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FYI - The of the Tree controversy - Court Hearing was today.

From: user 5.
Sent on: Monday, August 8, 2011 6:14 PM
Since I sent out the petition information last week I thought some of you would be interested in the results.   Please just FYI - I don't want an editorial in reply.  THanks  Susan
"Everyone would sleep better at night if you released the Memorandum of Understanding." - Judge Cannon by Trees Before Grand Prix on Monday, August 8, 2011 at 3:57pm

Today we appeared in Baltimore Circuit Court for a hearing on our motion for a temporary restraining order against the Mayor and City Council of Baltimore City in the removal of trees associated with the Grand Prix.

 

Present for Plaintiff, and representing themselves, were David Troy and Jennifer Troy; Nathan Mook was present and named as a co-plaintiff but could not co-sign the suit before filing. For the Defense, Baltimore City Solicitor Matthew Nayden, as well as witnesses Jay Davidson (president, Baltimore Racing Development), Beth Strommen (City Office of Sustainability) and Eric Dihle (City Arborist). (Witnesses were not relevant as this was a non-evidentiary hearing.)

 

We appeared first before Circuit Court Master, Hon. Susan Marzetta, and then before the Honorable Judge Evelyn Omega Cannon. Here's a summary of what happened.

 

The Argument

We argued: 1) trees had come down, 2) we were told that more trees would come down, but not how many or when, 3) we believed that the tree removals were in violation of Article 7 section 53-5, which outlines procedures for removals, 4) we believed that more trees were in danger of immediate removal, 5) we believe that the removal of more trees would result in irreparable damage to the residents of Baltimore, 6) therefore a temporary restraining order was required to prevent irreparable damage to the residents of Baltimore.

 

Here's how the court interpreted it.

 

1. Court denied motion for Temporary Restraining Order on the grounds that City Solicitor asserted that no more "city" trees were to be cut, rendering the need for a TRO moot. Until today, no binding assertion that trees would not be cut down had been made; in fact the verbal assurances made to us on August 2 turned out not to be true. The City, in arguing against our motion, provided something that didn't exist previously: "no more City trees to be cut down" became a pledge made by the City Solicitor, an Officer of the Court.

 

2. Court ruled that Article 7, section 53-5 does not apply — because the work was done by a contractor. This part of city code stipulates that if the Baltimore Department of Recreation and Parks or the Department of Public Works takes down a tree, 5 days public notice is required, with a visible notice affixed to the tree. Code makes no statement about work done by private contractors, or by licensees of the city who use private contractors.

 

3. Court ruled that I don't have sufficient standing, because I don't live close enough to the trees. I live in Bolton Hill about a mile north of the area in question. City Solicitor asserted that "a citizen can't simply rove around the city looking for violations of city code," and cited supporting case law.

 

4. Court ruled that burden-of-proof was on me to state why trees in front of Hilton Hotel should be considered "city" trees and not property of the Hilton Hotel. City asserted that nine more trees would be coming down in the next few days in front of the Hilton Hotel and that they are on private property

 

We are satisfied that we received a fair hearing by Judge Cannon and that she interpreted the law reasonably, and on the merits of the arguments made by the litigants.

 

Judge Cannon was not unsympathetic to concerns. She urged, "For those of us who live in the City, can you provide a copy of the Memorandum of Understanding? It might be helpful. Would be good if you could. It would be nice. Would be an appearance of good faith. And everybody might be able to sleep better tonight."

 

Responding, City Solicitor Matthew Nayden said that he "thinks" he might be able to release a copy of that Memorandum of Understanding by close of business today (Monday August 8) – we're waiting.

 

What's the bottom line?

 

Our actions have reduced the number of trees cut: 136, to 50, to around 40 total. That's a good thing.

 

The Memorandum of Understanding will now be released. This should provide a great deal more visibility into what the city's plans are.

 

We've opened several questions about the terms under which trees have been cut, and have greatly raised visibilty of this issue. We'll be posting here with next steps. Meantime, we do not consider this matter resolved and will be continuing to work it.

 

Additional conclusions? Lobby Your City Council Person.

 

City Code is remarkably weak in its protections of trees. Article 7, which sounds like a fairly strong protection, is completely impotent if a contractor is used to do the cutting, at least by Judge Cannon's interpretation.

 

Additionally, there is the matter of standing. City argued that because I Iive in Bolton Hill, about one mile north of the area in question, this issue did not affect me. The claim was made that the law was designed to protect property owners and property values. However, I assert that removal of trees does affect me materially because it affects my ability to attract and retain employees, and my quality of life. Presumably there is case law that would support this position.

 

Next Steps

The Memorandum of Understanding will offer information about what happens next with this, so we'll wait for it. In the meantime, if citizens wish to protest or record the removal of the trees in front of the Hilton, that may give some more voice to this issue, though, at this time we understand that those trees are on private property. However, the fact that the Hilton was financed with taxpayer funds is another matter.

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  • 2 people like this.
    • Chris Merriam § 53-5. Public notice of tree removal.
      (a) Notice required.
      The Department of Recreation and Parks and the Department of Public Works shall not remove or destroy a tree along one of the streets, lanes, alleys, or other public ways in this City, unless notice of the intended removal or destruction is given.
      about an hour ago
    • Chris Merriam It beggars belief that that law somehow doesn't apply to a contractor working on behalf of the City, or a licensed entity thereof (i.e. BGP). about an hour ago · 3 people
    • Nate Mook Great work Dave! about an hour ago
    • Trees Before Grand Prix That's right Chris. The trick here is that it wasn't done by DRP or DPW. Seems like a total loophole and a technicality. We need better law than this; certainly I don't think it was the spirit of the people who made this law to allow it to be evaded simply by the use of a contractor! about an hour ago · 2 people
    • Chris Merriam § 53-22. Breaking or hurting trees, etc.
      (a) In general.
      If any person or persons shall willfully break, pull down, hurt, or destroy any tree or trees, or
      enclosure around the same, which are now or may hereafter be planted in any of the stree...See More
      about an hour ago
    • Chris Merriam § 53-26. Penalties.
      Any person violating any of the provisions of §§ 53-11, 53-12, 53-13, 53-21, or 53-22 of this
      article shall be subject to a penalty of not less than $25 nor more than $500, in the discretion of the
      Court.
      about an hour ago
    • Trees Before Grand Prix Chris, an interesting thing would be to hire a contractor to go cut down the trees in front of, say, the City Council President's house, and determine what recourse he might have. about an hour ago · 1 person
    • Chris Merriam Look, if a tree is on private property, the owner or a contractor hired by the owner can cut it down. I'm not arguing that. But trees planted in the public right-of-way are owned by the City government, which represents the citizens of Balt...See More about an hour ago
    • Chris Merriam Did your suit reference all three of the items posted above, or just 53-5? about an hour ago
    • Trees Before Grand Prix Chris, we agree. At the very least there's a case to be made for a new law regarding trees here. about an hour ago
    • Trees Before Grand Prix We referenced 53-5 and Article 7 generally. I agree that the other sections may be applicable, and we can consider pursuing that outside of the context of a TRO. about an hour ago
    • Jed Weeks lol at the city-owned Hilton being "private property." about an hour ago · 3 people

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