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ZAP votes for retroactive variance in first Heritage Tree case

Wednesday, September 22, 2010 by Kimberly Reeves

The Zoning and Platting Commission granted a retroactive variance last night to the new Heritage Tree Ordinance to a hapless homeowner, but the board went ahead and underlined its displeasure with a steep fine for what many at last night’s meeting were more than willing to call “a stupid mistake.”

 

As reported in In Fact Daily Tuesday, city staff members were in a quandary to figure out how to deal with infractions to the Heritage Tree Ordinance that involved damage, but not necessarily destruction, of an existing tree. In the case of construction at 4709 Highland Terrace, the approved plan under the ordinance was misplaced, causing a contractor to pour a driveway too wide, which damaged six trees, both those on the lot and others next door.

 

Jim Einhaus of David Weekley Homes apologized profusely at last night’s ZAP hearing for damaging a 40-inch diameter live oak, among others, but he was received with a whole lot less than sympathy from a number of ZAP commissioners and environmentalists. It might have been a mistake, but it was a stupid mistake was the response from commission members.

 

What the commission chose to do, in response, was to raise the stakes on the homeowner and, indirectly, David Weekley Homes. In fact, commissioners implied they expected Weekley to pay the fine, although it was unclear that the developer would. The price of that first fine, modeled on penalties in Fort Worth, was to charge the homeowner a penalty on the order of $1,000 per-caliper-inch. That set the fine for the developer’s mistake at $40,000.

 

While commissioners Gregory Bourgeois and Sandy Baldridge balked at the number – Bourgeois and Baldridge both noted the amount far exceeded the current code at $75 per-caliper-inch – the majority would support the penalty. Legal staff agreed the adjustment was within the commission’s purview. Bourgeois argued the ultimate loser of the large established tree, regardless of who filed the paperwork, would be the new homeowner.

 

The final vote in favor of a retroactive variance, with the $40,000 fine, was 4-3, with Bourgeois, Baldridge and Baker voting no. Baker, who straddled the fence at the end, ultimately voted against the majority, preferring the $100 per-caliper-inch that Baldridge proposed as a compromise.

 

“We can’t prevent stupidity, but we can make it expensive,” Baker told the applicant and staff when the fine was proposed. “Hopefully, with raising this per-inch amount, that might in some way, get the attention of developers.”

 

The message sent by the fine was aimed at developers and not simply this particular homeowner. As Baker noted, she’s not a fan of asking for forgiveness rather than permission. And Commissioner Donna Tiemann said she didn’t want a fine on this case – the first to challenge the Heritage Tree Ordinance – to be so insignificant that commercial developers considered the cost of removing or demolishing trees on a site to simply be a “rite of passage” during the development process.

 

“I appreciate the builder acknowledging the mistake,” Tiemann said. “We all make them, and we all have to suffer the consequences of those mistakes.”

 

At the point of the final motion, Baker asked that city staff consider, in its impending recommendations to amend the ordinance, to differentiate between residential and commercial developers. An old lady who cuts down a tree, not knowing the ordinance exists, should not be punished the same way a commercial developer who knows the consequences would, Baker told staffers.

 

On the other hand, she also had a quip for the developer, too.

 

“I’m glad you’re building homes instead of doing heart surgery,” said Baker, drawing laughter from the audience.

 

Baker doubled the time frame for maintaining the live oak in a “live” condition, from 5 to 10 years. That was a friendly amendment. Otherwise, the fine on the killing of the tree, if and when, would have been much higher. Already, arborist Keith Mars noted the damage to three sides of the 40-inch live oak’s root system was substantial and it is unlikely to survive.

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