Piccolo Memorandum

MEMORANDUM

February 9, 2006

TO:   Mayor Dennis Hession
   Joe Shogan, City Council President
   Members of the City Council
   Jack Lynch, Deputy Mayor

FROM:   Michael J. Piccolo, Assistant City Attorney

SUBJECT:   Bernard Street Trees

CC:   Roger Flint, Director of Public Works and Utilities
   Mike Stone, Director of Parks
   Tom Arnold, Director of Engineering Services
   Scott Egger, Director of Streets
   Howard Delaney, Acting City Attorney

There are numerous provisions in the Spokane Municipal Code and Comprehensive Plan regarding street trees. This memorandum will attempt to summarize the more relevant provisions.

SMC 12.02.912 A. provides that the “director” may authorize or order removal of or may remove street trees situated in the right-of-way whenever:

1.   The tree or shrub is hazardous or other good cause.
2.   The tree or shrub is damaging public improvements or public utilities and removal is necessary because of the installation of, or potential or actual damage to, a sidewalk, parkway, curb, gutter, pavement, sewer line, underground utility or other municipal improvement.
3.   There is infection or infestation of trees or shrubs with a disease or pest detrimental to the growth, health or life of such trees and which infection or infestation cannot be controlled or removed.
4.   The vegetation obstructs rights-of-way, authorized traffic signs or is determined to interfere with line of sight or creates other identified traffic or safety concerns.
5.   The tree’s health is severely degraded because of improper pruning, including severe crown reduction.
SMC 12.02.912 B and C provide that when the Engineering Services Department determines that vegetation obstructs a public right-of-way, the Engineering Services Department notifies the Director of Parks. The Director shall require replacement with trees or shrubs that are appropriate for the location, unless replacement is not possible.

SMC 12.02.912 E. provides that for city projects which will require removing one or more trees, the “department” will notify the property owners thirty days prior to the proposed date of removal and a copy of the notice shall be delivered to the Office of Neighborhood Services.

Under the Urban Forestry Program, SMC 12.02.900-.958, the Parks Director is designated as the responsible official for administering the program. SMC 12.02.904 B. The term director is defined to mean the Director of Parks and Recreation. SMC 12.02.936.

There are also provisions of the Urban Forestry Program regarding decisions of the Director of Parks being appealed first to the Urban Forestry Tree Committee, then to the Hearing Examiner and finally to court. However, a decision by the Director of Engineering Services that trees have to be removed for a public works project and the notice issued pursuant to SMC 12.02.912 E. are, arguably, not decisions of the Director of Parks subject to appeal. At a minimum, the Director of Engineering Services should provide notice to the Parks Director that certain streets trees will need to be removed because of a public works project. The Parks Department, perhaps in conjunction with the Engineering Department, should provide written notice to the affected property owners at least thirty days prior to the proposed date of removal, along with a copy to the Department of Neighborhood Services. I would also suggest sending copies through the Department of Neighborhood Services to the affected neighborhood councils.

City departments are authorized to obtain an annual permit to perform pruning, planting, or removal of trees within the right-of-way. SMC 12.02.910 D. The permit imposes the responsibility to include an annual plan that identifies work that will be done during the year and the filing of a quarterly report which will identify all work done on street trees and trees in public places.

There are also several provisions of the SMC regarding the duties of property owners in regards to trees. SMC 12.02.0202 provides that owners of property must remove or destroy all trees which are growing on their property in such a manner as to obstruct or impair the free and full use of the sidewalk or street by the public and that such condition is a nuisance.

The City’s Comprehensive Plan also refers to street trees. Transportation Policy 7.4 refers to street trees in regards to pedestrian buffer strips. Transportation Policy 7.3, entitled “Street Trees,” provides: “Planting street trees wherever possible to enhance the transportation environment.”   Policy 7.3 also states that:1) one concern in planning for street trees is to ensure that public safety is protected by preventing sidewalks and curbs from being damaged by tree roots and 2) poorly selected or poorly maintained tress can present other problems, including interfering with overhead utility lines and underground utilities. Natural environment Policy 12.1 provides that installing street trees planted in buffer strips between the curb and sidewalk should be included in every street project or private development. Design/Preservation Policy 1.3 provides that the City must establish a no-net-loss position for the existing quantity of urban trees and develop a mechanism to require tree replacement on public lands, and recognizes that while it is impractical to require replacement trees to be of like size, the existing character, site, and the desired effect should be considered in determining the minimum size and species. Transportation Policy 4.2 provides that Street trees should be planted “wherever possible to enhance the transportation environment” and that street trees should be a part of the streetscape, wherever possible. In conjunction with the Bernard Street Reconstruction Project, the City is proposing to replace the estimated twenty-two trees with twenty-four new trees.

I cannot find any provision of the municipal code or the comprehensive plan that would prohibit the removal of street trees when necessary for street construction. Nor can I find any provision that gives exclusive jurisdiction to the Urban Forestry Program so as to mandate that a public works program could not go forward if a street tree was to be removed.

Certainly the municipal code and comprehensive plan encourage and even require the development of an urban forestry program and the protection of street trees. But the code and plan also recognize the need for a replacement program and the prevention and elimination of street trees that cause damage to the public right-of-way, including sidewalks, curbs, utilities and streets. However, neither the municipal code nor the comprehensive plan prohibits the removal of street trees when required due to a public works project. The comprehensive plan would require the City to have a plan for the replacement of street trees, which is contemplated with the Bernard Street Reconstruction Project.

It is my recommendation that the Engineering Services Department should notify the Director of Parks to inform him of the nature and scope of the project, the reason why certain street trees will need to be removed and the replacement plan. The Engineering Services Department should also consult with the Urban Forestry Tree Committee and the Park Department’s arborist to determine what type of replacement trees would be best for the location. The Engineering Services and Parks departments should also send the required notice to the affected property owners. Finally, the Engineering Services Department and other departments in a similar situation should obtain an annual street tree permit as set forth in SMC 12.02.910 D.