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Exhibit 2 - John Bissel Presentation Outline.pdfHearing notes 1. What happened on site: a. The property owner applied for a building permit. b. The City enforced provisions of the code and restricted on site clearing and tree removal c. The property owner removed the trees allowed under the requirements of the building permit. d. The property owner removed additional trees that were not on the list of trees approved for removal. 2. Question: Was the tree removal legal? 3. Code requirement. a. ECDC 18.45 contains regulations regarding tree preservation and tree removal b. ECDC 18.45.030 sates: "The following shall be exempt from the provisions of this chapter" c. ECDC 18.45.030.F states as an exempted activity "Emergency situations on private property involving danger to life or property or substantial fire hazards" d. "Emergency" is not defined in the ECDC 4. Property owner's position: The property owner submitted two arborist reports to the City. (Attachment 5, and Attachment 6) Both reports indicated that any clearing on the site would cause the remaining trees to become hazardous and recommended clearing all the trees. The reports clearly articulated why this was the case. The City declined to accept these reports saying that they were too vague. The city approved a clearing limited clearing plan with the building permit. The property owner cleared the trees as allowed by the city. This clearing process left many hazardous trees, and some trees that the property owner felt very scared about. Since the clearing occurred in the fall when winds tend to pick up, and since this site would be occupied by minors working on a Edmonds School District Project, the property owner felt that the these few trees created an emergency situation. Because of this, the clearing of these trees would be exempt. 5. City's position: a. The Emergency exemption does not apply because the property owner did not apply for a tree clearing permit, submitting individual hazard tree reports for each tree. b. The performance standards of the code are not met because sections of the standards require tree preservation, and permitting. Since trees were not preserved, and the clearing was conducted outside of permitting 6. Rebuttal to the City's position: a. The city's position ignores the language in the exemption section: ECDC 18.45.030 "The following shall be exempt from the provisions of this chapter" b. ECDC 18.45.030.E is one of the following that is referred to in ECDC 18.45.030. c. ECDC 18.45.030.E "Emergency situations on private property involving danger to life or property or substantial fire hazards." d. The property owner claims that the hazardous condition of the trees that were removed created an emergency. i. Two reports from a licensed arborist predicted that any clearing on the site would caused the reaming trees to become hazardous. ii. A subsequent report from the same arborist and submitted here notes that all the remaining trees did become hazardous iii. That same report claims that the trees removed created an emergency. iv. Approved clearing was conducted in September, when winds will typically pick up. v. The property is surrounded by developed houses vi. The property was to be occupied by high school age minors in the fall high school semester. 7. Burdon of Proof a. The city has a burden of proof to show that a violation of code is committed. b. The city alleges that trees were removed without city approval 13 a c. In order for the city to prevail, the City must prove that the hazardous condition of the trees did not present an emergency condition d. The city has provided no evidence that the removed trees did not create an emergency situation. e. Additionally, the accused has no burden of proof required. However, the property owner has submitted evidence from a licensed arborist that indicates an emergency situation was created. f. The City has not borne it's burden of proof. Current site conditions. Relevance as to the purpose of the code and the intent of the City a. ECDC 18.45.030 Exemptions, subsection A. "Clearing on an improved single-family lot or clearing on a partially improved single-family lot, which is capable of being divided into one additional lot" b. A building permit for a single family residence was issued for the subject site subsequent to the alleged violation. c. The single family building foundation is in place and framing has started including the completion of some walls. Thus the site is partially developed. d. The site is large enough to be divided to create only one additional lot. e. Because of these conditions, the site is exempt from the code and thus the City cannot prevent clearing of the site. City's misdirection. Relevance to the property owner's believe in the City's ability to respond and allow emergency tree removal and removal of hazard trees: a. The property owner submitted an arborist report dated 8/21/14, and found as Exhibit 5. b. The city told the property owner that the information submitted was not detailed enough c. The property owner submitted a revised arborist report dated 8/29/14. d. The City told that property owner that this report was not detailed enough. e. The City noted that they would only approve clearing of hazard trees if individual hazard tree reports were submitted on for each tree. i. John Bissell, AICP sent an e-mail to Jen Machuga asking for this code authority. ii. Ms. Machuga cited section 18.45.045 (application requirements) .A.9 "Any other information deemed necessary by the city to allow adequate review and implementation in conformance with the purposes of this chapter." iii. Anderson v. the City of Issaquah (70 Wn. App. 64 (1993) 851 P.2d 744) noted "statute which either forbids or requires the doing of an act in terms so vague that men [and women] of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." iv. The referenced section does not authorize or require the use of individual tree reports. v. The reports submitted by the applicant are clear and prove the burden as needed to satisfy the code. f. The misdirection on recourse and the never ending requirement to submit information without code support has lead to the property owner's certainty that he cannot depend on the city for help even when public safety is involved. Ken's testimony: 1. Did they tell you that any additional information might sway their decision? Yes, the first arborist report was in response to them. They said this decision could change if we had an arborist report. It was important enough we decided to do that. This was really not just about the remaining trees on the first Lot. I always presumed (wrongly I discovered later) that we would have a second chance to re -discuss this when we got the property subdivided. It was mostly about common sense and losing a lot of money to do it in two stages and safety in taking them down in one stage. The second report was after they told me the first report wasn't specific enough and they needed each tree evaluated and reported by the arborist. They did not specify that they only wanted such a report on the remaining trees on the first lot. The discussion was always about the entire lot because it was not yet subdivided. His second report said that none of them were diseased, but together they would each become hazardous on removing the allowed ones. And they did not argue that point, so why would anyone need to label each one as hazardous for the same reason? They were all hazardous. The argument is they are a grove, removing some weakens the rest. I also told them the neighbors were afraid of them and wanted them down. All of the trees on that lot can reach at least one house if they fell. Really Jen's only argument was that the new owner might disagree with us and want to retain them. 2. Did they tell you what the deficiencies were with the arborist report as submitted? Only as above. They just said, it said nothing new. 3. Did they tell you that they needed a specific report for each tree? Yes, as above and it is what I asked Glenn for. 4. Did they cite the code section that leads the City to require a different report for each tree? Definitely not. There was never any mention of how to handle Hazardous Trees. And in response to your discussion below, they never ever told us we could file a Hazardous Tree request for any remaining trees, let alone individual tree requests. They appeared to agree that the trees they allowed to be removed would cause the remaining ones to become more hazardous, but never said anything about what to do about that. We didn't ask because we thought the problem would go away with the second lot after the subdivision. 6. Did you ask if there was an appeal method Absolutely. With Jen I just told her that I was going to ask Shane Hope for an exception about waiting for the second Building Permit (which would include all the trees). 7. If yes, what was the response? I wrote Shane asking for an exception to the waiting time of the second permit so we could take down all the trees at once. She wrote back and said she can't do that. I followed with a phone conversation with her and specifically asked if I had any recourse, specifically the City Council or Mayor. She said there was no recourse. I believed her, took a deep breath, and stopped pursuing it, again believing that the remaining trees on the first lot would be reviewed again with the second Building Permit. I presume there is no phone record on their end, only my reference to it in the email before her last comment.