The Edmonds City Prosecutor has declined to file criminal charges in a case from last summer in which contractors working on a condominium project at 316 Walnut St. allegedly caused significant damage to the root system of a 60-year-old Douglas Fir tree located partially on city right of way, requiring the tree’s removal the next day.

“After review of the reports, the City is declining to file charges,” the prosecutor wrote. “Any actions brought with respect to this case are likely civil in nature. The City cannot prove that any one person involved knowingly and with criminal intent violated the Edmonds Ordinance.”

Edmonds police had recommended to the City Attorney that charges not be filed after they conducted a two-month-long investigation that “did not find sufficient probable cause to support filing of criminal charges in this incident,” according to the police report obtained by My Edmonds News.

The incident reportedly occurred on Walnut Street between Third and Fourth Avenues, where the tree in question was integrated into the backyard fence line of an Edmonds home. The property and the fence had been in the family for 60 years and the current homeowner wasn’t aware that the tree, estimated to be 65 feet high, was located on a city easement.

Edmond City Councilmembers D.J. Wilson and Diane Buckshnis met with the homeowner following the alleged incident, and Wilson briefed the Council on July 6, after which the council approved a motion directing the City Attorney to pursue legal action.

The council briefing identified Woodway resident Charles Ainslie, the former chairman and chief executive officer of Mountlake Terrace-based Golf Savings Bank, as the owner of the condominium project. But according to the police report, the project is owned by Rob Michel of Edmonds-based Michel Construction. The police report also stated that Michel was serving as the project’s general contractor, and that Ainslie identified himself to city building officials as “the funder” for the project.

Here’s the investigation summary narrative from the Edmonds Police report:

On 6/28/2010, Bill Galipeau of Seattle City Homes, LLC, presented in the City of Edmonds Development Services Department, on behalf of the construction project at 316 Walnut St. During that contact Galipeau spoke to Theresa Umbaught, Senior Permit Coordinator and Joanne Zulauf, Engineering Technician. In the course of this contact, Galipeau explained that a large tree, not documented in the approved project plans, was in the path of improvements planned on the west side of the property, along the alley-way, within the City right-of-way. Galipeau inquired about removing the tree and other options were discussed. Zulauf advised Galipeau that she could not provide him an answer on behalf of the City before conferring with other City employees and advised him that she would contact him when she had an answer. During this contact Zulauf also asked Galipeau when the work was to begin and Galipeau told her that prep work had already begun and a crew was scheduled to begin the alley work 06/29/2010. Zulauf was unable to contact the other City staff this day.

On 6/29/2010 Zulauf continued working on obtaining an answer for Galipeau and at approximately 1030 hours, responded to 316 Walnut St. to evaluate the site regarding the tree. When she arrived at the location, Zulauf discovered that a crew had already made cuts into the ground for the approved planned curb radius on the west side of the property and that the cuts had severed roots, to the base of the tree trunk, on two sides of the tree.

Galipeau was not at the project site and Zulauf contacted Rob Michel, who was identified as a General Contractor for the project. Zulauf asked Michel about the work and damage and was told that he was not involved; another sub-contractor was performing the road and alley improvements. Zulauf discussed the damage with Michel and the fact that because of the severity of damage caused to the tree’s root system, the tree now posed a “major safety hazard.” The extent of the root damage is contested by Galipeau and the true extent is unknown.

Zulauf ultimately provided direction that the tree was an immediate safety hazard and had to be removed. Michel contacted Galipeau by phone and advised him of this and he had a tree service respond and begin removal of the tree. The tree and fence on the north and east sides of the private property to the west were in the City right-of-way (the wood fence had been built up to the tree some times ago). The fencing had to be moved to remove the tree and was ultimately replaced by work crews.

Now the Edmonds City Council must decide whether it will pursue civil action. Wilson said he has been following the matter closely and “will continue to be a strong advocate for defending the city’s interests here, and in standing with our citizens when they have clearly been wronged and the law has clearly been broken.”

Using photographs, an expert retained by the city estimated the value of the tree at $11,300. If the city decides to pursue civil action, under state law it can seek three times the tree’s value, according to City Attorney Scott Snyder.

Scott Baker of Tree Solutions, Inc., the registered arborist who conducted the city’s appraisal, said it was clear from his analysis that whoever cut into the tree roots did so “with no care at all. A minor adjustment (in how the cuttings were made) could have saved the tree.” He also said the city acted correctly when it decided to cut down the Douglas Fir, noting that root damage can cause trees to immediately become unstable, especially in the case of winds or wet soil.

“Trees are much more delicate than people think,” Baker said.