Tree Protection Ordinance Debated, Deferred

Friday, December 4, 2015, 3:02 pm
By: 
Michael Teager

Above: The old white oak tree on Spartan Avenue, on the site of the proposed “White Oak Place” development.

The third and by far longest of three public hearings at this week’s City Council meeting centered on Ordinance No. 1363, the so-called tree protection ordinance. If it were to pass as proposed, it would protect certain trees within the City of East Lansing by requiring permits before anyone trims or cuts a tree that has been designated “protected.”

Debate at the Council meeting centered on whether the ordinance is necessary, whether it could be better written, whether it has been adequately vetted by experts, whether it will interfere with utility maintenance, and whether it unduly violates the rights of the owners of properties that might include “protected” trees.

Ultimately Council referred the matter for discussion to several commissions, but did pass, on a 3-2 vote after a lively debate, a moratorium that will prevent some cutting. The moratorium is set to expire on May 1, 2016, or thirty days after the “tree protection” ordinance is passed, whichever comes first.

Tree protection isn’t an entirely new topic for City Council. Last October, Council passed a resolution in support of trees aimed at “enforc[ing] existing policies to protect trees throughout the City and investigat[ing] additional protections for the City’s tree canopy.”  This July, Council approved a redevelopment proposal for a site plan that involved the preservation of a 265-year-old white oak tree on Spartan Avenue. (As we reported, the developer is planning to request a $9.5 million Brownfield tax increment financing plan for the “White Oak Place” project.)

Before the public hearing opened this Tuesday night, City Attorney Tom Yeadon explained that he had drafted the ordinance at the request of Mayor Mark Meadows. To do so, he consulted and imitated similar ordinances from other jurisdictions. As Yeadon drafted it, the proposed ordinance states, “Certain trees within the city deserve to be protected because of their unique and intrinsic value to the general public due to their size, age, historic association or ecological value.”

According to the drafted ordinance, four groups of people may propose designation of a tree as “protected”: property owners, the Planning Commission, the City Engineer, and a neighborhood association. A hearing would then be conducted and include proponents, the property owner, and COEL staff recommendations.

In considering whether a tree will be designated protected, Council would look to the following defining characteristics: whether the tree is of an important local species; the historical nature of the tree (a minimum age of fifty years was proposed for nominations); whether the tree contributes to the character of the community; and the tree’s ecological value (e.g., its effect on stabilizing soil or providing habitat for native species).

If, based on the above, a tree were designated by Council “protected,” it would be placed on a City registry, with notices sent to interested parties (e.g., property owner, utility companies, etc.). Once protected, cutting or otherwise trimming such a tree without first obtaining the proper permit would result in a misdemeanor penalty and fine.

Yeadon closed his initial remarks by saying that Council would have the power to both add trees to the protected registry and remove them. Removal of a tree from protected status could be a consequence of various situations, including the tree becoming diseased beyond hope.

An unusually large number of speakers participated in the public hearing following Yeadon’s introduction.

Chris Thelen of Consumers Energy took to the podium first, saying that the proposed ordinance would prohibit utility companies from properly maintaining their property and that therefore it constituted a “governmental taking.” Thelen claimed that passing the ordinance could make the City liable for trees that endanger infrastructure.

Councilmember Erik Altmann asked Thelen if the Meridian Township heritage tree program is a hindrance to Consumers Energy, whether Thelen worked in any jurisdiction with such an ordinance that protects trees “broadly defined,” and whether such programs interfere with service. Thelen, consulting briefly with a forester colleague in the audience, answered that he wasn’t aware of such an ordinance existing in their operating territories.

Mike Vasievich, of Wembley Lane in the Pinecrest Neighborhood, was next at the podium and also provided written comments. Vasievich is retired after 32 years with the U.S. Forest Service, and is a self-described “active participant and resident leader” regarding the city’s ecological health, saying, “Basically, I’m here to speak for the trees.”

Vasievich said he was concerned with both the “uncomfortably short” window in which the ordinance was brought before Council as well as its “vague and ambiguous” language. As an example, he said that a protected class is proposed but that invasive species and other classes of trees are not identified. Vasievich repeatedly called for the City to request review and input by area professionals, many of whom he then listed. He noted that, while East Lansing has been a recognized Tree City U.S.A. for over a quarter-century, COEL has no forestry expertise on staff or retainer, unlike Lansing and Ann Arbor. (See Vasievich's submitted comments here.)

Calvin Jones of the Lansing Board of Water and Light (BWL) briefly spoke in opposition to the proposed ordinance, citing BWL’s “strong reservations.” Jones said that it would hinder BWL’s ability to “maintain vegetation” and therefore impact the human community’s “health, safety, and general welfare.”

Like Consumers Energy’s representative Thelen, BWL’s representative Jones cited a potential “governmental taking” of private property through this ordinance. Mayor Pro Tem Ruth Beier asked Jones if, via his statement, BWL was going on record as being concerned about the rights of East Lansing’s private property owners. “That’s right,” he replied.

The backdrop to Beier’s question to Jones about property rights is the fact that BWL is suing East Lansing homeowners Richard and Conni Crittenden who have challenged BWL’s “vegetation management program” as unreasonably aggressive and ill informed. BWL is suing to obtain the court’s agreement that it has the right to do what it says it must on the Crittendens’ Glencairn property, and ultimately on the properties of all BWL customers. Beier consequently seemed surprised to hear Jones objecting to the proposed ordinance on the basis of interference with homeowners’ rights and property.

The same Richard Crittenden, of Ardson Road in Glencairn, spoke next, offering support for the ordinance and criticism of BWL’s vegetation management program. Crittenden said that BWL responded to the 2013 ice storm with a program developed “unilaterally and without public input,” resulting in seeking to cut a three-foot clearance on either side of a power line (six feet total if branches are on either side), extending from the ground to the sky. Crittenden has called this method of cutting a six-foot wide swath around any single BWL wire “clear-cutting.”

Crittenden reiterated that BWL “does not share the city’s values regarding vegetation” and thanked COEL for now following the requirement for annual permits for vegetation trimming in right-of-ways, which it had not been previously doing (read more). He claimed, however, that BWL wasn’t honoring the permit process. He also said that, in a discussion with a BWL representative, he was told that, once BWL is finished with the vegetation program, “[residents] won’t recognize the neighborhood” in which they live.

Matt Hagan spoke next, giving his address as the address of his business, Hagan Realty, a major student rental landlord in East Lansing. Hagan said he opposes the ordinance, citing motivations both as a business owner and owner of a private residence. He opposed the idea of paying property taxes and then being told what he can do on his own property. He used the example of someone wanting to cut down a tree to put an addition on their house, and said this ordinance would prohibit that.

Hagan also suggested that the ordinance would yield a “deed restriction” that could hinder selling a property with a protected tree.  As a landlord, he cited the need to trim or cut trees in the event of roots pushing in foundation walls or sewer lines, branches on roofs, and obstruction of power lines. Meadows asked if Hagan was concerned about restriction in general or simply the degree, to which Hagan replied that he should be allowed to do as he pleases on his property.

Alice Dreger, of Sunset Lane in Oakwood [ELi’s publisher and board president], spoke next to offer “an Oakwood perspective.” Responding to earlier calls for further input from experts, she said that experts can be used when carrying out the ordinance and not just in the crafting stages. In reference to Hagan, whom she described as a responsible and responsive landlord, Dreger commented that homeowners aren’t allowed to do absolutely whatever they want on their property; for example, they are not allowed to build a gas station in a residential neighborhood.

Dreger labeled BWL as one of two threats to the Oakwood neighborhood trees, saying that its vegetation management program could result in a “thirty percent” tree loss in the neighborhood because of the houses’ close proximity to each other, a situation that results in power lines running all through the old-growth neighborhood. Dreger said the other threat is landlords, who she said do not live in the old neighborhoods. She suggested that it would help to require that new trees be planted when old-growth trees must be felled. Dreger said she believed that, in anticipation of the ordinance, cutting has already begun on rental properties.

Pat Wolff, President of the Tamarisk Neighborhood, briefly spoke to echo the written comments requested of and submitted by members of the Commission on the Environment. He was concerned about the speed at which the ordinance was being considered.

Bob Steele, of Oxford Road in Glencairn, spoke in opposition to the ordinance, both on its substance and speed. He said that he was “very much interested in having electricity in my home.” He wanted BWL to be able to keep trees clear of power lines, and said that Glencairn is a beautiful neighborhood with plenty of trees. Steele said that, after paying property taxes in Glencairn for forty years, he didn’t want the city engineer to decide how to handle his property. He wanted “common sense to rule.”

Closing the public hearing, Vasievich quickly took the podium once more to respond to Dreger, saying that further review is necessary because the ordinance would be hard to administer as written.

With the public hearing closed and the matter given to Council for discussion, Altmann spoke to the ordinance first, saying, “I was the one who pressed to get the ball rolling.” He referenced trees having been a point of discussion for the Historic District Commission, the Planning Commission, and throughout his canvassing and engaging with residents. Citing the 2013 ice storm, Altmann said that, while he didn’t want to take sides, he acknowledged both the tension between residents and BWL and the need for balance between trees, power, and property rights.

Altmann continued that he appreciated all comments, and then spoke to the challenges made about the speed at which the matter had gone to public hearing at Council. Whereas in the past Council would typically hold a public hearing at the end of a process, Altmann said that a lot of useful input was generating by placing the hearing at the beginning of the process.

Councilmember Shanna Draheim echoed Altmann’s remarks, saying, “It’s much more critical to get it right up front” than relying on expertise “as we go.” She said it was critically important, in part in terms of cost savings, to get policy right at the start. Noting that she’s an environmental professional by training, Draheim said she shared the concerns of many at the podium and suggested further review was needed. She also asked about the potential cost of implementing an ordinance of this type, referencing a desire for a revenue-neutral approach to government.

Meadows suggested deferring further Council discussion until the first meeting in March, with the ordinance referred out to various City commissions and experts in the interim. Draheim moved to defer, seconded by Councilmember Susan Woods.

Woods said that while property rights were on one side of the issue, she wanted to know about BWL’s rights and their easements and whether COEL could prevent them from cutting. Yeadon responded that COEL can’t interfere with private easements. However, if a protected a tree were on an easement, Yeadon said that the city engineer would authorize and supervise cutting.

Altmann reiterated that the Council is “going to hear about” the BWL vegetation management program when it resumes, and that that particular issue should be included in the referring out to commissions and experts. He asked Yeadon if similar ordinances “function well in other jurisdictions.” Yeadon said that, because similar ordinances are in effect and that some have been upheld when challenged, that he believes they do.

Piggybacking on Altmann’s comments about Council’s process, Meadows addressed the speed concern, saying this may be more typical of the way Council operates in the future. He expressed a desire to have public hearing be the “beginning of public participation” on an issue and not the end of it.

Deferral of the matter until Council’s first meeting in March 2016 was moved and passed unanimously. The identified commissions to which the City will refer are the Commission on the Environment, the Planning Commission, and the Historic District Commission. Other commissions and area experts may also be consulted.

Altmann then immediately made a motion to have Council approve a resolution to establish a moratorium on the issuance of permits for land clearing and tree removal, which would remain in effect until May 1, 2016 or 30 days after the adoption of the new ordinance, whichever came first.

Yeadon described the proposed moratorium and said that it was borne out of a concern over cutting before the ordinance is finalized, as there currently aren’t broad protections in place. Beier asked about exceptions for dead trees, to which Yeadon clarified that the moratorium is on permit issuance only, and it therefore wouldn’t apply to existing exceptions.

Draheim described the proposed moratorium as “incredibly restrictive.” Meadows asked her if she would be open to a shorter moratorium (ending near the aforementioned March meeting), to which she said no. She then asked Lahanas if the staff could supply data on how many trees are generally cut (both with permits and without permits as excepted by current code) and whether evidence exists of undue cutting occurring. Lahanas replied that he would consult the Engineering Department.

Council adopted the moratorium 3-2, with Altmann, Beier, and Meadows in favor and Draheim and Woods opposing. (This is the same division as the evening’s earlier commission appointment vote.)

 

If you want to watch a video recording of Tuesday’s discussion of this matter, click here.

Reminder: Citizens can speak at or write to City Council on any issue, including those not on the agenda. Email can be sent to Council by writing to council@cityofeastlansing.com.