Ever-green Tree Care, Inc. v. City Of Kirkland

• Court: Court of Appeals of Washington
• Decided: July 1, 2019
• Docket: 78303-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

EVER-GREEN TREE CARE, INC., ) No. 78303-3-1 ) Respondent, ) DIVISION ONE ) v. ) UNPUBLISHED OPINION ) CITY OF KIRKLAND, ) ) Appellant. ) ) FILED: July 1, 2019

HAZELRIGG-HERNANDEZ, J. — Kirkland Municipal code authorizes an

exceptional $1,000 per tree fine for violating a tree protection plan. Ever-Green

Tree Care, Inc. (corporately known as Ever-Green) received an exceptional fine

for violating a pruning permit. Ever-Green asks this court to hold pruning permits

are not tree protection plans. While Kirkland Municipal Code does not define tree

protection plan, related provisions make it clear the exceptional fine applies to

pruning permits. We affirm.

FACTS

In January 2017, Benjamin and Nicole Krows (collectively as the Krows),

and David and Sharon Berrett (collectively as the Beretts) applied for a permit to

prune trees on a Kirkland right-of-way. Ever-Green was listed as the certified

arborist that would do the work. After review by the city's arborist, Jerry Merkel,

Kirkland approved the permit, but included handwritten notes by Merkel imposing

specific limits on Krows' and Beretts' pruning work to "trim trees, skirt up to 14'-15',

and remove 2 small trees." No. 78303-3-1/2

In late March 2017, Kirkland received a complaint from a neighboring

property owner and Merkel inspected the site. He found that most of the trees had

been limbed up to between 40 feet and 50 feet, and had been climbed using spurs,

leaving holes in the bark. Merkel visited the property again in April 2017 with

Kirkland code enforcement officer Cindy Keirsey. Merkel submitted a spreadsheet

to Keirsey showing that 19 of the trees had 50 percent or more of their foliage

removed. Officer Keirsey sent a Notice of Tree Fines and Restoration Due to the

Berretts, the Krows, and Ever-Green. The notice imposed an exceptional fine of

$1000 per tree for violating the pruning permit by severely pruning or removing 19

trees.

In response, Ever-Green sent arborist reports to Kirkland disputing Merkel's

report. 'Merkel submitted a reply. After a hearing with live testimony from Keirsey,

Merkel, and representatives from Ever-Green, the hearing examiner found that 19

trees had 50 percent or more of their live crown removed. The hearing examiner

upheld the fine of $19,000.

Ever-Green appealed to the Superior Court, which affirmed the hearing

examiner's decision. Ever-Green appealed once again, asking this court to

reverse the hearing examiner's decision.

DISCUSSION

RCW 36.70C, the Land Use Petition Act(LUPA), controls judicial review of

land use decisions. HJS Dev., Inc. v. Pierce County ex. rel. Dep't of Planning and

Land Services, 148 Wn.2d 451, 467, 61 P.3d 1141 (2003). LUPA permits courts

to grant relief when the land use decision erroneously interprets the law. RCW

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36.70C.130(1)(b). Local ordinances are interpreted in the same manner as

statutes. Griffin v. Thurston County, 165 Wn.2d 50, 55, 196 P.3d 141 (2008).

Interpretation of a statute is a question of law that is reviewed de novo. Columbia

Riverkeeper v. Port of Vancouver USA, 188 Wn.2d 421,432, 395 P.3d 1031(2017)

(citing Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4

(2002)). The objective of statutory interpretation is to carry out the legislature's

intent. Campbell & Gwinn, 146 Wn.2d at 9. Legislative intent is derived from the

text of the provisions in question, the context of the statute where the provisions

are found, related provisions, and the statutory scheme as a whole. Columbia

Riverkeeper, 188 Wn.2d at 432,(citing Campbell & Gwinn, 146 Wn.2d at 10-11).

RCW 36.70C.130(1)(c) allows the court to grant relief if the land use

decision is not supported by substantial evidence. "Substantial evidence is

evidence sufficient to convince a rational, unprejudiced person." Griffin v. Thurston

County, 165 Wn.2d at 55 (citing Isla Verde Intl Holdings, Inc. v. City of Camas,

146 Wn.2d 740, 751-52, 49 P.3d 867 (2002)).

This court sits in the same position as the superior court, and reviews land

use decisions on the record of the administrative tribunal. Griffin, 165 Wn.2d at 54-

55 (citing Isla Verde Intl Holdings, Inc., 146 Wn.2d at 751).

I. A pruning permit is a tree protection plan under Kirkland Municipal Code

Resolving this case requires interpreting the Kirkland Municipal Code

(KMC) and Kirkland Zoning Code (KZC). KMC 1.12.100(c)(3)(2), titled "Special

provisions relating to enforcement of tree regulations in Chapter 95 KZC," provides

for a $1,000 per tree fine for "Hemoval or damage of tree(s) that are or would be

3 No. 78303-3-1/4

shown to be retained on an approved tree plan or any other violation of approved

tree protection plan". KMC does not define the terms "tree plan" or "tree protection

plan." See KMC 1.12.020. Neither does Chapter 95 KZC,"Tree Management and

Required Landscaping." Ever-Green was issued a pruning permit under KZC

95.21, which does not use the words plan or protection. The text of the provisions

at issue is unhelpful, but plain language analysis "looks . . . to other related

provisions that illuminate legislative intent." Columbia Riverkeeper, 188 Wn.2d at

438 (citing Campbell & Gwinn, 146 Wn.2d at 11).

Each ordinance includes an express provision describing Kirkland's intent.

The purpose of chapter 1.12 KMC is to enforce the regulations of the city and

establish monetary penalties for violations. KMC 1.12.010. The purpose of chapter

95 KZC is to protect trees. KZC 95.05(1) ("Protecting . . . healthy trees and

vegetation are key community values"); KZC 95.05(2) ("The purpose of this

chapter is to establish a process and standards to provide for the protection. . . of

significant trees, associated vegetation, and woodlands located in the City of

Kirkland."). Because the purpose of the ordinances, taken together, is to protect

trees and enforce that protection, we interpret the ordinances to advance those

goals.

In addition to its title, KMC 1.12.100 refers specifically to Chapter 95 KZC

in two other key locations. KMC 1.12.100(d)(1) requires "[v]iolators of chapter 95

KZC or of a permit issued thereunder. . ." to restore unlawfully damaged areas.

(emphasis added). KMC 1.12.100(e) permits the city to "issue a notice of civil

violation to the person(s) who violates Chapter 95 KZC or a permit issued

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thereunder and fails to restore or pay fines according to the procedures set forth

in this chapter." (emphasis added). "Context is particularly important when

harmonizing two statutes where one references the other. The referred statute

must be read in the context of the referring statute." Rivas v. Overlake Hosp. Med.

Ctr., 164 Wn.2d 261, 267, 189 P.3d 753(2008). Carefully reading KMC 1.12.100,

in light of 95 KZC's purpose, shows that Kirkland intended these penalties to apply

to all violations of permits issued under Chapter 95 KZC.

Ever-Green was issued a permit under the pruning provision, KZC 95.21.

Ever-Green argues that the approved permit was not an approved tree protection

plan and it should be liable only under the general penalty for code violations in

KMC 1.12.040(e)(1)(A). It relies on the fact that KZC 95.21 at no point refers to a

tree protection plan. However, nothing in Chapter 95 KZC expressly refers to a

tree protection plan. Ever-Green compares the Kirkland Zoning Code section on

Tree Removal, KZC 95.23, and the section on Tree Retention Associated with

Development Activity, KZC 95.30, arguing that those sections require tree

protection plans. While those sections differ from the pruning provision and require

greater protections, including a detailed site plan (KZC 95.23(3)(a)) or a tree

retention plan (KZC 95.30(2)), neither section uses tree protection plan or helps

the court define the term. The different requirements between the various permits

do not compel us to ignore the language imposing exceptional fines on all

violations of permits issued under the chapter.

Further, the process for seeking a tree pruning permit under KZC 95.21

explicitly calls for the applicant to submit a site plan with their request. The Public

5 No. 78303-3-1/6

Tree Pruning Permit Application used by Kirkland contains language advising that

the request will not be processed without an attached site plan. In fact, the site

plan submitted with the pruning permit here substantially conforms to the site plan

requirements in KZC 95.23(3)(a), showing the approximate locations of significant

trees, their size and species, and relevant structures and streets. While this

requirement is not contained in the ordinance, it demonstrates that Kirkland treated

pruning permits requests and tree removal requests similarly and intended them

to invoke the same protections.

Ever-Green acknowledges the explicit purpose of each ordinance, but fails

to note the provisions of KMC 1.12.100 that make it clear the penalties apply to all

violations of permits issued under Chapter 95 KZC, including pruning permits.

Ever-Green's confusion is understandable. While the statutory scheme as a whole

makes the legislative intent clear and supports the hearing officer's finding,

Kirkland's failure to define "tree protection plan" or to use terms in each ordinance

that mirror one another invites litigation to interpret the statute.

Reading KZC 95.21 in the light of KMC 1.12.100 and the express purposes

of the ordinances, we affirm the conclusion of the hearing officer. The pruning

permit was an approved tree plan or tree protection plan under KMC

1.12.100(c)(3)(2).

Substantial evidence supported the finding that Ever-Green removed 19

trees

KZC 95.10(19)(2) defines removal of a tree as "removal of at least half of

the live crown." The hearing officer found that Ever-Green removed 50 percent or

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more of the foliage from 19 trees. Ever-Green challenges this factual finding,

which is reviewed for substantial evidence. See RCW 36.70C.130(1)(c).

While the parties contested the amount of live crown that Ever-Green

removed, substantial evidence supported the hearing examiner's finding.

Kirkland's code enforcement officer testified that she received a revised tree list

from Kirkland's arborist noting which trees had over 50 percent of the live crown

removed. While Ever-Green argued that the city included dead branches in

calculating the live crown, Kirkland's arborist testified that most of the dead wood

was up to 15 feet, the height specified in the permit. Kirkland's arborist noted that

Ever-Green skirted many of the trees up to 40 or 50 feet and removed live

branches.

The hearing examiner was entitled to resolve the conflicting evidence in

favor of Kirkland. Substantial evidence supports that decision, and we affirm the

finding that 19 trees had 50 percent or more of their live crown removed.

Kirkland adopted industry standards regarding climbing spurs

Ever-Green argues that the hearing examiner misinterpreted Kirkland's

adoption of industry standards regarding climbing spurs. KZC 95.21 requires that

"[p]runing shall conform to the most recent version of the American National

Standards Institute (ANSI) A300 Part 1 -- 2001 pruning standards. . ." Because

the ordinance incorporates the industry standards, the court interprets their

meaning like any other legislation.

The most recent version of ANSI A300 Part 1 available to Ever-Green at the

time it pruned the trees was the 2008 version. ANSI A300 is divided into several

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parts, each with its own title. Part 1 is titled "Pruning."1 ANSI A300 Part 1 states

"[c]limbing spurs shall not be used when entering and climbing trees for the

purpose of pruning." ANSI A300 Part 1 §5.2.2 (2008). Ever-Green admits it used

spurs to climb and prune many of these trees. Regarding the use of spurs, Ever-

Green asks the court to decide that Kirkland did not adopt ANSI A300 Part 1 in its

entirety, but only the "pruning standards". Because ANSI A300 Part 1 is entirely a

manual on pruning standards, and because the purpose of Chapter 95 KZC is to

protect trees, we conclude Kirkland adopted ANSI A300 Part 1 in its entirety,

including the provision prohibiting the use of climbing spurs while pruning.

ANSI A300 Part 1 defines standard as "[t]he performance parameters

established by industry consensus as a rule for the measure of extent, quality,

quantity, value or weight used to write specifications." ANSI A300 Part 1 §4.43

(2008). It defines specifications as "[a] document stating a detailed, measurable

plan or proposal for provision of a product or service." ANSI A300 Part 1 §4.41

(2008). "Specifications [for pruning] should include location of tree(s), objectives,

methods (types), and extent of pruning (location, percentage, part size, etc.)."

ANSI A300 Part 1 §2.3.1.1 (2008). Section 7 of ANSI A300 Part 1 defines pruning

methods (types) as clean, raise, reduce, and thin. ANSI A300 Part 1 §§7.2-7.5

(2008).

Ever-Green argues that the use of spurs is not part of the location of trees,

objectives, methods, or extent of pruning. It argues that because the directive not

to use spurs is not part of what specifications "should include," if is not a standard.

1 ANSI A300 Standards, Tree Care Industry Association,(Mar. 21, 2019), https://1~.tcia.org/TCIA/BUSINESS/ANSI_A300_StandardsJTC1A/BUSINESS/A300_Standard s/A300_Standards.aspx?hkey=202ff566-4364-4686-b7c1-2a365af59669.

8 No. 78303-3-1/9

But Ever-Green fails to argue that the directive regarding spurs is not a

"performance parameter established by industry consensus as a rule for the

measure of extent, quality, quantity, value or weight" that could be included in a

"detailed, measurable plan for the provision of" pruning. We affirm the judgment

of the hearing examiner.

IV. LUPA does not authorize attorney fee awards in enforcement actions

Kirkland requests attorney fees under RCW 4.84.370. "RCW 4.84.370 is

the source of attorney fee awards under LUPA." Alliance Inv. Grp. of Ellensburg,

LLC v. City of Ellensburg, 189 Wn. App. 763, 774, 358 P.3d 1227 (2015) (citing

FINAL B. REP ON ENGROSSED SUBSTITUTE H.B. 1724, at 6, 54th Leg., Reg. Sess.

(Wash. 1995)). The statute awards attorney fees and costs to the prevailing party

after the review of a decision by a municipality "to issue, condition, or deny a

development permit involving a site-specific rezone, zoning, plat, conditional use,

variance, shoreline permit, building permit, site plan, or similar land use approval

or decision." RCW 4.84.370(1). When the legislature uses a statutory term and

lists illustrative examples, we construe the term narrowly, consistent with those

examples. Maytown Sand and Gravel, LLC v. Thurston County, 191 Wn.2d 392,

427, 423 P.3d 223 (2018).

We cannot award attorney fees in this case because Kirkland's decision to

cite Ever-Green for violating a permit is not similar to a decision to issue, condition,

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or deny a permit. In defining land use decisions, LUPA separates decisions

regarding issuing permits and decisions to enforce ordinances. See RCW

36.70C.020(2)(a), (c). LUPA expressly authorizes awarding attorney fees for

appeals regarding decisions to issue, deny, or condition permits, and does not

authorize attorney fees for decisions to enforce ordinances. Here, Kirkland had

already approved and issued the pruning permit. Ever-Green did not challenge

that decision. The decision appealed here is an enforcement decision, not a

decision to issue, condition, or deny the permit. Cases awarding attorney's fees

after prevailing in a LUPA appeal of an enforcement decision do not appear to

have considered the argument. See Mower v. King County, 130 Wn. App. 707,

720-21, 125 P.3d 148 (2005); See also First Pioneer Trading Co., Inc. v. Pierce

County, 146 Wn. App. 606, 618, 191 P.3d 928 (2008). Because LUPA does not

authorize the award of attorney fees in a case regarding an enforcement decision,

we may not award attorney fees to Kirkland.

Affirmed.

WE CONCUR: