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Hathaway Tree Cutting NOV - Notice of Hearing.pdfw 'n I'I'I' OF EDMONDS ®121 5th AVENUE NORTH ®EDMONDS, WA 98020 O22sWEB: Nwv6dun4niPHONE: DEVELOPMENT SERVICES DEPARTMENT: BUILDING February 22, 2010 Michael Hathaway 1526 491h St. NE Tacoma, WA 98422 Dear Mr. Hathaway, The purpose of this letter is to notify you that the hearing on the administrative appeal you filed on January 25, 2010 has been scheduled for March 18, 2010 at 3:00 p.m. in the City Council Chambers of Edmonds City Hall. The appeal has been designated as APL -2010-0001 and will be heard by the City of Edmonds Hearing Examiner. This letter also serves to inform you of the City's intent to initiate formal code enforcement proceedings against you if the Hearing Examiner ultimately denies your appeal. You informed the City via email on January 25, 2010 that you were responsible for removing four evergreen trees located within a critical area on the Strand property at 17035 '76th Avenue West on Sunday, January 24, 2010 (enclosed). The removal was confirmed in the photographs below, which were taken during a site visit to the Strand property on Monday, January 25: As you are aware, the four evergreens (together with a stand of still -intact deciduous trees on the other side of the site) were the subject of an administrative conditional use permit for tree cutting (CU -2008-40) previously issued on February 10, 2009. The CUP allowed tree cutting work on the Strand property provided that several conditions were satisfied prior to any work being performed at the site. For nearly a year after the CUP was issued, you, Mr. Kirschner and Mr. DenAdel attempted to demonstrate that tree removal under the permit should be allowed to proceed. However, the City informed you by letter dated January 10, 2010 that removal of the evergreens from the critical area was not yet authorized because the permit conditions remained unsatisfied. You proceeded to remove the trees notwithstanding the City's letter. On Monday, January 25, 2010, the day after you removed the four evergreens on the Strand parcel, you submitted an appeal of the City's January 10, 2010 letter, asserting your belief that the permit conditions for CU -2008-40 had been satisfied and that the removal of the evergreens was, in fact, allowed. As noted above, your appeal will be heard by the Hearing Examiner at an open -record public hearing on March 18, 2010. Unless the Hearing Examiner grants your appeal and it is determined that the applicable CUP permit conditions have been satisfied, the City intends to initiate enforcement proceedings against you on the grounds that the trees at issue were removed in violation of the City of Edmonds Community Development Code (ECDC) Chapter 18.45 — Land Clearing and Tree Cutting Code and Chapter 23.40 — Environmentally Critical Areas. Penalties for these violations are set forth at ECDC 23.40.240(E) and ECDC 18.45.070: 23.40.240 Unauthorized critical area alterations and enforcement. E. Penalties. Any person, party, firm, corporation, or other legal entity convicted of violating any of the provisions of this title shall be guilty of a misdemeanor and subject to penalties set forth in ECDC 18.45.070. Each day or portion of a day during which a violation of this title is committed or continued shall constitute a separate offense. Any development carried out contrary to the provisions of this title shall constitute a public nuisance and may be enjoined as provided by the statutes of the state of Washington. The city of Edmonds may levy civil penalties against any person, party, firm, corporation, or other legal entity for violation of any of the provisions of this title. The civil penalty shall be assessed at a maximum rate of $3,000 dollars per day per violation and/or $1,500 per tree for unauthorized clearing within a critical area or critical area buffer pursuant to the provisions of ECDC 18.45.070. 18.45.070 Violations and penalties. A. A violation of any of the provisions of this chapter shall constitute a misdemeanor. It shall be a separate offense for each and every day or portion thereof during which any violation of any of the provisions of this chapter is committed. B. Any person found violating the provisions of this chapter may be fined by the planning division manager in an amount not to exceed $1,000 per day and/or $500.00 per tree. Any fine imposed by the planning division manager is appealable to the hearing examiner. This civil fine shall be in addition to any criminal, civil, or injunctive remedy available to the city. C. The fines established in subsection (B) of this section shall be tripled to $3,000 per day and/or $1,500 per tree for clearing which occurs within any critical area or critical area buffer, in any earth subsidence or landslide hazard area, in any native growth protection easement or in any area which is designated for transfer or dedication to public use upon final approval of a subdivision, planned residential development or other development permit. Because you removed the trees from an identified steep slope critical area on the Strand's parcel, the City intends to impose fines for this violation in the total amount of $6,000.00, or $1,500 per tree. The amount of this fine is supported by the plain text of the ECDC provisions cited above, the fact that the tree removal occurred on another landowner's property without the owner's consent, and the fact that this action was taken in open disregard of the City's January 10, 2010 letter. Please note further that violations of Chapter 18.45 ECDC and Chapter 23.40 ECDC constitute criminal misdemeanors. Without prejudice to the City's authority to impose monetary penalties, this matter may be referred to the City's prosecuting attorney with a request to file criminal misdemeanor charges. Mitigation for the loss of trees in critical areas is also required by code. This point was addressed in the staff decision for CU -2008-0040, where Condition #3 states: If any trees are to be removed, an updated tree replacement plan, planting schedule, and cost estimate must be created by the project arborist (per ECDC 23.40.220.C.7.b.iv) that considers vegetation appropriate to the steep slope and drainage of the area as well as the view easement. Specific species, sizes and locations for replanting must be indicated. A maintenance plan for the new vegetation must also be developed that describes ongoing upkeep of the plantings. Both documents must be submitted to the City for review and approval prior to any removal. To mitigate for the loss of the evergreen trees, you will be required to work with the Strands in order to accomplish the required mitigation measures and to submit the documentation required above. With respect to the stand of deciduous trees located at the northeast corner of the Strand's parcel, appropriate maintenance may be performed on those trees as was described in the associated arborist reports dated December 17, 2007, and August 25, 2008. Neither report recommends topping of the trees, but rather to reduce their height through selective pruning. It is your responsibility to obtain appropriate permission from the Strands to allow entrance to their property for the purpose of performing this work. I am issuing this notice as the Community Development Director's designee. If you have any questions, please contact me by phone at 425-771-0220 or by email at iri(l�u�i ,.l,(,IiiL,,,io�i(�i)...:i. c (l qi(,.ru:.(.� , v I.uis. Sincerely, e ec. Mike Clugston, AICP Planner Enclosure Cc: Gregory and Kathleen Strand 1703576 th Avenue West Edmonds, WA 98026 Richard Kirschner S&K Joint Venture 7503 Braemar Drive Edmonds, WA 98026 Ron DenAdel 1023 C Ave. S Edmonds, WA 98020 Donald E. Marcy Carincross & Hempelmann, P.S. 524 Second Avenue, Suite 500 Seattle, WA 98104