AND DECISION SUMMARY OF DECISION

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1 4EV`-' EO V E BEFORE H>N. HEARING EXAMINER D 1 FOR THE CITY OF MEDINA OCT In the Matter of the Application of No. T CITY OF MEDINA Puget Sound Energy For a Non-Administrative Right-of-Way ) FINDINGS, CONCLUSIONS Tree Removal/Trimming Permit AND DECISION SUMMARY OF DECISION The request for a Non-Administrative Right-of-Way Tree Removal/Trimming Permit to trim trees near Puget Sound Energy utility poles and utility lines in City of Medina right-of-way along Evergreen Point Road, Overlake Drive W, Overlake Drive E, NE 10th Avenue, NE 12th Avenue, NE 77 80th Avenues, NE 82nd Avenue, NE 84th Avenue, NE 7th Street, NE 10th Street, NE 12th Street, NE 14th Street, NE 15th Street, NE 16th Street, NE 18th Street, NE 22nd Street, NE 24th Street, NE 26th Street, NE 28th Street, and NE 32n1 Street, and near St. Thomas School grounds, Fairweather Nature Preserve, and City Park grounds, in Medina, Washington, is APPROVED. Conditions of approval are necessary to address specific impacts of the proposed development. Request: SUMMARY OF RECORD Puget Sound Energy requests a Non-Administrative Right-of-Way Tree Removal/ Trimming Permit to trim trees near Puget Sound Energy utility poles and utility lines in City of Medina right-of- way along Evergreen Point Road, Overlake Drive W, Overlake Drive E, NE 10th Avenue, NE 12th Avenue, NE 77 80th Avenues, NE 82nd Avenue, NE 84th Avenue, NE 7th Street, NE 10th Street, NE 12th Street, NE 14th Street, NE 15th Street, NE 16th Street, NE 18th Street, NE 22nd Street, NE 24th Street, NE 26th Street, NE 28th Street, and NE 32n1 Street, and near St. Thomas School grounds, Fairweather Nature Preserve, and City Park grounds, in Medina, Washington. Hearing Date: The City of Medina Hearing Examiner held an open record hearing on the request on September 21, Testimony: The following individuals presented testimony under oath at the open record hearing: Kristen Clem Kissinger, City Planning Consultant Tom Early, City Tree Consultant Page 1 of 9

2 Ryan Lakin, Applicant Representative Gary Blackbourn Robert Grumbach, City Director of Development Services Alex Morcos Paul Malmo Exhibits: The following exhibits were admitted into the record: 1. Staff Report, dated September 15, Permit Application, received July 12, 2011, with Project Scope Enclosure and Work Plan 3. Tree Trimming Inventory, undated 4. Photographs of Trees Potentially Exceeding Trimming Standards, undated 5. Public Notice, with the following attachments: a. Notice of Posting, dated August 10, 2011 b. Notice of Application, dated August 10, 2011 c. Mailing List, undated d. Declaration of Mailing, dated September 1, 2011 e. Notice of Posting, dated September 1, 2011 f. Notice of Hearing, dated September 1, 2011 g. Affidavit of Publication, dated September 1, Medina Suitable Tree Species List, undated 7. PowerPoint Presentation Slides, received September 21, 2011 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( PSE)( Applicant) 1 requests a Non-Administrative Right-of-Way Tree Removal/Trimming Permit to trim trees along Evergreen Point Road, Overlake Drive W, Overlake Drive E, NE 10th Avenue, NE 12th Avenue, NE 77 80th Avenues, NE 82nd Avenue, NE 84th Avenue, NE 7th Street, NE 10th Street, NE 12th Street, NE 14th Street, NE 15th Street, NE 16th Street, NE 18th Street, NE 22nd Street, NE 24th Street, NE 26th Street, NE 28th Street, and NE 32nd Street, and near St. Thomas School grounds, Fairweather Nature Preserve, and City Park grounds, in Medina, Washington.2 Exhibit 1, StaffReport, page 1; Exhibit 2; Exhibit 3. 1 A May 16, 2011 Declaration of Agency appoints Ryan Lakin 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 2. 2 The subject property is identified as City ofmedina public road rights-of-way. Exhibit 1, StaffReport,page 1; Exhibit 2; Exhibit 3. The location of specific trees to be trimmed is identified in Exhibit 3. Exhibit 3. Page 2 of 9

3 2. The City of Medina( City) determined the Non-Administrative Right-of-Way Tree Removal/Trimming Permit application was complete on August 3, Exhibit 1, Staff Report, page 2. On August 10, 2011, the City posted notice ofthe application at City Hall, on the City website, at the City Post Office, on a public notice board at the Medina Park Northeast 12th Street parking lot, and at 10 locations within 300 feet of the property at which trimming would occur. On August 10, 2011, the City also mailed notice of the application to the Applicant, Applicant Representative, agencies, interested parties, and property owners within 300 feet of the property at which trimming would occur. The City mailed notice of the open record hearing associated with the application to the Applicant, Applicant Representative, agencies, interested parties, and property owners within 300 feet of the property at which trimming would occur on September 1, On September 1, 2011, the City also published notice of the hearing in the Seattle Times and posted notice of the hearing at City Hall, on the City website, at the City Post Office, on a public notice board at the Medina Park Northeast 12th Street parking lot, and at 10 locations within 300 feet of the property at which trimming would occur. Exhibit S. 3. Kristen Clem Kissinger, City Planning Consultant, testified that the proposal is exempt from review under the State Environmental Policy Act( SEPA), Ch C RCW in accord with Washington Administrative Code( WAC) ( 3). 3 Ms. Clem Kissinger testified the proposal constitutes utility maintenance under WAC ( 3). Testimony ofms. Clem Kissinger. 4. City Comprehensive Plan goals and policies relevant to the proposal promote maintaining the informal, natural appearance of the City street rights-of-way and public areas; ensure 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. Proposed trimming would occur in City right-of-way adjacent to properties containing all zoning classifications within the City. Exhibit 1, StaffReport, page 2. 3 Washington Administrative Code( WAC) ( 3) 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 CD-G2, UT-G1, and UT-G2, and Policy UT-P1. Exhibit A, Staff Report,page 2. Page 3 of 9

4 5. Proposed trimming would occur along approximately 13 miles of overhead utility lines and associated poles. The trimming is proposed to assist in maintenance of the utility lines by providing clearance between the existing trees and power lines. The trimming will focus on clearance for primary and neutral wires. The Applicant' s project scope description states tree trimming is intended to supply the City with a safe, reliable, and consistent energy resource, by reducing the number of tree-related power outages in the City and ensuring PSE employees have safe access to equipment in the event of unexpected equipment failure. Ms. Clem Kissinger testified tree trimming would occur within a 10 foot radius ofthe primary wire, usually the highest overhead wire, and that trimming would remove tree limbs that are growing within this radius and those that are likely to grow within the radius within the next four years. Where accessible, trees to be trimmed have been tagged with white vinyl tape with blue polka dots. Exhibit 1, Staff Report,page 3; Exhibit 2; Testimony ofms. Clem Kissinger. 6. The Applicant hired Asplundh Tree Experts to perform the tree trimming work, a Washington State- licensed and bonded tree service contractor. Ms. Clem Kissinger testified trimming would adhere to American National Standards for Tree Care Operations, ANSI A300 (Part 1)- 2001, focusing on utility vegetation trimming practices. Ms. Clem Kissinger testified that City code requires that trimming not exceed 25- percent of the canopy of each tree to be trimmed unless necessary to provide adequate relief. Ms. Clem Kissinger added that removal of up to 33-percent of a tree is considered" pruning" under City code, and removal of greater than 33-percent of a tree is considered" removal" under City code. Ms. Clem Kissinger testified that trimming of 33- percent or greater of a tree canopy requires mitigation. 5 Exhibit 1, StaffReport, page 3; Testimony ofms. Clem Kissinger. 7. Tom Early, City Tree Consultant, testified that based on his site visits to inventoried trees, proposed trimming of three trees located in the right-of-way fit the City code definition of removal. Mr. Early testified one tree is located in right-of-way along Evergreen Point Road, one in right-of- way along NE 14th Street, and another in right-ofway along 78th Place NE. Mr. Early also testified to recommend removal at grade and replacement of these trees. Photographs made part of the record as Exhibit 4 depict the three trees where proposed trimming would fit the City code definition of removal. One tree is located at 3444 Evergreen Point Road, another at 7823 NE 14th Street, and another at th Place NE. According to the City staff report, Medina Municipal Code MMC) requires that the removal of the trees on Evergreen Point Road and NE 14th Street be mitigated by replacement of each tree removed with two, three-inch caliper trees from the City List of Suitable Tree Species for Private Property Replacement and Public Right-of-Way Planting( Exhibit 6) and a contribution to the Medina Tree Fund. S Medina Municipal Code( MMC) provides" pruning" may not exceed one-third 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 onethird of the tree canopy constitutes tree removal, requiring replacement mitigation under MMC Exhibit A, StaffReport, page 3. Page 4 of 9

5 The required contribution would be $2,200 for the tree along Evergreen Point Road and 2,600 for the tree along NE 16th Street. For the tree in the right-ofway along 78th Place NE, the City requires tree replacement planting of one tree to mitigate for lost public benefit of the existing tree. The staff report states City staff would work with the adjacent property owner to select trees and assist the City Tree Consultant in locating them within the right-of-way adjacent to their property. The staff report also states that except for these three trees, proposed trimming is not expected to meet or exceed trimming or pruning thresholds under City code. Exhibit 1, StaffReport, page 4; Exhibit 4; Exhibit 6; Testimony ofmr. Early. 8. The Applicant' s work plan states proposed trimming would take approximately three months to complete, using an aerial lift truck, a chipper truck, chipper, saws, 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. According to the work plan, proposed trimming would occur between the hours of 7:30 am and 4:00 pm on weekdays. To allow for busy times around schools, work proposed trimming in those areas would occur between the hours of 8:30 am and 2: 30 pm. Exhibit 1, StaffReport, page 5; Exhibit 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 work plan states that Asplundh would likely contract with K&D Flagging Company for areas where flagging is necessary, and that traffic control procedures followed during proposed work would follow the Uniform Control Manual for Washington State. The right-of-way use permit issued by the City will require a traffic control plan satisfying City requirements for traffic control. Exhibit 1, Re ort page a e 5; Exhibit 2; Testimony ofms. Clem Kissinger. Staḟf p 10. Paul Malmo testified there is an approximately 30- inch diameter fir tree in the right-ofway adjacent to 7800 NE 24th Street. Alex Morcos testified to inquire how one might object to tree removal. Guy Blackbourne of 8401 NE 7th Street also testified to express concern about proposed removal. Robert Grumbach testified for the City that the decision whether or not to remove a tree within the right-of-way lies with the Applicant for the tree trimming permit, not the City. Ryan Larkin testified for the Applicant that any objections to removal voiced to the contractor performing the trimming are directed to the Applicant( PSE), which makes the final decision on removal. Testimony ofmr. Malmo; Testimony ofmr. Morcos; Testimony ofmr. Blackbourne; Testimony ofmr. Grumbach. 11. Ms. Clem Kissinger testified that City staff recommends approval of the application with 12 conditions of approval. Proposed conditions of approval concern compliance with ANSI guidelines at all times; removal of trimmed material; prohibition on tree removal or Page 5 of 9

6 trimming exceeding 25- percent of a tree canopy without mitigation in accord with MMC for significant trees and replacement of non- significant trees; Applicant traffic management plan submittal and approval by the City; required right-of-way permit; work hours limitation; and limiting trimming to that identified by Exhibit 3; and a final inspection of trimming work by the City once work is complete. Conditions also require notification of property owners adjacent to trimming at least seven days before trimming begins. Ryan Larkin, Applicant Representative, testified the Applicant has read, understands, and agrees with proposed conditions of approval. Exhibit A, StaffReport, pages 7-8; Testimony ofms. Clem Kissinger; Testimony ofmr. Larkin. CONCLUSIONS Jurisdiction The Hearing Examiner has jurisdiction to hear and decide requests for Non-Administrative Right-of-Way Tree Removal/ Trimming Permits. City ofmedina Municipal Code (MMC) ; MMC ; MMC ; MMC Table ( C). Criteria for Review The decision on a Non-Administrative Right-of-Way Tree Removal/Trimming Permit shall be based on the criteria set forth within MMC MMC B.3. An application for a permit subject to the provisions ofmmc shall not be approved unless the following requirements are met: A. The application is compatible with the intent of the comprehensive plan; B. The application is consistent with the public interest in maintaining an attractive and safe environment; C. The application has no materially detrimental effects on nearby properties; D. All significant trees shall be retained in rights- of-way 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 ; E. Replacement tree mitigation for significant tree removal shall be in accordance with the requirements of this chapter; F. 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 right-of-way including but not limited to said owners' interest in landscaping, aesthetics, erosion control, noise control, shade and development of the unimproved portion of the right-of-way in a manner consistent with the development of the adjoining and surrounding properties; Page 6 of 9

7 3. The proposed trimming must not cause any unnecessary mutilation or damage to the trees and should be in accordance with ANSI Standard A300. MMC 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; minimization of 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 ensure access to equipment that unexpectedly fails. Findings 4, 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. The majority of proposed trimming would not exceed 25- percent of the canopy of each tree, except for three trees where tree removal would be mitigated in accord with City code through replacement trees and contribution to the City' s Tree Fund. Proposed trimming is necessary to prevent power outages and ensure equipment access for repair. Conditions of approval are necessary to ensure mitigation, coordination with the adjacent property owner to place replacement trees, and written notification of owners of property adjacent to proposed trimming at least seven days before trimming begins. Findings 1, 6, 7, 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 of 7:30 am and 4:00 pm on weekdays, and between 8:30 am and 2: 30 pm on weekdays in areas around schools. 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 implementation of City approved traffic control measures. Findings All significant trees are retained in rights-of-way 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. Removal of three trees is necessary to ensure access in case of unexpectedly malfunctioning equipment, and to protect against power outages due to tree limb contact with overhead utility wires. Findings With conditions, all trimming would be performed in a manner approved by the city and conforming to MMC F requirements. The majority of proposed trimming would not exceed 25- percent of each tree canopy; trimming that exceeds the City code removal threshold would require mitigation. Conditions of approval are Puget Sound Energy NonAdministrattve Right-of-Way Page 7 of 9

8 necessary to ensure proposed trimming occurs in accord with ANSI Standard A300 and that the Applicant completes required mitigation for removal in accord with City Code. Findings 1, S 7, 11. DECISION Based on the preceding Findings and Conclusions, the request for a Non-Administrative Rightof-Way Tree Removal/ Trimming Permit to trim trees along Evergreen Point Road, Overlake Drive W, Overlake Drive E, NE 10th Avenue, NE 12th Avenue, NE 77 80th Avenues, NE 82nd Avenue, NE 84th Avenue, NE 7th Street, NE 10th Street, NE 12th Street, NE 14th Street, NE 15th Street, NE 16th Street, NE 18th Street, NE 22nd Street, NE 24th Street, NE 26th Street, NE 28th Street, and NE 32nd Street, and near St. Thomas School grounds, Fairweather Nature Preserve, and City Park grounds, in Medina, Washington, is APPROVED, with the following conditions: 6 1. The applicant shall comply with ANSI A300 Utility Pruning guidelines at all times. 2. All vegetative materials trimmed shall be removed from the right-of-way and disposed of properly off-site. 3. 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). 4. If a significant tree is trimmed beyond the 33 percent limit of pruning, mitigation in accordance with MMC shall be provided. Two 3- inch caliper trees shall be planted with the remaining mitigation being made as a contribution to the Medina Tree Fund. The City will determine species ofreplacement trees and the planting location, working with the adjacent property owner. 5. If a non- significant tree is trimmed beyond the 33 percent limit of pruning, mitigation shall be planting one replacement tree. The City will determine the species of the replacement tree and the planting location, working with the adjacent property owner. 6. Any trees removed will be cut at grade and the below grade roots shall remain. 7. A right-of-way permit must be obtained from the City prior to starting tree trimming activities. All conditions prescribed by the tree trimming permit shall be included as a condition of approving the right of way permit. 8. A copy of the tree trimming! removal permit shall be kept with each work crew on site during hours of operation. The work crew shall produce the permit if City staff or the adjacent property owner to a tree being trimmed makes such a request. 9. 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 6 Conditions of approval are required to mitigate specific impacts of the proposal and comply with City Code. Page8of9 x ';

9 provided to the City prior to notifying property owners. Please submit this copy to Donna Goodman, Medina Development Services Coordinator, 501 Evergreen Point Road, Medina, WA Work hours shall conform to the time periods set forth in MMC , between 7:00 am and 7: 00 pm, Monday through Friday and, within 1/4 mile of a school between 8: 30 am and 2: 30 pm, Monday through Friday. No limb chipping equipment shall be used prior to 8: 00 am. 11. The applicant shall notify the City when tree trimming work is complete for final inspection. Any tree trimming not performed to ANSI A300 Utility Pruning standards shall be corrected by the applicant to the satisfaction of the City. 12. Tree trimming shall be limited to those trees identified in Exhibit 3. Any additional tree trimming shall require submittal of a new application. Decided this 4th day of October, IYI ` Y A: ALLEN City of Medina Hearing Examiner Sound Law Center Page 9 of 9