Letter from attorneyMcDonough's Law Office
Thomas F. McDonough
Attorney at Law
510 Bell Street
Edmonds, Washington 98020
Telephone (425) 778-8555
Fax (425) 778-8550
E-mail - thomas.mcdonoug_hnfrontier.com
October 4, 2021
City of Edmonds
Director of Development Services
121 5"' Avenue
Edmonds, WA 98020
Attention: Rob Chave
Re: B LD2020-073 3 /Retaining Wall
8120 Talbot Road/TPN: 00594400008802
Chris Pichner and Maeve Ellsworth
Dear Mr. Chave:
This office represents Chris Pichner and Maeve Ellsworth, the owners of 8120 Talbot Road, and
applicants under the above referenced building permit. Although the process is taking more time
than anticipated due to a number of reasons, my clients' endeavors are culminating with a fair
amount of data and a request of your office to exercise its right of discretion under the unique
circumstances of this case.
In September of 2018, my clients purchased this single family residence from a flipper who did
shoddy work. The house looked decent from the outside but the flipper cut many corners that
cost my clients time and money. One of the costs incurred by my clients is the wayward manner
in which the flipper disposed of his construction debris. Rather than haul the debris away, the
flipper dumped construction debris down the hillside behind the home that is now the subject of
the City's claimed violation of City Codes that my clients are in the process of rectifying. The
City's involvement was prompted by a neighbor's complaint of activity on the critical slope in
my client's backyard that leads down to Perrinville Creels. That is the same area that my client
had just cleaned out and removed the debris left by the flipper. My client discovered the flipper
left about more than a dozen old ladders, concrete chunks, metal strips/rebar, old sawhorses,
paint buckets, stain containers, tools, insulation and other construction debris strewn over the
hillside and concealed in the overgrown blackberry bushes and vegetation. It was no easy task
for my clients to remove the debris and properly remove it, but Mr. Pichner maintains
professional certifications with the VA Cemetery in Tacoma and previously worked as a
landscaper. The cleanup of debris and removal of the invasive blackberry growth revealed the
twin mature Douglas Fir trees had some roots exposed and failing ground structure in the
immediate area of the trunks of the trees. My client then proceeded to secure the hillside with
retaining walls to prevent erosion and make the ground sustainable for the continued growth and
McDonough's Law Office
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Pichner/Ellsworth
October 4, 2021
Page 2
prosperity of the two trees. As luck would have it, a neighbor complained to the City and a code
violation was issued and the cease and desist order was initiated by the City of Edmonds. Thank
you for considering the relevant background.
My clients retained professionals to assess the situation and understands one or both of the
retaining walls need to be removed. However, that recommendation flies in the face of the
recommendation of the ISO certified arborist Katy Bigelow, who strongly recommends that the
retaining walls be maintained to preserve the significant, mature Douglas Fir tree to protect the
newly developed feeder roots the trees developed. Without the retaining walls, it is the
considered opinion of the arborist the Douglas Fir will fail, thus violating the City's Urban
Forestry Management Plan.
This dichotomy cannot be resolved by a coin flip and I do not believe the Code addresses it. The
report of the arborist is clear. For the sake of argument, one may say the August 24, 2021 report
of Nelson Geotechnical Associates, Inc. (NGA) is clear, but it does not discuss the impact of the
trees in any depth. That would be the realm of the arborist and I submit the only rational way to
resolve this irreconcilable difference is to seek the discretion of your office as Director. I submit
that one solution would be to remove the lower retaining wall which is closest to the Creels and
provide for replanting as directed by Alexander Callender's mitigation/planting plan (Page 19)
and allow the remaining retaining walls closer to the single family residence to remain along
with the Douglas Fir supported by said retaining wall. On the lower retaining wall that my
clients propose removing, my clients would like to forego building stairs to simplify the
resolution of this situation and utilize the natura= graduation of the slope to access the area for
future maintenance of the indigenous plants.
In summary, my clients believe that this approach is a reasonable exercise of discretion under
23.90.040.D.9. My clients also believe this approach is consistent with the stated purpose in the
code at 23.40.000 which states: " The purpose of this title is to designate and classify
ecologically sensitive and hazardous areas and to protect these areas and their functions and
value, while also allowing for reasonable use of private property. " Please consider my clients'
request to lift the cease and desist, to exercise discretion as requested and allow the project to
proceed removing the lower retaining wall only and allowing the upper retaining wall to secure
the significant and mature Douglas Fir abutting, provided the retaining wall is lowered to three
(3) feet. Of course, all the reports referenced herein have been uploaded to the City portal and
my client has worked closely with Denise Nelson, who is copied on this letter. Denise has been
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Picluzer/Ellsworth
October 4, 2021
Page 3
most helpful and the purpose of this letter is not to make an end run on Denise, but merely to
involve the Director and the statutory discretion vested by the code.
Thank you for your consideration and please contact me with any questions or requests for
additional information. If you have any questions, please contact me at 425-778-8555.
Sincerely,
�Ak
Thomas F. McDonough
TMcD:ll
Enclosures
Cc: Denise Nelson, Permit Coord.
121 5`" Ave
Edmonds, WA 98020
Clients