2023-06-08 Hearing Examiner Minutes`oc. I,
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THE CITY OF EDMONDS
121 51h Avenue North, Edmonds WA 98020
Phone: 425.771.0220 • Fax: 425.771.0221 • Web: www.edmondswa
DEVELOPMENT SERVICES DEPARTMENT • PLANNING DIVISION
BEFORE THE HEARING EXAMINER FOR THE CITY OF EDMONDS
RE: Elliot and Sonya Shaw )
Notice of Violation Appeal )
COD2022-0126 )
FINDING OF FACT, CONCLUSIONS OF
LAW AND FINAL DECISION
Summary
Elliot and Sonya Shaw appeal a Notice of Violation ("NOV") issued as a result of the unauthorized
trimming of four trees in City right of way. Mr. Shaw admitted at hearing that he personally topped
the trees without City authorization. Mr. Shaw contests the NOV corrective action requiring removal
and replacement of the trees. The NOV, its $100 fine and its corrective action are sustained. The
trees must be replaced as required by the NOV. The May 25, 2023 deadline imposed by the NOV is
extended to 4:00 pm, August 4, 2023.
Resolution of the appeal narrows down to assessing conflicting arborist opinions on whether tree
replacement is necessary. Doug Hermann, Mr. Shaw's arborist, wrote in his report that "[w/ith the
amount of response growth I see no additional risk to structural integrity than if the crown was
reduced at a later time when it reaches the wires." The City's arborist, Debra Dill, testified that the
manner in which Mr. Shaw had topped the trees was contrary to qualified arborist practices and
threatened its structural integrity. Because of the way that the trees had been cut, Ms. Dill was of the
opinion that the trees would not grow to be structurally sound. There is no question that, as
established by Mr. Shaw, the trees he topped have continued to grow at a substantial rate since he
topped them in late 2020. However, according to Ms. Dill this substantial growth is the result of the
tree trying to regain loss of photosynthesis capability and is based upon branch growth insecurely
fastened to the trees.
APPEAL-1
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Ultimately, the determinative balancing factor in weighting the conflicting arborist opinions is that
Mr. Herrman's report doesn't contest the fact that Mr. Shaw's tree topping technique was contrary to
professional arborist practices to assure stable tree growth. Ms. Dill is a certified ISA tree arborist
who clearly has the experience and training to know how trees should be safely topped. Her job as
the City's arborist is to assure that the street and park trees of Edmonds grow in a healthy and
aesthetic manner. She has no reason to consider replacement necessary except to assure that the
street trees are healthy and aesthetic. In this regard, Ms. Dill's testimony on the inadequacy of Mr.
Shaw's tree cutting technique is taken as a verity. Mr. Herrman's report at no point asserts that Mr.
Shaw correctly trimmed the trees. Mr. Herrman just opines that the trees are as healthy as they would
be if topped at a later time. Since Ms. Dill's opinion is ultimately based upon professional arborist
cutting practices and Mr. Herrman's was not, Ms. Dill's is found to be the most persuasive. More
likely than not, based upon substantial evidence in the record, the trees at issue are not structurally
sound because of the manner in which they were topped. For this reason they must be removed as
determined by Ms. Dill.
Exhibits
Exhibits A-D of the City's exhibit list presented at the June 22, 2023 hearing were admitted into
the record during the hearing. The five photographs emailed by Mr. Shaw to Ms. McConnel on
June 8, 2023 were also admitted into the record during the June 22, 2023 hearing.
Findings of Fact
Procedural:
1. AAppellant. The Appellants are Elliot and Sonya Shaw, 5326 156th St SE, Bothell, WA
98012, shawelevator@comcast.net.
2. Hearing. The Examiner held a hearing on the appeals at 3:00 pm on June 8, 2023 at Edmonds
City Hall, 121 5th Avenue N, 3rd Floor, Brackett Room. The hearing was continued to June 23,
2023 at the request of Mr. Shaw to give him further opportunity to hire an arborist to support his
appeal.
Substantive:
3. Description of Appeal. Elliot and Sonya Shaw appeal a Notice of Violation ("NOV") issued
as a result of the unauthorized trimming of four trees in City right of way, issued on May 2, 2023.
See City Ex. A14. The NOV is based upon failure to complete corrective action required by a
prior Notice of Violation. The corrective action was to remove and replace the trees he illegally
topped. Mr. Shaw contests the NOV corrective action requiring removal and replacement of the
trees.
4. Tree Cutting. It is uncontested that Mr. Shaw severely topped four street trees in City right
of way adjacent to 155 3rd Ave S in September 2020 without a City permit. Mr. Shaw admitted he
APPEAL - 2
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topped the trees during the appeal hearing.
5. Trees Need to be Replaced. For the reasons identified in the Summary section of this
Decision, to be construed as findings of fact, the corrective action required by the City is found to
be necessary to assure structurally sound trees. Both Ms. Dill and Mr. Herrmann are certified
arborists. The record supplies no reason to question the credentials of either arborist. As noted in
the Summary however, Ms. Dill provided a detailed explanation of why the topping conducted by
Mr. Shaw did not conform to professional arborist practices. As she testified, topping a tree results
in structurally unsound branches. A tree that is topped responds to the loss of leaves by
stimulating sprouts below the topping that are not as securely fastened to the tree as branches that
grow in normal course. Ms. Dill testified that crown reduction, which involves removing branches
from the crown, is a more effective and safer way of reducing tree height.
There is no basis in the record to question Ms. Dill's opinion on how to control the height of a tree.
Ms. Dill's opinion was based upon professional arborist practices. Mr. Herrman did not express
any disagreement over Ms. Dill's position on this issue. At no point did Mr. Hermann ever assert
that Mr. Shaw had correctly cut the trees at issue. As stated in the Summary, given that Ms. Dill's
opinion is linked to professionally recognized proper tree trimming technique, it is the more
compelling of the two opinions.
Conclusions of Law
Procedural:
l . Authority of Hearing Examiner. ECDC 20.110.040(C) and (D) require the Hearings
Examiner to conduct a hearing and issue a final decision, appealable to superior court, on appeals of
NOVs.
2. Burden of Proof. Chapter 20.110 ECDC does not identify the burden of proof that
applies to appeals of NOVs. The burden of proof that typically applies to a code enforcement action
is the civil "preponderance of evidence" standard, where courts determine if "more likely than not"
an asserted fact is true, see, e.g., In re Crace, 174 Wn.2d 835, 840 (2012). However, as
acknowledged in ECDC 20.110.040(D), land use code enforcement actions are governed by Chapter
36.70C RCW. RCW 36.70C.130(1)( c) does not expressly adopt the "preponderance of evidence"
standard for judicial review of land use decisions, but rather requires a challenging party to establish
that "the land use decision is not supported by evidence that is substantial when viewed in light of
the whole record before the court" . The factual determinations made in this decision are based both
upon the preponderance of evidence standard and the substantial evidence standard.
3. Trees Cut in Violation of ECDC 18.85.020. ECDC 18.85.020 prohibits the trimming
or removal of trees from City right of way without a permit from the Director of Public Works. As
determined in Finding of Fact No. 4, the Shaws do not contest that they trimmed four trees in City
right of way without such a permit in September, 2020. The Shaws violated ECDC 18.85.020 in
September, 2020.
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4. Corrective Action Sustained. The corrective action specified in the NOV is sustained.
The ECDC does not contain any explicit standards as to what may be required for corrective action,
simply providing at ECDC 20.110.040(2)(e) that the NOV include "[a] statement of action required
to correct the violation." From this text, the obvious conclusion is that corrective action is what is
necessary to remedy the impacts of a violation. From a due process standpoint, such corrective
action must be reasonable.
In assessing the impacts of the violation, it is useful to inquire into the objectives of street tree
standards. Those are well summarized in the City's comprehensive plan, which at p. 128 provides as
follows:
Streetscape and Street Trees Goal A. Enhance the public realm through streetscape
and street tree choices.
A.1. Encourage improvements to streets that link parks, open spaces, recreation
centers, employment centers, and transportation nodes.
A.2. Balance the need for short-term parking for shoppers and loading for businesses
with the need for pedestrian -oriented design, especially downtown.
A.3. As opportunities arise, provide for sustainable streetscapes that can enhance the
natural environment, help ensure safety, and complement the characteristics of the
neighborhood or district in which they are located.
A. 4. Promote the planting and maintenence of landscaping and street trees to enhance
City gateways and connections; strengthen the character and identify of downtown
and other retail/commercial centers; and improve the pedestrian environment.
A.S. Seek to maintain and retain existing healthy trees in the rights -of -way without
sacrificing public safety or public infrastructure or allowing a hazard or nuisance.
A.6. Selecting and managing trees for planting in the public rights -of -way should be
based on a variety of factors, such as aesthetics, view corridors, safety, maintenence,
size, spacing, longevity, location, utilities, and adaptability to the regional
environment.
As outlined in the objectives above, street trees are designed to serve significant aesthetic and
environmental objectives and a priority is to ensure they are safe, i.e. structurally sound. As
established by Ms. Dill, the manner in which the trees were topped by Mr. Shaw jeopardizes their
structural integrity and will result in unbalanced and hence unaesthetic tree growth. Since there is a
material risk of structural problems with the trees, a reasonable corrective action is to have them
replaced.
DECISION
APPEAL - 4
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The Notice of Violation, City Ex. A, att. 14, is sustained, including its $100 fine and corrective
action. The May 25, 2023 deadline imposed by the NOV is extended to 4:00 pm, August 4,
2023.
Dated this 6th day of July, 2023.
Plu'r A. Ulbrechts
City of Edmonds Hearing Examiner
Appeal Right and Valuation Notices
This decision is final and only subject to appeal to superior court as governed by Chapter 36.70C
RCW. Appeal deadlines are short (21 days from issuance of the decision) and the courts strictly
apply the procedural requirements for filing an appeal.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
APPEAL - 5