San Antonio Express-News (Sunday)
Killing trees
In the past two years, developers asked for 206 exceptions to the city’s tree ordinance. ALL WERE GRANTED.
In 2019, a city environmental plans examiner emailed then-state Rep. Roland Gutierrez to inform him he had violated San Antonio’s tree preservation ordinance by chopping down a large heritage oak without a permit on a lot he was developing.
“There will be a work without permit penalty of $2,000 assessed to your project,” Robin Loyd wrote to Gutierrez, D-San Antonio.
The fine didn’t stick.
Upset by the penalty, the state lawmaker called Michael Shannon, director of the city’s Development Services Department, to protest. Shannon then instructed staff to waive the fine.
Shannon’s decision caused an immediate rift inside the department. But the bending of tree rules already was business as usual at the city, where developers often ask staff for exceptions to the tree ordinance — and almost always are successful, an investigation by the San Antonio Express-News found.
In the past two years, even
as population growth continued to explode in San Antonio — the city ranked second in the nation after adding more than 17,000 people between July 2018 and July 2019 — developers asked for 206 exceptions to the tree ordinance.
All were granted.
In theory, the city’s tree ordinance is designed to protect all heritage trees — large, old-growth trees of 24 inches in diameter or greater — and 35 percent of “significant” trees on a property. Developers who remove more than that must mitigate the loss by paying fees or planting new trees that eventually would provide tree cover of at least 38 percent on the property.
A 2010 revision to the ordinance reduced the amount of trees that developers can remove and mitigate on a property from 90 to 80 percent. But the city’s development code allows them to request exceptions to this rule.
In floodplains or environmentally sensitive areas, where
the ordinance requires the preservation of 80 percent of all trees, variances must be approved by the city’s Planning Commission. Otherwise, city staff can grant the exceptions.
Shannon, who was appointed director of Development Services in 2017, said all requests are considered on a case-by-case basis. Any exceptions must be justified by “hardships” facing the developer, he said.
“No matter how many codes we write, there’s always going to be circumstances with some hardships where alternatives or variances are warranted,” Shannon said. “The whole goal is even if you don’t meet the black-and-white letter of the code, you meet the intent of the code. The intent of the code is what we have to protect at all costs.”
In some cases, staff approved exceptions simply because developers found it difficult to develop a site without removing more trees, the newspaper’s review of city records found.
Some variances allowed the removal of only a few trees and required more eventual tree cover. But others led to the removal of hundreds of trees, contributing to the city’s ongoing loss of overall canopy in the past decade.
Debbie Reid, a former city arborist, said the Development Services Department’s routine approval of exceptions — and, in some cases, outright disregard of tree violations — was one reason she left her position in 2009.
“Because they have that ability, the development community knows they can apply that pressure, and it doesn’t give city staff much recourse,” Reid said. “It builds incestuous relationships between city staff and the development community that they’re supposed to be regulating. There’s just incredible pressure on city staff to do this. … Why have the rules?”
She added, “Before I left, I had cases that were totally dropped on tree violations.
They just went away. Staff was directed to not follow up.”
Shannon’s decision to waive Gutierrez’s penalty for violating the tree ordinance was not an official variance. But it reflected a culture of leniency in the department that encourages developers to seek exceptions to the rules, Reid said.
“It moves us toward arbitrary implementation of the code,” said Reid, now a technical adviser for the Greater Edwards Aquifer Alliance, “and once you set a precedent, everybody’s going to want to do it.”
She added, “There’s the additional pressure on staff because (Gutierrez) is in the state Legislature.”
‘Power and clout’
The towering oak rooted in the vacant residential lot had warded off developers for years. By 2018, it was one of the last undeveloped properties in the near North Side gated community of Pallatium Villas.
“I was not interested in buying it because of that tree,” developer Alex Arredondo recalled. “I’m not in favor of when you’re building a subdivision to take a tree down.”
Gutierrez was not deterred. His construction firm, South Texas Demo-Contractors, purchased the residential lot in October 2018. Around that time, Gutierrez showed up at the Development Services Department office near downtown, searching for a way around the tree ordinance, said Armando Cortez, a former environmental plans examiner for the city.
“I remember him coming in. He even came to me,” recalled Cortez, who left the city this year. “He said, ‘Hey can you help me out? I’m a new developer. I didn’t know any better. I bought this lot. … Can you not penalize me for removing (the tree)?’ I said, ‘Roland, you’re going to have to pay.’
“He’s not the only one who does that. There are other developers who do that. They feel they have more privilege than others.”
Gutierrez, who was elected to the Texas Senate in November, declined to comment for this article.
In December 2018, Gutierrez caught a break: The city had recognized the property’s “vested rights.”
A state law grants property owners exemption from city codes if development plans for the site were filed before the codes were enacted, a so-called vested right. Construction can begin years, even decades later, but the project will fall under the codes in effect at the time of the original filing.
The Texas statute allows vesting to transfer between landowners. New owners can
Debbie Reid, a former city arborist for San Antonio, said that the Development Services Department’s routine approval of exceptions — and, in some cases, outright disregard of tree violations — was one reason she left her
position in 2009.