ThisWeek 04/13/2011
Over a year after the city removed a 40-year-old sweet gum tree from in front of attorney Mark Brown’s house, the legal battle to restore the tree, and the shade it provided, continues.
The issue began in 2008 when a call about root damage to a sidewalk near Brown’s West Castleton Road property led Upper Arlington superintendent of parks and forestry, Steve Cothrel, to inspect a 5-foot wound on the tree. Cothrel found the tree, which was owned by the city and in the city right-of-way, to be diseased.
Brown didn’t agree with the city arborist and hired his own arborist to examine the tree.
“I ended up having my arborist, Chris Ahlum, testify that the tree was healthy, as well as two arborists from [Ohio State University], so I had three experts on my side,” Brown said. “This was part of my appeal with the Tree Commission.”
After the Tree Commission rejected his appeal in August 2008, Brown said he contacted the city attorney’s office, where he was informed his next option would be to sue the city.
Brown filed a state court case Sept. 2, 2008 citing due process and equal protections under the 14th amendment; this case was moved on Sept. 10, 2008 to the U.S. District Court for the Southern District of Ohio, based on it being constitutional in nature, according to city first assistant attorney Tom Lindsey. The federal case on due process was decided in favor of the city.
According to court documents, an opinion dated Oct. 28, 2008 rejected Brown’s federal claim that his right to due process had been violated. The court also rejected his request for preliminary injunction, which would have kept the tree standing until a final judgment, presumably in Brown’s favor, would be made. Finally, on Oct. 29, 2008 the federal court dismissed the case.
The judge noted that an earlier temporary restraining order, granted in the state court, had expired but that he expected the city to notify the court and plaintiff immediately if they intended to remove the tree between the time the order expired and the federal court made its decision; according to the federal opinion, the city agreed to these terms.
“After we received the dismissal notice, my attorney contacted the city immediately to tell them we would be filing another case back in the state court,” Brown said. “That court opens at 9 a.m. the next morning but the city was in front of my house before that, with police escort, cutting down the tree.”
Brown’s intention to file another legal challenge in the state courts wasn’t enough to prevent the tree from coming down.
Once the tree had been felled, Brown lost his basis for further litigation, he said. However, the district court had sympathy for Brown and sanctioned the city for contempt of court. It was this contempt of court decision that the city appealed.
Then, on March 25, 2011 the 6th U.S. Circuit Court of Appeals ruled that the city had not acted in contempt of court when the city removed the tree the morning following the dismissal.
“The underlying issue was whether or not the city had the right to take down the tree, and the courts agreed that the tree belongs to the city and the city had the right to remove it,” city attorney Jeanine Hummer said. “We acted quickly to remove the tree because our experts felt it needed to come down, and if we had waited and something tragic had happened, then we’d be answering the question of why we didn’t act faster to protect the public.”
Brown is disappointed with the city’s actions and doesn’t feel that the saplings they have offered to plant in place of the felled sweet gum tree are equivalent to what was growing.
“We have 90 days to decide whether or not to file a US Supreme Court case,” Brown said. “We may choose to do that and or file another case in the state courts. The result could be the city replanting a tree of similar genius and general size – they aren’t offering that right now.”
Hummer said that city policy is to replace a tree when one is removed but that they have to consider these plantings on a 50-year cycle, which is much longer than a resident normally considers them.
Currently, the process for city tree removal requires the city to notify adjacent property owners of a removal, residents can then appeal to the Tree Commission. City-owned trees are pruned on a six- year cycle unless the city becomes aware of a problem ahead of that schedule.