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City files charges against developers for demolishing Oak Hill trees

Thursday, July 10, 2008 by Mark Richardson

The City of Austin filed at least 20 complaints with Municipal Court on Wednesday against the developers of the Bee Cave Apartments in Oak Hill, who destroyed more than 150 mature oak trees on the construction site in March.


City Arborist Michael Embesi told members of the Environmental Board last night that more complaints could be filed, but that so far, city officials have only been able to positively identify 17 protected trees that were marked for preservation and destroyed by bulldozers. The developer said the trees were cut down by a subcontractor working on the site over a weekend, and that the trees were not deliberately destroyed.


“For whatever reason – and its still a mystery to me and other people involved in this – we had a subcontractor remove these trees,” Embesi said. “It appears to me that this was a malicious attempt to remove many of the trees, but I can see no benefit from a development point of view to removing the trees. Nevertheless, it is not permissible, and we are going to continue to assess how we are going to mitigate for the trees and to assess what actions constitute Class C misdemeanors.” Each violation carries a possible fine of up to $2,000 as set by state law.


However, members of the Environmental Board, as well as representatives of the Urban Forestry Board and the city’s Tree Task Force, said the city’s response to the illegal destruction of the trees has been inadequate and sends the wrong message to developers.


Board Member Phil Moncada said the city’s handling of the issue was an outrage.


“I’m really appalled that once the contractor notified the city, it then took the city three days to issue a Red Tag, and then the Red Tag was lifted within two weeks,” he said. “This is just a bad precedent and I don’t understand it.”


Embesi said city staff met with the principal contractor, Neal Harper of Cadence McShane Corp., his subcontractors and a city arborist during a pre-construction meeting in February. They discussed the site plans for the 276-unit apartment project in Oak Hill between SH 71 and Old Bee Cave Road. Protection of trees was specifically discussed, along with other environmental ground rules, Embesi said.


The following weekend, March 8, a subcontractor using bulldozers removed 154 protected trees from an area of the site that was outside the limits of the construction area in a flood plain. The trees removed were mainly live oak, ash junipers and cedar elms.


Embesi said the general contractor contacted the city on March 10 regarding the trees, and the city issued a Stop Work Order, also known as a Red Tag, on March 13. After the city and the developer agreed upon a suitable mitigation plan for the trees, the Red Tag was lifted on March 28.


Of the 20 citations issued on Wednesday, Embesi said 17 were for protected-size trees, which were removed, and three were for violations of the approved site plan. State law limits the fine to a maximum of $2,000 per violation. Embesi said he could not reveal whom the citations were issued against until after the parties had been officially notified.


When asked if city officials had determined which individuals actually destroyed the trees, Embesi said, “We were told that the workers for the subcontractors have gotten together and decided not to reveal who was driving the bulldozer on the day the trees were destroyed.”


Carolyn Palaima, chair of the city’s Tree Task Force, said she hoped this incident could be used to prevent similar ones in the future.


“What I would hope to come out of all this is that a clear statement is made to developers – and this is not pro or against developers but about smart development – that our trees need to be considered part of the urban infrastructure in our city,” Palaima said. “We have to send out a clear message that this urban canopy is very important to us if we are going to have a livable city here in Austin.”


However, Ryan Fleming, a member of the Urban Forestry Board, said there needs to be a change in the culture of some in the construction industry.


“My experience, and that of a lot of other people who work with landscaping, is that even if you have a client that wants to protect the trees, there’s just no motive on the part of a contractor to protect the trees,” she said. “They’re annoyed, they don’t want to hear it, and it only gets worse as you go further down the line to subcontractors.  A lot of them just don’t want to be bothered with protecting trees.” Fleming said it happens more often than most people realize. “I think it is willful negligence. I don’t think that it (the destruction of trees) is deliberate, they didn’t plan it,” she said. “But it’s deliberate in the sense that they really can’t be bothered to prevent it. It’s just not important to them.”


Board Chair David Anderson said he and Moncada were working on a resolution in conjunction with the Tree Task Force and the Urban Forestry Board to urge the Council to tighten up regulations regarding protected trees. He said the resolution would encourage an increase in fines and mitigation costs for violations and would make a clear statement that trees are an important part of the city’s urban infrastructure. Anderson said the resolution would be ready for the board’s August meeting.

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