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HomeMy WebLinkAbout09-02-2021 - HEX Decision - Lifto 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.