Published October 19th, 2016
Council Grants Oak Tree Unique Protection on Appeal
By Sora O'Doherty
Photo Sora O'Doherty
The life of an heritage coastal live oak tree prompted the Orinda city council to put in place extraordinary protective measures while denying an appeal of planning approval for a new home at 51 Camino del Diablo.

The perceived threat to the tree brought out neighbors in numbers, who found it impossible to contain their anxiety, shouting out to the council even after the public comment period had closed.

At the following meeting, 30 neighbors turned out to protest the approval of a large home remodel at 412 Camino Sobrante. Although the council had many complimentary things to say about the proposed remodel, the appeal was granted by a 3-to-1 vote, with councilmember Dean Orr casting the negative vote; councilmember Amy Worth recused herself as she lives near the project. The basis for the denial was that the proposed home exceeded the recommended maximum floor area-to-lot size ratio.

The council unanimously denied the Camino del Diablo appeal, but added language to the conditions of approval for the project that mean that a city-chosen arborist will be hired to review the totality of the project plans, including grading, construction and landscaping, and make recommendations that the developer must follow to protect the heritage oak tree.

This appeal was brought by Leila Schlein. Schlein's home adjoins the subject property, and the oak tree stands on the edge of her property, just at the property line. According to Schlein, the value the tree, which she says is well over 100 years old, adds to her property is between $75,000 to $150,000.

According to the appellant, the lot was separated off from neighbor's lot as a legally buildable lot, but at just over 8,000 square feet is a very small lot in a neighborhood of 20,000 square-foot lots. Schlein alleged that there is "every indication that my tree will be irreparably damaged and I will suffer huge financial harm," and noted that the city attorney has rejected adding a condition whereby the developer would have financial responsibility for the tree.

Developer Tim Jones of Burk Holdings LLC vigorously defended the planned development. He noted that products developed by his company sell within an hour. He added that he is very familiar with building next to oak trees.

In response to concerns raised about the potential negative effect of the project on the oak, he discussed the changes made to the plans to protect the tree. He stated that the company has listened to the community, and as a result, all digging will be done under the supervision of an arborist. They have eliminated all landscaping near the oak tree. The driveway on the project will be constructed of permeable pavers, which he said are recommended for use beneath trees. He noted that the appellant has an asphalt driveway in the drip line area under tree. Further, the construction has been changed to pier and beam construction, with only two or three piers within the tree's drip line.

Jones also defended himself against claims that the project is being developed by an out-of-town developer, saying that he lives on the border of Orinda in Lafayette.

"I'm not walking away," he said, "I'm very local."

He also noted that they have never indicated that they are going to sell this property. But as far as the health of the tree, he explained that there are no guarantees with living trees. "Before I ever set foot on the property," he said, "a tree on a neighboring property just died." There are many reasons unrelated to construction why trees die, he explained.

During the public comment period, neighbors lined up to speak against the proposed development. Bruce Jet, a licensed landscape architect with offices in Orinda that employ 12 landscape architects, stated he was dismayed by the project. He noted that he had recently completed a project protecting 29 heritage oaks during the development of 200,000 square feet of retail property in Walnut Creek, only losing one tree. Jet accused Jones of doing everything he can to protect the trees on his property and doing everything he can to harm the tree on his neighbor's property, a comment to which Jones later took exception as defamatory. Jet talked about two oak trees in the neighborhood that have died, one on his property, the death of which he attributes absolutely to bad development.

Jet continued, "these oak trees are one of the most important parts of Orinda and this community, they're valuable, they mean stuff to people, and when someone comes in and says, 'I'm going to build a house as close to this tree as I can build it, and it's going to be what it is; planning commission, staff: accept it,' I think we have not done our job as city leaders and member of our community."

He concluded, "there is a high probability this tree will die as a result. The developer needs to take the hit with his tree and not to the neighbor's tree." Nevertheless, he stated that there are things that can be done to protect the tree, but it will take a lot of care and cost a lot of money.

Several neighbors contradicted the city's conclusions regarding water on the property. The city found no evidence of a natural spring on the property, but seasonal ponding only. Senior Planner Derek Farmer commented that the site drains down from hillside above it, which might account for a lot of the moisture, but that there was no report that has any evidence of a spring. Eileen Fitz-Faulkner lives right across the street and alleged that no one is aware of how much water comes through. She also pointed out that the development will have no guest parking that is not on a neighbor's property.

Council member Orr led off the comments by the council, and noted the unique nature of the appeal, which focuses on a neighbor's tree rather than the design elements of the house. Orr and the other council members present, Darlene Gee and vice mayor Eve Phillips, agreed that the house was well-designed and a good size for the lot, although some neighbors complained that it was too large. In amending the conditions, Orr felt that it was unlikely that any recommendations from the third-party consulting arborist will affect the actual house on the lot, but rather elements of grading or landscaping only.

Reached following the council's decision, appellant Schlein said that she was quite disappointed with the city's decision and felt that the matter should have been sent back to the planning commission for the independent arborist's report before approval. She feels that the developer's arborist's report totally lacks credibility and was torn to shreds at the hearing. However she was glad that an independent arborist will review the site and the builders plans. Hopefully, she said, the new report will say whether that house can be built on that lot without destroying the tree. "That is all I want," she said.

Jones had no comment on the council's action.

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