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Clayton Tree Law Again Tabled; Cap on Replacement Fees Explored

The city's ability to mandate replacement of trees or payment into its forestry fund continues to concern some aldermen.

Harold Sanger held his head in one of his hands and laughed Tuesday night. It happened toward the end of a lengthy dialogue about the merits of a proposed law aimed at protecting 's tree canopy.

Sanger had fielded numerous questions from the city's aldermen and attempted to convey the vision of the city's Plan Commission and Architectural Review Board (ARB), which he chairs.

(Download a PDF of the amended tree law that Clayton aldermen tabled on Tuesday.)

"We at the ARB do not believe it's an overkill," Sanger said of the law at one point. "We think it's an extension of what we already do."

Aldermen ultimately agreed to table the revised bill so city staff can explore a possible cap on tree-replacement costs. They .

"My big picture thought is, if the project doesn't cost that much … the homeowner shouldn't be burdened with a tree contribution or a replacement cost that is like half the cost of the project itself," Ward 2 Alderman said at one point in the conversation.

Ward 1 Alderman also indicated that the city might explore payment requirements for the removal of longstanding landmark trees, even in cases where new construction is not involved.

Aldermen next meet May 22.

Mandates versus suggested practice

The city already regulates the color of shingles and bricks, Sanger said in comments to the aldermen on Tuesday. Because Clayton is a tree city, it seems natural that the city should have the power to regulate when trees come down as a result of construction and what trees should take their place.

The legislation simply raises the fees that people would pay into the city's forestry fund, depending on the caliper inches lost, Sanger said. The regulation would only apply when a construction project disrupts trees and is intended to encourage the changing of building plans to some degree to save those trees.

Ward 3 Alderman said he supports Sanger's remarks.

"If I come to the (Plan Commission) with an addition to my home, am I then required to put more trees on my property?" Berger III said.

Sanger responded that tree-planting or payment into the forestry fund would be required only if the addition required trees to be taken down. Under the current wording of the proposition, property owners are at liberty to take down any trees not tied to home-improvement projects.

"And that is our current practice," Mayor Linda Goldstein said. She said the proposed legislation would serve to consolidate and formalize what the city already is doing.

Ward 2 Alderman Cynthia Garnholz pressed Sanger on the question of whether city law currently mandates the replacement of trees.

"It's a guideline … (but) no one has said, 'I'm not going to do that,'" Sanger responded.

Susan Istenes, the city's director of planning and development services, said the code is replete with references to the preservation and replacement of trees.

"I still have concerns about this," Garnholz said. "I'm totally supportive of the intent. I'm totally supportive of applying this entire ordinance to completely new construction, whether it be commercial or residential. But when I think of it applying to a deck or an addition, and I think of the size of the lots in my neighborhood and my own lot for my own house, I have real difficulty with these kinds of mandates for replacement of trees."

Sanger said such small lots are "probably an anomaly" and said aldermen must decide what the city will protect and look like. He said neighborhoods such as Clayton Gardens and Old Town have lost "a tremendous amount of canopy."

Ward 1 Alderman Andrea Maddox-Dallas expressed concerns similar to those of Garnholz.

"Although I completely admire the intent of this … I'm really stuck on this existing housing," Maddox-Dallas said. "In Ward 1, we have a lot of very small lots. And I'm just not sure how deep down you can legislate stuff like that."

Suppose people with 10 small trees in their front yard have to pay to replace one tree removed from their backyard during a development project, she said. Meanwhile, a neighbor is allowed to remove all of the trees in their front yard because it isn't tied to a home-improvement project.

"That is really micromanaging people's property," Maddox-Dallas said.

Boulton, from Ward 1, asked how much it might cost to replace trees or pay into the forestry fund in a worst-case scenario. City Manager Craig Owens later said it could cost almost $20,000 depending on the trees.

Aldermen appeared in agreement that new construction should be subject to the rules outlined in the proposed tree law. But not all of them favor the application of the law to existing homeowners.

"I guess where I got concerned was really at another level," Harris said, "where I think that some projects are so small compared to some of these bigger additions and new builds—in terms of their impact on the footprint, their impact on our environment in general here in Clayton—that what I would call the value, the price-value ratio here, could get really skewed and be really unreasonable so that that person might not do their small project which would increase property values, which we all want."

Ward 3 Alderman Mark Winings said he would prefer to see a two-part approach to home projects. That would allow the city to cap tree-replacement costs if a project qualifies for approval through the city manager's office.

City Attorney Kevin O'Keefe indicated the city needs to write its practices into law to guard against the rare event that someone would fail to comply.

"Unless there is the authority of law and precision in the language of the law, it is almost impossible to sustain enforcement against an unwilling participant in the process," O'Keefe said.

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