Clear-Cutting Austin

"I speak for the trees, for the trees have no tongues." – Dr. Seuss, The Lorax

Tom Penn knows the meaning of "rude awakening." He endured a couple this spring – both of the literal and metaphorical sort.

In the weeks leading up to his epiphany, the lot next door to his house in the Deep Eddy neighborhood had been cleared of its previous, modestly sized house and several of its trees. The clearing was prep work for a new house – a huge new house, three stories tall and easily fitting, if not the city's legal terms, the common-sense definition of "McMansion." The tree-cutting had unnerved Penn a bit, but he assumed that everything was legit, and the worst was over. But there was more to come.

"About 6:30 one morning, a crew shows up, and they're pulling a chipper behind them," Penn says. "So I thought, 'Gee, the lot's clean; what is there left to do? Oh my God!' So I went out in front and said, 'What are you guys doing?' and the guy said, 'Oh, we're here to take this tree.' Well, there's a tree right next to my property, on [that neighboring] property, that was a beautiful red oak that was about 24 inches at 4 feet high. Perfect specimen, a huge crown, just a gorgeous tree. Shaded half of my house and half of that lot. I said, 'No-no-no, no you're not.'"

Penn implored the crew to stop. He called up the home builder, Jack Dabney, who temporarily pulled the crew off the job. He called the city arborist, but Dabney had the proper permits to cut down the tree. Penn then made an appeal to the new property owner. He offered $15,000 of his own money to underwrite the costs of redesigning the new house and some of his own driveway to accommodate such a change. He got nowhere – Dabney insisted he had taken other trees into consideration, and between that and the city's setback requirements, he was building on what little footprint was left.

In the end, "I filmed it," Penn says. "It was gone in an hour."

That was Tom Penn's literal rude awakening. The more metaphorical one has come in the aftermath, as he has learned the complexities of trying to protect trees in Austin.

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Waiting for the Call

This is not yet another story about "evil devel­opers." Not necessarily. Some of the developers in this story are possibly just ignorant of the law. Some would argue that they are simply trying to save money for their clients. And in many cases, although the neighbors may find them odious, they are in fact operating within the law – and their property rights. To a greater degree, this is a story about the problem with the law itself: a city ordinance with no teeth that relies heavily on the honesty (or awareness) of the very people it is supposed to regulate. Mostly, this is a story about multiple threats to our urban forest and the challenges of protecting it from the inevitable pressures of a rapidly growing population.

Austinites love their trees; this is a city where citizens will gladly be branded "tree huggers" and wear the epithet as a badge of honor. We've taken this love so far as to declare certain trees legally protected: Under the city's Tree and Natural Area Preservation Ordinance, removal of a tree with a circumference of 60 inches or greater, measured 4½ feet above natural grade (equal to a 19-inch diameter), requires a permit from the Watershed Protection and Devel­op­ment Review Department, with certain exceptions (such as removal of a damaged tree that poses a hazard to life or property). "Removal" can mean more than just cutting a tree down – it covers "an act that causes or may be reasonably expected to cause a tree to die," including uprooting, severing the main trunk, damaging the root system, and excessive pruning. Illegal tree removal can net a fine of up to $2,000 per tree.

Any construction firm that reads the fine print on its Residential Permit Application will see this plain text: "I also understand that if there are any trees greater tha[n] 19 inches in diameter located on the property and immediately adjacent to the proposed construction, I am to schedule a Tree Ordinance review by contacting 512/974-1876 and receive approval to proceed."

That's the phone number for city of Austin arborist Michael Embesi. He would love to get that call. But whether the developer places it is another story.

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The Cost of Doing Business

"What seems to be happening, at least in my neighborhood, and I imagine it's happening all over, [is] the developers come in and do things before they even go through the permit process," charges Penn. His theory – one shared by some of his neighbors – is that for home builders, ignoring the Tree Preservation Ordinance is just a cost of doing business, at $2,000 per cut. It's a suspicion hard to prove, however – as noted above, although the trees Dabney downed were of protected size, he consulted with Embesi and acquired the permits he needed. In fact, in all of the cases discussed in this story, although trees may have been removed, no documented violations of the law occurred.

But does that mean that the ordinance is being obeyed or that the ordinance is easily sidestepped without detection? The city doesn't have sufficient staff to do on-site inspection of every application, so city-code enforcement is almost entirely a complaint-driven process – meaning inspectors probably aren't coming around unless they get a call. That creates a loophole where developers can simply cut down a tree and hope no one reports them. And if they do get caught? "The fines are meaningless," complains Penn. "On a half-million-dollar project, a builder will spend more than $2,000 just buying lunch for his workers."

Chris Alguire, another Deep Eddy resident who has been collecting information on what she sees as abuse of the ordinance, agrees: "Some developers flout the law and just don't care. Others are just ignorant of the requirements. ... The Development Review Department has no way to know if a Tree Ordinance Review is required or was undertaken by the developer." And if it's not, the consequence is obvious: "There's no mechanism to catch people after the tree has been cut down." More than one resident who complained of this problem said it occurs "all the time."

Embesi and his supervisor, Chief Envi­ron­ment­al Officer Pat Murphy, do acknowledge the weakness of the law, but they disagree that abuse is rampant. "I think one of the things about our regulations is that if someone chooses to violate them, they can do that," says Murphy, who has been with the city for 22 years and himself was once the city arborist. "Yes, people can go out there and do violate the tree ordinance. Some of them do it out of ignorance. Most tree companies that are reputable in any way really, I think, are doing a good job of making sure there is a permit issued before a tree of that size is removed. There are still – and always will be, until there's some sort of required registration or certification by the state – there will always be people that buy a chain saw and pronounce that they're in the tree business and do work like that and say it's the property owner's responsibility.

"And yes, I do think there are some people out there that knowingly take the tree out because they just want it out and are willing to deal with the repercussions. And we have seen that happen, certainly. I don't think that in any way that is the norm. I think that's the exception to the rule, because first of all, for developers, they know that they're going to need to get approval for site plans and all these sorts of things, and they don't want to complicate that process or get the neighborhood and citizens against them if they need to have approval that require[s] public hearings."

But when someone does flout the law, Murphy says, "Unfortunately, we are limited under [state] law as to how much of a penalty we can assess. And the fine is nominal. Two thousand bucks is as much as we can get through the municipal courts per violation for this sort of thing. And yes, I think some people may go out there and say, 'Well, 2,000 bucks – I'm going to either lose the ability to build my development the way I want to build it or pay a $2,000 fine; I'll just take it out and pay the fine if they come after us.'"

Asked if there were any builders who have been repeatedly cited as a problem, Murphy said, "Not that I'm aware of."

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City Buzz ... Saw

If there is any neighborhood in Austin that clearly demonstrates the changing face of the city due to growth, it is Deep Eddy. Driving into the area bounded by MoPac, Lake Austin Boulevard, Exposition, and Enfield, one might still expect quaint cottages with a vintage of 70 years or more, shaded by big, twisting live oaks. But today, that character is fading – seemingly half the original housing stock has been replaced by McMansions, the scale of which has clearly cost the area much of its mature tree canopy.

That's not escaping the notice of residents active in neighborhood politics. The neighborhood planning process has just begun for the Central West Austin Combined Neighborhood Planning Area (which includes Deep Eddy), and in a survey of stakeholders – mostly home-owners – 73% of 273 respondents listed "mature trees" in their top five responses when asked, "What aspects of your neighborhood do you like the most?" The next closest response? "Neighborhood character," at 58%.

Deep Eddy isn't unique – Statesman columnist John Kelso recently reported on a tree-cutting dustup in Bouldin Creek; as this story was being written, neighborhood sources alleged another incident in Tarrytown, and the Allan­dale Neighborhood Association is currently compiling an inventory of protected-size trees to better keep a watchful eye. And Allandale residents already have some familiarity with the Tree Ordinance, as it factors in to the current lawsuit trying to stop the construction of a Wal-Mart at the former Northcross Mall. (See "Trees Protecting the Neighbors?.")

But it's arguable that Tom Penn's house, on West Ninth Street, is at the eye of the storm. There's his next-door-neighbor-to-be and then another project about 100 yards south, on Eighth Street, where another old tree wasn't removed but certainly looks bad after some major cutting (a candidate for illustration of "excessive pruning") and a foundation laid within about 3 feet of its trunk. And right across the street from Penn, another crisis arose when an enormous oak tree appeared threatened – but the builder and property owner worked with the city to save it. In all three cases, Embesi had to intervene to some degree, although he eventually obtained design changes that he considered acceptable.

Alguire found another development on Norwalk Lane that showed no trees on its original site plan, although several are clearly visible now around the almost-completed house. Penn and nearby resident Lesley Airth say that three or four years ago, another home builder on Eighth cleared a heavily wooded yard of almost all its trees early on a Christmas Eve, although there's no longer any way to know if any were in the protected class.

"Our neighborhood is full of trees. That's why a lot of people move here," says an exasperated Penn over breakfast at the Lake Austin Boulevard Magnolia Cafe, as much a fixture in the neighborhood as its namesake swimming pool. "The problem, as I see it, is that these developers come in, and their bottom line is how many square feet can I put on this lot that cost me X number of dollars per square foot. ... They have no investment in the neighborhood, other than that it's a deal – it's business."

The Ninth Street property across from Penn where the tree was saved illustrates what can happen when the Tree Ordinance works properly (and when property owners and developers care). Yet it also shows how hard it is to protect trees even with good intentions. Builder Jason Williams actually never planned to cut the tree down – his clients "bought the lot specifically because they love the tree." But Williams didn't realize the damage that putting a slab right up near a tree, over its critical root zone, can cause. When neighbors saw a slab being framed almost to the trunk, they hurriedly notified the city (and the Chronicle, which published a photo of the threatened tree). Suspicions were aroused further when Alguire investigated and found that no trees were shown in Williams' original site plan submitted to the city, despite the requirement to report any thicker than 19 inches.

What appeared to be deceit turned out to be just a mistake: No trees were shown "because we had no intention of harming the tree," Williams says. "I thought the ordinance only applied to removal of trees. I didn't think we came under it."

After a complaint to Embesi triggered a Tree Ordinance review, "We shut down the job, and we talked," says Williams. "We sat down with the city arborist and a master arborist and made sure we were okay." Under their guidance, Williams agreed to make changes – costly ones – to the house design. "I haven't done a tabulation, but it was expensive. We changed from slab to pier-and-beam, which required re-engineering. And we also had a false start, which we took down and redid. It probably cost $10,000 extra."

"We were very pleased with how that turned out," said Embesi.

Not all interactions go so well. Both Penn and Marsha Fatino, who lives on the opposite side of the new house from Penn, describe their relations with Dabney as awful, a sentiment returned in kind by Dabney. Aside from complaints about the scale of the new house, which towers over her modest home, Fatino is particularly aggrieved because Embesi instructed Dabney to engage in "no utility trenching within 12 feet of tree trunks" – and his workers then dug a trench within about 6 feet of one of the trees on her property, as well as the last major tree in the front yard of the new house. One verbal confrontation between Fatino and Dabney resulted in the police showing up, although each claims to have been the one who called the cops. Fatino said she placed the call because Dabney's foreman threatened to cut down one of her trees for a better view of the city; Dabney says the comment was meant in jest and that he actually called the cops because Fatino yelled profanities at him in the presence of his sons. At press time, the Austin Police Department had not returned a call about the incident.)

Dabney also insists that he deserves the same "good-guy developer" tag as Williams. He says he tried to save as many trees as he could, but there's only so much that can be done on small central-city lots that will allow a project to remain financially viable – especially in this case, he says, because he had to stay a certain distance not only from protected trees on his lot, but from ones in the neighboring yards, as well.

"On that property and on the two properties on either side of me, there's seven protected trees, and you have to stay 15 feet away from every tree," Dabney says. "Basically what happened was, the footprint that was left that you could build upon was not big enough to build a brand-new house there, because you have to stay 25 feet back from the curb. You can't back your house and start it at 50 feet, it has be in the same 10%-plus-or-minus distance as the home on either side of you, and those homes were at [about] 26½ feet. ... To back the home up, I would have been backing it into two more protected trees that were in the back yard that were even bigger, plus the city of Austin would never have let me build back there."

Dabney says he pointed out to Embesi the problems with the Williams property across the street because he was concerned about that tree. Concerning the trenching, Dabney says he was limited by the position of the tap location into the city's sewer line; he says he dug trenches shallow enough so that only minor roots were cut and that Embesi responded that Dabney had not followed his recommendation and the area should be inspected by Dabney's own arborist for further treatment; however, Embesi did agree that some of the other options Dabney might have considered in the limited work space would have been even more damaging.

Dabney says he has never cut down a tree hoping to skirt the law. "In fact, I've got another lot over on Daniel Drive that had two elm trees in the front yard, and there was a neat old house on the [lot] ... and I literally had to cut that existing home in half in order to get it out of the lot without hurting either one of those trees. Neither one of those trees were protected size, but to me, those trees add intrinsic value to the property. I've never cut down a protected tree or anything like that."

Dabney does say that compliance with the law can restrict a builder's options. "Just from a builder's standpoint, it really makes a difference now when I go to look at a piece of property. Not only do you have to look at the property's location and the surrounding area, but you also have to look at the protected-size trees on that property, and there's been a couple of really nice properties that I would have loved to have purchased, but because there's that great big, protected-size tree growing maybe four or five feet away from the house in the back yard, it ends up being pretty much in the center of the lot, and you have to stay so many feet from the curb, so you end up with no building footprint left to build on. ... That protected tree is really limiting what that lot can be used for in the future. It's kind of a double-edged sword."

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A Green Shade

Sitting in the kitchen of her small bungalow on Pruett, Alguire outlines suggestions she and her allies have for strengthening the Tree Preservation Ordinance, which they eventually plan to bring to the Zoning and Platting Com­mis­sion. They want a direct yes-or-no question about whether any 19-inch trees are on a building site, and they want it to appear on demolition and relocation permits as well as building permits. They also want increased fines, a public notice requirement when a Tree Ordinance Review is under way, utilization of other city inspectors already on-site for protected tree reporting, and a handout to explain recommended practices for construction near trees. (See "Tweaking the Tree Ordinance.")

Keith Babberney is chair of the city's Urban Forestry Board. Speaking only for himself, he said those ideas all sounded fine to him and noted another suggestion that is already working its way through the city's boards and commissions system is a new protected class: the "heritage tree," one of special note, perhaps larger than 24 inches, that could only be cut down after special scrutiny, such as public input at the commission level.

Even these proposals won't do enough, says Alguire. She has a McMansion also going up next to her place. She's happier with those builders, describing them as "responsible," but: "Even doing things legally, about half the tree canopy came down. We're losing a lot of 100-year-old trees that aren't quite 19 inches. And it's beneficial to have these around our houses to deal with the urban heat island effect, especially this close to Downtown."

Babberney added: "There are financial ramifications to losing trees in the city limits – it's not just about we have to individually pay more for electricity because our house gets hotter because our trees are gone; it's reaching a point now where electricity is going to be an issue: Can we provide enough energy to meet all the needs of all our customers? The city's going to have to deal with that in the form of extra power supplies."

Murphy doesn't disagree with Alguire, but his professional perspective gives him a different take on mature trees: "We can't really rely long-term on those trees," he says. "Relying solely on those big trees for the future of the urban forest doesn't work. ... The way I think about it all the time is that it's important to preserve our biggest and best trees in Austin, and it certainly is an important part of maintaining our character, but we also really need to focus strongly on the future generation and planting trees for them. So I think reforestation and replanting is as big or maybe even a bigger issue in some cases than just preserving existing trees. So it really is a holistic approach you have to take to deal with it."

That causes him to de-emphasize the punitive aspect of the ordinance. He wishes stiffer fines were possible, "But typically we have a long history that, when we have that situation, what we want to do rather than get $2,000 – that goes into the general fund, and who knows what it gets spent on – is we usually want them to plant more trees back so that we can have new trees planted and they can grow for the future.

"I know it really is tragic when a large tree gets removed," Murphy concludes. "It's such a passionate thing for people, and I fully understand that it changes people's lives and their quality of life when a tree near them or in their neighborhood gets removed."

It's a passion painfully comprehended by Tom Penn and his neighbors. "We need mature trees," Penn laments. "We can't just line everything with crepe myrtles."