PLN20150030_HearingExaminerDecision.pdfI
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CITY OF EDMONDS
121 5t" Avenue North, Edmonds WA 98020
Phone: 425.771.0220 • Fax: 425.771.0221 • Web: www.edmondswa.gov
DEVELOPMENT SERVICES DEPARTMENT • PLANNING DIVISION
BEFORE THE HEARING EXAMINER FOR THE CITY
OF EDMONDS
Phil Olbrechts, Hearing Examiner
RE: Scott Blomenkamp
ECDC 20.100.040 Review of
Approved Permit
(PLN20150030)
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
DECISION.
SUMMARY
Scott Blomenkamp, along with two others, has requested a second review of the
approval of a design review by the Edmonds Architectural Design Board ("ADB") for
a five duplex project, PLN20130066. Mr. Blomenkamp owns property adjoining the
approved project. Trees on Mr. Blomenkamp's property were damaged when roots
from his trees located on the project site were damaged during project grading. Mr.
Blomenkamp asserts that the roots were damaged in violation of City standards and
that the project did not meet ADB standards. On that basis, under ECDC 20.100.040,
Mr. Blomenkamp seeks revocation of the ADB approval and $50,000 in
compensation for the damages caused to his trees. Relief is limited in this case to the
following: (1) replacement of three hazardous trees with three ten foot replacement
trees; (2) three year monitoring of one potentially hazardous tree with a requirement
to have it replaced if it is found to be hazardous; and (3) some pruning of another tree
to make it more stable.
Approved Permit Review p. 1Findings, Conclusions and Recommendation
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ORAL TESTIMONY
[Note: This "Oral Testimony" section of this decision is provided for the
convenience of the reader only and does not include any Findings of Fact or
Conclusions or Law and does not represent any indication of what the examiner
found significant during the hearing. No assurance as to accuracy is made.]
Kemen Lien stated that the Edmonds City Code provision regarding the review of
permits does not necessarily require permit review by the Hearing Examiner. If the
Development Services Director's review of the application finds that the alleged
deficiencies are not deficiencies or can be handled without conditions, the matter can
be handled without review by the Hearing Examiner. In the current matter, there
were four alleged deficiencies in the application. The city only referred one of these
issues to the Hearing Examiner. Simply because a review is requested does not mean
an issue will automatically go to the Hearing Examiner.
Scott Blomenkamp testified that he disagrees with the City's interpretation. The code
provides for issues to go before a, neutral, third party. It does not make sense for the
city to allow the Development Director to conduct these reviews when there are two
other options: Hearing Examiner review or City Council review. The Planning
Department is incorrectly interpreting the code. The internalization of the review is
inappropriate in this case. The code references "alleged deficiencies" not deficiencies
judged by the Planning Department. He does not believe the deficiencies have been
proven as deficiencies yet, but believes the Hearing Examiner should be reviewing all
four of them. He reviewed the 2007 City Council minutes from when the code
provision was passed that said the exemption does not exempt an ADB-reviewed
entity from the substance provisions. The removal of trees is not allowed by the
permit. 18.45.50 does not allow the removal of trees under a permit without prior
approval/conditioning, thus a review of the permit by a neutral, third -party is
necessary.
Gordon Smith, applicant, stated that the City has been examining the project since
2013 and has done extensive reviews. He agrees with the City's staff report and
scope of the hearing determination.
Jeff Taraday, City Attorney, noted that ECDC20.100.040c provides two requirements
for Hearing Examiner review of a permit. The first requirement is an actual
deficiency. Hearings do not occur for bogus deficiencies. The second requirement is
that the only ways to address the deficiency must be for the permit to be rescinded or
the City to impose conditions upon the applicant. The Development Director gets to
make the decision in regard to whether these requirements have been met.
Scott Blomenkamp stated that he is not asking for the permit to be revoked. The
activity that is occurring on the subject property is outside the scope of the permit.
Furthermore, the activity is illegal under Washington Code.
Approved Permit Review p. 217indings, Conclusions and Recommendation
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Proponents Testimony
Scott Blomenkamp stated that he bought his home on May 12, 2015. After searching
for two years, he chose the home because of its location in a community with similar
values and the home's features. The home has a large backyard for his family to
enjoy. The backyard features a line of trees separating the property from the
adjoining lot which provide privacy, sound, and dust protection. On June 2, 2015,
Gordon Smith of Kautz Route LLC visited Mr. Blomenkamp's home to describe the
duplex he would be building on the adjacent lot. According to Mr. Blomenkamp, Mr.
Smith described the duplex as well -designed and helping to reduce the sound from
Edmonds Way. Mr. Smith showed Mr. Blomenkamp damage that had occurred to
Mr. Blomenkamp's chain link fence and a large gouge on a root of a 160' tall, 42"
diameter Douglas Fir. Mr. Smith offered to have the tree, and three others removed
stating that the trees were already rotten and that bushes would provide Mr.
Blomenkamp with privacy. The following day, Mr. Blomenkamp visited the damage
site and saw the contractor for Kautz Route LLC had excavated 3' deeper and ripped
the buttress roots of the already gouged tree. Additionally, the contractor damaged
another tree and compacted the soil around it. The damage was done while extending
over the property line and trespassing on Mr. Blomenkamp's property.
According to Mr. Blomenkamp, when he informed the City about the damage to his
trees, he was first told that Kautz Route LLC had a clearing permit. Mr.
Blomenkamp is not disputing that there is a permit, but that the damage of trees on
his property is cause for review and additional conditioning. The City next claimed it
was an exempted development. There are a limited number of exempted
developments, and the Kautz Route duplex project is not one of them, according to
Mr. Blomenkamp. Instead, Kautz Route only has a limited procedural exemption.
Finally, the City claimed that the code only applies to trees on the Kautz Route LLC
property. Kautz Route LLC knew that the trees being damaged were on Mr.
Blomenkamp's property. An arborist determined that the trees were all healthy and
not in deteriorated health prior to the damage. Because of the damage, the trees now
pose a severe hazard. His trees were appraised as valuing 50,000 dollars and there is
a 12,000 dollar bill to remove the trees. An entity that is breaking the law should not
gain enrichment from those acts. A settlement offer by Kautz Route LLC was offered
in bad faith as it was not based on law or estimation of damages. The City is aware of
the value of trees as it was recently involved in a suit where a developer damaged a
tree and the damaged tree was valued at 12,000. Katz Route knew or should have
known there would be significant damage to Mr. Blomenkamp's trees by excavating
at the property line to the depth the contractor did. Katz Route chose to excavate
lower in order to avoid applying for a height variance. At a 2014 ADB hearing, Mr.
Price of Katz Route testified that the LLC was contemplating applying for a height
variance, but in the end chose not to do so. Katz Route has no easement or contract
with Mr. Blomenkamp or the previous property owners to conduct the excavations.
Katz Route's destruction of three of Mr. Blomenkamp's trees is a nuisance. Mr.
Blomenkamp now has to remove the hazardous trees and no longer gets their
Approved Permit Review p. 317indings, Conclusions and Recommendation
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enjoyment. He does not want the permit to be overturned, but he wants the code
properly interpreted.
City Testimony
Kernen Lien testified that the development permit is for a 5-duplex development. Mr.
Blomenkamp's property is to the west of the development. The development
received design approval under PLN20130066 and has received 5 building permits
since this approval. The landscape plan was approved by the Architectural Design
Board. Prior to development, there was 14 trees on the subject site. Thirteen of the
trees were going to be removed as part of the development project. While grading the
site in accordance with a building permit, roots of trees on Mr. Blomenkamp's
property were damaged. The developer, Kautz Route LLC, and the City of Edmonds
both hired arborists to assess damages to the trees. The City of Edmonds' arborist
found two trees to be hazardous (Tree 1 and Tree 3) and recommended removal, and
one tree (Tree 4) in need of monitoring The developer's arborist found one tree
hazardous and needing removal (Tree 1), and one tree (Tree 4) possibly needing
removal due to moderate risk. The developer's arborist report did not find Tree 3 as
being hazardous. The developer has offered to pay for removal of any hazardous
trees and pay 200 dollars for each tree removed in order to replace the trees.
Mr. Lien stated that the Hearing Examiner needs to determine if a new condition
should be added with regards to removal of hazard trees. ECDC 20.100.040c4 says
the Hearing Examiner conducts the review using the criteria required by the original
permit. If the Hearing Examiner finds that deficiencies exist and that they can be
reasonably corrected by imposing conditions on the permit, the permit conditions can
be changed. The Hearing Examiner may also revoke the permit if he finds the only
way to correct the deficiencies is to cease all permitted activities. The City does not
believe the Hearing Examiner should revoke the permit. There is no evidence that
revoking the permit would restore the trees that have been identified as hazards. The
backfilling and retaining wall associated with the development will help protect trees
that currently have only minimal damage and are not considered hazardous. In regard
to adding conditions, the affected trees are on Mr. Blomenkamp's property and the
decision whether or not to remove them should be Mr. Blomenkamp's. Therefore,
adding a condition on the permit would not be appropriate because the decisions
regarding the trees should be Mr. Blomenkamp's.
Applicant Testimony
Steve Price, Kautz Route LLC, noted that Kautz Route made a good faith offer to Mr.
Blomenkamp in June, 2015 of 5,000 dollars and to pay for an arborist report, but Mr.
Blomenkamp rejected that offer. He submitted a review of the two arborist reports by
a consulting arborist, Mr. Gilles. The report looked at Trees 3 and 4 and found no
roots visible in the excavated portions of the property. The lack of visible roots is
likely due to the permeable soil and the trees having deep roots. According to Mr.
Gilles review, there is not enough evidence to conclude that Trees 3 and 4 are
Approved Permit Review p. 4Findings, Conclusions and Recommendation
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hazardous. The permitting process for the development began in October, 2013. The
ADB hearing occurred in February, 2014 and building permits were issued in late
2014. The contractor for the excavation project called the previous property owner in
regard to Tree 1 three times, but did not hear back from that owner. After not hearing
from the previous owner, Mr. Smith went in person to the home in early June and met
Mr. Blomenkamp. Kautz Route made a good faith effort to communicate with its
neighbors and keep the community informed about the project developments.
Public Testimony
Mr. Alvin Rutledge testified that homeowner's insurance may cover the tree removal
cost and replacement. He said that the applicant and proponent should come to an
agreement for replacing the trees.
Proponent Rebuttal
Mr. Blomenkamp stated that the damage of trees is a nuisance to a new landowner. It
is not his responsibility to discuss with a previous landowner the adjoining
development. He did not buy the property until 2 years after the initial permitting
process. Kautz Route LLC should have followed the tree -cutting code. Edmond's
Comprehensive Plan is very conscious of protecting trees. 5,000 dollars was a bad
faith offer as arborists have estimated the trees are worth at least 30,000 dollars. .
His initial application for review was rushed so he did not realize there was a code
option to amend the permit. He is amenable to the permit being revised rather than
revoked. The code needs to be enforced. This is not a land use issue, but it is a code
enforcement issue. He wants a good faith offer for what has occurred. He believes
the applicant planned to remove these trees from the beginning. He suggested putting
a condition in the permit regarding private redress.
EXHIBITS
Exhibit 1: August 9, 2015 Staff Report w/ 12 attachment
Exhibit 2: Scott Blomenkamp Brief (first 3 pages)
Exhibit 3: Gilles Arborist Report dated 8/27/15.
Exhibit 4: Aerial photographs and emails between Katz Route and Mr.
Blomenkamp.
Exhibit 5: Letter addressed to Mr. Blomenkamp from contractor's insurance
company.
Approved Permit Review p. SFindings, Conclusions and Recommendation
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Exhibit 6: Section 1 of 9/3/15 City of Edmonds Objection to Blomenkamp
9/2/15 Brief Submittal in addition to two Olbrechts email
attachments.
Mr. Blomenkamp's post hearing briefing was not admitted into the record. As noted
in the City's objection to his briefing, Ex. 6, Mr. Blomenkamp was advised on four
separate occasions by the examiner that his briefing was limited to providing excerpts
of the opening brief he presented during the hearing and that he was not to rewrite
any portions of the brief. As noted by the examiner in an email to Mr. Blomenkamp
on this subject, Ex. 6, Mr. Blomenkamp would still get a chance to address the issues
that he wanted to re -argue by requesting reconsideration of the final decision, i.e. this
decision. As noted at the end of this decision, reconsideration is governed by ECDC
20.06.0101.
FINDINGS OF FACT
Procedural:
1. Applicant. The ECDC 20.100.040 applicants are Scott Blomenkamp,
Mari Penderaft and Andrew Baxter. The applicant for the project subject to re -review
under ECDC 20.100.040 is Kautz Route LLC.
2. Hearing. A hearing was held on the application on August 27, 2015. The
record was left open through September 7, 2015 in order to give the Mr. Blomenkamp
an opportunity to submit the portions of his opening brief that he believed were
relevant to the nuisance/hazard claims of his application.
Substantive:
3. Description of Re -Review Request. Scott Blomenkamp along with two
others, has requested a second review of the approval of a design review by the
Edmonds Architectural Design Board Review for a five duplex project,
PLN20130066. Mr. Blomenkamp owns property adjoining the approved project.
Trees on Mr. Blomenkamp's property were damaged when roots from the trees
located on the project site were damaged during project grading. Mr. Blomenkamp
asserts that the roots were damaged in violation of City construction standards. On
that basis, under ECDC 20.100.040, Mr. Blomenkamp seeks revocation of the permit
and compensation for the damages caused to his trees.
1 If it is determined upon reconsideration that evidence was improperly excluded (i.e. that Mr.
Blomenkamp should have had a chance to argue code violations), that evidence may probably be
considered on rehearing even though the hearing has been closed. Considering evidence that was
improperly excluded is one of the exceptions that courts use to consider new evidence, and would
likely be a reasonable grounds for the admission in a hearing examiner proceeding as well. Cf. RCW
36.70C.120(2)(b).
Approved Permit Review p. 6Findings, Conclusions and Recommendation
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The project property is located at 23220 Edmonds Way. Review of this development
began in 2013 with two pre -application meetings in early 2013 and formally with an
application for design review under permit number PLN20130066. The ADB
reviewed the proposed development at a public hearing on February 5, 2014, and
approved the development with conditions following the public hearing.
Following ADB approval, the applicant submitted five separate building permits for
development of the site. Permit number BLD20140299 was issued on December 29,
2014 for the site and utility improvements pertaining to the entire site where the five
duplexes are to be constructed. They were consistent with the plan approved by the
ADB. Building permits BLD20140240 — BLD20140244 for each of the duplex units
were also issued on December 29, 2014. Development of the site began in May 2015.
While grading the site in accordance with plans approved under BLD20140299, roots
extending into the development site from some trees located at 23227 — 92nd Avenue
West were damaged. The owner of the aforementioned property, Scott Blomenkamp,
contacted City staff about the damage. City staff inspected the property and spoke
with the developer, Kautz Route LLC, about the problem. Kautz Route LLC
voluntarily agreed to not continue work temporarily in the immediate vicinity of the
property line while the issue was being investigated. Subsequently, Kautz Route LLC
and the City of Edmonds commissioned arborist reports to assess the damage to the
trees, Ex. 1, att. 4 and 5. Both arborist reports noted some of the trees have been
impacted to a degree that the arborists determined them to be hazardous trees.
Due to the tree damage, Scott Blomenkamp, Marj Penderaft and Andrew Baxter
jointly filed a request for review of the ADB approval of the duplex project under
ECDC 20.100.040 on June 29, 2015. The request asserted that the duplex project was
not compliant with ECDC 18.45.050(H) and also that the property had created a
nuisance by causing four of Mr. Blomenkamp's trees to become severe hazards. The
request also asserted various violations of ADB design regulations and that staff had
provided inaccurate information to the ADB for its review.
Section IV of the staff report, Ex. 1, noted that the ECDC 20.100.040 review was
only sent forward to the examiner for review of Mr. Blomenkamp's nuisance claim.
Mr. Blomenkamp's assertions of noncompliance with city code were expressly not
forwarded to the examiner for review by the community development director. At the
hearing Mr. Blomenkamp argued that the community development director did not
have the authority to prevent his entire request for review from being considered by
the examiner. The examiner ruled at the hearing that he only had authority to review
issues forwarded to him by the community development director.
4. Tree Hazards. An arborist report assessing tree hazard was prepared by both a
City consultant and a consultant for the applicant. See Ex. 1, att. 4 and 5. An
additional report was submitted by the applicant during the hearing. Ex. 3. All
reports were credible and well documented, with the identification of the most
hazardous trees being fairly consistent between the first arborist report from the
applicant and the City's report, but with the City's report taking a moderately more
Approved Permit Review p. 717indings, Conclusions and Recommendation
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conservative position on level of risk. Given the severity of damage that could occur
if the trees do in fact fall and the greater objectivity of the City's report (due to the
source of funding, not due to any bias evident in the first report), the more
conservative level of risk assessment taken in the City's report is found to be the
more compelling. The Gilles report raises some good points about the absence of
direct damage to the roots of some of the trees found to be hazardous or potentially
hazardous by the City's arborist, but the excavation for those trees was within their
drip lines and the City arborist's impartial conclusions regarding excavation near a
tree must take precedence in the absence of more detailed and site specific evidence
that the proximate construction work did not cause damage. It is determined that the
conclusions made in the City's report, Ex. 1, att. 5, is accurate as to the level of risk
associated with each of the five trees assessed in that report.
The City's arborist report also concludes that the grading done for the subject project
was responsible for the hazardous conditions of the trees. Given the absence of any
compelling evidence that some other factor is responsible for the hazardous condition
of the trees and the conclusions of the City's arborist, it is determined that the grading
of the subject project is responsible for creating the hazardous conditions identified in
the City's report.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner. The hearing examiner only has authority
to consider the assertion in Mr. Blomenkamp's request for ECDC 20.100.040 review
that the project duplex project creates a nuisance. The hearing examiner has no
authority to consider Mr. Blomenkamp's assertions that the duplex project violates
City law.
ECDC 20.100.040(A) sets the scope of ECDC 20.100.040(A) review as follows:
Scope. Any permit approved by the city under the community development code
may be reviewed under this section if the conditions of the permit are not being
met, the requirements of the city code of Edmonds are not being met, or the
permitted activity is causing a nuisance or hazardous condition. A permit includes
any city approval under the community development code.
ECDC 20.100.040(B)(3) provides that review requested by private citizens must be
made by three residents living within 300 feet of the project in question. ECDC
20.100.040(C)(3) authorizes the community development director to submit an
ECDC 20.100.040 review request to the examiner for review via a public hearing
" fiJf the only reasonable ways to correct the deficiencies are for the permittee to
Approved Permit Review p. 8Findings, Conclusions and Recommendation
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cease the permitted activity, or for the city to impose new or changed conditions on
the permit, ..."
In interpreting the ordinance provisions above, it must be recognized that the extent
of the examiner's jurisdiction is significantly affected by state law. At the outset it is
recognized that the examiner has no authority to ignore or invalidate City ordinances
because he believes them to be inconsistent with state law. However, state law
requirements can be used to interpret city ordinances, since it is fair to presume that
when the City Council adopts ordinances, it intends them to be consistent with state
law.
There are two state statutes that provide guidance in this case on the scope of the
examiner's authority. The first is the Regulatory Reform Act, Chapter 36.70B RCW.
RCW 36.70B.050(2) provides that city and county land use permit review procedures
can only authorize one open record hearing per project permit application or
consolidated project permit application. The purpose of this requirement is to provide
for a more efficient permitting system by preventing decision makers from holding
one new hearing after another ad finitum as new factual issues occur and also to
prevent public confusion about when to participate in an on -going series of public
hearings. See RCW 36.7013.010. ECDC 20.100.040 would clearly be noncompliant
with the Regulatory Reform Act one hearing rule if it were construed as authorizing
an additional hearing on a permit application every time three residents alleged
noncompliance with city code. Indeed, ECDC 20.100.040 could easily be abused by
project opponents as a means of subjecting a project to endless public hearings with
one issue of asserted noncompliance after another.
The other state statute at issue is the Land Use Petition Act ("LUPA"), Chapter
36.70C RCW. A significant concept that runs through many appeals under LUPA is
"finality", the concept that once a final land use permit has been approved and no
appeal has been timely filed, the land use permit can no longer be judicially appealed
even if it did not comply with permitting criteria when approved. See Nykreim
Chelan County v. Nykreim, 146 Wn.2d 904 (2002); Habitat Watch v. Skagit County,
155 Wn.2d 397 (2005). In Habitat Watch, the state supreme court further elaborated
that when a local land use permit has not been timely challenged, it cannot be
collaterally attacked through another administrative permit review process.
Specifically, in Habitat Watch project opponents failed to timely appeal a special use
permit, so they attempted to defeat the project by challenging a grading permit on the
basis that the special use permit was incorrectly issued. The Habitat Watch court
concluded that "[b]ecause appeal of the special use permit and its extensions are time
barred under LUPA, Habitat Watch cannot collaterally attack them through its
challenge to the grading permit." 155 Wn.2d at 411. In this case, Mr. Blomenkamp
seeks to challenge the validity of the ADB approval through the ECDC 20.100.040
review process. Under the Nykreim line of cases, this likely would qualify as a
prohibited collateral attack on the ADB decision.
Approved Permit Review p. 9Findings, Conclusions and Recommendation
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At the hearing the examiner noted that in order to comply with the requirements of
LUPA and the one hearing rule, ECDC 20.100.040(C)(3) had to be construed as
granting the community development director the authority to determine what goes to
the examiner for review and that the determination of the director in this regard is not
subject to examiner review. Since the community developer did not forward any
issues of code compliance to the examiner, the examiner determined he could not
consider those issues. This conclusion was drawn from ECDC 20.100.040(C)(3),
which provides as follows:
If the only reasonable ways to correct the deficiencies are for the permittee to
cease the permitted activity, or for the city to impose new or changed conditions
on the permit, the director of community services shall refer the matter to the
hearing examiner for review.
Upon further reflection, there is a more direct way of integrating Regulatory Reform
and LUPA requirements into ECDC 20.100.040(C)(3). ECDC 20.100.040(C)(3) only
authorizes examiner review if that review provides the only "reasonable ways" to
correct noncompliance. This "reasonable ways" language presumes that examiner
review can correct the alleged noncompliance. Any examiner remedies imposed to
correct a noncompliance issue that was subject to another permit review would be
quickly invalidated by any reviewing court under the Nykreim cases and the
Regulatory Reform Act. An invalid remedy is not a "reasonable way" to correct a
permit violation. Since Mr. Blomenkamp's allegations of design review
noncompliance should have been addressed in an appeal of the ADB approval, they
cannot be considered in ECDC 20.100.040(C)(3).
In his request for review Mr. Blomenkamp included the assertion that ADB approval
was secured by material misrepresentation. Although the issue has not yet been
addressed by the courts, it is reasonably possible that the courts would be willing to
allow a permit to be reviewed a second time if it was secured by material
misrepresentation. Mr. Blomenkamp asserts that staff misrepresented the amount of
grading involved due to a sentence in the staff report that noted that "minimal grading
is anticipated." It is determined as a finding of fact that there was no material
misrepresentation of fact. As noted in p. 5 of the community development director's
report, Ex. 1, att. 3, the ADB was given a significant amount of information that
provided information on the grades and amounts of fills to be employed at the project
site. Upon review of these materials the ADB would have had a fairly accurate
understanding of precisely how much grade and fill was involved in the project.
At the hearing, Mr. Blomenkamp suggested that compliance with ECDC
18.45.050(H), one of the code compliance issues raised in his appeal, was not
something that would have been addressed by the ADB but rather should have been
addressed out on the field during construction. ECDC 18.45.050(H) is the most
pertinent code compliance issue raised by Mr. Blomenkamp, because it arguably
prohibited any grading that could have adversely affected his tree roots. However,
ECDC 18.45.035 expressly provides that projects subject to ADB review are exempt
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from Chapter 18.45 ECDC (i.e. no separate clearing permit is required), and instead
the ADB must review the project for compliance with Chapter 18.45 ECDC in its
design review. In short, compliance with Chapter 18.45 ECDC was subject to the
exclusive jurisdiction of the ADB during the design review process. For the reasons
previously discussed, the examiner has no jurisdiction to review matters already
decided upon by the ADB.
Substantive:
2. Nuisance and Hazardous Condition. ECDC 20.100.040(C)(5) authorizes
the hearing examiner to modify the conditions of development approval to "correct
the deficiencies", which include permitted activities causing a nuisance or hazardous
condition, see ECDC 20.100.040(A).
Mr. Blomenkamp seeks $50,000 in damages, see Ex. 1, att. 2, as well as revocation of
the permit, see Ex. 1, att. 1. The deficiency that needs correcting in this case is the
hazard and nuisance created by the trees that were damaged by the developers
grading activities. That hazard can be removed by removing the trees. Revocation of
the permit will not prevent any further tree damage or remedy the hazards that
currently exist.
Mr. Blomenkamp appears to believe that within the authority to correct the tree
hazard lies the authority to award him a $50,000 damages claim to make him whole.
Adjudicating nuisance claims is not within the jurisdiction of a city land use hearing.
ECDC 20.100.040(C)(5) authorizes the examiner to modify permit conditions to
correct deficiencies, not to award damages claims. Development permit conditions do
not include awards of damages claims; instead, they only include measures to prevent
impacts to the environment and neighboring property owners as necessary to ensure
compliance with land use permitting criteria. ECDC 20.100.040(C)(4) requires the
examiner to assess requests for relief under ECDC 20.100.040 "using criteria used
for the original permit." If Mr. Blomenkamp believes he is entitled to a cash award,
he needs to file his claim in superior court, who with its juries, technical rules of
evidence, and statutes granting it tort jurisdiction is the proper forum to adjudicate
damages claims.
The relief granted by this decision will be that necessary to remove the hazardous
trees as well as to replace the buffering provided by those trees. The City's arborist
report, Ex. 1, att. 5, concludes that Tree No. 1, 3 and 5 in that report are considered
high risk and should be removed expeditiously. The report further concludes that
Tree No. 4 is moderate to high risk and should be monitored for potential removal.
Tree No. 2 can be retained if specified actions are taken. As determined in Finding of
Fact No. 4, the conclusions of the City's arborist report are taken as verities for
purposes of this decision. Consequently, a condition of approval will be added to the
ADB approval that requires the replacement of the hazardous trees with ten foot
replacement trees. The ten foot height is taken from the City's landscaping standards,
Approved Permit Review p. I IFindings, Conclusions and Recommendation
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which generally require trees used for buffering to start at six feet or ten feet. See
ECDC 20.13.030.
DECISION
Additional conditions are added to PLN20130066 to provide as follows:
Kautz Route LLC shall pay for the removal of Tree No. 1, 3 and 52 as identified
in the City's arborist report, Ex. 1, att. 5, and shall also pay for the replacement of
those trees by trees of the same species ten feet in height. Payment is only
required for trees actually removed by the property owner.
2. Kautz Route LLC shall pay for the monitoring of Tree 4 as identified in the City's
arborist report, Ex. 1, att. 5, for three years and shall also pay for its replacement
with a ten foot tree of the same species should that be found necessary through the
monitoring program. Payment is only required if the tree is actually removed by
the property owner.
Kautz Route LLC shall pay for the repair of Tree No. 2 as identified in the City's
arborist report, Ex. 1, att. 5. Payment is only required for actual repairs.
4. Payment amounts shall be based upon estimates provided by qualified contractors
submitted by the property owner and approved by the City as within reasonable
market prices. Estimates shall be provided to City planning staff within two
months of this decision. Kautz Route LLC shall pay the amount of each estimate
to the City within 15 days of City demand. The City shall reimburse the property
owner with the funds upon proof of tree removal or repair (or upon submission of
an executed contract for the monitoring). Any payments given to the City shall be
reimbursed to Kautz Route LLC if the services covered by the estimate are not
completed within one month of payment by Kautz Route LLC (excepting the
monitoring program, in which a contract must be executed within a month). City
shall only be responsible for reimbursing property owner with funds received
from Kautz Route LLC (i.e. property owner should wait until funds are received
by City from Kautz before having services performed).
Dated this 22nd day of September 2015
2 The City's arborist report notes that Tree No. 5 is a "neighboring" tree. From this language, it
appears that the tree may not be on Mr. Blomenkamp's property. If that is the case, it is unclear if the
tree is on the property of one of the other two petitioners who joined in Mr. Blomenkamp's ECDC
20.100.040 request for relief. Given the severe hazard damage the hazard trees could potentially
impose, this decision errs on the side of caution and operates with the understanding that Tree No. 5 is
owned by Mr. Blomenkamp or one of his petitioners and that no one has waived a request to have the
hazard remedied. The parties are free to request reconsideration if this is incorrect.
Approved Permit Review p. 12Findings, Conclusions and Recommendation
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Plu'r A.Olbrechts
City of Edmonds Hearing Examiner
Appeal Right and Valuation Notices
This land use decision is final and subject to closed record appeal to the City Council as
authorized by ECDC 20.01.003. Appeals must be filed within 14 days of the issuance
of this decision as required by ECDC 20.07.004(B). Reconsideration may be requested
within 10 calendar days of issuance of this decision as required by ECDC 20.06.010.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
Reconsideration
A request for reconsideration may be filed within ten days of this decision as specified
in ECDC 20.06.010.
Approved Permit Review p. 13Findings, Conclusions and Recommendation