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Rochester Threatened With Lawsuit Over Refusal To Remove Landmark Tree

The 80-foot-tall spruce tree is "quite frankly, filthy" lawyer writes. Rochester City Council voted to save the tree in September.

The developer of a future home on Ferndale Street in Rochester is asking city leaders to reconsider their protection of an 80-foot-tall spruce tree whose status is marked "landmark" — even though a lawyer has labeled it "filthy."

Rochester City Council said no to the request by Lombardo Homes and Seventh Street Investments in September to remove the tree. Last week, a lawyer for the developers urged councilmembers to hold another public hearing to consider the same request.

"The public interest in retaining such tree is far outweighted by our client's need to remove it and the public benefits derived from removal," attorney Timothy Koltun wrote in a letter to the city.

"If the city does not approve the removal of the tree our clients fully intend to appeal such decision to the Oakland County Circuit Court and pursue such other remedies as may be available."

The city will hear an opinion from its own attorney in a closed session Monday night; the issue would likely return to an open meeting agenda Jan. 8. 

Council's opinion

Seventh Street Investments owns the property at 345 Ferndale St., which is on the corner of Oak Street north of downtown Rochester. Lombardo Homes is looking to sell a home on that property. In September, they asked for permission to remove the tree, which is necessary under the city's Landmark Tree Ordinance.

It was the first public hearing on a landmark tree removal request that the city has had since the introduction of the landmark tree ordinance in 2009. (A copy of the ordinance is here.)

According to the law, the owner of a lot with a landmark tree is charged with demonstrating there is good reason to remove the tree and that that reason outweighs the public interest in retaining the tree.

The spruce tree measures 4 feet in diameter and stretches about 80 feet high. 

Gregory L. Windingland of Lombardo Homes told councilmembers in September that he wanted to save the tree: it would bring beauty to the lot and it would be costly to remove, he said. However, he said the roots were showing signs of damage, and that if a home were to be built on the lot, the potential for further damage to the tree would be great. 

City leaders told him the root damage was not detrimental to the health of the tree and that they were confident a home could still be built on the property. They unanimously denied his request to remove the tree.

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The owners offered to replace the tree, which has been valued at $7,200, with replacement trees on that lot and elsewhere in the city.

A lawyer's response

In his letter to the city, Koltun, the lawyer, wrote: "This species of tree is quite frankly filthy, spewing significant amounts of sap and needles. This type of tree is typically found in parks or wooded areas, not within suburban residential lots. This tree also has a history of causing the sidewalks to heave."

Removal of the tree will permit construction of a home on the property that is harmonious with the rest of the residences in the neighborhood, in terms of size, footprint and setback, Koltun stated.

Only a "considerably smaller" home could be built on the lot if the tree is not removed, he wrote.

"The purchaser currently under contract is unwilling to accept a smaller home and is going to terminate the contract unless the City Council promptly reverses its decision," the letter stated. "The City Council's failure to approve the removal of the tree would constitue a partial taking of the property, for which compensation in excess of $100,000 would be payable by the city." 

The closed meeting will be held at 6:30 p.m. before the regular 7 p.m. Rochester City Council meeting.

Don Wolanchuk December 17, 2012 at 09:53 PM
Amazing.....thousands of homes in rochester and not one ever displaced a tree.......thanks to the city councils.....lessee ....how many of these have we had in the last 20 years.....:>)
Don Wolanchuk December 17, 2012 at 10:05 PM
Question.......what does a fire chief call a blue spruce......"Gasoline on a stick" ......just ask him
Patricia December 17, 2012 at 10:40 PM
Yes Don, and then we got smart and began paying attention-we elected smart people and realized the significance of the word "green" which means more than recycling garbage. We also realized the value to the community as a whole.
Patricia December 17, 2012 at 10:44 PM
Tree canopy refers to tree height, age and girth but you probably already know that. Tree canopy is a general term used in the count and % of coverage by significant trees and the number of trees within a city.
Mike Reno December 17, 2012 at 10:49 PM
Why doesn't the city buy the lot? Maybe it would be expensive, but isn't it the fair thing to do? Nothing wrong with the city's goal of preserving the look... but it is entirely unfair to do so by sacrificing private property rights.
Kristin Bull (Editor) December 17, 2012 at 10:53 PM
Bob Jackie - please refrain from name-calling. Thanks.
Dee Kay December 17, 2012 at 11:05 PM
Playing the devils advocate here as I couldn't find out much more about the tree ordinance than it goes on size. Is there any other criteria for the designation? Who gets to make the final choice on whether an owner is allowed to use their property on a subjective choice? Who is willing to pay to keep the tree safe from being cut down? Should the city pay? Those wanting it left up? Why is it forced onto the owner, who has a different opinion as to the benefit of a common pine tree, to pay to take this to court? Would anyone complain if the government came and mandated what had to stay on your property, without any recompense? Where does it stop? Is there any historical significance to this tree that others are not aware of? Was it used to hang someone notorious? Was it a marker for the underground railway? What makes this tree more valuable than any other 50-80 yr old pine tree? I am all for saving trees when possible, but not at the sake of a subjective choice to the worth someone else places on something, instead of the property owner. Free choice means that you are also free to make choices that others don't agree with. Government should not be deciding who has more right to make the choice they desire, if those choices are not safety or welfare related, over the owner. Subjecting others to live by others views is not democracy, it is despotic and dictatorial. This choice should not be made by emotions but by facts. History is important but so is progress.
Christian Hauser December 17, 2012 at 11:15 PM
So says the woman who "believes in protecting property rights and property values". Patricia, if I understand correctly, it would appear to me that Mr. Koltun is doing just that for his client: protecting the property rights of the owner and in turn, raising property values. He has requested to remove the tree on HIS property, enhance the lot value by building a house (and generating increased tax revenue), and has offered to plant replacement trees either on his property or elsewhere as directed by the city. Based on your profile statement, I think this is something you would get behind with all of your support.
Patricia December 17, 2012 at 11:53 PM
You have a good point Christian--because we can't even protect our property rights from neighbors who believe they are entitled to the health on our property as well as our use and enjoyment of our own property-so you are correct. However, the tree has value and I guess if I am correct the tree was designated as Landmark prior to the sale-it's like a registered historic structure-if you know something already has limitations on the property you are buying and being by a lake, stream or wetland etc, even comes to mind. you have certain restrictions already in place. I don't know how this will play out-but I do know Dave Smith, the lot directly behind did a fine job in protecting all 6 very large trees that are in one area. All bricks and mortar and little sticks in the ground is not going to enhance anything. A house can still be built that is both profitable and generates tax revenues leaving the Landmark Tree. I respect your opinion and I believe you also respect mine. I think this next year residential property rights will be an issue and it is going to be a tough one. This may just come down to dollars and cents. It's a shame.
Debbie Larsen December 18, 2012 at 12:38 AM
Rochester's landmark tree ordinance may be read here: http://library.municode.com/HTML/10080/level4/COOR_CH20EN_ARTIITROR_DIV6LATR.html#COOR_CH20EN_ARTIITROR_DIV6LATR_S20-71LATRDE
Don Wolanchuk December 18, 2012 at 12:51 AM
>Subjecting others to live by others views is not democracy, it is despotic and dictatorial. <......not really......but it is great grist for the social media like the one we are in. I love everybody on this thread.......we should talk more often....-g-
Patricia December 18, 2012 at 12:52 AM
Progress is good only if it does not destroy everything. Without measures for preservation we would be left with nothing but canyons of bricks &mortar & everyone thinking it's up to someone else to be a guardian for our future. It's common to have the "me" factor when building. We have seen this where there are very large houses on small lots blocking the sun & any view for the adjacent houses that were sized appropriate for these lots-now they have walls & no sun.Thats not right-they also made an investment. If you look at the new houses off of Harding, the two on the west the floor to ceiling windows on the second story are a few feet from the neighbors floor to ceiling windows or the view is a solid wall--I was flabbergasted for that kind of money--no view except the neighbors interior & vice versa. Gives a whole new meaning to bedroom community because you are so close & the windows large-it's the perception that bigger is better and you have to build the entire lot & fill it with bricks & mortar.The tree is 80 feet tall--80 feet--and has been there for years. It is exceptional not ordinary in its size and years. The decision is made only by the City Council-not any of us that would like it saved. So, good to air opinions. And Dee, a good point that you made, maybe in the future rights and restrictions should be explored and both better defined and clarified. I think we will see work in that area this next year. It is important to everyone.
Don Wolanchuk December 18, 2012 at 01:25 AM
and are gasoline on a stick......canopy......something you can stand under......tree canopy........trees with leaves...........LEAVES.....google tree canopy and click images.......find me a spruce......not gonna happen https://www.google.com/search?q=tree+canopy&oe=utf-8&aq=t&rls=com.yahoo:en-US:official&client=firefox&um=1&ie=UTF-8&hl=en&tbm=isch&source=og&sa=N&tab=wi&ei=pcXPUJC1LaeZyAHGkIGQBg&biw=1280&bih=598&sei=qMXPULLBOuOxyQGS24Bo
Don Wolanchuk December 18, 2012 at 01:30 AM
80 ft tall.....something to look up to.......and you want to plant one to enjoy......u gonna still be here to look at it?.......as for my apple tree.....its a dwarf.....spruce trees get bug blight and start forest fires when lit with Gods match......
Shelby VanConant December 18, 2012 at 01:33 AM
Debbie, She said that, as she said she only sees with the landmark tree that it goes by size. The historic tree is labeled differently, but this tree in question is not a historic tree, but a landmark tree. So she is saying with it only being by size, who will pay to keep it where it is?
Acorn Twp. December 18, 2012 at 01:39 AM
The builder is correct when the house is built the tree WILL eventually die. We added on to our house trying to work around 3 old fir trees. Twelve years later the last one has to come down. The tree will not survive the root disruption. If the city wants the tree so bad they should purchase the property for a greenbelt. And if the city does purchase the property, it sets the city up to have to purchase any vacant lot that they consider the tree worthwhile. The tree is beautiful but the tree doesn't belong to the public. The city should not devalue the owners property or take the owners right to build within the zoning ordinances.
Downtown Developer December 18, 2012 at 01:44 AM
Did the purchaser of the property know that the tree was a landmark before they purchased the property and began planning the home design? It is a public ordinance and if it predated the purchase the owner doesn't have much to complain about. They City could allow a variance but would it make sense? Is the tree a landmark tree? Could the owner construct something within the available limits of the property with the tree left in place? Are there other properties that the buyer could develop to equivalent benefit to the cities tax base? Could the city permit variances to other ordinances on other property that wouldn't involve destroying a landmark tree - modify a setback or the like? Feels like the developer and his lawyer are asking to set aside an ordinance that was fairly enacted to protect a public interest. I think they and their client may be better off working within the rules on this one. Lots of big, inflammatory words but not much substance to their argument. When people start making a case for or against democracy and talking about the weight of history when talking about a city ordinance it is a sure sign they've got no ground of substance to stand on.
Patricia December 18, 2012 at 02:16 AM
No, it takes years to grow trees of this size, thats why progressive cities are protecting. If I planted a 5 ft spruce, I will be long gone by the time it reached 80 feet. Thats the significance of these great trees. I would rather look at a marvelous living spies such as this, then get my little 8 foot ladder from the garage to trim the top of a dwarf apple-both have value and purpose--only very very different. Anything in the forest can burn with a lightening strike in dry weather-including wild crabapple trees, serviceberries, oak, maple, walnut, etc. you get the idea. It's all vulnerable.
Scot Beaton December 18, 2012 at 03:00 AM
80th Annual Rockefeller Center Christmas Tree lighting "For the 80th Annual Rockefeller Center Christmas Tree lighting, an 80-year-old, 80-foot-tall Norway spruce is the guest of honor in New York City. Illuminated with 45,000 LED lights, the New York City Christmas Tree was lit on Nov. 28, 2012 after a star-studded concert was held in its honor. Thousands of New Yorkers and tourists flocked to Rockefeller Center to catch a glittering glimpse of the magnificent tree. The lighting of the tree officially kicks off the holiday season in the Big Apple." Read more: http://www.nydailynews.com/new-york/rockefeller-center-christmas-tree-lighting-2012-gallery-1.1209903
Scot Beaton December 18, 2012 at 04:27 AM
Steven, Linda, Rochester Planning Department... Between 1848 and 1870 -- Haussmann, Georges-Eugène -- Paris City Planner "It is impossible to imagine Paris without tree-lined boulevards, great circle crossings and the numerous, convenient bridges. The new white stone boulevards sometimes stretched for three miles. Lined with tall, newly planted thirty-year-old trees, they led straight to the center of Paris and opened up hundreds of cramped areas. Between 1848 and 1870 the streets of Paris became a new phenomenon in the history of architecture. The then radical architectural ideas still set an example for modern city planners." http://www.ohio.edu/chastain/rz/parisstr.htm question: If Haussmann could do this between 1848 and 1870 -- the technology existed way back then, why did we get stuck with 'twigs' in 2012.
Scot Beaton December 18, 2012 at 04:58 AM
'double standard' Steven, a lot of municipal ordinances exclude 'public improvement projects' from private sector regulations -- I don't have a good answer why. Sec. 20-42. -Planting and removal. "The planting and/or removal of trees and shrubs in the public rights-of-way, parkways, parks, and other public areas of the city may be done either upon resolution of the city council or by order of the city manager." http://search.municode.com/html/10080/level4/COOR_CH20EN_ARTIITROR_DIV2VEPUGR.html#COOR_CH20EN_ARTIITROR_DIV2VEPUGR_S20-37RU note: does not state the city has to comply with its tree ordinance.
Bob Jackie December 18, 2012 at 05:38 AM
Oh, pardon me, "fine gentlemen" LOL!
ceecee December 18, 2012 at 05:53 AM
Maybe I don't know the history of the property correctly, but I don't imagine anyone forced the party to buy the lot with the tree on it. So suck it up. And, oh dear, build a smaller house in Rochester. Horrors! All those baby boomers coming up will be needing smaller homes, on one floor, built so the folks can "age in place." I believe our building code should be changed to require all our new houses to be handicapped friendly. Even 3 steps would be challenging for folks using wheelchairs. We need houses built for the future, including extra wide doorways, a bedroom, bath and laundry all on the main floor. In the next 10 to 30 years all our McMansions will be useless to that primary age group.
Scot Beaton December 18, 2012 at 07:06 AM
Patricia...  Sorry no -- Main Street is MDOT property. Not trying to create any problems with your statement -- just pointing out MDOT property does not have to comply with Rochester ordinances.
Don Wolanchuk December 18, 2012 at 12:18 PM
And then it died. And where it was living its neighbor spruces all shed a tear. sigh
Peter Griffin December 18, 2012 at 03:59 PM
How much you want to be something "convenient" happens to the tree in the next year?? The land owner will get his way the same way that the guy who bought the historic home by Bordines got his way. Pretty convenient how that historic home "fell" into a state of disrepair only to be torn down. Please -- keep an eye on this tree.
Cindy Landholt December 18, 2012 at 05:19 PM
That tree really is not that beautiful, it's leaning and really has grown too big for the area. Cut it down, replant and move on. Nothing lives forever.
STEVEN SPARKS December 19, 2012 at 06:13 AM
You wil also have to spray that apple tree with numerous deadly chemicals harmful to humans,animals and birds but deadly to many insects all after those red apples. Oh and watch for early frosts and droughts that will kiil your harvest in the fall. Even if you spray and protect tree with warmers from frost you will have to beat the birds and worms off for the 1 apple. Mature Spruce trees are great and provide numerous nesting sites for many birds at one time.
STEVEN SPARKS December 19, 2012 at 06:29 AM
I can see the results now, since a lawsuit is threatened towards the city. The city does not have funds to fight developer multimillion dollar corporation so despite regulations and best intentions city has they have no choice but to cave in. It happened on our street when developer wanted to put more houses on a patch of land than city originally allowed and neighborhood residents wanted. developer threatened lawsuit and city said go ahead and developer put in more homes than first plan. The wetland they destroyed were manmade somewhere else in the state. That will really help the local creatures that used the wetland. Same as that tree the creature that use that tree for a home will have to look elsewhere, maybe the homes built nearby?
Patricia December 19, 2012 at 01:31 PM
You are correct Scott and I should have stated it different. In discussions early on the question was asked and MDOT and Oakland Cty along with the City did state should a tree, Historical /Landmark etc. be in the way, they would try to work around it and that could mean delays in the completion. But the State and the County even when I spoke with them expressed concern about protecting both the environment and a situation such as this should it have come up. But it didn't. Whew! Merry Christmas Scott.

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