Tree Stumps on Horton Street Tell Us How Politics Works In Emeryville

 

The Stumps Are Telling Us How Broken City Hall Is

Emeryville Needs Tree Ordinance Reform 

The Ordinance is Too Weak to Save Trees

News Analysis

Tuesday June 15th 2021 has to go down in history as one of the low points in Emeryville politics.  That’s the date the City Council finally agreed to let the developer Lennar Corporation, kill every public street tree abutting their Sherwin Williams Horton Street project.  But this isn’t just a matter of a developer cutting our trees down.  That’s so common in Emeryville, it’s not even newsworthy.  Why the loss these particular trees is so notable is how revealing of the sycophantic culture at City Hall was the two year circuitous path that led to the stumps along Horton Street.  These stumps show us the how the government works at 1333 Park Avenue — how it works for developers, not for us.

Council members Dianne Martinez and Ally Medina
They're featured on one of the stumps their votes produced.
They steadfastly voted to cut all the Horton Street trees
over the years regardless of the wildly changing reasons
the staff has presented to them.

The final City Council vote to allow the developer to cut all the trees was 3-1 (Donahue dissenting).  The swing vote was delivered by the recently resigned Council member Christian Patz who changed his vote, his last vote as a City Council member incidentally, to allow Lennar to cut the trees.  Mr Patz told the Tattler he changed his vote after Mayor Dianne Martinez publicly announced right before the final vote that Lennar had before the Tuesday meeting, gone to the City staff to obtain a special ‘nuisance’ status for the trees that guaranteed the developer the right to cut the trees with or without the City Council.  Mr Patz said he felt at that point the trees were doomed and that the elected officials should take the heat for killing the trees, not the City staff.

Losing these street trees means a loss for the streetscape friendliness, the shade and cooling they provided and all the other benefits that can be said urban trees provide of course.  But it’s not that collectively we didn’t get anything in trade for agreeing to cut them.  What these stumps on Horton Street have bought us is the realization that our values in Emeryville, as codified by our ordinances, are only as strong as we live them.  As simple as it sounds, our ordinance meant to save our trees, the Urban Forestry Ordinance, can only actually save our trees if we vigilantly guard against developers who would cut them by living the life of the tree appreciators the UFO represents.   

That’s what’s missing at City Hall: tree appreciation.

Regrettable Backdrop

In 2018, Lennar went to City Hall seeking permission from the Planning Commission to kill all the street trees abutting their project.   The staff recommended the Commission permit the killing of all the trees along Sherwin Street claiming the existing trees didn’t match the developer’s desire for a different species and that Lennar had a right to a “unified streetscape” near their project (never mind this is not in the UFO).  After Planning Commission buy-in, the Council let that through and the Sherwin Street trees were all cut. 

Then there was the matter of the Horton Street trees, much grander and more visible than the Sherwin Street trees.  For those trees, the staff told the Planning Commission the Horton Street trees were all “unhealthy” and they must therefore all be cut.  But the Tattler pushed back and proved the City’s own arborist said the majority of the Horton trees were “fair” to “healthy”.  

Former City Councilman
Christian Patz
Frustrated by the vote, he said
'If there's a rule, Emeryville
will get around it'.

Undaunted, the staff, representing Lennar, still in 2018, told the City Council at the April 17th  meeting the Horton trees must all be cut because they would be in the way of underground utilities associated with the project.  Again, the Tattler led the drive to prove this was also false.  But not before the staff told the Council they must vote that night on the fate of the trees.  Council member Patz told the staff he resented the Hobson’s choice being offered that night and said he would therefore vote to save the trees. 

The vote that night was 2-2 with Council member Ally Medina joining Mayor Dianne Martinez in approving the cutting of the trees.  Council members Scott Donahue and Christian Patz voted against the cutting (Council member John Bauters is not allowed to vote on this because he lives too close to the project and state law forbids it).  The tie vote meant Lennar could not cut the trees. 

Backpedaling and still representing the interests of Lennar, the staff then reported the vote COULD be delayed and called for another vote at a later date.  

And delayed it was.  At the September 17th 2019 meeting, the matter of the Horton Street trees was back before the Council.  This time, the staff admitted the trees were not in the way of the underground utilities (save for one) and they had been wrong about that.  An “embarrassed” Council member Ally Medina publicly apologized for her earlier vote to cut the trees.  She said she had believed the staff when they said the trees were in the way of the underground utilities.

Undaunted, the staff, still working for Lennar in 2021, accepted the developer’s claim the Horton trees were “nuisances” before the final Council meeting on the 15th.  The nuisance designation meant that the trees would actually have to be cut by order from the City of Emeryville as an abatement against Lennar (never mind it was Lennar’s idea).  The nuisance designation also meant Lennar would not have to plant equal replacement trees as the UFO mandates.  The final deal was all the trees would be cut and a two inch sapling would be planted for each tree as well as five other small saplings planted elsewhere.

None of this stopped the two Councilwomen from claiming victory for the people of Emeryville.  Council member Ally Medina said the five saplings would make for a “greener and more beautiful city” while Mayor Martinez, told her colleagues she would not listen to their deliberations in the matter of the Horton trees, she said she had already made up her mind to kill the trees before the debate, “Let me indicate for you tonight, how I’m going to vote” she said.  Later, before the 3-1 vote, Mayor Martinez told everyone that despite her 2018 vote to kill the trees and despite her earlier in the meeting admitting she had already made up her mind, she told a shocked crowd, “Before, I was on the side of doing everything we could to save the trees, but now I’m on the side of having the healthiest and most vibrant trees we can”. 

The staff, working in the interest of Lennar Tuesday said the roots of the trees were close to the surface and that’s why they lifted the sidewalks there and that’s why they should be killed (the nuisance abatement notwithstanding).  The two Councilwomen seized that argument and ran with it but Christian Patz was incensed.  He admonished his two colleagues for their votes to kill the trees because there were no new facts presented Tuesday night he said, “The arborist said [back in 2018] these are known facts” he told his colleagues.  

It was after that, the Mayor, feeling the vote could be another 2-2 affair like the 2018 vote announced, “If we deadlock tonight,  the developer has the opportunity to go straight to our city administration and ask for waivers.  I just want to put that out there.”  And then Christian Patz changed his vote to a YES to allow Lennar to cut all our trees, his last vote as an Emeryville City Council member.  

Casting his last vote, Council member Patz, clearly pained, announced "I'm frustrated by the nature of Emeryville, which is, there's a rule, but we'll get around it".  And those were the final parting words to the people of Emeryville from the former Councilman.

The Former Sherwin Williams Horton Street Trees (on left)
The staff, working in the interests of the developer, falsely told the Council the trees
were unhealthy and in the way of underground utilities.  Those arguments weren't enough 
to convince the Council majority.  Only after the staff said the trees were designated as
"nuisances" and legally required to be cut, did Councilman Patz join his two women
 colleagues and vote to kill the trees.

All The Sherwin Williams Trees Killed Today

The chainsaws started up this morning at 7:00 and by 2:00 they were just a bunch of stumps.  Photos of Mayor Martinez and Councilwoman Medina were nailed on the top of each stump.

Before 

After

Before

After

Come Say Goodbye to the Trees

The last weekend for the Sherwin Williams trees

Chainsaw Looming Next Week After Citizens Lose a Multi-Year Battle to Save the Trees

Emeryville tree lovers have likely lost a multi-year battle to save blocks of public street trees on Horton Street after a contentious City Council meeting on Tuesday night.  Lennar development workers today removed the protective straw wrappings from around the public street trees joining the Sherwin Williams project after the developer, working with the city staff, invoked a little known and never before used ‘nuclear option’ back door in Emeryville’s Urban Forrest Ordinance (UFO) enabling the for profit development corporation to cut down all the people’s trees without oversight from the elected officials.  The removal of the protective wrapping for the trees, running for three blocks along Horton Street, indicated Lennar and the City will likely move forward with their plan to cut down all the trees despite an announced emergency grassroots citizen proposal to save the trees until voters can weigh in on the issue in November.  

In the days to come, the Tattler will report a detailed piece on Tuesday night's last ditch use of the UFO nuclear option by the staff and Lennar.  The option, inserted into the UFO by staff several years ago, has never been optioned and was considered by many to be too bold for a developer to leverage barring some kind of emergency. The Tattler reported that the trees were saved after Lennar lost a split Council vote two years ago to cut them all.  

In the meanwhile come and say good bye to the trees that will likely all be killed to enhance Lennar’s profit margin in the controversial Sherwin Williams housing project.

The corner of Sherwin and Horton Street looking north.

Workers took the protective wrappings off the trees today
(seen cast against the building).

Come Say Good Bye
By Friday evening they'll likely all be cut down.

Sherwin Williams Tree Fight Over, Trees Saved

Two Year Fight: Sherwin Williams Trees Saved

Staff Reverses Finding that Required Removal

"Embarrassed" Mayor Medina Apologizes for Earlier Vote to Cut All the Trees 

An entire block of street trees at the Sherwin Williams development project on Horton Street have been saved from the developer's chainsaw by a unanimous City Council vote on Tuesday September 17th following a standing recommendation from the city staff to cut the trees dating back from April 2018. Up until the latest vote, it’s been a divided Council with two wanting to save the trees and two wanting to cut them.
A year and a half after Emeryville City Hall and the developer of the Sherwin Williams project together determined that every street tree alongside that nascent development project would have to be cut down because of ‘undergrounding’ of utilities necessary under the sidewalk, at the newest Council meeting, the City staff suddenly reversed their finding.

At the 2018 Council meeting, without giving evidence, the staff told the Council they really had no choice on the trees.   Planning Department Chief Charlie Bryant and Sherwin Williams developer Kevin Ma, said the 11 existing street trees fronting the project, the entire block, would have to be removed because the underground pipes would have to be placed under the sidewalk owing to the fact that space under the street is “too crowded” with other utilities.
Inexplicably, the staff added that if the Council voted to save the trees alongside the project (on the west side of the street), the undergrounding of the utilities in the street could result in a cutting of trees on BOTH sides of the street.  The Council never asked for a clarification of that logic and the whole Sherwin Williams tree issue was continued.

By September of 2019, Planning Director Bryant’s views had changed.  His staff rechecked and they found out there IS space enough under the street for the cables after all and the trees can be saved he told the Council.  And with that, the City Council voted to place the utility wires under Horton Street and save all but one tree they say that has to be cut to accommodate a specific utility box in the sidewalk.

And so it would appear a very contentious and ongoing issue has finally been put to rest for the Council who had been fiercely divided on the cutting of the Sherwin trees.

"Embarrassed"
Mayor Ally Medina
Misled by the staff.
Initially she voted to cut all the trees.
At the September 17th Council meeting
 she apologized for that vote. 

The tree issue before the Tuesday September 17th meeting has been somewhat of a Rorschach test for the City Council, half the Council eagerly believing the developer and the staff and the other not believing them.
Staff and developer claims that the trees must be cut brought skepticism from Council members Scott Donahue and Christian Patz whereas members Dianne Martinez and Ally Medina simply accepted the staff's findings at face value.  The normally perspicacious Ally Medina indicated she was so eager to cut the trees down, she didn’t even want to accept a continuance of the April 2018 meeting that was ultimately dangled in front of the Councilors by the staff.  No, she said, the trees must be cut down, so let’s get on with it, she said.  The two to two split at that 2018 meeting forced the staff to bring the issue back before the Council a year and a half later (after they initially told the Council a continuance was impossible and the vote had to happen that night).

Councilmember John Bauters lives within 500 feet of the Sherwin Williams project and is by law, not allowed to vote on it.

Mr Patz and Mr Donahue had reason for their disbelieving of the staff.  At the initial April 2018 meeting, the staff publically misrepresented the health of the trees.  Attempting to coerce the Councilors, the staff said the City arborist had determined the trees to be “unhealthy”- a direct contradiction of the actual arborist’s report which indicated the trees were “healthy”.  Planning Director Bryant later apologized for the false statement following a Tattler exposé on the issue.
Additionally, the staff recommended cutting the mature existing trees along Sherwin Street (also abutting the project) offering visual aesthetics as a what for; that the species would clash with the proposed new trees to be planted along Sherwin Street they said.  The actual reason for the removal of the mature trees along Sherwin Street was specified as “hindering the creation of a unified streetscape”, a finding not supported by the City’s Unified Urban Forestry Ordinance (UFO).  The staff’s recommendation thus was improper but helped show their disdain for saving trees….as has been the  79 to 2 record of killing trees over saving them as recommended by the staff since the inception of the UFO.

The Horton Street trees are now saved but staff, leaving the door cracked just a smidge, got the last word.  Once the contractor digs the street up, there's always a possibility they could be wrong in their latest assessment they said and there may not be enough room under the street.  There's a chance the trees may still have to be cut down yet, they cautioned.

The Trees in Question
Saved From the Chainsaw
Developers have to spend money saving street trees.
It's cheaper to just cut them all down and plant lollipops.
The staff has been trying everything they can to get
these leafy profit reducing nuisances removed.  

Tree Photo Tells the Story

What Can We Learn From the Photo Below?

With apologies to William Blake or Robert Frost et al, sometimes a single picture can do a better job telling a story than words can...the old 'thousand words' aphorism.  Such is the case with Emeryville's Sherwin Williams street trees controversy.  The Emeryville City Hall staff, seeking to assist the out of town developer Lennar Urban who wants to cut down all our trees abutting their proposed project and seeking to 'unify the streetscape', has gone to absurd, some would say unethical lengths to get the trees cut down.  Consider the testimony the staff provided to the Planning Commission on March 15th.  The Commission might as well vote to kill the trees and plant new lollipop replacements because the trees in question are unhealthy anyway the staff said.
Where the Planning Commission saw the sickly and dying trees the staff wanted them to (culminating in a unanimous vote to cut them all down), the City Council instead agreed with the City's paid arborist that the trees in question are generally healthy.
The ultimate vote is pending following a new argument presented to the Council by a chastened and cloistered staff at some unannounced later date, perhaps in September.

The story can be followed in (verbose) detail HERE & HERE.

Meanwhile, take a gander at the photo below and use your own judgement.  The tree on the left is called "unhealthy" by our City staff and worthy of nothing more than a chainsaw while the tree on the right is "healthy" and is OK to continue to live.  These public policy makers have determined one is desirable and the other is undesirable.  What do you think?

What can we learn from the photo about who's interests matter at Emeryville City Hall?

Looking Down the Middle of Horton Street 
At Emeryville City Hall, the tree on the left is
considered "unhealthy" while the tree on the right is
considered "healthy".
A developer with a chain saw awaits our decision about
these, our street trees.
Who's interests are being listened to at City Hall? 

"Unhealthy" Trees Must Be Cut Says Staff: 'Trust Us' They Say

Council Members Medina and Martinez, the Staff is Lying to You,

What More Evidence Do You Need?

Do You Value Our Street Trees or the Staff?

An Open Letter to Council Members Medina and Martinez

Opinion
As a City Council member, how would you know if your support staff, those paid to provide objective analysis to assist you in your public policy decisions, were subverting you?  Would you get a clue for instance if they told you street trees a developer wants to cut down are "unhealthy" if you can see with your own eyes said trees are bigger, fuller and leafier than trees across the street the staff says are healthy?   How about if you didn't want to trust your own lying eyes?  What if the City's own paid arborist confirmed the trees in question are in fact healthy?  Would you then begin to suspect the information the staff is providing isn't reliable?
Would you start to think perhaps the staff has a hidden agenda if, at a City Council meeting where they were urging you on behalf of the developer to vote to cut down the trees, they told you it's urgent and you had to decide about the trees that evening but then later after discussion when it became clear  to them the Council majority was going to vote to save the trees, then the staff changed their minds and said there's suddenly plenty of time and to postpone the issue for a later meeting?  Would that tend to make you think the staff aren't exactly straight shooters?
How about if you knew that every time a developer requested approval to cut down our street trees, every single time since 2003, some 81 trees in all, the staff recommended YES regardless of the Urban Forestry Ordinance?

Emeryville's City staff says these trees are "unhealthy"
Good only for a chainsaw.
The City's own arborist on the other hand
calls them "healthy".

Would any of that help you to realize these employees of yours, handpicked by a former Council majority that infamously worked primarily in the interest of developers, are hiding information from you that would tend to make you vote to save our trees?
At least two of your colleagues, Scott Donahue and Christian Patz appear to have gotten the message about the staff at the Planning Department (Mayor John Bauters is conflicted out and can't vote on this issue because he lives closer than 500 feet from the project).  We're wondering why you two haven't gotten it.  What more do you need?  The people of Emeryville are waiting for their interests to be taken up by you.

So who is it specifically, that can't ever see the value in our Urban Forestry Ordinance?  It's Emeryville's Planning Director Charlie Bryant, the left over from the days when Councilwoman Nora Davis helped usher in every proposed development project including all the suburban style low slung auto dependent shopping malls we're now saddled with.  He's the same guy that recommended approval of every developer requested demolition of all those single family homes in our General Plan identified Zones of Stability over the years.  You'll recall Mr Bryant wanted to tear them all down on behalf of all the developers but also he didn't want you to know the homes in question were even in the Zones of Stability and therefore to be saved (barring extenuating circumstances).  Charlie didn't want you to know, so he kept that information hidden from you for years as you voted to let developers bulldoze all those historic single family homes.  He only started informing you these homes are in the Zones of Stability after the Tattler exposed him, by the way.

All those years, he chose not to divulge that critical information that would tend to make you, the City Council, vote to save the homes.  Just like how he's now kept from you the arborist's report, commissioned to inform you on the health status of these Horton Street trees the developer of the Sherwin Williams project wants to cut down.  He thinks it's better if you're not informed and to just take him at his word these trees are unhealthy and should be cut down.

Also unmentioned at the April meeting was the fate of the Sherwin Street trees. a different set of trees abutting the Sherwin Williams project.  Those trees were voted to be cut by the Planning Commission on the recommendation of the staff.  The reasons offered by the staff on these trees have nothing to do with underground utilities like the Horton Street trees.  No, the Sherwin Street trees must be cut down because they don't fit the staff's vision of a "unified street scape", an aesthetic vision not supported by the Urban Forestry Ordinance it should be noted.  Breezily, the Planning Commission dutifully voted to kill those trees the arborist also deemed "healthy".  Incidentally, the City Council never got a chance to weigh in on the Sherwin Street trees.
But back at Horton Street, 'underground utilities' should by now be seen as a ruse.  The real staff plan is to do the developer's bidding and cut the Sherwin Williams trees down using any argument that seems plausible.  Underground wires, unseen and scary seem just the ticket.

These "unhealthy" trees seem to be
doing the job we expect trees to do.

The last time you, the City Council talked about these trees was April 17th at your Council meeting.  You'll recall the staff said you must decide right then and there and you should vote to cut the trees because there will be utilities under the street and sidewalk from the project that will most likely kill the trees anyway.  There is no time to waste the staff told you...the situation is urgent: the schedule won't permit you any time to reconsider this at a later meeting.  "Is there two weeks?" asked Councilwoman Ally Medina.  You all were told NO.  But then Councilman Christian Patz, feeling gratuitously pressured asked the staff, "Why didn't we foresee this as a problem when we did the Conditions of Approval?" at an earlier meeting, months before.  Clearly irritated at being given what he called a Hobson's choice and feeling unnecessarily backed into a corner, Councilman Patz wanted to know why the staff didn't do it's job and give the decision makers ample time to decide.  We want to know that as well.  We also want to know why you, Councilwomen Martinez and Medina, aren't also concerned enough about this.  Mr Patz's question incidentally, went unanswered at the April meeting.

It's now June 10th, 54 days after the staff initially and breathlessly told you there's no time left to decide about cutting down the Sherwin Williams trees.  After your colleagues on the Council made it clear to the staff they would vote NO at the meeting, after the staff then quickly reconnoitered and said they'll bring the issue back with more information about the trees (maybe they can be saved?), now it's 54 days later and the staff still hasn't brought the issue back to you.  What are they waiting for?  What before was cast as burning now has turned into lackadaisical.  They seem totally unperturbed.  It looks like it wasn't so urgent after all.  The staff was yet again found to be working in the interests of a developer, sowing a frantic and hasty City Council vote.  This shouldn't surprise anyone paying attention over the years.

They'll come back at you presumably with some new reason to cut down the Sherwin Williams trees at a future City Council meeting.  At this point the staff should have zero credibility.  Nothing they tell you moving forward should be trusted.  Regarding these trees, you should seek outside counsel.

With such a terrible record of your staff hiding information from you, why do you, Ms Martinez and Ms Medina so willingly assume they're on the up and up every time?  We want to save our mature street trees here in Emeryville.  How can you know that?  Because of our democratically vetted Urban Forestry Ordinance.  We don't care about developers and their Emeryville City staff minions.  We want you to see the forest for the trees.  We care about our public commons including our trees and we want you to as well.
This City Council is progressive like the people of Emeryville are.  The staff sure isn't.  Why can't we seem to get past this anachronistic pro-developer staff and usher in a new staff that reflects the desires of the people of Emeryville?  We're not paying you to be nice and to go along to get along...we're paying you to work on our behalf.

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.

The Tattler Presents the Document The City Doesn't Want You To See

To the Emeryville City Council:

Here's the Document Your Staff 

is Withholding From You

In a surprising turn of events, the Emeryville Planning Department has opted to withhold a critical document from the City Council as the Council decides whether to cut down publicly owned street trees on Horton Street, a move that is counter to the Department’s charge to provide pertinent and accurate information to the Council so they can make informed decisions. The document entitled Trees at Old Sherwin Williams Site, was written by SBCA Tree Consulting, the City’s official arborist and commissioned by the Council to determine the health of the street trees bordering the future Sherwin Williams apartment housing development. However the Planning Department feels the Council should not be able to see their own document as they decide the fate of the people’s street trees and so they have left it out of the packet slated for Tuesday’s Council meeting.  

Realizing the importance of transparency and objectivity in City Council decisions, especially those that impact the public’s assets so directly, the Tattler hereby presents to the City Council the document the Planning Department doesn’t want them to see.  

This valuable document will inform the Council the majority of the trees in question are found to be healthy, the opposite of what the staff told the Planning Commission at their March 15th meeting as reported by the Tattler on April 6th.

Even though they didn’t provide the document at the time, the Planning Department staff told the Planning Commission at the March 15th meeting, the health of the trees at the Sherwin site should be considered as that body weighed in on cutting them.  Another consideration brought to the Commission by the staff was whether there is room under the street to underground overhead utility wires or if they should put the wires under the sidewalk making saving the trees more expensive.  Regardless, the staff told the Planning Commissioners the health of the trees is not good and a majority of Commissioners used the poor health as the primary reason for their vote to cut the trees.  The staff never did inform the Planning Commission the arborist had found the trees to be healthy.  

The Planning Department staff has prepared their report for the City Council Tuesday advising them to cut all the trees but they once again have left out the document that proves the trees are healthy.  The newest arborist report the staff did include in the Council’s packet doesn’t report on the health of the trees but rather just gives their monetary value; money the developer normally would have to reimburse to the City as determined by Emeryville's Urban Forestry Ordinance but which the staff incidentally is recommending waiving.

Sherwin Street Trees Also

Informatively,  the Planning staff also recommended to allow the developer to cut down two existing trees on Sherwin Street, trees in no way impacted with under grounding of utility wires. At a December 14th 2017 Planning Commission meeting, the staff said the trees should be cut down regardless but in the case of these Sherwin Street trees, the reasons presented were: A more unified look could be had if all the new trees along the street were lollipops of the same size and species, better soil would be provided and that “significant sidewalk displacement” is presented by both trees (even though new sidewalks will be poured by the developer).  Working within a theme, the staff saw fit to leave out the fact that the official arborist report only noted “sidewalk uplift” with one tree, the other displaying “minor sidewalk uplift”.
Following staff's recommendation, in addition to the waiver of fees recommended for cutting the Horton Street trees, the Planning Commission also voted to cut down the trees on Sherwin Street and waive the fees that would normally be levied there as well.

It is hoped the City Council will make good use of their own arborist’s document meant to gauge the health of the trees the staff is recommending be cut down. 

From City Arborist Report 'Trees at the Old Sherwin Williams Site':
The staff says the decision makers should know about the health of the street trees but they told
them the trees are "unhealthy" regardless that 12 of the 14 in question are fair to good health.

Planning Commission Votes to Kill Trees Without Critical Arborist Report

City Hall Staff Withholds Critical Document from Planning Commission 

Healthy Trees Called "Unhealthy" by Staff

Commission Voted to Cut Trees Without Knowledge of Arborist Report

Ten trees fair to good, Two fair to poor = "Unhealthy"

The Emeryville Planning Commission, siding with City Hall's Planning Department staff, PG&E and the developer of the Sherwin Williams project voted unanimously March 15th to overturn the City's Urban Forestry Ordinance and to kill every street tree on Horton Street fronting the incipient apartment project slated to break ground later this year.  The unanimous Planning Commission vote was based on staff recommendation the trees be removed, putatively to accommodate the under grounding of overhead utility wires based on a dubious claim from PG&E and owing to their unhealthy status, a finding counter to an earlier City sanctioned official arborist’s report.  The staff did not inform the Planning Commission before their vote about the document from the arborist that said the majority of the trees are healthy.
The vote prepared by the staff March 15th was to decide if the Planned Unit Development (PUD) agreement earlier made should be amended in order to facilitate the cutting of the trees.  The Planning Commission vote overturns that earlier (unanimous) 2016 vote by the City Council directing the staff to save the trees on Horton Street when they approved the Sherwin Williams PUD. 

Emeryville's Appointed Planning Commission
A majority found the "unhealthy" state of the trees
on Horton Street to be reason to cut them down. 
The staff never told the Commissioners
about the arborist's report that found
a majority of the trees to be healthy.

The final decision about the trees and the integrity of the Urban Forestry Ordinance (UFO) will be decided by the City Council on April 17th when they consider allegations made by the staff at the March 15th meeting that the trees in question are “unhealthy” as well as dubious and not proven claims that PG&E will "not allow" the overhead wires to be placed under the street, necessitating the cutting of the trees according to the staff. 

The PG&E claim is especially questionable owing to the fact that the staff told the Planning Commission that the utility company “does not allow joint trench boxes [wires] in the roadway and it needs to be routed to the sidewalk”, an eventuality synonymous with cutting the trees they said while at the same meeting they also said that it is “likely” that some of the trees will need to be cut.  

Further, PG&E has already been caught lying to the City of Emeryville about cutting our street trees in the past when Councilman John Bauters found the company making false claims in furtherance of the utility company's zealous efforts to cut 30 trees in our town as part of a program to keep roots away from underground utilities last year.  Mr Bauter’s diligence ended up saving 21 of the trees and net an apology from PG&E for their misrepresentations to the City.

From the Official Arborist's Report on the
Sherwin Williams Trees on Horton Street
7 fair-good to good with 2 fair-poor to poor
and 3  fair equals "unhealthy trees" 
status according to the City of Emeryville.
The Planning Commission never saw 
this report before their vote.

Perhaps most damaging for City Hall in this escapade is their insistence that the Planning Commission see the trees as “unhealthy”, a direct contradiction of the professional arborist retained by City Hall who characterized the trees as being in good health and the fact they kept the tree report from the decision makers. The report prepared for the City Council by SBCA Tree Consulting on December 29th 2014 found of the 14 trees along Horton Street four are ‘good’, two are ‘fair-good’ , four are ‘fair’, one is ‘fair-poor’ and one ‘poor’.  Predictably, the Planning Commission seized on the claim of the trees being unhealthy and a majority of Commissioners cited that as a reason for their vote to cut them down. 

The 2014 tree report was conducted to inform the City Council as they voted on the approval of the Sherwin Williams project's PUD and the healthy state of the existing trees as shown by the report was instrumental in the subsequent unanimous Council vote to save the trees. 

The staff also recommended to the Commission the 
fees normally paid to the City by a developer seeking and receiving permission to cut our street trees be waived based on two non-sequiturs: the fact the replacement trees will get "better soil" and inexplicably because the trees on the other side of the street will not be cut.  The Planning Commission found nothing untoward or unreasonable about those two findings.

Regardless of the staff reporting as a fact there's no room under the street, an Emeryville Tattler Public Records Request revealed the City of Emeryville in fact has no documents that would confirm their claims that PG&E says the underground wires cannot be placed in the Horton Street roadway.  Even if the utility company told the staff this, the company's credibility has been damaged due to their previous false claims.  A map of Horton Street showing pipes obtained by the Tattler Public Records Request suggests there may be plenty of room to place the underground utility wires in the roadway but is ultimately inconclusive. 

A group of residents living near the Sherwin Williams site Park Avenue Residents Committee (PARC) also encouraged the Planning Commission to vote to cut the trees because of their "unhealthy" status. 

The Planning Commission, cited in addition to the "unhealthy" status of the trees, their opinion the trees should be cut because the existing sidewalk isn't safe (also cited by PARC) and that replacing them with 24" box lollipop trees would make for a "more uniform street". 

The City Council takes up the issue on April 17th however Mayor Bauters must recuse himself, his residence being in close proximity to the project.

The arborist sees the tree on the left
but the staff sees the tree on the right.