City heads to court as tree preservation ordinance changes proposed

By Dave Pasley

Boerne, TX (July 3, 2010)- Boerne officials were kept busy in June working to enforce and strengthen the city’s tree preservation regulations. Over the last two weeks, Boerne Planning and Community Development Director Chris Turk has briefed city councilmen and planning and zoning commissioners on a package of amendments to the city’s tree preservation rules which he says he has been working on for “quite a long time.”

Turk said it was a coincidence of scheduling that caused his presentations of the changes to the council and commission to come on the heels of the alleged unauthorized removal of trees from a School Street lot three weeks ago. Last week a city attorney filed a lawsuit against the lot owner and his contractor, alleging they removed a protected tree from the lot in violation of city ordinance. The city has also obtained a restraining order temporarily preventing any additional tree-cutting on the lot.

In a closed-session meeting on June 8, city council members received a briefing from Assistant City Attorney Bradford Bullock on the “possible unauthorized tree removal” from the School Street lot. Afterward, reconvening in open session, council members voted unanimously to authorize city attorneys to take “appropriate civil legal action” against the owner of the lot, James Manley, and against Rudy Nadler, the contractor allegedly hired by Manley to clear the lot.

Bullock said that civil legal action can be taken to protect and enforce applicable city ordinances, including, but not limited to, the city’s zoning ordinance, which includes the city’s tree preservation regulations. Bullock said the zoning ordinance provides both criminal and civil remedies for violations. He said any criminal prosecutions will be handled by the city prosecutor, in municipal court. However, he said the city can also seek injunctive relief and civil penalties in civil court in order to enforce its ordinances “pursuant to its power as a home rule municipality and powers granted to it in the Local Government Code.”

“Criminal prosecution and civil relief are not mutually exclusive,” Bullock said. “The city may seek both.” According to the city’s public relations coordinator, Pamela Bransford, City Prosecutor Dana Jacobsen has been given the paperwork regarding the alleged tree preservation violations. However, she says Jacobsen is on vacation and has not told city officials how he plans to proceed.

Meanwhile, Bullock said the city has filed the lawsuit against Manley, Nadler and Armadillo Excavation for illegally removing a protected tree. On June 25 Kendall County Court-at-Law Judge Bill Palmer granted the city’s request for a temporary restraining order prohibiting Manley from removing any more protected trees. “We have a hearing on a temporary injunction on July 8 where we will ask the judge to extend the injunction and we will ultimately ask him to award the city a permanent injunction, civil penalties, declare that the tree preservation provisions apply to Mr. Manley’s property, and award the city my attorney’s fees,” Bullock said.

On Thursday, Manley released the following statement regarding the issues: “I ask your readers to draw no conclusions based on what has been printed in the news media. The City has a history of false accusations and bully tactics. It is time for the City to stop caving in to a group of extremists, including Rob Ziegler, and follow the law. The City is using the June 15, 2010, incident involving one tree to stop me and deter other property owners from removing ‘non-protected trees’ before it rams down our throats a new zoning ordinance which would change current tree sizes, etc. The corruption that exists in this City needs to be eliminated and the Hall needs to be sanitized. I look forward to my day in Court.”

During a council workshop session at the June 8 meeting several council members voiced support for Turk’s proposals to tighten the tree preservation rules and to expand the scope beyond protecting only the largest trees. Turk is proposing to include protections for “standard” trees, which are newly defined in the package of proposed amendments as “shade trees with 12 caliper inches.”

“I think the preservation of smaller trees is a great, great idea,” said District 3 Councilman J Kuper, echoing earlier comments by Mayor Dan Heckler, who noted that some of today’s smaller trees may become heritage trees in 50 years. Turk did say that at least one proposed amendment – regarding trees with forks or branches near the ground – was added as a result of the recent incident on the School Street lot.

“The proposed change pertaining to how to determine the caliper or width of the tree came up when the building inspector was measuring one of the trees (that was alleged to have been cut down on the School Street lot) and we recognized that we should clarify that situation since so many of the oak trees seem to fork about breast high,” Turk said. Another proposed change is a requirement for a permit to remove trees, which Turk says is designed to reduce confusion for property owners and the general public about the trees that can be removed in compliance with the new regulations.

Planning commissioners also voiced general support for the changes when briefed on the draft amendments Monday. Turk says the commission will hold a public hearing on the proposed changes on July 12 and the package of amendments could reach the city council for action in August or September. Several commissioners said there is a need to make the tree preservation regulations clearer and easier to understand.

Commissioner Scott Billingsley suggested including an opening summary statement that describes the preservation requirements in general terms and points out the flexibility that the regulations provide for property owners to remove trees that conflict with building plans. Chairman Doug Hartzler suggested including a table that translates “caliper inches” to width, which he said is easier for the average property owner to understand. Commissioner Israel Pena suggested including more graphic illustrations to help property owners understand the regulations.

“It sounds onerous,” Turk said of the tree preservation requirements, “but when you look at it in its entirety it is not that bad and I think it will work out O.K.” During the public comment portion of Monday’s P&Z meeting, former city councilman Rob Ziegler suggested the city have outside experts review the new tree regulations to ensure they will be effective, workable and enforceable.

Mike Luckey urged commissioners to consider the unintended impact the changes might have on property owners in the city’s extraterritorial jurisdiction, suggesting the restrictions may encourage some property owners to cut trees in advance of annexation. Luckey also discouraged commissioners from recommending that the tree regulations be extended to include the ETJ, something the city could do but does not do now. Turk later recommended that commissioners consider the ETJ issue only after they have settled on the other changes to the existing rules and there was no further discussion on that topic at Monday’s meeting.

Related Resource:
The Boerne Star- City heads to court as tree preservation ordinance changes proposed