By Sean Tubbs

Charlottesville Tomorrow

Friday, February 12, 2010

The fate of a damaged oak tree in the city’s


neighborhood depends on a decision to be made by Jim Tolbert, the City’s Director of

Neighborhood Development Services

(NDS). Tolbert will have the final say on a site plan amendment that would permit a developer to not only remove the tree, but also expand the size of a building to be built on the property.

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In October 2006, the

Charlottesville Planning Commission

approved a rezoning that allowed Habitat for Humanity to build up to 21 housing units in the city’s Fifeville Neighborhood. One of the conditions of the rezoning was that the oak tree be saved along with several others. Grading on the Paton Street site got underway at the beginning of the year.

Around the same time, Habitat came back to NDS to discuss a potential request to expand the footprint of the building by four feet.  City Planner Ebony Walden told Habitat that the bigger building might cause the structure to come within the “drip line” of the protected oak, which could damage the tree.

Walden said before she could amend the site plan, she needed to have the city arborist and the Habitat’s arborist do a preliminary investigation. When urban forester Tim Hughes arrived, he found damage had already occurred.

“In my opinion, the grading has compromised the health of the trees,” wrote arborist Tim Hughes in a January 12, 2010 e-mail to Walden. “The Critical Root Zone needs to be protected from all construction activity –especially grading and root excavation- in order to protect trees on construction sites.”

Developer and Albemarle County Planning Commissioner Don Franco discusses the site plan with City Planning Commissioners Bill Emory and Michael Osteen

Developer Don Franco, who also sits on the

Albemarle County Planning Commission

, recently joined the project’s design team. He said he also visited the Paton Street site in early January and acknowledged the damage that had been caused.“When I walked out on site, the first thing I saw was a clump of trees that were all ivy-colored and not very healthy looking,” Franco said. “I see that we have been working within the drip lines. I saw exposed roots and other things you don’t want to have happen.”

The tree is not dead, but it is damaged, according to Hughes. In an interview, he said it could take up to eight years for a tree damaged by construction to die.

The topic came up at the Charlottesville Planning Commission’s pre-meeting in January, which is conducted off –camera in an NDS conference room. Planning Manager Missy Creasy said a discussion was held so Commissioners could provide guidance to Habitat to determine if they wanted to formally submit a site plan amendment. No additional units would be created with the larger building. Instead, each unit would be slightly larger.

Franco asked what would happen if the tree did in fact die. Deputy City Attorney Rich Harris said that would require an amendment to the conditions put in place with the rezoning, which would require a submission to Neighborhood Development Services Director Jim Tolbert.

“If he determines it is a minor change, he can approve [the change] administratively,” Harris said. “If not, then this can be brought to City Council to amend [the PUD].”

In their comments, Commissioners expressed outrage and concern that the site plan was not sufficient to protect the tree.

The City’s tree protection manual describes how trees should be protected during construction (Click to enlarge)

“It frustrates me tremendously that…the applicant followed the site plan, and the site plan gave them license to take actions that damaged the trees sufficiently so they could die,” said Chairman

Jason Pearson



Genevieve Keller

said she wanted trees to have more protection as the Commission considers other site plans in the future.

“What are we going to do next time to make sure this doesn’t happen?” Keller asked. “ Are we going to have very clear cut penalties for what happens if a tree dies?”

Keller asked if there was any process for requiring the developer to mitigate the loss of the oak tree. Walden said the city’s tree protection manual requires a damaged tree to be replaced by enough trees to address the loss in the tree canopy. Thus, Walden said a 48” caliper tree would need to be replaced with at least 16 3” caliper trees.

Harris recommended that the applicant submit an application for a minor site plan amendment specifying requested changes as well as how the loss of the tree would be mitigated.


Bill Emory

said City Council should have the opportunity to weigh in, given that Council approved the rezoning with a specific condition to protect the tree.

However, the matter is now before NDS Director Jim Tolbert, who said in an e-mail to Charlottesville Tomorrow that he has not yet seen the amendment request.


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