City Request for Reconsideration APL20120005.pdfC11
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121 5th Avenue North, Edmonds WA 98020
Phone: 425.771.0220 ® Fax: 425.771.0221 Web ��� a cCz�ttr��cwna�>v
DEVELOPMENT SERVICES DEPARTMENT ® PLANNING DIVISION
September 21, 2012
Phil Olbrechts
City of Edmonds Hearing Examiner
Subject: APL20120005 — Request for Reconsideration
Dear Mr. Olbrechts:
Edmonds community Development Code (ECDC) 20.06.010 allows parties of record to
request reconsideration. Reconsideration is limited to:
1. Error(s) of procedure;
2. Error(s) of law or fact;
3. Error(s) of judgment; and/or
4. The discovery of new evidence that was not known and could not, in the exercise
of reasonable diligence, have been discovered.
Please consider this a request for reconsideration of your decision under case number
APL20120005 (please note that the decision contained a typo on the title page,
incorrectly listing the decision as "APL20110005").
The City requests the Examiner to reconsider and reverse his decision to eliminate the
replanting pian. As the Examiner found, the tree cutting violation occurred in a critical
area/ landslide hazard area. Even though two arborists found that replanting was not
necessary, the record reflects that the arborists were not geotechnical engineers and
therefore did not have the expertise to testify as to the stability of the steep slope in
question. Appellants arborist specifically indicated he lacked the expertise to testify to
the stability of the slope. Any conclusions reached by the arborists, therefore, cannot be
used to determine whether replanting was necessary to stabilize the critical area that was
altered by the Appellants. Only a geotechnical engineer can make this determination, not
an arborist.
The Examiner's decision to waive the replanting plan in effect cuts short the analysis
required by the critical areas code and regulations. The decision to waive the replanting
plan prevents the proper analysis of whether the steep slope is stable after the illegal
cutting by the Appellants and, consequently, whether replanting is needed to stabilize the
slope.
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It is important to note that the city's requirement that Appellant's submit a replanting
plan, triggered the application of other code requirements since the replanting was to take
place in a critical area. The city's requirement that Appellant's submit a replanting plan,
necessarily incorporates any additional code requirements that flow from the submission
of a replanting plan, including a geotechnical analysis of the stability of the slope. The
elimination of the replanting plan requirement only serves to ensure that a steep slope
analysis will not occur and that the stability of the slope will be left unaddressed. This is
surely not how the code, nor the NOV, was intended to be interpreted.
The specific sections of the decision we are asking the Examiner to reconsider are:
Summary: Although a replanting plan is certainly desirable from
the standpoint of the mitigating damage to the Launceford's, there
is simply no compelling evidence to refute the site specific
conclusions made by the Appellants' arborist that planting is
unnecessary and not feasible due to space limitations. It is
determinative that the City's own arborist recommended against
replanting as well. (Summary, p. 1)
Conclusion of Law #6: As determined in Finding of Fact No. 12, it
is not possible or necessary to restore the property to its prior state
to restore biological or habitat values and the City's own arborist
has even recommended against restoration because it could cause
erosion. The restoration requirements of the NOV will be
removed. (Page 27 of Hearing Examiner's decision).
Decision Item #2: No planting plan or restoration work is required
beyond clearing debris. (Page 27 of Hearing Examiner's decision).
At the hearing, the city provided testimony that the trees were cut in a critical are.
Further, the city provided testimony that any replanting in the critical area required the
analysis of the stability of the steep slope by a geotechnical engineer and that the
testimony of the two arborists as to replanting was inconclusive and not determinative of
the stability of the steep slope. Therefore, the fact that the arborists concluded that
replanting was not necessary, did not satisfy the corrective action mandated by the NOV
and the code. In fact, the city testified that further analysis of the steep slope was
necessary to make a determination as to whether a replanting plan was needed.
Specifically, in testimony provided during the hearing, Kernen Lien of the Edmonds
Planning Division noted that:
Mr. Lien stated that alterations in an area like this site require a
critical areas report, as detailed in ECDC 23.40.220. ECDC
23.40.320 defines alteration as including pruning, limbing, or
topping. The activity in this site was not allowed according to
ECDC 23.40.220. (Decision p. 4, lines 22-24)
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As noted by Mr. Lien, the City based its fines on available arborist reports (see p. 5, line
21), but the ultimate method of addressing unauthorized activities in critical areas is
controlled by the city's critical areas regulations. Specifically, assessing damage and a
remediation plan will require a critical areas report by a qualified professional. The
decision in fact does conclude that the work did occur in a landslide hazard area:
Given the staff's site specific findings, Mrs. Launceford's own
engineering work, the photographs of the site and the absence of
any significant contrary evidence, it is determined that more likely
than not the three trees subject to the NOV were located in a
landslide hazard area (or its buffer as determined below) and also
that there is substantial evidence given the entire record to support
this determination. (Decision p. 18, lines 16-19, Emphasis ours.)
If the decision of the Examiner stands, it will be as if the critical areas regulations do not
exist, even though the decision also finds that the illegal action took place within a
critical area. In particular, we point to a specific passage in the decision that states:
The qualifications of Mr. Greenforest, an arborist, to evaluate slope
stability are dubious. However, the NOV specifically required an
arborist to prepare the replanting plan. The NOV made no mention
of a slope stability analysis or that any evaluation be made by a
geotechnical engineer or other person qualified to assess slope
stability. Further, the City's own arborist, in Ex. 18, recommended
against replanting because this activity could actually increase
erosion.
The Appeal to the subject NOV as to the replanting plan is limited
to determining whether a replanting plan by an arborist (as
specifically required in the NOV) is necessary to mitigate the
damage created by the Appellants' tree cutting. Since the NOV
does not impose any requirement for assessing slope stability or
require the expertise of someone qualified to assess slope stability,
a qualified analysis of slope stability is beyond the scope of this
appeal. Further, to the extent that the NOV impliedly required an
arborist to assess slope stability, the conclusions of both the
Appellants' and City's arborist are both that replanting is not
necessary or even desirable for slope stability. (Decision p. 20-21,
lines 23 - 6)
The City concurs that arborists are not qualified consultants for assessing impacts or
remedial actions related to geologically hazardous critical areas. Therefore, relying on
arborists' statements is inadequate to reach a determination that no critical areas damage
has occurred, or that no assessment by a qualified professional not an arborist — is
necessary. The critical areas regulations are code requirements that apply in any permit or
enforcement action, regardless of whether they are specifically called out in the order or
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not. These requirements are necessarily incorporated in the submission and approval of a
replanting plan in a critical area.
Perhaps an analogy will help clarify our concerns. Assume a violation was found in
which a new building (say a garage) was built without a permit. An enforcement order
would require that a building permit be obtained. The order would not specify all of the
regulations that would apply in obtaining that permit: many different codes and
regulations could apply, including such things as zoning height or setback standards, fire
codes, access requirements — as well as critical areas regulations. All of these other code
requirements would be applied during the remediation action – i.e. obtaining a building
permit.
The same principle was being applied here. The replanting plan indicated in the Notice of
Violation is the mechanism intended to bring any other applicable codes and
requirements to bear on the situation, including the city's critical areas regulations.
Arborists are not qualified landslide hazard area professionals; restoration envisioned in
the desired replanting plan could only be developed in consultation with a qualified
critical areas professional, such as a geotech. By removing the replanting plan
requirement, the decision reached by the Examiner effectively provides no way of
applying the critical areas code requirements to the situation, which contradicts the
overarching applicability of these regulations in any permitting or enforcement situation.
It also would contradict the Examiner's own findings that although the violation did in
fact take place in a critical area thereby warranting/triggering the application of critical
areas code requirements to restore the site, such restoration is not permitted.
ECDC 18.45.075, which contemplates that a person responsible for a civil code violation
assumes liability for all damages arising out of their unlawful actions, was referenced in
the NOV. The Examiner includes discussion of ECDC 18.45.075(A) in the Conclusions
of Law portion of his decision. Decision, p.27, lines 18-22. As noted in his decision, this
code section provides:
ECDC 18.45.075(A): A. Any person who violates any provision of
this chapter or of a permit issued pursuant hereto shall be liable
for all damages to public or private property arising from such
violation, including the cost of restoring the affected area to its
original condition prior to such violation and the payment of any
levied fine.
The code language is notably broad. It does not limit the damages imposed upon a
violator. Because this code section was specifically referenced in the NOV, and because
this code section is intentionally broad requiring a responsible party to assume all
damages resulting from a code violation, a replanting plan requiring any and all critical
areas analysis including a geotechnical engineering analysis should be required of the
Appellants. Thus, although the requirement of a geotechnical analysis was not
specifically called out in the NOV, a replanting plan that triggers this requirement, and
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any other critical areas code requirements, was contemplated under this very broad,° all
encompassing, language of the code.
In sum, the City of Edmonds asks that the Examiner reverse his decision to eliminate the
replanting plan. A replanting plan, including all necessary further analysis/requirements
contemplated by the critical areas code, should be required of the Appellants
I, Kernen Lien, I believe the contents of the request to be true.
I,ernen Lien
Associate Planner
City of Edmonds
Cc: Timothy Farley
Carol and Richard Megenity
Karen Launceford
Donna Breske
Ryan Megenity
Chrystal Lanning
Susan Emmons
Karen Dwyer
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