HomeMy WebLinkAbout1/22/2024 Item 4a, Rourke (4)
Wilbanks, Megan
From:John Rourke <rourkefam@gmail.com>
Sent:Monday, January 22, 2024 3:16 PM
To:CityClerk
Subject:Fwd: Statment
Attachments:appeal statment.docx
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please provide to tree committee
---------- Forwarded message ---------
From: John Rourke <rourkefam@gmail.com>
Date: Mon, Jan 22, 2024 at 3:03 PM
Subject: Fwd: Statment
To: Symens, Sadie <ssymens@slocity.org>
---------- Forwarded message ---------
From: John Rourke <rourkefam@gmail.com>
Date: Mon, Jan 22, 2024 at 1:28 PM
Subject: Statment
To: Whipple, Anthony <awhipple@slocity.org>
attached is my appeal statement. please provide to the tree committee with the pictures. I will bring extra copies as
well.
Thanks
John
1
Thank you for this opportunity to appeal the fines. I have been doing infill development in the
city of San Luis Obispo since 2005. During those years I have worked well with Ron Combs, the
previous arborist. I worked closely with him ensuring the safety of the trees surrounding my
developments. I've included pictures of homes I have built around trees in cooperation with Ron.
Trees that I could have cut down I have worked with Ron to preserve and incorporate with the
new landscape. I have had several occasions over those years where neighbors unfamiliar with
the tree code call and complain about my cutting down or pruning trees. Every instance of that
happening prior to this one Ron and I would go over what I did and how it was in accordance
with his instructions over the years and I was never found in violation previous to this one.
The difference between this instance and the prior meetings was the interpretation by a new
acting arborist, Anthony Whipple. I was sad to learn that Ron had retired, he was great to work
with but I found Anthony to be a worthy replacement. I felt that, like me, he was dealing with an
awkward situation and was willing to have a conversation and come up with a solution. There
were several trees he voiced concern on and I explained how I had been instructed by Ron to
determine whether a tree could be removed or not. Ron instructed me to hold a tape measure at
chest height to the trunk of the tree, if it was under 10 inches (20 if non native) it could be cut
down. Anthony preferred a method of wrapping a tool around a tree (it resembled a bike chain)
and that gave him the diameter. I asked him the name of the tool, he told me at the time and I
have since forgotten. I have asked several times since and still haven't gotten an answer. Of all
the trees in question Anthony felt 3 were trimmed in violation of city standards. 2 of them I
showed him the diameter was under 10” by holding up the tape measure at chest height as Ron
Combs had instructed me and I explained that this allowed me to cut them down completely, I
chose instead to reshape the canopies to keep them long term. He disagreed with Ron’s
method and measured them with his tool, which he stated was over 10”. I told him it was
unreasonable to fault me for not measuring that way since I was measuring and acting under
the previous arborist instruction. I was under the impression that he agreed. The 3rd tree was a
larger tree, not sure the diameter, we never measured it. He told me I had over-trimmed the
canopy. I had never heard of this issue before and asked how much am I allowed to trim? He
told me no more than ⅓. I asked him how often, he wasn't sure at the time, we later found out it
was per season. I also asked how the ⅓ is calculated. To this day I have not received an
answer and I think it is unreasonable to levy a fine based on an assumption, from what I can tell
no one knows how this is measured. We obviously disagreed but I felt like he understood this
was how it was handled in the past and I was willing to work with him on how to proceed in the
future. He suggested I hire an arborist to do a canopy restoration plan on the three trees and
follow it to preserve the trees in the future. This was presented as the mitigation for this situation
and I was led to believe this would satisfy the complaint. I agreed to it since my plan was to
keep the trees anyway and I felt this would be a showing of good faith to the new arborist I'm
sure to spend years interacting with. I got a restoration plan, sent it to Anthony and believed the
issue was resolved.
Later I received a letter from Anthony stating that upon review by public works staff and the city
attorney office it was determined I had damaged the trees (citing removal of more than ⅓ of
their canopies) and that I was fined $16,040 as a result. I appealed this decision and about a
month later I received a letter explaining that the fine had been reduced by half to $8,020 since
the City had fined me assuming this was part of a development which carries 4x fines. I filed a
public information request to get more info on how it was decided to fine me. I felt that it was
done with prejudice since the city attorney's office and I have been arguing over application of
state law for a while. I was told my request would take 4 months to process, instead it took 2
years. After receiving the info I found that the city refused to provide me with info regarding the
decision making progress claiming attorney client privilege. I then turned my focus to
justification of the fines in the first place. I've found that the city does not have answers (or is
choosing not to provide answers) to the following questions.
What was the diameter of each tree that I am being fined for? In an email last week Anthony
said they were each 10". This is incorrect.
What tool (specific name, it looked like a bike chain) was used to determine the diameter?
What was the percentage of canopy removed for each tree that the city determined had been
over trimmed?
Code says 1/3 (33%) can be trimmed, how did the city determine the percentage of canopy
removed?
Please confirm that the city cannot enforce illegal trimming of a tree that is under the diameter
allowing removal. It seems unreasonable to enforce laws on a tree that can be removed.
Please confirm that local arborists have been informed that the city no longer accepts a
measuring tape held across the trunk 4.5 feet off the ground as an acceptable method to
measure diameter. I have been told by arborists that this is still the method used to determine if
a tree can be cut down.
I also believe the city is in violation of my due process rights. The five elements of due process
are,
Equality. The system must not discriminate procedurally
between parties. If one party is entitled to counsel, then all
are entitled. If notice is provided one, it must be provided
for all. The essential requirement for Equality is that the
system provide a “level playing field" for the disputants.
Discrimination in appearance or fact is contrary to the
Equality required to satisfy due process.
I believe the city is being overly assertive of its laws against me
because I am a developer. The only other instance I have found
of the city acting so harshly was another developer. I believe
the city is more forgiving of other citizens.
Economy. The cost of access to the system must not be a
barrier to its use or operate to the disadvantage of one or
the other parties. This means that grievance and
arbitration proceedings should not be made a Board profit
center and, in fact, may have to become subsidized to
assure open access.
There is not sufficient warning that the city's interpretation of
its tree laws can, without warning, result in fines in the 10s of
thousands of dollars. All other infractions in the city have
warnings, why is this an exception?
Expedition. As “justice delayed is frequently justice
denied,” there is an affirmative obligation on the part of
the system to expedite ethics and arbitration proceedings.
This does not foreclose orderly procedure with adequate
time to ensure notice, time to prepare, opportunity to
identify and gather witnesses, and otherwise develop facts
and arguments. It does, however, foreclose stall tactics,
unreasonable extension of time, and protraction of
hearings.
I submitted an information request back when the fines were
established. I was told it would take 4 months, It took over 2
years to receive the information I requested for my appeal.
Since receiving that initial inform ation I have requested follow
up information and am being denied that information I need
for my appeal. Please provide the answers to the questions I
have asked.
Evidence. The system must be designed and function to
elicit evidence, not assumptions; proof, not presumptions.
While strict rules of evidence in the judicial sense do not
apply, there must be control of what is admitted as
relevant and judgment as to wha t is mere speculation and
hearsay designed to prejudice rather than inform.
I've asked for evidence several times. What was the diameter
of the trees? What was the percentage of canopy removal?
The city's decision to fine me was based on Assumptions and
Presumptions.
Equity. The system must produce decisions that reflect a
sense and substance of “rightness” and “reasonableness.”
In matters involving unethical conduct, the punishment
should fit the offense. The judgment should reflect
consideration of extenuating circum stances and a
balancing of competing values and objectives. Moreover,
the predictability, consistency, and uniformity of the
system’s performance is an important measure of Equity.
I don't think the decision to fine me was made in rightness and
reasonableness. As stated above the punishment should fit the offense.
It is obvious that the city did not take into account the extenuating
circumstances (the interpretation difference between previous and
current city arborist, I was following the methods taught to me by the
previous arborist). The way the city is interpreting its codes is not
predictable, consistent or uniform in this case and makes me worry
about future altercations.
Because of the city’s refusal to answer my questions, my ability to
provide the committee with information in advance has been
compromised.
I have also provided pictures of the trees in question taken yesterday.
As you can see they are doing very well, you are more than welcome to
come inspect them.
Thanks
John Rourke