2004-08-05 Hearing Examiner MinutesCITY OF EDMONDS
VERBATIM TRANSCRIPTS OF HEARING EXAMINER
HEARING
FILE NUMBER AP-04-67
August 5, 2004
PUBLIC HEARING ON APPEAL OF A CITY DETERMINATION THAT A TREE HOUSE IS A
STRUCTURE. THE SITE IS LOCATED AT 18312 — 81ST AVENUE WEST AND IS ZONED RS-12
Appellant: Keith Kemper on behalf of Mr. and Mrs. Mark Loewen
Hearing Examiner: Ron McConnell
Mr. McConnell: Okay. The next item is an appeal of a staff interpretation. Meg Gruwell, a senior planner, will be
reviewing the staff report on this one. This is an appeal by the Loewen's?
Ms. Gruwell: Right. It's our file AP-04-67, and they are located at 18312 — 81st Avenue West. The way we found
out about this is a complaint that was received. In doing our code enforcement, we notified them that we considered
it to be a structure and needed to meet setbacks. They appealed that saying, "well, it's just a tree house and we
understanding that it doesn't need to meet setbacks." In their letter they have included a number of reasons why
they feel that it doesn't need to meet setbacks. Basically, they are saying tree houses and children's play items are
really minor uses and that zoning is overkill. They state that Edmonds has no specific ordinances that apply. They
go on to say that with the definition of the structure, then you might also want to include birdhouses or tree swings
or children's play equipment. Also, wondering about what if we attach it with ropes instead of nails or screws.
Does that make it not permanent, and therefore, not a structure? Also, they had an idea of saying maybe if you have
a specific size, if it is less than 120 square feet, maybe we could just say those kinds of things are not regulated.
They also point out in the definition of side setback, which is ECDC 21.10.040, it only states building. So, they feel
that since the definition of building states that it has to have a roof, that therefore, since the tree house doesn't have a
roof, it therefore, wouldn't need to meet setbacks.
Ms. Gruwell: They also had a concern about a City Council meeting that was held, actually a committee meeting,
that their client hadn't been invited and had no chance to comment at the City Council meeting. And a concern that,
because the Planning Division had received a complaint, now it is going to legislate tree houses out of the setback
areas, and really, that should be a legislative decision that the City Council could decide. Also, a concern about
wanting to come in and just discuss the decision and have it changed, but when they came in, they were told they
had to appeal, but they weren't told exactly what they needed to appeal. I did check with the staff members and our
code enforcement officer says his standard practice is to just include our appeal handout with his letters when he
states that appealing is one of their options. I talked with Steve Bullock, who had spoken with them at the counter,
and he did acknowledge that he hadn't given them any appeal handout or told them exactly what was needed at that
point.
Ms. Gruwell: They also came up with pictures, and I realized that we hadn't labeled those. That was Attachment
14, so I believe the first grouping of pictures are just showing other tree houses that are on, I think that's the first two
pages, other tree houses that appear not to meet setbacks. The next is just showing the slide, I think you might have
better pictures today that might be easier to read. And then the following page, that would be the next to the last
page, is showing the neighbors who had complained, showing a shed that I think he is trying to show it's like 31
inches or something from the property line. And, actually the last picture, I am having a hard time seeing what that
is. That might be other tree houses also. So those were the pictures that were submitted.
Ms. Gruwell: Basically, as far as what staff wants to say in response. Our code enforcement is complaint driven.
So we really don't have the staff to go out into every neighborhood and see if people are constructed things the way
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August 5, 2004 Page 1
the code requires them to. Since we don't have the staff to do that, then what we rely on is people bringing
complaints forward to the City and saying, you know, our neighbor, or whatever, you know, they don't have to be
City residents or anything, but they can just say this person is doing something that we feel is illegal, and we will go
ahead and research that. In this case, there has been a complaint received, so we did go out and research. The
complainant was concerned about the children's safety and about their own privacy. We have consistently, when it
has been brought to our attention, we have consistently regulated play houses as structures, play houses and tree
houses as structures and required them to meet the setbacks.
Ms. Gruwell: The general definition of setbacks, which is in ECDC 21.90.020 talks about building/structures or
uses. So they have a much broader range of items that they are requiring to setback from the property lines. It is
true, I was looking at both the side, the front and the rear setbacks. They do kind of abbreviate it down to buildings,
but we do consider that to be more of an abbreviation than trying to deny that the general setback said anything
about anything other than buildings. So we are kind of considering that more of a shorthand, and in part, we do that
because in ECDC 16.20.040.0 it talks about patios and decks and it gives them some relief to the setbacks. Since
those don't have roofs, then obviously, it would be kind of nonsense if we gave them setback relief if they didn't
have to meet the setbacks. So we imply from that that if those have to meet setbacks, then the actual definition of
setbacks, the general setbacks, applies to each of the side, front and rear, and that would be requiring building,
structures and uses to meet the setbacks.
Ms. Gruwell: We did actually bring the idea to the City Council because every so often, when staff is enforcing
things, you know, the City Council is kind of horrified that we would do that. So we just wanted to make sure that
this was the road that they wanted us to continue going down because that's what we have been doing. Really, it
was only a policy discussion to confirm that that's what they wanted us to be doing was still enforcing that tree
houses needed to meet setbacks. And that's what they did confirm at the committee meeting. So it wasn't, you
know, it wasn't that we were trying to go through the back door or anything. It was just merely a confirmation of
keeping our course as it has been for years and years.
Ms. Gruwell: So basically, in this case, we consider the tree house to be a structure, and that means it has to meet
the setbacks in this zone. The side setback is ten feet to the side. It appears that the tree house is pretty much right
up to the line. The appellant has brought up a number of other illegal structures in the area, and certainly, if we are
made aware of those through a land use complaint being filed, we will certainly enforce our regulations and go out
and research them and you know, make sure they comply. They had talked about permanent versus non -permanent,
and you know, some things like a picnic table, you might want to move it around to take advantage of the shade, but
if you just start strapping things onto the tree with rope just to say that it's not permanent, that would not really ...
We would probably still consider it permanent.
Ms. Gruwell: So, that is about all I have to say. If there's any questions later, I would be glad to try and answer
them.
Mr. McConnell: Okay. Thank you. I'll enter the staff report with 14 attachments as Exhibit A. Do you have any
other letters that have come in on this since the staff report was prepared?
Ms. Gruwell: Yes. Thank you for reminding me. I was just remembering that myself. We have, and I have a copy
for the appellant. . .
Mr. McConnell: Okay. I have got three letters here. The first one is a letter from John Scholten, with an
attachment, and that will become Exhibit B. A letter from Mr. and Mrs. Douglas Skeels will become Exhibit C, and
a letter from Kathleen and Steven Swanson will become Exhibit D. Now I will turn it over to, I believe, Mr.
Kemper. Are you speaking on behalf of the Loewen's? Okay.
Mr. Kemper: Thank you Mr. McConnell. Keith Kemper on behalf of the Loewens. Because it is such an
engrained habit, I will probably refer to you as Your Honor unless you have some strong objection to that. That's
probably the way I'll.
Mr. McConnell: Well, I am not, but that's happened before.
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Mr. Kemper: I am going to speak on behalf of the Loewens today. In the interest of trying to be directly to the
point, I would like to proceed using an offer of proof that my client would say if I actually put him over and engaged
in questions and exchange. As I thought about the purpose of this hearing, it is really one that goes to the heart of
the statutory interpretation, and therefore, I greatly appreciate those people from the community that came out
because I think it supports what I will refer to as my common sense argument for the interpretation of the statutes.
And to the degree they get to comment, your honor, I hope you will take their comments in that regard, that it is an
argument for a common sense interpretation of the zoning code, the term structure, the term building and some of
the other things that I will point out.
Mr. Kemper: The one thing that I would actually have my client testify on where I think his testimony is relevant
other than clearly his desire to see both he and other residents of Edmonds be able to build a tree house for their
children in the back yard without being subject to zoning requirements is this whole notice of the timeliness of the
appeal. Because the recommendation in the report recommends that you deny this because it is untimely, I need to
go into the details of that. And on that point, I would offer as an offer of proof, what he would say. This is from my
discussions with him, along with the paperwork that I received from him.
Mr. Kemper: I met with my client on June 2nd. The date of the letter giving him... Let me back up just a little bit
here.
Mr. McConnell: Well, I have reviewed the staff report. The staff report does a pretty good job of developing a
chronology of what led up to the appeal, itself. I am willing to just say, look, let's go ahead with the appeal because
I think there was enough confusion around this issue that you can certainly build a strong case to say that, you know
... I would just go ahead and say, let's proceed with the appeal and ...
Mr. Kemper: That certainly makes my job easier this morning, so that's what I will do, your honor. We did go
down to the City on June 2nd and we engaged in dialogue with a couple of different people there. Steve Chave (this
is the name he gave). I got calls back later from Mike Thies, and we did try to approach this informally, sort of
hoping to take ... I have got to admit, I feel a little silly, your honor, dressing up, strapping on a tie, and coming up
here and talk about a tree house. Some of the arguments that I raise are constitutional in nature, and I have got to
tell you, there's a certain dissidence that I feel making these grandiose arguments with regard to a six by six
structure that it attached to a tree so that kids can play in the backyard. Nevertheless, that's sort of what we are
forced to do on this particular occasion.
Mr. Kemper: My common sense argument, your honor, is that as you look at the code, there is no specific
provision in the code for tree houses. Now, my letter to Ms. Gruwell sets out that same point, that it would appear,
from a reading through of the Edmonds City Ordinances, that there appears to be almost an intention not to address
them because at some point, trying to legislate all of these different things that someone could attach to a tree and
put in their backyard borders on the ridiculous. I would submit that this hearing has that potential. I raised what I
thought were some ridiculous examples, be it a bird feeder, a bird house, or any number of other things you could
attach to a tree in your backyard that, under a strict definition of structure, becomes structures, and therefore, subject
to the zoning ordinances.
Mr. Kemper: My suggestion to the Planning Department, your honor, was that unless a structure reaches a certain
size, it seems sort of silly to call it a structure and to, therefore, want to zone it out of that particular ten feet or to
legislate against it. I would, once again, submit that that is a more reasonable way to approach it. As I read the
statute again, clearly the definition of structure, as it is specifically worded in the code, appears to apply to all these
things. Now, whether your honor has any discretion to decide how that statute ultimately gets interpreted, I am not
sure you do. But my pitch is to interpret it reasonably to the degree you do. If not, if we are going to take a strict
interpretation of the statute, if the City is going to advocate for the specific wording, and that this needs to be
included, then let's look at the specific wording of the other statutes. Because I think if you use that approach,
which I would suggest you not do, your honor, but if you use that approach, this tree house is still not legislated out
of the setback, if we are going to get picky and use the specific wording of the statute.
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Mr. Kemper: Now, these code sections are called to your attention, but let me for the sake of convenience, hand up
just a couple of the statues, and Meg, here's a copy. Your honor.
Mr. McConnell: ECDC 16.20.030 Table of Site Development Standards will become Exhibit E.
Mr. Kemper: The question here, the City's rationale is, if we look at the definition of structure, if it is any
combination of materials that is permanently attached, then a six by six play house becomes a structure. They say it
is, therefore, subject to zoning laws. Now, the leap that is not necessarily included in the letter that was sent to my
client is if this is a structure and, therefore subject to zoning laws, then it must be removed. But I think if you start
to look at the zoning laws, that isn't supportable. Here's the zoning laws, as you just pointed out, I am look at
Edmonds Municipal Code 16.20.030, and this is the table that tells us the setbacks in this particular situation. And
the Loewen's home, as everybody seems to agree, is in an RS-12 zone. Just looking at the grid, the minimum side
setbacks says it's ten feet. Of course, then we have to figure out from the rest of the code, what does that apply to.
Well, since we were looking at ten feet for a side setback, we go to the definition of side setback. That's section
21.90.050, which is also on your sheet. It says, side setback is the minimum distance required by this code for a
building to be setback from a side lot line. Now, your honor, this playhouse is not a building. This playhouse is not
a patio. This playhouse is not a deck. Let me digress for just a moment into the City's common sense argument.
They want to say it becomes observed because there's these exceptions for decks and patios. Well, the same code
section has exceptions for eves and chimneys, as well. It is very clear that those code sections are talking about
portions of the house that might extend into the side or things pertinent directly to the house that might extend into
the side setbacks. And there are certain exceptions made for those. Again, there's always this ability to call out,
specifically tree houses or play structures, and that's not done in any of those code sections. And as we look at a
side setback, it specifically refers to buildings.
Mr. Kemper: Now the City has said, well, that's shorthand for buildings, structures or other uses. Your honor, if
we are going to take a strict interpretation of this code, I don't think the City has the luxury to say, well, that's just
shorthand for this when, if you look at the rest of the code, we have a definition for structure. We have a definition
for building. There are many other uses discussed, one of which is not tree houses. The point of all this being, of
course, if you have specific definitions for each of these words, can we really fairly say that the statute, when it says
buildings, means all of them.
Mr. Kemper: The City's other point is, well if you look at the general rule for setbacks, it says that it applies to all
these things. While certainly you could read it that way, you could certainly read it another way that is equally
reasonable. So I would direct your attention to 21.90.020. Setback means the minimum distance that
buildings/structures or uses must be setback from a lot line, excluding up to 30 inches of eves. But then in the
parenthetical in the code, it says see also, and then it gives you these other code sections. Now I would agree that
one is a general code section, and the others are more specific. But I would read the general section to say,
depending on whether it's a building, a structure or other use, you are going to look to these specific code sections to
determine whether or not it's excluded from the particular side setback that's covered by the grid that we started out
with. When you look at side setbacks, it doesn't refer to anything other than buildings and so a strict reading of the
code says only buildings are excluded from the ten -foot side setback.
Mr. Kemper: Again, building has its own definition. I did not provide it to you, your honor, because number one,
common sense tells us that a play structure tells us that a play structure is not a building. But the strict definition of
building says that it must have a roof. At this point in time, the playhouse does not have a roof, and if that becomes
the critical distinction, this playhouse will never have a roof so that it doesn't at some point become a building.
Mr. Kemper: Finally, your honor, it is a little bit disconcerting that, and I certainly understand the resources issue
that the City faces when it wants to enforce its zoning code, and while I gave you an address on the sign in of my
office, I reside in Edmonds, so these things are important to me. I do care about my City. I want it to be an
Edmonds sort of day for as long as I live here, but you know, I don't want the City of Edmonds driving around
looking for violations. By the same token, we have come up with a statute which, on its face, presents interpretation
problems to say the least, that is now enforced at the discretion of the Planning Department, and then only if
somebody gets angry and complains. Now, I just read for the first time one of the other letters that was submitted.
It was the one that was just handed to me from Mr. Scholten. Apparently, he found out about this particular
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proceeding, and he has now driven around the neighborhood, and he is doing what I think we would all hope would
not happen as a result of this. Somebody is going to drive around and look for every offending tree house and file a
complaint. He has found another one that apparently cheeses him off, and he's filed a complaint.
Mr. Kemper: This seems to me to set up some equal protection problems. It's a bit of a vague statute to begin
with, and it is going to be applied only if someone complains. Therefore, the only people that have to worry about
their side setback are those people who live next to easily displeased neighbors. Now, I am not going to take a
position on this particular tree house, and I suppose we could get into the specifics of whether it really does violate
their privacy, whether there really are ... There have been some long-standing issues between these two families,
and this may be just the latest coming out of that particular issue.
Mr. McConnell: Well, that's one thing I won't get into.
Mr. Kemper: And I understand that, but what I am saying is, if .. .
Mr. McConnell: I am looking at the staff interpretation here, and that's where I am going to stop.
Mr. Kemper: The problem is the staff is only going to interpret this code when you have got a situation like the
one that arose here. That's the difficulty inherent in the approach that the City takes to it, and it seems to beg equal
protection problems because of so much discretion as to whether or not the code gets applied. Now that's
especially... Well, I'll leave it at that, your honor, because I think that's the other issue that I think is significant
that arises out of this. Thanks very much for your time.
Mr. McConnell: Thank you. Now do you have anybody else who is going to be speaking.
Mr. Kemper: I know there was a number of neighbors of the Loewen's that wanted to say something, but I was not
going to ask the Loewen's to personally speak. I was going to speak on their behalf.
Mr. McConnell: All right. At this time, let me turn it over to the complaining party, and I guess Mr. Hatch, you
are representing them. Okay. And then we will get to all the neighbors, and we will make sure everybody has an
opportunity to be heard today. Mr. Hatch.
Mr. Hatch: Good afternoon, Mr. McConnell. Thank you for giving us the opportunity to be heard on this matter
today. I am here representing.
Mr. McConnell: Just for the record, your address.
Mr. Hatch: I'll get to all of that in a moment. My name is Jonathan Hatch. I'm an attorney here in Edmonds. My
address is 152 — 3rd Avenue South, Suite 101, Edmonds 98020. I am here on behalf of Bob and Doreen Crow, who
are immediately adjoining neighbors to the subject property. They reside at 8206 — 182nd Place Southwest,
Edmonds 98026.
Mr. Hatch: There are really, I think, two issues that do need to be addressed today. While I don't want to belabor
the question of the appropriateness of proceeding with this appeal, I think I have to make a record here because
when I see a soft target, I cannot abstain from taking a shot at it. In this particular instance, the appealing party
seems to be crying foul because somehow they were not aware of, didn't understand, couldn't figure out what it was
they were supposed to do to file a timely appeal to this particular decision. The reason I have a problem with and
the reason I think you should have a problem with that, is that the appellants received written notice from the City of
the City's determination. And in that letter, which is part of the record, they are specifically advised that they have
14 days within which to appeal that decision. Their position seems to be, and Mr. Kemper's statement seems to be,
nobody told them what they were supposed to do. They didn't understand what they were supposed to do. Well, in
response to that, I will only say this. When I started my legal training about 35 years ago, one of the very first things
I remember hearing was ignorance of the law is no excuse. The procedure for appealing this determination is very
clearly and very succinctly set out in the development code for the City of Edmonds. And it's found in ECDC
20.105.020. That particular code provision is readily accessible to anybody that wants to get a hold of it. In fact, I
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can state for the record, that I got a hold of it on line readily in about four minutes. It's quite accessible, and in fact,
in this particular case, since these appellants had 14 days to figure out what the appeal procedure was, all they had to
do was come up to the City and ask if they had any concerns about that.
Mr. Hatch: The problem here really is that the waited until the eleventh hour to address the problem. They
apparently came to the City on the last day of the appeal and verbally tried to confront the Planning Department
about the complaint. They later claimed nobody told us we had to write a written appeal. The code provision
regarding appeal is very clear. It says, specifically, appeals shall be written and shall state the following. These are
mandatory provisions of an appeal. The written appeal notice has to identify the decision that is being appealed. It
has to identify the name of the project or the complaint issue. They have to identify the date that the decision was
made that they are appealing. They have to identify their name and their address and their interest in the matter.
And most significantly, they have to identify the reasons why they think the decision was wrong. Now, the only
written documentation in the record about notice of appeal on this was received by the City the day after the
deadline, and no where in that document, and I would ask you to take a good look at it, is there any recitation of the
reason why they are appealing. They simply say we don't agree with you. I submit that's procedurally deficient.
Aside from the fact that it's late, it doesn't provide any basis on which the appeal is being prosecuted. It simply
says, we don't agree with you. I think the reason for that provision in the code is pretty clear. It's like the appeal
procedures that are used in most venues, including things like the Court of Appeals and the Supreme Court or
anywhere else where you are appealing something. You are required to set out, with at least some degree of
specificity, the grounds for the appeal. Why are you appealing? What's the purpose for it? What is your beef?
What are the facts or the circumstances or the law that you take issue with? That's done so that other parties who
have an interest in the matter have some basis for figuring out how to respond to it, how to deal with it, what the
issues are, whatever. Nothing in this record establishes any of that.
Mr. Hatch: Basically, I think my concern here is that while Mr. Kemper is saying well, if we are going strictly
construe things, let's strictly construe things. I guess I am suggesting to you, that if we are going to strictly construe
things, appealing as it is to say, gosh, it seems kind of unfair to deny people a right to appeal something. They blew
it. They didn't file this appeal in a timely fashion, and moreover, even though the Planning Division informally
said, well golly, you know you are kind of late, but we will give you kind of a supplemental deadline a few days
later, they blew that, too. Now, I would submit that as a matter of procedure, the Planning Division doesn't have the
authority to just arbitrarily change the law regarding what the appeal deadlines are, but giving for a moment the
benefit of the doubt to the appellants that somehow that had some binding affect, they didn't comply with that either.
Mr. Hatch: One of the other things that's contained in the appeal procedure is the fact that the written appeal,
itself, must at the time of filing, contain the mailing matrix of all the adjoining property owners. That's part of the
appeal notice, itself. That was not done in this case. In fact, the mailing matrix, which is supposed to accompany
the appeal, wasn't filed until two weeks after the deadline and a week after the sort of supplemental deadline had
been given to the appellants by the Planning Division. I guess the bottom line is this, if we are going to have
procedures and if we are going to have ordinances that deal with what you have got to do to perfect an appeal in this
City, then it ought to apply to everybody, and it ought to be strictly construed. I don't think we can have kind of a
soft, squishy, touchy feely kind of appeal statute that allows appellants, absence some pretty clear reasons why, to
say that, gee, I just didn't know what I was supposed to do. That's not the standard. It has never been the standard,
and it shouldn't be the standard now. If they didn't know what to do, all they had to do was find out. I find it
particularly problematic because these folks hired an attorney. Now I am not going to cast dispersion on Mr.
Kemper or his capacities one way or the other, but if I could find this statute in about four minutes on line, I submit
that he could have or any attorney could have. If they had concerns or questions about what they had to do to
prepare and file an appeal, all they had to do was look it up. That's why we have these things available to the
public.
Mr. Hatch: I guess the bottom line is, despite the degree to which apparently you are prepared to rule otherwise, I
think that it is an injustice to everybody in this community that has to comply with these codes to say that they don't
apply here because these folks were confused. There's no excuse for their confusion. Had they come up to the
Planning Department the day after they got this notice and started asking these questions, presumably they would
have gotten answers. They waited until the eleventh hour and then, once the Planning Department said, gosh, we
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will give you a little fudge factor, they didn't even respond to that. There's a point at which too late is too late, and I
submit this was too late.
Mr. Hatch: Moving on from that issue to the merits of the case, Mr. Kemper argues for a common sense approach.
Well, I guess I agree with him on that, and guess common sense dictates that the reason that we have setbacks is to
provide separation between neighbors. The only reason for a setback, fundamentally, is to create a space, an area,
kind of a free fire zone, where you don't have to have each other looking in each other's back windows or otherwise
encroaching on each other's property. There is no other functional reason to have it. There's no structural reason
why you can't build a house right up to two inches from the property line. The reason we do it is to keep our
neighbors out of our face. That's the purpose for it. In this particular instance, I think the photographs of this
particular structure speak for themselves. Now Mr. Kemper makes some fairly interesting and perhaps even slightly
compelling arguments that a strict interpretation of these statutes, in this particular instance, suggest that this isn't a
building and somehow isn't covered by the ordinance. Well, I ask you to take a really good look at the photographs.
If that isn't a building, I don't know what is. Common sense says that when you build something of that
consequence and that size that close to a fence, it violates common sense and it violates the entire purpose for
setbacks.
Mr. Hatch: Frankly, I read the staff report in this case, and I thought it was an excellent analysis of this particular
situation. I recognize that they are dealing with, it may or may not be a case of first impressions, at least as far as
this level of things is concerned, I don't know. But I think their analysis is dead on. Basically, what they are saying
here is, can't go around and police every property in the City, but this is not selective enforcement. They are not
saying, gosh, you know, last week we let a playhouse or a tree house on a property get by, but we are not going to let
this one get by. What they are saying is this is complaint driven enforcement, and that is not at all uncommon, either
under the code of this City or any jurisdiction. Frequently, the only reason laws are enforced is because somebody
in the citizenry complaints about it. That's how we frequently do this sort of stuff. The appellants would have a
legitimate beef if the City was selectively enforcing, and basically picking and choosing which tree houses has got to
be in the setback, but that's not what has happened here. If this, ultimately, precipitates a blizzard of complaints
about tree houses, well, I guess so be it. But the fact is that they got a complaint, they evaluated it, they analyzed the
facts, they went out and looked at the situation and concluded this was in violation. And I submit that the analysis
that they have laid out in their report supports that conclusion conclusively.
Mr. Hatch: Mr. Kemper, in one of his letters, at least in the record, talks about the fact that this is a minor matter.
There is some language actually in the ordinance dealing with structures that kind of addresses minor matters, and if
you will indulge me here just moment, some reference to it is made in the staff report, paragraph 2 under the
Planning Division comments, Subparagraph A.2. And there's some reference to improvements of a minor character.
In that regard, it specifically talks about things that are less than three feet in height. Well again, looking at the
photographs in this particular situation, it is pretty clear that this tree house is a whole lot taller than three feet in
height. I have not gone out and measured it, but if I were to ball park it, I guess it is probably closer to 12.
Mr. Hatch: I have four children, and I am very mindful of the desire for parents to have appropriate facilities for
their children to play with on their property. The complaint here isn't whether there's a tree house. The question is
where the tree house is located. People have an absolute right to put things on their property or construct things on
their property provided they comply with the law. The simple solution here, presumably, for these appellants would
be if they want to have a tree house, put it someplace else. Put it someplace that complies with the code. That's the
simple solution here. That's the common sense solution. What, in effect, they are saying is we want to put it where
we want to put it even if it means that we have got a structure that extends several feet above the adjoining property
and sites within inches of the fence. It's precisely that kind of thing that the setbacks were designed to avoid.
Setbacks, at least in part in my view, have been formulated to avoid neighborly disputes, spite fences, all that kind of
stuff that goes on between adjoining neighbors by simply creating a statutory barrier between the neighbors that they
are not supposed to encroach on.
Mr. Hatch: I guess in summary what I would suggest, Mr. McConnell, is that while it is emotionally compelling
perhaps to say, gosh, it seems kind of unreasonable to regulate things like tree houses in back yards, what is an
offensive problem or what encroaches on another neighbor's enjoyment of their own property is partly in the eye of
the beholder. I can tell you from conversations with my client, they find this encroachment very, very troubling. If
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you will notice some of the other letters that were apparently submitted today by other neighbors, they have got
some similar concerns. It's not as simple as simply saying, this is overkill. The question really is balancing the
rights of adjoining property owners in a reasonable way. And in our view, the City's position on this is dead solid
perfect, and the solution to balancing the equities here is for the Loewens to acknowledge the fact that they can build
a tree house in a lot of places, but not where the put it. Thank you.
Mr. McConnell: Thank you. Now, which of the neighbors would like to speak. Yes sir.
Mr. Henderson: My name is Warren Henderson, and I live at 18335 — 811t Avenue West, immediately across the
street from the Loewens. I am speaking on behalf of the appeal. Contrary to what the complainants have said, this
really is a touchy, feely kind of issue because many parents, including myself, who had children, my children are
now grown, we built tree houses for our children. When we built them, they were not permanent, they were not
structures, they were not buildings. They were playhouses for children. To require that they meet the setback
requirements of buildings and structures seems very strange to me. There are numerous other tree houses around
our area, and of course, I am not going to mention where they are because we might give people some ideas to go
complain about them. But one of them is right next to a park, and there certainly hasn't been any complaints about
that one at all. So I ask you to please rule in favor of the appellant. Thank you.
Mr. McConnell: Who would like to speak next? Yes.
Ms. Heck: My name is Kara Heck, 8206 — 1841 Street Southwest, Edmonds. I was here originally to discuss tree
houses and how I am very pro tree houses and why. Unfortunately, ours is the tree house next the City Park and
there was no complaint until now. The only reason this complaint exists now is because the notice was sent out.
This complaint was from the neighbor who has complained about a multitude, probably, I can't even count how
many times in the City about us that we have never been in the wrong about. But that feud continues. Prior to us
constructing our tree houses, I had called the City, this was in June of 2002, and spoke to Lara in the City office and
talked about tree houses and what regulations are required. I wanted to be very clear on this even though the tree
house we built is not on this neighbor's property and he can't see it from his property purposefully, and it's only
along the City property. But he still, obviously, has a complaint against it. At any rate, I wanted to be clear on it, so
I asked the Assistant Director of Building Services at the Time, Anne Bullis, what the requirements are, and I was
told there was absolutely no requirements and no permits need. This is a tree house, it is a play thing, it is in the air,
no requirements. Therefore, we then went forth and built a tree house for my children and their friends. You know,
it is a kid magnet. The kids love it. They don't come over and want to play video games. They come over and want
to play in the tree house. I mean, it is something that passersby don't even often see until they actually look up if we
or the kids are up there. They will look up and say wow, and then they will comment on it. We have only positive
feedback until today. So, I guess what I am asking is that, of course I am totally pro tree house, I have one myself,
that should you decide now to do something about this and require setbacks that the existing tree houses, and in our
particular neighborhood there are quite a few because it is kind of a woodsy area, be grandfathered in because we
built it truly in good faith. I did check with the City, and not only myself, but I know of three of our friends in the
neighborhood have tree houses, and this would just escalate complaints and often the complaints, well in our case,
anyway, the complaint is more over who we are than the tree house that they can't see.
Mr. McConnell: Okay. Thank you. Who would like to speak next? Is there anyone else? A response back from
anyone?
Mr. Kemper: Keith Kemper again, on behalf of the Loewens, your honor. Your honor, I feel like at this point I
need to go into the record on how we got to this point on the appeal.
Mr. McConnell: All right.
Mr. Kemper: I don't know what an appellant has to do besides go in person to the City and tell them why they
disagree and that they want an appeal and the basis for which they did it. All of which was done orally within the 14
day period Now, again, we could put on an offer of proof of everything that happened after that. It's to say, gee, the
letter was sent to Mr. Kemper's office and I can tell, your honor, I was out of town when that letter came to my
office, and I blew another deadline. You know, those are the types of details that I would hope that this hearing
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wouldn't get into because the fact of the matter is, the City normally hands out the portion of their code that talks
about what's required in the City of Edmonds, and it is not the same from City to City and from administrative code
to administrative code or from Court of Appeals. I guess I am thankful that learned counsel has raised the fact that
the Court of Appeals has similar rules because if one were to read the RAP's, they clearly have a substantial
compliance component to them. My ongoing experience with the Court of Appeals is that, should an appellant
screw up the notice of appeal and not include everything that ought to be included in it, they promptly get a note
from the Commissioner saying, you screwed this up, file this within the next period of time, and then it gets cleared.
Mr. Kemper: So in this particular instance, the Loewen's particular complaint and the specifics of it were made
orally to at least two different people within the Planning Department within the 14-day period. Now, what
prejudice could possibly flow from the fact that it wasn't in writing other than the statute required it in writing and at
that point in time the statute hadn't been provided to the appellant. That's another issue altogether. It shouldn't be a
basis for not considering the appeal in this particular circumstance.
Mr. Kemper: One other thing. In the materials that were provided, your honor, this matter has gone on longer than
just in 2004. You said you read the entire report, so I didn't belabor it. The original complaint here was filed in
2002. The City responded and said, hey, you have to have a permit for this thing. The Loewens wrote back and
said, well, we don't need a permit because it doesn't fall within the provisions that require a permit and apparently
the City agreed because nothing happened for two years. In the meantime, and also included in the report, in the
staff report on Attachment 6, you have a letter that backs up one of testimony of one of the neighbors. The City has
said we consistently apply the code to playhouses, but there is information from the City within the staff report that
suggests that's not so. Attachment 6 is a memo from the Council Committee, or excuse, it appears to be to the
Council Committee, and it comes from Mike Thies. In the narrative in the middle of that particular document, he
says it is common for the City to receive complaints regarding structures in property line setbacks, structures in the
setbacks are more commonly accessory storage structures. The City does not require building permits for structures
of 120 square feet or less, but it does require accessory structures of any size to meet setback requirements. The
building department does not regulate play structures. At least on August 12, 2003 that was the City's position on
that. So certainly, that's consistent with what the neighbor said when she called the City and said can we build a
tree house where we want to build a tree house, and the City said we don't regulate those, by all means. She did
that.
Mr. Kemper: When I first wrote our letter regarding the appeal, it appeared from the letter that came to Mr.
Loewen that there had been a Council meeting where some action had been taken that was a new step that, in fact,
they were going to regulate structures at this point in time. Only when I received the staff report did I see what
actually took place back in May of this year. As Ms. Gruwell pointed out there was sort of a policy meeting of sorts,
and in fact, what the minutes from that meeting stated was that no action was taken. Certainly, at this point in time,
the Council hasn't decided to change its procedures. And if there has been any change, it has been something that
the Planning Department has done. While they say consistently we have regulated these play structures, their own
written documents suggest that they have not. The City Council has not acted on this. Until such time as the City
Council acts on it, it ought to continue to be construed, interpreted, applied the way it was in the past. That is, it
ought not to apply to particular play structures.
Mr. McConnell: Mr. Hatch.
Mr. Hatch: I actually don't have anything more substantive to offer, but just for the record, in the record, Mr.
Kemper has described my clients as crotchety and disgruntled. I would simply like the record to reflect that, from
my perspective, they are very nice people and they, in fact, are simply concerned citizens. Thank you.
Mr. McConnell: Did you have something Mr. Loewen?
Mr. Loewen: My name is Mark Loewen. I live at 18312 — 8 1 " Avenue West, and that's in Edmonds, and I am the
appellant. Before I started constructing this tree house, or before my wife and I even decided that we were even
going to do that, I am a licensed general contractor with a City of Edmonds building or business license. I decided,
well, you know, I better find out about this because I am not sure. So I called down to the Planning Department and
I talked to, I am not sure who it was now, but I talked to somebody about that, about tree houses. And I was told
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specifically that there are absolutely no regulations regarding tree houses whatsoever, or setbacks. Meg Gruwell,
who has been out to my house, asked my wife, I was not there at the time, if we would be willing or if we could
move the tree house. Our property is just like everybody else's property. We have a grass back yard and all of the
trees that are on our lot are on the property line. Every one of them. So which tree would you like us to move it to?
I would be happy to move it. I had no idea this was going to cause a problem. Had our neighbors come and talked
to us first instead of sending a letter from an attorney and talk to us like normal, civil people, I would have been
more than happy to remove it and put it anywhere else that they, so it would not encroach on their privacy or
whatever their concern is.
Mr. Loewen: We have received ...
Mr. McConnell: Well, let's just stick to the tree house.
Mr. Loewen: I am. I am sticking to it, believe me. As their counsel brought up that crotchety and a few other
things...
Mr. McConnell: I am not going to get into that.
Mr. Loewen: I understand that, but I would just like to say that there is no other place for us to put a tree house.
That is what we wanted to provide for our children is a tree house, like the other gal said, to keep the kids away from
the video games and the other nonsense that a lot of other kids are getting into these days, too. If the City wishes to
regulate that and if they wish to regulate it at a City Council meeting, without notification of me, I think that is
failure of due process, and I would like you to please note that.
Mr. McConnell: Thank you. Now, is there anything else from anyone before I turn it back over to staff? Yeah,
you will get your chance.
Ms. Gruwell: As you noted that the Loewen's property probably, and it is very common with subdivisions, the
trees are really all on the setbacks because that's the only ones we tend to save. In the Skeels letter, I just wanted to
point out that it appears they are talking about the Loewen's property, but since they say it is adjacent to City Park, it
must be Mrs. Heck's tree house, I believe, that they are referring to. Anyway, it's not the proper address, and I gave
you the address map there so you could tell that.
Ms. Gruwell: My impression was Mr. Kemper was saying that the exceptions were all related to things that were
pertinent to the house as if accessory buildings were not included. I did have in my staff report about accessory
structures, which is in Edmonds Community Development Code 16.20.050. It does talk about accessory buildings
and structures shall meet the standard, and then it provides for a five foot setback for an accessory building. So I
think it is clear that even accessory buildings have to meet structures so it is not just the house.
Ms. Gruwell: You know, I am certainly, I am sure that I am guilty of this, we all, each in our own division, we
have so many regulations that we need to look at that when somebody calls us we do tend to like go down our
checklist of regulations and then say, oh, it's not regulated, okay you are set. But often, we really only mean as far
as the Planning Division you have no regulations. So I am afraid what's been happening is when they call the
building division, the building division is saying, oh, accessory structure under 120 square feet, it's not regulated,
when in fact, on their handout, which if you want, you can get from downstairs, on the things that are exempt, it
does specifically make a note that you do have to meet setbacks. So even though, as far as the building division is
concerned, they're not regulated, they still have to meet setbacks. They just don't have to come in for a building
permit, in which case, we could check them more easily. So I am afraid maybe that's what's happening. When you
call the building division they are just going down their whole list of check list that they need to worry about and
saying, it's not regulated. So I am sorry if that's what's happening. That's all I have to say.
Mr. McConnell: All right. Mr. Loewen.
Mr. Loewen: Mark Loewen again. I went as far as coming down to the building department to find out if there
was, you know there's a printed sheet down there that has the type of things that are not requiring a permit. No
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where on that printed sheet does it say anything specifically about tree houses. So, I mean, I did do my homework
before I started this thing. That's all I have to say.
Mr. McConnell: Do you know what I think I am going to do is pick one up on the way out, one of those sheets.
What is it called? I'll list it as Exhibit F.
Ms. Gruwell: I think its Construction Exempt from Single -Family Building Permits or something to that effect.
Mr. McConnell: Okay. That exempt list is going to become my Exhibit F, and I will pick it up on the way out this
afternoon. Is there anything else before I close it? Okay, I will close the hearing, and I will have a written report out
within two weeks. Thanks for coming and participating.
I TESTIFY THAT THESE VERBATIM TRANSCRIPTS ARE COMPLETE AND ACCURATE TO THE BEST
OF MY ABILITY TO TRANSCRIBE THE PROCEEDINGS.
Karin Noyes, Transcriber
Date
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