Edward C. Gokey, V. City Of Black Diamond

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON EDWARD C. GOKEY, No. 86814-4-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION CITY OF BLACK DIAMOND, Respondent. BIRK, J. — Edward Gokey appeals from a superior court order denying his appeal under the Land Use Petition Act (LUPA), ch. 36.70C RCW, which challenged a decision affirming penalties imposed after Gokey felled “significant trees”1 without a permit and continued to do so in violation of a stop work order. Because Gokey fails to establish grounds for relief under LUPA, we affirm. I According to undisputed facts established by the Certified Board Record, on March 16, 2023, two City of Black Diamond (City) officials, an inspector/code compliance officer and an assistant planner, went to Edward Gokey’s Black Diamond property in response to a complaint and observed that seven trees had been cut down without a permit, as required by local ordinance. See Black Diamond Municipal Code (BDMC) 19.30.040(A). The city officials informed Gokey, who was present, that he needed a permit to remove trees and directed him to 1 See Black Diamond Municipal Code (BDMC), § 19.30.030. No. 86814-4-I/2 cease the tree removal work. Following a heated exchange with Gokey, the inspector summoned the police. Gokey told the responding police officer that he “ ‘d[id]n’t have a problem with getting a permit’ ” or stopping the work until he secured a permit, and he was in the “process” of applying. The officials took photographs to document the trees that had been cut down, posted a red stop work order on a garage near the area where the tree removals had occurred, and instructed Gokey as to the order.2 Within an hour after its officials left Gokey’s property, the City received a telephone call indicating that “chainsaws were running again.” On returning to site, the assistant planner observed that at least three additional trees had been cut down. In his interactions with city employees on the date of the incident and in the days that followed, Gokey provided “conflicting information” about the number and location of trees removed and did not assert that he was removing trees on an emergency basis to address an imminent danger. On March 20, 2023, the City issued a notice of violation, alleging that Gokey removed a total of ten “significant trees” without a permit, in violation of the permitting requirements of chapter 19.30 BDMC (“Tree Preservation Code”), and violated a stop work order. The City assessed penalties of $10,500 ($1,000 per unlawfully removed tree and $500 for violation of the stop work order). See BDMC 2 Gokey’s property consists of four separate, adjoining parcels with common landscaping, and no distinguishing markers to identify the property lines. Each parcel has a residence and its own street address. The stop work order referenced, and was posted on, the parcel associated with a street address of 25705 Steiert Street, although the felled trees were located on parcels associated with 25706 and 25714 Steiert Street. 2 No. 86814-4-I/3 8.02.190(A); BDMC 19.30.100(D). The City also required corrective actions of planting a pre-set number of replacement trees for each tree removed, or alternatively, payment into a tree removal mitigation fund, in accordance with City code provisions. See BDMC 19.30.070, .100. When the assistant planner returned to Gokey’s property to serve the violation notice, the area had been cleared and graded, removing all evidence of the trees and their condition at the time of removal. Gokey submitted a written request for a hearing to contest the violation. Gokey also sent an e-mail to the City with an attached permit exemption application. [CP 151] The City’s Community Development Director informed Gokey that, although granting an exemption was no longer an option because the trees had already been removed, he could submit an after-the-fact permit and provided instructions for doing so. Gokey did not submit a permit application. Ten days before the hearing, Gokey submitted a written statement to the hearing examiner, indicating, for the first time, that because the trees were “dangerous and undermined property values” the removal was exempt from permitting requirements under BDMC 19.30.050(A), which applies to the “[e]mergency removal of any hazardous significant trees necessary to remedy an imminent threat to persons or property.” The hearing examiner visited the site, at Gokey’s request, convened a hearing, and heard witness testimony on September 18, 2023. During his testimony, Gokey used a hand-drawn map to identify the loca