re SRC Chapter 86 ("Tree Code") Revisions

[Emailed 7/30/15] 

To:          Mayor Anna Peterson & Members of the Salem City Council

From:      Central Area Neighborhood Development Organization (CAN-DO)

Date:      July 30, 2015

Re:         The Revisions to SRC Chapter 86 (“Tree Code”)

The CanDo board recommends to the Council that the Tree Code Citizens’ Advisory Committee (TCCAC) and staff be commended for their work revising SRC 86 and that the proposed revisions be adopted/enacted with the following changes to the procedures on permitting decisions:

1. clarify in the ordinance itself that an application for a variance is made as part of a permit application to trim or remove a tree;    
2. simplify the appeal process by having the Director issue all initial decisions, including variances, and send appeals to an appeal body;
3. limit the right of appeal to the applicant and neighborhood association (i.e., require timely commenters desiring to appeal to work through the neighborhood association, rather than giving them the right to individual appeals);
4. although CanDo recommends that appeals be sent to an Urban Tree Commission, if a majority of the Council is not inclined to create the UTC, send permit-decision appeals to the Parks and Recreation Advisory Board (SPRAB);
5. although CanDo recommends that the final decision be left with the appeal body (preferably UTC or SPRAB), if a majority of the Council is not inclined to leave the final decision with the appeal body, e.g., for reasons of liability, add a provision that will allow the Council, by majority vote, to review the appeal body’s decisions no later than the next session following report of the appeal body’s decision.  

Background:  The board voted unanimously to make the foregoing recommendations after oral and written discussion that included the following points(numbered according to each recommendation):

1) The city attorney has advised that, under the proposed revisions to SRC 86 regarding permit decisions:  “as with other applications for permits[,] an applicant would apply for a variance as part of a permit application to trim or remove a tree.”  Although this arrangement makes perfect sense, it is not apparent from the text of the ordinance.  The ordinance should be rearranged or reworded to make this arrangement explicit.    

2) The city attorney has advised that Staff and Legal had “much discussion” as to how to structure appeals.  In the view of the city attorney’s office, the “best practice is that there should be single local appeal of decisions.  This reduces the City's cost in processing appeals, which is substantial, and allows the applicant and all parties a timely resolution of the matter.”  

As written, proposed SRC has the UTC making the initial permitting decision if a variance is requested, with appeals going to a hearings officer.  However, if no variance is requested, city staff make the initial decision, and sends and appeals to the UTC.  According to the city attorney,  

This process is similar to how certain historic design review decisions are made.  For applications where "clear and objective" criteria are involved, the initial decision is made by staff, and may be appealed to the Landmarks Commission.  Where substantial discretion is involved in issuing the decision, the initial decision is referred to the Landmarks Commission, and appeals are to the Hearings Officer, or in the case of demolition or nomination, to the Council.

The proposed arrangement would seem to be needlessly complicated, confusing, and subject to abuse, in that it effectively invites applicants to include a “catch-all” variance request in every permit application as a means of ensuring the right to a contested case hearing (a process that is costly to the City and generally favors the lawyered-up applicant).  The city attorney has suggested the ordinance could be simplified by having city staff make all initial decisions, including variances, and sending appeals to an appeals body, and that would seem to make more sense if the goal is a clear and understandable decision-making process.

3) Proposed SRC 86 allows neighborhood associations and those filing timely comments to appeal decisions that do not involve variances.  The timely commenter wishing to appeal is not required to be a resident of Salem, or to show his or her interests are affected by the permitting decision.  Put another way, proposed SRC 86 would create a right where none presently exists.  That is a policy choice the Council could certainly make, but there is a more conservative choice that the Council should consider.

An individual’s interest in public resources is generally considered to be collective.  Therefore, the right of appeal should be considered a collective right, and exercised collectively, rather than individually, through the affected neighborhood association.  Requiring individuals to work through the neighborhood association would encourage residents and interested persons to engage with the neighborhood association early in the process, and could ultimately discourage frivolous and costly appeals.  CAN-DO has had experience with this kind of process in the tree-removal context, and so knows it can work.  

4) A primary goal in revising SRC 86 was to increase public participation in decisions to trim or remove publicly-owned trees.  There is vocal opposition, the strength of which is not clear, to the creation of an Urban Tree Commission on the grounds that Salem has already too many boards and commissions (which it probably does), even though a UTC would likely replace an existing committee of the Parks and Recreation Advisory Board (the Shade Tree Advisory Committee).  If for this reason, or similar reasons, a majority of the Council seems persuaded against creating a UTC, the primary goal to increase public participation may still be served by sending appeals to an existing board.  The logical choice is the Parks and Recreation Advisory Board, who could, if they chose, create a standing committee for the purpose of hearing appeals.

5) Under proposed SRC 86, the “final say” on permitting decisions (i.e., the authority to hear appeals of permitting decisions) rests with either the UTC (when no variance is requested) or a hearing officer (when a variance is requested).  However, some have expressed concern that city staff or “the City” should have the final say because of the potential for “liability.”  See, e.g., the testimony of Kristin Ramstad, an urban forester who served on the TCCAC (June 8, 2015 Meeting at 49:31).  While the Council has made clear they do not want to hear appeals as a matter of standard procedure, they might be willing to consider, or even favor, a provision that allows them discretion in a matter.  A political “safety valve” could reduce political pressure on the appeals body, and increase accountability for purely political decisions, which are sometimes unavoidable.