Staff Report APL-2010-0001 final.pdfPLANNING DITISIO11
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Project:
File Number:
Date of Report:
Staff.
Appeal of a staff decision regarding compliance with the conditions of a
conditional use permit for tree cutting (PLN -2008-0040).
APL -2010-0001
March 10, 2010
Mike Clugston, AICP
Planner
Stephen Clifton, AICD
Community Services Director
Public Hearing: March 18, 2010 at 3:00 P.M.
City of Edmonds: Court Chambers
250 5th Avenue North, Edmonds WA 98020
I. SUMMARY OF APPEAL
Michael Hathaway has appealed a City of Edmonds staff decision regarding compliance
with the conditions of an administrative conditional use permit (CUP) for tree cutting
(PLN -2008-0040). The appellant, a party of record to the CUP, seeks reversal of the
January 11, 2010 staff decision and approval of the request to remove trees pursuant to
PLN -2008-0040.
After carefully reviewing this matter against the subject permit, and with reference to
applicable code provisions, staff recommends DENIAL of the Mr. Hathaway's appeal.
The following is staff's analysis of the appeal and the applicable requirements that govern
this matter.
A. Location: 17035 76th Avenue W, owned by Gregory and Kathleen Strand. [Exhibit 2]
B. : Michael Hathaway. [Exhibit 3]
Co Zonin : Single Family Residential (RS -12).
D. : Review and determination by the Hearing Examiner regarding whether the
staff decision of January 11, 2010, is valid relative to the approved conditional use
permit, PLN -2008-0040. [Exhibit 4]
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E. Review Process: The hearing examiner holds an open -record public hearing on the
appeal pursuant to Chapter 20.06 ECDC. The hearing examiner must base the appeal
decision upon the same ECDC criteria and findings as the original staff decision. The
hearing examiner's decision is final and is not administratively appealable to the City
Council.
F. Procedural Issues:
a) Compliance with ECDC Chapter 20.03 (Public Notice)
b) Compliance with ECDC Chapter 20.06 (Open Record Public Hearings)
A. History of PLN -2008-0040.
On February 10, 2009, the City of Edmonds granted conditional approval for an
administrative conditional use permit for tree cutting for Gregory and Kathleen Strand at
their 17035 76th Avenue West address. [Exhibit 5] The potentially affected trees
included three large Douglas firs, a Western red cedar, and multiple black cottonwood
and red alder in a small patch at the northeastern comer of the parcel. [Exhibit 5,
Attachment 8]
The permit decision states [Exhibit 5, Page 5]:
Based on statements of Fact, Conclusions, and Attachments in this report, the application for
a Conditional Use Permit for tree cutting is APPROVED with the following conditions:
The applicant must submit a management plan developed by the arborist that discusses
appropriate management (including removal and trimming) of the three existing
Douglas firs, the Western red cedar, and the black cottonwood and red alder trees. The
plan must take into consideration the requirements of ECDC 18.45 and 23.40. If the
management plan is also intended to address viewshed encroachment issues, a cross-
sectional view height survey that establishes the height of the viewshed over the former
McClintick Parcel I and which shows the locations and heights of the trees will be
required to assist in that determination. The management plan shall be reviewed and
"roved by the Citypriorto any work being done at the site. (Emphasis added.)
2. If the arborist determines that removal of one or more of the trees is the best
management option, the tree(s) may be removed so long as the work is performed in
accordance with the arborist's report of December 17, 2007 (Section 6.0) or similar, if
subsequently updated in the management plan discussed in Condition 1. If any of the
trees are to remain, they shall not be topped but rather trimmed and maintained as
described in the management plan.
3. 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
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describes ongoing upkeep of the plantings. Both documents must be submitted to the
Citi for review and approval prior to any removal. (Emphasis added.)
4. The following erosion control practices shall be implemented:
a. All planting must be done by hand using hand shovels.
b. No mechanical equipment shall be used in the rear yard.
c. Excess soil must be removed during replanting shall be removed from the site.
d. Three to four inches of wood chip mulch must be placed over the exposed soils below
each plant.
5. All cuttings must be removed from the site except that any wood chips created from any
trees removed from the subject parcel may be spread as mulch to enhance erosion
control as discussed in (4d) above.
6. Two years from the date of final installation of the new vegetation, the applicant (or his
designee) must contact the Planning Division to schedule a final site inspection to ensure
compliance with the approved replacement and maintenance plans. If the inspection
determines the landscaping to be in compliance with the approved replacement plan, the
maintenance bond will be released
7. All future land clearing and tree cutting work undertaken by those burdened by the
McClintick viewshed easement must be done in accordance with all applicable City
codes.
Because approval of PLN -2008-0040 is subject to a number of conditions, no tree cutting
or removal is allowed on the Strand property unless all of the conditions of approval are
met. Over the better part of the past year, the applicant's representatives and the
appellant submitted various documentation to the City in order to determine whether tree
cutting or removal could move forward on the Strand's parcel. The timeline and
documentation includes:
1. On May 14, 2009, Ron DenAdelt submitted a photographic view height survey.
[Exhibit 6] This document was submitted to satisfy the second part of Condition
#1 of PLN -2008-0040. The photographs on Pages 9-11 indicate the view
easement level as interpreted by Mr. DenAdel and the potential impact of the
easement burden on the Strand's trees.
2. On September 24, 2009, Richard Kirschner submitted a two-page management
plan from Washington Tree Experts dated August 25, 2008. [Exhibit 7] This plan
was intended to address the first part of Condition #1.
3. The City responded to Mr. Kirschner on October 12, 2009, noting that the
information submitted was insufficient to determine whether trees could be
removed. [Exhibit 8] The plan submitted on September 24 briefly discussed how
the trees could be managed relative to establishing a view but there was no
i Mr. DenAdel and Mr. Richard Kirschner developed the Strand's parcel as part of a three -lot short plat in 2004.
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discussion about how the plan met the criteria of both ECDC 18.45 and 23.40,
specifically whether the trees were hazardous according to ECDC 23.40.220.C.7.
4. On December 4, 2009, Mr. Kirschner submitted an updated management plan
(undated) from Washington Tree Experts and tree assessment forms generated
November 16, 2009, for the Douglas firs and Western red cedar. [Exhibit 9] The
tree assessment forms indicate that the Strand's evergreens were not hazardous.
5. Based on the information received, staff issued a letter Decision on December 10,
2009, stating that the permit conditions had not been satisfied and that tree
removal could not occur at the Strand's property. [Exhibit 10] The letter Decision
reviews the status of the project and notes that tree assessment forms submitted on
December 4 confirmed the original arborist report associated with the CUP.
[Exhibit 5, Attachment 7] The letter Decision goes on to state that while removal
of the trees would not be allowed since they were not hazardous and located in a
critical area, trimming and maintenance of the trees was still viable as long as it
was performed in accordance with the management practices described in the
original arborist's report. The December 10 letter Decision was not appealed.
6. On January 7, 2010, the appellant provided the City a copy of a viewshed height
survey from Crones & Associates Land Surveying [Exhibit 11 ] in another attempt
to satisfy the second part of Condition 41 of PLN -2008-0040. Of note, the
photographic height survey performed by Mr. DenAdel [Exhibit 6] and that from
Crones & Associates, vary wildly with respect to the burden of the McClintick
view easement. Also submitted was an unsigned draft letter purportedly from the
Strands describing the evergreen trees as imminent risks to their private property.
[Exhibit 12]
7. The City responded to this new information in its January 11, 2010, letter
Decision, by reiterating its unappealed letter Decision from December 10, 2009,
and concluding that the subject trees had been determined to be healthy and not
hazardous by two different arborists and that the trees were therefore not
candidates for removal from a critical area. By definition, the trees were therefore
not imminent risks to the Strand's private property. [Exhibit 4] The letter
Decision recognized that the view easement restrictions, as defined by Crones &
Associates, would likely not be able to be met through trimming and maintenance
but the trees had to remain according to the critical areas code.
8. On January 25, 2010, Mr. Hathaway informed the City that he had caused the
Strand's four evergreen trees to be removed the previous day. [Exhibit 13] This
was confirmed by the City later on January 25 and formed the basis for a Notice
of Intent to Impose Civil Penalties issued by the City on February 22, 2010.
t
[Exhibit 14] Later on January 25', Mr. Hathaway filed the subject appeal of the
City's January 11, 2010 letter Decision regarding the fulfillment of the conditions
of the underlying permit, PLN -2008-0040.
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9. On February 8, 2010, Mr. Kirschner submitted a request for extension of permit
PLN -2008-0040. [Exhibit 15] The City granted approval of this extension on
February 22, 2010, in accordance with ECDC 18.45.045.C. [Exhibit 16]
10. The Strands have filed a civil lawsuit against Mr. Hathaway in Snohomish County
Superior Court. [Exhibit 17] The City is not currently a party to this litigation.
Michael Hathaway, a party of record to PLN -2008-0040, initiated the present appeal
proceeding by his letter dated January 25, 2010. This letter was submitted within 14 days
of the January 11, 2010, staff decision being appealed and is thus timely. The appeal
meets the requirements of ECDC 20.07.004.
Pursuant to ECDC 20.03, the appellant provided public notice of the appeal by mailings
to the property owner and owners within 300 feet of the subject property, posting of the
site, and by publication in The Everett Herald newspaper. [Exhibit 19]
To date, no public comments have been received regarding the subject appeal.
The following are staff's responses to the allegations contained in the appellant's January
25, 2010, letter of appeal. Each statement made by the appellant in "Statement of
Grounds for Appeal and Supporting Facts" will be analyzed. [Exhibit 3, Page 2, Line 8]
1. Appellant's contention: 4A. The Decision was issued contrary to Conditional Use
Permit for tree cutting number CU -08-40 issued February 10, 2009 ("CUP').
Staff response: The January 11, 2010 letter Decision was fully consistent with the CUP
of February 10, 2009, and the City's Decision of December 10, 2009, which was not
appealed.
The approval of the CUP identified seven conditions that were to be met as part of the
permit. Condition #1 states:
The applicant must submit a management plan developed by the arborist that discusses
appropriate management (including removal and trimming) of the three existing
Douglas firs, the Western red cedar, and the black cottonwood and red alder trees. The
plan must take into consideration the requirements of ECDC 18.45 and 23.40. If the
management plan is also intended to address viewshed encroachment issues, a cross-
sectional view height survey that establishes the height of the viewshed over the former
McClintick Parcel I and which shows the locations and heights of the trees will he
required to assist in that determination. The management plan shall be reviewed and
approved by the City prior to any work being done at the site (Emphasis added.)
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The management plan and view height survey were required because it was uncertain at
the time of the CUP decision what the appropriate management practice for the trees was
going to be. It was likely that some trimming and maintenance would be involved but
neither the extent of the maintenance nor the need for outright removal had been clearly
established. The extent of any needed maintenance could only be established by
quantifying the extent of the view easement (the second part of Condition #1). At the
same time, the ability to remove trees according to the requirements of ECDC 23.40 had
also not been established (the first part of Condition 41).
While the original arborist report [Exhibit 5, Attachment 7] described the subject trees as
being healthy, it did not reference the requirements of ECDC 23.40 in the report. It
states, "[b]ecause the city has not classified the drainage ditch as an ECA, the
regulations governing tree removal and replacement on your property fall under... the
land clearing and tree cutting code in Chapter 18.45 of the Edmonds Community
Development Code which specifies replacement for significant trees removed on single
family residence sites." [Exhibit 5, Attachment 7, Page 3] However, this ignores the fact
that the Strand's property contained critical areas, particularly the slope where the trees
are located [Exhibit 19]. In order to better determine the health of the subject trees and
whether they were candidates for removal under ECDC 23.40, the additional management
plan was made part of Condition 41.
As identified in Section IILA, two management plans were submitted in response to the
first part of Condition 41 and two view height surveys were submitted in response to the
second part of the Condition [Exhibits 7 and 9 and Exhibits 6 and 11, respectively]. The
first management plan submitted on September 24, 2009, did not address the applicable
sections of code, ECDC 18.45 and 23.40. It merely described how the trees could not
meet the view height agreement and therefore should be removed: "2 Doug Fir... and one
Western Red Cedar... are impeding view and cannot be effectively trimmed below view
line. Removal is the recommended course of action to restore view." [Exhibit 7] It
should be noted that this plan was produced on August 25, 2008, well before either of the
view height surveys were completed for the project so it is uncertain how the arborist
could have known that trimming and maintenance were not an option at that point and
only removal would suffice to re-establish the view described in the agreement.
The second report and assessments [Exhibit 9], adequately described the health of the
trees and confirmed the original arborist's report associated with the CUP [Exhibit 5,
Attachment 7]. The subject trees were in fact not hazardous and therefore not candidates
for removal from a critical area given the requirements of ECDC 23.40.220.C.7.b. This
information—and the City's determination—was summarized in the City's letter
Decision of December 10, 2009, which was not appealed.
The two view height surveys submitted in response to Condition #1 do not agree. That
said, each does visually quantify how much tree maintenance would be necessary to
comply with the view easement. In the first case [Exhibit 6], photographs 9-11 indicate it
was possible that maintenance could have re-established the view easement while leaving
the healthy trees intact. On the other hand, the survey submitted by Mr. Hathaway
[Exhibit 11 ], indicates that no amount of maintenance would have been possible to satisfy
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the view easement and keep the Strand's healthy trees. That would leave removal as the
only option to satisfy the view agreement, but that could only occur if the trees were
hazardous or imminent threats as defined in ECDC 23.40.220.C.7.b. As Exhibit 7 had
indicated, the Strand's trees were not hazardous and therefore not candidates for removal.
2. Appellant's contention: 4B. The proposal for which the CUP was issued was to
"remove three Douglas fir, a Western red cedar, and a larger number of black
cottonwood and red alder. " The proposal to remove these trees was approved The
CUP considered and acknowledged that these trees "are all in good health and
condition. " The CUP also noted the provisions of ECDC 23.40.220. C.7 that allow trees
to be removed "if they are hazardous, pose a threat to public safety, or pose an imminent
risk of damage to private property. "
Staff response: While the applicant requested "[a] Conditional Use Permit to allow the
removal of several trees in a steep slope area," [Exhibit 1, Page 1] the CUP decision
language states: "...the application for a Conditional Use Permit for tree cuttinj! is
APPROVED with the following conditions..." [Exhibit 1, Page 5 — emphasis added]. As
described in Response #1 above, the CUP decision anticipates some type of cutting — and
possibly removal — but exactly what work would occur was not yet known given the lack
of certainty regarding whether the subject trees were hazardous and the extent to which
the view easement impacted the trees.
Tree "removal" is a defined term under the City's code:
"Removal" is actual destruction or causing the effective destruction
through damaging, poisoning or other direct or indirect actions
resulting in the death of a tree or ground cover.
ECDC 18.45.040(0). The City's code implicitly recognizes that tree "cutting" is distinct
from—and necessarily less severe than—outright removal. The appellant's argument
disregards this distinction and mischaracterizes the CUP decision.
The CUP decision did note that the trees in question were healthy as the original arborist
report indicated. [Exhibit 5, Attachment 7] However, this report referenced only the
requirements of 18.45 and not those of 23.40. It should be noted that the original arborist
report contained in the CUP is dated December 17, 2007, whereas the critical area
checklist for the parcel was completed on January 9, 2009. As a result, staff wanted
additional clarity regarding whether the trees were hazardous relative to ECDC 23.40 and
so included that request in Condition #1.
3. Appellant's contention: 4C. The CUP contains numerous conclusions and
conditions that acknowledge tree removal may be permitted:
• II. B.3. b(1) — "If the trees are removed, the stumps should remain...
• II. C.1. b — "The proposed conditions of approval ensure the permit is consistent
with the policies of the Comprehensive Plan. "
• III I — "The applicant must submit a management plan... that discusses
appropriate management (including removal and trimming) of the tree existing
Douglas fir, the Western red cedar, and the black cottonwood and red alder
trees. "
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• 111. 2 — "If the arborist determines that removal of one or more of the trees is the
best management option, the tree(s) may be removed so long as the work is
performed in accordance with the arborist's report of December 17, 2007... "
•
007—
• Iff. 3 — "If any trees are to be removed, an updated tree replacement plan,
planting schedule, and cost estimate must be created... that considers vegetation
appropriate to the steep slope and drainage of the area as wee as the view
easement. "
Staff response: Staff agrees that the CUP "contains numerous conclusions and
conditions that acknowledge tree removal pLay be permitted." (Emphasis added.) Indeed,
removal of the subject trees was one possible management option envisioned, if such
removal met the requirements of the Edmonds Community Development Code.
Trimming and maintenance were also supported by the approval. The documents
submitted in support of Condition #1 clarified which approach would be taken and none
of the information submitted supports removing trees from the critical area on the
Strand's property based on the code requirements of ECDC 23.40.220.C.7.b.
4. Appellant's contention: 4D. The CUP was not appealed As long as the conditions
of the CUP are satisfied, the City is obligated to approve tree removal. However, the
Decision fails to acknowledge that the CUP approves the removal of trees.
Staff response: The appellant correctly notes that the CUP issued on February 10, 2009,
was not appealed. The City's letter Decision regarding the permit conditions issued on
December 10, 2009, was not appealed either. Regardless, staff strongly disagrees with
the appellant's assertion that "as long as the conditions of the CUP are satisfied, the City
is obligated to approve tree removal." [Emphasis added.] The January 11, 2010, letter
Decision (like the December 10, 2009, letter Decision) indicated that while the requested
documentation was submitted in support of CUP Condition #1, the information contained
in the documentation did not support removal of the subject trees from the Strand's
property. [Exhibits 4 and 10] The CUP approval reads: "...the application for a
Conditional Use Permit for tree cutting is APPROVED with the following
conditions...." [Emphasis added] The CUP anticipated and allowed some form of cutting
but it was only through analysis of the information supplied pursuant to Condition #1 that
staff would be able to determine whether tree maintenance or removal was the code -
compliant management approach.
Ultimately the appellant's argument proves too much. The CUP by its plain terms does
not require the City to approval removal of the subject trees; instead, it established the
framework for the City to approve some form of tree cutting subject to various
conditions. The permit did not commit the City to a particular course of action or result
in this regard. If the appellant was dissatisfied with the wording of the CUP on this point,
he could have filed a timely appeal. But because the decision was not appealed, the
appellant must comply with the terms and conditions of the CUP.
5. Appellant's contention: 4E. Rather than determine in the CUP conditions were
satisfied, the Decision instead effectively nulled the CUP by treating the management
plan and other documents submitting as conditions of the CUP as if they were for a new
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application. The Decision does not identify any CUP condition that was not satisfied by
the submittals.
Staff response: The letter Decision of January 11, 2010, was a reiteration of the City's
December 10, 2009, Decision. The December Decision reviewed the documents that had
been submitted up to that point in support of Condition #1 — Exhibits 7 and 9 — and with
that information the City determined that Condition #1 of the permit had not been
satisfied and that the Strand's trees were not candidates for removal because they were in
a critical area but not hazardous. The December 10 letter Decision was not appealed. If
the appellant was aggrieved by the City's finding that the Strand's trees were not
hazardous and therefore had to remain, he could have appealed the December decision.
That it was not appealed indicates that the appellant recognized that the Strand's trees
were not hazardous and could not be removed according to ECDC 23.40.220.C.7.b.
6. Appellant's contention: 4F The sole basis for the Decision ignored the CUP by
turning solely on the requirements of ECDC 23.40.220.C. 7.b. The Decision does not
acknowledge that the CUP, with its approved conditions, already considered ECDC
23.40.220. C. 7. b and nonetheless approved the removal of these trees. If the City believed
the CUP was wrongly issued, it had an obligation to appeal this decision. The City did
not.
Staff response: The City's letter Decisions of December 10, 2009, and January 11,
2010, were consistent with the CUP. Condition #1 of the CUP required two pieces of
documentation: a management plan and a view height survey. As the condition states,
"[t]he plan must take into consideration the requirements of ECDC 18.45 and 23.40."
Exhibit 7, the management plan received on September 24, 2009, did not adequately
address the referenced code sections. The additional information submitted by Mr.
Kirschner on December 4, 2009, [Exhibit 9] did address the applicable code, particularly
whether the trees in question were hazardous relative to ECDC 23.40.220.C.7.b. The tree
assessments in Exhibit 9 served to confirm the original arborist's report in the CUP that
the trees were healthy and not hazardous. [Exhibit 5, Attachment 7] Based upon the
information contained in Exhibits 7 and 9, it was determined on December 10, 2009, that
the Strands trees were not hazardous and therefore had to remain on the steep slope
behind their house. The December 10, 2009, letter Decision was not appealed.
7. Appellant's contention: 4G. The conditions set out in the CUP were satisfied or will
be satisfied by implementation of the management plan. The numbers below correspond
to the conditions enumerated in Section -Iff of the CUP:
1. A management plan developed by an arborist was submitted to the City. The
Decision lists a "brief management plan dated August 25, 2008 " which was
submitted on September 24, 2009, and an "updated management plan "submitted
on December 4, 2009.
2. The arborist determined that removal of one or more of the trees is the best
management option.
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3. Since trees are proposed for removal, an updated tree replacement plan was
provided in the management plan.
4. Erosion control practices are set out in the management plan.
5. All cuttings are to be removed from the cite (sic), as set out in the management
plan.
Staff response: All seven conditions of the CUP must be satisfied as part of the Strand's
permit — some before any work is performed and some after the work is performed to
mitigate impacts to the site.
Condition # 1 states:
The applicant must submit a management plan developed by the arborist that discusses
appropriate management (including removal and trimming) of the three existing
Douglas firs, the Western red cedar, and the black cottonwood and red alder trees. The
plan must take into consideration the requirements of ECDC 18.45 and 23.40. If the
management plan is also intended to address viewshed encroachment issues, a cross-
sectional view height survey that establishes the height of the viewshed over the former
McClintick Parcel 1 and which shows the locations and heights of the trees will be
required to assist in that determination. The management plan shall be reviewed and
approved by the City prior to any work being done at the site.
As was discussed in Response #1, the management plan [Exhibits 7 and q] and view
height survey [Exhibits 6 and 11 ] were required because it was uncertain at the time of
the CUP decision what the appropriate management practice for the trees was going to be.
It was likely that some trimming and maintenance would be involved but neither the
extent of the maintenance nor the need for outright removal had been clearly established.
The extent of any needed maintenance could only be established by quantifying the extent
of the view easement (the second part of Condition #1). At the same time, the ability to
remove trees according to the requirements of ECDC 23.40 had also not been established
(the first part of Condition fl).
Condition #2 states:
If the arborist determines that removal of one or more of the trees is the best
management option, the trees) may be removed so long as the work is performed in
accordance with the arborist's report of December 17 2007 (Section 6.0) or similar, if
subsequently updated in the management plan discussed in Condition 1. If any of the
trees are to remain, they shall not be topped but rather trimmed and maintained as
described in the management plan.
This condition was included to describe actions to be taken should the subject trees be
removed. It should be noted that both arborists involved in the project indicated removal
of the trees was the preferred option for maintaining the view easement conditions but
that option was not code -compliant according to ECDC 23.4O.22O.C.7.b. [Exhibit 5,
Attachment 7; Exhibits 7 and 11 ]
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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 date, the City has not received—much less approved—the materials requested in
Condition #3 of the CUP. This fact was noted in the City's Notice of Intent to Impose
Civil Penalties dated February, 22, 2010. [Exhibit 14] Replacement was briefly
mentioned in the maintenance plans submitted in Exhibits 7 and 9; however, neither of
these was code -compliant with respect to replacement. A code -compliant replacement
and maintenance plan must meet the requirements of ECDC Sections 18.45.045 and
23.40.220.C.7.b.iv. Conditions 4 – 6 of the CUP must be addressed in the replacement
plan. Condition #7 restates that all work envisioned or performed to enforce the private
McClintick view easement must be code -compliant.
8. Appellant's contention: 4H. The Decision also fails to implement the
environmentally critical areas provisions of the City Code by failing to administer the
ECDC "with flexibility and attention to site-specific characteristics" as required by
ECDC 23.40.000.F. The approval of the CUP appropriately exercised the required
flexibility, but the Decision effectively reverses the CUP.
Staff response: ECDC 23.40.000.F fully states: "This title is to be administered with
flexibility and attention to site-specific characteristics. It is not the intent of this title to
make a parcel of property unusable by denying its owner reasonable economic use of the
property nor to prevent the provision of public facilities and services necessary to
support existing development." The obvious intent of this flexibility provision is to
ensure that a property owner is not deprived of reasonable economic use of his/her
property due to critical area constraints. It does not require the City to deviate from or
otherwise waive applicable standards. The Strand's property is developed with a single
family residence just like the parcels in the surrounding area. On the other hand, ECDC
23.40.220.C.7.b is clear with respect to tree removal in critical areas as has been noted in
the CUP, the letter Decision of December 10, 2009, and the letter Decision of January 11,
2010. Condition #1 of the CUP was included specifically to determine whether the
subject trees were hazardous relative to ECDC 23.40 and therefore candidates for
removal or not.
9. Appellant's contention: 41. The proposed tree removal and replacement satisfies the
review criteria of ECDC 23.40.160. The proposal to remove trees was approved with
conditions by the CUP. See ECDC 23.40.160.A and B. The impact on critical areas is
minimized by the actions set out in the management plan. ECDC 23.40.160.A.1. The
proposal does not pose an unreasonable threat to the public health, safety, or welfare or
of the site where the tree removal and replacement will occur. ECDC 23.40.160.A.2.
The proposal is consistent with the general purposes of Title 23 ECDC and with the
fJZL770915.DOC;1/00006.150276/ 1, Page 11 of 13 Exhibit 1
Hathaway Appeal
File No. APL -2010-0001
public interest. ECDC 23.40.160.A.3. Mitigation is provided ECDC 23.40.160.A.4,
The functions and values of the critical area remain protected and there will be no net
loss of critical area functions and values. ECDC 23.40.160.A.5. The proposed tree
removal and replacement is consistent with other regulations and standards. ECDC
23.40.160.A.6. Significantly, the Decision does not address these review criteria.
Staff response: Staff agrees that the above criteria were not addressed in the January 11,
2010, letter Decision. However, the intent of the Decision was not to revisit the entire
CUP decision but rather to identify whether the conditions of permit PLN -2008-0040 had
been satisfied, specifically Condition #1. [Exhibit 4] Based on the materials submitted by
Mr. Kirschner and Mr. DenAdel, as well as Mr. Hathaway, the Strand's trees are not
hazardous and since they are in a critical area, they must remain according to ECDC
23.40.220.C.7.b. The conditions for tree removal established by the CUP simply have not
been satisfied.
LTA I f 411041R113[170`1
The City's consistent position with regard to the CUP has been noted. The CUP allowed
tree cutting of some type at the Strand's property and it was up to the applicant to provide
information in support of Condition #1 to clarify whether maintenance or removal was
the appropriate option relative to ECDC 18.45 and 23.40. The applicant's representatives
and the appellant submitted documents in response to Condition #1. However, simply
submitting documents in support of the Condition does not require the City to allow
removal of the subject trees. On the contrary, the submitted documentation clarified what
could occur at the Strand's parcel and based on the fact that their trees were not
hazardous and within a critical area subject to ECDC 23.40.220.C.7.b, the trees were not
candidates for removal. The City's position was stated in the letter Decision of December
10, 2009, and again in the letter Decision of January 11, 2010.
It is interesting that the appellant did not appeal the City's letter Decision of December
10, 2009, considering it first laid out that the documentation submitted to that point
[Exhibits 7 and 9] indicated that the Strand's trees were not hazardous and therefore
could not be removed. The appeal of the January 11, 2010, letter Decision seems to be
more of an attempt by the appellant to legitimize the removal of the trees from the
Strand's property on January 24, 2010, that he knew could not be legally removed.
►iI I I = I'll 9 030101 NO 1XV 1 [130
Based on the foregoing analysis and exhibits attached with this report, staff recommends
DENIAL of the appeal.
Michael Hathaway
1526 49th Street NE
Tacoma, WA 98422
{JZL770915.DOC; 1/00006.150276/ 1 Page 12 of 13 Exhibit 1
0
Gregory and Kathleen Strand
17035 76th Avenue West
Edmonds, WA 98026
Richard Kirschner
S&K Joint Venture
7503 Braemar Drive
Edmonds, WA 98026
Hathaway Appeal
File No. APL -2010-0001
Ron DenAdel
1023 C Avenue South
Edmonds, WA 98020
Donald E. Marcy
Carincross & Hempelmann, P.S.
524 Second Avenue, Suite 500
Seattle, WA 98104
1. Subject Staff Report (APL -2010-0001)
2. Zoning and Vicinity Map
3. Appeal Documentation and Certificate of Service
4. City of Edmonds Staff Decision, dated January 11, 2010
5. Staff Report and Attachments (PLN -2008-0040)
6. Photographic Height Survey from Mr. DenAdel, submitted May 14, 2009
7. View management and tree replacement program from Washington Tree Experts,
submitted September 24, 2009
8. City of Edmonds Request for Additional Information, dated October 12, 2009
9. Tree report and assessments from Washington Tree Experts, submitted December 4,
2009
10. City of Edmonds Staff Decision, dated December 10, 2009
11. Tree Elevation Survey from Crones & Associates, submitted January 7, 2010
12. Draft Imminent Threat Letter, submitted January 7, 2010
13. Email from Mr. Hathaway regarding cutting the Strand's trees, dated January 25,
2010
14. City of Edmonds Notice of Intent to Impose Civil Penalties, dated February 22, 2010
15. Extension request for PLN -2008-0040 from Mr. Kirschner
16. City of Edmonds Approval of CUP Extension Request, dated February 22, 2010
17. Strand's Superior Court Declaration
18. City of Edmonds Critical Areas Reconnaissance Report — CRA -2009-0001
19. Notice of Appeal and Public Hearing, Affidavits of Notice
!JZL770915.DOC;1/00006,150276/ 11 Page 13 of 13 Exhibit 1