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.
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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.
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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.
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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.
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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.