Rochester Threatened With Lawsuit Over Refusal To Remove Landmark Tree

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.