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Sunday, November 28, 2010
Brooke Levin and Tree Services Program Illegally Removing City Trees
It appears that Brooke Levin, the Deputy Public Works Director, has been at it again. This time she directed her staff in the Tree Services Program to cut down a disputed tree on 65th Street in North Oakland in late October 2010 without following the requirements of the Oakland Code of Ordinances, Chapter 12.32 Street Trees and Shrubs, Chapter 12.36 Protected Trees, and Chapter 12.40 Hazardous Trees. This occurred even though Ms. Levin was on notice that she and her staff were not following the requirements of the various City Ordinances. Ms. Levin and her staff appear to be selectively choosing which sections of the Ordinances to follow and are failing to read the three relevant Ordinances together in their entirety.
Chapter 12.32 Street Trees and Shrubs is essentially the enabling legislation that gives the City Manager authority over street trees and shrubs. It provides that the City Manager shall have full power and authority over the planting, removal and maintenance of trees and shrubs in or upon any public street or public grounds and shall have the right and power to establish rules and regulations relating thereto.
It also provides the City Manager or his or her delegated representative shall have the power to cause the trimming or removal of any tree or shrub in or upon any public street or public grounds which is diseased or is endangering or which may endanger the security or usefulness of any public street , sewer, or sidewalk. Furthermore, Chapter 12.32 provides that any tree or shrub growing partially in any public street, sidewalk, or on a private estate and overhanging or projecting into any such street, and which is endangering, or which may in any way endanger, the security or usefulness of any public street, sewer or sidewalk, or any tree or shrub growing wholly on a private estate but which because of its physical condition, height, angle of lean, or other factor, which is endangering , or may in any way endanger, the security or usefulness of any public street, sewer or sidewalk, is declared to be a public nuisance.
The City Manager or his or her delegated representative may remove such tree or shrub, or such parts thereof as are liable to fall or are dangerous or an obstruction; provided that except in case of manifest public danger and immediate necessity, no such tree or shrub located upon a private estate shall be wholly cut down or removed unless ten days' notice in writing shall be given personally or by certified mail by the City Manager or his or her delegated representative to the owner. If the City removes a dangerous tree located upon a private estate, the owner is required to reimburse the City for its removal. Notwithstanding the authority vested in Chapter 12.32, the City must also meet the applicable requirements in Chapter 12.36 and 12.40.
Chapter 12.36 Protected Trees governs certain trees which are defined, in part, as on any property any other tree measuring nine inches diameter breast height (dbh) or larger except Eucalyptus and Pinus radiata.
The tree in question was 24 inches in diameter at dbh and approximately 25-30 feet tall, and thus qualifies as a protected tree under Chapter 12.36.
The protected tree ordinance states that it is in the interest of the public health, safety and welfare of the Oakland community to protect and preserve trees by regulating their removal; to prevent unnecessary tree loss and minimize environmental damage from improper tree removal; to encourage appropriate tree replacement plantings; to effectively enforce tree preservation regulations; and to promote the appreciation and understanding of trees.
Chapter 12.36 identifies the criteria for tree removal permit reviews, conditions of approval for removal of protected trees, procedures for development-related tree removals, procedures for non-development-related tree removals, procedures for removing City-owned trees and the process for appealing tree removal permits. Applications for tree removal permits shall only be made applicants. An applicant is defined as the owner of the real property upon which the protected trees(s) involved in a tree removal permit and/or site inspection applications are located, also referred to as the tree owner. With very limited exceptions, the City of Oakland is required to obtain a tree removal permit for the removal of City-owned trees.
Importantly, Chapter 12.36.090 lays out the specific requirements for removing City-owned trees.
Tree Posting. Except as exempted in Section 12.36.140, all city-owned trees proposed for removal shall be posted by the Office of Parks and Recreation. A tree tag shall be affixed to each tree proposed for removal in plain view of the street. The tags shall not be removed until such time as tree removal is approved or denied by the city for the tree(s) in question.
Public Notice and Input. The Office of Parks and Recreation shall, within ten working days of tree posting, notify property owner of all parcels located adjacent to the site of proposed tree removal(s) in writing of the fact that city-owned trees have been proposed to be removed, and the closing date for public input. The Office of Parks and Recreation shall accept public comment regarding the proposed removal of city-owned trees for a period not less than twenty (20) working days following proper site posting.
Tree Removal Determinations. The Tree Reviewer of the Office of Parks and Recreation shall review all proposed city-owned tree removals and shall be responsible for making all necessary finding for approval or denial of such removals, including all necessary conditions of approval. Any telephone calls or written comments regarding the public input period shall be considered in the preparation of written findings, an written records of such calls and/or comments shall be entered into the permanent Tree Reviewer files.
Tree Approval and Denial. Based upon the determinations of the Tree Reviewer, and except as otherwise stated herein, the Office of Parks and Recreation shall approve or deny city-owned tree removals within twenty (20) working days of application. The Office of Parks and Recreation shall suspend all city-owned tree removals until the appeal deadline established in Section 12.36.120 has expired. If the proposed tree removal(s) are approved and not appealed, the city-owned tree(s) shall be removed in accordance with regular work schedules. If the proposed tree removal(s) are not approved, the city-owned tree(s) shall not be removed. Following approval of a city-owned tree removal, the Office of Parks and Recreation shall post a public notice thereof in plain view on the site while tree removal work is underway.
The City failed to adequately post the tree or notify adjacent property owners of the tree removals. Moreover, there was no evaluation by the Tree Reviewer or findings for approving the removal of the protected tree.
Chapter 12.36.130 does provide for limited exemptions. In the case of an emergency in which a protected tree is in so dangerous condition as to pose an immediate threat to safety or property, the Director of Parks and Recreation or the Director of Public Works, or their respective designees, shall be empowered to waive the requirement for a tree removal permit. The removal of a protected tree under emergency conditions shall be reported to the Office of Parks and Recreation on the first business day following the emergency tree removal.
According to John Alderson, Operations Manager, Forestry Division of Public Works in an email dated May 28, 2010 he states that: "OMC Section 12.36, of the Protected Tree Ordinance, does not apply to the street tree on 65th Street. Section 12.36.140(A) Exemptions, City of Oakland, states that 'In situations which require the removal of hazardous trees located on City property, a tree removal permit shall not be required.' He states further, "Section 12.40.030 does not apply in this situation. They were determined to be hazardous under 12.36.140(A) as mentioned above. The trees were determined to be hazardous but not imminently hazardous If this had been the case we would have called a crew to remove them immediately".
If you read further, you will see the inherent contradiction in Mr. Alderson's statements. The exemption he quotes under 12.36.140(A) requires that that City must use the criteria in Chapter 12.40 to verify a hazardous tree. Moreover, the only definition of a hazardous tree is found in Section 12.40 and it relates to a tree which poses an imminent threat to life and property as determined using the criteria of 12.40.030. The exemption for obtaining a permit to remove a hazardous tree does not exempt the City from the process of determining whether a tree is hazardous or not. There is no distinction in the relevant Ordinances to distinguish between a hazardous tree and an imminently hazardous tree. That is simply a figment of Mr. Alderson's imagination.
Chapter 12.36.140(A) provides that in situations which require the removal of hazardous trees located on city property, a tree removal permit shall not be required. Hazardous city trees shall be verified by city staff using the criteria contained in Chapter 12.40 of this code, hazardous tree ordinance.
Chapter 12.40 Hazardous Trees defines a hazardous tree to be any tree which poses an imminent threat to life or property, as determined by inspection using the criteria established by Section 12.40.030. Chapter 12.40.030 provides that the hazard that the tree poses to human safety and the well-being of the neighboring property shall be determined by evaluating, among other factors that the arbitrator or its experts deem appropriate: (1) The health of the tree, including its general vigor; (2) The presence and extent of disease, insects, or other pathogenic organisms; (3) The structure and shape of the tree, including its root system; (4) The presence of any physical defect such as splitting, broken limbs, etc.; (5) The soil and slope conditions in the vicinity of the tree, including any evidence of erosion and/or upheaval; (6) The degree of lean from vertical; (7) The exposure of the trees to the predominant wind direction; (8) The proximity of the tree to human activities and items of value on the neighboring property; and (9) The likelihood of the tree causing personal injury or damage to property in the reasonably near future.
Based on the results of multiple Public Record Act requests, the City has not conducted any tree hazard assessments for any of the trees in question on 65th Street including the tree that was recently cut down. There is no written documentation prepared by the city to justify the tree as a hazardous tree as defined by the Chapter 12.40. If the City has not properly determined the tree be hazardous as defined by Chapter 12.40, then it is not exempted from obtaining a tree permit. If the City has not determined the protected treeis in so dangerous condition as to pose an immediate threat to safety or property it cannot remove it on an emergency basis and is not exempted from obtaining a tree permit.
Corrective actions may include, but shall not be limited to: (1) Thinning; (2) Crown reduction; (3) Tree removal with replacement planting; (4) Cabling and bracing. Corrective action shall be limited to thinning and cabling/bracing where possible. Importantly, tree removal shall only be considered when all other corrective actions are judged to be ineffective and shall be accompanied by replacement plantings of appropriate materials to restore, as much as possible, the benefits lost due to tree removal.
There is no evidence in the administrative record, based on the results of multiple Public Records Act requests that the City evaluated and rejected any of the corrective actions for removal of a hazardous tree. Instead, Ms. Levin simply ordered the tree removed.
12.40.030 G states that all corrective actions shall take precedence over the provisions of the tree preservation ordinance as set forth in Chapter 12.36 and no tree removal permit shall be required for corrective actions performed under this chapter.
It is possible the City could remove and replace a protected tree and that the Protected Tree Chapter would not apply as long as the City properly determined the tree to be hazardous. Mr. Alderson himself states that "the trees were determined to be hazardous not imminently hazardous." Mr. Alderson should re-read Chapter 12.40 since it defines a hazardous tree as one that poses an imminent threat to life or property.
As is evident, ownership of the tree and the land upon which the tree is planted is critical to determining what process the City is required to follow. According to John Alderson, Operations Manager for Public Works, in an email dated May 28, 2010, "All trees in the public right of way may be removed if they are determined to be hazardous...However, in this case both trees are Official City Trees. We were able to find planting and pruning records for the trees on 65th Street. All trees planted by the City are Official Trees and the City only prunes official trees".
While the City may have records that it planted and pruned the trees, they are still confused as to who actually owns the lands. In response to a Public Records Act request asking about ownership of the planting strip where the tree is located between the sidewalk and 65th Street (public right of way), the City noted they have no ownership records and that Alameda County should be consulted for ownership information. In addition, Brook Levine, Deputy Public Works Director, has stated that she does not know who owns the property on which the trees are planted. Essentially, the City failed to determine whether the tree is located on the public right of way (City of Oakland land) or on private property before cutting it down. Ownership of the tree is critical to determining the appropriate public noticing requirements. Since the City claims it planted the tree, it would follow they are responsible for its maintenance and would be required to follow the requirements for City "owned" trees.
While the City is not required to get a tree removal permit from itself, it is required to meet the provisions of Chapters 12.32, 12.36 and 12.40 of the Oakland Code of Ordinances. The exemptions are quite specific and apply in cases where there are defined emergencies or where the City has properly determined a tree to be hazardous. Nevertheless, Ms. Levin and her staff have taken creative license in interpreting and selectively applying the requirements of the ordinances. She is failing to read the three relevant chapters together.
When City staff were asked on-site about the tree removal in late October 2010 and whether any public noticing was provided, the staff person hid his face, and directed all questions to his supervisor. When asked who was his supervisor, he refused to provide a specific name. The staff person in question appears to be the same staff person who previously attempted to remove the tree while smoking and operating a chain saw near power lines, clearly in violation of City policies on smoking and OSHA safety requirements.
All that remains of the tree is a stump. There is no evidence that the core of the tree was rotten as City staff suggested. Photos of the stump and photos of the tree base show that the tree was reasonably healthy for a tree that was not properly pruned, although several limbs needed trimming. The sad irony here is that the City fails to maintain its trees with proper and timely pruning to the point where the trees become unhealthy and dangerously unwieldy. The City then claims the trees are hazardous and removes them entirely.
In this case, there is no written assessment by a qualified and unbiased aborist that the tree in fact required removal. The PGE arborist for the area had been through the street topping the trees prior to the first time Ms. Levin and her staff attempted to remove the tree. The PGE arborist noted that the trees in question were sound and did not need to be removed.
Apparently, several neighbors have expressed concerns that if Ms. Brooks does remove additional trees in the neighborhood without following the requirements of the various City Ordinances governing tree removals, she will be personally sued and a writ of mandamus filed with the courts to force the Public Works Department to follow the requirements of Chapter 12.32, 12.36 and 12.40 of the Oakland Code of Ordinances.
In his email of May 28, 2010 to a resident, Mr. Alderson stated that "You request the trees not be removed until such as this issue is resolved. We have delayed any further work at this address until the various issues have been adequately addressed."
Obviously, the issues have not been adequately addressed from the perspective of several North Oakland residents, yet the disputed tree has been removed. Given the poor track record of Ms. Levin, the lack of transparency, and the unwillingness of Public Works to follow the law, residents have solicited the assistance of City Councilmember, Jane Brunner's Office who has assured the neighbors that the Public Works chainsaws are not slated to remove any more trees on 65th Street. This is quite interesting since the Tree Services Program previously attempted to illegally remove a tree at 776 65th Street until neighbors intervened and protested and were intent on coming back to remove the tree. One wonders whether the tree at 776 65th Street would still be intact had the neighbors not complained so vociferously. More importantly it leaves a huge question as to why the City intended to remove the protected tree and whether it had even properly determined it to be hazardous.
Nevertheless, a concerned resident has filed a complaint against Ms. Brooke Levin, Deputy Public Works Director, and submitted it to the City Administrator, Dan Lindheim, requesting the City Administrator evaluate the Tree Services Program and ensure Ms. Brooke and her staff operate within the confines of local, state and federal law. However, Mr. Lindheim has failed to acknowledge the complaint in two separate email requests. To date, the Tree Services Program has failed to remove the tree stump and plant a new tree leaving the street significantly devoid of trees, affecting the aesthetic feel of the street and possibly property values. Residents are discussing whether legal action should be taken against the City given their unwillingness to acknowledge the complaint and adequately address the illegal removal of street trees by Ms. Levin and her staff.
It is unlikely that Dan Lindheim, as a lame duck City Administrator, will do much, if anything, to address the problems with the street trees, leaving it to the next City Administrator--Oakland City bureaucracy at its best.