr. Mann:
Well, if I could object, Mr. Examiner, with respect. Mr. Van Alstyne is proposing that he just wants to
discuss legal matters and it's really not a part of the conduct of his case in chief. And this was more
appropriate for his opening or rather for his closing, in this instance. But I don't think it's proper for him
to proceed me as to closing remarks reference the law and so forth.
Phil Olbrechts:
Let me ask you, Mr. Mann, are you going to be presenting rebuttal evidence at all, or are you just going
to be talking about closing?
Mr. Mann:
I am not going to be presenting rebuttal evidence. I'm going to be in my closing discussing aspects of the
law and talking about the evidence that we heard.
Mann Hearing (Completed 03/16/22) Page 36 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Phil Olbrechts:
Well, I think then, I mean, Mr. Van Alstyne, I guess since Mr. Mann is not doing any rebuttal, we're going
straight to closing anyway, so you could do your closing now. And then according to the order and the
pre -hearing order, you do your closing and then Mr. Mann does his closing. Does that work for
everybody?
Mr. Van Alstyne:
Perfectly fine. Perfectly fine by me.
Phil Olbrechts:
Okay. Let's go that route. All right, go ahead, Mr. Van Alstyne.
Mr. Van Alstyne:
So in the closing, I'm first going to address the deference issue here, because I believe it's a preliminary
matter and it's been specifically flagged by the examiner in the ruling on summary judgment. Of course,
the hearing examiner is correct that under the Federal Way Revised Code, great deference is due the
city's interpretation of its own code. And also under LUPA, under the State Standard, the standard does
not use the same language, it uses the language such deference as is due. And there's considerable case
law interpreting the such deference as is due standard at the state level. And in the context of that case
law, courts have analogized to traditional concept of agency deference. In fact, there's three main cases
on this subject in terms of appellate case law. Two, I believe I've already been referenced by Mr. Mann,
those are Ellensburg Cement and Sleasman B. City of Lacey, but there's a third as well, which is Cowiche
Canyon Conservatory vs. Mosley.
Mr. Van Alstyne:
Cowiche Canyon is the first of the three. And it's actually the discussion of such deference as is due in
Cowiche... Excuse me. The discussion on deference in Cowiche Canyon forms the basis of the analysis in
both Sleasman and Ellensburg Cement. Both cases, site heavily and quote actually from Cowiche
Canyon. Cowiche Canyon though is not a LUPA case at all, it's a shoreline management act case. So it's
not even a case under LUPA. It applies traditional standards of agency deference, which have then been
taken and applied in the LUPA of specific context in both Sleasman as well as Ellensburg Cement. And so
if I could, I'm going to read specifically the section of Cowiche Canyon that's later been quoted in the
subsequent LUPA specific cases in Sleasman and Ellensburg Cement, because I believe it's discussion is
relevant to the degree of deference due the city here.
Mr. Van Alstyne:
In the section, and I'll quote this exactly, this is 118 Wn.2d801 and this is page 815. And the quote is, "If
an agency is asserting that its interpretation of an ambiguous statute is entitled to great weight, it is
incumbent on that agency to show that it has adopted and applied such interpretation as a matter of
agency policy. It need not be by formal adoption equivalent to an agency rule, but it must represent a
policy decision by the person or person's responsible. Nothing here establishes such an agency policy
and nothing shows uniformly applied interpretation. The evidence establishes that the application and
interpretation here was nothing more than isolated action by the department. Thus, the department is
not established agency interpretation entitled to great weight, instead it attempts to bootstrap a legal
argument into the place of agency interpretation." So that was the language that was then applied
Mann Hearing (Completed 03/16/22) Page 37 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
directly in both Sleasman and Ellensburg or yes, in Ellensburg Cement. The factual situation in Sleasman
and Ellensburg Cement also deserve discussion because of how different they are than the factual
situation in this case.
Mr. Van Alstyne:
Sleasman was a case where it was an appeal of a civil fine to a property owner for cutting down trees on
their property. The citation was appealed to the hearing examiner first and then appealed to superior
court afterwards and then to the courts of appeals. The interpretation of code that was advanced by the
city in Sleasman was not even offered until the superior court level. And it was not offered at the
superior court level until after a request for further briefing at that level. In other words, the
interpretation was first brought up several levels of review subsequent to the actual determination that
was being appealed. Additionally, there were no examples of prior application in Sleasman B. City of
Lacey consistent with that interpretation, no examples whatsoever. And based on that fact, Sleasman,
and citing to Cowiche Canyon, Sleasman determined that they were bootstrapping their legal argument
in place of an agency interpretation.
Mr. Van Alstyne:
In Ellensburg Cement, the facts were an appeal of a conditional use permit approval by the hearings
board. And the interpretation in that case was made by the hearings board in an open public hearing in
response to legal argument at the hearing by parties opposing the conditional use permit. And they
made what the Supreme court called an ad hoc decision at that specific open record hearing regarding
the corrected interpretation of the decision. There were also no examples at all of prior enforcement in
Ellensburg Cement. And on those facts, again, the court determined that the city had bootstrapped a
legal argument into the place of an agency interpretation.
Mr. Van Alstyne:
Thus, because of the fact that the interpretations put forward in Ellensburg Cement and in Sleasman
were not formally adopted and put forward as agency rules or analogous to agency rules. And because
they were put forward at later processes in the active litigation in response to arguments from the
opposing side, with respect to that interpretation. They're very different from the situation that we have
in this case. In here, we have a formal binding, final interpretation that the city has issued, which is akin
to formal agency rule making, again, analogizing to traditional principles of agency law. Indeed, the city
and all the members of the city, as we've heard testimony today is legally required by its code to
implement the code interpretation going forward.
Mr. Van Alstyne:
In fact, under city code, the code interpretation is no different from city code at this point. In other
words, this is as formal and as binding and as akin to actual agency rule making, as you can get in the
city's view. Additionally, the interpretation was not raised at subsequent level of litigation, the
interpretation is the thing that is now being litigated. So unlike these other cases, this is not a situation
where we're several levels of review into the process or it was a case or a situation of first interpretation
while in an open record hearing...
PART 3 OF 4 ENDS [01:27:04]
Mr. Van Alstyne:
Mann Hearing (Completed 03/16/22) Page 38 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
... Or a situation of first interpretation while in an open record hearing. This is a decision, as you've
heard, that was carefully considered by the city over a period of months and then issued formally.
Mr. Van Alstyne:
Additionally, another factual difference in the situation is that the city has applied the reasoning in the
code interpretation prior to the adoption of the formal code interpretation. Unlike the other cases,
there's at least one example demonstrated by the record, the Holly ADU in which the city, prior to
issuance of the formal interpretation, did in fact issue a decision consistent with the reasoning in the
code interpretation.
Mr. Van Alstyne:
And then as the evidence has shown today, the city has also consistently applied the formal code
interpretation in all ways since its issuance, as would be expected because the city is legally required to
do so.
Mr. Van Alstyne:
So the city submits that under the original... The city's determination here is entitled to deference, even
under the state law standard as well, because the standard as articulated in [Howich 01:28:07] how is
that it's incumbent on the agency code to show that it has adopted and applied such interpretation as a
matter of agency policy. The city submits that's exactly what happened here. The city formally adopted
and has applied that interpretation as a matter of agency policy since it first adopted the formal rule
making, and also at some point before that.
Mr. Van Alstyne:
None of these other cases deal with a situation where there's formal adoption of an interpretation.
They're all bootstrapping legal arguments at a later point in the process. So in accordance with the
hearing the examiner's ruling on summary judgment, the city believes that it is due great deference
under the city code, but also believes that it would be due deference under the state law standard
because this situation is factually different from [Ellensburg, Cement and Sleasman 01:29:00], and
neither of those cases dealt with formal adoption akin to an agency rule like we have here.
Mr. Van Alstyne:
Turning now briefly to the merits which I agree with Mr. Mann have been extensively and exhaustively
dealt with by both parties, particularly in the motions for summary judgment, I'll only speak briefly on
this because I believe the city's position is more artfully laid out in the briefing and I think the hearing
examiner can read it there. But the city's position on the merits is that under any standard of review,
even without deference, the city should prevail in this appeal.
Mr. Van Alstyne:
The city applied traditional means of statutory construction in accordance with the code and in
accordance with visions at the state level regarding interpretation of municipal ordinances.
Mr. Van Alstyne:
Mann Hearing (Completed 03/16/22) Page 39 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
The appellant does not even seem to argue that the city's use of formal methods of statutory
construction is incorrect. In fact, I believe that point was conceded, at least to some degree, in the
response of summary judgment proceedings.
Mr. Van Alstyne:
The city properly interpreted the plain language of the words independent and exclusive. Independent
and exclusive have common meanings and they're undefined terms in the code. And notably exclusive
means having power to exclude limiting possession or control to a single group. Based on those
definitions, the city applied the plain language of the provision to the issue here and issued the code
interpretation entirely consistent with that.
Mr. Van Alstyne:
There are several arguments that appellant has made with respect to how the city's interpretation
cannot possibly be in accord with the intent of the granters. But notably, the appellant does not offer
any evidence of what the intent of the drafters of the ordinance is. There's no attempt to look at the
code language, which is the traditional place you'd look for for intent of drafters, nor is there an attempt
to look at the historic ordinance that first adopted this.
Mr. Van Alstyne:
And I note, again, the historic ordinance that adopted this contained in the recitals reference that said
ADUs were both self-contained and separate facilities, language which, if anything, seems to bolster the
city's code interpretation in that respect.
Mr. Van Alstyne:
Finally, three arguments with respect to impacts that the appellant suggests the city did not look to, or
should have looked to. The first one has to do with off-street parking. This argument respectfully is a red
herring.
Mr. Van Alstyne:
The city requires two parking spaces for a single family residence. The city requires an additional parking
space. So a total of three for single family residences that have ADUs.
Mr. Van Alstyne:
But the perception of a need for parking at any specific property is not what makes the development of
that property an ADU or not. It's whether it meets the definition of an ADU at all. If it does meet that
definition, then an extra parking space is required but if it doesn't meet the definition, just as similarly,
an extra parking space is not required.
Mr. Van Alstyne:
Regarding tenant safety. As you've heard today, the city did consider the safety of residents of the city in
issuing this code interpretation, but more importantly, the perceived potential issue of landlords
removing all the locks to tenant dwellings just is not really a problem because of the Landlord Tenant
Act, which specifically provides tenant protections in this realm. Landlords are required to provide
reasonable locks and tenants can notify them that there aren't reasonable locks and the landlord is
legally required to put in reasonable locks within no later than a 10 day period.
Mann Hearing (Completed 03/16/22) Page 40 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Mr. Van Alstyne:
And then finally, this issue of so-called self -reporting. Again, covered in the brief and covered in the
testimony earlier today, the city's not going to allow self -reporting by landlords as to whether or not
they have an ADU. If it's an addition, if it's a building addition, then the city will review the plans. The
city will determine whether those plans constitute an ADU or not. And then once it has been physically
constructed, it will be inspected by the building inspectors, just like any other new development is, to
determine compliance what the ADU ordinance.
Mr. Van Alstyne:
And then additionally, if there are neighbor complaints, much like the neighbor complaint with respect
to the Holly ADU, the city doesn't just allow landlords or any other property owner to call the city and
say, "Hey, I don't have an ADU," and that be the end of the city's inquiry. The city would open a code
enforcement case, if necessary investigate as to the factual scenario at the subject property, and then an
issue a determination based off of that.
Mr. Van Alstyne:
I'll stop there. And I'll just conclude by saying we respectfully request that the hearing examiner uphold
the city's decision in all respects and dismiss the appeal. Thank you.
Phil Olbrechts:
Thank you, Mr. Van Alstyne. All right, Mr. Mann, go ahead.
Mr. Mann:
Thank you, Mr. Examiner. Thank you, Mr. Van. Alstyne, Mr. Nevin, Mr. Davis for appearing today, and I
will be exceedingly brief.
Mr. Mann:
The appellant incorporates, by reference, all exhibits including the actual code of the ADU ordinance. It
is preposterous to suggest that by failure to reference specific code numbers and line subsections, that
somehow, appellants position for purposes of appeal is invalid or is not otherwise meritorious.
Mr. Mann:
Appellant's position is very simple. And I will share my screen briefly, if I may, Mr. Examiner.
Mr. Mann:
Let's see here.
Mr. Mann:
Okay. Under the case cited by the examiner in ruling on the summary judgment motion, it is the city's
burden of proof to demonstrate that the local entity's interpretation was part of a pattern of past
enforcement and not a byproduct of current litigation. I am referring to the Ellensburg; excuse me, I
need to move this window, the Ellensburg cement products versus Kittitas County, and I am at page,
looks like it's 752 or 23 respectively, paragraph 34. The statute does not require a court to show
complete deference, but rather such deference as is due in reference to the RCW. The city referenced as
Mann Hearing (Completed 03/16/22) Page 41 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
well. Thus deference is not always due. In fact, even a local entity's interpretation of an ambiguous local
ordinance may be rejected. And it sites for that proposition, the Sleasman case and the [Goyish
01:37:19] Conservancy case that was touched on by respondent.
Mr. Mann:
It goes on to say, "Instead, the interpreting local entity bears the burden to show its interpretation was a
matter of preexisting policy. No deferences due to a local entity's interpretation that was not part of a
pattern of past enforcement, but rather a byproduct of current litigation. And the local entity's
interpretation need not be memorialized as a formal rule, but the entity must prove an established
practice of enforcement.
Appellant puts forth the proposition that the city has not proved an established pattern of enforcement.
Mr. Mann:
The examiner heard Mr. Davis deny, and Mr. Nevin also denied any prior enforcement of the ADU
ordinance that touched on the definition of independent and exclusive, and the language in the code
interpretation as a matter of past enforcement practice. It is language that was grafted onto the code,
which is inconsistent with the ADU ordinance as enacted by the city council as the legislative body.
Mr. Mann:
The examiner will note, and I think it follows common sense that despite Mr Davis' reference to his own
personal testimony, that he has encountered other instances in the past, despite none of those being
brought forth in the exhibits that he reviewed with Mr. Van Alstyne today. I think it's obvious that if
there were such an inquiry, Mr. Van Alstyne, would've tracked that down and proffered it today as a
major part of his case.
�u�F1I",
Instead, Mr. Van Alstyne has vigorously referenced the same arguments that he put forth in the briefing.
And I would also, along with Mr. Van Alstyne, ask that the examiner refer to the briefing yet again,
which is certainly more artful and articulate than I'm able do today for purposes of establishing
appellant's case.
Mr. Mann:
I'm going to stop sharing, I'm sorry.
Mr. Mann:
The code interpretation implies that even where there is a lease agreement in furtherance of the
economic benefit of the landlord, an excess free dwelling that is separated from the remainder by an
attached door that may be freely opened from the remainder of the residents is not sufficiently
independent.
Mr. Mann:
And I, again, would say, this is very straightforward. That language does not comport with the spirit or
purpose of the ordinance as contemplated by that legislative body. And perhaps more importantly, it
Mann Hearing (Completed 03/16/22) Page 42 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
does deny a tenant basic safety measures necessary, irrespective of Landlord tenant Act. I don't know
what that has anything to do with anything, but the examiner heard Mr. Davis could not deny that that
single aspect is dispositive as to the inquiry. And so in my scenarios that I set forth in my briefing, that's
where the inquiry ends.
Mr. Mann:
In a very athletic way, Mr. Davis argued in defense of the city's position, that there are fact-finding
inquiries that are done and so forth. And I think that question cut to the core of appellant's arguments.
The city has dismissed appellant's scenario, and essentially have just argued that...
Again, they argued today and Mr. Davis did as well that appellant simply has it backwards, that the city
is in fact, the authority and any ADU requirement as a result of the city's determination as to the
existence and not determinative of what constitutes an ADU in the first place.
Mr. Mann:
So that is pretzel logic and is bureaucratic by definition, and the appellant is asking, in the interest of
protecting the citizenry of Federal Way going forward, that this interpretation be simply modified or
redrafted to disallow the stark glaring loopholes that exist.
Mr. Mann:
And again, I would say if there was any instance of consistent enforcement in the history of the logs of
the city with respect to the ADU ordinance, Mr. Van Alstyne, I think we can see today from his
exhaustive briefing and presentation of his case, he would've brought that forth. And so very casuistic
and nuanced analysis of [Howich 01:43:52] and agency principles, generally the various levels of review,
the procedural posture of the various issues, whether or not they touched on the specific facts in the
instant matter, have formed the basis of Mr. Alstyne's position that the code interpretation is somehow
due deference, and it is consistent with a pattern of enforcement. We saw one strange case that had
nothing to do with ADU. It's a shoreline management case that had something to do with inaccess.
Doesn't have anything to do with an attached ADU. And we saw numerous references to inquiries,
emails between planners and citizens, all that occurred after promulgation of the code.
u�FTi11
And Mr. Van Alstyne went so far as to suggest that the Holly inquiry complaint, ADU application itself
prove the city's case and demonstrates a prior pattern of enforcement consistent with the code.
Mr. Mann:
And appellant will not comment on that except to say that besides being preposterous... Appellant does
not have to rely on whether the interpretation is a result of the instant litigation or dispute. Although it
very clearly is by preponderance of the evidence on a more likely than not standard but the respondent
has not met their burden as to establishing that it's not.
Mr. Mann:
Appellant prevails simply on the basis of a total paucity and lack of actual evidence offered in the
witness and exhibit list save for Mr. Davis's recollection, even though no hard evidence was referred to,
Mann Hearing (Completed 03/16/22) Page 43 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
his recollection that there have had at times been inconsistencies with his stuff that he can recall, and
that there is one instance of some door blocking of some kind, that somehow he has bootstrapped onto,
as part of the evidence supporting respondent's position, that somehow that's demonstrative and meets
the burden and is able to pre ponder on a more likely than not basis. And that argument fails.
Mr. Mann:
And appellant respectfully asks that the examiner simply... And appellant has great respect for the city
attorney's duties, Mr. Davis' duties, Mr. Nevin's duties. I have watched them dealing with community
council groups, and they're very even handed, very respectful to the citizens who have volunteered their
time for this stuff. And I just wanted to add, I have a lot of respect for their job and the importance of
this job.
Appellant is simply asking the examiner, try a fact to determine that the city's not met their burden, and
they must, as a matter of fact and law, go back to the drawing board and redraft this in such a way so it
is impervious to the abuses set forth in my briefing and the very real possibility of exposure with respect
to safety, where the average unsophisticated citizen, who is being told by city officials and by their
landlord, that they've received certification and a determination from the city that there is no
unpermitted ADU being operated, and that everything is in accord, and they can rely on the reasonable
assurances of the landlord that yes, we will lock you in for your own safety. But somehow there is zero
exposure for the city because of a totally separate act called the Landlord Tenant Act.
Mr. Mann:
I would put forth the proposition that there is exposure for the city and all it takes is one very, very
terrible unthinkable situation.
Mr. Mann:
And with that, appellant rests.
Phil Olbrechts:
Okay. Thank you, Mr. Mann.
Phil Olbrechts:
Yeah. I still have a lot of work and study to get through these issues. I don't know where I'm going yet on
this. I do want to express my appreciation for the parties to take the time to do the oral hearing today. I
didn't take lightly the decision not to try to resolve this as a matter of law. It is largely a matter of law. It
would've been nice that we didn't have to spend two hours on a Friday going over this, but I felt it
important to do so for a couple reasons.
Phil Olbrechts:
One was just to see the positions of the parties tested by the fires of oral argument. And I think that was
beneficial. And more importantly, it was on the deference issue to hash that out. And that was a factual
question. It could be very important in this case because taken in the light most favorable to Mr. Mann,
and I don't know how far I'm going to go down to conclude that I should go that route.
Mann Hearing (Completed 03/16/22) Page 44 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
Phil Olbrechts:
But there are two very reasonable competing interpretations here. The city has come up with a very
precise code oriented interpretation that provides predictability and consistency. That's obviously a very
important objective in code review, but you know, like the federal tax code, the more precise and
specific you get, the more people are going to play games, and the more likely you're going to end up in
situations that Mr Mann where you really have an ADU that's the council vision, but someone just
figured how to beat the system and get around it.
Phil Olbrechts:
Mr Mann's interpretation is more of a "You have to consider this list of factors and come up with a fairly
subjective determination of whether you have an ADU or not."
Phil Olbrechts:
And that of course doesn't have as much consistency and creates the situation that staff has been trying
to avoid, which is different positions with different staff over the years. So which interpretation is
better, that puts me in a very difficult position. And that's why the deference can be determined there.
Because if I do have two really good competing interpretations, the deference will tip the balance there.
Phil Olbrechts:
And I think Mr. Van makes a good point about, we don't have evidence of past practice, but at the same
time, Mr. Van Alstyne raises a good point that the courts, they're trying to avoid a bootstrap situation
where an interpretation is thrown out to win a particular case, even though that's really not what the
interpretation that the agency may pursue over time.
Phil Olbrechts:
And that's precisely why I asked the question, was this formal interpretation or reaction to essentially
the product litigation as the Ellensburg case talks about the controversy that Mr. Mann has with his
neighbor. And I'm apparently convinced on that point that it doesn't arise specifically from Mr Mann's
situation with its neighbor. It is an honest effort to deal with a continuing problem with the ambiguity of
the code.
Phil Olbrechts:
And the city may not be showing a lot of past practice, but I think it's fairly clear that objectively it will
be relying on this in the future, and already has in a lot of interpretation.
Phil Olbrechts:
So a lot of issues to get there. Like I said, the first point will be to see how much the city's interpretation
overlaps with Mr. Mann's. In my mind, I still haven't figured it out how many of the other factors that Mr
Mann sided are already baked into the definition of ADU and what's going to be left out in that
determination and how the additional factors, the lease, that kind of thing, really is pertinent to the ADU
definition.
Phil Olbrechts:
So like I said, I have some work ahead of me, but I'll get that decision out in 10 days. And again, I really
do appreciate your time on this. Like I said, I do try to avoid any major expenditure of time when it's not
Mann Hearing (Completed 03/16/22) Page 45 of 46
Transcript by Rev.com
This transcript was exported on Mar 16, 2022 - view latest version here.
necessary, but I think that this is a productive hearing and I appreciate all your time. It's all really well
done from the attorneys and the staff. So I think we're adjourned for today. So have a great and a great
Friday.
Mr. Mann:
Thank you Mr. [crosstalk 01:53:06].
Mr. Van Alstyne:
Thank you, Mr. Examiner.
Phil Olbrechts:
Thank you.
Phil Olbrechts:
Mm-hmm (affirmative). Bye.
Mr. Mann:
Thank you...
PART 4 OF 4 ENDS [01:53:06]
Mann Hearing (Completed 03/16/22) Page 46 of 46
Transcript by Rev.com