Hearing Examiner - Regular Meeting

Since we all heard that lovely announcement, recording in progress, my clock now shows 10 o'clock. Good morning, ladies and gentlemen. For the record, my name is Gary McLean, and I'm the hearing examiner for the city of Kirkland. And I think all of you have come here today to either participate in or observe an appeal hearing regarding a short plat decision that was issued by the city earlier this year. A timely appeal was filed. Motions came about. We had pre-election conference, and I issued orders. And as a result of those, people have exchanged information, evidence, lists of proposed witnesses, and other procedural issues before today's date, bleeding up to today's date, which is the beginning of the appeal hearing itself. Under city codes, the appeal hearing is before the examiner. The burden of proof is on the appellant, and I take testimony from witnesses that are called by the parties. The parties in this matter are the appellant, the applicant team, and the staff team. I'm going to go through some introductions for you all, and then I'll go through a little bit of the groundwork. So first of all, from my right to my left, your left or right. I would just ask folks at the table to my right, if you would please introduce yourself. I believe that's the appellant's table. So Mr. Telligan.

Morning, Mr. Examiner. My name is Brian Telligen, and I'm here on behalf of the appellant, Irene Justina, who is here to my left. Good morning. Thank you for being here today. Okay. All right.

And you're able to hear everything from where you are and you've got room ready to proceed today? Yes. Thank you, Mr. Examiner. All right.

Thank you. Good morning, Mr. Examiner. Brandon Gribben of Hustle Fetterman for the applicant. To my left, Ray Lappin of Hustle Fetterman. To his left, Spencer Stegman of Legacy Group Capital.

another lawyer, and an applicant. Okay, so that's the applicant table team. All right, thank you. And over, moving to my left. Good morning.

Good morning, Mr. Hearing Examiner. I'm Stephanie Kroll, the Senior Assistant City Attorney for the City of Kirkland.

I have a nice sign in front of you today, so even without my glasses, I can see that.

All right, and entering right now is the Assistant City Attorney, Ryan Gompertz. He's going to be assisting today.

Okay. Good morning.

And to his right, go ahead.

Hi, Mr. Examiner. My name is Nicholas Lopez.

I am the project planner for the short plan. I see your name on the staff report.

Okay. Good morning. Nick Salufo, planning supervisor with the planning and building department. My name is also on the staff report. Okay.

Good morning. And to his left, who will remain probably silent unless I ask him a question, is Tyler Gurley. And he is our logistics coordinator and everything and the clerk for the hearing today. So if I have to interrupt or if he waves his hand, it might be because the microphone's dead or something like that, something technological. So I appreciate the help that staff has provided to all of you and to me in bringing us together and make sure we all got electronic copies of things. And I understand they've already gone through the logistics to make sure the sound and audio are working okay. So before I start, do any of you all have any procedural issues that you need to bring to my attention that I need to address before I go through the format for how we're going to run the hearing today? And I'm addressing that to counsel. So, Mr. Teller. Not for the appellant. Thank you. Mr. Griffith. What?

I guess just one question on how the examiner wanted to handle the exhibits, wait until they're introduced, or if we could perhaps agree on which ones are not objected to beforehand, get those admitted, and then whichever ones are challenged, deal with them at the time.

Fair question. Ms. Kroll, anything else?

No. I concur with Mr. Griffin.

All right. So the format I'll follow is the burden of proof is on the appellant's team. In an appeal like this where there is an underlying decision of the city that's been made, I have discretion to allow city staff to basically give me, I call it the Admiral Stockdale presentation. Who am I? Why am I here? Just basically, what is this thing? And then the applicant team begins your presentation to witnesses. But in this instance, I received a, and you all did too, a comprehensive staff report, which I believe expresses the staff position in the manner. And I don't believe I need testimony from staff at the beginning, unless you have a compelling reason why you think you should have the first bite at the apple. But I think the staff report spoke loudly for what the staff position was. And so I'm inclined to proceed first with the appellate's presentation of witnesses and evidence, and then move to rebuttal testimony from applicant team and staff team, and then allow reply testimony from anybody that's called by the applicant team. That's the format I'm inclined to follow today. Ms. Kroll, do you have a response to my suggestion that perhaps staff could waive its opening presentation because you presented the staff report, or what say you?

This is fine with the city. Your presentation in order is absolutely fine with the city.

Okay. Because I know in some jurisdictions, the planner's got a 45-minute PowerPoint they wanted to show everybody, and it's like, well, that's nice, but I don't have a room of 300 people that came to see that today. So I've got a staff report, and I think we're ready to get into the substance of the hearing itself.

Thank you.

All right. all right so with that um we had a question about exhibits and i find it always more helpful to everybody so you're not clumsily going through big notebooks or finding files on your computer if the parties can stipulate to introduction of evidence as presented in exchange between the parties It doesn't mean that you agree with what the document says. It just means that people aren't going to have to go through authenticating a record, and what time did you hit print on this, and when did you go to the house to look at the picture. If it says you said it, I'm going to accept it that way. So, Mr. Telgen, would you stipulate to admission of exhibits as submitted, and would you request that on your behalf? And in fact, this morning, you presented me a hard copy of, it looks like A1 through A51. Would you like to propose? that they be admitted as presented, subject to questions and challenges by witnesses as they might come up during the course of the hearing.

Yeah, I understand, Your Honor. I'm sorry, Mr. Examiner. I do request and stipulate to that. I find that in most things, I mean, it will come down to you as to what weight you put on things at the end of the day. And so I am fine stipulating to you.

And for you to tell me, Libet 12, you've got a problem with it. You're going to tell me that if you have that number up.

And I would ask for the same professional courtesy so we can just move past that. Right. So, Mr. Goodman.

Yes, Mr. Examiner. I did confer with the city attorney, and I think we're in agreement on which exhibits we do object to. Well, maybe the first one isn't technically an objection, but exhibits 45 to 50 relate to the prior short plat and hearing examiner decision. Your order on the motion to dismiss said challenges based upon the prior decision are not relevant. But to the extent it's relevant background, that will be allowed. So I would just say for those six exhibits, just adding that qualification on it.

I will note your objection, and Mr. Tellegen read my order, and I expect that he will follow that order. And if you don't think he is, you'll say objection, and I'll rule at the time. I don't even know if I'll reference them.

They're there for background. Okay. I mean, I think it'd be nice to have them admitted just so that we don't have to... Sure.

And I just want to put that on the record.

So if they're admitted for that purpose. I noted your objection.

And then the other two exhibits were the arborist report and CV appellants 23 and 24. Now, this has to do solely with what might happen if the hedges are trimmed. And I think...

It's an arborist resume and their report. Correct. Is that right?

For the appellant. And I believe since... The examiner dismissed all claims related to timber trespass waste, private tort claims, and that's not part of the short plat decision. I don't think that's relevant. And so I would ask that those two exhibits and the arborist be excluded.

I'll withhold ruling on that based on the presentation of evidence from the appellant if you choose to move forward with it.

I certainly intend. I mean, I plan to call my arborist second, and I do believe it's relevant under the code, so maybe we can reserve a legal ruling and have a challenge about that later.

I'll hold off on that, and we'll see what unfolds. But I note the objection, and you've heard it, so you may want to tailor your questions accordingly. Okay.

Absolutely. And again, I guess I feel like all of this goes to the weight. I mean, I'd like to have them admitted so I don't have to authenticate. You, of course, based on your rulings, you can... Give something 08 if you so choose.

So I will talk about the appellants exhibits first. Exhibits A1 through 51, I will admit them all for identification purposes as presented and as labeled. I will withhold ruling on whether 23 and 24 are to be admitted. and because you are going to call your witness, we'll address it at that time. Very good. And 45 through 50, I note that Mr. Tellegen told me those are for background only, and the order allows certain things for background, but not to say that the prior examiner decision binds me in this matter, because it's a new application. So I'm going to admit them for identification purposes and just rely on you to present how you... what weight I should provide to them and what purpose for, for, for what purpose you hope to use them to support your case. Okay. All right. So to the cities and the applicant exhibits, Mr. Tellegen, you said you didn't have an objection or just, I don't have any objections. Okay. So they're admitted as presented. Okay. Let me catch up with my notes here. Okay, that's the only procedural issue we had. To let you all know, I don't know how long it will take. We're scheduled today, and we're scheduled if we need continuance time on Friday. We can address that later today if we have to. It's my practice usually, if we go an hour and a half, I usually... Logical points, I try to take a break so people can get up and move their legs and get a cup of coffee or something. But if at any point somebody has an accommodation request or a reason that you need a break, counsel, just point of order, just, you know, could we take a three-minute recess or something? Let me know if I'm running too long. Lunch-wise, I do not take one-hour lunches. So if you plan to reservation somewhere on the waterfront to do that, it'd be best to cancel that. I hope you brought something to eat or you were able to get in and out within a 45-minute or a 30-minute window because I want to be efficient with your time. I know it's hard for everybody to come together on a day like this, but I'm here for the hearing. You are too. So let's keep going and maybe we can get done earlier rather than later. And we may not need Friday. We shall see. So I just want to mention that out of the gate. Let's see. Thank you all for being here in the room. We do have the online platform set up. So if witnesses do need to testify that way, they will be doing that. And I don't think I need to go over any other protocols. Counsel, you know the rules. Do you all have any questions before I start? Okay. Heads are shaking and I've got a hand up on my left. Yes, Ms. Kroll.

I believe that Mr. Tulligen had a witness online who he hasn't seen yet. Is that witness prepared now?

Yeah, so just as a heads up, I have three sort of expert witnesses that I'll be starting with. My surveyor, my arborist, and my traffic engineer. They are all appearing by Zoom. I see it looks like Let's see. One of them was on. Oh, he is. My surveyor is on, but my other two should be on soon. So you'll be hearing from three witnesses from me today.

And you're going to my question, which is, Mr. Tellegen, you presented a list of proposed witnesses, and so did the other parties. I don't expect that any of you... will be calling every witness you put on your list. And as I said earlier, I expect all of you to apply my version of the best evidence rule, which is if one person can say it best, call that person. Don't call three to say the same thing. And if it's not relevant or it's off the table, take the witness off the list. To the applicant and the city, If the appellants choose not to dive into a certain issue, that might be off the table. You may not need to call the person about the baseball park next door or something like that if they don't raise the issue today. But I defer to you all. And Mr. Tellegen, were there any, you want to narrow your list today or you want to refine exactly who you hope to call today? And I think you just went through that.

Yeah, so I intend to call my surveyor very quickly just to authenticate and talk about the survey and the record. to call my arborist, Katie Hogan. She's going to be talking about impacts. Well, big picture, Miss Justina, her property has two large hedges. One that is sort of on the south side of her property and is adjacent to the right of way to Northeast 117th Street. Have you seen these? I assume you've seen the short plat map.

Yes.

Yes. And I looked at aerials and things. And I'm familiar with the neighborhood. Excellent. So she has one large hedge that sort of runs parallel to Northeast 117th Street. And then she has another large hedge that runs north to south adjacent to the sort of panhandle that sort of leads into the development property. And our claims today effectively have all in one way or another had to do with impacts on that hedge, right? Either because of what we view as the city's sort of having a wrong site distance calculation, leading to statements in the record that more of her sort of front edge adjacent to Northeast 170th Street needs to be cut down or... You're making argument, and I was only asking, who all do you want to call? So you got certain... And you said traffic? I'm sorry, you asked me if I want to narrow issues. I was trying to explain the issues in my case that I'm pursuing. I'm trying to move on. I wanted to hear how many witnesses you said, three, right?

Traffic was the third? We didn't get to that? Traffic... And did you want to call the appellant?

Yes. So four witnesses today, possibly five if I need to call someone from the city, but I would assume that the city's going to call them, and I'll probably ask my questions at that time. Who would you like to call from the city? Probably Mr. Salufo, and then, or Mr. Lopez, I'm not sure which one is the right one. The decision makers. Yes, the decision makers. And then there's Mr. Nguyen, who was the city's traffic transportation reviewer. I'm not sure if he was here, but he was on my list. And I expect Ms. Kroll will probably call them anyways. And so if it's more convenient, I can save my questions for that time.

Thank you for mentioning that. Witnesses get called one time. So you've identified the city witnesses that you would like to call. Ms. Kroll, did you intend to call them during your case presentation? yes if needed okay and if you don't i will call them so mr telogen has a chance to ask them questions okay yes uh i mentioned this in the pre-hearing conference i'm not going to limit the scope of your questioning whenever the person is called because uh if mr glufo gets called during your case everybody can ask him all the questions at one time except for rebuttal if you have exceptional good cause to call somebody a second time on rebuttal. But I just want to let you know I'm not going to limit your cross-examinations to the scope of the direct examination because that's my rule out of efficiency. Witnesses get called once, okay, whenever, whoever, somebody calls them. And you put the city on notice who you want to call on the city team, and they're here apparently. Okay. So you don't feel the need that you need to call them during your case in chief unless you want to, which you can. Tactical stuff and strategy is up to you to decide, but if you want to wait until later, that's fine too.

Very good.

Okay. All right. About how much time do you think you need with the surveyor, with the arborist, and with the traffic person?

I'm hoping to be done pretty quick. I expect my surveyor, I probably have no more than... Possibly 10 or 15 minutes. Okay. Ms. Hogan, who is our arborist, I would estimate. Is this Mr. Hogan?

Is that Mr. Hogan?

No. Oh, this is Mr. Hogan.

I thought you said you had somebody in the room. Yeah, yeah.

Only Ms. Justina's in the room. Okay, okay. This is Mr. Cooper. He's Ms. Justina's husband. And with my engineer, I'll probably need more, like maybe an hour. But overall, I'm hoping to be done pretty quick. Okay. All right.

Okay, so if we're ready to move on then, Mr. Tellegen, would you like to make an opening statement? And if you do, I'll accept that. And if you don't, you can rely on your papers. Otherwise, I'm ready to let you call your first witnesses.

May I ask one clarification? Will I be permitted to provide a closing statement?

Absolutely. And when the hearing closes, I will expect that you all will huddle and let me know if you want to make your arguments today or if you want to submit written closings. OK, great. You don't have to answer that now because no one knows how things will unfold. Sometimes you're like, oh. I got to go look something up. I need to write something. I'll let you decide that later and you can ask me when we're done. So I note your request. I'm not denying it. I will grant it if the request comes forward. Okay.

Excellent. All right. So then I will waive opening statements since I believe you've read the city's report and I would like to proceed with Mr. Gavin Oak, my surveyor. And they're going to be online. He is a attendee on Zoom right now.

Okay. Do you want to spell his name for me?

Oh, first name is Gavin, G-A-V-I-N. Last name is Oak, O-A-K.

Without an S. Correct. Okay. And when Mr. Oak is pulled up online, I will put him under oath and we'll get ready to go. To counsel, Mr. Gribben and Ms. Kroll, you both have, you've got double lawyer teams here. And sorry, I'm going to say it before we even start. First witness, one person makes objections. So if Mr. Gribben, you're the first objection, you're the only one that can, this is your witness or not. So if somebody else is going to do the traffic person, say so-and-so's got traffic, I'm not going to listen to you on that. I'm going to listen to your partner, okay? All right? Okay. No tag team wrestling with lawyers. All right. Very good. Okay, Mr. Oak, I think there you are, and you've got a name beside you on the screen. Mr. Oak, if you would please raise your right hand. Do you swear or affirm that testimony you're about to give today will be the truth, the whole truth, and nothing but the truth? I do. Mr. Oak, can you hear me okay? Yes. And video, if you want to see things, can you see it okay? Yes. All right. Well, thank you for being here. You're the first witness, so I think you've been online listening to things. But Mr. Tellegen is going to ask you some questions now, and I'll ask you to answer those questions truthfully. You're under oath. And then after that, the lawyers for the applicant and for the city will be given a chance to ask you questions as well. I tell every witness this, just answer truthfully. If you don't understand the question, don't answer. Ask them to rephrase because you can't tell the truth if you don't know what they're asking. And don't guess. If you don't know, say you don't know. and don't feel like you have to win or lose the case for anybody. Just tell us what you know and listen to the questions and answer them. If you hear me interrupt anybody, whatever you're saying, stop. Please stop talking, okay? That probably means I need to address something procedural, an objection or something of that sort. If you hear the word objection from any of the other parties, stop talking. Just stop. Let me address the objection, then I'll tell you how we're going to move forward, okay? Okay? Okay, sounds good.

Thanks.

All right. And Mr. Oak, if you need a break to get a glass of water or anything like that, you're the guest of honor. You let me know. Okay? Okay.

Thank you.

All right. Mr. Tellegen, he's your witness.

Thank you. Good morning, Mr. Oak. How are you doing today?

Good morning. Thank you. I'm doing great.

Great. So usually when you and I Zoom, we're sort of face-to-face. Can you see me in the room okay? Yes. Great. And can you hear me okay? Yes. Excellent. So Mr. Oak, I have submitted into the record of this case. Let's see here. I believe it's exhibit. Oh, sorry. I just moved off the screen. Your resume, which I've submitted as exhibit A26, I don't know that we need to pull it up. I was just sort of referencing it. But Mr. Oak, can you tell us a bit about who you are and what you do for a living?

I'm a land surveyor, professional land surveyor, licensed through the state of Washington. And I've been surveying in the area for over 30 years. Very good. And what company do you work for? AGO Land Surveying. AGO, is that a company, like what's your position there?

Oh, I'm the manager owner. Manager owner. How long have you been the manager owner of that company? About 10 years now. And how long have you been a surveyor? Over 30 years. Over 30 years. Right now, when you do, do you sort of go out in the field and perform surveys yourself or like you give me a sense of what your day to day sort of tasks are?

Actually, most of the field work is done by field crews that are trained by us. And we facilitate the work in the office and then send them out with direction. And then they bring back the data and we check that data and then draft all up into survey drawings. Very good.

So you're sort of like a higher level manager and you review the survey information that your crew brings back. Yes. And do you train your crew in how to perform surveys?

Yes. Yeah. They're trained, they're brought in and then trained by other crew members and us. And, you know, there's procedures that how we do things and they're taught that. And yeah, so they're all trained by me. Okay. And when they bring their information back to you, generally speaking, sort of in what form is that? It's just basically data point file and a raw dad file and then field notes they take the record field notes as they're out there. And that's all downloaded into a system for us to check. Very good. And when you say check, what do you mean? We just go through their field work and check that, make sure there was no errors, and then plot it all up because there's basically a raw data that records all their measurements, what they've done, so we can see if there's differences or things and go back to that, but just to make sure everything checked out to what they did in the field. Very good.

And now when people go and perform a survey, when your crew goes and performs a survey, often the sort of result or fruits of that is a sort of survey drawing, yes? Yes, that's correct. Are you involved in the production of the survey drawing? Yes, yeah.

How so? That's mainly my main part is I have drafters or I draft them and then I do the final check on them and go through and make sure everything's correctly shown. Very good.

So in this case, you were retained by me on behalf of the appellant, Irene Justina, and you had your crew go out and survey property at 8300 Northeast 117th Street in Kirkland. Is that right? That's correct. Very good. I'm going to share my screen. Can you see my screen, Mr. Oak? Yes. If you need me to blow it up, let me know. Does this drawing look familiar to you? Yes, that's my drawing. Okay, so this is the survey that was produced when your crew went out to survey Ms. Justina's property. Yes. Very good. Now, I'm going to focus your attention on sort of two aspects of this survey. One is over here, and then you see where I'm highlighting? Yes. Okay. And there's a dark vertical line that generally runs north to south through that blue rectangle. What is that dark, that sort of dark straight line?

That represents the computed property line that we've come up with.

Okay, so that would be sort of the western boundary of Ms. Justina's property. That's correct, yeah. Okay, and then within that blue rectangle, you will also see there is sort of an organic-shaped cloud feature, right, that runs from the top to the bottom. Can you tell me what that is? That would be the...

Excuse me, Mr. Henry.

Yeah.

Yeah, we do not know what exhibit is pulled up.

Yeah, can you give me the exhibit, and if it's got page numbers, which page number?

It's Exhibit A25, and it's one page.

Is it a one-page document you said?

Yes.

Okay, Exhibit A25.

Sorry. Mr. Oak, just to get us back, you may have already started answering my question, but for the record, I'll repeat it. Within that blue rectangle, there is a sort of organically shaped, I would describe it as a sort of cloud-shaped feature that runs north to south along that western property line. Can you tell me what that is? That's a depiction of the proximate edge of hedge land.

I see. So there's a hedge that runs north to south along that property line. That's correct, yeah. And that's kind of the outside perimeter of it, of the growth of the hedge. Very good. And so that is approximate? Yes, yeah. We take some average shots along there and then run basically a cloud through those. So it wouldn't be exact at each spot. It's just to kind of represent that, hey, here's the edge of a hedge. But it could be plus or minus. Very good.

And then if I zoom in, say I'll go down here, I'm going to draw another. This is sort of the southwest corner of Ms. Justina's property. I'm going to draw another blue rectangle. And here we have a close up. First, I note down there, there is a white circle that says found one half inch rebar. And then it says LS 15025. Can you tell me what that is?

That's an existing survey marker done by a previous surveyor. And so we locate that and verify that it's at the corner. And then we also list their survey license number on there. So you can refer back to their survey. I see.

So this would have been a survey marker that was sort of put down by somebody else that you found. That's correct. And you said you would check the accuracy of that survey marker?

Yes. Yeah. Because you can see the other markers, some of them, if they're not correctly, you know, at the corner will show how they relate to the corner. But if there's no, you know, they will accept them if there's nothing said that it's not at the corner. Very good. Thank you so much.

Now, within that sort of dashed, I guess we can see here that sort of cloud-shaped feature, the sort of approximate exterior, I guess, boundaries of the hedge, that's in a dashed line. And then within that dashed line, there are a number of circles. Do you see those? Yes.

What are those? Objection. Those represent the... Hold on just a second, Mr. Oak. There was an objection. What's the objection?

The objection is that the hedge, location of the hedge and any damage that might in or to the hedge because it's growing over the property line has been dismissed in the pre-hearing conference motions.

Mr. Tell, a general response? That is not my understanding of your order. My understanding of your order, let me just get it out here. So the paragraph in your order reads, this is, I believe, paragraph, numbered paragraph four. It says, appeal issues seeking adjudication of private timber trespass. So it's seeking adjudication of private timber trespass, waste, damages, or other private property tort claims, including claims under, and that lists the timber trespass statute and the waste statute, are dismissed. So that was the ruling, was adjudication of private tort claims and damage claims. The next paragraph says... This order does not dismiss otherwise properly raised issues concerning whether the current short plat as approved in condition complies with applicable city short plat access, site distance, traffic, pedestrian safety, vegetation slash tree, or public health safety and welfare requirements. So as I understand your order, you are dismissing us from seeking adjudication of tort claims or raising those claims in this forum. You are not seeking to, you have not dismissed us from seeking to adjudicate whether or not damage to this hedge otherwise complies with short plat approval criteria, including vegetation slash tree requirements. My order speaks for itself.

So then I would ask you at some point pretty soon, because you said this was a short set of testimony, um, tie it to a code provision that you think was not satisfied for some reason with respect to issues you're speaking about now.

Yes, and I was actually, I guess this is a point to ask you a question. I was wondering, to me, that's legal argument. I have a number of legal arguments why I think damage to this hedge does not comply with the code. I'm asking Mr. Oak right now to talk about just sort of how he did the survey. A, I expect to start talking about the code a little bit with my next witnesses who were I mean, Mr. Oak is just identifying what he did. He's not here to talk about damage, per se. But I guess there was a question in my mind.

I will wait for you to provide argument and citation to Code Authority as to how this might demonstrate the decision was a mistake. And you would like me to do that with my surveyor? Well, no.

You said you wanted to do it during your argument? Yes, I would like to do it during my argument and with my other witnesses. My sole point is... I will get to that, but Mr. Oak is not here to talk about damage to the hedge.

I understand. So he's not here to talk about damage, and I'm not going to take anything Mr. Oak says to be going towards damages, and Mr. Tellegen, I'm taking your... representation to be that you're not arguing that the damages issue is an issue in my decision about whether the short plat decision was a mistake but you are alleging that somehow landscaping shrubbery or whatever uh is relevant to whether the decision is a mistake and you're going to get to that later but right now this witness is just telling me what their survey shows absolutely correct move on thank you mr oak what do those circles represent does that represent the center of the hedge trunks

Okay, does the entire circle represent the center of the hedge trunk? Well, the circle is basically representing the approximate diameter of the hedge trunk, and then it's the, you know, we shot the center of it, and then we put a circle about the approximate diameter of the trunk itself.

Okay, and so can you tell me about how those, how was that element of the survey performed?

Just basically by a total station with a prism and a rod, and then we shoot a distance to the center of the trunk, and then physically measure it with a tape, and then radio that back, saying what size it is, the diameter.

I see. So the diameter of these trunks would have been measured? Yes. I see. And then my correct understanding that your survey crew would have measured the diameter of the trunks... Yes. Yeah. Each one that they shot in. And they would have performed a calculation to find the center of the trunk. Yes. And then on this particular image, the circle we see represents the diameter. And then that circle is centered on where the center of that trunk would be relative to the property line. That's correct. Very good. And you've done that, it looks like, for all of the trunks for this hedge? Yes. Okay. Very good. Now I'd like to move down a bit, and we have the same sort of feature, and we have it along sort of running east to west, and just as the sort of dark black line running north to south on the west side of Ms. Justina's property, that represented her western boundary, am I correct in thinking that the dark black line running east to west inside this blue box, that's the southern boundary of her property? that's correct yes very good and incorrect understanding then but also similar to before the sort of cloud-shaped dashed line that surrounds that dark black line that is the sort of approximate exterior boundaries of another hedge on her property yes Very good. And we again have within that area, we have more circles and those also represent trunks? Yes. Measured in the same way? Yes, that's correct, yeah. Very good. I'm going to ask you a question. I'm circling this trunk right here. It's the one right above the S. Now that S, it looks like that is a coordinate or it's the beginning of a coordinate of some sort? Yes, that's the bearing of the property line. Very good. And then above that, we see one of the trunks. Does that trunk, according to your calculations, does it cross the boundary line?

Yeah, by about seven hundredths of a foot it crosses over.

And by my calculation, that comes out to a little under an inch. That's correct, yeah. Okay, so that crosses over the boundary line. Were there any more along the southern boundary line that crossed the boundary? No.

Um, I think if you go farther over, you can like physically see that they, yeah, there's one right where you got your arrow there. That one's clearly over.

Okay. Very good.

At least drawing a picture with words. That's you moving East on that line. Oh yes. I'm sorry. I'm scrolling East along that line points down more and there's, and here's another one. It looks like that one crosses over. Yes. Very good. I have no further questions for Mr. Oak.

Okay. I'll try to alternate order. Mr. Griffith, do you have any questions for this witness?

I do, Mr. Examiner, a few questions. Mr. Oaks, can you hear me okay? I'm waving my hand here in the council chambers. Yes. Okay. As Mr. Examiner said, if you can't hear me or don't understand the question, feel free to ask me to repeat it. Okay. Mr. Tellegen, could you release the screen share? Sure. So, Mr. Examiner, I do not see the share function currently on my Zoom screen.

Thank you.

Okay, Mr. Oaks, do you see that on your screen? Yes, I do.

Okay, and this is the survey you just testified about, correct? That's correct. Now, I don't believe Mr. Tellegen asked you this question specifically, but you did not visit the property yourself, correct? That's correct. Okay, who did visit the property?

My two survey crew members.

And what are their names?

Alex Oak and Luke.

Okay. And you said it was your practice to have conversations with your field crew before sending them out to the property? That's correct. Okay. And what discussions did you have with your two field crew members in this matter?

Basically, we needed to find local monuments and the property corners to compute the boundary and then also discuss that they wanted each individual hedge trunk located so that we could represent how it related to the boundary. Okay.

And I assume neither of your field crew were certified arborist. Is that correct?

That's correct.

And you said it's the practice for your field crew to take notes at the property when they're doing the work?

That's correct.

Okay. And how many pages of notes did your field crew take in this case?

Um, I'd say probably six or seven, you know, they wrote, they write down the shot number and then, um, and then each, you know, individual dimension of the hedge. Okay.

And now looking at the cloud outline here, you testify that this is just an approximate location of the outer edge of the hedge, correct?

That's correct. Mr. Griffin, you're looking at exhibit 25 years, a 25. Yes, sir. Yes, Mr. Examiner.

Huh? And you testify that you found the pre-existing rebar that you identified on your survey with the land surveyor number on that monument, correct?

That's correct.

Okay. And you agreed with the location of those monuments?

Yes.

Now, You testified that the, just to make sure I understand, the center point of the trunk was located by your surveyor instruments. Is that accurate?

That's correct. Yes.

Okay. And then your field crew, did they get down on their hands and knees and how did they measure the trunk?

They have a basically it's like a five foot rod with a point on it. And they place it at, you know, in the dirt at the center of the trunk. And then they take a measurement to that and it computes to the center of the trunk of the

Okay, but did they measure the outside of the trunk at all, or did they just take this instrument and point it to the trunk itself?

Yeah, to the trunk itself.

Okay, so they didn't actually get down there with a tape measurement and measure the circumference or diameter of the trunk, correct?

Yeah, I mean, once you take the measurement to it, then they take an actual physical tape measure and measure what the diameter is. with the tape measure at the bottom of the trunk and then note that. So you have a center point and then a note on what the measured diameter was.

Okay, so you have the diameter measurements, is that correct?

That's correct, yeah.

They're not reflected on your survey, correct?

Well, yeah, each individual, those circles are, you can see they kind of approximate a little bit. So some are smaller and some are bigger. So it's just that, you know, it's representing what the diameter we measured was.

OK, but the actual measurements are not reflected on your survey.

No, yeah, no, we're not pointing out each one and saying what its diameter is.

Now, I believe I heard you say for that trunk above the S where my cursor is here, did I hear you say that that is 7 hundredths of a foot over the property line?

Yeah, that's what, yeah, the computed distance.

Okay, and were you looking at other information when you gave that testimony in front of you just now?

Sorry, can you repeat that?

Yeah. How did you know it was seven hundredths of a foot over the property line when that information is not reflected on the survey?

Oh, because Mr. Telligan asked me previously to, you know, he had questions about him and I measured it in our CAD program. So I knew what the distance was.

OK, but you didn't include that information on the survey, correct? No.

Any other questions? No further questions, Mr. Examiner. Ms. Kroll, any questions for this witness?

No questions.

Any follow-up questions, Mr. Tellegen?

Yeah, thank you. Making a survey, it's like a team effort, right? Yes. Right. So, I mean, you don't just have one person going out there doing a survey. It takes multiple people performing multiple tasks.

Objection, lead-in.

Is it true that it takes multiple people?

I'm trying to – he understood what your question – rephrase your question.

Does it take multiple people to make a survey, Mr. Oak? That's correct, yes. Okay. And you've been performing surveys for 30 years. In your experience, is it reasonable in your profession to rely on your crew to go out and take these measurements? Yes. Yes, that's pretty much how most survey companies work. Is that something you do commonly? Yes. Okay, and what kind of projects do you work on as a surveyor? Anything of, I guess, value or import to people's lives?

Yeah, I mean, we do boundary surveys, subdivisions, boundary line adjustments, legal descriptions, I mean, all kinds of stuff.

Okay. And in all those circumstances, do you rely upon your crew to bring back this information to you?

Yeah, they go out and collect the data and bring it back for us to process. And I mean, occasionally we go out with them too also when they need help or this or that. So we sometimes are involved. Okay.

And you said one of the folks that went out there and actually was sort of one of the crew members, his name was Alex Oak? Yes, that's correct. Is that a relation to you? Yeah, that's my son. That's your son? Yes. Does he do good work? Yes. Very good. No further questions.

All right. Thank you, Mr. Oak. I don't have any questions for witness. I should say to everybody, I reserved the right to ask a question of any witness at any time. I would give you all a chance to follow up if I ask it out of order somehow. But anyway, I believe Mr. Oak can be excused unless you want to preserve him for rebuttal or anything. No, but you would have to call him back. Yeah. I'll contact you, Mr. Oak, if I need you for it. Thank you, Mr. Oak. You're excused. Appreciate your participation this morning. Thank you. Thank you. All right. Who's our next witness? Katie Hogan.

Mr. Examiner, I did want to address the issue Ms. Kroll raised during Mr. Oak's testimony earlier. about perhaps asking for an offer of proof on how damage to the hedge is relevant to an approval criteria for the short plat. Because if it's not relevant, then I think we could just skip past her testimony and her report and move on to the next witness.

You're talking about Ms. Hogan's potential testimony, right? Correct. And is Ms. Hogan your arborist? She is. Okay. All right. I think that's a fair question. So could you just, you're going to be allowed to. add meat to the bone of your legal argument, but as an offer of proof, how is this relevant to the decision that's being challenged in my ruling on whether it was or was not a mistake?

And Mr. Examiner, I'll leave it to your discretion, but I did notice the witness was still here. Obviously, this is not court, but I didn't know if you wanted to exclude her from this conversation. Do you want me to?

I don't think it's necessary. He's asking for me to provide legal citations. Yeah, that's what I'm asking for. And I don't know that we need to exclude a witness to hear legal citations. Go ahead. I don't want to hear any arguments. Fair enough. I don't know how to say it without being argumentative, but I will try and just simply identify what I think this is relevant. I think it's relevant for three principal reasons. I appreciate that. One, Ms. Hogan is going to testify. The city has a list. the city has a list of plants that you are supposed to use for various items. And it lists the species of this hedge as a fast-growing hedge or small tree. So as far as I can tell, the city's own documentation says that this species of plant is a tree, and there's even a definition of what a hedge tree is, which is multiple trees all aligned together forming a hedge. That's one reason. And frankly, when you do a project like this, you have to do an arborist report. You have to identify all the regulated trees. Nobody, as far as I could tell, ever identified this. And that includes you have to identify trees on neighboring properties that hang over. So that's one reason. Reason number two, there are screening requirements. When you have an easement under the code that has a 15-foot-wide strip of pavement in it, the easement itself has to be screened. That's what the code says. And it doesn't say just the pavement has to be screened. It says the easement has to be screened. This easement has a 50-foot-wide strip of pavement in it. And it appears to me that the only way they could be meeting that requirement is if they use Ms. Justina's hedge as their screening, but they're going to damage it so badly, it's not going to meet the criterion. It's going to die. It's not going to provide any screening whatsoever. Third reason, there is a general requirement under both the subdivision approval criteria and the type one process approval criteria, which require an inquiry into whether or not the short plat will meet the public health, safety, and welfare. And the code has much language. about why vegetation is a public benefit and provides public amenities and provides it even lists as one of the ways in which it supports the welfare of the community is by adding to property value and by providing screening and noise protection. And that is exactly what Ms. Justina will testify these hedges do. So for those principle three reasons, I do believe this is relevant under the code. And that's pulling aside any tort claims. I will also note, I will also note it is the, now that is just the, that is Ms. Hogan is here only to testify about the Western hedge. She's not here to testify about sort of the Southern hedge. But Mr. Haynes, our traffic engineer, he will be testifying that that hedge, effectively the city has said because of a site distance requirement, 80 feet of that hedge need to be chopped down. And we believe that's false. So I guess that's a fourth reason having to do with the Southern hedge.

Okay. I appreciate your offer of proof of identifying, generally identifying your legal reasons for calling the witness. And I will allow you to move forward and. take your case. So you want to call Katie Hogan? Yes, please. Ms. Hogan, I see you online. You have your name typed beside you, and I see your face. Do we want this survey on the screen or not? Should we pull that off? No, if you could take that off, Mr. Gribben. Yep, it's coming down. Hi, Ms. Hogan. If you would, please raise your right hand. Do you swear or affirm that testimony you're about to give today will be the truth, the whole truth, and nothing but the truth?

I do.

Okay. And Ms. Hogan, have you been signed on since we started this morning?

I signed on about 10 minutes after the hearing started.

Okay. So did you hear my explanation to the first witness?

I did, yes.

Okay. Have you testified before?

I have, yes.

Okay. So you're comfortable when you hear objection or you hear me say stop, you're going to stop talking, right?

Yes, that's correct.

Okay. All right. So you're under oath, and Mr. Telligent's going to ask you some questions, and the lawyers for the other parties will have a chance, and then he'll have a chance to follow up if he wants to, okay?

Sounds good.

All right.

Mr. Telligent, she's your witness. Thank you so much. Ms. Hogan, good morning. How are you doing today?

Good morning. I'm doing well. Thank you.

Thank you. I asked Mr. Oak the same question you might have been watching. Are you able to see me and hear me okay?

I can, yes.

Great. So we had submitted into the record, I'm not going to pull it up, but for the examiner's identification, we had submitted Exhibit A24 as your resume. I wonder if you could provide us a brief summary of who you are and what you do for a living.

Yeah, absolutely. I have worked in forestry and arboriculture for more than 14 years now. I have a bachelor's in environmental studies from the University of Washington, which I obtained in 2012. and began my career working in forest ecology. I then in 2014 joined a local consulting firm where I specialized in tree risk assessment, tree protection during development for various stakeholders, property owners, developers, municipalities. I also taught workshops for the Pacific Northwest chapter of the International Society of Arboriculture on visual tree assessment and advanced tree risk assessment. And then in 2021, I joined the city of Kirkland as the development review arborist and was later promoted to the environmental program coordinator. I predominantly reviewed development applications for tree permits, authored tree regulations, and managed the city's urban forestry program. program. I currently now own a private consulting company called Cascara Tree Consulting, where I provide various arboricultural services throughout the region. Most of my work involves tree risk assessment and tree preservation during development. And then I also have two credentials. I am an ISA certified arborist through the International Society of Arboriculture. I've had that credential since 2015, and it's essentially an internationally recognized certification that requires a combination of education, professional experience, exam, and an ongoing continuing education. And I also, my second credential is that I'm a tree risk assessment qualified, which is essentially a standard way of assessing tree risk. Again, requires an exam and maintaining that credential every five years through recertification.

Thank you for that summary. And then that was very helpful. Can you also give me a summary of your education?

Yeah, my education. So I have a bachelor's degree in environmental studies from the University of Washington. And then those two credentials that I just identified.

Thank you so much. And in your answer, you are now a sort of small business owner for Cascara?

That's correct.

Very good. And you had mentioned previously that you worked for the city of Kirkland itself reviewing development applications?

Yes, that's correct.

And in doing, performing that work, was your, did your job involve reviewing the sort of Kirkland tree code?

Yes, yeah, extensively. So both as the development review arborist and the environmental program coordinator, I kind of lived in the tree code. And actually my latter role at the city, I helped to update the tree code and bring that through a city council for final adoption. So intimately familiar with the code.

Thank you so much. So in this case, you were hired by us. Can you give us a description of what you were asked to do?

Yeah, so I was asked to visit the site and assess any potential impacts on the long-term health and viability of a mature hedge along the western property line of the Justina residence. The impacts that I was asked to assess was from the proposed cutting back of the hedge to the property line to accommodate the proposed driveway for the new short plat development.

Very good. And you provided a written report, yes?

Yes, that's correct.

Okay. And so I'm going to pull that up. This is exhibit Mr. Examiner A23. Can you see your screen, Ms. Hogan?

Yes, I can.

And is this a copy of your report?

Yes, it is.

Very good. And so you mentioned that you were asked to provide an assessment of the impacts to the hedge along Ms. Justina's western property boundary caused by cutting the hedge back to the property line.

That's correct.

Okay. And so what did you do to perform that work?

Yeah, so I visited the site and walked along the hedge on both sides, looking at the kind of the general condition of the hedge, understanding what its ability to withstand pruning might be. So what is the foliar health of the tree? How much new growth is it producing? Does it look normal for the species and the maturity of that particular hedge? I also was able to identify the survey markers at the southwest property corner, the northwest the southwest property corner, the northwest property corner. And I look at that survey marker and get a general idea of where that property line is and what type of or extent of vegetation would need to be removed to prune up to the property line. And then I also looked throughout the hedge to see if there were any areas that were declining and what the cause of that decline might have been.

Very good. Were you here for Mr. Oak's testimony a moment ago?

I was, yes.

Okay. And so you saw me talking about his survey. Did you have a copy of that survey?

Not at the time of the site visit, but I did receive that afterward.

You did receive that afterward. Okay. So you've reviewed that survey?

Yes, that's correct.

Okay. So in your report here, I'm going to skip down. And I'm on PDF page three. Can you tell me what that's an image of?

Yeah, so that is looking at the subject hedge from, the photo is taken from kind of the southwest of the hedge, looking toward the Justina residence in the background there. So that would be kind of the southwest, a little west of the southwest property corner, looking at the hedge.

Little, yeah.

along the main, that access road there. I can't remember the name of it. I think it's 80, 82nd Ave, Lane North.

Yeah, can I just draw your attention to the text at the bottom? It says, looking northwest along the southern property line.

Yes, that's correct. Okay, I was a little disoriented there. Yeah, so that is looking off of the main road that is south of the Justina property.

Very good. So this would be on Northeast 117th Street, looking at the hedge that runs along that road?

Yes, correct.

Very good. I'm sorry. It was kind of a trick question.

Mr. Tellegen, just because I saw the survey, she's going to testify about the West Hedge, right? Yes, Mr.

Examiner. Am I looking at the West Hedge? We are not. No, I was just chugging through her photographs. I'm trying to get through all the different windows. This is the south edge, right? This is the south edge. On 117th? On 117th. And so let me see here. So if we were to look at the survey, Mr. Examiner, we would be standing basically somewhere like right around right there and looking at the southern edge.

And you identified the lower left corner of the survey that's been admitted or lower right corner. Yep. Okay. Thank you.

Let's see here. Oh, it is. So, yes. So, so granted, this is the, this is the Southern hedge. This was not the hedge you were asked to actually look at, correct?

That's correct.

This is more for context. Now here we are on pay on PDF page four of your report. Can you tell me what we're looking at here?

Yeah, so that is the southwest corner of the property, of the Justina property. That red line and with the circle at the bottom is the survey corner marker that I identified. in the field and the hedge behind it is the subject hedge. And that line that I drew up, it just approximately shows where the property line is in relation to the hedge itself, the Western property line.

So this little red circle down here, you drew that, that denotes you found a survey marker right there.

Yes, that's correct.

Very good. And this is all part of A23? Yes, this is a PDF page for of exhibit A23. Thank you. And to go back to the survey, that image we were just looking at on page four of your report, Exhibit 823, with the hand-drawn red line. If we were to go back to the survey, the vantage point from which that photograph was taken would be approximately right here where I'm drawing a blue rectangle, correct?

That's correct. Looking north.

Very good. Thank you. Now the next page, can you tell me, this is PDF page five of your report, exhibit 823. Can you tell me what we're looking at here?

Yes, so that is looking at the property corner marker at the southeast property corner of the Justina residence. So I was able to, so that's looking west along the southern hedge.

Ah, this is looking west along the southern hedge.

Yeah, so I was also able to identify that property corner as well.

Okay, very good. And then how about here? This is PDF page six of your report.

Yes, so that is the Western Hedge along Northeast or 82nd Lane Northeast. I keep butchering the name of that road, but looking at the Western Hedge at a section of dieback in the hedge that I observed. So that... red rectangle shows three laurel stems that were declining compared to the rest of the hedge.

Very good. And to go back to the survey, this particular image on PDF page six of your report, Exhibit 823, if we go back to the survey, if I were to draw a rectangle showing the vantage point, it would be somewhere around right here, correct?

From where the photo is taken, yes.

Yes. And you can see here, I mean, Mr. Oak testified that the sort of dashed cloud-shaped feature represents the approximate outline of the hedge?

Yes, that is what I heard.

Right. Okay. And right here, I mean, I know I'm asking you to sort of interpret the survey, but maybe we're looking at this area where it's been cut back a little bit?

I think based on the location of those declining hedges, that appears to be accurate.

Very good. Now, how about this is PDF page seven of your report? What are we looking at here?

That is showing that previous photo that we looked at, that section of the hedge that is declining. It is showing previous pruning cuts back to the trunk of those laurel specimen within that hedgerow.

Very good. And actually, I'll skip back up to page six. Well, actually, let me see. Here's a better picture. This is now PDF page eight. What are we looking at here?

That's a closer view of that same section of hedgerow. that is dying back that had recent, or I don't know if it was recent, but had past pruning conducted.

How would you describe the health of this section of the hedge?

Yeah, so the health of that section was in a state of decline. So the photo, from the photo and from my site observations there, I did notice sections of stems that were lacking any new foliage production. And they were also starting to thin out pretty significantly. You can kind of see the light passing through in the photo. So overall, those three stems were in pretty advanced stages of decline. And I would anticipate them to continue to decline even further. A lot of that reason may be that that pruning exposed interior foliage that was previously shaded. And that increased sun exposure has caused the hedge section to die back.

Very good. Now we're into references. So we just went through the photographs that you took on your site visit. Can you tell me generally what species of plant is this hedge?

Yes. I identified the species as Portuguese laurel. And it is a pretty commonly planted landscape tree or shrub. It's fairly common throughout the area, non-native, but often planted for kind of ornamental value or privacy screening to be managed as a hedge.

Very good. And in your opinion, if the entirety of this hedge was cut back to the property line, what would be the anticipated impacts on the hedge?

Yeah, so Portuguese laurel tolerates a moderate level of pruning, usually what we would call in the industry normal and routine maintenance, which is generally considered to be less than 25% of canopy or foliage removal. And it does tolerate that pretty well, but I would expect based on where the property line is that you'd have to prune more of the hedge back, probably around 50%. of the vegetation on the west side of the hedge. And I would expect to see some decline similar to what's shown in that photo that you have up there, which was, did appear to be approximately 50% pruning. So because of the new exposure to the interior foliage and interior tree parts, I would anticipate those areas to start to die back and experience some stress. So that level of pruning is generally not recommended for a hedge. Usually they're, they are better able to tolerate kind of shearing or light pruning that is under that 25% threshold.

Very good. Would you, and so if we go back to the survey, sorry, that's the resume. Along that, along that hedgerow, that's on the western side of Ms. Justina's property running north to south. I haven't counted them, but there are multiple stems or trunks, correct?

That's correct, yes.

Okay. If you cut the entire hedge back to the property line, would you expect some of those specimens to die?

I would expect to see sections of the hedge die back completely over time. or be in kind of a constant state of stress and not recovering and producing new foliage. It may not be the whole hedge holistically dying back at once, but large sections or swaths of the hedge could be expected to decline.

Very good. I'm going to shift gears now a little bit. I'm going to stop my screen share. And I am going to re-screen share, and I'm going to be using my web browser to show you some sections of the Kirkland Zoning Code, okay?

Okay.

So here we have my screen browser, and I am looking at Chapter 95 of the Kirkland Zoning Code. It is titled Tree Management and Required Landscaping. Do you see this?

Yes, I do.

Okay. And so given your work at the city of Kirkland, you're familiar with this code?

Yes, that's correct.

Okay. I'm going to go down to the section 9510.10. It's called definitions. And I'm just going to trip through and I'm going to look for the definition of tree. And I believe that is at subsection 17. Do you see that?

Yes, I do.

And it says, uh, The first term, it says trees, and it says a tree or a group of trees may fall under one of the following definitions for purposes of this chapter. And then it goes on to define what is a grove of trees, what is a hazard tree, what are hedge trees, what is a landmark tree, a nuisance tree, public tree, et cetera. But I do not see an actual definition of what is a tree. Are you aware of a definition in the code that says what is a tree?

I'm not aware of any particular definition of a tree in Chapter 95.

Okay. Now, I'm going to go down a little bit further. And I'm going to go to 9550. This is installation standards for required plantings. Because sometimes under the code, does the city require developers to actually affirmatively plant plants on their properties?

Yes, that's correct.

Do you object to the extent it calls for a legal conclusion?

I'll sustain the objection if that's what you're actually asking for, but you haven't even asked a question about it yet.

Well, I did sort of, but I guess this is a common thing. I mean, folks like her, their jobs are to apply the code. So I'm talking about her familiarity with the code to guide her around what the code means. I'm not necessarily, I mean, it is sort of a legal interpretation, but it is a person.

I'm going to overrule the objection, but the question should be phrased, is she familiar with the code and does the code indicate that certain things are required?

Yeah, I thought that's what I asked her.

Why don't you put a new question on the table?

Very good. You're familiar with the code, yes?

Yes.

Okay. Does the code sometimes require developers to plant plants on their property, which I think was the question I asked you earlier?

Yes, that is correct.

I'm not granting bonus points for little side comments like that. Just ask your question. I'm not trying to get bonus points, but... You're making arguments. Ask your questions. Okay.

I'm looking at Section 9550.

I think I can't hear. If this question's oriented toward me, I can't hear anything.

I'm sorry.

I accidentally pushed a button on my microphone.

Okay. To go back there.

Yes. Can you hear everything okay now, Ms. Hogan?

Yes, I can.

All right. And if ever there's a technological problem, raise your hand, bring it to my attention, and I'll see if we've got a mic off or something like that, which just happened. We're okay.

Next question. Okay. You see the section 5A where it says plant selection?

Yes, I do.

And it says plant selection shall be consistent with the appropriate Kirkland plant lists. As part of your work with the city of Kirkland, are you familiar with the city's various plant lists?

I am, yes.

Okay. Do you know how those lists classify Portuguese laurel, the species we're talking about here?

Yes, I do. The Portuguese laurel is classified as a, I believe it's a small, a trub or a small tree.

Okay. And so is that language, to your knowledge, that's from the list that the city produced itself?

Yes, that's correct.

Okay. Now, a hedge or small tree, if I'm going to scroll back up to the top, I'm going to go back to the definitions. Okay. and i'm going to go back to the definition of tree which is at subsection 17 of kzc 95.10 you see this yes i do i'm going to scroll down to the definition of hedge trees and it says hedge trees five or more trees of the same species with overlapping or touching crowns that have been planted and maintained in a linear formation at maximum eight foot spacing, typically to function as a screen or barrier. Do you see that?

I do.

Okay. Do you have an opinion on whether or not the hedge that you reviewed, the sort of Portuguese laurel specimens, might fit that definition?

Objection calls for a legal conclusion.

Sustained. Rephrase your question.

Are all of the laurels of the same species?

Yes, they are.

Okay. Are their crowns touching?

Yes.

Do they appear to have been planted or maintained in a linear formation?

Yes, that's correct.

Did they appear to be maximum eight feet apart, the trunks?

Yes.

Okay. Did it appear as though it was something that someone would plant to you to function as a screen or a barrier?

Objection. Call for speculation.

Overruled. And did they appear to be trees as you know, as you know, trees to be described in the city's plant lists?

Yes, that species is included in the city's plant list. That's correct.

And described as a hedge or a small tree?

Yes. Yeah.

Very good. Now, do you have an understanding when you did your, I guess I would ask this, do you know when the city is, do you know what the term regulated tree means?

I do. A regulated tree means a tree over a certain size threshold that is required for protection under the city's tree code.

Okay. And do you know what that criterion is?

Yes. So a regulated tree would be considered a tree with a diameter at breast height, which is four and a half feet above average grade of six inches diameter or greater.

Okay. Did it appear possible that any of the specimens that you saw might fit that definition possibly?

I didn't measure the stems, but based on the maturity of the hedge and the cumulative stems within each specimen in the hedge, it is possible that some of them could be over that regulated size threshold, yes.

Very good. I'm going to see here. To your knowledge, have you seen any documentation where anybody from the city or from the applicant's team have made that calculation to determine if any of these specimens fit the size threshold for a regulated tree?

I am not aware of any documentation with that information.

Okay. Now I'm going to bring up a different section of the code. I'm going to switch gears and I'm going to show you, this is chapter 105 of the Kirkland zoning code. I'm going to take you to a section that's 105.10. I'm going to go trip down to subsection G.

Sorry, could you zoom in just a little bit?

Yeah, let me see if I can do that.

Okay, that's perfect. Thank you.

Yeah, I'm not going to test you on all these different languages. I'm going to sort of read it to you to provide context for everybody that I'm going to ask you a question, okay?

Okay.

So that starts off saying an easement or tract that has a paved area greater than 10 feet in with must be screened from any adjacent property that does not receive access from that easement or tracked to see that I do yes, it says the screening shall be it says a minimum 5 foot high site obscuring fence or vegetation that will provide comparable screening to a 5 foot fence with 2 years of planting you see that. OK now if I go back to your report. One second. I'm going back to PDF page eight of your report, which is exhibit a 23. You see that?

Okay. Yep.

Okay. Would you describe that section of the hedge as providing the same level of screening as a five foot fence?

This particular section shown in the photo?

Yes.

Clarifying. There's quite a bit of visibility through that section of the hedge. So I do think the privacy screening has declined since the pruning was conducted on those particular parts of the hedge. So I would say probably not comparable to a five foot fence based on just the lack of dense foliage in that section.

Very good. If that entire hedge was cut back to the property line, generally speaking, would you expect it to provide the same level of sort of site obscuration as a five-foot fence?

If it was cut back to the property. Yeah. Yeah. I would anticipate the privacy screening that it currently provides and functions as to likely decline over time. I would imagine over the next several years, we'd start to see sections of the hedge decline, become more kind of have that visibility through the hedge. So it's not providing that dense buffer privacy screening. So I do think that overall the, the screening would diminish over time if that hedge is pruned to the property line.

Very good. Now, so far we've been talking about chopping the hedge back to the property line. And you have opined about what the impacts would be. My question for you is, how far would the, say... what would need to be done in terms of moving the sort of cutting away from the trunks or away from the property line? How much would you have to move out to sort of preserve the health of the tree? Does that make sense? I may have phrased it not quite right.

Yes, yeah, I think I understand. So right now with the proposed pruning up to the property line, I think the challenge there is that a lot of those cuts will be right up to the trunk of the, you can kind of see the trunks in that photo there. So it'll be right up to the trunk. And that's just resulting in significant loss of foliage that the hedge might not be able to recover from. But if that could be pushed a little bit further to the west where you're only maybe shearing or pruning and one to two feet of the hedge depth on the west side then that would be better practice and the hedge should be able to recover pretty well from that level of pruning as opposed to what is currently proposed so i don't have the exact numbers and metrics but i would imagine if you can just you know push that pruning out by a couple of feet to the West that should be relatively sufficient to maintain and preserve the hedge in its current capacity.

Okay. A couple of feet.

Yeah, I think so without seeing kind of measuring it out and knowing exact distances would say a couple of feet would make a pretty substantial difference for the long-term viability of the hedge.

Very good. And if it was pushed out a couple feet, would you expect it to continue to thrive and to flourish and to provide sort of the same level of, you know, visual screening as it does right now?

Yeah, I think as long as the pruning is done in a manner that doesn't cause unnecessary damage to the hedge. So I would certainly recommend having a qualified professional do that work and do it in a way that it's being kind of sheared back gently or meticulously pruned to provide that clearance that's needed. I think that would reasonably... continue to provide that privacy and thrive.

Thank you so much. I have no further questions.

Thank you, Ms. Hogan. Ms. Hogan, I'll ask Ms. Kroll, do you have any questions for this witness?

I was going to let the applicant go first, if that's all right.

Well, I was turning to you first because I let him go first last time.

Okay. Ms. Hogan, thank you for coming.

Yeah, of course.

It is nice to see you. You submitted this report, which is exhibit A23. It's still up on the screen. Anywhere in that report, did you identify the hedgerow as individual trees?

Sorry, can you rephrase the question?

Yeah. Anywhere in your report, did you identify this hedgerow as individual trees?

No, I was I kind of referenced the hedgerow as the hedgerow. So I did not identify it as individual trees in my report.

All right. So and you testified that maybe some of these trees are six inch or excuse me, some of the bushes in the hedge are six inches in diameter. Is that correct?

Yes, that's correct.

All right. If you have. bushes in a hedge that are over six inches in diameter. Would you consider that an individual tree under the zoning code chapter 95 in Kirkland?

Yes.

And would you require protection under chapter 95 in Kirkland of a tree in a hedge?

Yes, it would be subject to the tree code.

All right. So you've done many evaluations here in Kirkland, isn't that correct?

That's correct.

And did you evaluate any properties where there were adjacent hedges made of laurel?

Yes, I have.

And did you treat those hedges as individual trees in your assessments?

Yes, I have. And I have also received corrections when I have excluded those from evaluations and the city has requested that I include them in the assessment.

And have you required those hedges if they are removed to be replaced with replacement trees?

I think there's a little more nuance to that question. So the code, it depends on what the replanting requirements are for that particular project. It's not necessarily a one-for-one replacement.

The question is, if someone is required to remove a portion or all of a hedge, do they have to replant trees on their property somewhere, such as a maple tree?

Your mic's off.

Hold on. I do not object on the basis of exceeding direct, but I believe she's getting beyond the scope of what Ms. Hogan was asked to do, so I believe she's beginning to treat her as her sort of own expert. If she wants to call the city's arborist and ask it, I think that would be a more appropriate time, but I would object as being beyond the scope of what Ms. Hogan was asked to provide opinions on. Response?

Ms. Hogan has testified that these individual hedges are potentially regulated trees under the code. And I want to know if she has any actual experience with treating them as a tree under the code and requiring, for instance, replacement plantings, et cetera, preservation of a hedge on adjacent property where something is going to be developed.

I'll note the objection. I'll allow the question. So go ahead.

Ms. Hogan, have you ever considered these trees in your own analysis under the Kirkland Code and required them to be replaced with replanting trees? And what I'm talking about are laurel hedges on adjacent property for development.

So general laurel hedges, not this particular property. Is that right?

Correct.

Okay. I... I think I'm still having a little hard time answering because these trees aren't on the property that's being developed.

Correct.

So they're on a neighboring property.

Correct.

I mean, generally I would say that any vegetation that's required to be removed on an adjacent property as part of a development that's next to it would require replacement.

And would these hedges... be replaced with trees if they were removed?

Potentially.

Next question.

We did look at the code under 95.10, and if we go down to 17G, That has a definition of a regulated tree, correct?

Yes, that's correct.

Okay, so we touched briefly on the fact that you did not think the code defined a tree per se, but did refer to additional documents where allowed vegetation, allowed trees, and prohibited trees are included. Is that correct?

That's correct, yes.

And so a regulated tree would have to be six inches or greater at breast height diameter, correct?

Per the definition in the code, yes.

And so if the laurel has any stems, I guess, stems that are less than six inches in diameter, they would not be a regulated tree. Is that correct?

Yeah, they would not be regulated.

All right. Now, do we have any, you've done short plat approvals before?

Yes. Okay.

Okay. And have you ever denied approval of a short plat because a Laurel hedge on adjacent property was going to have to be trimmed?

I'm not aware of any.

So you never have denied a short plat based on a Laurel hedge on adjacent property needing to be trimmed. Is that correct?

I'm not aware, but I also may not remember. It's been a few years.

Okay. To the best of your memory, you have never done that?

Not that I'm aware.

Okay. And so when there are issues with a short plat approval and there are neighboring trees that are going to be impacted by What did you do under the city's code chapter 95 with the applicant?

Yes, I would request that the applicant explore alterations to the site plans to minimize damage to neighboring vegetation.

All right. And when you ask them to do that and they show you that it cannot be done, what is your next step?

They need to notify the property owner.

Hold on just a second. Sorry, Ms. Hogan. There's been an objection. Mr. Tellen, turn on your microphone.

I think we are going now further in this direction. We are now asking questions that are way beyond what she ever opined upon or what she was asked to opine upon. I believe Ms. Kroll is now asking her to answer questions that she's essentially treating as her own expert. We are now past that boundary. And as we move further, I could have a standing objection if you're going to overrule me, but I do believe we've gone way beyond what Ms. Hogan was asked to opine about.

And Ms. Kroll, I think you're repeating some of the questions and answers. I've heard that she's dealt with some and hasn't dealt with others. And whether it's a tree or not is whether it's six inches or not. So I can understand that. So why don't you move on to another line of questioning, if you could.

All right, well, I did want to explore, and she was going to answer the question of when you cannot change your site plan.

As she has said, she's done with other people where there was a problem.

Yes. I said, what does she ask the applicant to do?

And you were talking in past tense, what did she do?

Correct. What is her understanding of the city's code? What do you ask the applicant to do if you're approving a short plat and it's going to impact neighboring trees?

I'll allow her to answer with respect to her understanding, if she has the understanding, and she noted she's been gone two years. So, Ms. Hogan, do you understand the question?

I do, yes.

Do you feel comfortable providing any response?

With the assumption that there are interpretations in the code that change from year to year, and I'm not currently part of the staff, and so those interpretations may have evolved or changed.

what would you do with what would you tell an applicant after you've asked them to revise their project not to impact a neighboring tree the revision is not possible and there will be impact to a neighbor's tree what do you ask the applicant to do i'd object on relevance grants it's not relevant what she would do

She's here to talk about what the damage is, not what she would do.

That's not true, Mr. McLean. He said he is raising this issue to prove that the short plat should not be approved.

Correct.

And I am saying, if there's damage, does that mean the short plaque cannot be approved? What do you do? What do you do under the city's code?

And that is a matter of legal argument, not for my arborist to answer.

It is. But Ms. Hogan, did you ever deal with this situation in your capacity as an employee at the city of Kirkland before? Yes or no?

Yes.

So, Ms. Hogan, can you answer the question? What did you do?

I can answer generally.

Please do.

Okay. So it would require notification of the property owners and well, generally it would start with a meeting with the development director, probably the city attorney to talk about what the options are available and what the city can enforce. And then the applicant would need to, if the site plans can't be changed, the applicant would need to work that out with the property owner and what essentially how they would remedy the situation for that property owner because of the loss of their vegetation.

Thank you, Ms. Hogan. And I want to go further is that you have never actually had a plot that you would recommend be denied based upon impacts to vegetation offsite. That's something they need to work out. Is that correct?

Yeah, not that I'm aware, yes.

Okay, I have no further questions. Thank you.

Mr. Gribben, do you have any questions for the witness? I do, Mr. Examiner. Mr. Telligent, okay, it looks like you've released the screen share. Good morning, Ms. Hogan, if you can see me.

Good morning.

Wave my hand here in the room. So my name is Brandon Gribben. I represent the applicant Legacy Group Capital. Let me know if you can't hear me or don't understand my question, and I'm happy to repeat it or rephrase it. I am going to pull up your... Report here. Give me one second. This is A, Appellants 23. And this is the report you authored. Oh, this is the report you authored, correct?

That's correct.

Okay. And it sounds like you went out to the property recently on May 28th of 2026. Yes. Okay. And approximately how long were you at the property?

About 45 minutes to an hour.

And you said you walked along Northeast 117th Street, is that correct? Yes. The Southern Hedges?

Yes.

And did you walk on the other side, the north side of those Southern Hedges?

Within the Justina property, yes. Okay.

And did you walk along the east side of the western hedges on Miss Justina's property?

Yes, I did.

And did you walk along the driveway which is on the western side of the western hedges?

Yes.

Okay. Did you have any conversations with the property owner before doing that?

With Yes, I did, with Justina, the Justina property, yes.

Okay, but not the property owner for the driveway on the western side of the hedges, correct?

I assume that was a public right-of-way.

Okay. And do you have any knowledge of when the hedges depicted in page six of your report, you said they appeared to have been trimmed at some point, correct?

Yes.

And you have no knowledge of when that occurred, do you?

No. And I'm just going to ask my question. Ms. Hogan, are you aware, was that trimming that happened or was it a response to, I'm just going to, you know, a delivery truck that ran into it and crashed into it and broke off branches or anything? Do you know how that came to be?

I don't know the specifics, but based on the cuts that I observed, it looked like it was intentionally pruned. And there was some type of utility. I couldn't identify what it was just west of those trees that were pruned. So my assumption was that they were pruned for clearance from that utility.

You mean like a utility post that sticks out of the ground, maybe stands to it?

It might have been fiber optic or cable. I'm not sure, but it was down on the ground coming out of the ground.

Okay.

Go ahead. So, Ms. Hogan, going to page five of your report, we see this white metal pipe on the left-hand side of the photo. Is that the utility that you were just referring to? No. Okay.

Is that a fire hydrant, Mr. Griffin, as far as you know?

Hard to tell, but it looks like it.

Okay.

Okay. Might be. But Ms. Hogan, do you know what that is on the left-hand side of this photo?

That is a fire hydrant.

Okay. And this is where you found the property corner at the southwest corner of Ms. Justina's property, correct?

That is the southeast corner of Ms. Justina's property.

The southeast corner?

Yes.

So turning to page four, is this a shot further away from the photo we just looked at? Or is that photo further to the right as we're facing in this photograph?

This is the southwest corner looking north.

Okay.

Not the same as that last photo.

Okay. And I'm sorry, you said this is on the southeast corner? Okay. Now, focusing on the western boundary, did you identify the property marker at the northwest corner?

I do not believe I did.

Okay. And so you didn't put up a boundary string between the two markers, correct?

That's correct.

So your assessment was based entirely on your visual observation of the southwest property corner on Miss Justina's property?

That's correct.

Now, you testified that you identified this hedge as a Portuguese laurel. How did you do that? How did you make that determination?

Yeah, so I looked at the leaf. And the stems of the petioles, the part that attaches from the stem to the leaf and Portuguese laurel have a very kind of bright red petiole. I also took a photo and put it into my tree identification app to confirm. And that confirmed that it is indeed a Portuguese laurel. They were also in partial flower when I was out there. So I was able to identify them from the flower.

And if we zoom in here, that's the white at the very end of this foliage? Correct, yes. Now going to page six of your report, so you testify that it looked like a portion of these hedges had been trimmed, correct?

Correct.

OK. And obviously the hedges have not died where they were trimmed here, correct?

They have not died, but they're in significant state of decline.

And when hedges go into a state of decline, is it possible for them to recover from that?

Can depend on a lot of factors, but based on the lack of new growth that I saw in this section, I would not anticipate this section of hedge to ever fully recover.

And you're able to determine that without knowing when the hedges were actually cut?

Yeah. So it's looking at the foliar health, new bud production, any new growth that the hedge has put on annually that year, and the amount of bare twigs and stems that are no longer producing any new foliage. So it's called visual tree assessment. And looking at the just kind of the general physiological response that a tree has in following a pruning event or some type of trauma or damage.

Now turning to page eight, is this the, you said it might, might've looked like a fiber optic utility. Is that what's depicted in that photo?

Yes. Yeah. I was not sure what that was, but it appeared to be maybe the reason that they were pruned back.

Now, the word tree does not appear in the body of your arborist report, correct?

I am not sure. I'd have to double check.