In a ruling last week on a case that has been simmering for more than three years, Snohomish County Superior Court Judge George Appel issued a court order saying that the City of Edmonds is responsible for financial damages suffered by the plaintiff, Nathan Rimmer, due to its repeated unconstitutional denial of Rimmer’s application for a building permit.
As reported earlier in My Edmonds News, the ordeal began in March 2022 when Rimmer applied for a permit to build a home on his vacant lot in the Edmonds Bowl. But a single tree – an ornamental flowering dogwood – caused the application to run afoul of the city’s tree code.
Because the dogwood measured greater than 6 inches in diameter, it fell into the category of a “significant tree” under the City of Edmonds Tree Code. Removing it would require the property owner to replace it with two replacement trees. In addition, as a condition of being issued a building permit, the property owner is required by city code to execute a notice on his title dedicating both the replacement trees themselves and a portion of his lot for their installation and perpetual maintenance — in effect granting the city a permanent legal interest in his property.
Not willing to relinquish his property rights, in December 2023 Rimmer filed suit in Snohomish County Superior Court. On Jan. 31, 2024, Judge Appel ruled that the city’s requirements in this case are unconstitutional and ordered that Rimmer’s building permit be granted.
But Rimmer ended up selling the property in April; the new owner took out the dogwood and is in the process of constructing a new residence on the site.
In last week’s ruling, Appel issued a court order finding the city liable for the financial damages suffered by Rimmer during the three-year ordeal, with the amount yet to be determined.
“The City of Edmonds’ demand was unconstitutional and served no purpose other than to increase its authority over private land use while trampling on property rights,” said Brian Hodges, a senior attorney at Pacific Legal Foundation, which represents Rimmer. “Unconstitutional permit conditions like this drive up the cost for property owners to create badly needed housing, exacerbating the housing shortage.” (Read Pacific Legal’s 2023 review of the case here)
The city will ask the State Court of Appeals to review the ruling.
“Because this case was decided on questions of law, the Court of Appeals will review the matter de novo, which means that it will not defer to the superior court’s ruling but will freely consider the matter anew, as if no decision had been rendered,” said Edmonds Mayor Mike Rosen. “We will comply with the result of the appeal.”
— By Larry Vogel
Throwing good money after bad…. Mayor Rosen should just give up NOW.
Unbelievable that this case is still tied up in court!. Pay the fine, change the way the city operates and move on!! Stop wasting more tax dollars.
Why comply with the Appeals Court and not Judge Appel? End this, and amend the “Tree Code” to prevent taking property rights. The code is a horrible overreach, granting the City and complaining neighbors too much control over property rights all in the name of saving trees.
Oh my goodness readers. Please stop whining about every small expenditure and also please allow our elected leaders to exercise their best judgment in managing our collective affairs without being so critical.
If you own the property you own the tree. Stay in your lane Edmonds! Shame on you!
I would love to know how much the city attorney billed for defending this lawsuit. No wonder the city is on its way to bankruptcy.
It seems like the city attorney should have advised the city some years ago that their code was illegal.
And the city is cutting back on fire and police service??? This is nonsense— a small ornamental dogwood tree on a vacant lot. No wonder the city is broke. Eliminate these positions and expenses instead of police and fire protection. Stop this insanity please
You are joking, right? Since when is anything to do with lawyers a small expenditure? I believe most people have had it with our elected official’s lack of judgement when it comes to budget.
The tree code was a bad idea from the start as I commented way back then; and the chainsaws fired up a couple weeks before the deadline moratorium on cutting oversize trees kicked in. It hasn’t saved any trees to speak of and it’s cost the city lots of money it doesn’t have. It should just be thrown out in favor of property rights, but it won’t be because this is Edmonds and it’s how we roll. No dumb law or code destined to fleece the taxpayers will ever go unloved or rejected. Spend 5.2 million dollars on hauling poop from the brand new waste plant that doesn’t work and then put a 5 million dollar tax levy on the April ballot to “cover inflation.”
I so agree with Ron and Brian and most other comments. The city attorney should have been on top of this. I’m glad this property owner stood up to this unfair rule.
We sued the city and developer back in 2003 time frame for an improper application of building code (over building height limit). After a couple years of hard work, tens of thousands of dollars out of pocket, and a day in Superior Court, we won our case. City incorrectly applying code and city attorneys not properly advising them. The only response I got from the city was a council member chastising me for “how dare you sue the city”.
Edmonds spending more money preventing development and growth under the guise of the environment is the standard playbook that has lead to a huge funding gap. Exclusionary zoning is now illegal under both middle housing and urban zoning laws, yet Edmonds seems set on trying to find a way to prevent growth. This lawsuit and defeat in court is exactly what’s in the future for Edmonds if it continues the Major’s old tactics of delay, deny, and defend.
Have you read the 2024 community survey? Overdevelopment is one of the top concerns of Edmonds residents.
Edmonds has a spending problem, not a revenue problem. Go look at the budgets over last 6 years. I do agree with you, we have an over reliance on property taxes.
https://cdnsm5-hosted.civiclive.com/UserFiles/Servers/Server_16494932/File/24-9336%20Edmonds%20Community%20Survey%20Report%202024.pptx
I tend to believe it’s a case of pandering to everyone.on every cause. If the land was developable and would pencil out, it would be developed. Whether it be the Burlington Coat Factory lot or an empty lot next door. Protecting Urban Forests by increasing density compete with one another, but in Edmonds, you got to get them votes. Sure, we could eliminate height restrictions, increase density, and we would still have the same problems that every City surrounding us has. Over budget, over optimistic on revenue estimates, overly reliant on accounting gimmicks and fund shifts, and still in need of more taxes. Seattle has stripped basically every rule for developers, and last time I checked the yellow brick road leading to Oz, even though promised, is a tent lined pothole Mad Max track to the next 6 or 7 story mixed use box. They made the same argument you make and they built, and they are still broke. Its.a.spending problem, not a revenue gap. Ask about fiscal responsibility and being good stewards of tax payer dollars in every guiding principle our City follows and see what you get.
The Growth Management Act established boundaries for urban growth to preserve the rural. The horror is the bureaucrat and environment industries do all possible to prevent and increase costs for urban housing which already destroyed all affordable and low income housing in the entire region. We used to get building permits in weeks to a couple of months, now literally years. I’m an old residential builder with a set of Seattle building lots that have been in formal development process for 8 years now because Seattle constantly moves the goal posts and increases permit burden. In this period 2 of the dead and dying old maples the arborists evidenced as extreme danger fell on neighbors homes both directly over children’s beds. Now we are required to permanently fence off trees denying us our land. The only result will be less, not more, trees, insane. These are MY trees on MY land and regressive stupid regulations only hurts all of us.
Wait, we the State dictate how we use or classify our home ownership, we vote for more taxes and continued support that imports homelessness and has created an awesome industry for developers, home builders, grant writers, and mega-constructuon companies, we write a Comp Plan that has zero mention of fiscal responsibility but promises unicorns will shoot out of our hindquarters and deliver affordable housing circled by bike lanes and gardens and constructed by all of the jobs that these developments and mixed use buildings are.going to create- and we get worried about a tree? A tree? Come on folks, that tree was greater the 6″ in diameter! It was probably here in the 1950’s and 1960’s when all.of us were racists and red lined our City. We should allow a window for these trees to be remived if theyy can reasonably be estimated they were they were planted during that era. (Erase the bob-equitable trees from our past to plant more equitable trees on one of our State mandated multiple lots). We should also have the City pay us to remove trees planted during that era from a State Funded Tree Equity Program, where the lumber from those trees is used to build tiny homes in City Parks to reduce homelessness or sold to close the budget gap. I need to work for Strom.
I wonder who made the decision to ask the State Court of Appeals to review the ruling. The mayor refers to “the city” in the article above. Who exactly is “the city” when it comes to directing the City Attorney to pursue an appeal?
My guess is that the City Council is the branch of city government with the authority to direct the City Attorney to pursue an appeal.
If so, I imagine the City Council will benefit from asking its constituents if citizens want to expend additional public resources pursuing this matter further.
City Council is a governing body, and they act by voting. Under the Washington Open Public Meetings Act, no action may be taken in Executive Session. Does anybody know if the City Council voted during an Open Public Meeting to direct the City Attorney to pursue an appeal?
How can the mayor say, “We will comply with the result of the appeal”? Won’t that be for the City Council to decide? This case involves constitutional issues, and I fear “the city” will consider additional appeal if the city loses again.
If anybody finds this topic interesting, I recommend searching the internet for an article titled “Settling Land Use Litigation: Swords into Ploughshares”. It was authored by Carol Morris, a local attorney who has done some work for the city.
The “City” means the city of Edmonds, Washington, or the area within the territorial city limits of the city of Edmonds, Washington, and such territory outside of this city over which the city has jurisdiction or control by virtue of the constitutional provision, or any law.
Per current ordinance under City Attorney Duties that they can perform other tasks as requested by the city council, the council president, or the city administration.
My apologies for my spelling mistakes. Large thumbs. Small phone.
During the City Attorney Annual Report to the Edmonds City Council on June 25th, 2024, City Attorney Jeff Taraday represented that the Rimmer takings “Case is well positioned for reversal at the Court of Appeals”.
This representation by the City Attorney surprised me and made me wonder whether Mr. Taraday’s opinion about ongoing litigation was subject to the attorney client privilege. Mr. Taraday further represented that the case was still pending and that they were still waiting for an order from the trial court.
Snohomish County Superior Court Judge George Appel has now issued that court order.
I looked back through old emails this morning and found one that may be relevant.
On June 24, 2024, a fellow citizen forwarded me an email written by Council President Vivian Olson about the Rimmer case. That email included the following:
“When it is time to make decisions regarding next steps, it will be a whole council decision.”
I suspect CP Vivian Olson was correct and the decision to appeal must be made by the whole City Council. Until the City Council votes to pursue an appeal, I think it premature to say that the Court of Appeals will review the matter de novo.
Before it votes, I hope the City Council will ask its constituents whether citizens want to spend additional public resources pursuing this matter.