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Environmental Board rejects compromise in test of tree ordinance

Tuesday, September 21, 2010 by Michael Kanin

The city’s Zoning and Platting Commission will face a unique challenge tonight as it decides what to do about a request for a variance for three trees damaged by a developer. Last week, the city’s new Heritage Tree Ordinance had an unusual first test in front of the Environmental Board. There, board members voted to deny the builders of a West Austin home a variance that would have retroactively allowed damage to three trees large enough to be covered by the measure.

 

In so doing, they exposed something of a flaw in the enforcement mechanism – the mitigation fees assessed for negatively effecting heritage trees – associated with the city’s attempts to protect its greenery. The 4-1 vote came as the board seemed reluctant to establish a relatively easy path for developers to post-damage clemency.

 

Watershed Protection Environmental Reviewer Keith Mars presented the board with no official recommendation for action in the case. Still, it was evident that they were aware that some sort of change needed to take place to better address tree ordinance violations that occur before a variance hearing can be held.

 

“The code is ill-suited—or I should say, does not speak to cases like this—where you have a living biological organism…(where) once the damage is done it is very difficult, if not impossible, to truly correct the violation,” he said.

 

Watershed’s Pat Murphy took it a step further. “Unfortunately, our codes have never been set up to address violations well,” he said. “We address enforcement of regulations prior to actions or as part of permitting. So the code doesn’t really clearly address what you do when there is a violation, especially of a tree, which is a living thing….

 

“If we were talking about an encroachment on a setback, then you could just move over and you’re back in compliance,” Murphy continued. “When you damage the roots on a tree to the point that it’s declared a removal by the amount of root system that you’ve taken out, then you can’t put those roots back—that violation continues to be there.”

 

In this case, workers affiliated with David Weekley Homes had misread plans for a driveway reconstruction project. As a result, they cut in to the root system of one 40-inch live oak and negatively affected two more large trees. Though the two other trees, one measuring 26-inches in diameter and the other 36-inches, were expected to survive, the live oak may have suffered too much damage.

 

The smaller trees belong to a neighboring property.

 

Prior to the hearing, representatives from David Weekley and Watershed had agreed on a mitigation and care plan. David Weekley was set to pay $9,000 – or 300 percent of the city-derived value of the live oak – should the larger tree die. They would also pick up the tab for a five-year care plan for each of the trees that were aimed to further their survival.

 

The Environmental Board could have elected to attach each of these provisions to a variance from the Historic Tree Ordinance. Instead, it became clear that it was not in the mood to set a cooperative precedent so early in the life of that legislation.

 

Board member Bob Anderson set the tone. After some discussion of the particulars of the case, he honed in on what he saw as an unfair assessment of the live oak’s value.  “Regarding the value of trees, some of my experience is that a tree is substantially more valuable than (what I’ve heard here),” he said.

 

Based on a nationally recognized valuation method that isn’t used by the City of Austin, Anderson cited a price for the live oak that was potentially much higher than had been calculated by the city. “It’s probably $20, $25, $30, $35 per square inch,” he said. “By my calculations that tree could be worth as much as $37,000 or $38,000.”

 

Murphy noted that the city currently assesses the value of trees by inch of diameter, not square inches. The charge is $75 per inch of diameter. In other words, instead of evaluating the tree for its inherent value, city officials count only the price of replacing it.

 

Murphy said the city will be rewriting the rules for how it values trees, but that regulation was not yet available for the board’s use.

 

The board’s vote to deny the variance may put the deal worked out between David Weekley Homes and the city in jeopardy. The final tally was 4-1, with board member James Schissler coming down against denial. Robin Gary and Jon Beall were absent.

 

Representatives from David Weekley Homes declined comment. 

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