HE Decision 4-9-10.pdfIr1C.lggv
CITY'OF EDMONDS
121 5TH AVENUE NORTH ® Edmonds, WA 98020 m (425) 771-0220 m FAX (425) 771-0221
HEARING EXAMINER
In the Matter of the Appeal of
Michael Hathaway
Of an Administrative Decision.
NO. APL -2010-0001
GARY HAAKENSON
MAYOR
RECEIVED
APR 12 2010
FINDINGS, CONCLUSIONS,
AND DECISION
SUMMARY OF DECISION
The appeal of the January 11, 2010 administrative decision is DENIED.
SUMMARY OF RECORD
Request:
Michael Hathaway (Appellant) appealed a January 11, 2010 determination by City Planner
Michael Clugston that the conditions of tree cutting permit no. CU -2008-40 have not been
satisfied.
Hearing Date:
The City of Edmonds Hearing Examiner conducted an open record hearing on the request on
March 18, 2010.
Testimony:
At the open record hearing, the following individuals presented testimony under oath:
1. Michael Clugston, Planner, City of Edmonds
2. Michael Hathaway, Appellant
3. Felipe Mendez, Karr Tuttle Campbell, Attorney for Gregory and Katherine Strand
4. Ron Den Adel, Soundview Construction
5. Richard Kirschner, S&K Joint Ventures
6. Alvin Rutledge
7. Robin Michel
Exhibits:
At the open record hearing the following exhibits were admitted into the record:
1. Staff Report for Appeal'
2. Zoning and Vicinity Map
At the hearing, the Hearing Examiner assigned Exhibit 20 to this document without realizing that staff had already
marked it as Exhibit 1 (see page 13 of Staff Report). Thus, Exhibit 1 and Exhibit 20 are the same document.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examinee
Hathaway Appeal, No. APL -2010-0001 page I of 12
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3. Appeal of Land Clearing and Tree Cutting Decision filed January 25, 2010, with January
11, 2010 administrative decision, February 10, 2009 decision on CU -2008-40 (with
attachments as listed on page 6), and Certificate of Service
4. Letter from Mike Clugston, City of Edmonds to Michael Hathaway dated January 11,
2010 (administrative decision)
5. February 10, 2009 decision on CU -2008-40, with the following attachments:
1. Land Use Application for Tree Cutting Permit filed June 3, 2008
2. Applicant Statement dated May 31, 2008
3. Applicant's Revised Statement received October 10, 2008
4. McClintick Viewshed Easement, Filing No. 8705120211
5. McClintick Short Subdivision Map, Filing No. 8611040404
6. S&K Joint Ventures Short Subdivision Map, No. S-04-58
7. Arborist's Report dated December 17, 2007
8. Existing Tree Inventory (Plot Map A)
9. Proposed Trimming Plan (Plot Map B)
10. Determination of Nonsignificance issued April 14, 2008
11. Letter from Associated Earth Science dated May 27, 2008
12. Letter from Associated Earth Science dated July 30, 2007
13. Geotechnical Report from Associated Earth Science dated January 3, 2006
14. Engineering Division Comments dated May 7, 2008
6. Photographic Height Survey by Mr. Den Adel, submitted May 14, 2009
7. View Management and Tree Replacement Program by Washington Tree Experts, dated
August 25, 2008 and received September 24, 2009
8. Letter from Mike Clugston to Richard Kirschner re: View Management and Tree
Replacement Plan dated October 12, 2009
9. Report and tree assessments from Washington Tree Experts received December 4, 2009
10. Letter from Mike Clugston to Richard Kirschner re: Permit Conditions Not Satisfied for
File CUP -2008-0040, dated December 10, 2009
11. Tree Elevation Survey by Crones & Associates, dated May 19, 2009 and received by City
January 7, 2010
12. Draft letter to Mr. Clugston re: imminent risk, received January 7, 2010 (attached to
Exhibit 28)
13. Email from Mr. Hathaway to Mr. Clugston re: Tree Update dated January 25, 2010
14. City Notice of Intent to Impose Civil Penalties dated February 22, 2010
15. Extension request for CU -2008-40, filed by Mr. Kirschner on February 8, 2010
16. City approval of extension requested dated February 22, 2010
17. Snohomish County Superior Court Complaint No. 10-2-02992-1
18. City of Edmonds Critical Areas Reconnaissance Report dated January 7, 2009
19. Notice of Appeal and Public Hearing, Affidavits of Notice, and Mailing List
20. Staff Report for Appeal (same as Exhibit 1)
21. Settlement Agreement re: Snohomish County Superior Court cause number 07-2-02311-
7, dated August 15, 2007
22. June 20, 2008 decision on CU -2008-13, with attachments as listed on page 8 of decision
23. Email correspondence between Mr. Clugston and Mr. Hathaway dated July 9, 2008
24. Email from Mr. Clugston to Mr. Hathaway re: Trees at 17035 76th dated December 3,
2009
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Hathaway Appeal, No. APL -2010-0001
page 2 of 12
25. Email correspondence between Mr. Clugston and Mr. Hathaway re: Strand Tree Permit
dated January 12, 2010
26. Letter from Mary Orvis to Hathaways dated December 18, 2009
27. Hand -drawn short subdivision sketches ("rejected" and "approved") by Richard
Kirschner
28. Email from Mr. Hathaway to Mr. Clugston dated January 7, 2010
Upon consideration of the testimony and exhibits submitted at the open record hearing, the
Hearing Examiner enters the following Findings and Conclusions:
FINDINGS
The Appellant is the owner of Lot 2 of the three -lot Muriel Daniel McClintick short
subdivision, which was recorded in 1986. The lot is located at 17016 74th Avenue West in
Edmonds (Parcel No. 00513100012206). Testimony of Mr. Hathaway; Exhibit 5,
Attachment 5; Exhibit 22.
2. The lots within the Muriel Daniel McClintick short subdivision are encumbered by a
restrictive covenant on tree height designed to preserve Puget Sound views from Lots 2
and 3 of the subdivision, which include the Appellant's parcel. Exhibit 5, Attachment 4.
3. In 2005, S&K Joint Ventures subdivided Lot 1 of the Muriel Daniel McClintick short
subdivision into three lots. Lot 2 of the S&K Joint Ventures short subdivision, now
owned by Gregory and Kathleen Strand, is located immediately west and of the
Appellant's parcel, at 17035 76th Avenue West in Edmonds. Testimony of Mr. Hathaway;
Exhibit 5, Attachments 1, 5 and 6.
4. The Strand parcel contains trees that encroach into the Appellant's view corridor. Per a
2007 settlement agreement, the former owner of the Strand parcel (S&K Joint Ventures)
agreed to "take immediate action" to bring the trees on the parcel into compliance with
the covenant. The settlement agreement acknowledged that the City of Edmonds
regulates tree removal and trimming, and directed S&K Joint Ventures to seek a tree
trimming or tree removal permit from the City. Exhibit 21; Exhibit 5, Attachment 4.
5. On June 3, 2008, S&K Joint Ventures, represented by Richard Kirschner and Ron Den
Adel, applied to the City for a conditional use permit for "tree cutting" on the Strand
parcel. In the project narrative accompanying the application form, the applicants
described the project as "tree pruning, cutting and/or tree removal permit in a critical area
in order to comply with a local neighborhood height restriction covenant litigation
settlement." Exhibit 5, Attachments I and 2.
6. The Strand parcel is on a west -facing slope. The eastern portion of the parcel (the
location of the subject trees) slopes more than 25 percent and is classified as an Erosion
Hazard Area. Exhibit 18; Exhibit 5, Attachment 13, page 2. The applicants were aware
that the City restricted tree removal on critical slopes, based on their previous experience
developing the property. Testimony of Mr. Den Adel; Testimony of Mr. Kirschner.
Findings, Conchisions, and Decision
City of Edmonds Hearing Examiner
Hathaway Appeal, No. APL -2010-0001
page 3 of 12
7. The critical areas code (ECDC 23.40) allows trees to be removed from critical areas if
they are "hazardous, posing a threat to public safety, or posing an imminent risk of
damage to private property", provided that certain criteria are satisfied. The hazard must
be documented in a report from an ISA- or ASCA-certified arborist or landscape
architect; the "tree cutting" must be limited to "pruning and crown thinning" unless
otherwise justified by a qualified professional; and any trees removed must be replaced at
a ratio of two replacement trees to one tree removed "in accordance with an approved
restoration plan." ECDC 23.40.220(C) (7) (b).
The land clearing and tree cutting code (ECDC 18.45) prohibits the removal of trees from
environmentally sensitive areas unless the "plot plan and other submitted materials can
demonstrate that the removal will enhance the easement area." ECDC 18.45.050(B)(2).
"Enhancement may include nonmechanical removal of noxious or intrusive species or
dead or diseased plants and replanting of appropriate native species." Id. The land
clearing and tree cutting code requires restoration when trees are removed in violation of
the code or a tree cutting permit. Up to three replacement trees are required for each tree
removed as long as adequate growing space is provided for the species. ECDC 18.45.075.
9. A December 17, 2007 arborist report accompanying the tree cutting application described
all of the trees on the Strand parcel as being in good condition and health. The arborist
identified nine significant trees with sufficient height to encroach into the view corridor
(the encroachment was not quantified) and 15 non-significant trees that might encroach
into the view corridor. In order to establish views, the arborist recommended that all of
identified trees be removed, based on the following rationale:
For all of the trees that are in the landscape, maintaining the views would require
repeated topping. This practice would greatly decrease the lifespan of these trees,
essentially killing them, requiring removal and replacement in the future.
Continuing to top them would only result in killing them. In an effort to establish
and maintain healthy trees, any regular and repeated treatment, such as topping, is
not recommended.
Exhibit 5, Attachment 7, page 4.
10. The December 17, 2007 arborist report did not address the critical areas requirements of
ECDC 23.40 (the arborist submitted that there were no critical areas on the parcel), but
did evaluate the feasibility of tree replacement pursuant to ECDC 18.45.075. Due to the
relatively small planting area, the arborist recommended tree replacement at a 1:1 ratio,
with either nine or more evergreen trees that can withstand repeated topping, or nine or
more slow-growing ornamental trees. Exhibit 5, Attachment 7, pages 2 and 5.
11. The applicants submitted a tree removal/replacement proposal that differed from, and was
more conservative than, the recommendations contained in the December 17, 2007
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Hathmvay Appeal, No. APL -2010-0001
page 4 of 12
arborist report.2 The applicants proposed to remove three Douglas fir trees and one
western red cedar tree, and top three black cottonwood trees and two red alder trees. The
applicants proposed to replace the removed trees with a combination of evergreen trees
and evergreen shrubs. Four trees and four shrubs would be installed along the east
property boundary near the removed trees (the stumps would be left in place), and four
trees would be installed along the south property boundary near the removed trees.
Exhibit 5, Attachments 3, 8, and 9.
12. On February 10, 2009, City Planner Mike Clugston issued a decision conditionally
approving "the application for a Conditional Use Permit for tree cutting." Exhibit 5, page
5. The conditions of approval included, in relevant part, the following:
1. The applicant must submit a management plan developed by the arborist that
discusses appropriate management (including removal and trimming) of the three
existing Douglas firs, the Western red cedar, and the black cottonwood and red
alder trees. The plan must take into consideration the requirements of ECDC
18.45 and 23.40. If the management plan is also intended to address viewshed
encroachment issues, a cross-sectional view height survey that establishes the
height of the viewshed over the former McClintock Parcel 1 and which shows the
locations and heights of the trees will be required to assist in that determination.
The management plan shall be reviewed and approved by the City prior to any
work being done at the site.
2. If the arborist determines that removal of one or more of the trees is the best
management option, the tree(s) may be removed as long as the work is performed
in accordance with the arborist's report of December 17, 2007 (Section 6.0) of
similar, if subsequently updated in the management plan discussed in Condition 1.
If any of the trees are to remain, they shall not be topped but rather trimmed and
maintained as described in the management plan.
3. If any trees are to be removed, an updated tree replacement plan, planting
schedule, and cost estimate must be created by the project arborist (per ECDC
23.40.220.C.7.b.iv) that considers vegetation appropriate to the steep slope and
drainage of the area as well as the view easement. Specific species, sizes and
locations for replanting must be indicated. A maintenance plan for the new
vegetation must also be developed that describes ongoing upkeep of the plantings.
Both documents must be submitted to the City for review and approval prior to
any removal.
Exhibit 5, page 5. The decision was not appealed by any party.
13. Mr. Clugston noted in the decision that the all of the trees are in good health and would
not be candidates for removal except for the view encroachment issue; that the extent of
2 Although not specified anywhere in the submittal, the proposal was similar to recommendations contained in an
August 25, 2008 report from Washington Tree Experts (Exhibit 7).
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Hathaway Appeal, No. APL -2010-0001
page 5 of 12
the encroachment had not been established; that the tree cutting code requires trees to be
retained to the maximum extent feasible (ECDC 18.45.050(B)); that topping would kill
the trees; that the trees are in a critical area; and that the Comprehensive Plan contains
policies to minimize the removal of trees from steep slopes. Mr. Clugston's conclusions
based on these facts included that the applicant should provide a management plan that
meets the requirements of "pertinent City code", addresses the view easement question,
and includes a "discussion of appropriate methods of tree trimming which would allow
the trees to remain and thrive." Exhibit 5, pages 2 and 3. Mr. Clugston did not explicitly
conclude that removing any of the trees would violate the critical areas code, despite his
findings that the trees are healthy and in a critical area. Exhibit 5.
14. On September 24, 2009, Mr. Kirschner submitted an August 25, 2008 letter from a
Certified Consulting Arborist regarding "view management and tree replacement
program." The arborist submitted that two Douglas fir trees and one western red cedar
tree are impeding views and cannot be trimmed below the view line, but that the
deciduous trees in the northeast corner, of the property could be pruned back below the
view line. The arborist provided some recommendations on pruning and on maintenance
of proposed replacement plants. Exhibit 7.
15. In a letter to Mr. Kirschner dated October 12, 2009, Mr. Clugston responded to the
August 25, 2008 letter in relevant part as follows:
The plan provided does not satisfy Condition 1 in two ways:
1. There is no indication about the health of the two Douglas firs and
Western red cedar — are they hazardous, diseased or dying
according to ECDC 18.45 and 23.40.220.C.7?
2. The deciduous trees at the northeastern corner of the parcel
identified in the most recent report do not match those originally
identified in the Arbocultural Consulting report from December
17, 2007.
Please submit an updated management plan that addresses the health of the
Douglas firs and Western red cedar using a Tree Hazard Evaluation Form and that
accurately identifies the trees at the northeast corner of the parcel. Also, a cost
estimate for the proposed work is required with the updated management plan.
Exhibit 8.
16. On December 3, 2009, Mr. Clugston forwarded his review of the August 25, 2008
arborist report to the Appellant. In his email, Mr. Clugston explained, "There were a
number of conditions noted in the approval of the Strand permit (CU -08-40). Some of
these have been complied with but some haven't. The attached letter indicates what
information is still needed." Exhibit 24.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Hathaway Appeal, No. APL -2010-0001
page 6of12
17. On December 4, 2009, Mr. Kirschner submitted a report from a Certified Arborist from
Washington Tree Experts to address the request for additional information. The arborist
reported that the trees in question (two Douglas fir, one western red cedar, and a stand of
10 deciduous trees) are of average health and vigor, are not considered to be of high risk
or hazard, and do not show signs of disease or decline. Exhibit 9. The report included tree
assessment forms for the trees proposed for removal. The report did not include a cost
estimate for the proposed work. Exhibit 9.
18. In a letter to Mr. Kirschner dated December 10, 2009, Mr. Clugston responded to the
December 4, 2009 arborist report. Based on the report and the other information that had
been submitted, Mr. Clugston concluded that none of the trees could be removed because
they did not satisfy the removal criteria of ECDC 23.40.220.C.7.b. Exhibit 10.
19. Mr. Clugston sent the Appellant a copy of the December 10, 2009 letter, and spoke to the
Appellant about it shortly thereafter. The December 10, 2009 letter did not contain
language indicating that it was an appealable administrative decision, and Mr. Clugston
did not tell the Appellant that an appeal was possible. The Appellant did not appeal the
December 10, 2009 letter. Testimony of Mr. Hathaway; Exhibit 10.
20. On January 7, 2010, the Appellant sent Mr. Clugston a tree elevation survey prepared by
a professional land surveyor. This report established with precision the extent the trees
encroached into the view easement. Exhibit 11; Exhibit 28. The Appellant also sent Mr.
Clugston a hypothetical letter he drafted in which the Strands express belief that the trees
on their parcel pose an imminent threat to their property (the Strands did not author or
sign the letter). The Appellant's purpose in sending the letter was to ascertain whether
such information, if true, would affect the permit decision. Exhibits 12 and 28; Testimony
of Mr. Mendez.
21. In a letter to the Appellant dated January 11, 2010, Mr. Clugston responded to the
information received January 7. Mr. Clugston reiterated that ECDC 23.40.220.C.7.b
prohibits the removal of trees from a critical area unless they are hazardous, pose a threat
to public safety, or pose an imminent risk of damage to private property, and that the
information the Appellant provided did not demonstrate compliance with the criteria. Mr.
Clugston did not find the draft letter to be credible because it conflicted with the
conclusions contained in the arborist reports. Exhibit 4.
22. In an email to the Appellant dated January 12, 2010, Mr. Clugston indicated that the
January 11, 2010 letter could be appealed per ECDC 18.45.060, which allows any person
"aggrieved by the decision of the staff regarding a clearing permit" to file an appeal to the
Hearing Examiner within ten working days of the date of the decision (in this case, no
later than January 25, 2010). Exhibit 25; ECDC 18.45.060.
23. On January 24, 2010, the Appellant hired a contractor to cut down four evergreen trees
on the Strands' parcel. The Appellant notified Mr. Clugston of his action on January 25,
2010, and filed an appeal of the January 11, 2010 letter that same day. Exhibit 13; Exhibit
3.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Hathaway Appeal, No. APL -2010-0001
page 7 of 12
24. In the appeal, the Appellant did not argue that the trees are hazardous, or that Mr.
Clugston had approved any of the reports required by the CUP. Instead, the Appellant
argued that the City's enforcement of ECDC 23.40.220.C.7.b has effectively revolted the
tree cutting permit contrary to Chelan County v. Nykreim, 146 Wn.2d 904 (2002). The
Appellant argued that because the appeal period on the tree cutting permit has passed, the
City is obligated to allow the tree removal specified in the permit application, even if it
violates ECDC 23.40.220. The Appellant argued that the tree cutting permit authorized
the removal of healthy trees, because Mr. Clugston acknowledged the health of the trees
yet issued a decision of approval anyway. Exhibit 3; Argument of Mr. Marcy.
25. The City has authorized the removal of healthy trees from the critical area in the past. In
June of 2008 Mr. Clugston issued a tree cutting permit to the Appellant specifically
authorizing the removal of 11 trees from his own parcel. The Appellant had topped eight
of the trees the year before, which had damaged them, but the remaining three trees were
healthy. The trees were upslope of the Strand parcel, in an area also classified as a critical
area. In approving the permit, Mr. Clugston noted that ECDC 23.40.220.0.7 allows only
hazardous trees to be removed from critical areas, but authorized the removal of the three
healthy trees because "the presence of the view easement would require [the healthy
trees] be topped or trimmed so low as to effectively destroy them." Exhibit 22, Planning
Division Advisory Report, page 4. The decision included a condition that "all future land
clearing and tree cutting work undertaken by those burdened by the McClintick viewshed
easement ... shall be done in accordance with all applicable City codes." Exhibit 22,
Planning Division Advisory Report, page 2. The City authorized the Appellant to
commence work once the 14 -day appeal period passed. Exhibit 23.
26. The Appellant argued that the submitted arborist reports demonstrate compliance with the
conditions of CUP approval, but did not present evidence that all of the requirements of
Condition 3 have been satisfied. Based on the Hearing Examiner's review, the materials
do not include a cost estimate, do not explain how the replacement trees are "native and
indigenous to the site and ... a minimum of six feet in height for evergreen trees" as
required by ECDC 23.40.220.C.7.b.iv, and include only a cursory description of plant
maintenance (applying mulch and watering once a weep as needed). According to the
City, the reports required by Condition 3 have not even been submitted. Exhibit 1, page
11; Exhibit 3; Exhibits 7 and 9; Exhibit 5, Attachments 3 and 7.
27. The Appellant argued that the tree removal and replacement is consistent with the criteria
for alteration of a critical area set forth in ECDC 23.40.160. Exhibit 3; Argument of Mr.
Marcy. Mr. Clugston did not evaluate these criteria in his decision, and compliance with
the criteria was not a condition of approval. Exhibit S; Exhibit 1, page 12.
28. The City's response to the appeal is contained in a staff report dated March 10, 2010 and
not all of the arguments will be reiterated here. In his testimony, Mr. Clugston
emphasized that the conditions of CUP approval required a management plan to be
approved prior to tree removal, and that he has not approved a management plan; that the
management plan was required because he was not sure at the time of decision what the
Findings, Conclusions, and Decision
City of Edinonds Hearing Examiner
Hathaway Appeal, No. APL -2010-0001
page 8of12
appropriate action should be with respect to the trees; and that the tree cutting code
makes a distinction between tree removal and tree cutting such that approval of a tree
cutting permit does not necessarily mean that trees may be removed. Testimony of Mr.
Clugston; Exhibit 1.
29, The Strands, through their attorney, argued that the Appellant lacks standing to bring the
appeal, that the appeal is moot because the trees have already been removed, and that the
appeal should be denied. Argument of Mr. Mendez.
30. The Appellant argued that his standing is based on being a party of record, as specified in
the ECDC, and that the appeal is not moot because in a letter dated February 22, 2010 the
City threatened code enforcement action if the appeal is denied. Argument of Mr. Marcy,-
Exhibit
arcy;Exhibit 14.
31. Notice of the appeal hearing was mailed to property owners within 300 feet of the site,
posted on site, and published in Everett Herald on March 4, 2010. Exhibit 19.
CONCLUSIONS
The Hearing Examiner has jurisdiction to hear this appeal pursuant to ECDC 18.45.060.
2. The Appellant has standing to bring the appeal based on ECDC 18.45.060 and ECDC
20.07.003. The Appellant was aggrieved by the City's decision because the trees at issue
encroached into his view easement. The Appellant was a party of record to CU -2008-40
(see Exhibit 5, page 7) and was the recipient of the letter being appealed. Findings 2, 4,
21, and 30.
3. The Appellant has the burden of proof on appeal. ECDC 20.06.006.
4. Read narrowly, the decision that was appealed only discusses whether the trees on the
Strand parcel are hazardous and whether the critical areas code authorizes their removal
(as described below, the answer to both of these questions is "no"). However, the
Hearing Examiner will also consider the broader question of whether authorization to
remove the trees should have been granted based on the conditions of CU -2008-40.
Findings 12 and 21. The criteria of ECDC 23.40.160 are not relevant to this issue and
will not be considered. Finding 27.
5. The Appellant has not met his burden of proving that the City's decision was in error, for
the following reasons:
A. The permit applicants have not obtained City approval of a management
plan, an updated tree replacement plan, or a maintenance plan for
replacement vegetation. These approvals are required by CU -2008-40.
Findings 12, 18, 21, 24, and 26.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Hathaway Appeal, No. APL -2010-0001
page 9 of 12
B. The Appellant presented no evidence that the trees are hazardous. The
critical areas code does not permit healthy trees to be removed from a
critical area, The City could not have, consistent with the critical areas
code, approved the management plan submitted by the applicants.
Findings 7, 17, 20, and 24.
C. CU -2008-40 does not authorize the removal of trees in violation of the
critical areas code. As evidenced by the language of ECDC
23.40.220.C.7.b ("tree cutting shall be limited to pruning and crown
thinning"), and the definition of tree removal set forth in ECDC
18.45.040(0), tree cutting and tree removal are different acts, and
permission to cut trees does not necessarily mean permission to remove
trees.
Although there is ambiguity in the decision, it is clear that the City's intent
was to ensure compliance with the ECDC, the relevant provisions of
which were referenced in the conditions of approval. Thus, language in
Condition 1 that "the plan must take into consideration the requirements of
ECDC 18.45 and 23.40" can fairly be interpreted as meaning that the plan
must comply with the requirements. Findings 12 and 13.
D. The Appellant has not provided all of the information required by
Condition 3 of CU -2008-40. Finding 26.
6. The Supreme Court decision Chelan County v. Nykreim, 146 Wn.2d 904 (2002) does not
require a different result. In that case the Court held that Chelan County could not revoke
an erroneously approved boundary line adjustment after the 21 -day appeal period had
passed.
The City's failure to approve the reports required by the tree cutting permit
decision did not constitute revocation of the permit. The problem for the
Appellant is not that the City revoked the permit after the appeal period passed,
but that the City did not approve very much to begin with. The ability to remove
any trees hinged on the City's approval of future reports, which, based on the
evidence available to the City at the time of the decision and the restrictions of the
critical areas code, would have been difficult if not impossible to approve.
Clearly, if the City did not have adequate information from which to approve the
removal of the trees specifically identified in the applicant's materials, it should
have denied the request or delayed decision until additional reports could be
prepared. However, the City instead issued a decision of approval and the time for
challenging the conditions has passed. Findings 12 and 13.
Because the City's overall intent was to ensure compliance with the ECDC and
the Comprehensive Plan, the relevant ECDC chapters were referenced in the
conditions, and the ECDC chapters are not ambiguous with respect to tree
preservation requirements, the Hearing Examiner concludes that, unlike Nykreim,
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Hathaway Appeal, No. APL -2010-0001
page 10 of 12
the City did not authorize the removal of trees, and that its action in failing to
approve the applicant's and/or Appellant's reports does not constitute revocation
of the permit. Findings 6, 7, 8, 12, and 13.
DECISION
Based on the preceding Findings and Conclusions, the appeal of the January 11, 2010
administrative decision is DENIED.
DECIDED April 9, 2010.
Findings, Conchisions, and Decision
City of Edmonds Hearing Examiner
Hathmmy Appeal, No. APL -2010-0001
Toweill Rice Taylor LLC
City of Edmonds Hearing Examiners
LeAnna C. Toweill
page 11 of 12
RECONSIDERATION AND APPEAL
The following is a summary of the deadlines and procedures for filing requests for
reconsideration and appeals. The procedures are based on Ordinance No. 3736 (June 2009)
unless otherwise noted. Any person wishing to file or respond to a request for reconsideration or
an appeal should consult the relevant ordinances and/or contact the Planning Division of the
Development Services Department for further procedural information.
REQUEST FOR RECONSIDERATION
Section 20.06.010 of the Edmonds Community Development Code (ECDC) contains the
procedures for requesting reconsideration of a Hearing Examiner decision. Requests for
reconsideration must be filed with the City Planning Director within 10 calendar days of the
Hearing Examiner's decision. The filing deadline is 4;30 p.m. on the last business day of the
reconsideration period. Only parties of record (i.e., the applicant, any person who testified at the
open record hearing on the application, any person who individually submitted written comments
on the application, or the City of Edmonds) may file a request for reconsideration. The grounds
for reconsideration are limited to errors of procedure, errors of law or fact, errors of judgment, or
the discovery of new evidence that was not known and could not in the exercise of reasonable
diligence have been discovered. Reconsideration requests must contain the information specified
in ECDC 20.06.010(D) and be accompanied by the required filing fee.
APPEALS
Pursuant to ECDC 20.01.003(C), appeals of a decision of the Hearing Examiner on an appeal of
a Type II administrative decision are to Snohomish County Superior Court in accordance with
the Land Use Petition Act (RCW 36.70C). Appeals must be filed within 21 days of decision
issuance. Filing a request for reconsideration is not a prerequisite to filing an appeal.
EFFECT OF REQUEST FOR RECONSIDERATION ON APPEAL DEADLINE
The timely filing of a request for reconsideration stays the Hearing Examiner's decision until
such time that the Hearing Examiner issues a decision on reconsideration, and any judicial
appeal must be filed within 21 days of the decision on reconsideration.
NOTICE TO COUNTY ASSESSOR
The property owner may, as a result of the decision rendered by the Hearing Examiner, request a
change in the valuation of the property by the Snohomish County Assessors Office.
Findings, Conclusions, and Decision
City of Edmonds Hearing Examiner
Hathaway Appeal, No. APL -2010-0001
page 12 of 12
1.."Y OF EDMONIDS GARY HAAKENSON
MAYOR
121 5TH AVENUE NORTH m Edmonds, WA 98020 ® (425) 771-0220 m FAX (425) 771-0221
HEARING EXAMINER
�I,C.1BC)V
In the Matter of the Appeal of ) NO. APL -2010-0001
Michael Hathaway ) DECLARATION OF SERVICE
Of an Administrative Decision. )
DECLARATION
I, LeAnna. C. Toweill, the undersigned, do hereby declare:
1. That I am a partner in the firm of Toweill Rice Taylor LLC, which maintains a
professional services agreement with the City of Edmonds, Washington for the provision
of Hearing Examiner services, and make this declaration in that capacity;
2. That I am now and at all times herein mentioned have been a citizen of the United States,
a resident of the State of Idaho, over the age of eighteen (18), and competent to be a
witness and make service herein;
3. That on April 9, 2010, I did serve a copy of the decision in case APL -2010-0001 upon the
following individuals via U.S. first class mail:I
1. Michael Hathaway
1526 49t" Street NE
Tacoma, WA 98422
2. City of Edmonds Development Services Dept.
Attn: Diane Cunningham
121 - 5th Avenue North.
Edmonds, WA 98020
3. Edmonds City Council
121 - 5th Avenue North — 1st Floor
Edmonds, WA 98020
4. Alvin Rutledge
7101 Lake Ballinger Way
Edmonds, WA 98026
5. Ron Den Adel
1023 C Avenue South
' One individual — Robin Michel — wrote his name on the witness sign -in sheet and commented at the appeal
hearing, but did not leave a mailing address. The Hearing Examiner did not mail Mr. Michel a copy of the decision
in this matter.
lnc(�rpors: tvd August 1.1, -1890
r�_.. _.. �•,. . r i .
Edmonds, WA 98020
6. Felipe Mendez
Karr Tuttle Campbell
1201 Third Avenue, Suite 2900
Seattle, WA 98101
7, Donald Marcy
Cairncross & Hempelmann, P.S.
524 Second Avenue, Suite 500
Seattle, WA 98104
8. Richard Kirschner
S&K Joint Venture
7503 Braemar Drive
Edmonds, WA 98026
9. Matt Gibbels
1703976 th Avenue West
Edmonds, WA 98026
10. Gregory and Kathleen Strand
17035 76th Avenue West
Edmonds, WA 98026
I hereby declare under penalty of perjury under the laws of the State of Idaho that the foregoing
is true and correct:
DATED THIS day of April, 2010 at Boise, Idaho.
- -am,
LeAnna C. Toweill
Toweill Rice Taylor LLC
Serving as Hearing Examiner for Edmonds, Washington