July 27 2005

OLDFIELD & HELSDON, PLLC
ELECTRONIC NEWSLETTER
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July 27, 2005
 
COURT OF APPEALS UPHOLDS LACEY'S ORDINANCE REQUIRING PERMIT BEFORE FELLING TREES AT HOMEOWNER'S PRINCIPAL RESIDENCE
 
The Washington Court of Appeals announced their decision in Sleasman v. City of Lacey on July 26, 2005. 

 The City of Lacey adopted an ordinance regulating development-related tree-removal.  Before felling six or more trees on a developed or 'partially developed' residential lot, the owner must obtain a permit from the City. 

            Stephen and Barbara Sleasman own a two-story, 1,967 square foot, single-family residence on a partially wooded, 12,632 square foot lot in the City of Lacey.  They hired Miller Tree Service to remove trees they thought were dead, diseased, or a safety hazard.  Neither the Sleasmans nor Miller obtained a tree removal permit from the City. 

            In May 2002, Miller felled seven Douglas fir trees on the Sleasmans' property.  The seventh tree fell onto the Sleasmans' roof, damaging it. 

             The Sleasmans hired Zane's Tree Service to complete the tree removal.  As before, neither the Sleasmans nor Zane's obtained a tree-removal permit, nor did they consult a licensed arborist.  Zane Hansen felled eleven more Douglas fir trees on the Sleasmans' property.

            The City hired a forester and arborist consultant to act as its tree protection professional and to appraise the value of any trees cut without a permit in violation of the City's tree ordinance.  He identified 18 qualifying trees on the Sleasman property.

            The City’s forester assigned an appraisal value of $16,861 to the felled trees.  On August 16, 2002, the Sleasmans received a letter from the City's Code Compliance Officer, asking them to submit a revegetation plan and billing them for the full $16,861 appraised value of the trees, plus the cost of the appraisal visit.

            In September 2002, the Sleasmans hired Olympic Forestry Company, Inc., to prepare a tree appraisal for their felled trees, who estimated the commercial value of the felled trees to be $1,689.  Their appraisal did not conform to ISA recommendations, as required by the Lacey City Code.

            The Sleasmans submitted a $2,264 revegetation plan to the City.  The City Landclearing Committee determined that the net amount the Sleasmans owed the City was $625 for the non-permitted felled trees and $546 for the City’s appraisal. 

            On August 27, 2002, the Sleasmans appealed the City's tree-protection professional's appraisal to the City Hearing Examiner.

            After a hearing, the City Hearing Examiner reduced the appraisal value the Sleasmans owed the City from $15,966 to $2,889.12.  The Sleasmans brought a LUPA action before the Superior Court.  After receiving an adverse ruling, the Sleasmans appealed.

            The City characterizes the Sleasmans' residential property as 'partially developed,' which, it argued, subjected their tree removal to the LMC's permit requirement.  The City based its characterization on the R-4 zoning designation for the Sleasmans' property, which zoning allowed the Sleasmans to continue to develop their property well beyond the structures already present.

            The Court of Appeals held as follows:

            Although it was not necessary for the City to apply the zoning code to determine the meaning of 'partially developed,' we hold that doing so was not improper.  In addition, the tree ordinance specifically states that one of its purposes is to 'implement and further the city's comprehensive plan.'  LMC 14.32.020(J).

            Here, the City applied the zoning code.  Like its tree removal ordinance, the City's zoning code seeks to determine what types of activities are allowed in specified areas, taking into account the physical features on the property, including the landscaping and trees (citation omitted).  According to the City, the zoning code designates the Sleasmans' property as Low-Density Residential (0-4).  The Sleasmans' lot is 12,632 square feet in area, and their two-story house is 1,967 square feet in area.  The zoning code allows them to develop their property up to half the lot size, i.e. 6,316 square feet (or up to sixty-five percent if driveways or patios are included).       Thus, the Sleasmans can (1) potentially build three more houses on their lot, which, under the zoning code allows a maximum of four houses; (2) add on to their existing house; (3) erect other new structures; (4) build new roads; and (5) expand to accommodate home occupations, such as a family day-care center.  (Citation omitted).  The potential for such additional development under the zoning code supports the City's determination that the Sleasmans' lot is only 'partially developed' within the meaning of the tree removal ordinance.

            We hold, therefore, that (1) the trial court did not clearly err in finding a relationship between the City's tree ordinance and its zoning code; and (2) the City properly used its zoning code to clarify the meaning of the phrase 'partially developed' in its tree ordinance.

            Although not a published opinion, the Sleasman decision should still stand as a reminder that investigation about permit requirements should be done before embarking on a potentially irreversible course.

            In any city or county, therefore, where the ordinance requires a permit to fell trees in excess of a certain number on an undeveloped or “partially developed” lot, if there is any additional development that is possible under the applicable zoning code – including additions to the house and erection of other structures – failure to obtain a permit could result in civil, or possibly criminal, sanctions.