Heritage Trees: Size Does Matter

City arborist Michael Embesi sizes up a tree. (Photo by John Anderson)

Austin is a city of tree huggers – it's a badge we wear proudly. But can Austinites get their arms around a tree with a 24-inch diameter? Or a 30-inch one? That's the question with which City Council will grapple at its Feb. 4 meeting, when it hears city staff's proposal for a "heritage tree" protection ordinance.

About two and a half years ago, the Chron­­icle spotlighted the city's current tree protection ordinance, which mandates penalties for chopping down a tree of 19 inches in diameter or greater without a permit – the thrust of the article being that the law lacks real teeth (see "Clear-Cutting Austin," Sept. 21, 2007). With a penalty of only $2,000 per tree, some developers simply viewed the fine as a cost of doing business. "The fines are meaningless," complained one interviewee. "On a half-million-dollar project, a builder will spend more than $2,000 just buying lunch for his workers."

Under a new ordinance that's been wending its way through the city's boards and commissions process, the protection for those 19-inch trees would be slightly strengthened, but, more importantly, a new class of protection would be created: Trees with a 24-inch diameter or greater would now be classified as "heritage trees." Whether this will really have any effect is debatable, though, because state law forbids raising that $2,000 penalty.

The key difference in the new classification is that while the current law makes it relatively easy to remove a protected tree by simply getting the city arborist to agree to a mitigation plan (usually the planting of new trees), 24-inchers under the new ordinance wouldn't be removed unless they are in very poor health, they pose a safety hazard, or a number of alternatives that might make removal unnecessary have been considered and ruled out.

And then there's the real biggie, also a point of contention: While permission to remove most heritage trees could be granted administratively by the Planning and Development Review Department, removal of one with a diameter of 30 inches or greater would require permission from the Land Use Commission after a review by the Environmental Board and possibly the Urban Forestry Board.

Trans­lation: public hearings. That doesn't sit well with the Real Estate Council of Austin.

RECA – often painted as the bad guy in enviro vs. developer wars – says it supports the current ordinance and even the creation of a heritage tree ordinance. But the Land Use Commission hearings would lead the process down the wrong path, says RECA Vice President Jeff Howard. "We hear the concerns of people who would like to see a stricter ordinance for our biggest and best trees and would like to see it stricter in terms of removing those trees," he says. But as for hearings on 30-inch-plus trees: "The concern there is not just the timing and expense of going through that process ... but there's also the concern that we will take what ought to be an objective position made by professionals considering all the various site constraints in a development and make it a political decision. ... [It] could potentially make the trees straw men for opposition to a project so that it will be a tool to oppose development rather than a tool to enhance the urban canopy."

The ordinance has strong support from the city's Urban Forestry Board, says board Chair Keith Babberney. The value of such trees "goes beyond the touchy-feely," he says.

"The urban forest should be viewed as part of the city's infrastructure," he says. "It provides stormwater remediation, air filtering, shading, which reduces UV degradation of pavement. It reduces the heat island effect; it reduces the demand for electricity. And trees are the only part of our infrastructure that has any potential to increase in value. And 90 percent of our infrastructure benefits come from 10 percent of our trees – you can plant 100 1-inch trees to replace a 100-inch tree, but you don't get the return on that investment for many, many years."

But will the ordinance make any difference without stronger financial penalties? "The way it's written now, it needs some more work," says Babberney, although he didn't specify what that might be. "It's hard for me to ever say it has enough teeth, but I'm certainly on board with any improvement that's better than what we have now. If we can do more later, we'll do more later."

Babberney defends the public process about which RECA worries. "It doesn't [currently] take much to get a tree approved for removal," he says. "It only takes one person, a city inspector. Not that those guys aren't doing enough now to protect trees, but one person having a bad day or getting strong-armed by the person requesting removal, any number of factors, might lead to a bad decision, and there's not much recourse to that – once the permit is given, the tree comes down."

The ordinance also has the support of the Save Our Springs Alliance.

Read the draft text of the ordinance at www.cityofaustin.org/trees. The final public hearing on the ordinance before it goes to council will be before the city's Zoning and Platting Commission on Tuesday, Feb. 2.