Reconsideration Decision.pdflnc.1$9v
121 5TH AVENUE NORTH • Edmonds, WA 98020 • (425) 771-0220 • FAX (425) 771-0221
HEARING EXAMINER
In the Matter of the Appeal of )
Mirel Sinclair and )
Kumiko and Mitsuru Kurosaka )
Of an Encroachment Permit. )
NO. APL20090001
DECISION ON
RECONSIDERATION
SUMMARY OF DECISION
The October 17, 2009 Findings, Conclusions, and Decision for the above -referenced case is
REVERSED. The appeal of the encroachment permit is therefore GRANTED, as described in
the attached Amended Findings, Conclusions, and Decision.
'1 1
The City of Edmonds issued an encroachment permit to Anthony Dadvar (Applicant) on May 28,
2009, which authorized the placement of a gate across the 172°d Street SW right-of-way adjacent
to 7527 172nd Street SW, Edmonds, Washington.
Mirel Sinclair and Kumiko and Mitsuru Kurosaka (Appellants) appealed the encroachment
permit on June 11, 2009. The appeal was timely under the 14 -day deadline specified in ECDC
20.105.020(B).'
The Hearing Examiner denied the appeal on October 17, 2009. On October 26, 2009, the
Appellants filed a request for reconsideration of the Hearing Examiner's decision. The Hearing
Examiner solicited argument on the request pursuant to ECDC 20.06.010(G), and timely
received letters from Jeanie McConnell of the City of Edmonds and from Mr. Dadvar on
November 2, 2009. Due to their significant length, neither the arguments contained in the request
for reconsideration nor the arguments contained in the responses are reproduced in this
document. All three documents are available upon request.
APPLICABLE LAW
Pursuant to ECDC 20.06.010, reconsideration is limited to errors of procedure, errors of law or
fact, errors of judgment, and/or the discovery of new evidence that was not known and could not
in exercise of reasonable diligence, been discovered. The Hearing Examiner must consider the
request for reconsideration based on the administrative record complied on the application up to
and including the date of the Hearing Examiner's decision. The reconsideration decision may
modify, affirm or reverse the Hearing Examiner's decision.
1 This was the procedural ordinance in effect at the time that the City issued the encroachment permit. The City
repealed the ordinance effective June 12, 2009 (Ord. 3736).
Decision on Reconsideration
City of Edmonds Hearing Examiner
Sinclair/Kurosaka Appeal, No. APL20090001 page 1 of 4
® Incorporated August 11, 1890
The Appellants' request for reconsideration alleged numerous errors of procedure, law or fact,
and judgment. The Hearing Examiner will organize her response to these using the same section
headings and numbering as the Appellants. The Applicant also used this numbering in his
response.2
Errors of Law or Fact:
1. This issue does not warrant a particular response; however, the attached Amended
Findings, Conclusions and Decision likely addresses the Appellants' concern.
2. The Hearing Examiner concurs with the Appellants that in ECDC 18.70.030(B)(1), the
governing regulation is that the use "shall not interfere with vehicular or pedestrian
traffic". In the attached Amended Findings, Conclusions and Decision, the Hearing
Examiner gives greater weight to this language.
3. The safety issue of vehicles backing up the right-of-way is addressed in the Findings.
Errors of Procedure:
1. The minor delay in decision issuance cannot be corrected through the reconsideration
process.
2. The exhibits relied on by the Hearing Examiner were listed on pages 2 and 3 of the
October 17 Findings, Conclusions, and Decision. Copies of these exhibits were available
at the hearing and/or could have been requested at or after the hearing. Appellants did not
identify any City code provision or other law that requires the exhibits to be attached to
the decision.
3. Based on ECDC 20.06.010, it is not clear that the issue identified by the Appellants
(ability to rebut Applicant's testimony) can be addressed through the reconsideration
process. The reconsideration decision must be based on the established record. It is the
Hearing Examiner's opinion that all parties had adequate opportunity to present their
cases at the open record hearing.
Errors of Judgment:
1. The Appellants did not identify any error in fact in Finding No. 3, and the Hearing
Examiner does not find the selected language to be misleading. Service vehicles,
although not specifically referenced in the Finding, would also not need to use the right-
of-way unless visiting the Dadvar or Kurosaka parcels. The Hearing Examiner did not
include the information presented on the "precipitous drop-off' because it was not
necessary to the decision.
2. The Hearing Examiner disagrees that Finding No. 4, which provides background
information on the case, is irrelevant to the decision. No modification of the Finding is
warranted.
3. The Hearing Examiner does not find the safety risk described by the Appellant (cars
falling onto her property due to steep slope) to be credible. No modification of the
Finding is warranted.
2 The City did not respond to the request for reconsideration on a point -by -point basis, but stated generally that it
supports the October 17, 2009 Findings, Conclusions, and Decision.
Decision on Reconsideration
City of Edmonds Hearing Examiner
Sinclair/Kurosaka Appeal, No. APL20090001 page 2 of 4
4. The Hearing Examiner concurs with the Appellants that precise measurement of the
right-of-way and the extent of the intrusion should have accompanied the permit
application.
5. The Hearing Examiner was aware that the right-of-way cannot be monitored constantly
and does not find Finding No. 12 to be misleading. No modification of the Finding is
warranted.
6. In Finding No. 13, the Hearing Examiner understood the location to be the driveway that
is north of the garage, and on reconsideration will clarify the Finding. However, the
Appellants raise a significant issue that affects the outcome of the decision, and that is the
driveway that was used by City staff to turn around. The Hearing Examiner based her
decision on the assumption that vehicles could turn around within the confines of the
right-of-way or the Kurosakas' access easement.
7. The issue raised by the Appellants is due to problems with the Appellants' own exhibit.
The photograph referenced in Finding No. 14 contains the.caption "Photo taken before
the gate, showing a larger vehicle using the public right-of-way — now blocked by the
gate — to execute a turn." Exhibit C, page 6. The photo is an aerial photograph that shows
lot lines, addresses, and streets. There is yellow highlighting on the photo that correlates
with the right-of-way location, and the vehicle shown is wholly outside of the highlighted
area. The vehicle had to have used the gated right-of-way to reach the position depicted
in the photograph (and the Hearing Examiner will modify the Finding to reflect this);
however, the Appellants did not explain why they believed the position to be in public
right-of-way. Based on the highlighting shown on the photo and the best evidence
available in the record, the Hearing Examiner concluded that the vehicle was outside of
the right-of-way and on the Applicant's property.
8. The Hearing Examiner finds the question of whether the gate is a stand-alone structure or
attached to a fence to be immaterial to the decision.
9. Finding No. 16 does not credit any party with generating truck traffic; it was understood
that trucks might visit either parcel. The remaining factual issues raised by the Appellants
cannot be addressed within the confines of the existing record.
10. As described in subsection (6) above, the Hearing Examiner misunderstood the location
that the City used to turn around its vehicles. In Exhibit A, Attachment 10, the Hearing
Examiner interpreted "at the intersection of your [Kurosaka] driveway" to be the
intersection of 172°d Street SW and the access easement (i.e., immediately in front of the
gate). The Appellants' testimony that the turn around location was farther north was
included in the original appeal materials (Exhibit C) and was not challenged by any party.
The Hearing Examiner finds the testimony credible based on the constraints observed
during her site visit prior to the hearing. It is the Hearing Examiner's opinion that public
right-of-way should not be gated in favor of a driveway located entirely on private
property.
11. The Hearing Examiner noted that the right-of-way was not vacated in Finding No. 2.
12. The Amended Findings, Conclusions, and Decision includes revised Conclusions that
result in a different decision.
13. See subsections (9) and (12) above.
Decision on Reconsideration
City of Edmonds Hearing Examiner
Sinclair/Kurosaka Appeal, No. APL20090001
page 3 of 4
DECISION
On reconsideration, the October 17, 2009 Findings, Conclusions, and Decision for the above -
referenced case is REVERSED. The appeal of the encroachment permit is therefore
GRANTED, as described in the attached Amended Findings, Conclusions, and Decision. The
Amended Findings, Conclusions, and Decision shall supersede the Findings, Conclusions, and
Decision dated October 17, 2009.
DECIDED this 9�h day of November 2009.
Toweill Rice Taylor LLC
City of Edmonds Hearing Examiners
By:
Decision on Reconsideration
City of Edmonds Hearing Examiner
SinclairlKurosaka Appeal, No. APL20090001
page 4 of 4