As forests burn, Salem parks board OK's cutting trees without a permit

It was quite a juxtaposition last night.

While wildfires burn forests across Oregon, I watched the Salem Parks and Recreation Advisory Board (SPRAB) say "no problem" to a developer cutting down two large White Oak trees without a permit, after which Peter Fernandez, the Public Works Director, granted an after-the-fact tree removal permit 105 days after those trees, and three others, were removed.

This was a horrible decision for reasons I'll describe below. The only good news is that the vote to deny an appeal by the Southwest Association of Neighbors (SWAN)  of the after-the-fact permit being issued was close, 5 to 3.

The three members of the SPRAB board who did the right thing were Micki Varney, Tony Caito, and Keith Norris. The five SPRAB members who said cutting down trees in a public right of way without a permit is OK were Alan Alexander, Woody Dukes, Dylan McDowell, Paul Rice, and David Fridenmaker.

There was a lot of discussion about the merits of the SWAN appeal. Here's what bothered me about the final 5-3 vote to deny the appeal, which you can read here.

(1) This establishes a disturbing precedent. Glenn Davis, a Public Works Department employee, said that it is common for electrical, plumbing, and other permits to be issued after someone has started work without a permit. That was surprising news, but in those cases unsatisfactory work can be reversed.

Davis said that the City of Salem has never issued a tree removal permit after the trees already had been cut down. Thus the bad SPRAB decision sets a disturbing precedent: developers now know that they can cut protected trees first, and get a permit later.

In this case, Thomas Kay was the developer who failed to follow the rules and got a permit anyway. From now on, other developers may do the same. It's crazy that a majority of the Salem Parks and Recreation Advisory Board members thought this was a good thing.

(2) The appeal process was blatantly unfair. In my experience, appeals of a decision by a government body give equal time to the person(s) making the appeal and those who made the decision being appealed. But last night Glenn Davis and Thomas Cupani, a City of Salem attorney, got way more time than Ted Burney, who argued the SWAN case in favor of the appeal.

For a long time I thought Cupani was an attorney for the developer, Thomas Kay, since he kept defending the tree removals without a permit. Eventually I realized that he was an attorney with the City of Salem. Since the Public Works Department is part of the City of Salem, this meant that the developer's representative and the two city staff were on the same legal side.

Somehow it didn't seem strange to the SPRAB members that they were hearing from the defendants of the appeal hugely more than from those who supported the appeal -- Burney and several residents of the Salem Heights Avenue neighborhood where the trees were cut down without a permit.

(3) A central basis for the appeal was ignored. In the dystopian 1984 novel by George Orwell, it was said "War is peace. Freedom is slavery. Ignorance is strength." Discussion at the meeting I watched last night didn't rise to quite that level of absurdity, but it was close.

One oft-heard argument basically was The trees were cut down without a permit, so it makes sense to issue an after-the-fact permit to remove the trees, since they already have been cut down. The more sensible counter-argument was, How can you issue a tree removal permit for trees that don't exist?

A SPRAB member who voted in favor of the appeal noted that this is akin to someone adding money to a parking meter after it has expired. That won't stop you from getting a ticket if the violation was discovered by a meter patrol person. However, the SPRAB board was fine with granting a tree removal permit to a developer after the trees had been cut down illegally.

(4) Reasonable alternatives existed to removing the trees. With the time he was given (again, much less than what those supporting issuance of the after-the-fact permit got) Ted Burney did an excellent job explaining why reasonable alternatives existed to cutting down the two White Oaks and another tree on public property.

If the developer had applied for a permit before the trees were removed, those alternatives could have been considered by City of Salem staff. Burney described how a slight change in the alignment of street improvements would have left room for the White Oaks to remain.

Sure, perhaps that would have been impractical. But it might have worked. We'll never know. Burney quoted from a city ordinance that says reasonable alternatives must be explored before street trees are removed. City staff claimed that previous land use decisions ruled out any alternative other than cutting the trees down.

However, it seems indisputable that the land use process and the tree removal permit process are separate legal entities. The SWAN neighborhood association and others who wanted to save the trees should have had a chance to argue their case before the trees were cut down, not afterward. 

(5) A Public Works inspector watched the trees being cut down without a permit. A final disturbing fact that came out last night was brought up by the developer's representative. He said that a Public Works inspector was on the site as the trees were cut down and didn't say a thing as they were removed without a permit.

Glenn Davis made a feeble attempt to excuse this by saying that inspectors are looking for other things, like whether erosion control measures are being carried out. 

So apparently staff sent out by the Public Works Department to inspect what's going on at a construction site don't care whether a permit has been issued for the work. I find this hard to believe. Seemingly the most important thing an inspector should do is determine whether what's been done is legal.

But not at the City of Salem.

Lastly, here's some comments on a post regarding the SPRAB vote on the Salem Tree Advocates Facebook page. I heartily agree with them. I've corrected a few typos.

I think that SPRAB's majority decision to go along with the Public Works Director decision to retroactively approve a tree removal permit without any expression of disapproval really disqualifies it from any role as a public advocate or watchdog for our trees. SPRAB is clearly too captive to staff to think outside of the framework that they're provided with. Thanks to members Micki Varney, Tony Caito, and Keith Norris, who hopefully represent SPRAB's future. And thanks, too, to Counselor Vanessa Nordyke, for advancing the idea of an urban forest commission.

The city is no longer worthy of the Tree City designation. I am disappointed they have betrayed our trust.

This sends a huge message to developers to just cut down trees at will and ask Peter [Fernandez] after the fact for forgiveness. At minimum there should have been a huge fine.

Developers already realize they can get away with virtually anything while operating in the kingdom of Peter Fernandez. The developer in this case, Thomas Kay, did virtually the same thing several years ago in my West Salem neighborhood. In that case, his permit required him to save a number of trees in a beautiful Doug Fir grove. The first thing he did was to cut them down!!

Although his name was never uttered, throughout last night's hearing there was continual reference to "The Director" who, in the context of Salem government, is synonymous with "The Dictator". Salem's counterpart to Attorney General Barr, Thomas Cupani, twisted and otherwise made a mockery of Salem Ordinances. So long as Peter Fernandez continues his roughshod rule over Salem's City government our "Tree City" certification should be suspended, as noted above. While Micki Varney and two other members of SPRAB, Tony and Keith, bravely sought to follow our ordinances, rules and regulation, the other 5 members cowardly crumbled when confronted by Fernandez' thuggish henchmen.

Comments

[Aileen Kaye]

Brian,
Can you try to get a comment from the mayor and each cc regarding their opinion on this and what action they plan to take?

[Les Margosian]

Brian, I share your puzzlement over staff's impassioned defense of developer Thomas Kay's malicious disregard for Salem Ordinances governing tree removal. It should be noted that Kay is also an attorney and his disregard for the law would probably warrant a Bar complaint. The City of Salem Attorney unleashed a barage of legalistic gibberish which seemed to confuse and intimidate the five pathetic SPRAC members voting to endorse Fernandez' blatantly illegal action. The integrity of Salem's governance in this as in many other cases is so appalling as to defy description. To demoralize ourselves even more, there's no recourse. City Council members have decided that their main role is to be staff's palace guard against the citizenry's discontent and defend them regardless of how wrong they are.

[Skyline]

"Wyden: Smoke suffocating the West Coast is ‘debt coming due’ on ‘lousy’ forest management"
Well, well, well, well, weeeeeeeel, well:
https://www.oregonlive.com/politics/2020/09/wyden-smoke-suffocating-the-west-coast-is-debt-coming-due-on-lousy-forest-management.html

Thank heaven's Rong Whythen doesn't feel the need to run from the failing liberal decisions that are 100% the cause of our current air quality.
At least ONE democrat in the entire state of Oregon has the balls to accept responsibility.

[Skyline]

100% man made?:
https://www.yahoo.com/tech/m/3c3f12a0-6edc-3fed-8c81-2faa7bd12499/california%E2%80%99s-wildfires-are.html

[Skyline]

"Hundreds of thousands of trees’ need to be removed from OR-22, nearly 300 miles of state highway closed indefinitely
https://www.oregonlive.com/commuting/2020/09/hundreds-of-thousands-of-trees-need-to-be-removed-from-or-22-nearly-300-miles-of-state-highway-closed-indefinitely.html
Not one or two or 3; HUNDREDS OF THOUSANDS!!!
By the way; How are the spotted owls doing?