Rehoboth Trees in Jeopardy UPDATE August 15 2012

Commission allows Henlopen Avenue oak to come down

Photo by: Ryan Mavity The Rehoboth Beach Parks and Shade Tree Commission upheld the building inspector's decision to allow a 24-inch oak tree to come down at 141 Henlopen Ave. The tree was removed July 31.

Rehoboth Beach — Work has resumed at 141 Henlopen Ave. after a 24-inch oak tree was removed July 31.

The city had placed a stop work order on the property to prevent the tree from coming down until the Rehoboth Beach Parks and Shade Tree Commission could decide the fate of the tree.

The tree was cut down a day after the commission unanimously upheld the building inspector's decision to allow the tree to come down on July 30. Property owners Richard and Carol Raport agreed to a mitigation plan to plant eight trees, four on their property and four around the city.

The hearing was the culmination of a dispute between the Raports and their neighbors at 137 Henlopen, the Hoffmans.

Building inspector Terri Sullivan issued a tree removal permit for two trees to the Raports on March 23 to facilitate demolition of the house that had been on the property. The house was demolished, and the Raports went for a second tree removal permit for seven additional trees in the footprint of their proposed house. Included among these trees were two 24-inch oaks near the property line bordering the Hoffmans.

One oak was cut down, but the Hoffmans were able to stop work on the second tree by appealing the tree-removal permit.

Sullivan said the roots of the tree were compromised during demolition and will be further compromised if the tree is not cut down. The house plans call for a basement, which Sullivan said requires a slope to be built for the safety of the workers, which further would have compromised the tree.

“By saving this tree, the safety of the owners of 141 Henlopen Ave. and 137 Henlopen Ave. would be jeopardized since the roots are compromised and will become more compromised as construction continues. The tree is structurally unsound,” she said.

Sullivan presented letters from arborists with the Delaware Forest Service and Sussex Tree, who had examined the tree on the city’s behalf to see if it could be saved. Both concurred with Sullivan’s opinion that the tree’s roots have been compromised and the tree should be removed for safety reasons.

Al Hoffman, who filed the appeal with his wife, Andrea, said building and licensing incorrectly gave permission for the tree to be cut down.

He said while he respects owners’ rights to do what they want on their property, mistakes were made in the issuance of the permit, including failure to display the permits on the property and failure to identify which trees would be cut and which would be preserved.

Hoffman said the failure to post permits and identify which trees will come down – required by the city’s tree ordinance – created a lack of transparency that kept the public in the dark about what was going on at 141 Henlopen. He said the tree-protection plan was never updated when additional trees came down after demolition, as is required in the ordinance, and no alternate designs were submitted that would better protect the trees.

Testifying on the Hoffmans’ behalf was planning commissioner Harvey Shulman, 149 Henlopen Ave. Shulman said the decision to allow trees in the setback area to be cut down is not consistent with the intent of the tree ordinance.

He said there are hundreds of properties in the city where tree trunks are within feet of the house; for the arborist to rule that any tree within 4 feet of the structure should be taken down is also not consistent with the tree ordinance. Shulman said adjustments could have been made to placement of the house on the lot to better protect the trees.

Richard Raport started his presentation by joking how amazed he was at how much his neighbors knew about his property. Raport said there was a lot of talk about tree regulations and enforcement but nothing was relevant to the one oak tree on his property. He said while it was wrong for a permit not to be posted, the family filed a permit and abided by all city rules and regulations. Raport said every move they have made was made after talking with city professionals.

He said his family has been put in the middle of a larger fight over tree canopy.

“We want to be left out of that fight. We just want to build our house,” Raport said.

Raport said he would have liked to have saved the trees, but he took the advice of professionals who advised him the trees presented a safety hazard. He said a mitigation plan has been reached giving the Raports a total of seven trees on their property.

Raport refuted Hoffman’s claim that the Hoffmans had reached out to them, saying the Hoffmans went right to the city to stop work without calling the Raports.

“We got attacked, really,” he said.

The members of the commission supported the motion to take down the tree, saying Sullivan correctly followed the tree ordinance.

Commission Chairwoman Priscilla Smith said, “I think Terri did the right thing.”


On Monday, July 30, the Rehoboth Beach Park and Shade Tree Commission (P&STC) upheld the decision of the City Building Inspector to issue two tree removal permits which allowed the removal of several large trees at 141 Henlopen Avenue, including a 24” oak tree in a setback area which was still standing.  The P&STC also affirmed the mitigation plan submitted to the City which stated that eight trees would be planted to replace the destroyed trees. The permits were issued after the property owners had asked the City for permission to remove trees, while the appellants (immediate neighbors) contended that the tree ordinance did not allow so many large trees to be removed, that the mitigation plan was inadequate, and the remaining 24” oak tree was required by law to be saved.


The P&STC allowed the removal of the remaining 24” oak based on claims that it was too close to a new house proposed to be built --  despite the fact that the location of this tree in regard to the new house was essentially no different from the location in regard to the previous house.   In addition, the P&STC did not discuss the Tree Ordinance’s requirement that consideration be given to minor modifications to the footprint of the new house or other construction methods that could be used in order to save trees while still allowing reasonable development of the lot.  The P&STC also approved the removal of a number of other large trees that were not close to the house, but which were instead in the rear yard or adjacent to a proposed walkway along the side of the house.  As defined by the Tree Ordinance, it was also clear that some of the trees removed under the permit were “specimen trees”.


One witness called by the appellants testified at the hearing, members of the public were allowed to express their opinions, and the City Solicitor acknowledged receipt of six letters from the public on the case. Immediately after all of the testimony was completed and the record was closed, the City Solicitor advised the P&STC that it could then begin its deliberations.  Without any further discussion of the evidence or any deliberations by the P&STC, a motion was made immediately to uphold the decision of the City Building Inspector.  The city solicitor provided advice as to procedure, including an instruction to the members of the Commission to state their reasons for their votes.


To listen to the audio recording of the hearing, including comments by the commissioners, please go to: http://videos.cityofrehoboth.com/073012.mp3


This is one example of recent cases where it appears that the Tree Ordinance is either not being followed uniformly, or where it is being interpreted in a way that does not reflect its original intent. We hope that the Mayor and City Commissioners will continue their stated intention to review the ordinance and its implementation in order to address this serious issue.  Please watch for future developments concerning the tree ordinance and other tree issues in Rehoboth Beach.

 

 

Joanne Hess

Recording Secretary,

www.saveourcityrehoboth.org

 

 

The Rehoboth Parks and Shade Tree Commission had scheduled the hearing on  the Hoffmans’ appeal of a tree-removal permit for Monday, June 25.  It has now been postponed.  As soon as the hearing is definitely scheduled, we will post the information on this website and by newsletter.

Henlopen Avenue house sparks new debate on trees

City, homeowner cite safety concerns

By Ryan Mavity, Cape Gazette June 15, 2012

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In the shady Rehoboth Beach neighborhood known as the Pines, an empty, treeless lot stands out.

At 141 Henlopen Ave., the re­moval of eight trees has not only sparked curiosity; it’s caused neighbors to act.

Al and Andrea Hoffman own two lots next to 141 Henlopen Ave., at 137 and 139. They asked for and received a stop-work or­der to prevent removal of a 24­foot oak near the edge of the property line.

The Rehoboth Parks and Shade Tree Commission is scheduled to hear the Hoffmans’ appeal of a tree-removal permit Monday, June 25.  (postponed)

Among the trees cut down were two hollys, two hickories, three 18-foot oaks, and a 24-foot oak adjacent to the Hoffmans’ property line.

“These were all good, healthy trees,” Andrea said.

When the Hoffmans first saw plans for 141 Henlopen, they not­ed a tree-protection plan had been submitted, with 12 trees to be saved. The plan was submit­ted before demolition of the property's yellow house; three trees in the front yard were re­moved early on, to allow equip­ment to come in for demolition, Andrea said.

The Hoffmans went on vaca­tion on in early May, and when they came back, the trees in the back yard had also been re­moved. Two 24-foot oaks were in the side yard adjacent to the Hoffmans house; when the Hoff­mans returned, they saw one had been topped before it was per­manently removed, and the sec­ond had a blue ribbon on it.

“This was topped, and this was clearly marked for death,” An­drea said. “They were beautiful trees.”

That was the last straw for the Hoffmans, who filed for the stop­work order on May 21, and it was granted on May 26.

The property meets the tree ordinance requirement for three trees on a lot: a 10-foot dogwood in the front yard and two oaks in the back have not come down and have been protected with or­ange fencing.

Al Hoffman, a former planning commissioner, said while techni­cally the lot meets requirements, it is not in line with the spirit of the ordinance.­“ When they said that people that had zero had to go to three, it didn’t mean people that had 12 could go down to three,” he said. For their part, the Hoffmans don’t object to construction of a new house or even to taking down trees to build a house. Their issue is in the way the trees came down; the lot appeared to be clear cut with no regard to the tree-protection plan submitted to the city.

“You don’t really have trans­parency about what’s going on, I think is the issue,” Al said.

“It’s clear you’re supposed to balance building and the lot. This isn’t a blank canvas here,” An­drea said.

The Hoffmans weren’t the on­ly ones upset the trees came down. Political action committee Save Our City sent out a newslet­ter decrying the loss of the trees.

In a statement, the organiza­tion said, 'In several recent cas­es, it appears that greater weight has been assigned to whoever is seeking a tree-removal permit than to tree protection. It also ap­pears that greater weight has been given to mitigation meas­ures than to protecting the exist­ing trees. The city should no longer allow large trees to be cut to marginally expand building footprints.'

Trees cut for safety concerns

To get a tree-removal permit, applicants must submit a copy of their proposal and tree-protec­tion plan. Building inspector Ter­ri Sullivan said she and city ar­borist Walter Onizuk look over the site before the permit is granted to determine if there are any alternatives to cutting down the tree. Sullivan said at 141 Hen­lopen, two oaks were removed to allow for a basement to be built.

“ Although the tree is not in the footprint, you have to have a slope in order to dig the base­ment, because if not it’s a hazard to the crew. So it has to go in on a slope. The slope then creates a hazard for the tree. If they cut through the roots, the tree be­comes a hazard and will fall on the neighbor,” she said.

“Even if they were to dig that line straight down, the root sys­tem of that tree is going to be compromised because of the foundation, because of the dig­ging. When it falls, it’s falling east. It’s a concern; it’s a safety concern,” Sullivan said.

The two trees near the Hoff­mans property line were to be re­moved because of their proximi­ty to the basement, she said. Oth­er trees in the back yard were re­moved to make way for a porch.

In mid-May, one of the large oak trees that had been cut down was laid out along the lot for nearly a week. Sullivan said the tree-removal company is respon­sible for removing the tree from the site. “The contractor had a permit to remove everything that he removed. He was given per­mission based on the plans that were submitted,” she said.

Two tree-removal permits were issued for the site. The first was before the demolition of the house. Once the house was de­molished and plans for the new house were submitted, a tree-re­moval permit for building the house was approved. She said it is common for houses in Re­hoboth to be built this way, be­cause a building permit cannot­be issued until the demolition i­sdone. Sullivan said the tree ordi­nance stipulates builders should design the house around trees if it is an option.­“ In the case of Henlopen Av­enue, they could have put the driveway on the other side, which would have meant one tree would have been saved, but two others would have to come down. And one of those trees would have been a city tree,” she said. The house is being built for Richard and Caryl Raport, who plan to use the it as a vacation home for their family with an eye on retiring there in the future.

Caryl Raport said she does not understand why the Hoffmans are upset. The families have nev­er met one another. “I’m not sure why they are stirring it up,” she said.

Raport said the family and its contractors meticulously tried to meet city code and were granted permits by the city to cut the trees. Raport said the trees that border her lot and the Hoffmans’ represented a safety concern and could fall on her house or on the Hoffmans’. She said five arborists stated the trees would die.

Raport said the stop-work or­der is costing both time and money. She said she is prepared to go through the parks and shade tree commission process and do whatever the city asks.

Tree-removal permits are sup­posed to be posted on the site, Sullivan said, although the tree­removal company is responsible for posting the permit. Trees to be removed are typically marked with ribbons, Sullivan said. The city discourages contractors from painting the trees because­if the permit is denied, the paint leaves a permanent mark on the tree. The Hoffmans said a demo­lition permit was posted on the property, but no tree-removal permit was posted. Over time, trees were marked with multiple colored ribbons; some trees had pink ribbons, some had blue rib­bons and some had yellow rib­bons, making it difficult to know which trees were to be saved and which were to come down.

“Why wasn’t there some mark­ing, so we would have some idea of what was coming down next?”

Andrea said. The city does not keep a monthly record of the number of trees that come down or are planted, Sullivan said.

Records are kept on the number of permits issued. Sullivan re­ports those records every month at regular commissioners’ meet­ings at the commissioners’ be­hest; a report is not required by the ordinance.

The tree ordinance calls for mitigation of any protected tree of at least 24 inches in diameter and shall be the same as the trees approved for removal. The quali­ty and size of the replacement trees shall be at least 12 feet tall and three inches diameter.

There is no mitigation plan on file with the city for 141 Hen­lopen, but Sullivan said the Ra­ports plan to replace eight trees that were cut down. Raport said they are trying to keep as many of the trees as they can, and they plan to have beautiful landscap­ing on the property.

Gossett to lead look at ordinance

Commissioner Patrick Gossett said because of the citizen dis­pleasure he’s received over tree cutting on Henlopen Avenue and in other places, he has begun gathering facts and information to look at the tree ordinance and how it is enforced.

Gossett said he hopes to get to­gether a number of people, in­cluding builders, officials from the city’s building and licensing department, parks and shade tree commission Chairwoman Priscilla Smith and Bryan Hall of the Office of State Planning Co­ordination, among others, to sit down and discuss what to fix and how to make the ordinance easi­er to understand and enforce.

He said the language in the or­dinance is very complex and it could be made user-friendlier.

Gossett said the work is a long­term project that might not start until late July or August. Of the trees cut down at 141 Henlopen, Gossett said, “ You see that, and it hits you in the face.”


Tree cutting raises questions

Jun. 13, 2012  |  Delaware Coast Press and
Daily Times (Salisbury, Maryland)
Written by
Jon Bleiweis
Staff Writer
Trees have been cut down on a lot on Henlopen Avenue in Rehoboth Beach.
Trees have been cut down on a lot on Henlopen Avenue in Rehoboth Beach. / CHUCK SNYDER/DELAWARE COAST PRESS
REHOBOTH BEACH -- A construction project leading to the removal of eight trees allegedly protected by the city's tree ordinance from 2006 has caught the eye of Save Our City Rehoboth.

A public hearing on the matter is scheduled later in the month.

The city approved the removal of nine of 12 trees at 141 Henlopen Ave., eight of which were cut down before a neighbor intervened and a stop-work order was issued.

City Chief Building Inspector Terri Sullivan said a new house was to be built on the lot.

The neighbor, Al Hoffman, said as a result of the trees being cut down, the shade that was provided to most of his lot and home is now gone.

"Rehoboth, if you ask visitors or recent people who have chosen to move there, it's been known as the coastal community that has trees," he said. "That is probably its most distinctive feature. If we allow people to clear cut their lots and cut down trees to make way for larger houses, that characteristic will be gone pretty soon."

Hoffman said two trees needed to be taken down for demolition at the lot. Since then, seven more were approved to be cut down. Six of those have been taken down, so far.

All nine trees were considered "protected" by the ordinance because of their size and contribution to the city's tree canopy.

According to the ordinance, a protected tree is defined as a tree with a diameter of six inches or more. The trees cut were three 18-inch oaks, one 24-inch oak, two hickory trees at 10 and 12 inches, and two holly trees of 10 and 12 inches. The tree still standing, for now, is a 24-inch oak.

Sullivan said there are seven conditions listed in the city code to allow for the removal of a tree, with two of them applying in this case. One is that the trees were located where it would create or will create a material safety or health hazard or nuisance with respect to existing or proposed structures or vehicles or pedestrian routes. Also if the tree prevents reasonable development of a lot that is otherwise permissible under city ordinances.

"Most of the trees that were removed were directly in the footprint," she said. "There were a couple in the setback area but were too close to the foundation area to save the trees."

Sullivan said the construction project poses no additional problems.

Joanne Hess, secretary of Save Our City Rehoboth -- a group that aims to preserve the city's character -- said there were ways the trees could have been saved if the Building and Licensing Department changed the location of the home's footprint.

"As the city wrestles with individual cases, it is essential that the intent of the ordinance be followed," she said.

"While the city gains experience with the ordinance, B&L (Building and Licensing) should assign tree protection a greater weight in its decisions, in part because cutting mature trees is irreversible. The city should no longer allow large trees to be cut to marginally expand building footprints."

A public hearing on the issue is set for June 25, when the Parks and Shade Tree Commission will meet.

The city's Board of Commissioners approved a resolution in December to set a tree canopy goal of 40 percent or greater during the next 10 years as part of the city's continued commitment to preserving and enhancing its natural resources.

The city's forest canopy density at the time was 32.75 percent.

Rehoboth Beach has been known as a "Tree City USA" city since 1990.

The recognition is given by the Arbor Day Foundation in cooperation with the U.S. Forest Service and the National Association of State Foresters to recognize communities with a viable tree management plan and program.

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302-537-1881, ext. 208

On Twitter @JonBleiweis

                                    Rehoboth’s Trees in Jeopardy

Despite the city’s landmark Tree Ordinance adopted in 2006, the pictures below demonstrate that the ordinance is not doing what it was intended to do.

BEFORE

trees_before

 

AFTER

trees_after

This lot on Henlopen Avenue was well-treed until recently.  During the demolition of the original house and preparation for new construction, many trees were unnecessarily cut down.  The city approved the following nine trees for removal (the inches refer to the caliper, or diameter, of the trees):


1. 18” oak

2. 18” oak

3. 18” oak

4. 24” oak

5. 24” oak (still standing, pending decision)

6. 10” hickory

7. 12” hickory

8. 12” holly

9. 10” holly


Only one of the trees, a 24” oak, remains standing thanks to the intervention of a neighbor who obtained a Stop Work order from the city.  It remains to be seen whether even this one tree will be saved.

All of these trees are “protected trees” under the ordinance (Sec.253-24 F.) because of their large size and their contribution to the city’s tree canopy and environment.  By law, they must be given special consideration before being cut down.

Many of these trees could have been saved had the Tree Ordinance been enforced according to its intent.

                                                            The Background

In 2006, the Mayor and Commissioners of Rehoboth Beach enacted a tree protection ordinance to safeguard our city's green environment.  Like all ordinances, the Tree Ordinance is subject to interpretation and development of guidance.  The City Building and Licensing Department (B&L), and the Parks and Shade Tree Commission are responsible for its interpretation and implementation. 

                                Balancing Development and Natural Resources

In several recent cases, it appears that greater weight has been assigned to whoever is seeking  a tree-removal permit than to tree protection. It also appears that greater weight has been given to mitigation measures than to protecting the existing trees. Without minimizing the difficulty of these choices, these tradeoffs  (development vs. protection and mitigation vs. protection) seem inconsistent with the purpose of the Tree Ordinance.  As the city wrestles with individual cases, it is essential that the intent of the Ordinance be followed.  While the city gains experience with the Ordinance, B&L should assign tree protection a greater weight in its decisions, in part because cutting mature trees is irreversible. The city should no longer allow large trees to be cut to marginally expand building footprints.

In the long term, sharpening the ordinance to make its intent clear and provide better direction for implementation is essential, but the city should not be unnecessarily allowing the cutting of large trees or because small ones will be planted. 

                                                What Does the Ordinance Say?

The Tree Ordinance provides:

  • “Protected Tree … (3) An existing tree of six inches caliper or more; (4) An existing tree of three inches caliper or more that is in the {front setback} area.” (Sec.253-24 F.)
  • “…all reasonable efforts must be made to save protected trees on a lot (Sec.253-26 F.)
  • “Any protected tree… shall be preserved and protected in accordance with this section, unless the tree prevents reasonable development of a lot…A land-clearing applicant shall demonstrate why the tree should not be protected or why it is not feasible to develop without removing the tree.” (Sec. 253-35 B.)
  • Preserving a specimen tree (24” or greater oaks and hickories, 4” or greater dogwoods and hollies) is “…prima facie a unique or special condition or circumstance peculiar to the land involved. (Sec. 253-35 G.) 

Of the nine trees the city permitted to be cut, four were specimen trees. Only one remains standing.

  • “… a tree-removal permit shall not be granted where the applicant has failed to design and locate the proposed improvements…so as to minimize the removal of trees consistent with the permitted use of the lot and shall be granted only after full consideration of the alternatives…”  (Sec. 253-30 A. (2) (a) [7]) 

By granting tree removal permits for this lot, B&L failed to follow the spirit and intent of the Tree Ordinance.  B&L could and should have declined to approve the plans because the proposed placement of the new structure violated the Tree Ordinance—a clear case of buildings trumping the natural environment.

B&L should have made the owners of the lot alter the design and location of the new building to save the trees.  Instead, they approved the owner’s unaltered plans, disregarding the Tree Ordinance, to favor the size and placement of the building as permitted by the construction code. 

The Ordinance also provides: “When a protected tree…that is at least 24” caliper is to be removed pursuant to a tree removal permit, such permit shall not be issued unless the City Arborist approves a mitigation plan.” (Sec. 253-35 C.) Although mitigation is a component of the ordinance, the spirit of the ordinance is to save as many trees as possible and ONLY IF that cannot be done, then mitigation comes in to play.  In this case, several of the protected trees could have been saved had the building and site plans been altered.                    

B&L actions have already irreversibly cost the city eight mature canopy trees.  The owners of the adjacent lot have appealed the tree cutting to the city’s Parks and Shade Tree Commission to clarify the primacy of the Tree Ordinance and to preserve the last tree.

                                              What can you do?

The owners of the adjacent lot have appealed the tree-removal permits to the city’s Parks and Shade Tree Commission.  When we know the date of the hearing before the Committee, we will let you know.  Please go to the hearing and testify in support of the proper interpretation of the Tree Ordinance. If you cannot attend the meeting, please write to the members of the Commission, with copies to the Mayor and Commissioners. We will provide addresses, names. In the meantime, we will keep you informed of additional developments regarding this property and any others where we see trees unnecessarily endangered.