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HomeMy WebLinkAbout1/22/2024 Item 4a, Rourke - Handouts provided during the meetingPlease answer these questions 1. What was the diameter of each tree that I am being fined for? Fee is based on this and the number stated by the city is incorrect. 2. What tool (specifically the name, it looked like a bike chain) was used to determine the diameter? How does it determine diameter? 3. What was the percentage of canopy removed from 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? It can't be an assumption, it has to be quantifiable. 4. 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. Can the city cite another instance of this? S. 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. Why am I held to a different standard? 6. The fee seems to be based on tree replacement, the trees in question are all alive and well. How can the city justify fining me to replace trees that are still there. Do the fines actually go toward planting trees? 7. Why was there no warning? Other fees in the city have warnings and then fees. After 15 years of working with the arborist why fine especially considering the circumstances. Thank you forth is 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 1 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 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". 1 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 1/3. 1 asked him how often, he wasn't sure at the time, we later found out it was per season. I also asked how the 1/3 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 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 show 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 1/3 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. 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 (specifically the name, it looked like a bike chain) was used to determine the diameter? What was the percentage of canopy removed from 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 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 los of thousands of dollars. All other infractions in the city have warnings, why is this an exception? Expedition. `justice delayed is justice denied," there is an affirmative obligation on the part of the system to expedite ethics and arbitration proceedings. This does not preclude 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, preclude stall tactics, unreasonable extension of time, and protraction of hearings. submitted an information request back with my appeal. I was told it would take 4 months, It took over 2 years. Since receiving that initial information I have requested follow up information and am being denied that right. I need it 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 what is mere speculation and hearsay designed to prejudge 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, facts regarding methods have not been provided. 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 circumstances 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, I need clarity. 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 0 W-r �..,• i �- +r?'-* t', ,r5\ �'.+ .'ale '� •i 7Ati wJ''+T� t� , "YY !�-. Z ' d .} - ' 4 % `-fir �.'..=.!k• ' e „r - •"' y .. r. 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