BEFORE THE HEARING EXAMINER FOR THE CITY OF MEDINA FINDINGS CONCLUSIONS AND DECISION SUMMARY OF DECISION

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1 J BEFORE THE HEARING EXAMINER FOR THE CITY OF MEDINA JUN 2011 CITY OF MEDINA In the Matter of the Application of No T2948 Puget Sound Energy For a Non Administrative Right of Way Tree RemovalTrimming Permit FINDINGS CONCLUSIONS AND DECISION SUMMARY OF DECISION The request for a Non Administrative RightofWay Tree Removal Trimming Permit to trim trees near Puget Sound Energy utility poles and utility lines in City of Medina rightofway along portions of Overtake Drive West Overtake Drive East 84 Avenue NE Upland Road 87 Avenue NE 86 Avenue NE NE 9th Street and NE 10 Street in Medina Washington is APPROVED Conditions of approval are necessary to address specific impacts of the proposed trimming SUMMARY OF RECORD Request Puget Sound Energy requests a Non Administrative RightofWay Tree Removal Trimming Permit to trim trees near Puget Sound Energy utility poles and utility lines in City of Medina rightofway alon g portions of Overtake Drive West Overtake Drive East 84 Avenue NE Upland Road 87 Avenue NE 86 Avenue NE NE 9th Street and NE 10 Street in Medina Washington Hearing Date The City of Medina Hearing Examiner held an open record hearing on the request on May The Hearing Examiner kept the record open until May to receive a copy of the American National Standards for Tree Care Operations ANSI A00 Part and Part from the City Testimony The following individuals presented testimony under oath at the open record hearing Kristen Clem Kissinger City Planning Consultant Tom Early City Tree Consultant Josh Maclam Applicant Representative Tree TrimmingRemoval Permit No T2948 Page 1 of 8

2 Exhibits The following exhibits were admitted into the record A Staff Report dated May B Permit Application received February C Tree Trimming Inventory with Work Plan Notes and Power Pole Replacement Plans undated D Declaration of Agency dated March E Legal Notices 1 Declaration of Mailing Notice of Application dated March Declaration of Posting Notice of Application dated March Declaration of Mailing Notice of Hearing dated April Declaration of Posting Notice of Hearing dated April Affidavit of Publication dated April F RightofWay Verification dated May G Declaration of Agency dated May H American National Standards for Tree Care Operations ANSI A00 Part and Part received May The Hearing Examiner enters the following Findings and Conclusions based upon the testimony and exhibits admitted at the open record hearing FINDINGS 1 Puget Sound Energy Applicant requests a Non Administrative RightofWay Tree Removal Trimming Permit to trim trees near Puget Sound Energy utility poles and utility lines in City of Medina rightofway ROW along portions of Overlake Drive West Overlake Drive East 84 Avenue NE Upland Road 87 Avenue NE 86 Avenue NE NE 9 Street and NE 10 Street in Medina Washington Exhibit A StaffReport page 1 Exhibit B 1 A May Declaration of Agency appoints Steve Goetz and Josh Maclam to act as the Applicant agent in dealing with the City in all acts and decisions related to processing the application review and approval of the application authorization of revisions and coordination of required inspections and project approvals Exhibit G 2 The subject property is identified as City of Medina public road rightsofway Exhibit A StaffReport page 1 Exhibit B Exhibit C identifies specific trees to be trimmed and the specific location of those trees Exhibit C The City staffreport states the trees to be trimmed are located in either the public rightofway ROW or on adjoining properties Exhibit A StaffReport page 2 Trees to be trimmed are located in either the public rightofway or on adjoining properties identified by County Tax Assessor parcel numbers TRCT and Exhibit C Tree TrimmingRemoval Permit No T2948 Page 2 of 8

3 2 The City of Medina City determined the application was complete on March Exhibit A StaffReport page 2 The City mailed notice of the application to all residences located within 00 feet of proposed trimming on March and posted notice at City Hall on the City website at the City Post Office on the City public notice board and at eleven locations within 00 feet of proposed trimming Exhibit E1 Exhibit E2 On April the City mailed notice of the open record hearing associated with the application to owners of property within 00 feet of proposed trimming and posted notice at City Hall on the City website at the City Post Office on the City public notice board and at eleven locations within 00 feet of proposed trimming Exhibit E Exhibit E4 The City also published notice of the hearing in the Seattle Times on April ExhibitE5 Kristen Clem Kissinger City Planning Consultant testified that the proposal is exempt from review under the State Environmental Policy Act SEPA Ch 4 21C RCW in accord with Washington Administrative Code WAC Ms Clem Kissinger testified the proposal constitutes utility maintenance under WAC Testimony ofms Clem Kissinger 4 Property adjacent to proposed trimming is designated Single Family Residential by the City Comprehensive Plan City Comprehensive Plan Land Use Element Figure 2 Land Use Plan page 19 Comprehensive Plan goals and policies relevant to the proposal maintain the informal natural appearance of the City street rightsofway and public areas maintain utility services sufficient to serve the City s needs minimize aesthetic and environmental impacts caused by utility services and require coordination with applicable service providers for repairs and upgrades to existing utility facilities as necessary for efficiency reliability and capacity 4 Comprehensive Plan Community Design Element page 28 Comprehensive Plan Utilities Element page 62 5 Proposed trimming would occur in areas identified by the Applicant in City ROW within a ten foot wide diameter utility clearance zone Trees would be trimmed to support replacement of 15 Puget Sound Energy utility poles Trimming would occur to provide separation between trees and existing power lines consistent with regular Puget Sound Energy maintenance activity to protect utility lines from interference by vegetation Joe Washington Administrative Code WAC states The following activities shall be categorically exempt The repair remodeling maintenance or minor alteration of existing private or public structures facilities or equipment including utilities involving no material expansions or changes in use beyond that previously existing except that where undertaken wholly or in part on lands covered by water only minor repair or replacement of structures may be exempt examples include repair or replacement of piling ramps floats or mooring buoys or minor repair alteration or maintenance of docks 4 City staff identified Comprehensive Plan Goals CDG2 UTG1 and UTG2 and Policy UTP 1 Exhibit A Staff Report page 2 Tree TrimmingRemoval Permit No T2948 Page of 8

4 Willis Sr City Director of Public Works wrote in an message to Mr Early that trimming is necessary to prevent power outages Where accessible trees to be trimmed have been tagged with vinyl tape Property adjacent to proposed trimming is located within the City s R16 R20 and R0 residential zones Exhibit A StaffReport pages 1 Exhibit F 6 Ms Clem Kissinger testified the proposed trimming is necessary to manage the detrimental effect of tree growth on utilities in City ROW Ms Clem Kissinger testified American National Standards for Tree Care Operations ANSI A00 Part and Part for pruning and integrated vegetation management are applicable to the project and are designed to maintain tree health minimize trimming and direct new growth away from utility lines Ms Clem Kissinger testified that City code requires that trimming not exceed 25percent of the canopy of each tree to be trimmed unless necessary to provide adequate relief Josh Maclam Applicant Representative testified the Applicant would comply with this code requirement Tom Early City Tree Consultant testified that the City must provide additional notification to owners of neighboring residences if trimming is to exceed 25percent of an individual tree canopy Mr Early added that trimming of percent or greater of a tree canopy requires mitigation No trees would be removed Exhibit A StaffReport page Testimony of Ms Clem Kissinger Testimony ofmr Maclam Testimony ofmr Early 7 Asplundh Tree Experts would perform the proposed trimming in accord with ANSI standards and would remove less than 25percent ofthe canopy of each tree The City tree consultant conducted site visits to trees to be trimmed and confirmed necessary tree trimming would not exceed 25percent of the canopy Exhibit A StaffReport page 8 Ms Clem Kissinger testified that all proposed trimming would occur over 5 8 working days The staff report states trimming would require an aerial lift truck a chipper truck chipper and hand tools Trees would be trimmed with hand saws and chain saws According to the staff report the proposed trimming would not exceed a sound level of 75 db consistent with the City Code Work would be restricted to the hours of700 am to700 pm on weekdays and between80 am and500 pm Saturdays Exhibit A Staff Report page 4 Testimony ofms Clem Kissinger 9 Ms Clem Kissinger testified that proposed trimming would require traffic control measures The City staff report states normal traffic flow would be disrupted when work crews are performing proposed trimming The Applicant s permit application submittal includes proposed work zone traffic control plans for single lane and shoulder closures for stationary work zones The rightofway use permit issued by the City will require a 5 Medina Municipal Code MMC provides pruning may not exceed onethird of a tree or shrub within one year According to the City staff report the City interprets this code section to mean removal of more than one third ofthe tree canopy constitutes tree removal requiring replacement mitigation under MMC Exhibit A StaffReport page Tree Trimming Removal Permit No T2948 Page 4 of 8

5 traffic control plan satisfying City requirements for traffic control Exhibit A Staff Report page 4 10 Ms Clem Kissinger testified that City staff recommends approval of the application with ten conditions of approval Proposed conditions of approval concern compliance with ANSI guidelines at all times removal of trimmed material prohibition on tree removal or trimming exceeding 25percent of a tree canopy and Applicant traffic management plan submittal and approval by the City required rightofway permit work hours limitation and limiting trimming to that identified by Exhibit C Conditions also require notification of property owners adjacent to trimming at least seven days before trimming begins Josh Maclam Applicant Representative testified the Applicant has read understands and agrees with proposed conditions of approval Exhibit A StaffReport pages 6 7 Testimony ofms Clem Kissinger Testimony ofmr Maclam CONCLUSIONS Jurisdiction The Hearing Examiner has jurisdiction to hear and decide requests for Non Administrative RightofWay Tree RemovalTrimming Permits City ofmedina Municipal Code MMC MMC MMC MMC Table C Criteria for Review The decision on a Non Administrative RightofWay Tree RemovalTrimming Permit shall be based on the criteria set forth within MMC MMC B An application for a permit subject to the provisions ofmmc shall not be approved unless the following requirements are met A B C D E F The application is compatible with the intent of the comprehensive plan The application is consistent with the public interest in maintaining an attractive and safe environment The application has no materially detrimental effects on nearby properties All significant trees shall be retained in rightsofway unless removal is necessary for access or for safety reasons including trees in danger of falling or losing limbs and trees which need to be removed to provide adequate lines of vision for persons in vehicles This criterion does not apply to trees that do not meet the definition of significant tree found in MMC Replacement tree mitigation for significant tree removal shall be in accordance with the requirements of this chapter All trimming must be performed in a manner approved by the city and shall conform to the following requirements 1 Any trimming must not exceed 25 percent of the canopy of the tree in the area unless necessary to provide adequate relief 2 The relief requested must not unreasonably interfere with the adjoining property owners rights to the use and enjoyment of the rightofway including but not Tree Trimming Removal Permit No T2948 Page 5 of 8

6 ICI limited to said owners interest in landscaping aesthetics erosion control noise control shade and development of the unimproved portion of the rightofway in a manner consistent with the development of the adjoining and surrounding properties The proposed trimming must not cause any unnecessary mutilation or damage to MMC the trees and should be in accordance with ANSI Standard A00 Conclusions Based on Findings 1 The application is compatible with the intent of the comprehensive plan The City Comprehensive Plan calls for maintenance of utility services to serve the City s needs minimized aesthetic and environmental impacts caused by utility services and repairs and upgrades to existing utility facilities for efficiency reliability and capacity Trimming is required to prevent utility power outages that would affect adjacent residences and to support replacing existing utility poles Findings With conditions the application is consistent with the public interest in maintaining an attractive and safe environment City code requires that trimming not exceed 25 percent of the canopy of each tree to be trimmed unless necessary to provide adequate relief Proposed trimming would not exceed 25percent of the canopy of each tree Proposed trimming is necessary to prevent power outages Conditions of approval are necessary to ensure written notification of owners of property adjacent to proposed trimming at least seven days before trimming begins Findings With conditions the application has no materially detrimental effects on nearby properties Proposed trimming would not exceed a sound level of 75 db consistent with the City Code Work would be restricted to the hours of700am to700pm on weekdays and between 80 AM and 500 PM Saturdays Conditions of approval are necessary to ensure written notification of owners of property adjacent to proposed trimming at least seven days before trimming begins and City approved traffic control measures are implemented Findings All significant trees are retained in rightsofway unless removal is necessary for access or for safety reasons including trees in danger of falling or losing limbs and trees which need to be removed to provide adequate lines of vision for persons in vehicles The Applicant does not propose removal of any trees Findings No significant tree removal would occur and no replacement tree mitigation is required Findings With conditions all trimming would be performed in a manner approved by the city and conforming to MMC F requirements Proposed trimming would Tree Trimming Removal Permit No T2948 Page 6 of 8

7 not exceed 25percent of each tree canopy Conditions of approval are necessary to ensure proposed trimming occurs in accord with ANSI Standard A00 Findings 6 7 DECISION Based on the preceding Findings and Conclusions the request for a Non Administrative Right ofway Tree RemovallTrimming Permit to trim trees near Puget Sound Energy utility poles and utility lines in City of Medina rightofway along portions of Overlake Drive West Overlake Drive East 84 Avenue NE Upland Road 87 Avenue NE 86 Avenue NE NE 9 Street and NE 10 Street in Medina Washington is APPROVED with the following conditions 1 The Applicant shall comply with ANSI A00 guidelines at all times specifically using the standards for utility vegetation hazard reduction improvement of structure and improvement of health as the objectives 2 All vegetative materials trimmed shall be removed from the rightofway and disposed of properly offsite No trees shall be removed nor shall any tree trimming exceed 25 percent of the tree canopy The contractor shall notify the City immediately if trimming beyond the 25 percent canopy removal threshold is required for request of adequate relief pursuant to MMC F Any tree removal or trimming that exceeds the 25 percent threshold shall require application for a new permit 4 The Applicant shall provide a traffic management plan that includes flaggers to help direct traffic while trimming activities are ongoing The traffic management plan shall be submitted to the City and must obtain approval from the City 5 The Applicant must obtain a rightofway permit prior to tree trimming activities Any conditions set forth in the rightofway permit shall be included as conditions for approving this non administrative tree trimming removal permit 6 A copy of this permit shall be kept at the work site during hours of operation 7 Property owners adjacent to trees being trimmed and Medina Tree Consultant shall be notified in writing at least seven days before the tree trimming work begins A copy of the notice shall be provided to the City prior to notifying property owners Please submit this copy to Donna Goodman Medina Development Services Coordinator 898 NE 12th Street A Medina WA Work hours shall conform to the time periods set forth in MMC between 700 am and 700 pm Monday through Friday and between80 am and500 pm on Saturday 6 Conditions of approval are required to mitigate specific impacts of the proposal and comply with City Code Tree Trimming Removal Permit No T2948 Page 7 of 8

8 9 The Applicant shall notify the city when tree trimming work is complete for final inspection Any tree trimming not performed to ANSI A00 standards shall be corrected by the Applicant to the satisfaction of the City 10 Tree trimming shall be limited to those trees identified in Exhibit C Any additional tree trimming shall require submittal of a new application Decided this day of June 2011 KIMBERLY A ALLEN Hearing Examiner Sound Law Center Tree TrimmingRemoval Permit No T2948 Page 8 of 8