Horizon School Appeal Upheld

The appeal on the property at 1900 DeKalb Ave., former site of the Horizon School, was upheld by the Tree Commission on May 16, 2018 on the following two sections of the Atlanta Tree Ordinance:

  • Section 158-103(a): Each applicant for apermit to remove, destroy or injure trees shall, to the maximum extent feasible, minimize the impact on the trees on the site.

  • Section 158-103(c)(6): For trees removed in the required construction of streets and related infrastructure in new subdivisions or other planned developments, a maximum shall be set on recompense at $5,000.00 per acre, pro rated.

What Was Being Appealed

According to The City in the Forest, who shepherded this appeal, the foremost objection to this property receiving a tree cutting permit is that the site plan had not "minimized impact to trees to the maximum extent possible".

There are 275 trees on the property,  19 of which have been declared dead, dying, or hazardous (DDH) and 221 more to be "destroyed" by the construction process.  Only 33 trees are marked as "saved", mostly around the pool and in transition areas.  Other areas of concern The City in The Forest mentioned on their website are:

  • Trees in the setbacks are not being protected, which is a requirement.
  • Stands of trees are not being protected, which is a requirement for land over 1 acre.
  • The recompense is not being calculated properly. Recompense is what the owner pays the city for taking down trees, and the money goes into the city tree bank.
  • They are not replanting the proper type of trees, and they are not replanting in the correct location.
  • They should make an effort to reuse the existing street and building footprints, and this is not happening.

City Arborist Browning spoke against the appeal, saying that the appellant was "throwing the kitchen sink at this appeal" and "too many general references" to the Tree Ordinance were being made.  However, several people who spoke on behalf of the appellant were able to cite, by number, which sections of the Tree Ordinance were in violation. 

Why The Appeal Was Upheld

The Tree Commission felt that they did not hear enough evidence from the developer, Don Donnelly, owner of Atlanta-based builder Hedgewood Homes, that he had attempted to minimize tree loss on the site to the maximum extent feasible. The Commission asked several questions about what attempts Donnelly’s team had made to minimize the loss of trees — particularly the street, boundary and high value interior trees — and concluded that they “didn’t hear concrete answers to our questions.”

Also, the Tree Commission asked Plan Reviewer Michael Browning to explain why recompense for every tree lost on the property had been calculated at the lower infrastructure recompense rate rather than the standard rate when the site clearly was being prepared for more than just roads, utilities, etc. The Commission felt that only the trees impacted by infrastructure changes to the property should have received the infrastructure recompense rate.

Browning said that the infrastructure and proposed buildings were “inextricably linked” and thus, the recompense for lost trees couldn't be split between infrastructure and standard rates. When pressed by the Commission to explain how the infrastructure and buildings were linked, Browning was unable to explain it to the Tree Commission’s satisfaction.

What Does This Ruling Mean?

Update:  An orange sign posting went up on this property May 25, 2018.  This means the developer, Hedgewood Homes, has submitted a new site plan to the City Arborist for review.  The new site plan should show that Hedgewood Homes truly has, to the maximum extent feasible, minimized the impact on the trees on the site. If the new plan is approved by Browning -- which we expect it will be given that he approved the first plan -- the preliminary permit to cut trees can be appealed again.  This permit can be issued as soon as 10 calendar days from the posting of the orange sign and must be accompanied by a yellow sign posting which will be remain in effect for 5 calendar days. 

If this new site plan fails, Hedgewood Homes could just walk away from this project all together.  The property at 1900 DeKalb is presently for sale, with a current offer contingent on whether or not a building plan suitable to the buyer's needs can be approved for this site.  Donnelly expressed "marketability" as being a major factor in why his company did not do a better job at minimizing impact to the trees. 

Whose Side is the City Arborist On? 

It's no secret that profitablity matters more than tree conservation to most developers.  But is it the City Arborist's job to help developers maximize their profitability?  This question was raised by Raenell Soller, of the tree advocacy group City In The Forest, who told the Tree Commission that it wasn’t the City Arborist’s job to facilitate a real estate transaction. She and others who spoke on behalf of the appellant expressed concerned that perhaps Browning was helping the developer to reduce his costs by assessing the lower infrastruture recompense fee on all of the trees, including those that were not being destroyed for infrastucture purposes.

Future Implications of this Ruling

It used to be that Section 158-103(a) was an extremely weak section of the Tree Ordinance on which to base one's appeal. Again, 158-103(a) requires developers "to the maximum extent feasible, minimize impact on the trees on this site". Problem is, "maximum" and "minimize" are subjective terms, and in the past, neither the Arborist Plan Reviewer nor the Tree Commission seemed willing to challenge something that subjective. We would advise people that their appeal had a greater chance of being upheld if it challenged the more quantifiable aspects of the Tree Ordinance, such as whether or not trees in the setback area had been marked as destroyed, or if the recompense calculations were correct.

But even though the appeal included nine different sections of the Tree Ordinance that had been violated, Section 158-103(a) was the one that most concerned the Tree Commission. In making this section the primary focus of why they upheld the appeal, it suggests that the Tree Commission, and possibly now even the City of Atlanta, is realizing that we cannot protect our urban canopy by having an Arborist Division that does nothing more than "assess fees and fines", as one of the speakers for the appellant bluntly put it. Rather, we need an Arborist Division that works with developers upfront in the planning process to help maximize the preservation of trees.

Until now, the Arborist Division has been the last stop in the building permitting process, a place where developers pay the tree cutting recompense fees before getting their permit. Indeed, Hedgewood Homes' civil engineer and site plan developer, Chuck Abbott, owner of Abbott Concept and Designs, defended the site plan by pointing out that they had been at this permitting process for four months now and that all the other building departments had already approved their site plan.

Is the City Turning a New Leaf?

Tim Keane, Atlanta’s planning commissioner, seems to be on board with planning for tree conservation, saying in a recent Daily Beast article that "If the arborist is involved at the beginning [of a site development] and they’re saying, ‘You’ve got to design around the trees,’ then they can totally reconfigure the way they work and save the trees.”  However, builders will fight Keane on that, says Jim Brown, former president of the Greater Atlanta Home Builders Association. “I think when you start telling people how to design a house on a piece of land they own, that is really far-reaching of the government.”

But, wait -- don't all the other building departments have their own codes and standards that "tell people how to design a house on a piece of land they own?" Is having electrical or plumbing codes for new construction "really far-reaching of the government?" If not, then why are the codes in the Tree Ordinance "far-reaching"?

The City of Atlanta appears to be turning a new leaf in how they think about the urban canopy. The trees on the outside of the house are becoming just as important to the City as the electrical wiring on the inside.

It's time for developers to wake up to this new reality and "turn a new leaf", too.


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