After reading more closely the City of Salem document dated March 12, 2013, non-pithily titled "Background, Findings and Decision regarding the removal of the State Street Trees (302 State Street S: Ladd and Bush Building -- US Bank)," my initial opinion expressed yesterday hasn't changed:
My wife and I are long-time land use activists.
We've been involved in quite a few land use decisions at the Marion County level. We're familiar with ordinances, findings of fact, hearing officers, and, yes, how public officials are swayed by "political" considerations -- using that word in a broad sense.
After a first reading of the decision, I'm struck by how insubstantial the concluding Basis of Decision section is. Worse that I expected, after reading newspaper stories about the tree cutting.
Like I said, this document screams at me, we've got to find a way to justify doing what US Bank wants, even though tree experts and the city Shade Tree Committee have concluded that the trees should remain.
Another Statesman Journal story about the removal of five beautiful mature Japanese Zelkova trees ran in the paper today. Reporter Michael Rose included some nice quotes that echo how I see this fiasco. One is from me. I'll boldface the echo'y stuff.
An act of civil disobedience has Salem residents talking about the value of iconic street trees versus the demands of a downtown business.
David Rosales, the owner of La Capitale and Bar and Andaluz, was arrested Friday by Salem Police. He faces charges of trespassing, disorderly conduct and criminal mischief after a confrontation with U.S. Bank employees over the removal of trees outside of the bank’s historic Ladd and Bush branch at 302 State St.
“I would like to see people pay more attention to our town and the beauty here,” Rosales said Monday. The restaurant owner said he was “sick of the old way” decisions have been made in the city where he grew up.
...Rosales quickly found supporters on social media. Brian Hines wrote on his blog: “Way to go U.S. Bank. Horrible, PR, marketing decision.”
Claudia Howells, another Salem resident who wanted the trees spared, said the situation is frustrating. The city’s shade tree committee had made a recommendation against removing the trees.
“You go through the appropriate process and it doesn’t make any difference,” Howells said.
Salem resident Mark Wigg said the trees were sacrificed without a good explanation.
“I haven’t heard a straight line from these people yet,” Wigg said of his discussions with U.S. Bank.
My feelings exactly. Read the City of Salem decision yourself. See if you agree with the top five reasons I'm irked by it. Here's the PDF file.
Download US Bank State Street Trees decision
(1) No one appealed the decision to cut down the trees.
This is perplexing. I'm trying to figure out why, given the number of people who urged the Shade Tree Advisory Committee to save the trees. One of these people left a comment on an earlier post saying that the decision was received on April 5, the day the appeal period expired.
This needs some explaining. Tonight I wrote Public Works staff, asking for a list of those who got the March 12 decision, when it was sent to them, and how it was sent (mail, email). If opponents didn't get timely notice of the approval decision, this could explain why no appeal was filed. However, if the opponents failed to appeal for some other reason, I'm irked at them also.
Why? Because it seems to me this decision could have been overturned by a hearings officer on appeal. Which gets me to my next four Irked Reasons.
(2) "Good Old Boy" network is (disturbingly) alive and well in Salem city government.
Kudos to whoever wrote the decision for being so open about the mutual admiration thing going on between the Director of Public Works and Ryan Albritton, US Bank Region President. Check out p. 3, para 2.
Albritton "verbally appealed" after the second meeting of the Shade Tree Advisory Committee. Interesting. In my experience with land use appeals, usually some sort of formal written appeal is required. But at the City of Salem, I guess a US Bank President can just walk in and have a chat with the Public Works Director if he doesn't like how things are going with his pet project of killing five trees along a public sidewalk.
What was Allbritton disturbed about? Amazingly, a "lack of proper representation at the Advisory Committee meeting." In other words, US Bank apparently didn't send anyone to the meeting, because Albritton figured the city's decision was wired in his favor. And why did he think that? Because Public Works staff had been supportive of removing the trees several years prior, and Allbritton thought a decision in his favor would be "pro forma."
Really disturbing. At least to people like me, who believe that government officials should treat everybody alike when it comes to enforcing laws, ordinances, regulations, and such. (Yeah, that isn't how things work in the Real World, but I'm in favor of a Better Unreal World.)
The document states that the Director of Public Works did some personal recollecting, and by golly, he did remember some prior discussions about the "promised" removal of the trees. I'm not sure why "promised" was put in quotation marks. Maybe it is related to footnote 3, which says "The record indicates, however, that the Urban Forester did not recommend removing the State Street trees in either hearing before the Shade Tree Advisory Committee."
So the Director of Public Works had promised the President of US Bank that the trees could be cut down. However, a few inconvenient truths stood between that promise and it being fulfilled. Which gets us to my next Irk.
(3) City of Salem tree experts recommended saving the trees.
Three times. That was how many times the Shade Tree Advisory Committee said "no cut," along with the Urban Forester. It was three times, rather than two, because Allbritton's "verbal appeal" and his reminding the Director of Public Works about a prior promise to have the trees cut down led to another Shade Tree Advisory Committee meeting on January 9, 2013.
Result was the same.
Committee said "no cut." So now, even with the proper representation the US Bank president had decided to forego at the previous meeting, the committee had once, twice, and thrice denied the bank's request to remove all of the trees. Usually three strikes means you're out. But not if you're a US Bank president who had gotten a promise from the Director of Public Works that the trees would, somehow or other, be removed.
(Note: recently I talked with a homeowner in Salem whose sidewalk is truly being buckled by tree roots -- something that isn't happening at all at US Bank, though bank officials are wrongly claiming that the sidewalk is unsafe to walk on because of tree root damage. The homeowner said she asked the City for permission to cut down the tree. Her request was denied, even though she had a good reason. Guess you need to be the incoming president of the Chamber of Commerce, which Allbritton is, to get good service from the City of Salem.)
(4) US Bank isn't telling the truth about its liability concerns.
My wife called US Bank the day the first story ran about State Street trees being cut down. She was told by a bank manager that the main reason the trees needed to be removed was liability concerns: the sidewalk was, or would be, dangerous to walk on, especially for the bank's elderly customers.
Well, read page 5, para 3. The decision says that tree-caused damage to the sidewalk and curbs around the US Bank building had been repaired by the City. And it is the City's responsibility to repair damage to sidewalks caused by street trees. Not stated was an additional fact: the urban forester had said that the tree roots could be cut to minimize future damage.
Conclusion by the City of Salem: "As such, the liability argument by the tree removal proponents is not pertinent to the tree removal decision." Not pertinent. Yet this is the PR spin US Bank staff keep blabbing out when people ask, why are you cutting down those beautiful trees? Great question. Which still hasn't been answered. Certainly not in the decision that supposedly justifies the City's approval of the tree removal.
This gets me to my last Irk. Might as well throw in some well-deserved profanity.
(5) The City of Salem's "Basis of Decision" (p. 6) is complete bullshit.
I'm not a lawyer, but I've been involved with quite a few land use appeals and have worked closely with some of the best land use attorneys in Oregon. I've read lots of land use case law. I have a pretty good feel for what is a defensible land use decision, and what isn't.
I could be wrong (an ever-present possibility), but here's the reasons I consider the City's decision to allow the State Street trees to be killed to be highly legally dubious. Sure wish an appeal had been filed. Let's look at the four reasons the City gave for removing the trees:
1. The trees have grown well beyond their design size and obscure the sight lines to a historic building. In my reading of the City tree ordinance, I only found reference to "planting" trees in the historic district, not removing them. Trees grow. The city's urban forester said they could be pruned to restore sight lines of the bank building. Or every other tree could be removed, not all of them.
2. The tree branches of the existing trees are not of an open nature as required by code. Are you kidding me? The code, as quoted just a few lines above, says "only trees of a columnar or open limb structure... may be planted." Astoundingly, the opinion goes on to say "While the existing zelkova trees are columnar in nature, they are not of an open limb structure thus further limiting the sight lines to the building." Wow! Read that "or"!!! Columnar OR open limb structure. Code doesn't require an open limb structure. And pruning can create a more open structure.
3. The tree branches are closer to a historic building than is allowed by code. Again, the code speaks of trees not being planted too close to a historic building. After being planted, trees grow. If they grow too close to a building, you freaking prune them! There is no finding which states the trees can't be pruned. In fact, the urban forester said they could.
4. At least one of the trees may be impacting the adjacent stormwater system. Oh, wow. One...may be... So cut down every one of the trees because one...may be... Ridiculous. Infuriating. If dropping leaves are the problem, you could have called me. I'm 64; I'm not a multi-billion dollar company like US Bank; but I know how to rake and pick up leaves. I, along with many others, I'm sure, would have been happy to keep leaves out of the drain. And if roots were the problem, the urban forester said they could be trimmed.
Bottom line: this was a terrible decision by the City of Salem. Indefensible, really. Which makes it more distrubing that none of the opponents appealed the decision. As noted above, I want to learn why.
What seems clear, though, is that the City of Salem was desperate to approve the killing of the trees, and city officials had promised this to U.S. Bank before an application to remove the State Street trees had even been submitted.
This isn't the way city government is supposed to work. But from what I hear, all too often it does. This time, five innocent trees got caught in the crossfire. Three are dead and gone. I sure hope some way can be found to save the last two.