Rehoboth commissioners uphold removal of silver maple

The backyard of 318 Country Club Drive could soon have a lot more sunlight after Rehoboth commissioners upheld a decision to allow property owners to cut down a 56-inch caliper silver maple during an appeal hearing Dec. 20.

By a 3-1 vote, and after a five-and-a-half-hour hearing, the board of commissioners upheld the parks and shade tree commission’s Oct. 22 decision to allow property owners John McKenna, Winifred McKenna and Mary Ann Sartain to remove the tree.

The McKennas and Sartain requested the tree be removed earlier this summer. City Arborist Liz Lingo denied the request Aug. 15, prompting the property owners to file an appeal to the parks and shade tree commission.

In an Oct. 12 report prepared for the commission’s Oct. 22 hearing, Lingo estimated the tree to be approximately 150 years old with a 56-inch caliper, defined by city code as the diameter of a tree trunk measured 1 foot above the ground.

The McKennas submitted evidence, in the form of a picture, showing the tree was more recently planted. They estimated it is 50 to 60 years old.
Prior to the Oct. 22 vote, Lingo’s report was stricken from the record after John McKenna argued it had not been submitted within the code-defined time limit of 15 days.

In addition to allowing the tree to be removed, city commissioners stipulated the tree must be replaced with another medium-sized, native shade tree and the homeowners must pay a $3,500 fee toward mitigation, funds used to plant trees elsewhere.

The appeal hearing was prompted by property owners Julie Davis and John Metz, who filed an appeal and stop work order with the city Oct. 24.
At the Dec. 20 hearing, John McKenna did the talking. He argued the tree roots made the yard unusable and were causing damage to a nearby shed and outdoor shower. This tree is a nuisance, he said. It may be a beautiful nuisance, but it must come down, he argued.

“I’m going to be a grandfather in six months, and I’d like to be able to put up a swingset, but I can’t,” McKenna said. “The backyard is useless for anything other than being home to this tree.”

On behalf of the tree, Davis argued there was no third-party evidence to corroborate the McKenna’s claim of the roots causing damage.

Davis said cutting roots was common practice to prevent the spread of roots. The McKennas have an obligation to protect the tree.

Davis said this tree was a test of the tree ordinance. If it’s not upheld, why even have the ordinance, she said.

Property owner Susan Gay, neighbor to the McKennas and one of an additional 45 people who signed on to the appeal, said this is the largest tree in Country Club Estates, and it’s not even middle aged.

Gay argued there may be flooding if the tree were to come down. With growth and development, losing trees is unavoidable, but it’s a slippery slope, especially when it rains, she said.

When it came time to vote, Kuhns said any tree in town with roots like this needs to get taken out because the roots are so far above ground. A lot of the yard is not usable, he said, before voting to uphold the prior vote.

Commissioners Lisa Schlosser and Richard Byrne also voted to uphold the tree commission’s decision.

Byrne said it was an incredibly difficult decision, and he wished the McKennas loved the tree enough to keep it.

Commissioner Toni Sharp voted no. She said she wasn’t convinced the tree was a nuisance. The damage to the canopy well outweighs any of the other arguments made, she said.

McKenna also argued the city commission didn’t have the authority to require the $3,500 fee. He said the property was grandfathered as having never met the city tree ordinance’s minimum density requirement.

The commissioners voted 2-2 on the fee, which means the fee remains. The McKennas did not appeal the city commission’s requirement to plant a tree.

The Dec. 20 decision is likely not the last the city will hear of the silver maple. In the not-too-distant-future, Max Walton, the attorney running the appeal hearing, said he will prepare notes, with the votes taken, for another public meeting where the commissioners will have to vote again on the decision.

Davis said she wanted to make sure she and the other appellants would have time to challenge the decision by the board of commissioners in court. She said she was concerned the commissioners would vote in favor of the information put before them at the future public meeting, and then the McKennas would have the tree cut down that afternoon.

It was agreed by all parties that the city would not issue a permit to cut the tree down before the commissioners voted at the future public hearing. As part of that future vote, there would be a yet-to-be-determined period of time attached to the approval to provide appellants an opportunity to prepare a stop work order at a higher-level court of appeal.

As of press deadline Dec. 21, the future public hearing had not been set.