Photo by Tony Richards
The City of Orange denied a permit to cut down this Canary Island pine because, at 60-plus years old, it is considered of historic value and, therefore, public interest. The property owner believes the tree is a threat to his building, but did not provide documented proof from a professional arborist to back that claim.
By Tina Richards
A mature Canary Island pine tree on Chapman Avenue will live to grow another ring, following the Orange City Council’s denial of a property owner’s request to cut it down.
The tree, at 400 E. Chapman Avenue, is the third Canary Island pine the city has deemed to be “of historic value” and “public interest” in the last six months.
A permit to cut down two 60-year old pines located at 514 E. Chapman (Woody’s Diner) was denied last June for the same reasons.
Property owner William Warne wants to remove this tree because he believes its proximity to his office building presents a hazard, that if it came down during high winds it would damage the structure.
He also said that he wanted to re-landscape his property, and that the large tree is out of scale with its surroundings.
Age before beauty
City staff had rejected Warne’s permit application based on the tree’s location near the Old Towne historic district, and the likelihood that it was planted at the same time as the pines in the plaza.
The Orange Community Services Department determined its scale and size are in balance with the other mature trees that line Chapman, and it provides “significant value” to the neighborhood.
The city also found that the tree was generally healthy, and appeared to be firmly rooted. Staff noted that mature pine trees safely exist throughout the city, and there is no sign of damage to the building resulting from the tree.
Warne appealed the Community Services Department’s denial at the Jan. 9 council meeting.
His attorney, Paula Meyer, based the appeal on the city ordinance that addresses “properties of public interest” and trees with “historic value.”
She argued that the language in the ordinance assigns public interest to properties with trees that appear on the city’s list of historic trees, and that this pine is not one of them.
The code she cited states, “Any property, privately owned or otherwise, which, because of the presence of certain trees of historical value, has become endowed with a public interest.”
The code further says, “Historical trees are those which by virtue of their origin, size, uniqueness and/or national or regional rarity are now or are likely to be of historical value. Trees so classified are determined by reference to a master list.”
More than a list
City Attorney Wayne Winthers advised that Meyer’s interpretation was “very narrow” and that “historic value” includes more than just what’s on the tree list. “There are other things,” he said. “You have to read all of the ordinance. If the council that approved the ordinance had intended that it include only trees on the list, it would have said that.”
He also noted that the list was created in 1973, that it is a snapshot, and that trees that didn’t make the list 45 years ago would be, due to the passage of time, considered “historic” now.
When the city council heard the Woody’s Diner appeal to fell its Canary Island pines last June, a dozen members of the public attended the meeting to speak on behalf of the trees.
They bolstered the “public interest” case by providing personal testimony about the value of the trees, their contribution to the downtown area, and the overall stability of tap-rooted Canary Island pines.
No one from the community attended William Warne’s hearing. The city council, hobbled by its decision to deny the Woody’s Diner permit for the same reasons it faced this time around, nevertheless attempted to give leeway to Warne.
No clear and present danger
Mike Alvarez brought up Warne’s property rights, noting that if the tree was a danger, the property owner should be allowed to remove it. Fred Whitaker agreed that if the tree was a threat, it should be taken down. “But,” he said, “what’s the difference between this tree and the ones we denied? I have nothing here showing me it’s risky. If we approve this permit, we’ll have an inconsistent ruling.”
Kim Nichols said she would have been swayed by safety arguments, “but there’s no documentation in this case.”
While several council members seemed torn between Warne’s right to protect his property and the “historic value,” and “public interest” benefits the tree represented, Mayor Tita Smith had no doubts.
“There’s no conundrum here for me,” she said. “We should deny the permit. It’s the same situation as the pines one-half block down the street. Defining public interest property is important in Orange. We’re an old town, with old buildings and old established families. That’s what defines us as an historic community. I’m reluctant to allow people to take down those things that make us who we are. Especially if there’s no proof that there is danger implied.”
Mark Murphy, also attentive to the risk factor, asked Warne why he had no expert opinion detailing the dangers the tree presented.
Stick to the code
We could have done that, his attorney answered, but didn’t for a principled reason. “It’s about the ordinance.”
Murphy suggested the council defer its decision and give Warne an opportunity to come back with an expert analysis citing the tree’s dangers. His colleagues were also willing to wait for documentation that would strengthen Warne’s appeal.
Warne declined, saying he would “stand on the ordinance.” The council voted, four to one, to deny his appeal, with Mike Alvarez dissenting.
Warne is clearly planning to sue the city over the language in the ordinance, which Attorney Meyer described as “constitutionally vague.” He and his attorney had arranged for a court reporter to record the entire proceedings, which she did from a prominent seat in the front of the council chambers.
“The city has dropped the ball,” Alvarez said. “The historic tree list should be improved upon, but we haven’t done it.”
A 2011 audit of the 1973 list indicated that fully half of those trees have since been cut down.
Orange says historic pine tree must be preserved