DECISION OF THE HEARINGS OFFICIAL
FOR THE CITY OF EUGENE, OREGON

DECISION ON APPEAL OF CIVIL PENALTY
ASSESSED PURSUANT TO EUGENE CODE (EC) 2.018(5)

Removal of trees from lots prior to the submittal of a building permit application, in violation of a performance agreement entered into pursuant to approval of a planned unit development.

Background

The subject property includes approximately 43 acres on a site with significant development constraints, including wetlands, steep topography and riparian corridors. In 2005, Real Estate Development Group ("Real Estate Development Group" or "developer") applied for planned unit development approval (PDT 05-7) to create a 102-lot residential subdivision on the property. The proposal included conservation areas that encompassed the riparian corridors and the largest wetland. PDT 05-7 was approved in June 2006, subject to 27 conditions of approval.

Some of the conditions of approval included in PDT 05-7 were imposed to address city standards that require the identification of significant (greater than 8-inch dbh) trees, and the preservation of as many of those trees as is "feasible." The applicant’s tree preservation plan identified approximately 1,000 trees, but noted that most of the trees outside of the conservation areas would have be removed to accommodate the proposed residential development. The applicant did, however, propose to preserve at least one large-diameter tree located outside of the conservation areas, near the property line of proposed lots 33 and 34. In response to neighbors’ concerns that the applicant would unnecessarily clear cut the development area before dwellings were proposed for individual lots, the applicant agreed to a condition of approval that, for the most part, prohibited the removal of trees within lot lines prior to the submittal of a building permit.

Real Estate Development Group obtained final PUD approval in 2007 (PDF 06-6). The final tree preservation plan approved in PDF 06-6 identified the trees to be preserved. In accordance with EC 9.7025, Real Estate Development Group and the City entered into a performance agreement. The agreement describes the approval, and binds the developer to the conditions of approval set out in the final plan. In addition, in the event of a material breach of the agreement, the agreement provides that the city has the right to refuse to issue further development permits until the developer remedies the violations. The agreement also provides that the city has the right to pursue any other remedies that may be available under "applicable City law." PDF 06-6 Development Agreement, 3.

After the development agreement was signed, the developer obtained approval to construct privately engineered public improvements (PEPIs) within street rights-of-way and utility easements. The developer’s surveyor staked out the location of the utility easements and rights-of-way. Kipco, Inc., the developer’s construction contractor, commenced construction of the improvements. During the course of construction, Kipco, Inc. discovered that some of the trees located on lots 21 through 24 would have to be removed. In mid-July 2007, the city approved the removal of those trees, concluding that the applicant had demonstrated that at least 30 percent of the root zone would be lost as a result of the slope improvements.

On October 10, 2007, the city received information that the applicant had removed trees in violation of the development agreement. On October 19, 2007, staff met with representatives of the developer’s project team, including Kipp Knode and Tony Favreau. The developer’s representatives informed city staff that the tree preservation plan was inaccurate, and that many of the trees that were located within lot lines on the plan were either located within utility or right-of-way easements or did not exist.

City staff walked the site, comparing the location of the trees with the location identified on the site plan. Staff concluded that trees had been removed from 27 residential lots without prior approval from the city. The city then issued a Notice of Civil Penalty, assessing $10,800.00 in fines for the unpermitted removal of trees.

On November 15, 2007, Kipco, Inc. appealed the civil penalty, arguing that (1) none of the trees located outside of the staked easements had been removed; and (2) the developers’ actions did not warrant the assessment of any civil penalties.

At the November 28, 2007 public hearing on the appeal, Kipp Knode appeared on behalf of Kipco, Inc. Mark Vukanovich appeared on behalf of the developer, and Tony Favreau appeared on his own behalf. The city was represented by Mike McKerrow and Matt Denberg. A representative from Laurel Hill Neighborhood Association testified, requesting that the maximum penalties be imposed if a violation occurred, so as to reflect the severity of the loss of trees.

It is important to consider the grounds for the Notice of Civil Penalty, and the scope of the alleged violation. First, none of the trees in question were identified as "to be preserved" on the Tree Preservation Plan. The trees were identified, but both the developer and the city understood that most of the trees would be removed during the course of development on individual lots. Thus, the question is not whether the Tree Preservation Plan provisions that required certain trees to be preserved were violated, but whether the appellant violated provisions that were intended to address the timing of tree removal. If the applicant removed trees in error, the question then turns to the type and scope of remedies that are available to rectify the loss of the trees.

EC 9.7025(2) provides that an applicant must enter into a performance agreement with the city to assure "construction performance in accordance with the approved final plans." If an applicant or an applicant’s successor in interest violates or fails to comply with any of the provisions of the performance agreement or the final approved plan, EC 9.7025(7) provides that the city "may invoke the enforcement procedures provided for in the performance agreement, or under applicable law, or both." In this case, the city has assessed civil penalties pursuant to EC 2.018 rather than withhold development permits.

The approved Tree Preservation Plan includes 14 "notes." These notes are included on the plan to aid the developer’s agents as they commence construction on the property. In this case, three notes are pertinent to this appeal. They provide:

Per notes 10 and 12, trees designated for removal that are also located within street, slope or utility easements may be removed by the developer without approval by the city. However, trees located outside of the utility, slope and right-of-way easements, and within the boundaries of residential lots, may only be removed (a) if it demonstrated that the tree is dead or diseased, and the removal is approved by the city, or (b) after a building permit has been submitted for development on the particular lot.

Matt Denberg identified the lots where trees were alleged removed without the city’s approval. Those lots include: 1, 6, 7, 8, 14, 21, 22, 25, 33, 35, 37, 38, 40, 50, 51, 52, 55, 61, 70, 71, 72, 87, 88, 92, 100, 101 and 102. In response, Kipco, Inc. provided a memorandum where each of the lots is identified along with an explanation of the applicant’s position with respect to the city’s allegations. For the most part, Kipco Inc.’s response relies on the fact that there are discrepancies between the tree preservation plan and the location of trees in the field, and to the extent there is a discrepancy, the developer relied on the staked slope, utility and right-of-way easement lines rather than the lines depicted on the tree preservation plan.

City staff argues that if the applicant intended to remove trees based on the staked lines rather than the plan lines, that intention should have been communicated to and approved by the city before the developer proceeded to remove the trees. Staff asserts that they rely on the approved drawings to show the location of the trees within the lot lines and expect the developers to do so as well.

The developers respond that individual trees are very hard to locate precisely and that they work to minimize the impact of the development on all of the trees, even though most of the trees will be removed when the dwelling units on the lots are constructed. They argue that it is appropriate to rely on the staked easements because they better reflect real-world conditions.

The hearings official notes that with respect to trees to be preserved, the developer’s concerns regarding potential inaccuracies in a tree survey are resolved in Note 11, which allows the replacement of trees that are "removed due to a discrepancy [between] its field verified location vs. the location shown on the plan." However, no such provision applies to the trees removed here, because none of the trees that were allegedly removed are "trees to be preserved."

The condition of approval at issue here was imposed at the request of the developer, and does not correlate to any particular development standard set out in EC Title 9. I conclude that under these circumstances, it is appropriate to interpret the condition to allow the removal of trees located within the field-verified location of utility, slope and rights-of-way easements rather than rely on the approved plans to depict the location of those trees in relation to easement lines. Such an interpretation promotes efforts by a developer to retain trees where it is feasible, without penalizing the developer for discrepancies between the approved tree preservation plan and field conditions.

This interpretation also helps the city in its inspections by allowing the city to rely on staked easements in the field rather than having to compare the relationship between trees that are depicted on a plan and trees that are located in the field.

Based on the interpretation of the conditions of approval and the Preservation Plan notes, I conclude that there is insufficient evidence to show that Kipco, Inc. violated the terms of the development agreement by removing trees as the city alleges.

There is an alternative basis for concluding that the city erred in assessing the civil penalty. EC 2.018(7) places the burden on the city to demonstrate that a violation has occurred. I conclude that with respect to lots 21 and 22, the city had approved the removal of trees west of the 42-inch dbh Maple in July 2007; therefore, no violation occurred. With respect to the remaining lots, even if the city is correct that the applicant must receive approval to remove trees outside of the easement prior to removal, the city has not sustained its burden of demonstrating that a violation occurred.

The city’s evidence consists of a copy of the approved tree preservation plan, with handwritten notes indicating "gone," "gone, or maybe closer to the property line," "gone or wrong site," "gone, or not?" During the hearing, staff explained that those notes identify trees that were field located or trees that likely did not exist in the first place. Staff asserted that they assessed civil penalties only for those lots where trees existed and were located outside of the easement. However, staff did not adequately explain how they identified the trees in relation to the tree preservation plan, or how staff concluded that trees had been improperly removed. None of this evidence, by itself of in conjunction with the testimony, is enough to show (1) that a violation occurred, and (2) that Kipco Inc.’s actions were such that they "knew" that a violation occurred within the meaning of the civil penalty matrix.

Because the city failed to demonstrate that Kipco, Inc. violated the provisions of the tree preservation plan, I conclude that the city erred in assessing civil penalties. The assessment of civil penalties is overturned.

DATED this 10th day of December, 2007.

Anne Corcoran Briggs
Hearings Official