Seeing the Forest for the (Cut-Down) Trees

September 30, 2013

The Town of Woodside has a tree ordinance that is intended to protect trees and stop the sort of nasty clear-cutting incidents that have plagued this Town in the past. It does this by requiring property owners to get a permit before cutting any “significant” tree, which is determined by size and species, and by requiring that anyone who cuts trees illegally both replace the tree and pay what can be staggering fines. The COWncil crafted this ordinance with Town Staff, and all agreed it would be a fine way to stop people from cutting down trees in Town. The Tree Protection ordinance begins at Section 153.170 ot the Town Code.

We are tree huggers but we think this ordinance is overkill. If you want to cut down and replace even one significant tree, you must provide (1) A sketch of the site depicting the location of the significant trees included in the permit application, including relative proximity to structures, property lines, easements, other trees and other relevant features; and (2) Description of the significant trees , including species, size, health, and general condition; and 3) Photograph of existing site with the significant trees clearly marked with orange ribbon that will remain on the tree throughout the permitting process and (4) the Planning Director may require an arborist report. There are limited circumstances under which a permit may be granted. The list does not include removal because a tree is too close to a structure or interferes with solar or many other circumstances when removal of a tree would be appropriate. The Planning Director may refer the matter to the Town’s Conservation and Environmental Health Committee or the Town’s Architectural and Site Review Board (ASRB) for a recommendation. There is no guidance as to when such referrals are appropriate. But it is the penalty provision that has caused the Council frequent problem. The fines are $5,000 for the first significant tree; $7,500 for the second significant tree; and $10,000 for each additional significant tree. The Code then gives the Council carte blanche to change the fines from time to time.

Since it was enacted in 2007, every six months or so someone appeals to the COWncil to reduce a fine levied against them, and every single time, the COWncil has reduced the fine owed. In every case, there were definitely mitigating circumstances, and, despite the reduction, homeowners still wound up paying thousands of dollars in fines. But since the COWncil can’t stick to the ordinance as written, something is wrong with ordinance or wrong with the Council.

The most recent reminder of the problems with the tree ordinance came at the April 23rd meeting, when a homeowner appealed for a fine reduction. Six significant trees had been cut down by a contractor. Tthe fine called for by the ordinance was $52,500 plus replacement of the trees. The COWncil believed the homeowner’s story that his contractor had told him, during a remodel of his home (one that didn’t require a tree protection plan since the home wasn’t getting any larger) that the bay laurel trees on his land threatened his oaks with Sudden Oak Death and that it was permissible to go ahead and remove them. The Council then ended up reducing the fine by half. Additionally, the fine could be reduced to $10,000 if the homeowner spent the balance on other needed tree work on the property. The COWncil didn’t follow up on the applicants’ stating that he had cleared out brush and rats nests – likely meaning dusky footed wood rat habitat was destroyed – other than Peter Mason noting, “You know, that’s illegal.” (Dusky footed wood rats are a state species of special concern.)

The COWncil spent quite a bit of time on this item. Three speakers urged the COWncil to apply the law as written. The COWncil suggested that the large fines needed to remain as a deterrent, but they have also reduced the fine every single time. We are troubled by the amount of discretion that the COWncil allows itself on this issue – it smacks of unfair and selective enforcement. What happens when someone the COWncil doesn’t like comes in with a marginal case – does that person get hit with the full force of the fine, though no one else ever has?

Luckily, the COWncil themselves seemed to realize that the ordinance needs work, stating that it might have a few loose ends. They want to revisit the issue and put some guidelines into the Code to help guide fair decisions. We heartily support this, as right now, it pretty much looks like the COWncil is making it up as they go. We think there are more than just loose ends. Staff should look and see how other rural communities address the issue.

We support another thing the COWncil suggested; a massive education effort to Town residents and contractors who work in Town, to apprise them of the law so people aren’t ignorant of the rules put in place to keep Woodside green for all of us. The COWncil also discussed going after contractors for part of the fine, though they weren’t certain if that was legal or not. At the least, they wanted to start complaining to the State licensing board for contractors when they give bad advice or perform illegal work in Town.

Tough words – we’ll see if the COWncil actually revisits this issue in a timely fashion and in a systematic way. We’ll see how much the COWncil genuinely cares about trees, fairness, and limiting bureaucracy.

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