A city environmental plans examiner emailed then-state Rep. Roland Gutierrez in 2019 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 last 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 last 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,” recalled developer Alex Arredondo. “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,” Cortez added. “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 dig up plans filed decades ago by past owners to claim exemptions from current rules.
For the lot in Pallatium Villas, a previous landowner had filed a plat to develop the property in 1995 — two years before the city enacted its first tree ordinance in 1997, and decades before Gutierrez purchased the still-vacant lot in 2018.
Gutierrez was required to obtain a tree permit before removing the tree, however — part of a process to confirm his vested rights. He failed to do so before cutting down the oak.
In January 2019, someone emailed city staff a photo of the towering oak stripped of its branches.
“I wish to report a builder cutting down a very large Heritage Oak,” wrote Chuck Lathum, chairman of the Pallatium Villas architectural control committee. “I am requesting information re compliance in regard to removing this tree? As you know, we have always strived to protect these trees and comply with the City Regulations in our subdivision.”
The complaint triggered an inspection of Gutierrez’s property. Loyd, the plans examiner, assessed Gutierrez a $2,000 penalty. But the state lawmaker chafed at the fine.
Gutierrez called Shannon to complain, emails obtained by the San Antonio Express-News show. The director then emailed others in the department, instructing them to waive the state lawmaker’s penalty.
“He stated he now understands that even with a (vested rights permit), he’ll need to get a separate tree (permit) in the future per our codes/process,” Shannon wrote in March 2019. “Please waive this $2,000 penalty on this project.”
Less than an hour later, an assistant city arborist, Jacob Sanchez, fired off an email to Shannon.
“It should be noted that this is not Roland Gutierrez’s first project in San Antonio,” Sanchez wrote. “I strongly feel this would initiate an unwelcomed precedence that we are not prepared for in regards to tree removal without permits and penalty fees being waived once they speak with you or upper management.
“Now because he asked, I have to follow up with Chuck Lathum,” Sanchez continued, “and explain why this political figure/builder is allowed to remove Heritage trees and not follow the same standards.”
In an interview, Shannon said Gutierrez’s political stature played no role in his decision.
“Again, I look at the project and the set of circumstances and the rules that are being applied or not applied,” he said. “That’s what we look at when we look at the case-by-case, not who it is or who it’s for.”
Given Gutierrez’s vested rights, the missing tree permit was “just a piece of paper,” Shannon added.
“The tree ordinance, in his mind, didn’t apply,” he said. “He would have been granted all the rights to chop down the tree on his lot, which he did. Again, (the penalty) didn’t make sense, and that isn’t the point of that $2,000 penalty.”
But consistent application of the tree ordinance matters, Cortez said.
“That was just a real burn on what we’re trying to do every day there,” the former plans examiner said. “When you give somebody who has the power and clout that (Gutierrez) does these kind of privileges, it shows that they can just go around us. That’s the last thing you want to happen when you’re trying to implement something so important in our city.”
A shrinking canopy
In 2009, American Forests, a Washington-based consultant, found San Antonio had lost 3.4 percent of its tree canopy between 2001 and 2006, leaving the city with a 38 percent overall canopy.
The study warned that continued loss of tree cover would bring “ecological consequences,” including a drop in air and water quality. It recommended San Antonio increase its canopy at least to 40 percent, which meant adding more than 450,000 trees.
The analysis helped to fuel a revision to the city’s tree ordinance in 2010. In addition to doubling the cost for developers to mitigate tree removal — funds that the city would use to plant more trees — the new ordinance reduced the amount of trees that could be removed and mitigated without a variance from 90 to 80 percent.
Ten years later — despite the updated ordinance and 105,157 new trees planted using the city’s mitigation fund — the city’s tree canopy is still moving in the wrong direction.
Using 2017 data inside city limits and 2012 data for unincorporated land within five miles of the city’s boundaries, the Texas A&M Forest Service found that San Antonio’s tree canopy had fallen to about 35 percent. The agency plans to release a more current analysis next month.
Reid, the former city arborist, was not surprised by the city’s shrinking tree cover.
“There’s no doubt that it’s decreased, especially with the increase in density in the inner urban areas,” she said. “Urban sprawl is probably the greatest impact. Still, we’re not doing a good job of preserving the trees in the inner city, which are environmentally the most important because of the heat island we create.”
The liberal approval of variances by staff is “one more nail in the coffin,” Reid added.
“And that’s a pretty important nail.”
‘Hardship’
Shannon said the development staff grants exceptions to the tree ordinance to expedite requests; otherwise, developers would be forced to wait for approval from a board or commission, and that’s “a lengthy process.”
“I think that’s the balance our tree code has,” he said. “It’s important to have that so we can make these decisions and keep these projects moving.”
Developers pay $350 to request a variance. The city follows a set of criteria, Shannon said, to ensure that each exception is warranted.
“There has to be some sort of hardship. We have to make sure that we meet the spirit and intent of the code,” he said. “It can’t just be anything, like, ‘I don’t want to do it, it’s too expensive.’ There has to be some technical reason for it.”
In the past two years, staff approvals have ranged from allowing the removal of an ash tree on an East Side residential lot for construction of a carport to much more expansive authorizations. In many cases, examiners used the same language, citing “existing site conditions and design and layout constraints,” to justify granting an exception.
That was the reason, in January 2020, an assistant city arborist, an engineer and an assistant director at Development Services allowed the developers of a 233-unit apartment complex on the Northeast Side called Kitty Hawk Flats to remove all 745 caliper inches of trees — a reference to the diameter of a tree’s trunk — on the site.
The project manager explained the hardship in a letter to city staff: “All existing trees located on the interior of the site require removal based on their locations and relationship to the proposed type of development, as well as the substantial grading/earthwork required throughout the entirety of the site.”
The developers agreed to plant 145 trees to mitigate the loss.
And it was why the same assistant city arborist, engineer and assistant director in July 2020 signed off on another administrative exception allowing Lennar Homes to remove thousands of caliper inches of trees to develop a 68-acre subdivision known as Marbach Village on the far West Side.
The developer cut down more than 2,100 inches of significant trees — preserving just 1 percent of the protected trees — and all 377 inches of heritage trees “to develop and grade the site for residential development,” a city analysis stated.
Lennar Homes agreed to mitigate the loss by planting new trees. That never happened. An amended plan later required the developer to plant 144 trees on the property.
Only 17 trees were planted, according to city records.
“The homeowners have been non-responsive about letting the developer/homebuilder come in and plant trees on the properties since construction occurred,” a letter requesting another variance stated.
To make up for the lost trees, the developer paid the city $50,800.
‘Beauty of it is gone’
Esther Sell remembers when hundreds of acres of land across the road from her home in Helotes was densely wooded. It was only a few years ago.
“It was nice and quiet,” she said. “There was lots of wildlife — birds and deer and hogs and all kinds of critters. And it was quiet and very natural.”
Then the clear-cutting began.
PulteGroup was building a subdivision of more than 1,000 residential lots on 243 acres known as Davis Ranch in San Antonio’s extraterritorial jurisdiction, which extends development controls 5 miles outside the city limits. To clear the hills, the company obtained five exceptions to the city’s 2010 tree ordinance: two of them approved by the Planning Commission and three granted by staff.
For one 32-acre section of the development, an agent for PulteGroup cited “extremely steep existing topography” requiring the removal of “a large amount of excess material … to balance the site.”
In March 2019, city staff approved the preservation of just 9 percent of significant trees on the site, allowing the developer to remove more than 6,600 caliper inches. To make up for the loss, the company agreed to plant four 3-inch trees on each of the site’s 156 lots.
Overall, PulteGroup paid $379,800 to the city’s tree mitigation fund, city officials said.
On a recent morning, Robert Kwiatkowski, a tree and landscape inspector for the city, tramped across the sprawling development with a tape measure in hand to verify that builders were adhering to agreements.
“This unit is supposed to have four 4-inch trees planted,” he said. “I just took a quick trip, and there’s going to be a lot of fails on this.”
Walking past new homes with up-close views of tree-studded hills, Kwiatkowski recalled a rapid transformation of the area from forest to streetscape.
“I’ve been here for two years, and this was my first big job,” he said. “We’re talking from the end of this drainage ditch, just solid cedars.”
In an expansion to the north, PulteGroup is in the early stages of developing another massive subdivision on more than 580 acres of land known as the McCrary Tract.
The vast property, bordered to the north and west by the Government Canyon State Natural Area, was densely forested before the cutting began early last year to clear land for a nearly 2,000 lots. According to the city, the developer removed 80 percent of significant trees and about 76 percent of heritage trees — just enough to avoid requesting any variances.
The company will likely spend about $9 million mitigating the removal of so many trees, according to Sean Miller, director of land acquisition for PulteGroup, and Chris Dice, executive vice president of Cude Engineers.
“We’ll spend several million dollars on tree mitigation to the city on that project,” Miller said.
The developer has also agreed to plant five trees on 381 of the lots, as well as 65 “streetscape” trees. In recent weeks, bulldozers were at work throughout the sprawling tract.
To Esther Sell, the trees that are now gone were priceless.
“Everything was there and then it wasn’t,” she said. “And now, just like so many areas around the developments, all you see is rooftops. You don’t see the trees. It’s going to take years for them to grow up to where we won’t be able to see rooftops.
“Just the beauty of it is gone.”
The Link LonkJanuary 22, 2021 at 12:30AM
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‘Everything was there and then it wasn’t’: Developers allowed to skirt tree ordinance - San Antonio Express-News
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