If a tree falls in the city: Residents push to update Asheville’s tree ordinances

“I am the Lorax who speaks for the trees, which you seem to be chopping as fast as you please!” cries the title character of Theodore Geisel’s classic children’s book The Lorax.

More Asheville residents seem to be taking the Lorax’s admonition to heart: Increasingly, they are calling for reform of current tree ordinances governing private and city properties, which they believe do not go far enough in regulating what is cut down and how the process is overseen.

However, like Dr. Seuss’ fictional narrator Once-ler, a community can all too easily do irreparable harm to its trees, often by death from a million small cuts. “It’s not any one person cutting down all the trees,” says Mike Kenton, a certified arborist and chair of the Asheville Tree Commission, “but you have a wide variety of projects going on all over the city. It adds up.”

In response to community concerns, citizen activists, members of Asheville’s Tree Commission and city officials are exploring the possibility of increased oversight on how trees are managed within the city limits. But with a lack of definition in key parts of the city’s policy, and obstacles at the state level impeding regulations on private property, updating Asheville’s tree ordinances is proving to be an uphill battle.

A growing concern

“The benefit of trees is astronomical,” notes Kenton. “Retaining stormwater runoff, sequestering carbon, cleaning the air, shade on a hot day — no matter how you vote, or what your stance is, you benefit from what trees give us.”

Since being appointed to the Tree Commission in 2010, Kenton says he’s fielded a growing number of calls from concerned residents regarding the removal of trees on private property, and more recently, city-owned land.

The complaints include Duke Energy contractors pruning trees around utility infrastructure; the scheduling of over 100 trees to be cut to make room for the Beaucatcher Greenway; the recent removal of several mature sycamores at the privately owned Country Club of Asheville; and preliminary right-of-way clearing along the French Broad River in preparation for the River Arts District Transportation Infrastructure Project, which begins next spring.

In the South Slope neighborhood, efforts continue to save a stand of mature oaks on Collier Avenue [See “Oaks’ Last Stand,” Jan. 29, Xpress], as activists continue to try to raise enough money to purchase the land or find a suitable alternative property to exchange with the developer.

“The level of complaints and inquiries in recent years has been commensurate with the growth our city is seeing, and is generally the same as other infrastructure that the city maintains,” says Public Works Director Greg Shuler, whose department oversees tree issues on city property.  He notes that the city responds to specific complaints based on the severity of the issue and available resources.

City Councilman Cecil Bothwell, who serves as Council’s liaison to the Tree Commission, concurs: “There’s definitely been an increase in concern about tree loss, reflected in more citizen attendance at Tree Commission meetings. While Asheville is surrounded by national forests, the tree canopy within the city is falling fast. We can and should do more to actually protect our trees.”

While Tree Commission tries to act as the voice of citizens in these matters and can offer advice to city officials on projects, with little regulatory authority, there’s not much it can do to actually impact the direction tree removal takes. “Every time something like [those projects] happen, my email blows up,” Kenton notes. “Everyone wants me to do something, but I can’t.”

Root of the issue

Key to understanding Asheville’s current tree ordinances is knowing the differences between the governance of tree removal on private property and that which occurs on city-owned land.

Currently, the only restrictions to tree removal on private property, according to Kenton, concern trees affected by the steep slope ordinance (Section 7-12-4 of the Unified Development Ordinance), trees within the Montford Historic District and those included in landscaping ordinances on commercial properties.

When it comes to city-owned trees, oversight on removal and pruning often depends on the department a project falls under. While Kenton readily acknowledges that the Public Works Department, specifically city Arborist Mark Foster, “have tree protection as a top priority,” he adds that “there are city trees beyond his control.”

One example are those of the Beaucatcher Greenway, which fall under the authority of the Parks and Recreation Department. Last year, the Tree Commission, working with Bothwell, facilitated a meeting between Parks and Recreation officials and citizens to discuss concerns over tree removals associated with the project. [See “Forest for the trees?” Mar. 2, Xpress]. Residents were able to work out a compromise with the city to spare some of the trees on Beaucatcher, including a 211-year-old red oak.

Recent tree removal work in the River Arts District has raised concerns among several community members, including former mayor Leni Sitnick, who questioned what effect the removal would have on riverbank erosion [See “Cutting to the chase,” Sept. 9, Xpress].

“Natural buffers are the single most effective shoreline stabilization method for the investment,” says Amy Adams, a former regional office supervisor for the North Carolina Department of Environmental Quality and current campaign coordinator for the nonprofit Appalachian Voices. In addition to erosion control, Adams says trees along streambanks provide protection against floodwaters and are essential to maintaining a healthy ecosystem.

In response to community concenrs, the city issued a statement to RAD stakeholders on Sept. 9, ensuring them that the root structures of removed trees and shrubbery would be left in place until new trees could be planted at a later date. Bothwell adds that he’s been assured by city staff that “the only trees being removed are either unhealthy, “weed trees” or absolutely necessary.”

Adams, however, notes that while “the functions of the root system would temporarily survive after removal of the buffer, only a healthy growing root system is capable of nutrient-removal and bank-stabilization functions of buffers.”

And Royce Clay, owner of Royce’s Tree Service and former arborist crew leader for the Biltmore Estate, writes in a open letter and report published on AshevilleRiverGate.com that while replanting trees is a an effective way to stem erosion, “[a] more efficient and cost-effective way is to not cut down the trees in the first place. Stands like [those found in the 12 Bones property’s vicinity], with trees from 50-100 years old, take exactly that long to replace.”

Opaque ordinances

Asheville’s tree ordinance Chapter 20-1 identifies “that trees have a profound effect on the quality of life in the community, [which] deems it necessary and desirable in the interest of public health, safety and welfare to enact an ordinance for the preservation, planting, replacement and removal of trees without denying the reasonable use and enjoyment of real property.”

Several important components of the city’s ordinances, however, are incomplete or vague. Section 20-4 defines a “historic tree” as “a tree that has been specifically designated by the Asheville City Council as historic,” yet, according to Bothwell, “There is no definition of ‘historic’ and the designation carries no protection.”

Furthermore, he notes, “the designation is annual — so an owner would have to reapply each year, for each tree, and the designation doesn’t continue with a new owner. It’s an incredibly stupid rule.”

Section 20-5 mandates the formulation of a Master Street Tree Plan in regards to city trees, which would “specify the species for tree planting … [and] also identify all regulated trees by type and location that have been specifically designated by the Asheville City Council as historic trees.” Further, the Parks and Recreation director would be responsible for formulating the plan, according to the ordinance, which would then be submitted to the Tree Commission and City Council for review before implementation.

The only problem is, the MSTP was never created. “We do not have a Master Street Tree Plan at this time,” says Shuler, adding that “If a plan is created, Public Works would facilitate that work with input from Parks and Recreation, Development Services, Planning and Urban Design, and the Sustainability Office.”

But several citizens, including William Spoon — one of the catalysts behind the call to revise the original Beaucatcher Greenway plans — believe that the city should work to immediately implement the MSTP, as called for in the Unified Development Ordinance.

“If the city wants to make tree protection a priority for citizens and private property, they need to lead by example,” Spoon says. “If created as required in the municode, this document could provide some critical protection to trees in Asheville.”

For his part, Shuler says, “Any changes to the ordinance(s) would ultimately be a City Council decision with advice from the City Attorney’s Office.” However, he continues, “Trees are a huge part of what makes our city so great and the quality of life what it is,” adding that “communication and forward thinking will help achieve what the ordinance describes.”

Trees by numbers

Spoon also worries that the city has not done enough to document the approximate number of trees contained on city property, or those within city limits in general. “The city doesn’t track how many trees have been removed on city property or how many are being considered for removal for the many large, upcoming projects,” he asserts.

Seeking answers, Spoon filed a Freedom of Information Act request on June 3, asking for documentation of all city plans going back to 2010 that involved tree removal or replanting, in order to compile on his own the number of trees removed.

However, information has been slow in coming, he says. “The City Attorney’s office has not provided a single city plan so that I can begin compiling the numbers, ages and types of trees that have been removed or are slated to be removed on city property.”

When asked for an approximation of how many trees or forest acreage the city oversees, Shuler says that the city maintains approximately 410 miles of roads and associated rights of way, which would include street trees, planting strips and naturally occurring trees in forested areas along the roadside. But with so many variables between these rights of way, “it would be difficult to say exactly how many acres we oversee,” he notes.

In the meantime, Spoon is working with local Forest Service officials to develop an estimate of the city’s urban tree canopy cover as a percentage of the city’s space,  a number he says the city currently does not have.

Shuler verifies that the City of Asheville does not track canopy cover percentages, nor does it have a goal percentage at this time. However, he added, Public Works is in preliminary discussion with other departments about developing such a record.

In an effort to provide some sort of record of trees within city limits, the Tree Commission has developed an interactive Asheville Tree Map, Bothwell says. Any resident is invited to add any tree within the city to the map, as well as details such as the species, DBH (diameter at breast height, a commonly used measure of tree size), height and condition of each tree. The tree map also calculates monetary values based on carbon dioxide stored, water retained and air quality.

“This is one way to encourage people to see the value of the tree as it is and weigh it against whatever reasons might be offered for removal,” says Bothwell.

Keeping up with the Joneses

While Asheville has been designated a “Tree City USA” since 1980, the city’s tree ordinances, compared with those of other municipalities in the Southeast, are less rigorous. “Other cities in N.C. and across the country do much more to preserve their urban forests,” Bothwell contends.

In Atlanta, for example, residents are required to apply for a free online permit before cutting any tree more than 6 inches in diameter at DBH (about four and a half feet from the ground), Kenton notes.

“Within a week or two, [the city] sends one of the city arborists out, [and] if your request is reasonable, they approve it,” he says. “[Atlanta’s] tree ordinance has been in effect for many, many years, and it’s very popular with the citizens and the tree services.”

Atlanta residents who cut or remove trees without a permit are subject to hefty fines ranging into the thousands of dollars. Any fines levied by the city are then placed into a tree replanting fund, according to Kenton.

Charlotte, meanwhile, has established “tree save” and “tree protection” zones that include private property, in which “no tree equal to or larger than two (2) inches caliper may be trimmed, pruned, or removed from the tree save area, and no tree equal to or larger than eight (8) inches caliper may be trimmed, pruned, or removed from the tree protection zone, without a permit,” according to the city ordinance. In addition, the practice of topping trees is prohibited, and all development projects besides single-family homes must include a tree survey prior to construction.

Climbing legislative limbs

If other cities have such stringent tree removal policies, specifically in regards to private property, why not Asheville? Part of the answer, says Kenton, is a policy that dates back to the late 1800s.

“There’s a thing called Dillon’s Rule in North Carolina,” he reveals, “where if a municipality wants to have stronger environmental regulations on their books than [required at] the state level, it requires approval from the General Assembly.” While cities like Charlotte had their expanded ordinances approved by the state legislature in the past, Kenton says the current political climate in Raleigh makes Asheville’s chances of doing the same much more difficult.

Recently, members of the Tree Commission met with Buncombe County representatives Susan Fisher, Brian Turner and John Ager and Sen. Terry Van Duyn to discuss the possibility of gaining the General Assembly’s approval to implement stricter control over private property tree maintenance.

Fisher, whose District 114 includes much of Asheville, says that while she needs more data before taking a firm position on the possibility of strengthening the tree ordinances, she is hoping local representatives can work with the city and the Tree Commission to explore the possibility.

“I’d like to work with them collaboratively on coming up with something that will serve as more of a protection at least for the historic trees that we have,” she says. “We’ll wait for more input from the Tree Commission as well as the city of Asheville, and go from there once the legislative session begins in January.”

Branching out to business

Central to gaining traction in the General Assembly, Kenton says, is the cooperation of business stakeholders in and around Asheville. “We have to bring [business stakeholders] in, show them what we’re doing, make it worth their while,” he reports. “For us to get this to pass in the General Assembly, we’ve got to make this business-friendly.”

While stakeholders have largely expressed a willingness to work with the city on ordinance updates, most are reticent to throw their support behind the idea until more concrete details emerge.

Duke Energy spokesman Jason Walls said that it would be inappropriate for Duke to speculate on an ordinance change that doesn’t yet exist, but commented,“We pride ourselves on working collaboratively with the city and our customers to address issues and concerns.”

“Personally, I like trees,” says Harry Pilos, a managing member of Delphi Development. “I [also] believe in the rights of the property owners to do as they wish with their property. It doesn’t seem right to have people with no skin in the game dictating tree issues to the taxpayer.”

Bothwell acknowledges that the issue of expanded ordinances “does run smack into the debate about public good versus private property rights,” but believes that “a lot of Asheville residents are eager to be ‘green’ and to make our city greener.”

But how the city goes about that will determine the support it receives. Asheville resident and former Zoning Board of Adjustment chairman Richard Bass agrees that the current ordinances are weak, but believes the city should move carefully before exercising stricter control over private property owners.

“I’m all for everything green, but I want it to be my choice,” he says, comparing the current debate over tree ordinances to ones he oversaw several years ago when the city implemented a new sign ordinance, and a number of residents in favor of it later argued for variances for their own businesses.

“A lot of times people don’t realize these rules apply to them, too,” Bass adds. “[A new tree ordinance] has to be really defined and very clear, and there has to be an appeal process as well for someone to go to. Once these things start, it’s hard to reverse them.”

Speaking for the trees

While the path to a more clearly defined, broader tree ordinance for both private and city property seems littered with obstacles, those advocating for stronger tree protections say they’ll keep working to see their goals become a reality.

Bothwell notes that city officials are exploring the possibility of requiring a tree survey on all development projects, similar to Charlotte’s ordinance. “This wouldn’t impose a ban on cutting, but would introduce a pause in plans to more carefully evaluate trees on a parcel and options other than bulldozing,” he says. “We need some rules concerning trees on private land — this doesn’t have to be prohibitive, but simply a step to slow the massacre.”

In the wake of public outcry over the Beaucatcher Greenway plans, the Tree Commission formed the Tree Protection subcommittee, which is tasked with strengthening the tree ordinance for protection on private property and figuring out ways to have better oversight of trees on city property, according to Kenton.

The Tree Commission has also launched the “Love Your Tree” campaign, which aims to educate the public on proper pruning and tree care techniques, which native trees work best in a given environment and which trees add to the city’s aesthetic goals.

While Kenton’s term as chair of the Tree Commission ends this year, he is hopeful that others will continue to push the effort of expanding tree ordinances further. “I’m still going to be on subcommittees; Cecil will still be there,” he says. “Other tree lovers will take my place, reasonable people who are knowledgeable. We’re going to continue to try to get better protection.”

Continuing those efforts is key to any forward progress, for as Geisel’s Once-ler realizes at the end of The Lorax, “Unless someone like you cares a whole awful lot, nothing is going to get better. It’s not.”