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2015-03-12 Hearing Examiner MinutesVerbatim Transcripts CITY OF EDMONDS HEARING EXAMINER HEARING March 12, 2015 File Numbers APL20150001 and APL20150002 Appellants: Chris Schuetz and Edmonds Tree Service Hearing Examiner: Phil A. Olbrechts Mr. Olbrechts: Let's get started, it is March 12, 2015 at 3:00 p.m. We are in the Edmonds City Council Meeting Chambers. I'm Phil Olbrechts, hearing examiner for the City of Edmonds. We have an appeal of some notices of violations that deal with illegal tree removals. First on the agenda is Chris Schuetz and Edmonds Tree Service appeals, those are consolidated I believe. The second is the Rotary Club appeal. Now all of you sitting up front here, are you here for the Schuetz appeal, is that correct. A member of the audience: It's Schuetz, your honor. Mr. Olbrechts: Is it Schuetz? Okay, thank you. Alright. Let me ask staff real quick, should this be the order we are doing it in. It seems like this appeal has two lawyers involved, which to me signifies we are going to spend a lot of time on it, and the Rotary doesn't. Mr. Lien: If the Hearing Examiner wishes, he can alter up the ... Mr. 01brechts: I know you have more background in the cases, but ... Mr. Lien: We do have more people here for the first appeal than we do for the other one. So ... Mr. Olbrechts: Well, let's do it since everyone is relying on the agenda. We'll stick to that. Alright, the hearing format is going to be, and the code is kind of silent on the procedures that are used for these things. Since the fines are currently large, I think from a due process standpoint, it would have be considered that the City has the burden of proof unless someone can point to a code provision that says to the contrary, which means from a forma standpoint, then, that the City gets to be first a last in terms of presenting its case. So the format will be the City will present the reasons why the notices of violation were issued and the basis of the issuance of those notices. Then the two appellants will have an opportunity to speak, and then the code is silent as to whether the general public has a right to testify, since it doesn't address it at all. I'll allow it, but hopefully, we won't get too much testimony from the public because really all that's relevant here is what's going on between the City and the parties. Then we have a final City rebuttal. Mr. Olbrechts: All witnesses will be subject to cross examination, and all testimony will be taken under oath. So anyone who plans on testifying in this appeal or the next one, I'll just swear everybody in at the same time. If there's any chance anyone plans on speaking in the hearing today, I'll need you to stand up and raise your right hand to be sworn in. Do you swear to tell the truth and nothing but the truth in this proceeding? Okay, perfect. Thank you. Mr. 01brechts: Now you do need to say something, if you don't happen to be sitting in front of the microphone, it looks like most people today will be in front of the mike. But if you don't have one, you will need to go to the podium over there and state your name, how to spell it so we get that right for the decision. Let me know if you have been sworn in, and then go ahead and leave your testimony. Any questions about the process, why we are here today or what's going on? Okay, then, I'll just hand it over to the City, then to tell us what the ... How do you pronounced this, Schuetz. Mr. Lien: Schuetz. Mr. Olbrechts: Okay, perfect, thank you. Mr. Lien: My name is Kernen Lien, I'm with the City of Edmonds Planning Division. First of all, I'd like to enter some stuff into the record. The Hearing Examiner has received a copy of the staff report on this matter, which has also been provided to both appellants. Since the staff report was drafted there has been four more documents that have been submitted to the City that I'll enter into the record now, too. First, is a declaration of Steven Schlecht, and the appellant, Edmonds Tree Service Brief on Appeal 20150002. Mr. Olbrechts: Let's deal with the staff report attachments first, so we don't get too confused here. Now the staff report on Page 6 has nine attachments. I take it that all the parties have gotten a copy of the staff report and the attachments. Are there any objections to the staff report and attachments 1 through 9, coming in collectively as a group of one? Okay, so that's entered as Exhibit 1. Mr. Lien, you mentioned there is a declaration from Steven Schlecht. Mr. Lien: Correct. Mr. Olbrechts: And the brief from which appellant again? Mr. Lien: That is also Edmonds Tree Service. Mr. 01brechts: Edmonds Tree Service. Okay, does anyone have any objection to those documents? Has everyone received a copy of those? Okay, good, so that will be admitted as Exhibit 2. And then I think there's another one. Mr. Lien: And then two more documents, a declaration of Chris Schuetz and the Chris Schuetz brief. Mr. Olbrechts: Okay, that will be Exhibit 3. Any objections over that one? Mr. Kesler: We would have an objection to that. We just received it this morning. At this late hour is the first time that we've ever received any notice that there's a claim that there was no direction given from Mr. Schlecht to obtain a permit. This is the first time the argument has been raised. I don't know why there has been a delay to this point, but we received it just this morning. But there hasn't been adequate time to obtain documents to refute that. Mr. Olbrechts: Okay, alright. Yeah, it's not an unreasonably long document. What I'll do, is I'm going to admit it, but if you need time to provide a written response after the close of the hearing today, I would allow that. Mr. Kesler: Okay. Mr. Olbrechts: Actually, why don't I have the attorney's identify themselves for the record. Mr. Kesler: I'm Bill Kesler for Edmonds Tree Mr.Olbrechts: Pardon Mr. Kesler: I'm Bill Kesler for Edmonds Tree (Mr. Schlecht). Mr. Purcell: And I'm Doug Purcell for the Schuetz. Mr. Olbrechts: Okay, great. Thank you. Alright. Okay, so anything else, Mr. Lien? Mr. Lien: No. Mr.Otbrechts: Alright. Okay. Mr. Lien: Just those for documents. Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 2 Mr. Olbrechts: Okay, Mr. Lien: Alright, so this is an appeal of a notice of violation and monetary fine. Both Chris Schuetz and Edmonds Tree Service were named in the notice of violation and monetary fine. We have received two appeals on that, one from Ms. Schuetz and a separate appeal from Edmonds Tree Service. As you noted, they are being consolidated because they relate to the same matter. This is the location. The tree cutting, itself, occurred at 8001 Talbot Road. It's next to a stream with steep slopes down into the stream, which are both considered critical areas. Ms. Schuetz lives at 8124 Talbot Road. Mr. Lien: As I mentioned, the cutting occurred on the site that contains critical areas, and this here is an image from the City's critical areas map. The red are slopes greater than 40%, which are a landslide hazard per the City of Edmonds Critical Area Regulations. There is also a stream that cuts down through the middle of those. So those two are the two critical areas involved in the situation. Mr. Olbrechts: I take it the staff has verified that the map the accurate at this location. Mr. Lien: Yes, staff has been on the site. Mr. Olbrechts: Alright. Thank you. Mr. Lien: So the cutting activity that occurred is there were ten trees that were either cut or trimmed. The images that I have up here are from the two arborist reports submitted with this. Ms. Schuetz submitted an arborist report that is Attachment ... So the image on this side is from the arborist report from Ryan Ringe, which is Attachment 4 of the staff report. The City had the arborist report, the geotechnical report, and the mitigation plan that was submitted for this peer reviewed by Landau Associates. They consulted with an arborist, and this is the site plan from the peer reviewed arborist report. Both the one submitted by Ms. Schuetz and peer reviewed identified the same trees. Tree Number 10 is identified on the peer reviewed arborist report, wasn't shown on the site plan, but it was discussed in the arborist report from Ryan Ringe. Mr. Olbrechts: Oh, I was just going to ask you to do that. Okay, thank you. Mr. Lien: This here is an image, kind of pre-cutting event, this was taken from Google street view. According to Google street view, this is an image that was taken August 2011 at the same site. This was a picture that was taken post event in about the same location as the Google street view to kind of get an image of how much cutting occurred in that location. Mr. Lien: On the notice of violation, the City identified four separate codes that were in violation from the cutting. One was the Edmonds Community Development Code 23.40.160, which is the review criteria within our general critical area regulations that basically says that any activity or alteration of a critical area must be reviewed consistent with the Critical Areas Code. 23.40.220 lists certain allowed activities within the critical area, one that generally relates to trees and clearing of vegetation within the buffer or hazard trees could be removed or invasive species and that such. The other one was allowed activities within geologically hazardous areas. And finally, ECDC 23.40.040, which are the development regulations for streams. The City found the tree cutting activity to be in violation of all four of these codes. Mr. Lien: The City's definition of alteration within a critical area is contained within 23.40.320. Basically, an alteration is almost anything within a critical area. So 23.40.320 defines an alteration as any human induced activity which changes the existing conditions of a critical area or critical area buffers. Alterations include, but are not limited to, grading; filling; dredging; draining; channelizing; cutting, pruning, limning or topping; clearing; relocating or removing vegetation; applying herbicides, pesticides or any hazardous toxic substance; discharging pollutions; paving construction application of gravel; modifying surface water management purposes; or any other human activity that changes the existing land forms, vegetation and hydrology, wildlife habitat, and value of the critical areas. Basically, if you do anything within a critical area or critical area buffer, it is an alteration. So what was done, and this is the cutting and/or pruning of 10 trees on the slope and within the stream buffer was a violation of these four codes that were identified there. Mr. Lien: Fines for alterations in critical areas. The Critical Area Code points to the City's tree cutting codes for the assessment of fines within critical areas. So ECDC 23.40.240 points to this section. ECDC 18.45.070.B has the violations Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 3 for tree cutting. For trees that are less than three -inches in diameter, there's a maximum fine of up to $1,000. For trees greater than three -inches in diameter, the maximum fine could be up to $3,000. Part C of that same section notes that any cutting within a critical area, the fines established underneath B shall be tripled. Mr. Lien: In the notice of violation, the City of Edmonds identified four reasons, or four reasons for the fine that was established. One was the plain text of the Edmonds Community Development Code with respect to unauthorized alterations within a critical area. The fact that the trees were not located on Ms. Schuetz' property, generally the taking down of trees on property that you do not own is considered more egregious than taking down trees on your own property, thus warranting the higher fine. Edmonds Tree Service's knowledge of the tree cutting permit over the years, Edmonds Tree Service, which was priorly L&G Tree Service, had been notified of the different tree cutting permit requirements within the City of Edmonds. Finally, Ms. Schuetz' responsiveness in submitting information after the violation. Since we went to the site, Ms. Schuetz came across the street and said I was the one that did it and has been very timely in submitting information to the City of Edmonds. Mr. Lien: So the fine amount and the notice of violation were established in Exhibit A of the notice of violation, which is Attachment 1 of the staff report. For each individual tree, a separate fine was assessed. Only two of the trees received the maximum fines. They were healthy trees that were cut down to a stump, and another tree that was severed off by the falling of some of the other trees. Only two of the trees received the maximum fines. Other things taken into consideration were the kind of status of the tree before the cutting. There was one of them that was a dead snag that probably should be left as a wildlife habitat snag, and there was another one that just a co -dominant was cut, but the tree was left. The maximum fine in this situation for cutting of 10 trees within a critical area could have been $90,000. In this instance, the City assessed a fine of $23,100. Mr. Lien: With that, if there's any questions of the Hearing Examiner. Mr. Olbrechts: You touched on this a little bit. So how did the City determine that Ms. Schuetz had those trees cut? I mean, it was mentioned it was an arborist report that basically identified the trees. Mr. Lien: So there were two arborist reports. One that was submitted by Ms. Schuetz, and that arborist report was peer reviewed by an arborist hired by the City of Edmonds. Mr. Olbrechts: Oh, I see. Okay. And you mentioned that there was like one discrepancy or something. I didn't quite catch what you.... Mr. Lien: They were in general agreement. Mr. Olbrechts: Uh huh. Mr. Lien: As far as the trees, so these were the two site plans with the arborist report. The arborist report from Ms. Schuetz did not show Tree Number 10, although the report, itself, talked about Tree Number 10. That was shown on the peer review one. That's really the only discrepancy. They talk about the same trees. Mr. Olbrechts: Okay. Sounds good. Alright, those are all the questions I have. Do either of the attorneys want to cross examine Mr. Lien about anything? No. Okay. Alright. I guess you are done Mr. Lien. I'll say, anything else from the City at this point? Okay. That's it? Alright. Then we will move on to the two appellants. I think the order we'll go in is we'll have the tree service group go first since they are making allegations about statements made by Ms. Schuetz. And then Ms. Schuetz will go second. Then we'll have public if there is any public testimony. Then there will be the tree service group rebuttal, then Schuetz rebuttal, and then finally staff rebuttal. So, tree service you go first. Mr. Kesler: I'd like to ask Mr. Schlecht a few questions. Mr. Lien: Excuse me, could you please speak into a microphone because this is being recorded? Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 4 Mr. Kesler: I'll ask Mr. Schlecht a few questions and make a little bit of an introduction to Mr. Schlecht's argument first, which is that the liability should lie with Ms. Schuetz and not with Mr. Schlecht based in equity because of the fact that Mr. Schlecht was informed on multiple occasions that Ms. Schuetz would obtain a permit for this work and then later that she did obtain a permit and other factual matters here that weight in favor of Mr. Schlecht not bearing any of this fine. Again, in equity, your honor. And then, even if there is a fine issued, that it be reduced or eliminated as to Edmonds Tree based on the equitable factors. Mr. Olbrechts: Then I shall let the record reflect that Mr. Schlecht, Ms. Schuetz and Mr. Lien all raised their hand to be sworn in so it's all sworn testimony. Mr. Kesler: Yes. Mr. 01brechts: Thank you. Mr. Kesler: So, Mr. Schlecht, you've owned tree trimming businesses in Edmonds for over 20 years, correct? Mr. Schlecht: Correct. Mr. Kesler: Okay, and you did work for Ms. Schuetz' neighbor several years ago, is that right? Mr. Schlecht: Yes, correct. Mr. Kesler: And she liked the work that you did so she hired you to do some work in her yard, some pruning work, is that right? Mr. Schlecht: Yes. Mr. Kesler: Good. And Edmonds Tree completed that work about three years ago, is that right? Mr. Schlecht: That's it. Mr. Kesler: A few months after you completed that pruning work in Ms. Schuetz' yard, her husband, Ms. Schuetz' husband, Doctor Charles Schuetz, treated you for a back injury. Is that right? Mr. Schlecht: Yeah, I can't exact time, but yes, he did treat me. Mr. Kesler: In 2013 you visited the Schuetz property and the property across the road, the Lee property, and you determined at that time that a permit would likely be required, is that right? Mr. Schlecht: Absolutely. I informed her that she needed to have a permit to do any work there. Mr. Kesler: At that time, when you visited the property, or no, later when you visited the property a second time, you walked the property with you, your wife, and Ms. Schuetz to figure out what work needed to be done, what the scope of the work would be. Is that right? Mr. Schlecht: Yes. Mr. Kesler: When was that? Mr. Schlecht: That would have been the beginning of March, but I don't know the exact date. Mr. Kesler: Okay. March of 14? Mr. Schlecht: Correct. Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 5 Mr. Kesler: Okay. And at that time, did you again tell Ms. Schuetz she needed a permit? Mr. Schlecht: Yes. Mr. Kesler: About two weeks later, after that second time you walked the property, Ms. Schuetz called and asked you to schedule that the work be done as quickly as possible, is that right? Mr. Schlecht: Yes. Mr. Kesler: Okay, and at that time, you asked if Ms. Schuetz has obtained her permit, is that right? Mr. Schlecht: Yes. Mr. Kesler: What did she tell you at that time? Mr. Schlecht: She said that she had a permit. Mr. Kesler: That she had already obtained it? Mr. Schlecht: Yes. Mr. Kesler: Alright. Then the next Saturday, approximately one week later, your crew showed up to ... Mr. Schlecht: It was actually Thursday evening when Mrs. Schuetz had called him and she wanted the work done the following Saturday. Mr. Kesler: Okay, and your crew showed up on that Saturday, right. Mr. Schlecht: Yes, correct. Ms. Tarraday: Excuse me, Mr. Hearing Examiner. I'm not sure what the evidentiary rule are that apply, but it would seem as though there are leading questions that are being asked of... I don't know if that's okay in this setting. Mr. 01brechts: Okay, well, yeah, the evidentiary rules for these kinds of hearings are fairly informal. I wasn't saying anything just to kind of you know, it sped it up, but in light of the City's objection, if you could make your questions more open ended, that would add more credibility to ... Mr. Kesler: Sure your honor. This is all from Mr. Schlecht's declaration. I mean, I could recite from or summarize from his declaration more in the form of like a summary judgment hearing, but... Mr. Kesler: So the next Saturday, you again asked Ms. Schuetz if she had obtained the permit? Mr. Schlecht: Yes. When we came in that morning, we asked if, "you do have the permit," and she said, "Yes I do." Mr. Kesler: Okay. And why did you feel like you could rely on her word that she had obtained the permit? Mr. Schlecht: We had known Chris, we had known her for about three or four years. Her husband had treated my back. He husband had passed away three months prior to this, and you know, I made it very adamant that we had to have a permit to do this work. We've done so with every customer that we've worked with down in Edmonds. In fact, we have quite a bit of correspondence between Mr. Lien and us. So we assumed that she did have the permit knowing her. Mr. Kesler: Would it be fair to say that based on your past relationship, your past professional relationship with Ms. Schuetz and her husband, that you felt comfortable trusting that she had obtained the permit like she said. Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 6 Mr. Schlecht: Absolutely. Mr. Kesler: And over the 20 plus years that you have owned tree pruning businesses that have operated in Edmonds, how many permits would you say, approximately, that your company has directed your customers to obtain? Mr. Schlecht: More than 100. Mr. Kesler: Over 100? Mr. Schlecht: More than 100. Mr. Kesler: Would you feel like you can assess a job, look at it, and determine whether it likely that a permit would be needed? Mr. Schlecht: Absolutely. Mr. Kesler: And that was the case here, right? Mr. Schlecht: Yes. Mr. Kesler: Your honor, what we have is Mr. Schlecht developing a relationship with a family, frankly taking their word, their multiple words, that the permit had been issued. It's impossible for Mr. Schlecht to contact the City and obtain the permit himself That's not the way the process works is my understanding from Mr. Schlecht. So if he wanted to contact Mr. Lien and obtain the permit himself, he couldn't do it. Mr. Schlecht: I actually could have, but it would have been the following Monday. Mr. Kesler: You would have had to wait? Mr. Schlecht: I would have had to wait while I had a crew there. Mr. Kesler: So it would have had to wait for that to happen. Mr. Olbrechts: This is that Saturday that you were out there? Mr. Kesler: This is a Saturday. So he was assured by his customer that the permit was there. He showed up with a crew, and the crew was ready to work. He had to pay the crew regardless, and based on his vast experience, he had informed Ms. Schuetz of the requirement multiple times, just like he does with customers all the time. There's no reason to put his livelihood and his professional reputation on the line on this one incidence when, in fact, he had been following the same protocol repeatedly for over 20 years. Frankly, he was deceived, your honor, and that's... It's unfortunate, but here we are having been assured that the permit was in place to perform the work. Parenthetically, your honor, I don't think that it is relevant that the work was performed on another property. I think Ms. Hill, whose property... I'm sorry, Ms. Lee, whose property the trees were located on, Ms. Schuetz assured Mr. Schlecht that Ms. Lee had given permission to cut on that property. And indeed, when Mr. Schlecht showed up that day, Ms. Lee came out, greeted the crew, waived and was friendly. And the work commenced after that. Mr. Kesler: Only once the work was complete did Ms. Schuetz tell an Edmonds Tree crew member that she did not have a permit, at which point the crew member called Mr. Schlecht immediately and informed him of that fact. This is all to the liability argument, your honor. There's inequity, the liability should lie with Ms. Schuetz and not with Mr. Schlecht. But secondarily, even if there were liability for Mr. Schlecht, the damages should be reduced, the fines should be reduced as to him because Edmonds Tree acted in good faith this entire time. Ms. Schuetz, again, she claimed that Ms. Lee had given the permission, and in fact Ms. Lee came over, greeted, waved, and essentially gave the permission to do that as the work was being done on her property. There is no question ... The way that the property is laid out, there is no question about the fact Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 7 that these trees were on her property, Ms. Lee's and not on Ms. Schuetz'. It wasn't a question of the boundary lines. It was obvious to everyone that the work was being done on Ms. Lee's property. So there was both permission and assurances from Ms. Lee and Ms. Schuetz. Mr. Olbrechts: You mentioned that Ms. Schuetz eventually did tell Mr. Schlecht's employee that she didn't have permits. I didn't hear Mr. Schlecht testify about that. I don't believe that's evidence in the record. Mr. Schlecht: What happened, your honor, is I was gone for a period of time, and it was additional work Mrs. Schuetz wanted and got. I was called by one of the guys out there, he asked me if she had permits to do that, and I said make sure and ask her. She said she didn't have time to get the physical permit on Friday, and at that point I became very nervous and got back to the job site and confronted her with that. She said, don't worry, there's a permit. It wasn't until the following Thursday when Mike Theis from the City of Edmonds contacted me about the fact that there was no permit issued. Mr. Olbrechts: Okay, so your employee she might not have a permit and you went out and talked to her and then were satisfied there was one, and then weren't really told there wasn't one again until the following Thursday when the work was done. Is that kind of what happened? Mr. Schlecht: Basically, there wasn't a paper permit. It was a verbal permit. She said she hadn't had time to pick that permit up Friday prior to the work. Mr. Olbrechts: Okay. Anything else for this witness? Mr. Kesler: The work that was done promoted the health of the trees, and this goes to the claim of egregiousness here. Really, it's the opposite of egregiousness. It's as good faith as Edmonds Tree could have been. There was the health of the trees that was promoted. There was a safety issue with some of the limbs as I understand them dying or being dead, and either the trees were removed with the dead limbs or they were trimmed. So from a big picture equity standpoint, even if there were liability, the amount of the fine as to Edmonds Tree should be unindated or greatly reduced. Mr. Kesler: Finally, your honor, there's a relatively small issue compared to the $23,000. There's the issue of a $705 appeal fee was double paid once by Ms. Schuetz. After it was paid by Ms. Schuetz it was paid again, I believe in error, by Mr. Schlecht. It does not strike me that there ought to be two appeal fees when there's one notice of violation. So Mr. Schlecht will also request a refund of the $705 appeal fee. Mr. Olbrechts: Okay. Alright. So are you done with testimony from Mr. Schlecht at this point? Mr. Kesler: Yes. Mr. Olbrechts: Okay. Then any cross from the Schuetz table? Mr. Purcell: Mr. Schlecht, do you know Ala Ann Turner is? Mr. Schlecht: Pardon me. Mr. Purcell: Do you know who Ann Turner is. Mr. Schlecht: Ann Turner. No. I don't believe. Mr. Purcell: Is it appropriate to have exhibits marked or will we be required to operate only from the record? Mr. Olbrechts: Yeah, I'll mark them. I need a copy of them. Do you have multiple copies of each exhibit? Mr. Purcell: I have a multiple copy of this ... Well, yes I do. Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 8 Mr. Olbrechts: Because the City will need to see it. I'll need to see it, and of course, Mr. Schlecht will need to see it too, so... Mr. Kesler: Your honor, I object to anything being entered at this last minute. Mr. Olbrechts: Well, I'd need to see the document, but I think it's going to be okay to enter documents. Mr. Purcell: I'll hand the document and we have additional copies. Mr. Olbrechts: Okay, I'm marking this one as Exhibit 4. And this is the only copy we have right now? Mr. Purcell: It is, your honor. Mr. Olbrechts: It's a letter from Jim Schubed to Ms. Turner and Mr. Schlecht. if you could pass that to Mr. Schlecht, there. Thank you. Perfect. Sir, if you could just tell us what the letter is about so I can address the objection first. Mr. Purcell: This is a letter in which the City is advising Ms. Turner and Mr. Schlecht that tree cutting, which Mr. Schlecht did required a permit and requesting that they respond to the City has a mechanism for dealing with the fact that no permit was obtained prior to the cutting. Mr. Olbrechts: Okay, yeah, I'll admit it. What was the date of that letter, again? Mr. Purcell: I believe its June of 2014. Mr. Olbrechts: Okay. Mr. Purcell: Does this letter recall to you who Ms. Turner is? Mr. Schlecht: That was, correct, yes, alright, yes. Mr. Olbrechts: I'll ask Mr. Schlecht. You need to base your answers on your own recollections. You can't ask for assistance from the audience. Mr. Schlecht: Yes. Understand we deal with hundreds of people. Mr.Olbrechts: Sure. Mr. Schlecht: But I do now know who this is. I dealt with her son or her grandson most of the time. Mr. Purcell: And this is a situation in which you performed tree cutting on a property that required a permit without obtaining a permit, isn't that correct? Mr. Schlecht: No, that is not correct. Mr. Purcell: Isn't that what the letter says? Mr. Schlecht: Actually, we were not aware that, and this is very critical, we were not aware, and they had just recently adopted the fact that any lot that is subdividable shall receive a permit. We were unaware of that until Mike Theis came to us. And not only did we go ahead and address that, but Mrs. Turner had a arborist report written on that, and we did go down and resolve this with the City of Edmonds that day. Technically, we weren't informed that that was a situation where we needed to have a permit. It was one single home on that property. I'm not a surveyor, so I would not know how many square feet are on that property. Mr. Purcell: Your honor. I believe he's answering a question I didn't ask. Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 9 Mr. Olbrechts: That's alright. I would say that he is here to testify and this is open. Okay, and you can ask him to elaborate further. I'll redirect that so... We'll do it that way. Mr. Purcell: Mr. Schlecht. Do you recall some trees on Lake Ballinger that you were requested by I believe Mr. Denniston to cut? Mr. Schlecht: Yes. Correct. That was not trees. That was one... That was actually one, what am I think of here, weeping willow, extremely rotten, and we also contacted the City about that. Mr. Purcell: You did almost all of the negotiating with the City regarding obtaining the permit to do that work, didn't you? Mr. Schlecht: Pardon me. Mr. Purcell: You were the one who was the principle person contacting the City regarding all of that work, is that no correct? Mr. Schlecht: Pam would be the person that contacts the City. She does the work with the City. Did you deal with ... Mr. Olbrechts: Just answer the question to the best of your ability. Mr. Schlecht: I don't think. I'm not ... Our business does contact the City about cutting, yes. Mr. Purcell: And do you recall receiving specific emails addressed to Steve regarding this transaction? Mr. Schlecht: No, I don't. Mr. Purcell: I have no further testimony, or questions, of this witness. Mr. Olbrechts: Mr. Taraday, do you have any questions from the City? Mr. Taraday: Except a couple of redirects. So, Mr. Schlecht, do you usually just rely on the property owners' assurances that they have a permit or do you normally look up the permits, themselves or demand that they produce a paper copy. Mr. Schlecht: Well, we like to see the paper copy. Again, you know, at this particular situation, prior to this situation, we've always made sure to get paperwork or confirmation, email confirmation from Kernen or somebody at the City. This particular situation, I had a call Thursday night, was busy Friday, did not confirm with Kernen or anybody else at the City. But with the past that we've had with the Schuetz, I didn't think it was necessary. Mr. Olbrechts: Now Ms. Schuetz. When did she first tell you she had a permit? That was a like a couple weeks before ... Mr. Schlecht: Thursday evening prior to the cutting. Mr. Olbrechts: That was the earliest that ... Mr. Schlecht: Yes, and she asked me if I would schedule that for Saturday due to the fact that the neighbor would be out for the day. I don't normally work Saturdays but agreed. Mr. Olbrechts: Okay. Okay, Mr. ?? (I couldn't catch the name he called Mr. Kesler) do you want to redirect? Mr. Kesler: I'm Kesler. Mr. Olbrechts: I'm sorry, Mr. Kesler. Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 10 Mr. Kesler: No, no your honor. Mr. 01brechts: Okay, sounds good. Any other witnesses from Mr. Schlecht. Okay, let's move on to Ms. Schuetz. Mr. Purcell: Ms. Schuetz, as part of the ... Would you please state your full name and give your address for the record. Ms. Schuetz: My name is Christine Schuetz. I live at 8124 Talbot Road, Edmonds, 98026. Mr. Purcell: And you had Edmonds Tree Service perform some tree cutting on your behalf, is that correct? Ms. Schuetz: That's correct. Mr. Purcell: And can you tell the court where the trees were and what you did to obtain permission, if anything, from your neighbor to have this removal done. Ms. Schuetz: I talked with Anita Lee, and then I talked with Anita Lee's son to just double check. And then I contacted Mr. Schlecht and said, "I would like to have some tree work done," and that's when I got an estimate on March 6, 2014. Mr. Purcell: Let's talk about that estimate. Who came out to give you the estimate at that time? Ms. Schuetz: Pam and Steve Schlecht. Mr. Purcell: Your honor, I apologize. I had reviewed the record on line, and I believe there was a copy of that document in the... Mr. Olbrechts: The estimate? Mr. Purcell: I'm sorry, where was that located. Mr. Lien: So the document in question is from the declaration of Steve Schlecht. I believe that was Exhibit 2 today. Mr. Olbrechts: Oh, okay. Mr. Purcell: Thank you. I'm handing you what is marked as an exhibit to Exhibit 2, that has been identified today as the declaration of Steven Schlecht. Is that a document to which you are referring? Ms. Schuetz: That is. Mr. Purcell: What contact had you had with Edmonds Tree Service and Mr. Schlecht prior to them coming to your property on that date and preparing this document? Ms. Schuetz: So, what other contact have I had with them? Okay, he cut down a tree on 8008 Talbot Road, which is right to the north of me and it was leaning over my house. I did not contract him, the neighbor that owns the house contracted him, and that's how I met him because that tree was literally on top of my house. I mean pretty much... Mr. Purcell: When did that occur? Ms. Schuetz: The date of that cutting was in 2010, May of 2010. Mr. Purcell: Mr. Schlecht testified that, at some point in early 2013, or in 2013, he spoke with you about the tree cutting on the Anita Lee property. Do you recall that testimony? Ms. Schuetz: No. Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 11 Mr. Purcell: Do you recall Mr. Schlecht testifying to that affect? Ms. Schuetz: Oh, yes. Mr. Purcell: Can you tell us whether or not you had any communications with Mr. Schlecht about the Anita Lee property prior to March 6t' of 2014. Ms. Schuetz: Only in passing. I may have said that I would like my view improved, or... But the times I've face-to-face met him would have been 1-29-13, which is the day he had an appointment at our office and in passing I may have said that. But that would ... Mr. Purcell: Did he, at that time, say anything about a permit. Ms. Schuetz: No. Mr. Purcell: How is that you were at your husband's office and know that date so precisely? Ms. Schuetz: Because I pulled the chart. I looked it up. I mean I ... I had to go back and think of all the things that he's saying when I had said something, and I pulled the chart. You know, I had to look at the date and ... Mr. Purcell: Did you tell Mr. Schlecht... On March 6`' of 2014 did you request ... Did Mr. Schlecht tell you that you need a permit. Ms. Schuetz: No. Mr. Purcell: Did he describe what the permit process would be like? Ms. Schuetz: No. Mr. Purcell: Did he talk about permits at all? Ms. Schuetz: No. Mr. Purcell: What day was the actual tree cutting done? Ms. Schuetz: 3-15-14 Mr. Purcell: So that would be approximately nine days later on a Saturday. Ms. Schuetz: Correct. Ms. Purcell: And Mr. Schlecht testified that he was out on the Thursday before the Saturday, is that correct? Ms. Schuetz: I don't... 3-6 is a Thursday. I don't know if that's a Thursday. That's the only things. Mr. Purcell: If 3-15 is a Saturday, then 3-6 would be a Thursday. I think we can take judicial notice of that. So on those two times... So on 3-6, Mr. Schlecht came out, gave you this document that's attached to Exhibit 2? Ms. Schuetz: Correct. Mr. Purcell: And at that time, you set up for him to come back on the following Saturday? Ms. Schuetz: Correct. Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 12 Mr. Purcell: Is that when the work was performed? Ms. Schuetz: Correct. Mr. Purcell: Are you a person who would have knowledge about all the tree cutting or trimming businesses. Ms. Schuetz: No. Mr. Purcell: What is it that you do? Ms. Schuetz: I'm a nurse. Mr. Purcell: And were you relying on Mr. Schlecht in terms of what he did with regard to this property? Ms. Schuetz: Yes. Mr. Purcell: And at any time did you tell Mr. Schlecht that you had obtained a permit? Ms. Schuetz: No. Mr. Purcell: Did you have any conversation with he or any of his workers regarding what was going on on the property on the day of the 15`ng Ms. Schuetz: No. Mr. Purcell: You have to let me finish my question. So on the day of the 15`h, did you have any conversation with Mr. Schlecht or any of his workers regarding what was happening on the property? Ms. Schuetz: No. Mr. Purcell: Did you ask for any additional work to be performed by any of the workers? Ms. Schuetz: No Mr. Purcell: Did you overhear any conversation between Mr. Schlecht and any of his employees on that day? Ms. Schuetz: Yes. Mr. Purcell: Can you tell us what you overheard? Ms. Schuetz: Well, when the crew got there, I heard them say, if anybody asks you, your name is Emanuel. Mr. Purcell: That's all? Ms. Schuetz: That's all. Mr. Purcell: The .. . Mr. Kesler: I object to the relevance of that, but I realize we have a loose evidentiary guide and rules her, but I don't know why that his relevant. Mr. Olbrechts: Mr. Purcell. Can you explain that? Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 13 Mr. Purcell: That is not exactly the wording that Ms. Schuetz told me when we originally talked about this particular issue. And I don't know if she has a different recollection or a different response, but ... Ms. Schuetz: They weren't supposed to say anything. If anybody came by and asked, it was kind of like they kind of got the hint that you're not to say anything. You don't notice... Mr.0lbrechts: Hmm. Okay. Ms. Schuetz: I'm sorry. I'm kind of.. . Mr. Purcell: Is that how you interpreted what Mr. Schlecht said to his employees? Ms. Schuetz: Yes. Mr. Olbrechts: Alright. Yeah, I'll overrule on you. It's of marginal relevance, but at least the insinuation is that they knew that they weren't supposed to be there and that leads credence to the fact that the tree services group was working without a permit. As I said, it's marginal relevance, but that's evidence they're presenting. So... Alright, go ahead. Mr. Purcell: Your honor, I noted that Mr. Kesler did sort of a brief closing on his issues arising from the record, and I would assume that I am going to get an opportunity to do that as part of the final closing of this. Mr. Olbrechts: Yeah, I think I during the rebuttal period. Save it for that, and then, if there's any new evidence introduced after you make your close, I'll let you address it if you need to. Mr. Purcell: I have nothing further at this time. Mr. Olbrechts: Okay, now at this point, we'll hear from the public. If there's anyone from the public that wanted to comment on this. As I said, this is mainly between the appellants and the City. There's probably no need for public testimony, and it looks like we don't have any, so I'll jump then back then now to the Tree Service group gets to rebut and Ms. Schuetz group gets to rebut, and then finally, staff gets the final word. Mr. Kesler: Thanks, your honor. Mr. Schlecht, the name of your company is on the side of the truck. Mr. Olbrechts: Oh, I'm sorry, did you want to cross examine Ms. Schuetz at all? Mr. Kesler: No, I ... Mr.0lbrechts: Pardon. Mr. Kesler: No. Mr. Olbrechts: The City, too, right. No cross. Ms. Taraday: Right. Mr. 01brechts: Okay. Sorry, Go ahead. Mr. Kesler: You're name is on the said of the truck that was parked at the job site, right? Mr. Schlecht: Yes, the letters on the truck were 10 inches tall and spread out over a 4 by 8 piece of plywood with a phone number on it. Mr. Kesler: Did you think you couldn't be out there or that you were trying to be sneaky? Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 14 Mr. Schlecht: Absolutely, with 10-inch letters and numbers, it's pretty hard to hide. Mr. Kesler: And how many guys in your crew? Mr. Schlecht: At that particular day, there was I believe six there. Mr. Kesler: Parked right on Talbot Road, I'm presuming? Mr. Schlecht: Correct. Right out in front of the residents. Yes. Mr. Kesler: No other questions, your honor. Mr. Olbrechts: Mr. Schlecht, from your recollection of your conversations with Ms. Schuetz, is there any change maybe that you were misconstruing her comments about permission from the property owner, permission from the City? Is there any chance that you might have misconstrued comments from Ms. Schuetz about permission from the property owner across the street with permission from the City? How clear was she that it was City permission? Mr. Schlecht: Very clear. Mr. Olbrechts: She used words the City of Edmonds said... Gave me a written permit? Mr. Schlecht: She said I have received a permit from the City. I would like to go forward with the work. Could you please ... And that was the phone call that I received on Thursday evening prior to the cutting on Saturday. Unfortunately, I wasn't able to call the City of Edmonds. I felt that knowing Chris for a period of time, I really didn't need to. We showed up Saturday morning to work. Of course, our truck, which is lettered and numbered, we were there. And when I asked Chris whether she had a permit or not, she said, yes, I do. Mr. 01brechts: From your prior dealings with the City, were you aware of how steep these fines can be violating the tree? Mr. Schlecht: I wasn't aware of the actual fining costs, no. I heard rumor, and in the process at the time when we were doing the work, there was yet to be a finalized tree ordinance intact with the City of Edmonds. But we also make it a point to call whenever there's an area that ... I've been in this a long time, your honor, and when I see a steep slope, when I see an area that I ... In fact, we just contacted Kernen the other day, we've contacted him over the last three years religiously when there's a situation where we feel it's needed to be permitted. And if it is said that it needs to be permitted, we do make sure the permits are applied. I'm not jeopardizing my business and my livelihood over this. Absolutely not. Mr. 01brechts: Anything else, Mr. Kesler, from Mr. Schlecht? Mr. Kesler: No your honor. Mr. Olbrechts: Any cross with Mr. Schlecht, Mr. Purcell? Mr. Purcell: I'm done. Mr. Olbrechts: City, Ms. Tarraday. Any cross? Ms. Taraday: No Mr. Olbrechts: Okay, any other comments from you Mr. Kesler. Mr. Kesler: No Mr. Olbrechts: And then final rebuttal from Mr. Purcell then. Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 15 Mr. Purcell: Your honor, I believe that the testimony of Ms. Schuetz and Mr. Schlecht is of such divergent quality that the court is going to have to make a credibility decision. And we have evidence that Mr. Schlecht has said that he doesn't deal with the City, that that's the owner's job, but that in fact, on two occasions he was the direct contact with the City in terms of obtaining permits. We also have testimony from him that he knows when permits are required and yet there's a situation, a circumstance which arose in which he went ahead with tree cutting even though they do not have required permits. The evidence that is in front of the Hearing Examiner includes the statements of Ms. Schuetz and of Mr. Schlecht, and it's of some significance to me that Mr. Schlecht imposed the March 6`h work order, which incorporates all of the trees that are on Exhibit A. All of the work that's on Exhibit A. And yet, his testimony is that at some point, Ms. Schuetz was trying to get some additional work to be done and that's what caused him to come back out and to ask once again, was there a permit. Mr. Purcell: Ms. Schuetz' testimony is of the first contact was March 6`h. There was a phone call, and they set up a Thursday meeting. They had the Thursday meeting. They scheduled the tree cutting for the following. . . Not the immediately following Saturday, but the subsequent Saturday. That's when it occurred without any further contact between Mr. Schlecht and Ms. Schuetz until the day of the... Some contact on the day of the tree cutting, but again, there was not any specific, in Ms. Schuetz' testimony, any specific discussion or contact about what was supposed to happen because what was supposed to happen was there. I just think that, once we get to whatever the fines ought to be in this case, that the fact that Ms. Schuetz was in good faith relying upon the fact that Mr. Schlecht experience in this field that she ought not to be the person upon whom these fines are imposed. Mr. Purcell: Now, looking directly at Exhibit A, and again this is more of a Schlecht issue, but I think it's also a City issue to some extent. And that is there are basically two, $9,000 components of this fine, which is the bulk of the $23,000. One of those is a Pacific Yew, which testimony in the record of the arborist and of the City's report is that that tree was actually damaged by the other work that was being done by Mr. Schlecht's firm, and to that extent, should certainly be solely his responsibility and not that Ms. Schuetz. Mr. Purcell: I would say the second thing about the fines assessment is that, looking through both arborist reports there is some very significant discussion of the health of the trees. These were not, for the most part, thriving. They were also, in some instances, choked with ivy, which was removed and eventually we would have had a significant deterioration to the trees themselves. So I think the Hearing Examiner has some leeway here to assess the fines levied by the City in this case, as it relates to these particular items, are excessive. I would note that two ordinances, which were referred to by Mr. Lien do not mandate assessment of fines at this level, but allow it. I think it would be inappropriate under the circumstances, particularly with regard to Ms. Schuetz, who has been extremely cooperative, provided all of the reports, and is prepared to go forward with the restoration, which is part of the violation that she should not have fines of this level assessed. I thank you. Mr. Olbrechts: Alright. Thank you Mr. Kesler. Mr. Lien do you have any final comments? Mr. Lien: I'll address a few items from the comments. First, with regards to a refund from the appeal fee brought up by Edmonds Tree Service (Mr. Schlecht). The notice of violation was addressed to both Edmonds Tree Service and Ms. Schuetz underneath a joint obligation to pay the penalty. The fee did not divvy up how the money should come in. There were two separate appeals that were submitted to the City of Edmonds, and they both seek separate remedies. With that, they are two appeals and so the City is not supportive of a refund for either appeal, or for the Edmonds Tree Service appeal. Mr. Lien: With regard to the health of the trees prior to the cutting, that was something that was taken into consideration with the issuance of the fines. The two trees that received the maximum penalties per the arborist report, the one submitted by Ms. Schuetz noted that Tree Number 3 was a 20-inch diameter big leaf maple in good/fair condition. That one was cut down to a 2-foot stump. The Pacific Yew, this was a little bit of discrepancy between the two arborist reports and being on the site, as well, I witnessed this. The Pacific Yew in the arborist report that was submitted by Ms. Schuetz said that the tree is in good/fair condition. When I was on the site after the violation, I noticed that it basically has been severed, and it was stuck into the slope down at the bottom. It looked like it might have been, but I saw the stump from where the Pacific Yew was. By the time the peer review was done, that Pacific Yew was dead. So those were the two healthy trees that were cut within the critical areas that received the maximum fine. The other trees, the health was noted and that was taken into consideration when the fine was assessed. Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 16 Mr. Lien: Finally, kind of with regards to permits. Yes, a permit would have been required in this situation. There was mention of ivy, ivy removal within the critical area is an allowed activity. Removal of trees for views is not something that the City would permit, especially within the critical area, within a stream buffer, and on extreme slopes. Those are ... Mr. Olbrechts: Alright. Well then, I will go ahead and close the hearing, take this under advisement. I have, I think it's like 24 hours to issue a decision. Not much time. I mean, it's pretty well uncontested the trees were removed. It's just an issue, of course, of how much the fine should be, if anything. I don't think it's possible to determine if, you know, if Ms. Schuetz said that she had a permit or not. Even if she had said it, I think there is some responsibility on the part of the developer to still, you know, check anyway, considering the fines at stake. Mr. Olbrechts: I will also say that, yes, these fines are very high. I mean, when I first started hearing these appeals a few years ago, I was a little surprised myself. I mean, fines with cities tend to be in the hundreds of dollars and not tens of thousands of dollars. But there is also a very good reason for this in Edmonds, and that the value of removing trees, especially for view purposes, in this City is going to worth hundreds of thousands of dollars and people will be more than willing to plead ignorance and pay a $500 fine if they can improve their view. The fine are necessarily high, and that's the message the City Council wanted to send. As a Hearing Examiner, I'm required to implement that. So, you know, yeah, the fines are still going to be high. How that's, you know, apportioned or whatever, that's something I still have to figure out. Let's just say you will get your decision from me fairly quick. I appreciate you coming out today. I certify that this verbatim transcript is accurate and complete to the best of my ability. (Places highlighted in yellow indicated words 1 could not hear well enough to transcribe.) (� " Q0 0 uxj 3 c) Karin Noyes, Recorder Date Verbatim Transcripts of Hearing Examiner Hearing File Numbers APL20150001 and APL20150002 March 12, 2015 Page 17