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HomeMy WebLinkAbout11-29-2024 - HEX Decision with Appendix A - CODE24-000598 Yadav and Gill 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. Appendix A -- October 22 2024 Renton Code Compli... (Completed 11/02/24) Transcript by Rev.com Page 1 of 7 Appendix A October 22, 2024 Hearing Transcript Yadav Code Enforcement -- CODE24-000598 Note: This is a computer-generated transcript provided for informational purposes only. The reader should not take this document as 100% accurate or take offense at errors created by the limitations of the programming in transcribing speech. A recording of the hearing is available at the City of Renton Community and Economic Development Department should anyone need an accurate rendition of the hearing testimony. Examiner Olbrechts: (00:24): Alright, it's October 22nd, 2024, 10:00 AM in Fallbrook's Hearing Examiner for the City of Renton. We have a hearing this morning on a code compliance appeal case number 24 dash 0 0 0 5 9 8. Looks like we have the appellant with us today, Mr. Yaddo. And who's going to be representing the city on this one? Arborist Golzarian: (00:46): It'll be myself, Eric, and then Gabrielle inspecting our you. Examiner Olbrechts: (00:51): Okay. Alright. Well I guess we have all the necessary participants. So let's deal. First things first are the exhibits that the city has the burden of proof in this case. So they have to produce evidence that shows that the violations alleged in the notice of violation have actually occurred. Mr. Yado, are you contesting that? Are you disputing the fact that you cut the trees? Does the city need to prove that? Appellant Yadav: (01:15): No, no. I can. I did it. I'm not lying it, I was taking care of the area over there. I was doing all the maintenance and everything over there. I did not know last few years I was all the gathering and stuff, I was taking care of it and I just trim it. That's all I have to say. I did it not denying. Yeah. Examiner Olbrechts: (01:35): Okay. Appellant Yadav: (01:35): And one of the three was already dying before even I dreamed that one. It was already dead. I remove it, but yeah. Examiner Olbrechts: (01:43): Okay. Well, let me put you in under oath as I will all the other participants, Mr. Y, I'll just raise your right hand. Do you swear affirm to tell the truth, nothing but the truth in this proceeding? Speaker 4 (01:53): Yes, I do. Appendix A -- October 22 2024 Renton Code Compli... (Completed 11/02/24) Transcript by Rev.com Page 2 of 7 Examiner Olbrechts: (01:54): Okay. And you're saying you did cut the trees as alleged in the notice of violation? From what I recall, that's a total of three trees. Is that correct? That you topped? Appellant Yadav: (02:04): Yes, I did. Examiner Olbrechts: (02:05): One Appellant Yadav: (02:05): Of them is already dead, but I did not remove it, but I did top it. Yeah, Examiner Olbrechts: (02:10): I did. Okay. So what was the purpose of your appeal then? Are you saying you shouldn't pay the fines because you didn't know that was a violation or what's the Appellant Yadav: (02:20): That's what I'm asking it. If you can reduce the fine, some of the fine and that tree, I will put the new one in there. As long as I know what kind of tree was that, I can plant the new one in there. Okay. Examiner Olbrechts: (02:30): Okay. Alright, well let me get the exhibits in the record too, just so we have a complete administrative record here. And Mr. Yado, did you get a copy of the, I'm going to flash these on the screen here, see if I can find it. Yeah. Did you get a copy of the city's agenda packet, which was composed of, pardon? Speaker 4 (02:50): Yes, yes Examiner Olbrechts: (02:50): I did. So there were a total of three exhibits. The code compliance narrative, the notice of violation, and that's right. Okay. Alright. So I'll admit those into the record. Well, let me ask the city what they, Mr. Ya just, and Mr. Yado, why are you requesting reduction in fine? Is it because you didn't know that what you did was illegal? Appellant Yadav: (03:08): I didn't know. Yeah. And last few years I was taking care of the area. There's a bus stop, people throw lots of trash over there. I was maintaining everything over there. And yeah, I won't go anymore on that area anymore. I won't touch anything over there. Examiner Olbrechts: (03:22): Why did you find it necessary to top the trees? Appellant Yadav: (03:25): Appendix A -- October 22 2024 Renton Code Compli... (Completed 11/02/24) Transcript by Rev.com Page 3 of 7 I didn't know I was taking care of four or five years and there were some of that on branches that's going on the side of the road. So I just Examiner Olbrechts: (03:33): Oh, you did it to clear for the cars and just to make it look better. Okay. Alright. Well, let me ask the city, how do you feel? What's your position on the fines and how much they should be? Arborist Golzarian: (03:46): Yeah, hello. So I'm Gabrielle Azar. Examiner Olbrechts: (03:48): I, okay, Gabrielle, let me swear in. Just raise your right hand. Do you swear affirm and tell the truth nothing but the truth in this proceeding? Arborist Golzarian: (03:54): I do. Examiner Olbrechts: (03:54): Okay, great. Go ahead. Arborist Golzarian: (03:56): Okay, so this is a high priority corridor. So I monitor it often, and these trees are relatively new. They were in good shape except the tree number one tree asset id 3 88 3 6. It wasn't declined, but it wasn't dead yet. But it was something that I was monitoring. Part of my duties as the inspecting arborists is to make sure that trees are not growing into the side of the road. And if they are, it's my responsibility to take care of them. The tree, those trees were not posing a hazard or any sort of site line obstruction to that road, therefore I had not pruned them yet. According to Renton municipal code four dash six dash 0 6 0, which is street standards maintenance responsibilities, unless otherwise agreed upon by the city of Renton, maintenance of landscaping within planting strip areas, including but not limited elements such as round cover turf, softscape, and hardscape is the responsibility of the adjacent property owner. (04:58): Maintenance for street trees within the public right of way shall be the responsibility of the city. So that being said, in the city of Renton, to summarize all responsibility for the right of way, including the street and all of the vegetation, excluding trees, is the responsibility of the abutting property owners. So it was correct to do the maintenance in that right of way, but it is incorrect to do anything regarding the tree. That's something that they can submit a rent and response request, and then the city inspecting arborist myself will come out and handle that. We are working constantly on trying to get that information out there, but above all, it is the resident's responsibility to read the code and be aware of what the rules are regarding all rules inside the city, whether business or just living inside. I feel like the fines are fair. We're going to leave. We've said that we would leave the two trees in there because they can potentially grow. They're young enough that they might be able to withstand the topping that happened and still have decent structure, but the fine of $750 per tree, so a total of $2,250 in total I think is totally fair considering how much money and time has gone into planting the trees. Examiner Olbrechts: (06:20): Appendix A -- October 22 2024 Renton Code Compli... (Completed 11/02/24) Transcript by Rev.com Page 4 of 7 So how are the fines computed? I looked at the code, it made reference to some kind of an appraisal document for trees. Is that how that was done or where did that come from? Arborist Golzarian: (06:30): So the urban forester, Ian Gray, who's not here today, uses a appraisal document that Purdue has put out where it takes into consideration the condition of the tree, its age, its size, it's bigger, and how much money that tree was putting out for the community, whether that's, some of those benefits are carbon sequestration, oxygen production shade, and air purification as well. So those trees are providing value to the city and we see tree topping as diminishing the return of that asset to the community. Just like it would be bad for someone to take their car and go down a stop sign and cost time and money to put that stop sign back up, if that makes sense. There's where these fines come from. Examiner Olbrechts: (07:23): Okay. Okay. Let me, and just the notice of violation is a bit, it's got some contradictory information on there. I'm going to try to share my screen here if I can. Let's see. Oh, here it is. Okay. I mean, the first page of the notice of violation says, where's that? Yeah, any such person shall be assessed a monetary penalty of up to $250 per violation and you're just alleging one violation yet charging 2000. And it doesn't sound like you base the fines on the civil infraction. The first page of the notice says, I'm just kind of curious why there's that, what appears to be conflicting language in the notice of violation itself? Arborist Golzarian: (08:21): That's because technically it's three violations, three trees were to. Examiner Olbrechts: (08:25): Okay. Okay. So whenever you have, because you said the violation was based on the tree appraisal guidelines, and yet, are you basically using the tree appraisal guidelines and then putting a maximum of two 50 on that? Is that how it's done? Arborist Golzarian: (08:42): The tree appraisal guide is something that is used in the planning and development section of the code. It's often used for developments when we're figuring how many trees are being removed and then how many trees are going to be reinstalled. And then the two 50 is a soft point that we put in instances like this. So we could technically charge more. Speaker 4 (09:07): Oh, Arborist Golzarian: (09:08): Okay. But we recognize that. I recognize that the person probably did not understand the code. So we're giving a lighter, Examiner Olbrechts: (09:16): The Arborist Golzarian: (09:16): Appendix A -- October 22 2024 Renton Code Compli... (Completed 11/02/24) Transcript by Rev.com Page 5 of 7 Violation, we're not charged because the code is technically geared, like I said, towards permanent and development. So we would charge a lot in that. But because this is a private business owner, we're doing the lighter of this. Examiner Olbrechts: (09:28): Okay, gotcha. And when did this law come into effect? We haven't had too many tree cases. I think maybe a couple. I mean, I saw that the code, oh, sorry, go ahead. Arborist Golzarian: (09:40): This code has been in place for a long time. We're actually currently working on revamping it as well because we are finding that there are more instances of tree removal, tree topping and what have you. So odds are likely that we're going to see more and more of these cases as we take these more seriously because we're losing so much of our canopy coverage. But these codes have been in place for a long time. You are just going to be seeing more cases going forward. Examiner Olbrechts: (10:05): Oh, okay. Is it 2019, is that when it was first to adopt? Because I saw there were references in the online code to ordinances related to this as being adopted in 2019. Is that when that was first put into effect? Arborist Golzarian: (10:20): I don't recall. Examiner Olbrechts: (10:21): Pardon? Arborist Golzarian: (10:23): I don't know myself. Examiner Olbrechts: (10:24): Oh, okay. Okay. Alright. Anything else from the city side? Arborist Golzarian: (10:28): That's Speaker 4 (10:28): Everything. Examiner Olbrechts: (10:28): Okay. And I was kind of curious, I mean, how many times have people been cited for doing the unauthorized tree cutting of city tree trees in the last few years? Has that happened several times or? Arborist Golzarian: (10:41): Yes. My record for, I've been with the city for about three years and I've probably filed about 43 cases. Appendix A -- October 22 2024 Renton Code Compli... (Completed 11/02/24) Transcript by Rev.com Page 6 of 7 Examiner Olbrechts: (10:49): Oh, okay, okay. Yeah, because one of the considerations I have is if it's something that's relatively unknown and not many people have been cited, then there's more cause to say for an appel to say, I didn't know about this. It sounds like you city's been pretty active in enforcing this though in the last few years. You want to tell me. Arborist Golzarian: (11:10): I would also like to make it known, the Urban Forestry program has done a lot as far as putting out brochures, attending farmer's markets, doing programs with the neighborhood program where we do outreach. So as far as a department of two people for a city of this magnitude, we do a lot of work to do outreach. We recognize that it might seem unfair to go after businesses and residents who claim ignorance of the law, but there are so many other things that people don't know that they can still get fined. For example, stormwater infractions or not setting up proper sediment barriers. When you're installing a garage, you have to have those barriers because they don't go into the storm drain, but still an egregious mistake, therefore. Examiner Olbrechts: (11:51): Okay. And will the topping of the trees that was done for this case, will that cause irreparable damage to the trees? I know if you do it wrong, it might, might. Arborist Golzarian: (12:01): The location is considered a pavement island, so those trees are surrounded by heat latent sources. It's possible that the trees could die from the topping, but I feel like charging the fine is going to be cheaper than having the trees removed, improving the landscaping strip and then replanting the trees and then committing to watering them. So this is still cheaper to pay the fine than it is to do the whole planting, replanting and maintenance of the lost infrastructure. Examiner Olbrechts: (12:36): Okay, great. Alright, Mr. Yadav, any final comments? Appellant Yadav: (12:41): Yes, I told you, I mean, yes, I did it. I didn't know that. I didn't know about the law. I was taking care last four or five years. I was the one who planted those trees that time. I'm sorry, I did it. So that's all. But one of the trees already was dead and I did pop out that one, so Examiner Olbrechts: (13:01): I can Appellant Yadav: (13:02): Put the new one in there. Examiner Olbrechts: (13:03): Okay. Okay, great. Understood. Alright. Okay. Well, yeah, I think since I've been with Renton since 2011 or something, this is maybe just the second or third tree case I've had, maybe the first one that dealt with cutting street trees. I mean, I hate to see businesses get these big fines. I also understand the city's Appendix A -- October 22 2024 Renton Code Compli... (Completed 11/02/24) Transcript by Rev.com Page 7 of 7 need to protect and preserve these trees. They're a big factor in quality of life for the city of retina as they are in any community. So I'm going to need some, just a little time to think about this one and see what I can do. And like I said, I'll issuing a written decision in a couple of weeks. So I think that's about it. So thank you Mr. Yadda, for being cooperative and being upfront. And that's an important consideration in these cases and I appreciate the city's of course, diligence in taking care of the city's tree scape. So anyway, like I said, I'll get that decision out in the next couple of weeks and I thank y'all for participating where you are adjourned.