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HomeMy WebLinkAbout11-29-2024 - HEX Decision CODE24-000598 Yadav and Gill - Tree violation Code Enforcement Decision - 1 BEFORE THE HEARING EXAMINER OF RENTON DECISION FILE NUMBER: CODE24-000598 ADDRESS: 2800 NE Sunset Blvd, Renton, WA 98058 PROPERTY OWNER: Kapic Yadav/Yadav and Gill, LLC dba Sunset Shell 2800 NE Sunset Blvd. Renton, WA 98058. REVIEW AUTHORITY: City of Renton TYPE OF CASE: Finding of Violation DISPOSITION: One violations of topping street trees without a vegetative permit is sustained for a fine of $250 due within 15 days. INTRODUCTION Kapic Yadav appeals a Finding of Violation (FOV) alleging three code violations for topping three Renton street trees without an approved routine vegetative management permit. Mr. Yadav admits to topping the three trees. Mr. Yada is found to have violated RMC 4-4-130.D.2 for failing to acquire a routine vegetative management permit to top the three trees. Since Mr. Yadav is permitted to top two trees within a one year period without such a permit, he is only found to have committed one violation of RMC 4-4-130.D.2 for failing to acquire the permit upon cutting the third tree. The fine for this violation is limited to $250 because the FOV erroneously identified the fine as $250 per violation. HEARING The hearing on the appeal was held virtually on October 22, 2024 at 10:00 am via the Zoom application. TESTIMONY A computer-generated transcript of the hearing has been prepared to provide an overview of the hearing testimony. The transcript is provided for informational purposes only as Appendix A. Code Enforcement Decision - 2 EXHIBITS Exhibits 1-3 of Code File 24-000598 were admitted into the record during the October 22, 2024 hearing. FINDINGS OF FACT 1. Appellant. The Appellant is Kapic Yadav of 2800 NE Sunset Boulevard, Renton, WA 98058. 2. Violation Site. The violation site is the Appellant’s business, 2800 NE Sunset Boulevard, Renton, WA 98058. The Appellant, Kapic Yadav, is the owner of the violation site. 3. Appeal. This decision addresses Mr. Yadav’s appeal of an FOV alleging the unauthorized topping of street trees in violation of RMC 4-4-130. The FOV was issued on August 21, 2024. Mr. Yadav filed his appeal on September 3, 2024. 4. Violations. The City alleges Mr. Yadav violated RMC 4-4-130 by topping three Renton owned street right of way trees adjacent to Mr. Yadav’s business at 2800 NE Sunset Boulevard in Renton, WA 98058 without a required routine vegetative management permit. Mr. Yadav admitted to topping the trees at his October 22, 2024 appeal hearing. Mr. Yadav did not admit to doing the topping without a required vegetative management permit and was not asked if he had acquired such a permit. The FOV also did not specifically allege that Mr. Yadav had failed to acquire the permit beyond quoting from the code section requiring the permit. However, given that the City would not have made the charge if he had acquired the permit and also that Mr. Yadav did not dispute that he failed to acquire the permit, it is determined that more likely than not he did not acquire the vegetative management permit for the tree topping. The FOV also fails to allege that the caliper of the topped trees exceeds six inches, thereby qualifying as significant trees. No testimony was provided by any party as to the caliper of the trees. However, the photographs of Ex. 2 establish that more likely than not the caliper of the three trees topped by Mr. Yadav exceed six inches. The FOV also fails to allege the time period in which three trees were topped. However, the FOV does allege that the trees were “freshly” topped and from this it is determined that more likely than not the trees were topped within a year preceding the issuance of the FOV. CONCLUSIONS OF LAW 1. Authority of Examiner: The Hearing Examiner has the authority and jurisdiction to review code violation as provided in RMC 1-10-5. 2. Evidentiary Standard. RMC 1-10-5C4 requires that violations alleged in an FOV be established by a preponderance of evidence. 3. Code Violations. The code violation alleged in the FOV for the subject appeal, CODE24- 000598, is quoted below in italics and applied to the Findings of Fact of this decision through corresponding Conclusions of Law. Code Enforcement Decision - 3 RMC 4-4-130(D)(2)(a): Tree Removal or Vegetation Management Without the Required Permit: a. Tree removal in excess of the limits established in subsection C9 of this Section, Minor Tree Removal Activities, is prohibited unless a routine vegetation management permit or land development permit has been granted…. RMC 4-4-130(C)(9): Tree removal, vegetation management, and associated use of mechanical equipment is permitted as follows, without the requirement of a routine vegetation management permit, except as provided in subsection D3 of this Section, Restrictions for Critical Areas – General, and in RMC 4-3-110, Urban Separator Overlay Regulations: … 9. Removal of up to two (2) significant trees within a one-year period, but no more than five (5) significant trees within a five (5) year period, … RMC 4-11-200 Definitions T (Y): … 4. Tree, Significant: A tree with a caliper of at least six inches (6"), except alder or cottonwood trees, which qualify as significant trees with a caliper of eight inches (8") or greater. Trees certified as high-risk shall not be considered significant. RMC 4-11-200 Definitions T (Tree Topping): The act of removing whole tops of trees, or large branches and/or trunks from the tops of trees, and leaving stubs or lateral branches that result in the disfigurement of the canopy. Tree topping is considered to be tree removal. Other common names for the practice include “hat-racking,” “lopping,” “heading,” “rounding over,” and “tipping.” 4. Violation of RMC 4-4-130.D.2 sustained. One alleged violation of RMC 4-4-130.D.2 is sustained. RMC 4-4-130(D)(2)(a) as quoted above requires a vegetative management permit for removal of three or more significant trees within a one-year period. The RMC 4-11-200 definition for tree topping identifies that tree topping “is considered to be tree removal.” As determined in Finding of Fact No. 4, the three trees topped by Mr. Yadav all had calipers exceeding six inches and thus qualified as significant trees. As further determined in Finding of Fact No. 4, Mr. Yadav topped those three significant trees within a one-year period without a vegetative management permit. On this basis, Mr. Yadav is found to have removed more than two trees without a vegetative management permit within a one year period and has thus violated RMC 4-4-130.D.2. The FOV construes Mr. Yadav’s tree topping as three separate violations of RMC 4-4-130.D.2. However, Mr. Yadav is only required to obtain a tree vegetative management permit for the topping of more than two trees in a single year period. In this regard Mr. Yadav was permitted to top two trees without a permit and was only in violation of RMC 4-4-130.D.2 once he topped the third tree. For this reason, only the topping of the third tree is considered a violation of RMC 4- 4-130.D.2. Mr. Yadav is found to have only committed one violation of RMC 4-4-130.D.2. It is recognized that the FOV also references a violation of RMC 9-13-6. RMC 9-13-6 prohibits the removal of any number of healthy street trees when done so without City approval. However, Code Enforcement Decision - 4 RMC 9-13-6 was only referenced in the “corrective action” section of the FOV. It was not cited as an alleged violation. Due process requires clear notice of violations before the imposition of penalties. Ted Lapidus, S.A. v. Vann, 112 F.3d 91, 96 (2d Cir. 1997). The subject FOV only alleged a failure to acquire a routine vegetative management permit in the violations section of the FOV. Given this formatting, Mr. Yadav could have reasonably believed that the only violation at issue was failure to acquire a vegetative management permit. 5. $250 Penalty. Mr. Yadav’s single violation of RMC 4-4-130.D.2 is subject to a $500 penalty due to misleading FOV text on the penalty amount. The first page of the NOV erroneously identifies that “[t]he violation(s) listed below are deemed a Class 1 Civil Infraction pursuant to Chapter 7.80 RCW, and any such person shall be assessed a monetary penalty of up to two hundred fifty dollars ($250.00) per violation.” Instead of applying the $250 maximum penalty as “deemed” by the first page of the FOV, the second page then identifies that the maximum penalty for tree violation is up to $2,000 per violation and then imposes a penalty of $750 for each of the three alleged violations for a total fine of $2,250. At best, the $250 language is misleading and at worst erroneous. When a special statute punishes the same conduct that is punished under a general statute, the State has no charging discretion. The accused can only be charged under the special statute. State v. Cann, 92 Wn.2d 193, 197, 595 P.2d 912 (1979). Under the Cann decision, the penalties for tree violations are arguably a “special statute” that overrides the general $250 penalty applicable to all offenses. If Cann applies, the first page of the NOV erroneously “deemed” the violations as civil infractions subject to a $250 fine. If Cann does not apply, then the $250 language was misleading and confusing, leading the reader to believe that no more than $250 could be charged for the offenses alleged in the NOV. Obviously, if the City was not intending to impose the $250 penalty there was no need to mention it. The $250 language should have not have been included in the FOV. Either as erroneous or misleading, the conflicting FOV penalty language failed to provide the clear notice required by due process as previously referenced in Ted Lapidus, S.A. v. Vann, 112 F.3d 91, 96 (2d Cir. 1997). The ambiguity of applicable penalties in the NOV is resolved in favor of Mr. Yadav and the penalty per violation is limited to $250. Cf. State v. Cromwell, 157 Wn. 2d 529, 545 (2006)(ambiguities in criminal statutes must be resolved in favor of defendant). As found DECISION One violation of RMC 4-4-130.D.2 for topping more than two significant trees within a year without a vegetative management permit is sustained. A fine of $250 is imposed, due and payable within 15 days of the issuance of this decision. DATED this 29th day of November, 2024. Phil Olbrechts City of Renton Hearing Examiner Code Enforcement Decision - 5 NOTICE OF RIGHT TO APPEAL AND RECONSIDERATION Appeal to Superior Court. An appeal of the decision of the Hearing Examiner must be filed with Superior Court within twenty-one calendar days, as required by the Land Use Petition Act, Chapter 36.70C RCW.