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HomeMy WebLinkAbout09-02-2021 - Lifto HEX Decision - full Code Enforcement Decision - 1 BEFORE THE HEARING EXAMINER OF RENTON REPORT AND DECISION – APPEAL OF FINDING OF VIOLATION FILE NUMBER: FOV#: CODE21- 000251 VIOLATION ADDRESS: Eric Lifto 1809 NE 27th St. Renton, WA 98056 PROPERTY OWNER: Same address as violation site. REVIEW AUTHORITY: City of Renton TYPE OF CASE: Appeal of Finding of Violation RULING: Violation Sustained and costs/fine reduced from $9,500 to $5,000. SUMMARY Erik Lifto has appealed a Finding of Violation assessing $9,500.00 in remediation costs for the unauthorized removal of a street tree fronting his single-family residence located at 1809 NE 27th St, Renton, WA 98056. The assessed costs are reduced to $5,000.00. Up to $2,250 of those costs may be applied to landscaping on Mr. Lifto’s property that enhances the street frontage of Mr. Lifto’s property. This was an exceptionally difficult case to resolve because Mr. Lifto clearly did not initially intend to damage City property or violate any City regulation. However, in the middle of his illegal actions he was advised that he was acting contrary to code and kept on going anyway. He initially honestly believed that he was cutting down his own tree and was unaware that he needed any City authorization to do so. However, after Mr. Lifto’s arborist had removed a couple branches from the tree, Mr. Lifto was advised that removing the tree was contrary to City code and that the removal work must stop. Mr. Lifto was (and is) in Guam when all this happened and was advised through his arborist that he was required to stop work. From these communications, Mr. Lifto’s understanding was that the City couldn’t stop him from cutting the tree, but that if he did so his fines would be larger. On the day he was approached by the City for his illegal activity, Mr. Lifto left a six-minute phone message on the voice mail of a City phone number given to him to resolve the situation. No one from the City returned his call so Mr. Lifto went ahead and had the rest of the tree removed, down to its stump. Code Enforcement Decision - 2 Mr. Lifto testified that since the City didn’t return his call he concluded that the violation wasn’t a “big deal” and so he went ahead and had the rest of the tree removed. Mr. Lifto stated he waited a week before doing so. This wasn’t precisely true since he was told to stop cutting on May 14, 2020 and a City tree arborist found additional cutting had occurred on May 20, 2020. Regardless, Mr. Lifto was at the very least put on notice that he may be in violation of City regulations and assumed to take the risk of moving forward anyway. Reading between the lines, most likely Mr. Lifto knew full well that he was hazarding some fines but didn’t realize they would be in the thousands of dollars as opposed to hundreds of dollars. Mr. Lifto was told by his arborist on May 14, 2021 that his fine would be $300 if he stopped then. The $9,500 was probably not what Mr. Lifto had in mind when he decided to move ahead and pay what was coming. Ultimately, it must be concluded that although Mr. Lifto acted in knowing violation of City ordinance. However, that misconduct doesn’t justify $9,500 in costs. Significantly, this was not an “act first and ask for permission later” scenario, since Mr. Lifto didn’t know he was in violation when he started and he made some effort to resolve the situation once he was apprised of his code violation. It is also of significance that there is no suggestion in the record that removal of the tree would increase Mr. Lifto’s property value or facilitate additional development. The only motivation for Mr. Lifto’s conduct apparent from the record is that he believed the tree was a hazard and had to be taken down. There is no question that the City should be reimbursed for the costs of replacing the tree and removing the remnants of the existing tree. Those are actual financial costs that will have to be borne by City taxpayers as a result of Mr. Lifto’s actions. The tree removal and replacement costs total $2,750.00 and that amount should be paid by Mr. Lifto. The remainder of the $9,500 assessed against Mr. Lifto, $6,750, is the code-based value of the tree that was removed by Mr. Lifto. As this is not an actual cost that the City will bear, there is some room to reduce it to fit the culpability of Mr. Lifto’s actions. For the reasons identified in the preceding paragraph, Mr. Lifto should not be placed in the same category of violators as persons who intentionally violate the City’s tree regulations to increase their property value. Compared to that type of culpability, an equitable reduction of the $6,750 cost would be a 2/3 reduction to $2,250 for a total cost of $5,000. Mr. Lifto had mentioned that if he has to pay $9,500 for the code violation he won’t have sufficient funds left over to landscape his front yard. Mr. Lifto can apply up to $2,250 of his $5,000 cost assessment to landscaping on the frontage of Mr. Lifto’s property to the extent that landscaping enhances his street frontage. HEARING A virtual hearing on the appeal was held on August 10, 2021 at 9:30 am, Zoom ID No. 836 3908 4739. The hearing was left open through August 17, 2021 for comments on the exhibits presented by the City. TESTIMONY A computer-generated transcript has been prepared of the hearing to provide an overview of the hearing testimony. The transcript is provided for informational purposes only as Appendix A. Code Enforcement Decision - 3 EXHIBITS Exhibits 1-8 identified in the staff’s exhibit list were admitted into the record after a post-hearing opportunity for comment and objection by the Applicant. The following exhibits were also considered and are admitted into the record: Exhibit 9: Lifto PowerPoint Presentation Exhibit 10: August 17, 2021 Lifto Email plus attached call log Exhibit 11: August 24, 2021 email from Kevin Louder with attached City Ex. 9 and 101. FINDINGS OF FACT 1. Site and Owner. The violation site is 1809 NE 27th St., Renton, WA 98056. The owner of the property is Eric Lifto. See Ex. 7. 2. Appeal. Mr. Lifto appeals a Finding of Violation issued on June 8, 2021 for violations based upon a site visit by a City arborist consultant on September 14, 2021 and September 20, 2021. Mr. Lifto’s appeal was received by the Renton City Clerk’s Office on June 23, 2021. The Finding of Violation (“FOV”) alleges that Mr. Lifto damaged a tree at his “site” in violation of RMC 9-13-8. The FOV seeks $9,500 in costs composed of $2,200.00 for costs of stump grinding/removal; $700.00 for tree replacement and $6,750.00 for lost value of the damaged tree. See Ex. 3. 3. Tree Damage. Mr. Lifto was responsible for the damage to the tree at issue. Mr. Lifto does not dispute this central fact. He acknowledges that he hired an arborist to remove the tree at issue as alleged in the FOV. See Transcript (Tr). Mr. Lifto had the tree removed down to its stump. The tree was an Austrian Pine with a 30” diameter at breast height (dbh). See Ex. 5. 4. Tree Location. The tree at issue was a City street tree located in City right of way. Mr. Lifto had understood the tree to be on his property given that the City had asked for permission to cut down a tree in the same area in the past. Tr. at 21. However, Mr. Lifto did not dispute the City’s position at hearing that the tree was located on city right of way. The City backed its position with a parcel aerial map that showed the tree in City right of way. See Ex. 6. 5. Cost of Damage. The costs to remedy Mr. Lifto’s damage is composed of $2,200.00 for costs of stump grinding/removal and $700.00 for tree replacement. Mr. Lifto does not dispute these costs. These costs were computed by Anne Jones, a city consulting arborist inspector. See Ex. 2. Mr. Lifto asserts that he should not be charged for the tree removal, which is primarily limited to removing the stump from his street frontage, because the City did not remove two stumps for trees it removed from his property in 2019. Ex. 11. To ensure that the City uses the monies assessed against Mr. Lifto, this Decision conditions City retention of the funds on using them within a year of receipt. 1 Mr. Lifto submitted an email reply to Mr. Louder’s August 24, 2021 email. Since his email reply was not authorized, Mr. Lifto’s August 24, 2021 email was not admitted into the record. Code Enforcement Decision - 4 As required by RMC 9-13-9(A), Ms. Jones also applied the Guide for Plant Appraisal Trunk Formula Method to compute the value of the removed tree as $6,750.00. This was based upon a value of $225 feet per dbh inch for the 30 dbh inch tree. See Ex. 2. Mr. Lifto did not contest this value either. 6. Culpability. Mr. Lifto was not aware he needed City permission before cutting down the tree. As previously noted, the City asked him permission to cut down a tree in the same area in a prior incident. Mr. Lifto had also cut down another tree in the same area in 2016 or 2017 when advised by the City he was responsible for cutting it down because his neighbors had believed it to be dangerous. Tr. at 14. However, after his arborist had cut down a couple branches from the tree subject to the FOV, on May 14, 2021 a City arborist consultant advised his arborist that cutting down the tree was unlawful without City approval. Mr. Lifto’s arborist relayed this information to Mr. Lifto on the same day. A City phone number was also relayed to Mr. Lifto for resolution of the incident. Mr. Lifto then left a six-minute voicemail at the phone number, explaining the situation. Ex. 10. Mr. Lifto’s call was never returned. Tr. at 5. Mr. Lifto testified that after not getting a return call after a week, he had his arborist continue with removal of the tree. In point of fact Mr. Lifto’s arborist re-initiated the tree removal six or less days after Mr. Lifto’s phone call, since the City’s arborist consultant saw and photographed the additional work on May 20, 2021. See Ex. 2. Mr. Lifto justified his actions with testimony as follows: So I got a message, the messenger from the arborist saying that someone from the city came by and I got sort of a, it was limited information. It was simply someone came by and said that you're in violation and that if you stop now, you should stop now or you're if you're going to continue, get a bigger fine. But you can continue, but we can't stop you from continuing. Tr. p. 18. In a prior comment, Mr. Lifto noted that if he stopped cutting when he was warned on May 14, 2021 that his fine would be limited to $300. Tr. p. 12. CONCLUSIONS OF LAW 1. Authority of Examiner: The Hearing Examiner has the authority and jurisdiction to review code violations as provided in RMC 1-3-2. 2. Code Violation: The FOV under appeal, Ex. 3, is based upon the violation of Renton Municipal Code (RMC) 9-13-9. RMC 9-13-9 is quoted below in italics and applied through associated Conclusions of Law. RMC 9-13-9(A): Damages to Trees: Damage to street trees shall be repaired by the City and the costs of repairs invoiced to the abutting property owner, or the person(s) whom caused the damage if known by the City. Damages shall be assessed by the City arborist using the most recent edition of the Guide for Plant Appraisal Trunk Formula Method. Where damage is severe, the City arborist may require the removal of the tree instead of repair. The abutting property owner or Code Enforcement Decision - 5 person(s) whom caused the damage shall pay all costs of removal, including all site renovation costs, the damages assessed according to the Guide for Plant Appraisal and tree replacement costs. 3. Violation Sustained. Mr. Lifto violated RMC 9-13-5 by having his arborist remove a tree within City right of way on or about May 14, 2021, May 20, 2021 and other dates thereafter. The FOV technically fails to identify Mr. Lifto’s code violation. The code violation at issue is RMC 9-13-5, which prohibits persons from removing trees in public right of way without a City permit. The FOV in this case only cites to RMC 9-13-9(A), quoted above, which identifies the consequences for violating RMC 9-13-9(A). However, at the time of the appeal hearing it was clear that Mr. Lifto understood the charge against him, specifically that he removed a tree without City authorization. As determined in Findings of Fact No. 3, 4 and 6, Mr. Lifto removed a tree located within City right of way by directing his arborist to do so on May 14, 2021, May 20, 2021 and other dates thereafter. 4. Remedial damages sustained. Pursuant to RMC 9-13-9, quoted above, the City’s consulting arborist correctly determined the costs of site renovation and tree replacement for a total of $2,900.00. RMC 1-3-2E3f: Imposition of Fines: The fines for a committed Finding of Violation shall be considered based on the nature of the offense, the impact on the neighbors, neighborhood, or community and the need to discourage such conduct, inactivity or neglect. The Administrator is authorized to impose fines up to and including the maximum fines, or to mitigate the fines, as the Administrator sees fit based on the criteria herein. The payment of a fine does not prevent the City from asserting that the violation continues to exist or from asserting that a new violation has been found. 5. $6,750.00 Tree Value Reduced to $2,250.00. Since the value of the removed tree computed under RMC 9-13-9(A) is not a cost that will be incurred by the City due to Mr. Lifto’s actions, it is construed to qualify as a fine under RMC 1-3-2E3f quoted above. As a fine, it should be reduced to $2,250.00 for the reasons identified in Finding of Fact No. 5 and the Summary section of this decision. DECISION Mr. Lifto is found to be in violation of RMC 9-13-5 for removing a tree within City right of way without City authorization. He is subject to costs and fines pursuant to RMC 9-13-9(A) for a total of $5,000.00 with the following conditions/limitations: A. Payment is due within 30 days of the mailing of this Decision. Mr. Lifto and staff are free to set up an alternative payment plan if mutually agreed upon. B. $2,250 of the costs/fines can be applied towards landscaping on Mr. Lifto’s property to the extent that landscaping enhances Mr. Lifto’s street frontage as determined by City staff. Code Enforcement Decision - 6 C. The subject tree stump shall be removed and replaced within one year of full receipt of the $2,900 assessed against Mr. Lifto for tree removal and replacement. Mr. Lifto shall be entitled to a reimbursement of any unexpended portion of the $2,900 if the City fails to completely remove and replace the subject tree within a year of receipt. Decision issued September 2, 2021. Hearing Examiner NOTICE OF RIGHT TO APPEAL 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. This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 1 of 26 Appendix A August 10, 2021 Hearing Transcript Lifto Finding of Violation -- CODE- 21-000251 Mr. Louder: ... we just saw on Exhibit Five. The value determined by [EM Grade 00:00:03], Urban Forestry Manager or Urban Forestry and Natural Resource Manager for the City of Renton. He valued the tree at $6750. This is based on the current fee schedule for a tree is the fee in lieu of basically 225 caliber inches for each, I'm sorry. $225 per caliber inch and this was a 30 inch tree as Exhibit Five pointed out. So that's where the $6750 came from. And then the removal and restoration costs of the site was at $2000 for eight hours of labor with proper traffic control to have that stump ground and any of the remaining trees removed. And then the replacement cost was $700 and that's to plant the tree, the new tree, the installation and the maintenance for it. The totaled issued cost recovery was $9450. The guide for plant appraisals and tree replacement costs, which is referred to in RNC 913-9 as the way to value the tree, lists just the tree alone at $9700. So we've got a definitely conservative approach on the cost that we put in there. Mr. Louder: One thing to note is that Northeast 27th Street is traveled frequently by our city of Renton Urban Forestry staff. Any significant change from the 2019 would have been caught by the professional arborist on staff as the exhibit that Mr. [Lifto 00:01:48] presented about the five warning signs of a dangerous tree, points out in the first sentence. And then at the time that the tree was removed, it did not present an imminent danger of failure as the witness Mr. [Gray 00:02:02] later discuss. This tree was a city asset and was removed without permission from the city arborist. Conditions were not met for either exemption listed in RNC 913-4. RNC 913-9 states, "The abutting property owner or persons who've caused the damage shall pay all costs of removal, including all site renovation costs, the damages assessed, according to the guide for plant appraisal and tree replacement costs." The city stands with a fee of $9450 should be collected in full to replace the unpermitted damage that was caused to the tree inventory. Mr. Olbrechts: Okay. And Mr. [Louder 00:02:43], let's go through your documents then one at a time real briefly so that we can get that into the record. Let's see here. So Mr. Louder, if you could just explain each one, Exhibit One, what's the code compliance narrative? Mr. Louder: So Exhibit One is the code compliance narrative and the code case activity report. So the code compliance narrative, is basically just kind of up to date of what I've done on the case as a code compliance inspector, which you can see is basically I got a report from urban forestry and then I issued a finding of violation and then it was appealed and that's kind of where we're at right now. Mr. Olbrechts: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 2 of 26 Okay. Mr. Louder: And then the activity report is just my case notes in the system, which is pretty limited in this case. Mr. Olbrechts: It's just this one paragraph here, basically? Mr. Louder: It's just the case notes from our inter [inaudible 00:03:38] system. Mr. Olbrechts: And then Exhibit Two is, what's this now? Mr. Louder: So Exhibit Two is the email that I received from the consulting arborist for the city about what basically, this is what initiated my code compliance case. Mr. Olbrechts: Okay. Mr. Louder: She provided a report that describes more in detail the map there of where, on the upper left of what you're sharing right now, a picture of the tree and then in the next one I set condition when she requested the work to stop, what she forwarded me to get the case going on that. And then that's what it was on May 20th. Mr. Olbrechts: So this is May 20th, it was after it was cut, is that right? Mr. Louder: Yes. Mr. Olbrechts: Oh, okay. Mr. Louder: It's now a stump. Mr. Olbrechts: Is it the stump down here? Mr. Louder: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 3 of 26 No, it's actually, that whole stem was removed after May 20th. Mr. Olbrechts: Oh, where's the stump then? This one? Let's see. Mr. Louder: It's going to be lower than that. It's going to be the entire, the tree is just a stump at the bottom now. Mr. Olbrechts: Okay. Mr. Louder: In that picture right there, I didn't take an up to date picture of the tree right now. That right there is consistent with removing the tree with the topping definition for removal out of this, out of the straight tree section. Mr. Olbrechts: So is this the tree in question then we're talking about? Mr. Louder: Yes. Mr. Olbrechts: The one that was... Oh, okay okay. I misunderstood. I thought this was after it had been cut down. So it's after it was- Mr. Louder: Remember the co-dominant stem there? Mr. Olbrechts: Yeah. Mr. Louder: So if you scroll up a little bit, you can see what the tree was on May 14th when she stopped by. See how it had, there was more limbs. There was the co-dominant stem there on the right- Mr. Olbrechts: Right, okay. Mr. Louder: ... on May 14th. Then when you scroll down on May 20th, this is her next inspection where the work had continued, the tree was removed and then even further on like today, even that part is removed. This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 4 of 26 Mr. Olbrechts: So they took it in stages over several couple of weeks or something or? Mr. Louder: I believe so, yes. Mr. Olbrechts: All right. Let's see, next exhibit is the Finding of Violation and Mr. [Lifto 00:06:02], I believe you have this one, right? Or that was sent to you earlier? Mr. Lifto: Correct. Mr. Olbrechts: And- Mr. Lifto: I still don't have an email, I don't know why. I guess to be- Mr. Olbrechts: It still hasn't come in? Who knows what's going on way over there. And this is Mr. Lifto's appeal of that email or the finding of violation and we already got Exhibit Five in. And Exhibit Six says "Tree Request Form." What's that about? Mr. Louder: So the Tree Request Form is basically... Can I call on Ian Gray to explain that a little more since that's with his department? Mr. Olbrechts: Oh okay, well I'll save that for when he talks about it then. Let's see, and Exhibit Seven is the King County Assessor records, just talks about the property, what it's worth, is that right? Mr. Louder: Basically my proof that Mr. Lifto is the owner of the property. Mr. Olbrechts: Okay, all right. So Mr. Lifto, since you haven't gotten this earlier, if you want I can leave the record open and you can have more time to look at these and write a written response if you want in the next few days or you feel you've seen enough I can just admit the documents now. It's up to you how you want to handle it. Mr. Lifto: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 5 of 26 Well, [inaudible 00:07:17]. I do think the exhibit that describes the arborist, a lot of the information is inaccurate in that throughout that that they spoke to the homeowner, "Why do you want possession of the home?" And that's just not the case. My friend Justin's been watching the house for me and no one spoke to him and issued a warning to him. I spoke to the arborist who obviously is not a homeowner and gave me back different information that was presented here. Like I said, no one spoke to me after May 15th. Mr. Olbrechts: Well let me, like I said, what I'll do is I'll leave the record open until let's say Thursday at 5:00 to give you a chance to look over those documents and if you want to add your side of the story to any of those, you can go ahead and email us back. Will that work and I'll let the city respond by next Monday at 5:00 then, [inaudible 00:08:11] right. So we'll say that and then that will also that will be the time if you have objections to any of those other documents as well. So with that, let's move on to Mr. Gray. Mr. Gray, if you could unmute yourself, let me swear you in. Oh I'm sorry, Mr. Lifto, did you have any questions of Mr. Louder before we move on to Mr. Gray? Mr. Lifto: Yes, I had a question. Mr. Olbrechts: Sure, all right. Go ahead. Mr. Lifto: Apparently the arborist [inaudible 00:08:36], arborist left a business card. I was given that business card, picture of it. I called the number on it because they asked the person, she left the card and wanted me to call her. I left a 10 minute long message on that voice mail, explained my situation and the condition of the tree and that I believed it needed to be cut down and the history of the city on fire trees that I've cut back down and no one ever called me back. And so I waited a week and I assumed at that point that the city must've agreed with me that it had to be cut down because no one called me back. Mr. Lifto: And I waited and waited and the tree was already part cut. And so I don't know what a person was supposed to think when no one returns one's call or a number that I was given to speak to about this issue. So I think any reasonable person would assume that it was a big deal to the city, that the whole thing was moot at that point in time. So I was stuck in a hard place. The only information I had was from a business card and my arborist said, he said "You're supposed to get permission first," although all I heard from the arborist was that they told us that we couldn’t continue, but if you did we couldn't stop you. That's all I ever heard from anyone after 8/15. So I just wanted to let you know, I did reach out to the person who came out to the house and no one ever called me back. Mr. Olbrechts: Didn't sound like a question really, but that does raise a question Mr. Louder. Did Mr. Lifto call the wrong person or why didn't city respond to his call? Mr. Louder: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 6 of 26 I know he did not call me, right? Mr. Olbrechts: Uh-huh. Mr. Louder: I don't know who he called or who he spoke with. Looking at the code, there was a city tree removed and there was- Mr. Lifto: It was whoever came to the house, that person who came to the house left her business card. That's the number I called, whoever that person was. Mr. Olbrechts: Oh, they left you a number and you called that number? Okay. Mr. Lifto: A business card, whoever the arborist is. Mr. Olbrechts: And Mr. Louder, who is it that visited his house again? Mr. Louder: it would have been the consulting arborist, Anne Jones is the person that visited that house and provided that report and Exhibit Two. Mr. Olbrechts: Thank you. All right, let's move on to Mr. Gray. You had some testimony you wanted to provide? Let me swear you in. Mr. Gray, [inaudible 00:11:09] raise your right hand? Do you swear or affirm to tell the truth, nothing but the truth in this proceeding? Mr. Ian Gray: I do. Mr. Olbrechts: And do you have anything to add to why Mr. Lifto's phone call wasn't returned or do you know why they wouldn't, especially if they give him this number, their number? You would think that- Mr. Ian Gray: I have no explanation for that whatsoever. Typically when the consulting arborist makes contact with a resident or a member of general public and they need their advice in getting in touch with the forestry program, they usually give them my business card. Mr. Lifto: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 7 of 26 It was a city number, so I imagine it must have been a business card then. Because I called a city number, it was a city voicemail. Mr. Olbrechts: Hm, okay. Mr. Lifto: [inaudible 00:11:52]. Mr. Ian Gray: Well, there's a procedure for that as well. If it went to a city, a general city voicemail, it would have gone to the administrative desk. They root the messages to me specifically if it's a tree related issue or it goes to a general mailbox- Mr. Lifto: It was a specific person, male's voice mailbox. If I think about it long enough, it might have been someone that had to do with [crosstalk 00:12:20]- Mr. Olbrechts: Lost your audio Mr. Lifto. You said, you were describing who it was? Mr. Lifto: It was a specific business card from the city. Mr. Olbrechts: But you were describing who answered the call? Mr. Lifto: It was a male's voice mailbox- Mr. Olbrechts: Oh, okay. Mr. Lifto: ... someone's specific voicemail. Mr. Olbrechts: Do you still have that business card? Mr. Lifto: I believe it was the Forestry Department. Mr. Olbrechts: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 8 of 26 Do you still have that business card. Mr. Lifto: I do not. [inaudible 00:12:43] because I wasn't there, so I asked [inaudible 00:12:46] and I, the picture of the card I had. Mr. Olbrechts: All right, Mr. Gray go ahead. Mr. Ian Gray: I make it a point to return calls within 24 hours. That's just my MO, so if I'd received a call I would have replied. Needless to say, I think there are a number of problems with this in as much clearly Mr. Lifto had become aware that there was a problem with the removal and instead of listening to the stop work request, they proceeded nonetheless. So I find that problematic. As far as, I don't know what Mr. Lifto wants to discuss. Obviously the violation's pretty clear cut in my mind. One thing that might be worth explaining is that when you talk about a risk of imminent failure, as is described in some of the literature that was provided in his evidence packet, imminent means a tree is actively in the process of falling apart. Mr. Ian Gray: So either a branch is cracked and barely hanging on, the trunk is split and the crack is opening and closing as the tree moves around or the root plate has heaved the earth so much you can see cracks in the soil and the tree is listing and every time the wind blows, the soil lifts up. That's not what was going on with this tree. When it was assessed by a tree risk assessment qualified professional at the end of 2019, it was given a 50% rating, a low risk rating and there was nothing imminently hazardous about it. That much was clear. Yes, it has a co-dominant structure. It's got two stems. That's why it has that 50% structure rating. Mr. Ian Gray: It means it's got a slight structural flaw, but it's not an imminent risk. I'm a board certified master arborist with 20+ years of industry experience. I've got the tree risk assessment qualification from the International Society of Arboreal Culture. It's something I do day in, day out and I've had that qualification since 2015. It's an internationally recognized standard. We, as our duty of care and due diligence, we look at trees constantly to make sure they're not a risk to the general public. This tree was not a risk to the general public. It was a low risk at any rate. Mr. Olbrechts: All right, Mr. Lifto do you have any questions of Mr. Gray? Mr. Lifto: Well, yes. [inaudible 00:15:32] of the tree and- Mr. Olbrechts: This is just the time to ask questions of Mr. Gray. Do you have any questions of him? This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 9 of 26 Mr. Lifto: Well, I had a few pictures about the pictures I provided, so. Mr. Olbrechts: Oh, okay. Mr. Lifto: The state of the tree wasn't good condition. And so I presented one [inaudible 00:15:51] picture in my briefing, I show this rot, significant rot in there. In fact, they were able to take a stick and put it into the hole in between the two trunks and move it around a few feet inside. So I don't know, I'm thinking any reasonable person would be concerned if they had a tree leaning towards their house with significant rot in between. The tree had also been covered in vines and halfway up the tree there's dead branches [inaudible 00:16:19] on the street. And that's one of the things I needed to take action on. Mr. Lifto: I've lived at the house for 12 years and had several arborist come to my house [inaudible 00:16:30] and they've always said that tree needed to be cut down. So in my case, I just ask if you could see the pictures I presented and see the rot that's clearly visible between the fronds. Mr. Olbrechts: All right. And so Mr. Gray, Mr. Lifto's asking if you saw his pictures that actually I'm sharing on the screen right now and whether that changes your opinion about whether or not it's a dangerous tree? Mr. Ian Gray: I saw the picture provided of the one tree. The other three were sample pictures from A, another website and are not particularly relevant to this case. Without actually seeing the tree up in person, it's impossible to tell what actually was there. It's worth also bearing in mind that because of the structure of the tree, you've got two separate stems, so essentially two separate trunks. So by definition, there would be something of a gap between the two. Yes, the bark was perhaps a bit discolored in the photograph, but that's as much as you can say without actually being able to test those samples and test the integrity of the wood in person, there's no basis to make the statement about the amount of decay that may or may not be there. Mr. Olbrechts: Just to make sure we're on the same page, so that I understand the pictures I'm looking at, what I'm sharing onscreen right now, these three trees are not the tree that was cut down, right? Mr. Lifto: I don't see the screen you're seeing. Is there a way I can- Mr. Olbrechts: Oh, you're not- Speaker 5: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 10 of 26 I don't see your screen, Mr. Olbrechts. Mr. Olbrechts: Oh, okay. Speaker 6: You're not sharing. Mr. Olbrechts: Oh okay, that's the problem. Let me share here. There we go, how's that? Mr. Lifto: Oh, those are examples. And so the next three are of my tree, which to me looked very similar to what that website presented as dangerous trees. But if you go to the third image, although [inaudible 00:18:27] actually, that's fine. If you look at the next image, you'll see the tree off to the left, all the dead branches are going up. And so this tree is slowly dying and then the very last picture, that top center in that photo shows the whole. That is a very hollow, rotten [inaudible 00:18:48]. It goes down two feet and it's hollow in all directions and that's clear rot coming from inside that tree. Mr. Ian Gray: As I explained previously, you've got two separate stems. So there is bound to be a gap between the two separate stems. It doesn't necessarily mean that there is rot there. Yes, there are two stems, but it doesn't mean there's rot. Mr. Lifto: Well, my follow up question would be, you stated those trees were in imminent danger then also stipulated you had not seen the tree in person, so how do you make the assessment? You're also saying you can't make the assessment whether or not that's truly rot. I don't think you can make the exception of let's say [inaudible 00:19:31]. Mr. Ian Gray: Based on many, many years of experience, that's what we're trained to do. Just because a tree is co- dominant does not mean it's an imminent threat. As I explained before, imminent means it is actively falling apart. If that was an imminent danger, you would see the two stems moving apart and fresh cracks opening up in wood other than the stem itself. It would be opening at the union further down and that's not what's going on there. Mr. Lifto: So the city literally waits for a tree to be at the point where it's so dangerous that people will die before they take action? You're telling me that tree, even though it clearly shows rot and you haven't seen it in person and I even have a witness to say it is rot, but it's gray, it's falling apart. Mr. Ian Gray: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 11 of 26 I need to correct you there because I did see it in person. When I give reports from the field from our consulting arborist, I go and double check their field data. I saw the photos, I went out and had a look before the tree was fully removed. So you're incorrect there. You don't let things fail when it's avoidable. And you must understand that the tables that are used to calculate the likelihood of failure for tree assessments of this nature across the country are based on actuarial tables that come from the insurance industry. And you might be surprised to learn that injury or death accidents from tree failures or tree park failures is less common than being struck by lighting. So it's an incredibly, fortunately, an incredibly rare occurrence. Mr. Lifto: And it should be dangerous. I have friends in Seattle, similar situation, [inaudible 00:21:16]. Mr. Olbrechts: And Mr. Gray, I had a question for you then. The tree at right after Mr. Lifto made the phone call he said he made to the city, my understanding is it was in the state I'm sharing screen right now. You see that, correct? The May 14th picture? Mr. Ian Gray: No. Mr. Olbrechts: It's not showing? Hold on a second, okay. Mr. Ian Gray: The picture that's showing is from May 20th. Mr. Olbrechts: Let me get that up here, here we go. So this is not, well I guess it's May 20th and this is after the stop work order on May 14th. So this is the condition of the tree when Mister, my understanding is when Mr. Lifto was calling the city asking if he had permission to continue to take it down. So Mr. Gray, is this dangerous at this point right now while he was waiting to hear back from the city? Mr. Ian Gray: In as much as he has changed the physics of the tree, yes. By his own actions he's made the situation worse. Mr. Lifto: [inaudible 00:22:27], this was not as an after. I believe May 15th there was only a couple of branches taken down actually. It was very limited work done. Mr. Olbrechts: So Mr. Lifto, what was the date you said you called the city? Mr. Lifto: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 12 of 26 The next day. Mr. Olbrechts: May 15th? Okay. And you're saying on May 15th that just a couple of branches had been taken off? Mr. Lifto: My understanding was not that much work had been done. The person said I'd only have a $300 fine if we stopped then, but my arborist said, they said, "Well we can't stop you from continuing," and I don't know what was said. I didn't speak to anyone, so. And it's all hearsay from my point. I got the impression that you continue and we can figure it out later, [inaudible 00:23:15] arborist is all I'm listening to. Mr. Olbrechts: See, I'm just trying to figure out- Mr. Lifto: [crosstalk 00:23:19]- Mr. Olbrechts: I'm trying to figure out what your mindset was when you called the city, whether you were worried this was dangerous at that point, you needed to take it down. And so you've just basically argued that it wasn't that dangerous because there was just a couple of branches taken off. Mr. Lifto: No, I called to explain the situation. I left a long, 10 minute message about the history of the trees and that tree and then I thought, because it had already been cut and I said, "Please call me back so we can discuss this further," and I waited a week and then after a week I said, "I'll just continue." I assumed that meant I could continue. Mr. Olbrechts: So the reason why you ultimately finished cutting it down was not because you were more concerned about the fact it was halfway cut and more dangerous. You just felt that since they didn't get back to you in such a long period of time it was okay to proceed, is that an accurate assessment? Mr. Lifto: I assume they thought what I said was correct and they agreed with me, so I [crosstalk 00:24:16]. Mr. Olbrechts: All right, got you. Good, good. Mr. Gray, did you have any other comments? You're muted, Mr. Gray. Mr. Ian Gray: I think the fundamental problem I have with all this is that the removal was undertaken at all in the first place. Mr. Olbrechts: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 13 of 26 Right. Mr. Ian Gray: That was the violation from the get go. And you can't say that you didn't know it was a city tree because they saw the city remove trees in the same area in 2019, so there was at least an awareness that there were property boundary issues and the right of way was not theirs to work in. Those are the primary issues. One of the submissions in their witness packet was an Eric, was his name? Speaker 6: So real quick with that, with the packet that Mr. Lifto, is that the photos and all that? Has that been submitted to the record yet? Mr. Olbrechts: No, I'm just waiting for Mr. Lifto's turn to get those at that point. Speaker 6: Thank you. I just wanted a chance to speak on those. Mr. Olbrechts: Oh yeah, you'll have the opportunity. All right, and Mr. Gray, what were you saying again? Sorry. Mr. Ian Gray: I'll wait until the defendant's package is submitted to continue further with that, but that's my primary objection that it was undertaken in the first place without seeking assistance from the city. Mr. Olbrechts: All right, let's move on then to Mr. Lifto now. It's your turn finally and did you want to go for your PowerPoint presentation? Is that how you want to start? Mr. Lifto: Yes, please. Mr. Olbrechts: Let's get that up on the screen. Mr. Lifto: We'll start with the first picture, that's fine. Mr. Olbrechts: Sure. There we go. Mr. Lifto: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 14 of 26 I lived in this house for 12 years. I've been away for four. I've cut down many trees on this property and quite frankly, I consider myself a good citizen. I live my life with integrity and honor, served in the military for 20 years and so I'm not a petty person. I don't go around and conduct violations or do anything like that. I try to do everything by the book. And so I reached out to the city back in 2016. There was a tree that was twice the size of this one, where the red is, the same distance. Mr. Olbrechts: Sorry Mr. Lifto, I didn't swear you in. Let me swear you in real quick, just raise your right hand. Mr. Lifto: Sure. Mr. Olbrechts: Do you swear or affirm to tell the truth, nothing but the truth in this proceeding? Mr. Lifto: I do. Mr. Olbrechts: All right, go ahead. Proceed. Mr. Lifto: So I've had dealings with the city before when it comes to trees, so I thought I knew what I was doing. I had reached out to the city about that tree where the red circle is as well as others belong, because I own property all the way to the end of those green trees way back. It's about 300 feet of property. So there's a lot of trees on my property. And I was told at that time that it was on my property and that I was responsible for cutting it down because my neighbors all thought the tree was dangerous because it also had large limbs. There was a cottonwood. Now I don't know the difference between trees and what's considered a kind of tree the city deems to be historical or not, but it was a massive tree. I paid a $1000 to have it cut down and the city had no problem with it. Mr. Lifto: So from my dealings with the city, it seemed like [inaudible 00:27:50], that's how the site was. It belonged to me and was my property to deal with. I would have loved the city to have cut that tree down, so it wouldn't have cost me a $1000. I would have loved for the city to cut this tree down instead of me paying $3000. In fact, when that tree was cut down in 2017, the arborist recommended cutting down the tree that's in question today. Mr. Lifto: He said it was dangerous. So he piled off, on top of the tree there was a real pine and two trunks together that might help lean the tree a different direction when it comes down because it seems to be very dangerous. I said, "I'm not ready to cut that down. In fact, I love that tree." I live in a kind of a corner. People come flying around that corner and lights shine into my living room, cars and that helped keep privacy to my house and I also felt better knowing that maybe a car would hit that tree by my house. People come flying around that corner all the time. So for me to cut this tree down, I really This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 15 of 26 waited a long time and I didn't want to do it and I was told by another arborist it really should come down. Mr. Lifto: The last straw was when my friend was watching the house, called me up and said, "Hey, this tree is dropping some significantly large branches." So in the statement on the very bottom, Dustin makes a statement that a large branch fell on the street and traffic stopped and he had to go out there and pull it away from the street eight to nine feet. So it was a significantly large branch. He felt unsafe as well. My neighbors had made comments about the tree as well. And so if you go back up to the top again, for those reasons I knew I had to take action. I also was told by multiple arborists the tree was dangerous. I'm very glad we did it, having now seen what's under the ivy, having seen the rot when I came out there last month. Mr. Lifto: And then if you look in blue, the city did cut down two trees that were, there were two, also evergreens. One dropped a branch off a tree and the fire department had to come out and the city called me up, they asked me. They asked me permission before they cut it down. They said, "Oh, we need to cut this tree down." I said, "Okay, I guess. I really like that tree." Again, it provides privacy on a very busy street. And in the process, they damaged another tree that I really loved, another evergreen and they tore that one down. But they did all this by letting me know and talking and communicating with me. So in my mind and my impression was I owned these trees. Mr. Lifto: So here, I'm sworn in, I'm telling the God's honest truth, that I worked with the city and from my experience, it was my responsibility. Now I wish I had known it wasn't my tree. I would have loved to have contacted all of you and you could have given me a letter saying it was in good health and it wouldn't kill me because my family, it wouldn't have somebody to go after because I really thought this was the last resort. I didn't want to pay a $1000. I paid a $1000 to have this split up and now I plan to do some landscaping. If I have money left over, if I have to pay a fee, I don't know. This area will still look like this I guess for years to come. Mr. Lifto: My plan was to put a lot of money into landscaping, making it look nice and replace that tree. So again, if you go down to image five, like I said, I tried to give examples of trees that looked dangerous. Any reasonable person would look at these and look at my tree and think there's similarities between these trees. If you go to four, image four's very similar to the picture they have there on page three. And then page five, you can clearly see the tree is dying as it goes up. The ivy's certainly not going to help it do much better. It's leaning directly towards our living room, our house. And then on my final picture, on image six, I don't know what to tell you. I understand it's probably going to be a gap, but that's not a gap. That is rot, it's [inaudible 00:32:07], it's mulchy. That hole in the top corner is hollow in all directions. Mr. Lifto: And of course, it's something you couldn't see from the street. You'd have to see it on a ladder going up there. And again, I feel like I did everything reasonable a citizen should do and would expect of a citizen. I reached out to the city in the past, so obviously there's some confusion on my end about what trees This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 16 of 26 are mine and what trees aren't. And then of course, no one spoke to me. I would loved to have spoken to someone. I wish they did a better job of communicating and trying to reach out to the homeowner. They never knocked on the door. Guess who was home the whole time? He was just inside, he was an introvert. He was inside just minding his own business and let the arboror talk [inaudible 00:32:58]. He didn't even know who was outside. Mr. Lifto: But eventually a business card was given to him. I did [inaudible 00:33:05] reached out to the city, explained the situation, heard nothing back ever, ever. So I felt as though, "Well they must have agreed with me that it had to be cut down." So I just feel like, there was no negligence on my part. I did nothing malicious, I planned to do what I'd done with prior trees, I reached out to the city, I tried to do my best to resolve the situation, to communicate and no one communicated with me at all. No one communicated to the person watching my home, even though that's what it says in the violation. So that alone, in my mind, makes the violation unfounded because the violation states there was a warning given to the homeowner. Mr. Lifto: And that never happened, and I wish it had. Because obviously I would have stopped instantly and we could have had more communication and whether or not it was cut down in the end, I think it's a little irresponsible to leave a tree like that when two other professional arborists stated to me that that was a very dangerous tree. Obviously questionable both ways, but I think when it comes to the safety of people in the neighborhood, the school buses that drive by there every day, you take a [inaudible 00:34:27] analysis, risk analysis and if there's even a remote slight chance this tree could come down on somebody, I think you have to take action. Mr. Lifto: And what's interesting is that the tree that was cut down in the blue circle on the second, or was it the, yes. That tree dropped one big branch, that's it. And the city decided to pare it down. So I had a similar situation with this tree, but it had dropped branches over the years. I just ask you to understand where I'm coming from. I don't have a history of committing violations, I'm [inaudible 00:35:12] that. I really did what any reasonable person would have done in this situation. I reached out, I tried to do my due diligence with the city and I'm not saying the city failed either. I'm saying please look at my situation. I've been gone for four years, I'm on the other side of the world, I'm trying to do what's best for my family. I'm coming back next month, [inaudible 00:35:34]. "Welcome back to [Renton 00:35:35], here's a $1000 fine." Mr. Lifto: It's just unfortunate how it all unfolded. Like I said, I loved the tree. It was the last resort, I didn't want to do it and I felt like I was stuck in a corner honestly, the whole situation how it unfolded. I thought it would have been different, but I don't know if someone talked to Justin. I'm not putting blame on anybody, but I just want you to look at my situation, know that I'm confused, I was confused, I'm confused a little bit now obviously because now the city owns this tree and has told me before, I didn't own the other tree, but now we're here. And I want to clean it up, I want to [inaudible 00:36:21], look nice in the front. I want it to be presentable, I'd like to do a lot with it and how that's in there. Mr. Lifto: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 17 of 26 I don't need the city to come out there, [inaudible 00:36:34] chomp grinder like I've done in the past, but even if God forbid, I have this violation, I don't think the city needs to come up there and restore anything. I can do it myself and landscape the whole thing so it looks great and make it more than what it is now. But with all the facts I've presented, I just ask, please understand where I'm coming from, that there was no malicious intent on my part at all. Wish things had unfolded differently, but here we are now and all we can do is move forward. That's all I have to say. Mr. Olbrechts: Thank you. Mr. Louder, do you have any questions of Mr. Lifto? You have to unmute yourself, Mr. Louder. There you go. Mr. Louder: I'm getting there. [inaudible 00:37:31], Exhibit Six is in response to that blue circle in the photo one of Mr. Lifto's exhibits just as a point of clarification. Mr. Olbrechts: Okay. Mr. Louder: So that's where the tree was storm damaged and that's the report that was produced for that tree to be removed by Urban Forestry and that was looks like February 28th, 2019. Just as a point there. Mr. Olbrechts: So this was a request made by Mr. Lifto to the city? Is that right? Mr. Louder: No, I believe this request was made, let me look, it was made by probably the city of Renton. I believe the street department after the storm event or maybe the fire department. Just as a back up for that, a supporting document for that first thing. But I do want to comment on these- Mr. Olbrechts: First thing Mr. Louder, any questions of Mr. Lifto though? We're still in the question phase right now, cross examination? Did you have any questions? Mr. Louder: I'm questioning the packet, the packet that Mr. Lifto, the presentation we just watched? Mr. Olbrechts: Well I'm still not, these are actual questions to Mr. Lifto that he would answer. Do you have any questions of that nature? We're still on that part, because I have questions I want to ask him once you're done. Mr. Louder: Mr. Lifto, do you have any arbor certifications? This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 18 of 26 Mr. Lifto: No, I have my word. That's what I have. Mr. Louder: That's all I have for you. Mr. Olbrechts: Mr. Louder, just one quick question. You said that nobody had contacted you about this, that obviously they contacted whoever... Well first of all, how did you find out that arbors had to stop work on the cutting? Mr. Louder: That was the Exhibit Two that I provided. Mr. Olbrechts: Oh I'm sorry, I'm asking this of Mr. Lifto, I'm sorry. I meant to ask Mr. Lifto, yeah. That was my blank fault. Mr. Lifto: [crosstalk 00:39:59]- Mr. Olbrechts: That's right. That was my, Mr. Lifto, how were you appraised of the fact that the work had to stop and hat prompted you to call the city? Mr. Lifto: So I got a message, the messenger from the arborist saying that someone from the city came by and I got sort of a, it was limited information. It was simply someone came by and said that you're in violation and that if you stop now, you should stop now or you're if you're going to continue, get a bigger fine. But you can continue, but we can't stop you from continuing. That was the only information that I had, but I was given a business card, so that's what I had- Mr. Olbrechts: Did the arborist email you the business card or a picture of it? How did you get the business card? Mr. Lifto: Well they did, the gave me a, I think it was a, I don't know. It's been a while now. It was a picture or they gave me the number itself. So I really wish I had that because, but I'm here under oath, [crosstalk 00:41:10]- Mr. Olbrechts: I understand. Mr. Lifto: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 19 of 26 ... if I have to. Mr. Olbrechts: Understood. I was trying to figure out, you said nobody had contacted you. I was just trying to figure out how you knew about that there was a problem then. So I got my answer, that's good. All right, that's it from me for now. Mr. Louder, then go ahead. Did you have any objections over Mr. Lifto's PowerPoint presentation? Again, we're just dealing with admissibility and authenticity at this point or excuse me, relevancy or authenticity at this point. If you disagree with the contents, that's not an issue whether or not it should be admitted as evidence. Mr. Louder: And I'll have a chance later on to speak about evidence? Mr. Olbrechts: Yeah, that's right now. Right now's your turn. Mr. Louder: Okay, yeah. I have no problem admitting the evidence. Mr. Olbrechts: So I'll admit Mr. Lifto's PowerPoint presentation as Exhibit One, well Exhibit Two I guess we'll say at this point. All right, okay, go ahead. Mr. Louder: It's my turn to- Mr. Olbrechts: Your turn, sorry. Mr. Louder: So basically on the PowerPoint presentation, it looks like to me like the assessment value, like with the five warning signs of a dangerous tree, it points out to the professional arborist being the kind of go to for this. Saying that this is, so it comes from treeinspection.com and if you actually go to the site, where basically right underneath where it says, "Yikes, this tree is scary," on the actual site itself, it says, "Hey, this is a limited in scope article." It says, "Do not substitute this short article for getting the opinion of a professional. An experienced, certified arborist can spot trouble that the untrained eye will not see and give you advice that goes well beyond the scope of our article and probably your own knowledge." Mr. Louder: So I just want to say that I don't have a problem admitting this evidence. I just don't think this evidence comparing these pictures to the untrained eye is going to... Basically I would, even the article you're getting this information from says, "Go towards the trained professional in lieu of the photos comparing those kinds of things." I just want to make sure that's pointed out. And another thing with the fifth page in the presentation or in the PowerPoint where it has, it appears to be the Google Street Map version of This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 20 of 26 that. One thing to note as I looked at Google Maps for that where it says, "Treat in question dead branches heavily leaning towards house in [inaudible 00:43:58]." So that photo that he's speaking on on that, is actually from May of 2019. Which 2019 was the same year that the third party arborist did the assessment of the condition of that tree where it said the low risk limited structural defects. I just want to point those out on those two things. Mr. Lifto: I would just say, inspectors make mistakes and Katrina happened because inspectors made mistakes and missed things. So people make mistakes, they're human. We can all look at that picture right now, but ask either one of you, would you be comfortable with that leaning towards your house with your kids living there? With dead branches, vines growing all the way up to the top and leaning significantly... You've been told by an arborist in the past that it was dangerous. And I would just ask any one of you, especially someone who is a professional, I'll probably ask those in the room who are professionals in this, I think any average person could look at that and tell you that, "That looks kind of dangerous." Mr. Lifto: So it wasn't me acting on a whim, it was me being told by other professionals that it was dangerous. So I think we have conflicting impressions from different arborists. Like I said, I didn't want to cut this tree down. It was the last resort. I did not want to do it, but [inaudible 00:45:35]. Mr. Olbrechts: Understood. Okay Mr. Louder, go ahead. Mr. Louder: And then I don't think, that's all I have as far as this. On the last page, for the Justin O'Brien saying he felt scared, Ian might be able to speak more on the assessment of risk. Ian, do you want to speak on that? Is that... Mr. Ian Gray: Sure, happy to do so. Listen, we constantly, as part of the Forestry program, as part of my qualifications and experience, we constantly do risk benefit analysis or tree risk assessment, we do it constantly. The tree in question was inspected in person, on location, not through a photograph, by a national company who specializes in doing these sorts of inventory analysis. So I stand by that assessment. My question for Mr. Lifto would be, where's your arborist report? We'd be having a different conversation if you were presenting us with a certified arborist report. You simply saying, "This arborist told me that, that arborist told me that," is neither here nor there. It's simply hearsay. It has no standing. Mr. Lifto: Well, it's not hearsay because it's coming from me directly and I'm here under oath, so if it was hearsay it would be coming from somebody else third party, so. Mr. Olbrechts: Anyway, let's let Mr. Gray finish his comments. Go ahead, Mr. Gray. Mr. Ian Gray: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 21 of 26 Mr. Lifto, I'm still confused as to whether or not you understand where your property boundaries are. That's half of the problem here. Mr. Lifto: Well, I am confused. Like I said, you all can look [crosstalk 00:47:33] question and yes, I am confused. Because if you go to that home and look where that red circle is, there is an enormous stump, enormous. Twice, three times and we're down on this street. And that was cut down [inaudible 00:47:51] '17 because the city told me it was my property and my responsibility. Mr. Ian Gray: The problem- Mr. Olbrechts: Let's stop right there. At this point it's Mr. Gray's turn to speak. He's got final word here, so go ahead Mr. Gray. You can finish off. Mr. Ian Gray: The further problem I have is that in some of those tree request forms, information and maps that was given to Mr. Lifto previously, the property boundaries are demarcated and the tree in question is clearly outside of his property boundary. So he has actually received information in the past which delineates the property boundaries. So the only thing that's unreasonable here is for him to have undertaken the tree removal in the first place, knowing that it was quite possibly outside of his property boundary. And it was further unreasonable to continue with the tree removal when they'd been asked to stop, thereby making the tree risk worse by leaving it in such an exposed and limbed up state. So they exacerbated the problem. Mr. Lifto: Could I speak now? Mr. Olbrechts: I'll let you speak. Mr. Lifto: What evidence do you have that states that I know where my property line is or that anyone presented me any map where my property line is? Mr. Ian Gray: The tree request forms that were illustrated earlier. Mr. Lifto: What tree request form? I never- Mr. Ian Gray: It's in our exhibits. This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 22 of 26 Mr. Lifto: Well you're making an assumption I know something that you don't know, couldn't possibly know that I knew. I'll tell you, why would I do that if I knew it wasn't on my property? That doesn't make a lot of sense why I would go and do something like that. And the biggest problem with everything that's being presented here today, is that throughout the violation, I want this on the record, it states about the violation that the city spoke with the homeowner and warned the homeowner. It specifically says it five times in the violation. No one spoke to Justin, who's staying in my home or myself. Nobody made any attempt to get my number or the number of Mr. O'Brien, but you have hearsay that they spoke to someone. No one spoke to me, no one spoke to Justin. Mr. Ian Gray: Mr. Lifto, can you explain who Shay is? Mr. Lifto: Shay is a friend of ours who was there to pick something up. She does not live in the home and if you'd like to speak to her, she'll tell you the same thing. She was there to pick something up from Justin. Mr. Ian Gray: I'm not sure about that because she's referenced in previous tree work request forms that have gone to the property. Her phone number's actually listed as a contact on that tree request form. So I think they're more- Mr. Lifto: I thank God, for four years she stayed in the home before. Mr. Ian Gray: ... they're more familiar with the situation than you're admitting to. Mr. Lifto: Shay does not live in that home. That home, two years before that, I'd been gone for four years. I was in Korea for two and she stayed there and watched the house. The past two years, Justin has lived there. So she does not have access to the home, not a homeowner or staying there. So the history of who stayed at my house is irrelevant because she's not a homeowner and she has no access to the home for the last two years. All I'm saying is, this city did a very bad job and they're making false statements in the violation. Your statement said you spoke to me and no one spoke to me or anyone who has access to the home. Mr. Ian Gray: Did you engage in services of the contractor to remove the tree? Was that you that specifically requested that? Mr. Lifto: Yes. This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 23 of 26 Mr. Ian Gray: Well, that says it all right there. Mr. Olbrechts: All right, Mr. Gray I'm sharing the screen now, the tree request response form. So my understanding from Mr. Louder was this was the city actually, it looks like this is something that was sent to the property owner. And this was for, and this was the city wanted to take down a tree that was on Mr. Lifto's property, is that right? So Mr. Gray, you're saying this shows Mr. Lifto where his- Mr. Ian Gray: As part of our due diligence, whenever we've removed street trees, we notify adjoining or abutting homeowners, as a courtesy. Mr. Olbrechts: But how would this tree request form have clarified to Mr. Lifto where his property line was? Actually, I can't tell from it whether the city's saying it's on his property or abutting his property. Mr. Ian Gray: It should be further up or further down. There's a picture with a map. Property lines are super imposed. Mr. Olbrechts: Oh, is this what you're talking about? Do you see that on the screen? Mr. Ian Gray: That's the one. Mr. Olbrechts: Got it, got it. All right, Mr. Lauden- Mr. Lifto: In 2013, I wasn't living in the house [inaudible 00:52:41], so just letting you know, I never received this. Mr. Olbrechts: Now Mr. Louder, any final comments? Mr. Louder: Obviously this case has got a lot going on in it. And what I think we need to focus on here is that in the end, there is a violation. An asset owned by the city of Renton has been removed in violation of Chapter 13 and the street trees. And the penalty of those violations it lists, it doesn't say in this Renton municipal code anywhere involving street trees that the person cutting down the tree had to be notified or any of that. It's an asset of the city of Renton that was removed. The value that's been assessed to it is not a fee, it's not some fund that's going to go to a general fund. It's going into the Urban Forestry Management Fund where they can actually, there's very limited things that they're able to do with that money. This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 24 of 26 Mr. Louder: That money is going to go to put back, quite literally, the equivalent of a 30 caliber inch tree that took years and years to grow. This tree will then be replaced in this area potentially, in other areas around the tree. So it's a way to replace the asset that was removed without a permit, the code for street trees has two exemptions. Neither one of those exemptions apply in this scenario. It was not an imminent threat and it was not a utility. So those two things are the only two exemptions for what doesn't require a permit for the street tree removal. It is a violation, a fee should be assessed so that the city can recuperate all the costs that are associated with this violation. Mr. Olbrechts: Thank you, Mr. Louder. One follow up question for you, Mr. Lifto. Did you get any compensation for the tree that was downed? Was that tree used for firewood or something that you made some money from it or not? Mr. Lifto: No, in fact some of it they threw it back into my property line. I don't know. All I know is no, they hauled off some of it and some of it they threw into my yard and I had to [inaudible 00:55:11]. Mr. Olbrechts: Good to know. All right, and now Mr. Lifto, did you want a chance to look over this packet, write down any comments? Mr. Lifto: Well, the only thing I'm going to state is what I've stated before, is that throughout this- Mr. Olbrechts: I'm not asking you to comment now. What I'm asking is do you need a couple of days to look over this packet of information to see if you have any objections or want to write any response to what's in that exhibit? I just need to know, can we admit this packet now or do you need a few days to look at it and respond to it? Mr. Lifto: Sure, I can do that, a few days. Mr. Olbrechts: All right, so I'll give you til Thursday at five o'clock and then if you have any objections or you want to submit any response to the information in there, make sure to email that to Ms. [Morei 00:56:04]. I believe she's emailed you before. You have her email address and she'll forward that then to Mr. Louder and Mr. Gray for a final response from the city. And Mr. Louder, Mr. Gray, your final response would be due by 5:00 PM next Tuesday, then. Does that work for you? Everybody? Okay, I see people. So since the hearing is still open, I can't say a lot about where I'm headed in terms of a final decision, but just a couple comments. Mr. Olbrechts: This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 25 of 26 Well I believe everything, all the witnesses said, nobody has any credibility problems here whatsoever. It's also compelling to me, what Mr. Lifto said, he believed the tree was dangerous. It's almost irrelevant whether it actually was or not, we're just trying to figure out at this point whether he acted reasonably or not. I think he reasonably believed that the tree was dangerous. Why would he spend so much money taking it down if he didn't really is the question there. And also if he thought that the tree was on city property and not his own and he thought it was dangerous, to me in my mind, he obviously would have called the city and said, "Could you take it down?" before he spent the money, taking it down himself. Mr. Olbrechts: The part I'm having trouble with is that and again, this is why I believe Mr. Lifto's been truthful, is he's provided a lot of evidence that doesn't help his case and some of the most damning is that he admits that he was told that it was a violation to continue taking it down and he shouldn't take it down, but he did any way. I understand the delay and that's certainly a mitigating factor, but I don't think, in my mind Mr. Lifto, I don't think you were thinking this tree is going to fall any day now. You showed pictures of, it was the same condition in 2019 as it was in 2021. So you could have waited if it took another month for the city to get out there for the city to respond to your comments, but you just waited a week. Mr. Olbrechts: So that's kind of the part I'm going to be struggling with a little bit is how reasonable was it for you to just go off and finish it off after being told it was a violation to continue to do so. That's the- Mr. Lifto: That was because I waited a week for a phone call return. Mr. Olbrechts: I understand, yeah. Mr. Lifto: A long time to wait, so. Mr. Olbrechts: But I don't take it you were thinking this was going to fall on your house as you said. It was at that point it was just a couple of branches that were taken off, so waiting as opposed to a week wouldn't have made a huge- Mr. Lifto: I honestly didn't know how much was taken down. I didn't have the pictures. I really didn't know. Mr. Olbrechts: So I believe the code at the very least gives me, if not to say there's no violation to reduce the fine based on the reasonableness of your conduct and I do find a lot of reasonable conduct here, so to the extent I have authority, I'm pretty sure I'm going to be reducing the fine. I just don't know how much because like I said, if you thought you had to get city permission, I believe you would have gotten it, is my impression of this. I don't think you are the kind of homeowner that would just cut it down knowing that This transcript was exported on Aug 26, 2021 - view latest version here. Lifto-[Trimmed by Rev (Completed 08/21/21) Transcript by Rev.com Page 26 of 26 that violated the code. How obvious can that be right along the city street? Everybody sees you violated the code if it's a code violation. So I don't see how you would do that on purpose. I think it obviously was unintentional, especially considering that you said you had cut down another tree before, is that right? Mr. Lifto: That's right. Mr. Olbrechts: Because the city told you to, right right. And I'll be looking- Mr. Lifto: Same distance from the sidewalk. Mr. Olbrechts: I'll be looking at the transcript of this and everything, but as I said, the most troubling part is you were told not to and you still did and whether after a week, that's bad. That's true, I understand, too. The city with COVID has some staffing issues as well, but that's the part that runs against you basically. But anyway, you have until, as I said, Thursday to comment on anything that's in the exhibit packet there and the city has until Tuesday at 5:00 to respond to that. So any questions from anybody or anything? Okay. Well we're adjourned for today and once I get all those final comments next Tuesday I'll have a decision out within a couple of weeks, so. Thanks for your participation this afternoon. Mr. Lifto: Thank you. Mr. Ian Gray: Thanks. Speaker 5: Goodbye everyone.