Response to Public Comments.pdf
Memorandum
TO:Phil Olbrechts, Hearing Examiner
CC:Jennifer Machuga, Associate Planner
FROM:Jeff Taraday, City Attorney
DATE:August 17, 2011
RE:City of Edmonds’ response to public comments
offered during Birlenbach appeal hearing
The City has prepared the following response to public comments proffered
at the Birlenbach appeal hearing which took place before the Hearing
Examiner on August 11, 2011.
It was asserted that the mitigation ordered by the City could be
environmentally damaging. This argument was based on observations
during a recent site visit to the subject property where it appeared that new
growth exists on the cut trees. Based on the express provisions of the
Edmonds Community Development Code (ECDC), however, unqualified
public opinion about mitigation efforts cannot be considered by the Hearing
Examiner.
The city code mandates that a mitigation plan shall be prepared by a
qualified professional using the best available science. ECDC
23.40.240(B). Specifically, the code provides:
B. Requirement for Restoration Plan. ... \[A restoration\] plan
shall be prepared by a qualified professional using the best
available science and shall describe how the actions proposed
meet the minimum requirements described in subsection C of
this section.
ECDC 23.40.240(B) (Emphasis added).
Clearly this code provision is meant to restrict the preparation of mitigation
plans to qualified professionals.
In this case, two qualified mitigation plans have been presented to the
Examiner. Ms. Birlenbach hired an arborist, Tree Solutions, and a biologist,
Wetland Resources, who both came up with separate mitigation/restoration
plans.In the planby Tree Solutions, 59trees were to be planted to restore
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the altered area, while 50 trees were to be planted to restore the altered area
in the plan by Wetland Resources. Additionally, a geotechnical letter by
Nelson Geotechnical Associates contained recommendations for erosion
control and stabilization of the slope during the restoration of the site.
Following thorough review of these reports by staff, a compilation of the
recommendations set forth in these three documents were adopted by the
city, as conditioned in the conditional use permit approval (PLN20100079),
including the requirement to plant a total of 52 trees.
The city’s conditions of approval, referencing compliance with aspects of
these three reports, have not been disputed formally by any tree
Although certain speakers may have visited the site and seen
professional.
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new growth, none of them presented any qualifications or credentials that
would qualify them to challenge the proposed mitigation plan under the
City’s best available science requirement. Therefore, such opinions
concerning whether or not the restoration plan is appropriate cannot be
considered.
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The City would like to note that the arborist report prepared by Tree Solutions Inc., biologist
report prepared by Wetland Resources Inc., and geotechnical letter prepared by Nelson
Geotechnical Associates Inc. mentioned above were provided to the City by Ms. Birlenbach
herself as part of her conditional use permit application. These reports were not prepared by a
city expert but were adopted by the city as an appropriate mitigation plan. The arborist,
biologist, and geotechnical reports can be found as Attachments 4, 5, and 6 respectively to the
city’s staff report (Exhibit 8). Again, these reports were provided by Ms. Birlenbach as part of her
conditional use permit application which is now being appealed by her. Essentially, she is
appealing the very plan which she submitted to the city for approval.
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Although Ms. Birlenbach brought a different arborist to the appeal hearing, he did not submit a
report disputing that the planting of 52 trees as required by the city’s mitigation plan was
unreasonable. He only offered testimony that the replacement trees should be smaller than the
ones proposed by the city.
It was also asserted that the trees were not “removed” from the subject
property as that term is defined in chapter 18.45 ECDC. One speaker asserts
that the mitigation plan to replace trees can only be required where trees
have been removed. Chapter 23.40 ECDC, however, expressly authorizes a
director to order restoration when a critical area has been altered.
Specifically, the code provides:
23.40.240 Unauthorized critical area alterations and
enforcement
A. When a critical area or its buffer has been altered in
violation of this title or the provisions of Chapter 7.200 ECC,
all ongoing development work shall stop and the critical area
shall be restored. The director shall have the authority to
issue a stop work order to cease all ongoing development
work, and order restoration. . .
ECDC 23.40.240 (Emphasis Added).
Moreover, the code defines the term “alteration” as:
\[A\]ny human induced action which changes the existing
condition of a critical area or its buffer. Alterations include . . .
cutting, pruning, limbing or topping. . .
ECDC 23.40.320. The code, therefore, authorizes the imposition of a
restoration plan for the alteration of trees in a critical area independently of
the provisions of chapter 18.45 ECDC.
Moreover, these facts would also support mitigation ordered under chapter
18.45 ECDC, as this activity does satisfy the definition of “removed”.
Specifically, the code provides:
18.45.075 Public and Private Redress
A. Any person who violates any provision of this chapter or of
a permit issued pursuant hereto shall be liable for all damages
to public or private property arising from such violation
including the cost of the affected area to its original condition
prior to such violation and the payment of any levied fine.
…
2. For each tree removed, replacement planting of up
to three trees of the same species in the immediate
vicinity of the tree(s) which was removed so long as
adequate growing space is provided. . .
ECDC 18.45.075(2)(Emphasis added.)
In this case, the city required Ms. Birlenbach to plant 52 trees based on the
damage that was caused to 26 trees in a critical area on the subject property.
This mitigation plan is based on the recommendations from Ms. Birlenbach’s
arborist, Tree Solutions, as combined with the recommendations of Ms.
Birlenbach’s biologist and geotechnical engineer. Specifically, the arborist
recommended the following:
1)Replacing the removal of one hazard tree by planting 2 trees in
accordance with ECDC 23.40.220(7)(B)(iv).
2)Replacing the removal of seven trees to a stump by planting 21 trees in
accordance with ECDC 18.45.075(2); and
3)Planting 36 trees to replace the eighteen trees that were pruned to a
level beyond the city-approved plan.
See Staff Report (Exhibit 8), Attachment 4, page 5.
Although it was asserted that the trees were not removed, the code defines
“removal”as:
\[T\]he actual destruction or causing the effective destruction
through damaging, poisoning or other direct or indirect actions
resulting in the death of a tree or ground cover.
ECDC 18.45.040(O)(Emphasis added). Based on the above, one does not
have to dig up the entire root system of a tree for it to be considered
“removed” under the code. In fact, the code clearly contemplates that one
who damages a tree in such a way that death is imminent, effectually
“removes” a tree.
In this case, the contractors hired by Ms. Birelenbach caused the actual
and/or effective destruction of 26 trees, one of which was deemed hazardous
by Ms. Birlenbach’s arborist. They cut these trees in such a way that will
likely result in death. Such a result was in fact advanced by Ms. Birlenbach’s
own expert. In the Critical Area Study and Tree Restoration Plan submitted
by Wetland Resources, Inc., they concluded the following:
\[A\]nother twenty-five trees (red alder and big leaf maple) were
cut down or were topped in a manner that will likely result
in their deaths.
See Staff Report (Exhibit 8), Attachment 5, page 1. The report goes on to
mention that the applicant, Ms. Birlenbach, is “proposing to replace the trees
at a 2:1 replacement to impact ratio.” See Staff Report (Exhibit 8),
Attachment 5, page 1. Again, even if some disagree with the replacement of
the several topped and damaged trees, not only does the arborist and the
wetland specialist agree with this restoration plan, but so does Ms.
Birlenbach.
Overall, the city acted within the provisions of the code by requiring the
appellant to abide by a reasonable mitigation plan to restore the critical area
which had been altered. As such, the appeal should be denied.
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