Variances on trees to be reported

For at least two years, the San Antonio city development office has routinely given developers every variance they wanted to skirt the tree preservation ordinance, letting them remove thousands of trees without the knowledge of the city’s elected leaders.

Now that’s going to change.

Reacting to an investigative report in the San Antonio Express-News, City Manager Erik Walsh has directed staff to be more transparent about any variances to the ordinance given to developers.

In an email to Walsh and the City Council on Tuesday, Mike Shannon, director of the city’s Development Services Department, promised to track and share all variances to tree preservation rules that are requested and approved, as well as any fines assessed or waived by the city, and any requests for exceptions to the ordinance made by elected officials.

“I believe this strengthened reporting and documentation will allow us to review our process related to these variances and allow us to make any necessary changes or adjustments if we identify issues in terms of appropriate application and consistency,” Shannon wrote.

The city decided to change the policy after the newspaper found that developers asked for 206 variances to the tree ordinance in the last two years and that all were granted. The report also revealed how state Sen. Roland Gutierrez, D-San Antonio, persuaded Shannon to waive a $2,000 fee he was assessed for cutting down a large heritage oak tree without a permit.

Shannon now must send Walsh a monthly summary of any variances and fines. And if an elected official requests an exception to the tree ordinance, Shannon must alert the city manager “immediately,” Walsh said.

“I think it improves awareness,” Walsh said. “And if we start to see trends or issues that have to be addressed, then there’s a heightened awareness about it. But that aside, the tree ordinance is hugely important and has been the source of a lot of debate in this city for a long time. I think that regular report that we can make available and that I can view is important from a management standpoint.”

Walsh said the impact of the 206 variances was minimal, noting they represented a “very small portion” of the total tree permits — about 10,600 — issued by Development Services in the last two years.

“It’s a very small portion of the total number of permits that are issued, and so I’m not concerned with that,” Walsh said. “I think everybody’s intention is to live within the tree ordinance and the regulations, and I think the development community does that and I think we administer it that way.”

More and more trees lost

In theory, the 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.

The new tracking requirements pertain to all variances — those approved by the Planning Commission as well as staff.

Shannon said all requests are considered on a case-by-case basis and that any variances must be justified by hardships facing the developer. He said any exception must still meet the intent of the code.

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.

One recent example: On 243 acres known as Davis Ranch near Government Canyon State Natural Area, PulteGroup is developing a subdivision of more than 1,000 lots. In the process, it obtained five exceptions to the ordinance: two of them approved by the Planning Commission and three granted by staff.

Davis Ranch is in the city’s extraterritorial jurisdiction, which extends development controls 5 miles outside the city limits.

For one 32-acre section of the development, 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.

Mayor Ron Nirenberg welcomed the new policies at Development Services as a boon for “oversight and transparency.” He also echoed the city manager’s assessment that the 206 exceptions approved in the last two years were a “small fraction” of all developments.

“I hate having to read about trees lost,” Nirenberg said. “It’s unfortunately a very complex situation because Texas is a property rights state. And while there are great things about this, it does mean that most folks have control over their land and their trees.”

He added, “What has been more problematic to our ability to protect trees is the vast acreage of land that is protected under very liberally defined vested property rights.”

Property rights rule

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.

That’s how Gutierrez, the state senator, justified cutting down the oak tree on the residential lot he developed. Nonetheless, Gutierrez still should have obtained a tree permit before removing the tree, part of a process to confirm his vested rights.

Walsh said it was unlikely the city could wrest more local control over the issue of vested rights, especially in a state that churns up new bills every legislative session attacking local tree ordinances.

“The reality is we’re playing defense in protecting what limited authority we have already,” Walsh said.

State Rep. Ray Lopez, D-San Antonio, echoed that fatalism.

“Unfortunately, municipalities don’t do well at the state,” said Lopez, a former council member. “The makeup of the (Texas) House today, I just don’t see that getting any traction.”

At the local level, current council members voiced support for Walsh’s policy changes.

“So long as the tree ordinance is on the books, it’s our job to enforce it,” said District 8 Councilman Manny Pelaez, whose Northwest Side district is often in the crosshairs of new development. “I’ve requested that, going forward, Development Services individually brief me on all variance applications so that I can verify adherence to the words and the spirit of this law.”

District 9 Councilman John Courage said he would like the new policies to go even further by requiring Development Services to report variance requests before they are approved.

“It’s not unlike, for example, zoning,” Courage said. “I want to know. I want my community to know. So I would say that’s a relevant report to get to us in advance of approving it, so the community has the same input into protecting their (tree) canopy as they do into protecting their other property rights.”

San Antonio’s tree canopy, which is critical to maintaining the city’s air and water quality, has shrunk in the past decade.

In 2009, American Forests, a Washington-based consultant, found San Antonio had about a 38 percent overall canopy.

Using 2017 data inside city limits and 2012 data in the city’s extraterritorial jurisdiction, 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.

“I can tell you people in our district love their trees, and we want to maintain that canopy,” Courage said. “I’ve probably had more questions about trees and protecting trees in my district than I have had on just about anything else that’s come up.”