The huge live oak in Carla Peebles’ backyard offers shade and beauty.  Its locations – about four feet from her Northwest Austin townhouse- is not so ideal.

Peebles and her mother have lived in the 30 year-old home since 1995, and over the past few years a large crack has formed in a concrete patio at the trees’s base and crept up two concretes steps to the the back door.  Peebles wants to cut down the tree, fearing it will damage the home’s concrete slab foundation.  But becuase the tree’s trunk is more than 24 inches in diametere, she must get the City of Austin’s permission.

So far, the city has said no and asked Peebles to explore other options, such as replacing part of the pation with wooden decking that’s less restrictive for tree roots.  The case is one of the first tests of tougher new rules designed to protect especially large trees the city calls heritage trees.

“What if we spend a bunch of money redoing the patio and a year down the road, the tree is cracking the foundation?”  said Peebles, 32, who works part-time and is a part-time student.  “I like that Austin so protective of the trees and that this is such a verdant city. But my mother has a fixed income, and this (home) is our most important asset.  We don’t have unlimited money to dedicate to this problem.”

The city has for nearly three decades required property owners to get a permit before  felling trees with trunks that are at least 19 inches wide.

In February, the City Council kept those rules in place but decided that landowner’s whoe want to cut down Austin’s oldest, grandest trees-those with trunks at least 24 inches wide and one of 20 native or highly adapted species- must get a variance.

That’s a higher bar because a property owner must show that the tree is dead, badly diseased or “an imminent hazard to life or property” that can’t be mitigated.  Peebles’ oak , which has a trunk about 26 inches wide, seems to be in good health, and an arborist and engineer she hired have not shown that the tree poses an imminent threat to life or property, said city arborist, Michael Embesi, who has also inspected the tree.

Rules began in the 1980’s

The city first enacted tree rules in the 1980’s to prevent developers and landowners from clear-cutting lots or felling decades-old trees.  The thinking behind the rules, city leaders say is that even trees on private land affect the public good.  Aside from their intrinsic beauty, large trees cut energy use by offering shade, filter storm water and absorb carbon from the air.

Residential property owners ask to fell about 900 trees a year with trunks that are at least 19 inches wide, Embesi said.  The city allows about one fourth of them to be removed, mostly because they’re in bad health, he said.  The city does not have exact figures because it tracks the numbers of trunk  diameter inches saved, not the number of trees, he said.

Since the tougher rules took effect in February, 30 requests have been submited to cut down tres with trunks at least 24 inches wide.  The city has OK’d 20 of them, for health reasons, he said.

Property owners given permission to cut down especially large trees must plant new ones, pay $75 per diameter inch into a city tree-planting fun or show the city that they’ve paid for more intensive care for existing trees on their land, such as hiring and arborist to prune the trees or aerate their soil.  The width of the trunks on new trees must equal three times the diameter of the felled tree- twelve 6-inches- diameter trees planted to replace a 24 inch tree, for example.

Residents who illegally cut down a tree can be charged with a Class C misdemeanor and fined up to $2,000. Because the fine is low, city officials rarely impose it and instead focus on getting landowners to plant more trees. In a high-profile case earlier this year, the owner of a South Austin scrapyard felled 100 trees without a city permit, saying he wanted to clear an area where thieves and transients were living.  About 20 of the trees were at least 19 inches in diameter, and the city is still assessing that incident and possible penalties, Embesi said.

Embesi decides on most tree-removal requests, though a city land-use board has the final say on trees at least 30 inches wide that are on the list of 20 species.  Owners of trees at least 24 inches wide can appeal a denial to the city land use board.  The tree rules don’t make exceptions for residents with financial hardships.

Different takes on tree

In Peebles’ case an arborist at Good Morning Tree Company,which cares for and removes trees, wrote a one-page assessment saying that the tree is showing signs of strain. Its health will keep declining because it is growing so close to the home, the arbosrist worte. The tree is a hazard and “will continue to cause damage to the home’s structure and foundation if nit is not removed,” the arborist said.  The company told Peebles it would cost $1,500 to cut down the tree.

An engineering firm Peebles also hired to assess the oak said it was not possible to determine the patio’s shifting and cracking are due solely to the tree’s location.  But it wrote that engineers typically recommend removing a tree growing so close to a home.

“Trees next to foundations can apply intense pressures on those foundations… Tree roots can grow under the foundation , causing uneven foundation settlements, resulting in cracks in the structure, and doors and windows to stick,”  the one-page report said.  The trees should be trimmed or removed “so that it cannot continue to damage the home’s foundation.  The roots clearly grow beneath the footprint of the home, which is always detrimental.”

Embesi said those reports have not shown that the oak is an immediate threat to the home, even if it has cracked the patio.”  “They say that in the future, the tree may cause damage.  They are inconclusive that the tree is causing structural integrity problems.  The justification is not there,” he said.

Sid Mourning, owner of Good Morning Tree Company, said Peebles’ tree and the case of a large post oak in West Austin show that the new tree preservation rules go too far.

The West Austin oak has a trunk about 27 inches wide and is growing straight up the side of a single family home.  The owner bought the home a few months ago assuming she could cut down the tree, which prior owners had accommodated by cutting holes int he foundation and in an eave, Mourning said.  Engineers also recommended removing that tree but said it was not possible to tell if the tree alone was causing the home to shift and creating cracks in walls and ceilings.  Embasi has also inspected the post oak and read the engineering report and said there’s not enough proof that the structural integrity of the house is at risk.

In both cases, Mourning said, “It ‘s simple to see that the tree roots have done damage and are going to do more. It’s obvious, obvious stuff.”

“The city wants to protect beautiful old trees.  We all do.  But these home owners are being told that these trees are more important than their house, their lives, everything they’ve got,”  Mourning said.  “The basic question is, are trees more valuable than the person that owns the house and their assets?”

Austin-American Statesman Tuesday April 27, 2010