2002-04-18 Hearing Examiner MinutesCITY OF EDMONDS
VERBATIM TRANSCRIPTS OF HEARING EXAMINER HEARING
FILE NOS. AP-02-7 and ZE-01-109
April 18, 2002
Mr. Largen: I appreciate everyone's patience. We will move on to our next case on today's agenda. Appeal Number 02-
7—staff determination that certain vegetation did not constitute a hedge. Meg, why don't you give me a run down. Oh,
excuse. Let me say that the hearing on this case is officially opened up at 11:04 a.m.
Ms. Gruwell: If I could, I would like to start by just making sure that we are going to have a hearing. Last time I went
ahead and gave my entire staff report and decided that there was not. If we could just check with the both appellants and the
neighbors as to whether they are indeed going ahead with it today. I believe we are planning to.
Mr. Largen: Okay. Obviously, the appellant is here. And the neighbors are here, obviously. And we want to proceed
today with this? Do you wish to proceed today with this then?
(Both parties indicated that they were ready to proceed.)
Ms. Gruwell: You have a staff report, and that I would like to enter as Exhibit A. There is also a memo that is dated March
18, 2002 from the attorney for the appellants. I would like to enter that as Exhibit B. That was also sent to you. The
Kurosaka's have a letter with exhibits attached dated March 13, 2002.
Mr. Largen: And I have all this in front of me, is that correct?
Ms. Gruwell: Yes. So the Kurosaka letter I would like to have entered as Exhibit C, and then they submitted an updated
plant list (it is just, I believe, two loose pages) and I have entered that as Exhibit D although it is meant to just replace the
plant list that was in there. It just gives the common names.
Mr. Largen: Okay.
Ms. Gruwell: The vegetation is located at 7529 — 172" Street Southwest, and the appellants live at 7527 — 172" Street
Southwest. This case started with a land use complaint. After inspecting the site, the code inspector determined that the
vegetation in question was not a hedge. His determination was appealed. Just for the record, the City's definition of hedge is
"a fence or boundary formed by a dense row of shrubs or low trees." If something is a hedge, then we have another code
section 17.30.000.0 that says, "Unless a variance is first obtained, no fence or hedge shall be more than six -feet in height as
measured from the top of the fence to the lowest original grade."
Ms. Gruwell: There is quite a history with hedges and complaints in the City of Edmonds. Back in 1989 the Hearing
Examiner heard a case regarding a row of Shore Pines that had been planted. In that case he determined that did not qualify
as a hedge because it was not a low growing tree. Therefore, it was not subject to the six-foot height limit. Since the 1989
decision, staff has consistently said that anything that is planted, even if it is planted in a dense row, if it is not a shrub or a
low growing tree, we will not count it as a hedge. Any tall growing trees we do not count as a hedge. We have even had a
more recent Hearing Examiner decision (File No. AP-2001-112). Here again, a row of evergreen trees had been planted, and
that was denied. That was even appealed to the City Council. The City did vote 3-2 to uphold the Hearing Examiner's
decision to deny the appeal. They did have some problems with the issue, but pointed out that those needed to be changed
legislatively and not in this decision.
Ms. Gruwell: The appellant has raised several issues. The restriction in view. He believes the vegetation is ugly. Resulting
loss in property value. He also points out in a 1989 case they talk about the code being deficient with the definition of
hedges. Then his Hawes memo brings up a number of other jurisdictions where things have been decided differently.
Ms. Gruwell: At the site, when I went out to look at it, there is a row of Pyramidalis planted along the border. That, and a
lot of the other trees are shown in the Kurosaka information, so you might refer to that for the vegetation. Our conclusion
was that the Pyramidalis is planted in a dense row. It is a typical shrub material, and that would be considered a hedge,
which does need to be kept cut to six feet in height. However, it is acknowledged that if you trim the Pyramidalis, it is not
going to clear up the view problem. The other vegetation will still obstruct the view. Laurel and Photinia are planted along
the edges, although I was corrected as to what the plant material actually is, but they are not planted in sufficient numbers to
form a dense row, so staff did not consider them a hedge. The other trees, deciduous and evergreen, appear to be tall growing
trees. Here, again, we would not consider them a hedge. There is bamboo planted along the edge of the property, but it is a
giant grass, so here again, it would not qualify as a hedge according to our hedge definition.
Ms. Gruwell: I might also point out, as far as the legislative aspect of this. There has been no change since 1989 in the
definition of hedges. Staff has consistently used the 1989 Hearing Examiner decision. I did check with our City Attorney
after receiving the Hawes memo, and basically, I am not that familiar with legal terminology, but he mentions stare decisis,
and that since staff has consistently used that determination over and over again, that if we change it now, we would be liable
for being arbitrary and capricious, or something to that effect. So, basically, we are kind of stuck with the way we have been
doing it unless we do a legislative change to the code.
Mr. Gruwell: Unfortunately, for neighbors. .. For uphill neighbors, particularly, there is nothing in our Edmonds
Community Development Code that requires people to landscape so as to preserve the view of their neighbors. The building
division, our great code enforcement officer, has written in a memo (and his statements are attached as Attachment 9). The
decision on the part of staff was, basically, that the Pyramidalis does need to be treated as a hedge, and it does need to be kept
trimmed to six feet, and the rest of the plantings, except for the Pyramidalis, are individual plantings and cannot be
considered a hedge and don't need to be trimmed to any particular height.
Mr. Largent: I have a question for you. About a year ago, I heard a similar case, and during the discussions of that, staff
had mentioned this very issue of what we might call the legislative deficiencies of the code were possibly going to be taken
up by the Council and Planning Commission. Did that ever occur?
Ms. Gruwell: No.
Mr. Largent: Clearly it is not going to, otherwise, we would have something to talk about.
Ms. Gruwell: Right.
Mr. Largent: So at this point, there is no plans by staff or Council to address this issue within the Code.
Ms. Gruwell: There has been no direction from Council to do it right now.
Mr. Largent: Okay.
Unidentified Gentleman: Can I ask you a question.
Mr. Largent: You can come to the stand and state your case. You are the appellant? You are the one making the appeal,
you come on up. And if you would please state your name and address for the record.
Verbatim Hearing Examiner Transcripts
File Nos. AP-02-7 and ZE-01-109
April 18, 2002 Page 2
Mr. Dadvaragah: It is Anthony Dadvaragah, 7527 — 172nd Southwest, Edmonds.
Mr. Largent: Okay. And why are we here?
Mr. Dadvaragah: We are here because have lost our view, and we have lost it not accidentally. We have lost it in spite.
We have a long history of problem with Mr. Kurosaka, and it is well documented. He even mentioned, himself, that we do
have problems. We have not seen eye -to -eye regarding several issues starting with him not taking care of his duty as far as
reimbursement of construction of their very large area of.. .
Mr. Largent: Okay, you understand that some of these issues are not before me?
Mr. Dadvaragah: I understand. The problem that we have here is basically that he has intentionally planted overgrown
trees and shrubs in several rows one after another, all touching each other, creating a very dense kind of a wall. I have not
been on their property, and I don't have exact measurements. The city staff have failed to actually go on his property and
really examine the height, and the width, and the degree of density of his plantings and try to figure this out. As a matter of
fact, the first inspection by the City, even didn't notice Pyramidalis. There was a 50-foot row of Pyramidalis that was not
noticed, right in the front. Then, the second inspection was done, after my insistence. Finally, they recognized the
Pyramidalis as a hedge, but then the Laurel hedge, which is about 20-feet tall in some areas, that was not considered a hedge.
Mr. Dadvaragah: Now, what we have here is, we have several different rows from the north side of the property, from one
corner to another corner. About 2/3 of that was the plantings that that Mr. Kurosaka basically did after our disagreement that
we had. What he did, he tried to punish us by planting the thickest, the fastest growing, the densest, the tallest possible wall
to really do the damage. He calls it a Japanese landscape, and to me, with all due respect, it is nothing but a mumble jumble.
I am an architect, I have a master's degree in architecture, and I have done landscaping jobs. I don't see what he has done as
Japanese landscape architecture. He has referred to a particular philosophy of landscape architecture, a very Japanese style.
In one area he goes ahead and does very thick planting, tall, without any trimming. Of course, that happens to be our view
side. But on the other side, which is his view side, on the north part of his property, of course his philosophy is very low
vegetation, very slow growing and all.
Mr. Largent: Okay, respective philosophies on design are also not an issue before me.
Mr. Dadvaragah: What he is raising it, I am answering. I have a half -an -inch paperwork that I am answering.
Mr. Largent: Okay. What I am saying is design considerations are immaterial to me.
Mr. Dadvaragah: Okay, that's fine. So, basically, what we are saying is that these kinds of codes have been overturned by
courts across the country. There are several appellant courts in Washington they have done that —paperwork to that effect.
We would do everything in our power to go ahead and overturn this thing. In other words, it has become a personal mission
for me to go ahead and do this because there are a lot of injustice done to a lot of people. The City's attitude that we have
been doing it this way for a long time and we are not going to turn back is very sheepish and is extremely inadequate. That's
not acceptable. Somebody said before that the earth was flat, and then we found out that it wasn't flat. We can't just go by
what was done and justify doing wrong today based on continually doing wrong thing in the past. It is not fair and it is not
right. The courts across the country, they have recognized that. They have gone way beyond the literal meaning of the
words. They want to see the true intent. When they go, I'm not an attorney, I do have some paperwork, but in common
sense, it says Number 1, "definition that City of Edmonds goes by is an oxymoron." Why anybody wants to limit the height
of the low bushes... The low bushes do not get high enough to even meet the regulation. It just doesn't make sense.
Mr. Dadvaragah: Another examiner, like yourself, in 1989 wrote a very good decision. It identified the City's code as
deficient and asks City Council to do something about it. And time after time, these people have been elected, they've been
paid, they promise to do the job and they have not taken that issue.
Mr. Largent: You also understand, that as an examiner, I don't have a lot of influence on the City Council.
Verbatim Hearing Examiner Transcripts
File Nos. AP-02-7 and ZE-01-109
April 18, 2002 Page 3
Mr. Dadvaragah: I understand that. But we need somebody here that can look at number 1, as a planning examiner,
you've got to save the City... I am a taxpayer, we are all taxpayers, are we have to save the City from a lawsuit because the
damage is expensive for us and is not going to go away. It is not going to be forgiven or forgotten. Absolutely not. To the
Supreme Court, we are going to follow this. In the meantime, we are very irritated by the City of Edmonds and this lax
attitude. They got something out of the dictionary and they are going by it forever and ever. And it is being overturned time
after time. Even if they show it to the City Attorney, they are basically afraid to do the right thing because they keep slipping
it under the carpet. I think it is long enough this has been under the carpet, you have got to come out. You cannot go ahead
and tax us, not you, but the County, but we cannot be taxed on a view that we don't have. We are not going to lose our view
in here deliberately to rows of rows —these are connected. The courts around the country are looking ... If the wall that is
created by dense, and you cannot see the beginning or end of one, it is acting as a building, and a building cannot be built
between the setback. You can't do this with mass planning. It is right here, and I have it and somebody has got to do
something about it. It is not fair. We have substantial investment in this property, and we shouldn't be losing it because
somebody wants to do his interpretation of a Japanese landscape architecture. That is not fair. Somebody's freedom
shouldn't start when somebody else's ends.
Mr. Largent: Okay.
Mr. Dadvaragah: So, we do have a problem. I do have some photographs. I would like to say that I would ask for a
continuance of this thing. My wife has been in and out of the hospital for the last four and a half months. She just got home,
we are expecting a baby. The Fawcett's were called out of town on a mission, and this paperwork that was given to me since
then I either had my own surgery or I've been taking care of my wife. So there is, as we speak, my formal objection is being
typed. And the reason I wanted to ask you, before we proceed or not, is that would you allow me to turn that in today
because I could not meet the deadline. I stayed up all night, and I couldn't do it.
Mr. Largent: I have absolutely no problem holding the hearing open until 10 o'clock tomorrow morning for the explicit
purpose for you to submit that letter. I want to make sure that that same letter is provided to the defendants, and I will ask
that to be verified by Meg Gruwell that that has occurred. When you are done with your letter, please send it to Meg.
Mr. Dadvaragah: We don't have a relationship to...
Mr. Largent: That's fine, just as long as you know that they are going to be getting a copy, also.
Mr. Dadvaragah: I appreciate that.
Mr. Largent: I don't have any real questions for you. I have been to the site in questions and have taken a look around.
Mr. Dadvaragah: You have been?
Mr. Largent: Oh yes. I do that as a regular course of any case that I hear. I go take a look at the property in question. You
do understand that the only thing that I can address is whether or not the code interpretation —the interpretation by the
building official and by the planner —meets what's in the code at this point in time. That is as far as I can take it.
Mr. Dadvaragah: I understand it, but I was told that from here, that would be the first step to correcting...
Mr. Largent: That is correct, and I will state also that I have heard similar cases of this. I have also raised similar concerns
as the `89 Examiner where there is enough cases like this coming up, there may be an issue with the legislation, itself. I don't
have a lot of influence over the Council. I don't live here, and that's not my job. All I can do is rule on the rules that are in
front of me at this point in time.
Mr. Dadvaragah: Well, I have asked the City for a list of all the people who have had problems. We are going to be
mobilizing because there is a wrong and injustice that is being done and has been done since so many years ago.
Mr. Largent: Well, when there is a legislative issue with the code, then that is properly placed before the City Council.
Verbatim Hearing Examiner Transcripts
File Nos. AP-02-7 and ZE-01-109
April 18, 2002 Page 4
Mr. Dadvaragah: Absolutely, and we are going all the way to it.
Mr. Largent: I have no questions for you.
Mr. Dadvaragah: I appreciate it.
Mr. Largent: Thank you sir. Good morning, you have waited a long time. I have read all of your material. It is very
complete, and I have been to your site. I think I have a good idea of what the issues are for you and what you have done
there. If you would like to add more or present your case, please do so. For the record, your name and address please.
Mr. Kurosaka: My name is Mitsuru Kurosaka, and I reside at 7529 — 172nd Street Southwest, Edmonds. I am the neighbor
of Mr. Dadvaragah, who is renting the property from Mr. Fawcett and I was hoping that I can see Mr. Fawcett for the first
time. Unfortunately he appears to be out of town, just like the last time.
Unidentified Member of the Audience started to comment.
Mr. Largent: Please no comments.
Mr. Kurosaka: There are many interesting allegations voiced by Mr. Dadvaragah. Those are side issues.
Mr. Largent: Those are side issues, correct.
Mr. Kurosaka: I would not like to dignify his comments by responding to them. But I would like to speak to my point. I
have some view foils , and since I spent some time in preparing this, I would just like to show them.
Mr. Largent: Please go ahead. Are these substantially different than what is in.
Mr. Kurosaka: They are essentially the same, except for the one point... If you think this is just a duplication of what you
already have, just tell me so.
Mr. Largent: Why don't you start putting them up, and I will let you know if I have seen them.
Mr. Kurosaka: Okay.
Mr. Largent: Just for the record, the defendant or neighbor, is showing us some view foils of material that, I believe has
been provided to us already, but we are going to take a look and see how it goes.
Mr. Kurosaka: Just to give the orientation. Here is our house and this is the problem which Mr. Fawcett which Mr. Agar is
currently renting from Mr. Fawcett.
Mr. Largent: Okay, we have seen this.
Mr. Kurosaka: You have seen this. Okay. I just identified this as Region A for the purpose of our present discussion. I
further divided Region A into two, just for the purpose of convenience. I also supplied to you an inventory list of the plants
for Region Al and Region A2. In the previous version, the inventory was listed under the botanical names, but in the revised
version, which is now Exhibit D, the common names are added together with the botanical name, current height and the
maximum height. So that is Region A2. There are various trees, such as Western Hemlock, Douglas Fir, Sitka Spruce, etc.
Mr. Kurosaka: In the definition of the hedge, as we have mentioned repeatedly, there seems to be three criteria that we see
satisfied on the boundary from the denser and consisting of low plants. When I first saw this definition, I was struck by some
kind of inconsistency about the use of fence, because a fence is something that you construct, and a hedge is something that
you plant. So I went to Webster's Dictionary, the 1986 version. If I am wasting your time, please...
Verbatim Hearing Examiner Transcripts
File Nos. AP-02-7 and ZE-01-109
April 18, 2002 Page 5
Mr. Largent: No, no, no, please.
Mr. Kurosaka: Then I found out that this definition of a hedge was essentially the same as what is stated in the Webster's:
a fence or boundary formed by a row of shrubs or low trees planted close together. So, I was curious, since this is not a fence
here, I went to the Webster, and I found that the fence came from the English of a fence, it is just shortening defense. And
the fence comes from this. But I take the meaning of this as defense. The second one is a barrier, intended to prevent escape
or intrusion. In this context, fence is essentially the marker of the boundaries so that the result of my question. It is
essentially the same. The point is back to this definition, the numbers of trees in the inventory list that would satisfy these
criteria are on the boundary, forming a dense row of low plants. We never, except for the hedge, we never planted trees in a
row. Whenever we plant trees, we always stagger it. We never plant in a row. Obviously, those plants are named on the list
Al and A2, they are not on the boundary, and they don't form a dense row, and some of the trees may not be classified as
low plants. The City's own people inspected the property, and they said the conclusion that they are not on the boundary,
they are not in a dense row and some may not be classified as low trees, and the conclusion is obvious. This is not a hedge,
and that is the only issue as far as we are concerned. And I also prepared some view foils showing just a compilation of ...
This is the point I would like to make.
Mr. Largent: I have it. Very good. Is there anything else you would like to add?
Mr. Kurosaka: To me, this is an open and shut case. The code is defined clearly. That is not the finding. According to the
code they are not hedges so they are not subject to a height restriction. With regard to the Pyramidalis, yes, some of them
might exceed six feet, and if you decide, if its your decision to trim the six feet down to six feet, of course, we are going to do
so. That is all we want.
Mr. Largent: Thank you very much. I have no further questions of the neighbor. You may come up and make any rebuttal
statements you like.
Mr. Dadvaragah: Anthony Dadvaragah. On the record, Mr. Kurosaka agreed with our position. Basically, he did the
analogy and he basically described the meaning of a fence and then he said defense. He said something like a refuge.
Mr. Largent: That is an old dictionary definition that he was referring to.
Mr. Dadvaragah: That is right. I understand, but he basically referred to the fence to basically to give the meaning of a
hedge. He defined the meaning of the hedge and a fence for us, and in his paperwork that he submitted to us, and you have a
copy of it, he does refer to why he did this planting. The description of the meaning of the hedge that he did and also when
you look at his writing, it says that he was worried about the weeds coming over, so he built a fence. When you put two and
two together, that kind of analogy becomes quite evident. He didn't want to have anything to do with us. He said that. So he
went ahead and built a fence.
Mr. Largent: Okay, those issues are not before me.
Mr. Dadvaragah: I understand, but I just wanted to... He basically made my case for me.
Mr. Largent: Okay. Come on up. Please state your name again.
Mr. Kurosaka: My name is Kurosaka. And I think it is obvious the comments I presented the meaning of the fence is just
straight quotation from the Webster Dictionary. I just presented the dictionary definition of a fence, and it has nothing to do
with what Mr. Dadvaragah has said. There are three reasons that these trees are planted. One for landscaping, second one is
to act as a deterrent to the weeds that are encroaching from Mr. Dadvaragah's property to us and the third as a haven to birds
and these are the three reasons that we have stated in our document. Do you have any additional questions?
Mr. Largent: I have no further questions, thank you. Please come forward.
Mr. Dadvaragah: Anthony Dadvaragah. Are these basically recorded.
Verbatim Hearing Examiner Transcripts
File Nos. AP-02-7 and ZE-01-109
April 18, 2002 Page 6
Mr. Largent: Yes, it is.
Mr. Dadvaragah: And we can get the transcript of it.
Mr. Largent: Yes, you can.
Mr. Dadvaragah: Because I would like to have our attorney subpoena the material.
Mr. Largent: Thank you very much. I believe I have enough information before me. I appreciate both of your testimonies
today. I would like to indicate that the hearing on this particular case was closed at 11: 34 a.m. Thank you both very much.
Mr. Dadvaragah: But it is open until 10 tomorrow.
Mr. Largent: Excuse me. Except for the purpose of 10:00 a.m. tomorrow that the appellant can submit a letter. That is it.
Thank you both very much.
Verbatim Hearing Examiner Transcripts
File Nos. AP-02-7 and ZE-01-109
April 18, 2002 Page 7
I TESTIFY THAT THESE VERBATIM TRANSCRIPTS ARE COMPLETE AND ACCURATE TO THE BEST OF MY
ABILITY TO TRANSCRIBE THE PROCEEDINGS.
Karin Noyes, Transcriber
Date
Verbatim Hearing Examiner Transcripts
File Nos. AP-02-7 and ZE-01-109
April 18, 2002 Page 8