| Appellant | Alan Park, East Ridge Development LLC 1111 Main Street, Ste. 700 Vancouver, WA 98660 |
| Site at Issue | East Ridge Village PUD Phase 7 Assessor’s Map No. 18-03-03-00 00300 |
| Applicable Code Provisions |
EC 2.018 Authority to Assess Civil Penalties EC 2.021 Appeals of Civil Penalties EC 9.7025 Performance Agreements |
Description of Citations Issued:
Failure to comply with tree preservation provisions set out in modified plans for Phase 7, and failure to comply with the development performance agreement entered into between the developer and the city to ensure compliance with the tree preservation provisions.
Background:
The subject property is part of a larger residential planned unit development approved by the city in 2002. In 2006, East Ridge Development LLC ("developer" or "appellant") requested modifications to the PUD for this phase. The city approved the modification, but required the applicant to sign a performance agreement that set out the parties’ understanding of their respective authority and obligations. The 2007 performance agreement recognized that the Eugene Water and Electric Board ("EWEB") would be constructing an access road and water reservoir on the southeast portion of the site, which would precede development of the lots. The developer signed the performance agreement on August 15, 2007.
Approximately one-half of the Phase 7 development site is set aside as a conservation area. Development is prohibited with the conservation area, and trees located within that conservation area or designated as preservation trees are required to be preserved.
The performance agreement included development standards, including:
(1) A requirement that the developer remove non-native underbrush, such as blackberries and poison oak, to facilitate final survey work.
(2) The creation of a final survey of the area included in Phase 7. The final survey was to denote the boundaries of the conservation areas. Trees greater than eight inches dbh were required to be included within the boundaries of the conservation areas. Trees to be preserved were to be identified on the ground with the identifying number used on the applicant’s tree survey. The applicant was required to obtain an arborist approval of the final revised survey and tree preservation plan, which was to show the location of trees to be preserved, and identify trees that may need to be removed.
(3) A requirement that preservation trees within 100 feet of site disturbing activities related to EWEB’s project be clearly marked and protected by fencing.
The agreement provides that if the applicant fails to abide by the development standards, the city may (1) decline to issue or revoke occupancy permits; (2) impose liquidated damages ($250.00 per day). The remedies set out in the performance agreement are in addition to legal and equitable remedies allowed under the Eugene Code.
On August 1, 2007, before the performance agreement was signed, EWEB applied for a site development permit to construct a water reservoir, install water lines and construct an access road through the site. However, before the construction permits were issued, EWEB’s contractor’s started grading the roadbed. Alan Park, the developer’s agent, became aware of the construction activities, and called the city to report the problem. On September 13, 2007, city staff met with EWEB’s contractors on the site. City staff observed that tree protection fencing had been installed in a small area but most of the site did not have any trees marked or protection fencing installed. At that time, Matt Denberg, the city’s inspector, informed those present that the work needed permits and that work should not continue until all protective fencing had been installed, inspected and approved. He testified that he telephoned Mr. Park and informed him of the situation and the city’s position regarding further construction activities. Based on comments by the contractor on the site, Mr. Denberg assumed that all work would stop until the requisite permits and inspection had been completed. Alan Park, on the other hand, understood that the September 13, 2007 meeting identified the issues that needed to be resolved, but did not require that work stop.
On September 29, 2007, Mr. Denberg visited the site and found that more work had been done within the roadbed. He also observed that some, but not all, of the tree protection fencing had been installed. On October 2, 2007, the city issued a Notice of Civil Penalty to the developer for grading work done without approval of the tree protection fencing. The amount of the civil penalty ($2,280.00) was based on the city’s civil penalty matrix, and assessed penalties based on two days of violations. The Notice of Civil Penalty informed the developer that additional penalties would be imposed for every additional day of unpermitted activities, and that the city would consider also activating the liquidated damages clause of the performance agreement if unpermitted work continued.
On October 12, 2007, the city issued a site development permit for EWEB’s activity. The site development permit did not include a tree protection fencing inspection. On October 25, 2007, city staff visited the site after receiving a tree protection inspection request. Staff concluded that the fencing did not comply with the tree protection fencing set out in the approved plans. Staff also found that the contractors had removed protective fencing along the south side of the road to access a utility easement along the south side of the property.
On October 30, 2007, the city issued an "Order to Correct." The order required the developer to place tree tags on all trees within 100 feet of the disturbed areas, submit a report that identified trees on the tree protection plan, but no longer existed in the field, and submit a report detailing the impact to critical root zones of protected trees. The Order imposed a November 9, 2007 deadline to correct. On that same day, staff issued another Notice of Civil Penalty. This notice of Civil Penalty referred to the October 2, 2007 Notice of Civil Penalty, concluding that an additional 10 violations had been documented, reflecting 10 construction days between October 4, 2007 and October 25, 2007, and assessing a $1,140.00 per day penalty for those violations. In addition, the city assessed $2,500.00 for 10 days of liquidated damages pursuant to the performance agreement.
On November 15, 2007, the developer and EWEB submitted a new tree report. City staff inspected the site on November 20, 2007. Based on the new tree report and field markings, staff concluded that 10 trees to be protected had been removed and three trees to be protected had been substantially damaged as a result of the construction activities on the property. On November 27, 2007, the city issued a third Notice of Civil Penalty, assessing $5,040.00 in civil penalties for failing to protect preservation trees from construction impacts (1 count), and removal of preservation trees without authorization (13 counts--one violation per tree removed or damaged.)
Alan Park timely appealed the three Notices of Civil Penalty. At the December 19, 2007 appeal hearing, Alan Park represented the developer, Jay Bozievich represented EWEB, and Gene W. Burks, Second to None Tree Care, appeared as an expert witness on appellant’s behalf. Mike McKerrow and Matt Denberg appeared on behalf of the city. No other witnesses appeared or provided written testimony.
Application of Review Standards and Analysis
EC 9.7025(2) provides that an applicant must enter into a performance agreement with the city to assure "construction performance in accordance with the approved final plans." If an applicant or an applicant’s successor in interest violates or fails to comply with any of the provisions of the performance agreement or the final approved plan, EC 9.7025(7) provides that the city "may invoke the enforcement procedures provided for in the performance agreement, or under applicable law, or both." In this case, the city has assessed civil penalties pursuant to EC 2.018 and invoked the liquidated damages clause of the performance agreement rather than withhold development permits.
In general, Mr. Park does not dispute that the violations occurred, however, he does argue that if the city wanted to quickly rectify the violations, it should have issued a "stop work" order on September 13, 2007, rather than allow the developer and EWEB to assume that matters were being informally resolved. With respect to the violation for removing protection fencing without approval, Mr. Park argues that so long as no trees were removed or damaged as a result of the fence removal, he believed that the fence could be temporarily removed to provide access to the utility easement.
For his part, Mr. Bozievich concedes that EWEB’s contractor should not have dismantled any portion of the construction fencing without city approval. However, he argues that as manager of EWEB’s activities on the site, he should have been informed of the problems and kept in the loop regarding the need for permits and tree fencing inspections. He stated that he understood the erosion control permit issued on September 13, 2007 permitted grading of the property and that the city’s September 13, 2007 site inspection constituted the required tree fencing inspection/approval. He stated he did not know until October 25, 2007 that the violations causing the delay in the issuance of development permits pertained to the need for tree protection fencing. He asserted that even if the prior civil penalties were warranted (a fact he disputes), he argues that he was working to correct the problems before the third Notice of Civil Penalty was issued and therefore the third notice of civil penalties is not warranted.
Both Mr. Park and Mr. Bozievich argue that the city failed to (1) adequately and accurately identify the violations and (2) inform the appropriate parties of the violations and (3) use the most efficient mechanism to resolve the violations, viz, the stop work order. Mr. Bozievich argues that these failures are particularly egregious because the city had promised to work with EWEB to expeditiously issue development permits for the reservoir project. Mr. Bozievich also argued that in the end, the as-built road conforms to the approved plans for the site.
Mike McKerrow responded that the performance agreement binds the developer, its administrators and assigns, and runs with the land. Here, Mr. McKerrow argued, the city informed the responsible party--the property owner’s representative--and it was up to the property owner to make sure the problems were resolved. With respect to other avenues that could achieve compliance, Mr. McKerrow stated that the city concluded that a stop work order was not necessary because it had evidence that the appellant’s contractors would not be continuing work at the site. He stated that the Notices of Civil Penalty adequately described the violations, and the basis for the city’s penalty assessments. He argued that the Notice of Civil Penalty issued on October 2, 2007 adequately identified the violations, and what was required to remedy them.
Here, the evidence shows that construction activities commenced prior to the issuance of permits, and trees were significantly damaged or destroyed as a result of the failure. The development agreement was recorded providing notice to all interested parties that the conditions of approval included in the modification decision and the performance agreement bound not only the developer, but all parties working on the site. While notice to EWEB may have accelerated compliance, there is no requirement that the city notify anyone other than the appellant of the violation. Therefore, the city’s failure to send notice of the October 5, 2007 assessment of civil penalties to EWEB as well as the appellant is not fatal to the city’s case.
The city’s civil penalty provisions are set out in EC 2.018. EC 2.018(2) requires that the city pursue "reasonable attempts to secure voluntary compliance" before issuing civil penalties and requires that in most circumstances, a responsible party be given no less than five calendar days to correct violations. However, EC 2.108(4) permits the city to issue a notice of civil violation if the city concludes that the violation was knowing or intentional, or a repeat of a similar violation. EC 2.018(7) places the burden on the city to demonstrate that a violation has occurred.
According to the evidence presented by the city, voluntary compliance was requested at the September 13, 2007 meeting, where the city identified the need to obtain further permits and approvals. On September 25, 2007, the city learned that the developer and EWEB had not halted construction activities, and the October 5, 2007 notice of civil penalties assessed penalties for two days of violations. While it is not entirely clear from the record, the two days referred to the two days city employees inspected the site. The hearings official concludes that the city has demonstrated by a preponderance of evidence that the responsible party--East Ridge Development--was apprised of the violations, and assessed penalties against the appellant once it discovered that the corrective measures had not been taken.
With respect to the October 30, 2007 notice of civil penalty, the evidence shows that an order to correct was sent to both East Ridge Development and to Jay Bozievich, and that as early as October 25, 2007, Mr. Bozievich had actual notice of the violations. The appellant was put on notice that a failure to comply with the conditions of approval and performance agreement would result in further penalties, and the invocation of the liquidated damages clause. Accordingly, the hearings official concludes that the appellant and EWEB had adequate implied and actual notice of the violations, and failed to halt construction activities that would have avoided the assessment of further penalties. Accordingly, the hearings official concludes that the October 30, 2007 assessment of civil penalties is well-founded.
With respect to the November 30, 2007 notice of civil penalties, the record shows that the parties failed to correct the violations within the 10-day time period provided for in the Order to Correct. Therefore, the assessment of civil penalties for the damage done to the trees and the failure to install fencing is supported by evidence in the record.
The city’s assessment of civil penalties, in the amount of $21,220.00 ($2,280.00 + $13,900.00 + $5,050.00) is affirmed.
DATED this 7th day of January, 2008.
Anne Corcoran Briggs
Hearings Official