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Council approves stronger protection for heritage trees

Friday, February 5, 2010 by Kimberly Reeves

Council passed stronger protection for the city’s heritage trees last night, a compromise that went further than the current ordinance but not as far as some of the commissions might have wanted as the final resolution.


The unanimous vote, which came after about two hours of public testimony, was the staff recommendation, plus a number of friendly amendments. That means that a preliminary plan, final plat, building permit or site plan will require an administrative variance if a 24- to 30-inch diameter tree is going to be removed. Any larger, and the variance will go to the relevant land use commission, in addition to either the Environmental Board or Urban Forestry Board.


Speakers lobbied hard to replace the administrative review with a review by the Urban Forestry Board. Council Member Bill Spelman’s compromise, in the form of a friendly amendment, was a monthly report on variance activity to the Urban Forestry Board on a lot-by-lot basis.


The key, going forward, appears to be enforcement. Alan Watts, who witnessed the illegal removal of a stand of heritage-size trees in Oak Hill a year ago, said the developer has walked away scot-free from his bulldozing of the trees.


Mayor Lee Leffingwell, in one of his rare comments during the public hearing, noted that the bulldozing of those trees in Oak Hill was illegal under the current ordinance and would be illegal under the new ordinance.


“The city prosecuted that case to the full extent of the law. We lost that case in court,” Leffingwell said. “The point is, as bad as it was out there, it was completely illegal right now and will continue to be illegal under what we might pass.”


There was at least one moment of levity. Hyde Park resident Dorothy Richter, white haired but still rather spry, asked the Council to consider the necessity of public input. Richter noted she had been an ardent opponent of a new fire station.


“I’m getting too old to stand out in front of a bulldozer,” Richter told the dais.


That drew laughs from both Council and the audience.


Among the other friendly amendments accepted by Council Member Randi Shade:


·       Council Member Chris Riley proposed a compromise on the multi-stem issue. Multi-stem trees will be counted as they are under the protected tree section of the ordinance – the main stem plus half of the other stems — but only trees with a single stem of more than 30 inches would go to a public hearing;


·       Riley also simplified language to replace the various oaks in the preferred species list with the term “all oaks.” Others had argued the tree list should be mandated by rule, rather than ordinance, but it will remain in ordinance;


·       Mayor Pro Tem Mike Martinez removed language from the ordinance that some considered giving Austin utilities too much latitude in tree removal. The phrase “the safe operation of existing public utility services” was struck. That returns the amended ordinance to its original language on the subject. “If we are going to write ordinances and ask the community to comply, we need to do the same thing,” Martinez said. “We can, as a city, be the first to comply”; and


·       Council Member Laura Morrison replaced the term “superior” in the phrase “superior tree preservation” with more specific language. To grant a variance, the mitigation plan must make maximum provision of ecological service from the trees – a specific term used in forestry circles. In addition, both the cultural and historic value that the tree might play in the community must be considered.


Since the ordinance was passed on all three readings, it will go into effect in 10 days. Those projects already in the pipeline will not have to meet the tougher standards. If a site plan subsequently expires, then the terms would apply to a new site plan.


During testimony before Council, supporters urged various changes and tweaks to the ordinance, mainly to be in line with the Planning Commission recommendation. In his testimony, Harry Savio of the Homebuilders Association of Greater Austin argued that the staff recommendation should be the preferred version.


“We met in good faith,” Savio said. “To change it now would not be true to the process, and it wouldn’t be fair to the participants.”


The Real Estate Council of Austin also was a heavy presence at last night’s Council meeting, underlining the fact that the city had never accurately estimated the cost of the ordinance to developers and their projects. Speakers from the development community predicted a potential 8 to 10 week variance process for site plans that might have otherwise been approved administratively.


On the environmental side, Shannon Halley, vice chair of the Urban Forestry Board, said if developers considered the opposition to trees to be a straw man for opposing a particular project, then maybe they ought to start designing better projects. That drew applause from the audience.


John Paul Moore, who heads the tree subcommittee for the Hyde Park Neighborhood Association, noted the 2006 task force on trees had recommended public involvement on the removal of trees as small as 10 inches in diameter. He called the revised version of the ordinance the “mystery meat version” and told Council members the city could not mitigate its way out of the removal of trees because there would be no guarantee the same quality of tree could still be grown.


Roy Whaley, vice chair of the Austin area Sierra Club, urged stronger enforcement of the ordinance. No ordinance will mean anything without a strong enforcement component, even if the offenders were a small number of bad characters.


After the meeting, Environmental Officer Pat Murphy confirmed the amended ordinance likely would mean an additional staff member for his office to process variances. The Planning Commission’s Codes and Ordinances subcommittee has already begun work on what is Part II of the process, which will be the enforcement and mitigation measures for the heritage tree ordinance.

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