The Daily Report recently published a fascinating account of what two Atlanta land developers -- architects Mary Clare DeReuil and Carlos Tardio -- are doing to protect the trees on their own property. Because of their lack of faith in the city to enforce its own tree laws, DeReuil and Tardio are seeking to apply a "tree preservation easement" to their properties so that the trees on their lots will be protected regardless of who owns the property down the road.
The article below has been reprinted with permission from the publisher.
Architects Eye Stricter Protection for Trees
Lawyer helps draft preservation easement to go beyond city's rules
By Andy Peters
Monday, June 22, 2009
Daily Report
With steel-framed, floor-to-ceiling windows that swing open like doors, or upward like awnings, to let in breezes and sunlight, an Ormewood Park house is designed to take advantage of the lush tree cover on its lot. The house is raised on concrete piers, so as to not disturb the extensive tree roots underground.
Conceived and built by architects Mary Clare DeReuil and Carlos Tardio, the modern-style house is surrounded by more than two dozen mature oak, hickory and elm trees. Although the house, which isn't quite finished, will have central air conditioning, it was designed to leverage the natural shade and cool air that comes from being located under a thick canopy. Lifting the house on stilts heightens the sense of being enveloped by the foliage.
“Our houses are really about making magical spaces, about being able to experience the views, the trees, the leaves, the birds,” DeReuil said. “You are in the city, but it feels like you are in the North Georgia mountains.”
Atlanta is considered to have some of the toughest tree-protection laws in the country. But the architects have taken little comfort that the city would preserve the arborial atmosphere created by their house and others envisioned on five contiguous lots, which border the proposed BeltLine network of bike paths, walking trails and streetcars.
They said that Atlanta's enforcement of its tree laws, which require permission to remove trees that are bigger than 6 inches in diameter, is spotty. DeReuil said she's witnessed developers and homebuilders ignore the ordinance and cut down large trees without being penalized, saving them thousands of dollars but diminishing the legally protected natural environment. (DeReuil on Friday interrupted a Daily Report photo shoot at her house to scold the driver of a bulldozer on a neighboring property because, she said, it was getting too close to the roots of trees on that property and on hers.)
The architects are not alone in their complaints. Some Buckhead residents this month formed a volunteer advocacy group, called The Tree Next Door, to halt what they see as the rapid disappearance of the city's tree canopy. Tom Coffin, a former Atlanta city arborist, recently sued the city, saying it wrongfully fired him because he attempted to enforce the tree protection ordinance.
The city's attorneys declined to comment on the Coffin case, pending in Fulton County Superior Court.
Hiring a Lawyer
Given their doubts in the city's enforcement of its tree laws, DeReuil and Tardio decided to seek an additional layer of legal protection for the trees on their lots. Through a referral from their real estate closing attorney, they found William D. Montgomery, a commercial real estate partner at Chamberlain, Hrdlicka, White, Williams & Martin.
Montgomery's typical clients are development companies, but he understood the architects' concerns.
“Tree cover is one of Atlanta's delights, but how do you go about addressing that?” he said. “The city's regulation has ranged from overzealous exercise [of its tree ordinance], to being too lax and letting developers getting away with murder.”
After multiple sessions with DeReuil and Tardio, Montgomery drafted a legal document, titled a “tree preservation easement,” that he believes is groundbreaking.
“They wanted to create this rather unique scenario to preserve and protect the aesthetics of their property,” Montgomery said. “Their goal was to come up with a higher standard than what the city might impose.”
After his initial conversation with the two architects, Montgomery said it wasn't clear that his final work product would be an easement. DeReuil and Tardio's main concern was to be able to “self-govern” themselves, Montgomery said.
“When we got into the details, they began to realize that once you try to create a governance regime through an easement, there are all sorts of things you can run afoul of,” Montgomery said. “Folks don't necessarily want people to tell them what they can or cannot do with their property.”
But, to protect the tree cover, DeReuil said that she and Tardio, a part-time lecturer at Georgia Tech's College of Architecture, wanted to establish rules for other people who would eventually live on the site.
“We know and understand the benefits of trees. If we are developing a building, we would work around the trees, whether it was required by the authorities or not,” DeReuil said. “But once we decided to sell the lots, we knew the only way to protect the trees was to create some sort of easement that would remain bound to the land, regardless of who the owner was.
“We hope we never have to use the easement,” she said. “Even though we can sell the lots to whomever we want, we won't necessarily trust them. They could end up selling the lot to someone else, or there's a divorce and the lot is conveyed to someone else.”
The Details
Although the legal agreement he was drafting would apply to multiple property owners, Montgomery knew that a condominium declaration would not be appropriate for DeReuil and Tardio's self-governance goals because their lot would have six houses or fewer. A condominium agreement is suitable for developments with a much larger number of households. Plus, DeReuil and Tardio's property isn't large enough that the types of legal issues associated with a condominium declaration would arise.
“The property is so tight,” Montgomery said. “It's primarily the shared back yard of these five lots. When the property is that small, everyone wants to landscape and maintain his own property, as opposed to having it done to a common scheme.”
It was never their intent, DeReuil said, to create a common area as in a townhome community. Nor did they want to impose mandatory maintenance duties or architectural requirements on the other property owners. “Each lot owner owns and controls his or her property, and they are free to install benches, ponds, sheds, fire-pits, fencing, whatever they want,” she said.
Although a traditional conservation easement was not the best fit for DeReuil and Tardio's needs, some type of easement seemed to be the best solution, Montgomery said.
In a conservation easement, a property owner voluntarily transfers his land into an easement. In exchange for a perpetual promise to never develop that land, the property owner derives limited state tax benefits. However, conservation easements typically designate a nonprofit group as the beneficiary of the easement's tax benefits. That didn't apply to DeReuil and Tardio's situation. A conservation easement also rarely applies to multiple property owners.
Montgomery eventually wrote a document that was neither conservation easement, nor condominium declaration. The “tree preservation easement,” as it's titled, is designed to “operate in concert” with the city's tree protection ordinance, Chapter 158, Article II, Secs. 158-26 through 158-110.
Among its many features, the tree preservation easement provides legal definitions for the trees' trunk areas, root save areas and structural root plates. It defines the boundaries of the property to be set aside as the “conservation area.” It creates a committee from among the property owners to monitor how construction would affect the trees. It establishes a financial penalty, the amount of which would be determined by the committee, for failing to follow the easement.
The tree preservation easement also produces a litany of items that cannot be built without first obtaining consent from the monitoring committee, as well as from a private arborist, that the new construction won't damage the trees: “impervious surfaces, drives, walkways, playground equipment … picnic tables, benches, walls, gazebos, fences, terraces, ponds, water courses or features, gardens … storage materials, fill dirt.”
If an owner builds with arborist approval, but tree roots are still damaged, the owner would be assessed a fine. The fine proceeds will be used to maintain the other trees.
A private arborist shall also be hired, according to the easement, to determine a plan of action for a tree that's been damaged by wind, lightning or disease.
The easement, according to the text of the document, is “designed to insure that no one will Destroy any tree protected by this Easement Agreement, and that all development or construction of improvements within or outside of the Buildable Area located upon any BeltLine Lot shall not Destroy any such tree.”
DeReuil and Tardio, who have built homes in the city since 1994, thought Montgomery's bill, which they said was several thousand dollars, was worth the money.
“I have witnessed countless majestic and ancient trees be destroyed in my neighborhood,” she said. “There are great guidelines set up, methods to follow to protect the trees during the construction process, but I have never seen them followed properly.”
Claims That the Law is Flouted
DeReuil said she and Tardio often see the city's tree ordinance flouted. One such example they've seen repeatedly: builders erecting a required fence around a tree to protect its root zone, only to remove the fence later to allow graders to move closer to the tree, thus damaging the roots. The fences are erected as a ruse, to make it appear the homebuilder is following the ordinance, she said.
The city has failed to take seriously its own ordinance, said Coffin, the arborist who is suing the city.
Coffin had been one of eight field arborists who toured the city to examine lots where homebuilders proposed to cut trees. As the senior arborist, Coffin supervised the other field arborists and he filed numerous requests to reprimand other arborists for not enforcing the code. Coffin said he was fired in July 2008 in retaliation for his acts. (He is represented by Smith, White, Sharma & Halpern attorney G. Brian Spears and civil rights lawyer Gerald R. Weber Jr.)
The city has denied Coffin's allegations, but its attorneys declined additional comment on the suit, according to city spokeswoman Catherine Woodling.
While Coffin said he wants his job back, he also filed the suit to make the city enforce the tree laws. Coffin, who holds a doctorate in forestry, said the law was passed in 2003 after numerous interest groups, including Trees Atlanta, community activists, environmental groups and some city employees, realized Atlanta was losing its tree canopy.
One provision requires a permit to cut down any tree that's at least 6 inches in diameter—whether the tree is living or dead. Although that provision has been on the city's books since the mid-1960s, Coffin said it has “seldom” been enforced.
In the hopes that the permit provision would be enforced, and with the goal of expanding the ordinance, a group of community activists started to pressure the city in the 1990s to establish a commission to study the preservation of trees. By 1999, the city was persuaded into expanding its department of arborists. The city ordinance was later revised and expanded, with the establishment of a system of “recompense” forming the teeth of the law, Coffin said.
In the recompense formula, a developer, homebuilder or homeowner can cut down a living tree, for the purpose of building a home or landscaping, if the builder obtains a permit and pays a fee of $100 plus $30 for each diameter-inch of the tree. The tree-removal fee, which Coffin said was bitterly opposed by developers, survived a 2001 legal challenge filed by Atlanta developer Louis Reynaud.
“That was probably the first time in the U.S. that people were charged to cut down trees on their own property,” Coffin said. “It puts a value on trees. The developer has to look at trees as a resource.”
As for unhealthy trees that a property owner wants to remove, a developer can apply for a permit classifying a tree as legitimately dead, dying, diseased or hazardous. With that permit, a tree can be cut down without being required to pay the fee or to replant another tree elsewhere.
The replanting feature of Atlanta's ordinance may be unique in the U.S., Coffin said. It's designed to help the city recoup the loss of trees that are removed for construction or landscaping. If a tree is removed, the builder must plant a replacement “in-kind” tree, subject to specific minimum requirements, elsewhere in the city.
A builder who replants cannot cut corners, according to Coffin's reading of the ordinance. If a homebuilder chops down a 100-year-old oak, he can't replant a Bradford pear tree seedling to make up for it. The seedling to be replanted must be on the city's list of “desirable” tree species and must have achieved a minimum height and diameter prior to planting.
One of the most extensive examples of the replanting option, Coffin said, is Pulte Homes' Princeton Lakes housing development in southwest Atlanta. Although Pulte “clear cut” the trees in the area where they built houses, he said, the company set aside a significant area of existing forest land and also replanted trees in another housing development as required by the city ordinance.
The recompense fees can become a financial burden on developers, said Seyfarth Shaw partner Carl E. Westmoreland Jr.
“If you have a large tract of land, the fees are such a huge portion of the development costs,” said Westmoreland, who advises developers on land-use and zoning issues.
As senior arborist, Coffin said he repeatedly filed complaints with the city's tree commission that other arborists under his supervision weren't doing their jobs. They were shirking their responsibilities because the permit-granting system allows for corruption, he said, granting permits to remove dead, dying, diseased or hazardous trees too loosely. If a developer obtains a dead, dying, diseased or hazardous permit to cut down a healthy, 30-inch-diameter tree, the permit could save him about $1,000, Coffin said.
For large homes or large developments, fines can reach the tens of thousands of dollars, said Coffin.
Developers also have concerns about the ordinance's rules for taking down trees that are not located in a specifically designated buildable area, Seyfarth Shaw's Westmoreland said. Only healthy trees located inside a buildable area can be taken down, if the developer also replants another tree elsewhere or pays the recompense fee. If a tree is outside the buildable area, and the developer wants to remove it, he must obtain a dead, dying, diseased or hazardous permit, “which is always difficult,” Westmoreland said. Violators are fined and for a large development, that savings can add up.
For the largest homes and properties, the fines can add up. Coffin said he once assessed a $68,000 fine against Atlanta filmmaker Tyler Perry for illegally removing dozens of trees in a creek bed at his property in Buckhead.
A $21,714 Tree
For DeReuil and Tardio, the 30 trees on their lot serve many purposes. They're decorative. They create a peaceful atmosphere. They offer a home for birds. They provide shade and, therefore, lower utility bills.
“The tree canopy prevents us from having to install a huge air-conditioning unit,” DeReuil said. “Everyone expects that you want your house to be 70 degress all the time, but you have to use some kind of mechanical equipment to do that. We didn't want to turn the house into an icebox, we wanted it to breathe.”
DeReuil and Tardio went to great lengths to analyze the trees on their property. They mapped the roots of the major trees and designated the root areas as land on which nothing can be built. Tree roots dictated the architectural style of the home. Concrete piers, which serve as the building's foundation, were installed in places where they wouldn't touch the roots. That design that required DeReuil and Tardio to buy taller steel beams, in order to support the weight of the building.
DeReuil and Tardio also identified, with the help of a private arborist, each healthy tree on the lot and assigned each a dollar value, based on its size, species, age and condition. Two oak trees, each with a 4-foot diameter near its base, are each valued at $21,714. A 42-inch-round oak is valued at $16,623, and a 32-inch poplar is valued at $9,651. The 30 trees on the lots are valued at a total of $204,624.
It's not necessary that the other property owners on the lot build in the same modern style as DeReuil and Tardio's home, she said. Keeping the trees intact is what matters.
“Our work is considered 'modern' and that's what we prefer to build,” she said. “But I would much rather see a small well done Craftsman Bungalow house, placed delicately on the site, than a huge modern house with a garage and tons of paving.”
Partly because the homes are unlike anything private contractors ever build, and partly to save money, DeReuil and Tardio perform all the work themselves. That includes welding, plumbing, concrete work, tile work and glazing.
Some of the savings were applied to hiring their lawyer. But the easement has cost DeReuil and Tardio in other ways. It will be harder to sell the remaining parcels because of the enhanced restrictions created by the tree preservation easement, she said. Instead of a 15-foot buffer between the home and the rear of the property line, for example, there is a 50-foot buffer. That might scare off potential homebuilders who want to design a house of a minimum size.
Then there is the fact that the easement has reduced the value of their property by about $40,000, according to a recent appraisal, DeReuil said.
“The appraiser said that, although the tree preservation easement adds value to a property that already has a building, it detracts value for a builder, because he must build a smaller house,” DeReuil said.
The reduction in the property's value is a necessary evil, she said. “We wanted to be able to provide a guarantee to ourselves and to the other lot owners,” she said, “that the views, shade and privacy that the trees offer will be there permanently.”
Staff Reporter Andy Peters can be reached at Andy.Peters@IncisiveMedia.com
The article below has been reprinted with permission from the publisher.
Architects Eye Stricter Protection for Trees
Lawyer helps draft preservation easement to go beyond city's rules
By Andy Peters
Monday, June 22, 2009
Daily Report
With steel-framed, floor-to-ceiling windows that swing open like doors, or upward like awnings, to let in breezes and sunlight, an Ormewood Park house is designed to take advantage of the lush tree cover on its lot. The house is raised on concrete piers, so as to not disturb the extensive tree roots underground.
Conceived and built by architects Mary Clare DeReuil and Carlos Tardio, the modern-style house is surrounded by more than two dozen mature oak, hickory and elm trees. Although the house, which isn't quite finished, will have central air conditioning, it was designed to leverage the natural shade and cool air that comes from being located under a thick canopy. Lifting the house on stilts heightens the sense of being enveloped by the foliage.
“Our houses are really about making magical spaces, about being able to experience the views, the trees, the leaves, the birds,” DeReuil said. “You are in the city, but it feels like you are in the North Georgia mountains.”
Atlanta is considered to have some of the toughest tree-protection laws in the country. But the architects have taken little comfort that the city would preserve the arborial atmosphere created by their house and others envisioned on five contiguous lots, which border the proposed BeltLine network of bike paths, walking trails and streetcars.
They said that Atlanta's enforcement of its tree laws, which require permission to remove trees that are bigger than 6 inches in diameter, is spotty. DeReuil said she's witnessed developers and homebuilders ignore the ordinance and cut down large trees without being penalized, saving them thousands of dollars but diminishing the legally protected natural environment. (DeReuil on Friday interrupted a Daily Report photo shoot at her house to scold the driver of a bulldozer on a neighboring property because, she said, it was getting too close to the roots of trees on that property and on hers.)
The architects are not alone in their complaints. Some Buckhead residents this month formed a volunteer advocacy group, called The Tree Next Door, to halt what they see as the rapid disappearance of the city's tree canopy. Tom Coffin, a former Atlanta city arborist, recently sued the city, saying it wrongfully fired him because he attempted to enforce the tree protection ordinance.
The city's attorneys declined to comment on the Coffin case, pending in Fulton County Superior Court.
Hiring a Lawyer
Given their doubts in the city's enforcement of its tree laws, DeReuil and Tardio decided to seek an additional layer of legal protection for the trees on their lots. Through a referral from their real estate closing attorney, they found William D. Montgomery, a commercial real estate partner at Chamberlain, Hrdlicka, White, Williams & Martin.
Montgomery's typical clients are development companies, but he understood the architects' concerns.
“Tree cover is one of Atlanta's delights, but how do you go about addressing that?” he said. “The city's regulation has ranged from overzealous exercise [of its tree ordinance], to being too lax and letting developers getting away with murder.”
After multiple sessions with DeReuil and Tardio, Montgomery drafted a legal document, titled a “tree preservation easement,” that he believes is groundbreaking.
“They wanted to create this rather unique scenario to preserve and protect the aesthetics of their property,” Montgomery said. “Their goal was to come up with a higher standard than what the city might impose.”
After his initial conversation with the two architects, Montgomery said it wasn't clear that his final work product would be an easement. DeReuil and Tardio's main concern was to be able to “self-govern” themselves, Montgomery said.
“When we got into the details, they began to realize that once you try to create a governance regime through an easement, there are all sorts of things you can run afoul of,” Montgomery said. “Folks don't necessarily want people to tell them what they can or cannot do with their property.”
But, to protect the tree cover, DeReuil said that she and Tardio, a part-time lecturer at Georgia Tech's College of Architecture, wanted to establish rules for other people who would eventually live on the site.
“We know and understand the benefits of trees. If we are developing a building, we would work around the trees, whether it was required by the authorities or not,” DeReuil said. “But once we decided to sell the lots, we knew the only way to protect the trees was to create some sort of easement that would remain bound to the land, regardless of who the owner was.
“We hope we never have to use the easement,” she said. “Even though we can sell the lots to whomever we want, we won't necessarily trust them. They could end up selling the lot to someone else, or there's a divorce and the lot is conveyed to someone else.”
The Details
Although the legal agreement he was drafting would apply to multiple property owners, Montgomery knew that a condominium declaration would not be appropriate for DeReuil and Tardio's self-governance goals because their lot would have six houses or fewer. A condominium agreement is suitable for developments with a much larger number of households. Plus, DeReuil and Tardio's property isn't large enough that the types of legal issues associated with a condominium declaration would arise.
“The property is so tight,” Montgomery said. “It's primarily the shared back yard of these five lots. When the property is that small, everyone wants to landscape and maintain his own property, as opposed to having it done to a common scheme.”
It was never their intent, DeReuil said, to create a common area as in a townhome community. Nor did they want to impose mandatory maintenance duties or architectural requirements on the other property owners. “Each lot owner owns and controls his or her property, and they are free to install benches, ponds, sheds, fire-pits, fencing, whatever they want,” she said.
Although a traditional conservation easement was not the best fit for DeReuil and Tardio's needs, some type of easement seemed to be the best solution, Montgomery said.
In a conservation easement, a property owner voluntarily transfers his land into an easement. In exchange for a perpetual promise to never develop that land, the property owner derives limited state tax benefits. However, conservation easements typically designate a nonprofit group as the beneficiary of the easement's tax benefits. That didn't apply to DeReuil and Tardio's situation. A conservation easement also rarely applies to multiple property owners.
Montgomery eventually wrote a document that was neither conservation easement, nor condominium declaration. The “tree preservation easement,” as it's titled, is designed to “operate in concert” with the city's tree protection ordinance, Chapter 158, Article II, Secs. 158-26 through 158-110.
Among its many features, the tree preservation easement provides legal definitions for the trees' trunk areas, root save areas and structural root plates. It defines the boundaries of the property to be set aside as the “conservation area.” It creates a committee from among the property owners to monitor how construction would affect the trees. It establishes a financial penalty, the amount of which would be determined by the committee, for failing to follow the easement.
The tree preservation easement also produces a litany of items that cannot be built without first obtaining consent from the monitoring committee, as well as from a private arborist, that the new construction won't damage the trees: “impervious surfaces, drives, walkways, playground equipment … picnic tables, benches, walls, gazebos, fences, terraces, ponds, water courses or features, gardens … storage materials, fill dirt.”
If an owner builds with arborist approval, but tree roots are still damaged, the owner would be assessed a fine. The fine proceeds will be used to maintain the other trees.
A private arborist shall also be hired, according to the easement, to determine a plan of action for a tree that's been damaged by wind, lightning or disease.
The easement, according to the text of the document, is “designed to insure that no one will Destroy any tree protected by this Easement Agreement, and that all development or construction of improvements within or outside of the Buildable Area located upon any BeltLine Lot shall not Destroy any such tree.”
DeReuil and Tardio, who have built homes in the city since 1994, thought Montgomery's bill, which they said was several thousand dollars, was worth the money.
“I have witnessed countless majestic and ancient trees be destroyed in my neighborhood,” she said. “There are great guidelines set up, methods to follow to protect the trees during the construction process, but I have never seen them followed properly.”
Claims That the Law is Flouted
DeReuil said she and Tardio often see the city's tree ordinance flouted. One such example they've seen repeatedly: builders erecting a required fence around a tree to protect its root zone, only to remove the fence later to allow graders to move closer to the tree, thus damaging the roots. The fences are erected as a ruse, to make it appear the homebuilder is following the ordinance, she said.
The city has failed to take seriously its own ordinance, said Coffin, the arborist who is suing the city.
Coffin had been one of eight field arborists who toured the city to examine lots where homebuilders proposed to cut trees. As the senior arborist, Coffin supervised the other field arborists and he filed numerous requests to reprimand other arborists for not enforcing the code. Coffin said he was fired in July 2008 in retaliation for his acts. (He is represented by Smith, White, Sharma & Halpern attorney G. Brian Spears and civil rights lawyer Gerald R. Weber Jr.)
The city has denied Coffin's allegations, but its attorneys declined additional comment on the suit, according to city spokeswoman Catherine Woodling.
While Coffin said he wants his job back, he also filed the suit to make the city enforce the tree laws. Coffin, who holds a doctorate in forestry, said the law was passed in 2003 after numerous interest groups, including Trees Atlanta, community activists, environmental groups and some city employees, realized Atlanta was losing its tree canopy.
One provision requires a permit to cut down any tree that's at least 6 inches in diameter—whether the tree is living or dead. Although that provision has been on the city's books since the mid-1960s, Coffin said it has “seldom” been enforced.
In the hopes that the permit provision would be enforced, and with the goal of expanding the ordinance, a group of community activists started to pressure the city in the 1990s to establish a commission to study the preservation of trees. By 1999, the city was persuaded into expanding its department of arborists. The city ordinance was later revised and expanded, with the establishment of a system of “recompense” forming the teeth of the law, Coffin said.
In the recompense formula, a developer, homebuilder or homeowner can cut down a living tree, for the purpose of building a home or landscaping, if the builder obtains a permit and pays a fee of $100 plus $30 for each diameter-inch of the tree. The tree-removal fee, which Coffin said was bitterly opposed by developers, survived a 2001 legal challenge filed by Atlanta developer Louis Reynaud.
“That was probably the first time in the U.S. that people were charged to cut down trees on their own property,” Coffin said. “It puts a value on trees. The developer has to look at trees as a resource.”
As for unhealthy trees that a property owner wants to remove, a developer can apply for a permit classifying a tree as legitimately dead, dying, diseased or hazardous. With that permit, a tree can be cut down without being required to pay the fee or to replant another tree elsewhere.
The replanting feature of Atlanta's ordinance may be unique in the U.S., Coffin said. It's designed to help the city recoup the loss of trees that are removed for construction or landscaping. If a tree is removed, the builder must plant a replacement “in-kind” tree, subject to specific minimum requirements, elsewhere in the city.
A builder who replants cannot cut corners, according to Coffin's reading of the ordinance. If a homebuilder chops down a 100-year-old oak, he can't replant a Bradford pear tree seedling to make up for it. The seedling to be replanted must be on the city's list of “desirable” tree species and must have achieved a minimum height and diameter prior to planting.
One of the most extensive examples of the replanting option, Coffin said, is Pulte Homes' Princeton Lakes housing development in southwest Atlanta. Although Pulte “clear cut” the trees in the area where they built houses, he said, the company set aside a significant area of existing forest land and also replanted trees in another housing development as required by the city ordinance.
The recompense fees can become a financial burden on developers, said Seyfarth Shaw partner Carl E. Westmoreland Jr.
“If you have a large tract of land, the fees are such a huge portion of the development costs,” said Westmoreland, who advises developers on land-use and zoning issues.
As senior arborist, Coffin said he repeatedly filed complaints with the city's tree commission that other arborists under his supervision weren't doing their jobs. They were shirking their responsibilities because the permit-granting system allows for corruption, he said, granting permits to remove dead, dying, diseased or hazardous trees too loosely. If a developer obtains a dead, dying, diseased or hazardous permit to cut down a healthy, 30-inch-diameter tree, the permit could save him about $1,000, Coffin said.
For large homes or large developments, fines can reach the tens of thousands of dollars, said Coffin.
Developers also have concerns about the ordinance's rules for taking down trees that are not located in a specifically designated buildable area, Seyfarth Shaw's Westmoreland said. Only healthy trees located inside a buildable area can be taken down, if the developer also replants another tree elsewhere or pays the recompense fee. If a tree is outside the buildable area, and the developer wants to remove it, he must obtain a dead, dying, diseased or hazardous permit, “which is always difficult,” Westmoreland said. Violators are fined and for a large development, that savings can add up.
For the largest homes and properties, the fines can add up. Coffin said he once assessed a $68,000 fine against Atlanta filmmaker Tyler Perry for illegally removing dozens of trees in a creek bed at his property in Buckhead.
A $21,714 Tree
For DeReuil and Tardio, the 30 trees on their lot serve many purposes. They're decorative. They create a peaceful atmosphere. They offer a home for birds. They provide shade and, therefore, lower utility bills.
“The tree canopy prevents us from having to install a huge air-conditioning unit,” DeReuil said. “Everyone expects that you want your house to be 70 degress all the time, but you have to use some kind of mechanical equipment to do that. We didn't want to turn the house into an icebox, we wanted it to breathe.”
DeReuil and Tardio went to great lengths to analyze the trees on their property. They mapped the roots of the major trees and designated the root areas as land on which nothing can be built. Tree roots dictated the architectural style of the home. Concrete piers, which serve as the building's foundation, were installed in places where they wouldn't touch the roots. That design that required DeReuil and Tardio to buy taller steel beams, in order to support the weight of the building.
DeReuil and Tardio also identified, with the help of a private arborist, each healthy tree on the lot and assigned each a dollar value, based on its size, species, age and condition. Two oak trees, each with a 4-foot diameter near its base, are each valued at $21,714. A 42-inch-round oak is valued at $16,623, and a 32-inch poplar is valued at $9,651. The 30 trees on the lots are valued at a total of $204,624.
It's not necessary that the other property owners on the lot build in the same modern style as DeReuil and Tardio's home, she said. Keeping the trees intact is what matters.
“Our work is considered 'modern' and that's what we prefer to build,” she said. “But I would much rather see a small well done Craftsman Bungalow house, placed delicately on the site, than a huge modern house with a garage and tons of paving.”
Partly because the homes are unlike anything private contractors ever build, and partly to save money, DeReuil and Tardio perform all the work themselves. That includes welding, plumbing, concrete work, tile work and glazing.
Some of the savings were applied to hiring their lawyer. But the easement has cost DeReuil and Tardio in other ways. It will be harder to sell the remaining parcels because of the enhanced restrictions created by the tree preservation easement, she said. Instead of a 15-foot buffer between the home and the rear of the property line, for example, there is a 50-foot buffer. That might scare off potential homebuilders who want to design a house of a minimum size.
Then there is the fact that the easement has reduced the value of their property by about $40,000, according to a recent appraisal, DeReuil said.
“The appraiser said that, although the tree preservation easement adds value to a property that already has a building, it detracts value for a builder, because he must build a smaller house,” DeReuil said.
The reduction in the property's value is a necessary evil, she said. “We wanted to be able to provide a guarantee to ourselves and to the other lot owners,” she said, “that the views, shade and privacy that the trees offer will be there permanently.”
Staff Reporter Andy Peters can be reached at Andy.Peters@IncisiveMedia.com
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