The Edmonds City Council will get another shot at settling a property line setback dispute, following a little digging into state law by city attorney Scott Snyder.
On April 19, the council denied an appeal of a setback variance granted for a house being built at 1142 Sierra Place by Darryl and Shari Lewis. The Lewises asked for the variance because the site has a stream and other features that they said made it difficult to build unless a 25-foot setback was reduced to 10 feet.
The variance was approved Jan. 25 by city hearing examiner Ron McConnell.
Neighbors to the property, Mark Dreyer and Shelly Dreyer Green, said in their appeal that the variance would allow a deck to endanger a maple tree. At the council meeting, Dreyer and Dreyer Green said a survey they paid for shows the tree is on the property line.
Snyder pointed out to the council that Washington courts have ruled in such cases that either property owner has the right to trim branches, trunk or roots of so-called boundary trees.
Before voting, Council member Dave Orvis asked if the council was limited to what it could consider in the closed-record hearing, which means no new information or testimony can be heard.
Orvis raised questions about language in McConnell’s decision indicating that the deck wasn’t “strictly necessary to allow reasonable use of the property, but it also does not impose any substantively greater impact to the site.”
Council member Deanna Dawson also questioned the language. However, Dawson said that while she was concerned, that point hadn’t been raised in the appeal.
The Council voted 6-1 to deny the appeal with Orvis opposed.
The next week, at the April 26 meeting, Snyder told the council that although he had advised they were limited to ruling on the items specifically mentioned in the appeal, the case had caused him to go back and do some research.
“When I’m wrong, I’ll be the first to tell you,” Snyder told council members.
Snyder said in a memo that the city ordinance on closed-record hearing is similar to one in a 2004 case in Cowlitz County. In that case, the ordinance was found to still limit consideration to facts already in the record, but allows a full review, not just the items cited in the appeal.
The case is scheduled to come back to the council at the June 7 meeting.