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Planning Commission OKs removal of one, maybe two, downtown heritage trees

Wednesday, November 25, 2015 by Elizabeth Pagano

At its recent meeting, the Planning Commission approved a variance that could save or destroy a downtown heritage live oak.

The would-be developer of 504 East Eighth St. was seeking a variance to remove two heritage trees that have a diameter of more than 30 inches. Such removal is allowed under city code, albeit through a boards-and-commissions process. The lot is currently a surface parking lot, but it’s slated to be developed as a hotel.

Planning commissioners voted to remove the smaller, 30.5-inch tree at 300 percent mitigation. The commission also opted to grant the variance for the second tree, a 32-inch live oak, with a condition that could possibly save it. That condition would give the developer eight months to care for the tree and find a place to replant it. At the end of that period, if the city arborist determines that the tree isn’t healthy enough to be transplanted or there is no place to relocate it, the developer can pay 500 percent mitigation instead.

Commissioners voted 9-1 to approve the variances with Commissioner Trinity White voting in opposition and Commissioners Fayez Kazi and Jean Stevens absent.

City arborist Keith Mars told the commission that he had reviewed about 5,600 trees since City Council’s adoption of the Heritage Tree Ordinance in February 2010. Mars said that, of those trees, staff had preserved about 95 percent. In fact, since 2010, only about 10 trees have gone through the boards-and-commissions variance process.

Mars disagreed with the notion expressed by those who were opposed to the variance that staff’s recommendation in this case was not in line with the parameters of the Heritage Tree Ordinance.

“The overwhelming amount of heritage trees are preserved,” said Mars. “If staff was not trustworthy, you would be seeing very different numbers. Those numbers do not lie about the competency and the acumen (of staff) and our passion to uphold what is a very, very valuable part of our city, which is the urban forest.”

Mars said that the 32-inch live oak that may be relocated didn’t immediately seem to be in bad shape, but the uses surrounding the tree had caused it to grow “in response to stress,” with odd branching. The biggest problem, he said, was the condition of the roots.

On the other hand, Mars said, the 30.5-inch live oak is in worse condition, and had problems in the canopy that wouldn’t normally be seen in a healthy live oak.

Mars said that although the trees didn’t meet the standard of being “dead, diseased or an imminent hazard,” which would clearly allow their removal, there was some question about their condition. He did note that he didn’t expect the trees to survive construction, even if the developer followed tree preservation requirements.

Commissioner Nuria Zaragoza questioned why the conditions of the tree factored into the variance request at all. She said that her reading of the ordinance was that once the tree was determined not to be dead, diseased or dangerous, its condition was no longer a factor.

Mars explained that the city had reasoned that, for some trees, “it prevents reasonable use of the property to incorporate such a poor tree.”

The Drenner Group’s Dave Anderson spoke in support of the variance on behalf of both the owner, South Eagle Ridge LLC, and Barton Creek Capital LLC, which was negotiating to buy the property at the time of the meeting and is now scheduled to close on the property in early December.

“If you take the development off the table at this point, you’re probably also taking off the (larger) tree’s chance at a transplant and ultimate saving,” said Anderson. “What we are trying to put forward to the commission is a way to win.”

The lot, Anderson explained, has several restrictions on it even without the trees. It is subject to Capitol View Corridor restrictions, which do not have a variance process. He said that these corridors prevented compensating for designing around the tree with added height and that there is “no other course of action which would eliminate the need to remove the heritage tree.”

A third to a half of the building will be limited to 71 feet by the corridor. Because of that and parking needs, Anderson said, “There was no way for it to go forward without utilizing the whole site.”

“This is downtown. It’s a small site downtown,” said Anderson. “A hotel downtown of the size and scope that we are talking about is a completely reasonable use.”

Anderson stressed the applicant’s flexibility and openness to transplanting the larger, healthier tree, despite the fact that it may be difficult and the tree might be unlikely to survive. He also said that his clients were willing to mitigate above what the city was recommending and offered $100,000 for the city’s tree mitigation fund, which he noted was “500 percent more” than staff’s recommended amount.

The 30.5-inch diameter tree is not a candidate for transplant, said Anderson. For that tree, he said that the developer was happy to offer 300 percent mitigation. (Staff was recommending 150 percent mitigation based on the condition of the tree.)

The Planning Commission took him up on both offers for increased mitigation.

In addition, the developer has promised to limit development on its property in the critical root zone of a neighboring 40-inch 60-inch live oak tree, though the tree itself is not on the property.

Zoila Vega, who is with the Austin Heritage Tree Foundation, asked the commission to “do what the law requires” and deny the variance. She said that the developer had not shown it had exhausted all options and that “the spirit of the ordinance was to preserve, not to mitigate.”

Photo courtesy of the city of Austin.

This story has been corrected to reflect the accurate trunk diameter of the tree located next to the project.

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