Almanac

News - April 3, 2013

Portola Valley: Property owner cited for clear-cutting 18 trees in Blue Oaks

by Dave Boyce

Eighteen trees fell recently in a clear-cutting on a lightly forested hilltop at 18 Redberry Ridge in Portola Valley. While woodcutters were on the scene to hear the sounds the trees made as they fell, the aftereffects are reverberating in Town Hall. The trees, including 15 oaks with diameters of at least 11.5 inches, were growing in a protected open-space easement on the property. The woodsmen also lopped the tops off of several bay laurel trees downhill on the adjoining property.

The town notified property owner David L. Douglass of a municipal code violation for cutting without a permit "significant trees and other vegetation," in this case by a tree services company in late December or early January. The fact that the trees were in an open-space easement allows the town to seek additional damages, Town Attorney Sandy Sloan said in an email.

The town learned of the cutting in January, according to a staff report by Town Manager Nick Pegueros. The Architectural & Site Control Commission visited the site on March 25 to hear from the landscape architects engaged by Mr. Douglass to replant the hillside. Two days later, the Town Council met for the second of two closed-door sessions to consider "facts and circumstances" associated with "initiation of litigation" over the incident.

Assistant Town Attorney Leigh Prince told the Almanac after the March 27 closed session that the council had authorized her to enter into settlement negotiations with Mr. Douglass. Settlement results will be made public, Ms. Prince and other public officials have said.

While the council discussed this matter in private, a public moment not on the agenda came just before the adjournment to closed session. Mr. Douglass walked up to the dais, introduced himself and apologized for his actions. He said he had acted on the advice of an arborist and has since been working on the tree restoration plan. The arborist, he said, considered "many" of the felled trees to be diseased and unhealthy. "I very much appreciate all the thought and consideration and help that has gone into this," he told the council.

About a dozen oaks will be planted soon, with underbrush and grass coming in December, according to an ASCC staff report and remarks during the on-site tour by Paul Kephart, president of Monterey-based landscape architect Rana Creek.

"We'll get a great outcome and hopefully exceed the expectations," Mr. Douglass said.

Private talks

While in closed session, the Town Council has apparently been discussing a substantial penalty for Mr. Douglass. In his remarks ahead of the closed session, he referred to a fine "certainly considerably more than I have ever anticipated."

Unlawful tree cutting is considered a misdemeanor in the town's municipal code, with a fine of not more than $500 and/or up to 180 days in jail plus the cost of replacement trees that have 15-gallon root balls at minimum. Under state law governing open-space easements, however, the town can assess damages for "loss of scenic, aesthetic, or environmental value."

Incidents like this one unfold much differently in Woodside, where the code specifies an initial fine of $5,000 that quickly rises to $10,000 per tree. For each of three incidents over recent years, the Woodside council put the matter on the open-session agenda and negotiated with the property owner in public. When invited to speak, the accused usually began with an apology, and in each case, the Woodside council reduced the fine.

The discussions/negotiations in the Woodside chambers were lengthy and arduous. In one case involving 35 trees, the talks opened with a total fine of around $100,000. After two public sessions that included testimony as to the good character of the accused, extensive testimony by the accused, and vigorous give and take among council members on the merits of this or that penalty, the council settled on $10,000.

Asked to comment on Portola Valley's use of closed sessions, Ms. Sloan, the Portola Valley town attorney, said in an email that Portola Valley does not have "specific enumerated fines" on illegal tree cutting. The council discussed the matter in closed sessions to consider whether to pursue litigation and discuss its costs and chances of success "given the severity of the violation of the terms of the open space easement," Ms. Sloan said.

As to the question of whether a penalty should have been discussed in open session, given Mr. Douglass' specific concern about a large fine, Ms. Sloan did not respond.

On the matter of public comment, "there was opportunity for those interested to speak," Ms. Sloan said, referring to Mr. Douglass' unagendized remarks, and remarks offered two weeks earlier before closed session by a representative from the Blue Oaks Homeowner's Association.

Asked about Woodside's use of specific fines, Portola Valley Mayor John Richards said: "As I recall, they haven't had a lot of success with it. They've had to back down." Specific fines, he added, could allow wealthy residents to simply consider the penalties as part of the cost of completing their projects.

Compared to the town's oversight of the replanting of the hillside, the financial penalties are the least important part of the issue, Mr. Richards said.

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