As I implied here, the Planning Commission should have conducted a cost-benefit analysis before denying a permit to remove the Bowie Street heritage tree. Under any reasonable cost-benefit analysis, the tree should go. Ignore the environmental benefits of denser development downtown, the spillover benefits to the neighbors in a rapidly emerging downtown neighborhood, the goal of promoting a more walkable downtown. Ignore the hit to the property owner, who must now find another buyer who almost certainly will pay him less money.
Just consider lost tax revenue. Endeavor agreed that something eventually will be built on the property, but it will be smaller, and it won't be built by Endeavor. Denying the tree permit will delay the development of the property. We have a developer, today, willing and ready to move. It could take months or years before another developer steps forward.
Even a six month delay will cost local governments a bunch of money. If we assume that whatever is built will have an assessed value of $100 million, then each year of delay will cost local governments more than $2 million. Even a six-month delay -- a wildly optimistic assumption -- will cost taxpayers over $1 million. How many people will state, on the record, that The Tree is worth $1 million? Or, more to the point, $1 million more than the mitigation offered by the developer -- replacing the tree with 20 five-inch trees in Duncan Park, repairing and pruning stressed trees in the park, and kicking in money for a downtown tree survey? The pecan tree is big and healthy, but otherwise nondescript; it is not fully visible from any vantage other than a driveway entrance off Bowie; it does not shade any sidewalks.
But PC approved the tree because at least three members believed they had no choice but to deny the permit. As they read the ordinance, the property owner was required to show that the tree prevents every reasonable use, and it is undisputed (including by the developer) that a fairly tall residential development is possible even with The Tree.
These PC members misread the ordinance.
The Heritage Tree Ordinance allows PC to grant a permit for removing a tree if the property satisfies one of several exceptions. Section 25-8-643(A) states:
The Land Use Commission [here, the Planning Commission] may grant a variance from Section 25-8-641 (Removal Prohibited) to allow removal of a heritage tree that has at least one stem that is 30 inches or larger in diameter measured four and one-half feet above natural grade only after determining, based on the city arborist’s recommendation, that the heritage tree meets the criteria in Section 25-8-624(A) . . . "
(This section also requires that the owner satisfy two other conditions, which I have omitted for brevity. These two conditions did not apply here, in my opinion, and only Commissioner Chimenti appeared to rely upon them.)
Section 25-8-624(A) states, in relevant part:
The Planning and Development Review Department may approve an application to remove a protected tree only after determining that the tree:
. . .
(2) prevents a reasonable use of the property;
. . .
The dispute is over the interpretation of this exception.
Here's the correct interpretation, in my opinion: A property owner satisfies section 624(A)(2) if he or she proposes a reasonable use of the property that the tree prevents (and satisfies a couple of other conditions which, again, do not apply here). If the owner satisfies this condition, then PC has the discretion to grant or deny the permit. A tree permit is not an entitlement, in other words, just because the tree prevents the proposed use; PC may still exercise its considerable judgment. In exercising that judgment, it can assess the tree's value, the value of the proposed but obstructed use, what removing the tree will cost us, what preserving the tree will cost us. A cost-benefit analysis.
But three commissioners -- most notably Dave Sullivan -- read the exception to apply only when the tree prevents every reasonable use. That is, even if the citizens of Austin unanimously agree that a proposed use greatly exceeds the tree's value, we're stuck with the tree because the ordinance ties the commissioners' hands.
This is wrong for several reasons. Let's start with the language of the ordinance. It merely requires an owner to show that the tree "prevents a reasonable use of the property." Sullivan et al. interpreted "a" to mean "every." But if Council meant "every," it could have said "every."
And if "a" did mean "every," then PC would have no discretion but to grant the variance if the exception were met. A regulation that denies a property owner every reasonable use is a taking under both the United States and Texas Constitutions. If that's what the exception means, the ordinance should state that PC "shall" or "must" grant a variance if the exception is met, rather than using the discretionary "may."
Not only is the absolutist reading of the ordinance inconsistent with the ordinance language, it is inconsistent with prior practice. Council did not draft the "reasonable use" exception specifically for the Heritage Tree Ordinance. The Heritage Tree ordinance borrows Section 624(A)(2) from the Protected Tree ordinance. If Section 624(A)(2) requires the owner of a heritage tree to prove that it prevents "every" reasonable use, then it requires owners of trees as slender as 19" to meet the same standard. Is anyone really willing to argue that no healthy 19" tree can be removed within the City of Austin unless it denies the property owner all reasonable use of his property? What the Heritage Tree ordinance did do was take the "reasonable use" determination out of staff's hands and entrust it to PC; it did not change the "reasonable use" standard.
The legislative history of the Heritage Tree ordinance is inconsistent with the absolutist reading. Various boards and commissions reviewed and commented on the draft heritage tree ordinance. Staff prepared a memorandum summarizing these comments. The Planning Commission proposed that the "reasonable use" exception be rewritten to apply only when a tree prevents "all reasonable use." (See p. 3.) Staff recommended against this change. Staff's comments are worth reading in full, but this comment in particular:
Changing "a" to "all" reasonable use will require a takings determination for every tree removal based on the reasonable use criteria. It is a substantially higher bar than has been in place. Staff believes changing the "shall" to "may" in the lead up to this provision makes clear that the decision is discretionary, and there is no obligation to allow removal of a tree simply because the proposed use requiring tree removal is reasonable. If there are other reasonable accommodations that will allow the tree to remain, the removal would not be allowed.
Council adopted staff's recommendation, not the Planning Commission's.
There are yet other problems with the absolutist interpretation. As noted above, requiring that the tree prevent "every" reasonable use is a regulatory takings standard. But that is not the only regulatory takings standard. Courts also apply a mushy standard that depends on the regulation's economic impact on the owner and the extent to which it has interfered with the owner's investment-backed expectations. ("Mushy" is a legal term of art.) The ordinance does not direct PC to make such a determination, thereby exposing the city to takings claims. And, frankly, takings law is complicated, fact-sensitive and fraught with doctrinal problems. If Council really intends to entrust PC with delicate determinations of constitutional rights, it had better load it with lawyers rather than planners and architects.
Finally, the absolutist interpretation makes no sense as a matter of policy. The best that can be said for the absolutist position is that the ordinance is arguably ambiguous. We're free to resort to policy considerations when interpreting ambiguous ordinances. And interpreting an ordinance to forbid the removal of a tree no matter the net cost is bad policy. Some trees should go -- there will always be disagreements at the margin, of course, but there are margins. An ordinance that requires us to keep trees that ought to go protects trees at the expense of public welfare. Let's not adopt an interpretation that will sometimes commit us to bad outcomes.
Of all the commissioners, Dave Sullivan appeared to rely most heavily on the absolutist interpretation. I do not have a cynical take here. Dave's a reasonable guy, generally advocates for greater density, and understands its environmental and economic benefits. I believe Dave put the most stress on this interpretation because he genuinely believed that the benefits of the development would outweigh the benefit of keeping the tree. In fact, Dave said the ordinance is "broken" and needs to be fixed. But he felt his hands were tied.
This was unfortunate. I'm not sure who pushed what seems to me to be a clearly wrong interpretation, but PC set a bad precedent.
The bright spot is that the ordinance is indeed fixable. Council can amend it. It ought to do so pronto.