Appeals to the Tree Conservation Commission, 2008

Appeals to the Tree Conservation Commission, 2008

By Tom Coffin, Ph.D.

Appeals to the Tree Conservation Commission are, by design, an integral part of the Tree Protection Ordinance. Like most laws, the TPO is a relatively blunt instrument. Though reasonable and effective most of the time, it does not cover all situations all the time, nor is it fair to all parties all the time.

Appeals to the TCC provide an administrative means to resolve disputes. Unlike a Municipal Court hearing – also possible under the ordinance -- where decisions are usually based on the “letter of the law,” appeal hearings before the TCC often allow for some bending of the law as written to encompass a specific situation.

At its best, the TCC acts as the “conscience of the community” in its decision-making. Both the commission and the appeal process have matured. After more than eight years of use and testing, both work rather admirably when allowed to do so.

Under the Tree Protection Ordinance, every decision (save one) that a City arborist makes is subject to appeal. A City arborist makes hundreds of decisions that could be appealed every month. If the arborist is implementing and enforcing the law according to accepted Standards of Practice, he or she will be appealed. It is important to bear in mind, counter-intuitively to some in the Bureau of Buildings, that appeals are positive, not negative, events. Appeals reflect the robustness of the law and the effectiveness of its implementation and enforcement system. Appeal decisions help set parameters for the scope of the law and the expectations of the public.

The brief study that follows was prompted by a chance conversation I had with a member of the Tree Conservation Commission at a social gathering. I asked if the current economic climate had impacted the number of appeal hearings. He said no, he didn’t think so, then laughed: “Of course, it seems like most of the appeals are still your cases.”

Since my firing last July I have produced several studies of productivity and enforcement in the field operation of the Arborist Division. These studies, available on the independent blog http://holdingcitygovernmentaccountable.blogspot.com/, indicate extremely low levels of enforcement activity on the part of several field arborists. I wondered if the appeal record would reflect the enforcement record.

The data used in this study was garnered from an examination of the TCC appeal files for 2008, obtained under an Open Records request. I thank Planning Commissioner James Shelby and the Arborist Division for their assistance and cooperation.

I like numbers. I particularly like graphical depictions of numbers for their visual clarity and informational density. Please bear with me.

Chart 1: Total Arborist Division Appeals
There were 80 appeals recorded in 2008. Five are eliminated in the chart above: Four addressed to Parks Department arborists, one of unknown source or outcome. The Arborist initials stand for Ainsley Caldwell, Arboricultural Manager; David Zaparanick and Frank Mobley, Sr. Arborists for plan review; Janell Bazile, Michael Franklin, Paul Lewkowicz and Stan Domengeaux, Field Arborists; and myself, Sr. Field Arborist through the end of July 2008.

Chart 2: Percent Distribution of Arborist Division Appeals
The office based Arboricultural Manager and the two Plan Reviewers account for 36 percent of the 75 appeals. The 64 percent share of the field arborist staff is split almost equally between me (31%) and the other four field arborists (33%). Lewkowicz contributes more than half of the appeals handled by the four field arborists.

There were five types of appeals in 2008: Building plan approval, building plan denial, amount of recompense charged for tree removal, illegal removal or destruction charges, and denials of dead, dying or hazardous tree removal permits. Their distribution by arborist is as follows:

Chart 3: Types of Appeals


City arborists have twin responsibilities under the Tree Protection Ordinance: Implementation of the law and enforcement of the law. Appeals referencing plan approval, plan denial, recompense and tree permit denials result from the implementation of the ordinance. Appeals from charges of illegal removal or destruction result from enforcement activities. Chart 3 shows that all of the appeals of decisions made by the plan review specialists result from implementation. The one appeal of a decision made by the Arboricultural Manager is an appeal of an enforcement action.

Henceforth I focus only on the appeals by field arborists. The distribution between implementation and enforcement appeals is shown in chart 4 below.

Chart 4: Implementation and enforcement by field arborists


Chart 4 indicates that Bazile and Domengeaux had no appeals resulting from their enforcement activities (and Domengeaux had none from implementation either). The majority of appeals for both Lewkowicz (64%) and me (70%) were for enforcement. The case of Franklin is a bit murkier. Illegal destruction charges on at least two of the sites under appeal,156 Howell Dr SW and 187 Palatka St SE, resulted from my intervention. The same may be true of other sites, but my memory is unclear. Without accounting for those circumstances, 64% of Franklin’s appeals were from enforcement actions.

There were 48 total appeals of decisions made by field arborists. Their distribution by field arborists is indicated in the next chart.

Chart 5: Distribution of Appeals by Field Arborist

Since this study was prompted by a comment on the holdover effect of appeals of my decisions I looked at the data from the seven months before and the five months after my firing at the end of July 2008.

Chart 6: Pre- and Post-firing Appeals by Field Arborists


Chart 7: Percentage of Pre-firing Appeals by Arborist


Chart 8: Percentage of Post-firing Appeals by Arborist


The numbers are far too small to define a new trend, but at least there was an uptick in appeals handled by three of the four field arborists in the latter period. My “share” dropped in half from the pre-firing period, from 2/3 to 1/3 of the cases. Lewkowicz adds another third in the August- December period. Bazile, unrepresented before August, and Franklin account for the final third of the cases in the second time period. Domengeaux is unrepresented in either period.

Let’s look again at the types of appeals, focusing on field arborists:

Chart 9: Types of Field Arborist Appeals

As seen before, there were three types of appeals of field arborist decisions. Charges of illegal destruction account for 60% of the total cases, denials of dead, dying or hazardous tree permits 37%. There was one appeal of recompense (3%).

Again it might be interesting to compare the period before I was fired and the period after.

Chart 10: Pre-firing Types of Appeals

Chart 11: Post-firing Types of Appeals

As indicated in Charts 10 and 11 and the aforementioned caveat on Franklin’s record, the suggested “uptick” in appeals by Bazile and Franklin is almost entirely limited to appeals of denials of tree permit applications. Illegal destruction appeals double for Lewkowicz in the latter period. Mine are cut by 40%. Domengeaux does not appear.

Chart 12: Type of Appellant


Home or property owners are the dominant appellant type, accounting for nearly two-thirds of the cases. Building contractors account for another one-fourth of the total, with the remainder split between tree service companies and concerned citizens (“Other”). As indicated above, no tree service company and only a single building contractor appealed a decision of the three least represented field arborists, Bazile, Franklin and Domengeaux. It was an appeal of a denied tree permit application, not an illegal destruction.

Let’s look now at the outcomes of these appeals.

Chart 13: Appeal Decisions


In theory an appeal is “upheld” if the tree commission finds that the arborist has made an error in application of the law or in the facts of the case. The appeal is “denied” if no such error in law or fact is found.

It is not so cut-and-dried in practice, given the “conscience of the community” character of the commission and given that the specific wording of similar appeals may prompt one case to be “denied” and the other “upheld” despite an identical ruling on the part of the commission.

With this important caveat in mind, it is apparent that the majority of the cases brought by Bazile and Franklin resulted in the appeal being “upheld,” the majority of Lewkowicz’ cases being “denied,” and a dead heat between appeals “upheld” and appeals “denied” in my cases.

“Withdrawals” usually signify that an accord was reached between the appellant and the arborist office prior to a hearing. The “other” cases represent either dismissal or deferral without a ruling by the commission.

I was a bit surprised by the number of withdrawals and deferrals attached to my cases, so I again broke the data down into the pre- and post-firing time periods.

Chart 14: Pre-firing Appeal Decisions


Chart 15: Post-firing Appeal Decisions


In the pre-firing time period I handled my own appeals. In this period one appeal was withdrawn and one deferred, accounting for 12% of my cases. In the post-firing period, with someone else handling my appeals, 71% were either withdrawn or deferred. All of the withdrawn or deferred appeals in the latter period were over charges of illegal destruction. At present I do not know why they were withdrawn or deferred or what the outcomes of the cases were.

Conclusions

There are two obvious conclusions to this study. (1) The perception by the tree conservation commissioner that most of the appeals were mine in the post-firing period was erroneous. In fact, most of my appeals after July were either withdrawn or deferred. (2) The appeal record overall closely mimics and reflects the implementation and enforcement data I have reviewed previously. Before I was fired I did much more than my share of implementation fieldwork and virtually all the enforcement actions in the division, with some assistance from Lewkowicz. Now Lewkowicz leads in enforcement, with little if any support from his peers.

The second conclusion is not surprising: As stated earlier, if the law is implemented and enforced in a manner consistent with accepted legal and arboricultural standards, appeals are inevitable and their effects positive. On the other hand, if arborists make decisions not based on law or science but simply on the desires of homeowners or to accommodate the plans of builders and developers while turning a blind eye to illegal tree removals and destruction, appeals are extremely unlikely. What’s to appeal? Who’s to appeal?

Personal Note

What I see in this and my earlier studies provides me some vindication, certainly, but no pleasure. What I see are overlapping and expanding circles of failure and lost opportunity. I see young arborists performing far below potential, denying their legal and ethical responsibilities, compromising their reputations and weakening their chosen profession. I see an Arborist Division sacrificing hard-earned gains in implementation and enforcement of the law that created it, willingly reducing its role in development and its voice in urban forest preservation and environmental protection. I see a Bureau of Buildings and a Department of Planning elevating unrestricted development above all other considerations, including adherence to law. I see a city administration that has lost its way, preferring hidden agendas over transparency, lame excuses over accountability, waste and fraud over efficiency and honesty.

The people of Atlanta are short-changed by these developments. Taxpayers are cheated of their money. The many individuals and organizations that have given so much time and energy over the last decade to create a strong and viable Tree Protection Ordinance are ignored and disrespected.

We have a right to expect better. We have a right to demand more. We need to find our voice and make it heard. Is that not the challenge so inspiringly articulated by President Barack Obama?

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A note from the Moderator:

Um… not quite. As for me personally, the moderator of this clearly independent blog, I was confused, not inspired, by what specific “challenge” Obama was articulating to the American people prior to his election. Now it appears that the challenge is for us to willingly go along with Big Government as it tries to spend our way out of the recession we've been spending our way into for the last 8 years -- so much for CHANGE, but I digress… this blog is about holding the City of Atlanta accountable, not the federal government.

On all fronts – city, state and federal – we have the right to expect better stewardship of the funds that we pay to the government. We should expect not just “better” or “more”, but actual, measurable results that show we are getting what we pay for.

Tom is providing the measurable results for the City Arborist Division. These results show that we are NOT getting what we pay for.