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Ruling on City's Motion to Dismiss City of Redmond Hearing Examiner Idylwood Beach Park Tree Removal Appeal page 1 of 2 BEFORE THE HEARING EXAMINER FOR CITY OF REDMOND In the Matter of the Appeal of ) NO. LAND-2018-00317 ) Monica Catunda et al ) ) ) Idylwood Beach Park of the March 2, 2018 ) Tree Removal Appeal Clear and Grade Permit CGD-2018-01368 ) Allowing the removal of 30 ) Cottonwood trees from ) RULING ON CITY'S Idylwood Beach Park in Redmond ) MOTION TO DISMISS ) ) Consistent with the April 24, 2018 scheduling order issued following the April 23, 2018 pre- hearing conference in the above-captioned appeal, the City filed a motion to dismiss the appeal on the grounds that it was untimely. The Appellants responded with a timely brief opposing the motion, and the City timely replied. Documents submitted and reviewed in considering the motion to dismiss include the following pleadings and attachments: Appeal, filed March 27, 2018 by Marcello Albernaz, Monica Catunda, Rebecca Cooper, and Allan Cooper City's Motion to Dismiss, May 14, 2018 Declaration of David Tuchek, May 11, 2018, with attachments Declaration of Cathy Beam, with attachment Appellants Opposition to Motion, May 21, 2018 Declaration of Alex Sidles, May 18, 2018, with attachments City's Reply, May 25, 2018 Supplemental Declaration of David Tuchek, May 24, 2018, with attachment Declaration of Steven Fischer, May 23, 2018, with attachment Declaration of Geoffrey Dendy, May 25, 2018, with attachment On review of the pleadings, declarations, and attachments, the undersigned is not persuaded that the City's hearing examiner has jurisdictional authority to hear the appeal on the following grounds. The March 19, 2018 commencement of clearing pursuant to the March 2, 2018 clear and grade permit was not an appealable event separate from issuance of the permit. The Appellants concede they did not timely appeal the clear and grade permit, even going so ---PAGE BREAK--- Ruling on City's Motion to Dismiss City of Redmond Hearing Examiner Idylwood Beach Park Tree Removal Appeal page 2 of 2 far as to state their appeal was not of that permit, but rather of the failure of the City to obtain tree removal and shoreline conditional use permits. The hearing examiner's authority to hear appeals of tree removal permits (a Type I decision) is established in RZC 21.76.060.I.1, which specifies that the examiner has appellate authority over decisions of the department director or designee. RZC 21.76.060.D defines decision as written record of the director’s decision shall be prepared in each case and may be in the form of a staff report, letter, the permit itself, or other written document indicating approval, approval with conditions, or denial." The Appellants have not cited to any authority conferring jurisdiction on the examiner to hear an appeal of a decision not issued, and none is found. To the extent that the City's ministerial determination, memorialized in the February 8, 2018 Sabrina Gassaway email, that no tree removal permit was required was an appealable decision, such appeal would have to have been filed within 14 days of the decision in order to be timely. The latest possible effective date of that decision is the issuance of the clear and grade permit in place of a tree removal permit, rendering the March 27, 2018 appeal untimely pursuant to RZC 21.76.060.I.2.c. The Appellants have not cited authority for the City's hearing examiner to hear an appeal of a shoreline conditional use permit, much less the decision not to require a shoreline conditional use permit. Pursuant to Table RZC 21.76.050.B, the City's hearing examiner is the final decision maker on shoreline conditional use permits, meaning the examiner cannot also have appellate jurisdiction. Pursuant to RZC 21.68.200.C.6.c, appeals of shoreline conditional use permit decisions are heard by the Shoreline Hearings Board and must be filed within 21 days of the decision. To the extent the February 27, 2018 email from Cathy Beam indicating that no shoreline permit was required could be considered an appealable shoreline decision, the City's hearing examiner lacks authority to hear it. With respect to the Appellants' request for additional time to complete the public records request process prior to the issuance of a ruling on the instant motion to dismiss, any additional factual information discovered will not be capable of serving as a basis for jurisdiction on the part of the hearing examiner to hear the appeal submitted. In the absence of jurisdiction to hear the appeal, further arguments will not be addressed. Order The City's motion to dismiss must be granted. Ordered June 1, 2018. By: Sharon A. Rice Redmond Hearing Examiner