Attorney affirms: City of Salem screwed up on US Bank tree cutting

I've gotten some lawyerly confirmation of what I said in the "Looks like US Bank trees were cut illegally" post written three days ago.

Not being an attorney, I asked Sean Malone, who is, to offer an opinion about whether opponents of the tree removal application submitted by US Bank and approved by the City of Salem had the right to appeal the decision -- which City staff have been telling me isn't allowed by Ordinance Chapter 86, "Trees and Shrubs."

After reviewing the ordinance, my analysis of the issue, and emails I'd gotten from City staff laying out their view of Chapter 86's Appeal section (86.160), Sean, who specializes in environmental law, concluded that affected persons, which includes those who testified in opposition to the US Bank application, did indeed have a right to appeal. 

Here's his letter, received yesterday, which I've sent to a bunch of city officials: councilors, public works director, city manager, mayor, urban forester, and a few others.
Download Memo to Hines re State Street Trees 4.19.2013 FINAL

I'm being really open with this issue because what has happened, and will happen, to those State Street trees is the business of everybody who cares about downtown Salem. Unfortunately, the City of Salem has a habit of doing the people's business out of view of the people.

Since I'm objecting to how the City has handled the tree-cutting, I want to behave otherwise. Plus, I'm a blogger. Ready, willing, and able to share what's happening in my life -- especially when it involves civic issues that should be as transparent as possible to public view.

Sadly, an appeal won't bring back the three beautiful trees killed for no good reason by US Bank, with the permission of the City of Salem. I walked by the scene of the crime this afternoon. Someone has placed memorial flowers on each sorrowful stump.

But I'm going to do all I can to make sure the remaining two trees are saved. Here's a photo I took today of the wonderful tree on the corner of State and Commercial.

It boggles my mind that US Bank executives and City of Salem officials don't think, "this tree deserves to keep on living." I've watched this tree become more and more beautiful during the thirty-seven years I've lived here. It's become a friend of mine. (If that sentence sounds stupid to you, you aren't a real tree lover.)

Walking down the sidewalk a bit, I was pleased to see that the other remaining tree (three have been cut down by US Bank; two remain) is leafing out nicely. It's been behind its sister to the west. Nice to know that the tree is just a late-leafer.

For a while, and I intend to work as hard as I can to make that a long while, the remaining trees are almost certainly safe from being cut down. (US Bank was required to hold off on cutting the last two because migrating birds were in the trees; thank you birds!)

I've notified the City of Salem that based on my attorney's opinion letter, I am appealing the City of Salem's failure to allow opponents of the US Bank tree-cutting application an opportunity to appeal. It would be unethical, and I believe illegal, for the trees to be cut down now that the City knows a legal challenge is being made to its interpretation of Chapter 86.

As Sean noted at the end of his letter, the affected persons who didn't get a chance to appeal the tree removal decision could challenge in Marion County Circuit Court the City's apparent failure to abide by its own ordinance.

Carole Smith, one of the opponents who wasn't able to file an appeal, has been helping me. Her comment on one of my blog posts about the tree cutting clued me in to the fact that those who testified at meetings of the Shade Tree Advisory Committee weren't notified of the City's decision until the day that marked the deadline for appealing.

City staff have told me that an application to remove five large, gorgeous trees in Salem's Historic District is just like an electrical permit application -- which can't be appealed by anyone other than the applicant. I've told them, "That's ridiculous." 

Leaving aside the fact that, in my attorney's opinion, the City ordinance clearly gives affected persons the right to appeal, there are big differences between a permit to do private electrical work and a permit to cut down beautiful trees on a public right of way/sidewalk in downtown Salem.

Every person who works in, lives in, or visits downtown Salem is affected by the attractiveness, livability/workability, and overall ambience of the Historic Area. Public streets are the public's business. It's absurd to argue that only US Bank is entitled to appeal a decision on its application (meaning, only a "no" decision can be appealed, not a "yes" to cut down the trees, as the City is claiming).

Well, it's now up to the City of Salem to decide where we go from here. Carole Smith and I, along with other opponents of the seemingly illegal tree-cutting, hope that the City will acknowledge that opponents had a right to appeal.

An apology, plus issuance of a revised order that requires the remaining two trees to be preserved, needs to happen. Then everyone involved can sit down and figure out how to prevent this sort of tree-cutting debacle from ever happening again. Otherwise, it's off to Circuit Court we go.

Chapter 86 needs some work. It only addresses planting trees in the Historic District, not removing them. This relates to one reason I'm confident that opponents would have won an appeal; neither US Bank nor the City ever provided a believable justification for removing the trees. 

Any problems with the five trees could have been handled by judicious pruning. So I've submitted an application to the City of Salem, asking that the two remaining trees be pruned to the extent necessary to have them conform with Historic District norms.
Download Pruning Permit Application
Download Addendum to pruning application 

I look forward to discussing my application with the Shade Tree Advisory Committee. I'll tell them that I wanted to address the question of pruning now that chances for saving the last two trees have improved, given my attorney's conclusion that opponents have a right to appeal. 

If there are any problems with those two beautiful trees, let's do whatever pruning is deemed necessary by licensed foresters and other tree experts. This, of course, is what should have been done in the first place by US Bank and the City of Salem.

Three stumps on State Street are three too many. Preventing any more unnecessary tree-killing is part of my new Retired To-Do List. Hopefully key staff at the City of Salem will realize this also should be their goal.

Does anyone really believe that downtown Salem would be better off with only buildings and cars in this picture? (along with a few small barely visible trees on the other side of State Street)

Comments

[Jim Scheppke]

Thank you Brian for your good work on this. Maybe you would like to come to the public hearing on the 3rd Bridge tomorrow night and argue the case for saving hundreds of City trees by pulling the plug on that boondoggle. It is another example of the City ignoring the opinions of many citizens and doing the bidding of business interests who are in charge of this town. There is lots of good information about the hearing and the staff proposal on the NO 3rd Bridge Facebook page. Thanks again for your advocacy.

[Lisa]

Thank you! As a fellow tree lover, but some one who is currently dealing with health problems, I've wanted to find a way to help with this but have had to watch from the sidelines. I'm so happy there are people out there fighting for the remaining trees.

[Blogger Brian]

Jim, I probably won't be able to make the public hearing. But I strongly support your efforts to stop the 3rd bridge. It just doesn't make sense.

The US Bank trees and 3rd Bridge are similar in their overkill. If there were any problems with the three trees that have been cut down, they could have been handled with some judicious pruning.

Likewise, problems with Salem's current bridges (earthquake readiness, approaches, etc) could be handled with some judicious renovation at a much lower cost than an entirely new giant "freeway" bridge.

Give 'em hell at the hearing. In the very nicest, most respectful way.

[Blogger Brian]

Lisa, thanks. I'm doing this for everyone who loves the trees. I really appreciate your comment. Fighting City Hall sometimes can feel like a lonesome task, because there are so many city staff arrayed against just a few opponents of the tree-killing. But there's plenty of people like you out there. We just need to make ourselves heard.