Legacy of Emeryville's Urban Forestry Ordinance: 79 Trees Cut, 2 Saved

Public Trees Get Cut Down While Private Profits Rise Up 

Emeryville's Sad Urban Forestry Ordinance

Law Meant to Save Our Trees Has Had No Effect

News Analysis

The recent clashes over public street trees abutting the incipient Sherwin Williams apartment project highlights a persistent and existential problem for Emeryville’s Urban Forestry Ordinance; the law, passed in 2003 with unanimous City Council support, isn’t actually saving our publicly owned street trees it was intended to.  A document recently obtained by the Tattler in a Public Records Request shows the ordinance, often referred to as the UFO, has failed to protect trees with only two out of 79 street trees having been saved, public trees falling to developer’s chainsaws as fast as before the UFO.
The original stated goal to the UFO was to impose fees so onerous on those seeking to cut the public trees, the net result would be the trees would usually get saved.  The real world results have been totally ineffective at that goal, developers simply writing off what fees the ordinance does impose as a cost of doing business.  As a consequence, our city has been transforming into a land of lollipop trees.  

City of Emeryville Public Street Tree Removal Permits by
Private Entities: Proposed Versus Approved
Since 2003
Developers/private concerns proposed 79 trees be cut and the 
Urban Forestry Ordinance saved two.
Note: PG&E originally proposed to remove 30 publicly owned trees and 
after Council member John Bauters intervened, the utility company
reduced their proposed number to nine.
Chart doesn't include 65th Street's 'Glashaus' project; 20 trees removed without permission but later forgiven and fines waived by the City.

Staff Batting .000

Since its inception, the UFO has been under constant assault by developers, as one can imagine but remarkably, it’s been the City staff, specifically the Planning Department that’s stood shoulder to shoulder with the developers in requesting public street trees be cut.  Of the 81 requests received by City Hall, the staff has taken up the interests of the developers with every request and recommended to the Council every last tree be cut, not even one time representing the resident’s interests.  

City Council Bats .025 

It could be assumed the staff, who generally don't live in Emeryville, has less interest in saving public trees than do those residents that serve on the City Council; the final arbiters for requests to remove trees.  However perhaps even more remarkable than the staff’s perfect record in facilitating the tree cutters is the fact that the City Council has moved to protect only two of the 81 trees requested for removal.

Developers save money by cutting trees fronting their projects and planting lollipops after the job is done. Regardless, the UFO as it is written would be perfectly capable of saving Emeryville’s street trees, even against developers seeking good returns for their shareholders and a City staff trying to help them but for its prescriptive deference paid to the City Council, a group of five individuals that has heretofore shown only 2% interest in representing the residents.

The Legacy of Emeryville's Urban Forestry Ordinance
The idea was to make it so developers would tend to not
 cut the public street trees.  
Red=cut trees, green=saved trees.
The real world results of this ordinance are
a civic embarrassment.

It can be assumed an effective ordinance that purports to protect the citizen’s assets; assets that in this case the City itself says promote “community pride”, at least 51% of those assets would be protected.  However, the Emeryville Urban Forestry Ordinance was crafted to protect our street trees and it has an efficacy rate of only about 2%.  Clearly, if the people of Emeryville still desire to save their street trees like they did in 2003, the ordinance that is supposed to help in that endeavor needs to be rewritten, the absolute power of the City Council stripped out.  As it now stands, the UFO record reveals a series of elected officials that haven’t been totally honest with the voters when it comes to their urban forest.

Iconic/Ironic Trees

Bay Area Native
Golden-crowned sparrow

Against this backdrop, the City Council is currently weighing whether to allow the developer of the incipient Sherwin Williams project to cut 14 trees on Horton and Sherwin streets fronting that project.  Ironically, these same trees were the impetus for the writing of Emeryville’s Urban Forestry Ordinance after Sherwin Williams Paint company cut trees at this location some 18 years ago.  This location on Horton Street had a total canopy coverage over the street with trees from both sides creating a tunnel effect, the only such place in Emeryville. The paint company was ordered to clean up the site upon selling the property after more than 100 years dumping arsenic and lead in the soil as part of their manufacturing process and the mature existing street trees were cut down, the soil replaced with clean fill.  Sherwin Williams then planted lollipop saplings and called it a day.  Outraged residents, feeling taken, descended on City Hall and demanded a better deal and the UFO was the result.  It will indeed be ironic if the same trees that stirred the neighbors and forced the writing of the UFO were to now again be cut 18 years later and the ordinance waived as the staff is recommending.

Like the Bike Plan’s putative protection of bicycling with its Bike Boulevards, the General Plan’s ‘Areas of Stability’ meant to save our single family homes and the designation ‘Architecturally Significant’  meant to save historic buildings in town, the UFO is not written to be effective. Like the other legislative edicts in our municipal code, the UFO gives the impression of Emeryville as a real city.  However, the reality is these obtuse laws on our books can only be seen as placeholders for a time when livability and democracy are taken more seriously by City Hall.  Perhaps the sound of chainsaws could be replaced by the chirping of birds in our town; a dream of Emeryville residents from 2003 that has been deferred. 

Earns One Smiling Nora Davis
Nora Davis smiles down on the record of
Emeryville's Urban Forestry Ordinance.

Bike Plan Reinterpreted: 45th & 53rd Street Bike Blvds Languish

Bike Plan Unilaterally Reinterpreted

City Hall’s New Vision Means Traffic Calming Must Wait for Bike Boulevards

1,143 Cars Per Day Over the Allowable Limit

City Council Refuses to Protect Bicyclists

Level Four Goalposts Moved 

The City of Emeryville Public Works Department has announced it is unilaterally reinterpreting its Pedestrian/Bicycle Plan, adding additional procedures and making it more difficult to protect designated bike boulevards from excess vehicle traffic.  Elucidated in a recent letter to the Tattler, the City Hall staff generated reinterpretation changes the traffic calming ‘level’ system in the Bike Plan, adding many more steps to each level before a designated bike boulevard can move forward to the next level of traffic calming.

The new policy, revealed by the Public Works Department, states that “multiple iterations”, of a particular traffic calming level should now be conducted before the Council would be advised to consider raising the street to the more rigorous next level, theoretically adding decades before a bike boulevard would reach the highest level of protection (Level Five).

At stake is bicycle safety on our Bike Boulevards as the new interpretation hamstrings the City in effectively dealing with an unsafe amount of vehicle traffic sharing the road with bicyclists that the Bike Plan was formulated to protect against.  By adding new steps for each level of traffic calming, the staff presumes to speak for the Bicycle/Pedestrian Advisory Committee (BPAC) and the City Council that certified the Plan (without the stringent new metrics) in 2009.  It is informative that before the new staff interpretation, bike boulevards were moved up in level without these extra steps for each level. 

Indeed, several streets in our town have moved up from Level One to Level Three traffic calming over the years, where they now appear to be stuck, as is the case with the 45th Street and 53rd Street Boulevards. The new tougher policy now effecting these two streets will require more iterations of Level Three traffic calming elements be installed before they can move up to Level Four. 

If the City Council really wanted to implement
the Bike Plan, they could do it.  It's the
'stick to it' step they can't seem to accomplish.
It's either Attention Deficit Disorder (ADD) or 
Developer Surplus Disorder (DSD) indicated.
Symtoms are the same.
Remedies would be Ritalin or 
Electorate Reckoning respectively.

A recently conducted traffic count reveals those two streets are shown to have 1,143 (45th St) and 638 (53rd St) too many cars in Average Daily Trips (ADT) to be considered bike boulevards by the Plan.  But regardless of the excess traffic on these specific streets, the staff has ruled neither street is ready for a level ‘upgrade’ because of the new metric of “[up to] five elements” of Level Three traffic calming measures have not yet been installed.  
For a complete description of each traffic calming level, please see the chart below. 

The 45th and 53rd Boulevards join the former Horton Street Bike Boulevard in languishing; all three hitting a wall at Level Three traffic calming regardless of their excess vehicle traffic.  Notably, the previous head of the Public Works Department Maurice Kaufman and the previous City Council member Nora Davis both declared Level Four calming for any Emeryville street a ‘no go zone’; being too onerous for vehicles as described by developers wishing to build auto-centric projects near the Boulevards.  Accordingly, an earlier traffic count conducted by the developers of the Sherwin Williams project that also showed too much existing traffic on all three streets, was ignored by Ms Davis and the rest of the City Council.  Later, Mayor Dianne Martinez steadfastly and unilaterally refused to move the two streets, 45th & 53rd, to Level Four as the Tattler reported in 2016.

On Horton Street,  the City Council refused to institute Level Four traffic calming elements and instead issued a ‘Statement of Overriding Considerations’, stating the Sherwin Williams project is more important than the Horton Street Bike Boulevard and that the City would ignore the Bike Plan remedy for excess vehicle traffic.  The Statement of Overriding Considerations signaled to the community that the City Council has no intention of supporting bike boulevard status for Horton Street.  Regardless, before they were elected, both Dianne Martinez and Scott Donahue promised Level Four traffic calming for Horton Street.

The 45th and 53rd Street Bike Boulevards have not been subjected to a statement of overriding considerations but the City Council is continuing to let them languish, unrealized as bike boulevards.

The Bike Plan calls for traffic counts to be conducted every two years, a fact the Public Works Department now acknowledges even though the Department was caught lying to the City Manager about that in 2014.  The Tattler uncovered an internal document by use of a Public Records Request that showed how the Department was going to extraordinary lengths to prevent a street moving to traffic calming Level Four by attempting to get the newly hired City Manager Carolyn Lehr to ignore the Bike Plan.  In the memo, the Public Works staff told the new City Manager the Bike Plan says traffic counts are not to be conducted every two years, but rather only if a substantial construction project happens on the street in question or if a large number of citizen complaints are registered; an outright falsehood.  The Bike Plan is very clear that traffic counts must be conducted every two years without conditions.

The new interpretation of up to five required applications of Level Three elements (up from one) being ‘required’ may be the latest attempt by the City to stall implementation of Emeryville’s Bike Plan.  The City has felt no compunction against moving any Bike Boulevard speedily forward through Levels One to Three but they haven't thus far been able to make the breakthrough to Level Four, forwarding different reasons that change over time as to why it can't be done.  The latest prohibition against Level Four in the form of the unilateral Public Works reinterpretation seems to be just the latest blockage offered up by an ignominious City Hall.  It would seem the admonitions against Level Four traffic calming by the assailing Maurice Kaufman and Nora Davis made years ago are still the modus operating principles at City Hall.  

Bike boulevards are supposed to be "cars allowed but bikes preferred" streets meant to maintain bicycling as a safe and convenient form of transportation by discouraging motor vehicle use.  Developers and the business community have long tried to dissuade the City Council from enacting effective traffic calming on Emeryville's Bike Boulevards.

From the Emeryville Pedestrian/Bicycle Plan
Level Four=street narrowings, Level Five= full and partial closures
Level Four (and Level Five) have been determined to be too effective 
so the City has resisted implementing them on any street.  The City Council however has not 
seen fit to amend the Plan to remove these two highest levels they don't like, probably because 
they don't want to be perceived by the public as anti-bike.

From the Bike Plan
53rd Street is at the top of the photo, 45th on the bottom with Horton Street to the left.
North is up, east right, south down and west is left.
The Average Daily Trip (ADT) is supposed to be no more than 1500 for the eastern sections of
45th and 53rd Streets.

53rd Street From the Latest Traffic Count
The eastern section of 53rd Street has 2138 Average Daily Trips or
638 over the maximum allowable amount.  Since the street is now at Level Three, 
that should mean 53rd Street is a candidate for Level Four traffic calming elements.
The Public Works Department says NO however.

45th Street From the Latest Traffic Count
The eastern section of 45th Street has 2,643 Average Daily Trips
or 1,143 over the maximum allowable amount.  A City Council
that cared about bicycling would impliment
Level Four traffic calming elements for the street.

A traffic count from years ago east of San Pablo Avenue

showed 45th Street with more than 3000 cars per day.
Note the vehicle speeds are too high also.

Earns Two Smiling Nora Davis's
Nora Davis smiles down on
the Public Works Department 
and the City Council!

City Staff Holds General Plan in Contempt

Contemptuous Staff and Weak City Council Means the People's Will is Ignored

Family Friendly Homes Keep Getting Torn Down Because That's What the Staff Wants

con·tempt

kənˈtem(p)t

noun

The feeling that (a person or) a thing is beneath consideration or worthless.

News Analysis

For the upcoming City Council September 5th meeting, Emeryville’s city staff, in seeking to grant a developer permission to tear down two houses on Doyle Street, has prepared a report for the Council that deprives them critical information that the two single family houses are in a General Plan protected ‘zone of stability’ and shouldn’t be torn down.  This comes after the staff also hid that fact from the Planning Commission in July.  
It’s not a mistake; the failure to inform the Council (and the Planning Commission) about such houses has been an ongoing issue for the staff ever since the General Plan was implemented in 2009.  It’s part of a pattern and practice that’s been firmly established by a recalcitrant Emeryville city staff that’s contemptuous of our General Plan.

Contemptuous is not too strong a word. Seven times in the last two years, homes in the zone of stability have been proposed by developers for demolition.  In seven out of seven cases, the staff has recommended the Council approve demolition.  That fact tells us the staff, specifically the Planning Department, doesn’t like the zone of stability provisions within the General Plan. Rather, they prefer to tear down homes in our town, zone or no zone.  But more tellingly and more contemptuously, for seven out of seven of those cases, the staff has seen fit to deny the City Council and Planning Commission the fact that the houses in question are in the zone of stability; the very information the decision makers need to make an informed decision.  In fact not once in eight years has the city staff informed the decision makers the information they need to know that a home in question is in the zone of stability.  It betrays their not-so-hidden contempt for democratic processes and contempt for our General Plan.

City Manager Carolyn Lehr
During her tenure at least four houses
in the zone of stability have been demolished
or approved for demolition in accordance
with her recommendations.
As an overseer of the Planning Director, she 
has made sure the City Council has
been unaware the homes were in the 
zone of stability as they 
approved destruction.

The ineradicable protections of the zone of stability language notwithstanding, the staff is free to recommend the Council approve a tear down for any home a developer wants to demolish, even those in the zone.  It’s their job to recommend whatever they feel is best, given their encircling directives.  However they are not free to withhold information, especially as derived from our General Plan, that could effect the elected official’s decisions.  Clearly, of all of the houses demolished since 2009, the fact that they were in the zone of stability if made known to the Council, would have affected their decisions about tearing them down.  There is a chance some might have been saved.

The Tattler has alerted the Council and the staff of this governmental breakdown for years but the staff persists in keeping the Council members in the dark regarding homes in the zone of stability.  There’s no conceivable rational argument to be made there’s anything going on here other than a rouge agency pressing its desires by means of deception... and that constitutes contempt.

It should be pointed out that the General Plan represents the will of the people of Emeryville.  The stuff in there is what we want.  We know that by virtue of the fact it’s in the democratically vetted Plan.  We know the staff doesn’t like the General Plan.  It probably feels constraining to them. We know the City Council up to now has not done the people’s bidding with regard to the zone of stability, otherwise at least some of these homes would have been saved over the years.  
We also know that the type of housing protected from demolition by the General Plan, detached single family homes, represent the most family friendly housing there is.  That’s been well documented.  The people of Emeryville had an innate sense of this when they crafted the General Plan.  The elite in Emeryville don’t care about any of that as judged by their record on this.  
Regardless they’re being kept in the dark by the staff, we shouldn’t be facile about this; the Council has been busy tearing down this family friendly housing stock, built before the term ‘family friendly’ was invented, and over the last two or three years, the Council has been trying to build new “family friendly housing” by use of developers.  The result has been disappointing by any metric.  Emeryville continues to be the worst city in the East Bay as far as families go.

The politics in Emeryville is locked.  The pro-developer former City Council majority hired the staff we have and the new ‘progressive’ Council majority so far hasn’t found the strength to impose its own vision for development in our town.  Perhaps it puts too much stock in the juris prudence artifice of stare decisis.  Appearently the people, as they say, will have to wait.

Earns Two Smiling Nora Davis'!
Nora Davis smiles down on her 
hand picked city staff.