Appealing an Arborist's Decision

A picture tells a thousand words... this could not be more true when preparing for your appeal.  Take as many pictures as you can -- before, during, and after the tree permitting, cutting, construction process, etc.  You may not even need some of the pictures for your appeal, but keep them anyway as sometimes other trees not included in the permit are cut down or harmed during construction and you will need these pictures as proof.

With your appeal, submit photographs of the site and of any specific trees or areas on the site that do not meet the Tree Protection Ordinance requirements.   This is especially important if you are trying to illustrate disregard for tree protection fencing, siltation, or storing of construction materials in the root protection area.  Label each photo you plan to show to the Tree Commission with the section of the ordinance to which the picture pertains. Make a clear case for each ordinance violation with photos, citations of the ordinance, and a comparison to the approved site plan versus the conditions on the site.  The Tree Commission must be able to determine clearly and quickly what the violations are on the site based on your presentation.

Helpful Hints:

Show the scale:  Photographs are more meaningful when it's clear what the scale is.  If you can (although this is not always possible given that you may be restricted from going onto the property), use a vertical and horizontal scale in each photo that shows any distances/measurements that are part of your appeal.  Scales can be created by using a wooden 1x2 painted with numbers for each foot of distance. Use the scales to make these measurements easily visible in the photos so the Tree Commission can see the actual conditions on the site.  If you are unable to use a scale, try to take your pictures so that the size of the objects in your photo are easy to understand, i.e. have a person standing in your photograph to represent an object around 5 1/2 or 6 feet as a basis of comparison.  Document how far away the person is standing from the tree or other object you are showing in your picture.

Timestamp your photos:  If your camera allows a date and time to be stamped on the pictures, make sure to use this feature.  If not, make sure to record the date each photo was taken.

Identify those sections of the Tree Protection Ordinance which you feel are being violated on the site.  List each of these separately and provide the site evidence for each.

Some of the most common violations you will want to include in your appeal if they apply are:

• Trees are not represented correctly on the site plan.  (Section 158-105(a))
• There could be potential damage to the trees designated on the plan as "saved".  (Section 158-104(a))
• Trees designated as “saved” on the site plan are actually marked for removal, or vice-versa.  (Section 158-101(e)(3) and Section 158-105(a))
• There could be potential damage to boundary trees.  (Section 158-105(b))
• Trees in the setbacks should not be impacted.  (Sections 158-102(3)b. and 158-104(a))
• Fencing for the Tree Protection Zone is inadequate, non-existent, or incorrectly placed. (Section 158-34(c))
• The Tree Protection Zone is violated by the placement of building materials, trash equipment, or other materials within the Zone. (Section 158-34(c))
• To the maximum extent feasible, the impact to trees on the site has not been minimized. (Section 158-103(a))
• Improvements are not located so as to result in the protection of the trees on the site. (Section 158-104(a)) 

If appropriate, provide a sketch on a copy of the site plan of your alternative solutions that might save a tree or mitigate losses.

Check that the city has calculated recompense accurately, reflecting all the trees that will be lost or impacted. Recompense calculations are in the Tree Protection Ordinance, Sec. 158-34 and Sec. 158-103.

Check carefully for accuracy (location and number of trees, species, size, etc.). Although the Field Arborist who posts the yellow sign is supposed to verify that all the trees are measured and marked correctly, we have found that site plans often have trees reported as smaller than they actually are, or trees are missing from the site plan altogether.  Boundary trees (trees on the adjacent property with roots that cross over the property line) are the trees most likely to be missing from the site plan.

Recompense is not required for trees that are considered dead, dying, or hazardous [DDH].  No appeal can be made on a tree that has been ruled as DDH by a city arborist, even if an independent arborist says the tree is healthy.  However, if the DDH ruling has been given based only on a site or tree plan submitted by the applicant who wants to remove the tree(s), you should request a follow-up onsite inspection by the City Arborist. The DDH no-appeal clause in the Tree Ordinance prevents citizens from having the right of appeal and is one of the most commonly exploited loopholes in the Tree Protection Ordinance.

A building site plan is a map (or survey) of the property with all the trees and existing/proposed building structures marked.  Any trees that are to be removed will be noted on the plan along with their diameter at breast height (DBH).  You will want to make sure that all the trees to be removed are correctly marked and measured on the plan.  Quite often the site plan does not reflect all the trees that will be impacted or destroyed, and recompense for removed trees is calculated only for those trees marked for removal on the plan. A site plan that does not reflect the trees accurately or conform with what is required in the Tree Protection Ordinance may be appealed.

A building site plan should include the following elements:

• A tree survey identifying the size, species, and location of all trees having a diameter at breast height (DBH) of six inches or more
• Trees to be saved and trees to be destroyed
• Identification of “boundary trees” on adjacent properties
• Topography at two-foot contour intervals
• Existing and proposed structures, including driveways and parking areas, water detention ponds, utilities, material staging areas, and all areas requiring cut or fill
• The root save area (critical root zone) of each tree identified, along with a calculation of the percentage of the area to be impacted by construction
• Location of tree protection fences
• A proposed tree replacement plan must be included, as well as the manner that the newly planted trees will be watered  A paid maintenance contract may be required.
• If a construction limit line is established on the plan it must also be established by a tree protection fence on site, beyond which no activity is allowed.

How to check the site plan:

• Verify that trees marked as 'impacted' on the plan are correctly defined in terms of their placement on the property as well as their size and species.  "Impacted" means that the tree will suffer injury or destruction of more than 20% but not more than 33% of its root save area.  The root save area is found by drawing a circle around the tree that has a radius of 1 foot for each 1-inch DBH, or diameter at breast height, of tree.  For example, a tree with a DBH of 20 has a root save area of 20 feet around the tree.  Another way to quickly determine whether the root save area is being encroached upon is to imagine that the roots of the tree extend as far out underground as the branches extend overhead.
• Verify that trees marked as "lost" on the plan are correct as well.  A "lost" tree is any tree that will suffer injury or destruction in excess of 33% to root save area or is otherwise not protected according to the provision of the ordinance.
• If you need to measure any trees on site, take a tape measure and wrap around the trunk of the tree at 4 1/2 feet from the ground.  Then, divide this number by 3.14 to calculate the DBH or diameter at breast height.  (diameter = circumference divided by 3.14).
• Determine if any boundary trees are impacted (tree on the adjacent property whose root save area intrudes across the property line of the site under consideration).  Note these on your list and plan.  Include size and species.  Boundary trees are not to be "impacted" without the knowledge and consent of the owner of the boundary tree.