During Thursday night's meeting, (July 18,) there was a public hearing regarding chapters 10, 11, and 12 of the Town's Zoning and Subdivision Regulation Ordinance. Later in the meeting, the chapters passed first reading on 4 to 1 votes. Councilman Kernodle abstained on Chapter 10 and voted against approving Chapters 11 and 12.
During the public hearing, Planning Commissioner Garret Milliken spoke rather cryptically about words in Chapter 12 that he said referred to nothing in the Zoning and Subdivision Regulation Ordinance. Chapter 12 is a glossary of definitions found throughout the other 11 Chapters.
His meaning became clear when Councilman Kernodle explained that "grand tree" and "protected tree" are included in the the list of definitions in Chapter 12. He argued that since these definitions are used in Chapter 8 and 9, and those Chapters had been returned to the Planning Commission, the definitions applied to nothing currently in the Ordinance.
Councilman Kernodle's analysis, apparently reviewed by Commissioner Milliken, is mistaken. The Town's Zoning and Subdivision Regulation Ordinance was passed on October 18th, 2012. It included 12 Chapters. The Town has revised and amended the first 6 chapters. The amendment process for the first three chapters was completed in December and the amendment process for Chapters 4 through 6 was completed in April. Chapter 7 is blank.
Chapters 8 through 12 exist at this time and remain exactly as they were last October. Chapters 8 and 9 include a definition of grand tree and Chapter 9 uses the term "protected tree." The current version of Chapter 12 repeats the definition of grand tree as all oak species with DBA 24 inches or greater. It defines protected tree in the same manner. The revision of Chapter 12 recommended by the Planning Commission left both of those definitions unchanged. Most importantly, the definitions in the revisions to Chapter 12 recommended by the Planning Commission refer to something in the Zoning and Subdivision Regulation Ordinance that exists right now.
The recommended revisions from the Planning Commission for Chapter 9 includes a definition of "protected tree" as all trees with DBA 8 inches or greater. Town Council voted 3 to 2 to amend the recommended revisions of Chapter 8 and 9 to change the definition of grand tree to all trees other than pines, sweet gum, and Chinese tallow with DBA 18 inches or greater. Until the amendment process is completed by a second and final reading of the revised Chapters, these new definitions do not apply. The definitions in the existing ordinance that passed last October continue to apply.
Because of the amendment to the definition of grand tree, all of Chapter 8 and Chapter 9 have been returned to the Planning Commission. The Planning Commission must return a favorable or unfavorable recommendation on the proposed new definition of grand tree. They may also propose some new definition of grand tree.
After the Planning Commission reports back, Town Council will hold a new public hearing on Chapters 8 and 9. Town Council may then have a first reading and vote on revised versions of Chapter 8 and 9. If the definition of "protected tree" recommended by the Planning Commission remains in the revised version of Chapter 9 and some new definition of grand tree is included in Chapters 8 and 9, then those new definitions will replace the old definitions, but only after the second and final reading of the revised Chapters by Town Council. At that time, it will be necessary to change the definitions in Chapter 12. This will simply be an editorial change which should require no action by the Planning Commission or the Town Council.
Friday, July 19, 2013
Sunday, July 14, 2013
The Grand Tree Fiasco
The Town Hall reopened on August 2, 2012. Immediately following the swearing in of Mayor and Council, there was a Town Council meeting. Town Council passed a Zoning and Subdivision Regulation Emergency Ordinance, which simply readopted the Zoning and Subdivision Ordinance that had applied when the Town was closed down in July of 2011. On October 1, the Town held a public hearing and held first reading on the same ordinance. Second and final reading was held on October 18, 2012.
The Town signed an intergovernmental agreement with Charleston County in August of 2012. The agreement included a provision for Charleston County planning staff to apply the Town's Zoning and Subdivision Regulation Ordinance. After Town Administrator Hal Mason arrived in early September, I appointed him to serve as Planning Director, but the Charleston County Planning Department continued to provide extensive staff support. In March, the Town hired Kristen Crane to serve as Planner. Much of the staff support continues to be provided by the Charleston County Planning Department, but I am gradually increasing the responsibilities of the Town's own planner. I anticipate that she will soon be responsible for all day-to-day activities.
Last fall, the Town began a complete review of the Zoning and Subdivision Regulation Ordinance. The Town's Planning Commission reviewed each chapter of the ordinance with the help of staff from the Charleston County Planning Department. The Town Administrator, as Planning Director, participated in all meetings. The Chairman of the Town's Land Use Committee, Leonard Blank, also participated in the meetings.
The revisions mostly involved updating the Town's ordinance consistent with the changes in Charleston County's ordinance that have occurred over the years. I think this approach makes sense, because for the most part, the Town's ordinance was based upon the Charleston County Zoning and Subdivision Ordinance from 2002. The Charleston County planning staff could point to changes in state law or various problems they had discovered over the years, requiring changes in their ordinance. Councilman Blank's role was to make sure that the Planning Commission was aware of any differences from the County ordinance that had been intentional on the part of the Town.
After the Planning Commission reviewed and revised several chapters, planning staff would put an ad in the James Island Messenger scheduling a public hearing for the next Town Council meeting. The ad must appear 15 days before the meeting for changes in zoning rules and 30 days before the meeting for changes in subdivision regulations. Those are requirements from state law. After the public hearing, Council would vote on an ordinance adopting the chapter at first reading. And then, at the next meeting, Council would approve the ordinance at its second and final reading.
Chapters 1, 2 and 3 came up at the November meeting of Town Council. No one spoke at the public hearing. There was a single ordinance adopting the "text amendments of Chapters 1, 2, and 3 .... which are attached hereto as exhibit "A" and made a part of this Ordinance by reference." Exhibit "A" included all three chapters as they would read after the ordinance passed. For the most part, this would be no different from the existing ordinance, but there were a variety of small changes included. The second and final reading was at the December meeting of Town Council.
Chapters 4, 5, and 6 came up at the April meeting of Town Council. No one spoke at the public hearing. Again, there was a single ordinance adopting "the text amendments" for all three chapters. It passed first reading unanimously. At the March meeting, some beekeepers came to speak in favor of allowing beekeeping in residential areas. This had been been included as a special exception in the recommendations from the Planning Commission, which had already passed first reading. The ordinance passed second reading unanimously.
Chapter 8 and 9 were much more controversial. Chapter 9, "Development Standards," includes tree regulations, including the definition of grand tree. Chapter 8, "Subdivision Regulations," makes reference to grand trees, and provides the definition as well. The Planning Commission forwarded their recommended changes for these chapters and ads were placed in the James Island Messenger announcing a public hearing at the Town Council meeting on June 20. The ordinance adopting chapter 8 states that it adopts the "text amendments" from exhibit "A" and the ordinance adopting chapter 9 includes the same language. Chapters 8 and 9 were provided as they would read if the respective ordinances passed. The Chapters recommended by the Planning Commission included no change in the definition of grand tree, leaving it unchanged as all oak species with diameter 24 inches or greater.
At the public hearing, a number of speakers called for changing the definition of grand tree to all trees other than pines with diameter 18 inches or greater. Only the day before, Councilman Kernodle had written an email to me and the rest of Council stating an intention to propose an amendment to that effect.
While Councilman Kernodle's plan to propose the amendment was new, the proposal was not. At the Planning Commission meeting in April, Commissioner Milliken had made this same proposal and it was included in the working draft for chapter 9. There had been no vote, because the Planning Commission works by consensus. However, there had been no consensus, since two members of the Planning Commission opposed changing the definition of grand tree. At the May meeting, the Planning Commission voted 4 to 1 to change the working draft and make no recommendation regarding grand trees to Town Council.
In response, Commissioner Milliken enlisted Save Harbor View Road and Nix 525 in a campaign to reverse the recommendations of the the Planning Commission and have Town Council directly amend the definition of grand tree. Save Harbor Road is an organization whose purpose has been to block the Harbor View Road improvements. Nix 526 aims to block the completion of 526. Commissioner Milliken, Commissioner Hardin, Councilwoman Berry, and Commissoner Milliken's wife, Susan Milliken, are all involved in the Save Harbor View Road organization.
I asked two members of Town Council what they thought about the proposed change in the tree ordinance. Of course, I spoke with them separately. Both said that they opposed a change in the definition of grand tree at this time. Councilman Blank had called for a joint workshop for the Planning Commission and Town Council to learn more about tree ordinances. The time was not specified, but sometime this Fall. Both members of Council thought that it was best to wait until after this workshop before changing the definition of grand tree. Given these assurances, I was not concerned about growing evidence that the Save Harbor View Road and the Nix 526 organizations would seek to have Town Council amend the definition of grand tree at the June 20 meeting of Council. There were three votes on Council opposed.
Can Town Council make amendments to recommendations from the Planning Commission? When the possibility first arose, Councilman Blank, Chairman of our Land Use Committee, said that he thought that Council would have to send the Chapters back to the Planning Commission. He was right. Hal Mason, the Town Administrator, said that the Planning Commission is only a recommending body and Town Council, as governing body, can amend what was recommended by the Planning Commission. He was right, too. However, the Town Administrator's view of the process was that the Town Council can make any change it chooses in the recommendation, go to first reading, and then at a subsequent meeting, pass its own version at second and final reading. That was mistaken. I asked him to check with the Municipal Association and the Charleston County Planning Department about this. They both agreed with his (mistaken) interpretation.
I found the situation absurd. Part of the problem was that entire chapters of the Zoning and Subdivision Regulation Ordinance were being sent to Town Council. Was it really true that by putting the entire chapter "on the table," Town Council could change any part of it? It makes a mockery of the requirement for a public hearing. In my view, the Planning Commission had really recommended a set of discrete changes in those chapters. It seemed inappropriate for Town Council to pass amendments to parts of the chapters that included no recommended change. Shouldn't we list all of the changes actually recommended and vote for them individually or as a group?
While I expressed all of these concerns to the Town Administrator, his view was that it was too late. By presenting Chapter 8 and Chapter 9 (and all of the chapters before) as a single document, it was open to Council to amend any part of those Chapters in any way. Of course, since the grand tree amendment being pushed by Commissioner Milliken and Save Harbor View Road could not pass with three votes opposed, I put my concerns on the back burner.
As the June 20 meeting approached, it became clear that Councilwoman Berry was pursuing an amendment. She never spoke to me directly, but she approached Councilman Blank and Councilman Mullinax, (separately, of course,) with a compromise. While the size of grand tree would remain 24 inches or greater in diameter, all trees other than pines would be protected. I heard about it from each of them (separately, of course.) I pointed out that all trees other than pines and sweet gum would make our ordinance in line with that of the City of Charleston. I explained that a sweet gum was a "gumball" tree, and that it has brittle wood and the spiky seed pods are difficult to deal with. I also shared my opposition to the Town protecting exotic and invasive trees, such as Chinese tallow trees. I explained that those are "popcorn" trees. However, I insisted that I would not vote to amend the definition of grand tree until after the Town had completed its review of other ordinances, the vacant parcels in the Town, and native trees of James Island. Still, I began to expect that an amendment to the definition of grand tree would pass on June 20, making it consistent with the City of Charleston's definition--all trees other than pines and sweet gum with diameter 24 inches or greater.
The campaign by Save Harbor View Road and Nix 526 intensified in the days leading up to the June 20 meeting of Town Council. The misinformation was rife. The "protected trees" in other jurisdictions were compared to the Town's grand tree ordinance. There was a "consensus" on the Planning Commission, but I bullied them to change. Supposedly, my wife helped in the bullying! It is rumored that I am being paid off by developers. Even the Post and Courier editorial page joined in, repeating the claims made by the activists without verification.
Interestingly, the Save Harbor View Road and Nix 526 groups combined their effort to change the grand tree definition with an effort to impose conditions on the Harborview Road Improvement project. The conditions they proposed were to extend the sidewalks and bike paths to the James Island Connector, to reduce the size of the center lane from 13 to 12 feet, and to provide barriers to protect animals crossing the road. As I explained earlier, these were "poison pill" conditions that would block, or at least postpone, approving the project.
I received 39 emails calling for both a change in the definition of grand tree and for these conditions to be added for approving the Harborview Road Improvement project. Councilman Kernodle's email cited the correspondence he had received to explain his proposal to amend both the definition of grand tree and to add the conditions to the municipal agreement with Charleston County and SCDOT. There were 19 emails from residents of the Town and 20 emails from others, including some from as far away as New York.
After receiving the email from Councilman Kernodle, I emailed Councilwoman Berry and asked her about this issue for the first time. I was curious as to what had happened with the "compromise" that I had heard about second hand. She explained that she supported all of Councilman Kernodle's proposals. Either I had misunderstood all the talk of compromise, or she was changing her position.
At the Town Council meeting of June 20th, perhaps 25 activists were there to support both the change in the definition of grand tree and the imposition of conditions on the Harbor View Road Improvement project. Councilman Kernodle proposed to amend the municipal agreement to impose additional conditions. Councilwoman Berry seconded the motion. It failed 3 to 2. I believe that Councilman Mullinax had intended to vote for the conditions and was surprised to discover that this would be the same as a "no" vote. After the amendment failed, the Harbor View Improvement Project passed 3 to 2. This is what I had expected, because there had been three votes in favor of approving the project going into the meeting.
Then the ordinance adopting the Planning Commission's recommended changes in Chapter 8 came up. While tree regulation is in Chapter 9, the definition of grand tree is repeated in Chapter 8. Councilman Kernodle made a motion to amend both Chapter 8 and Chapter 9 at the same time. I ruled that was out of order, because only Chapter 8 had been moved and seconded. Councilman Kernodle said that the Town Administrator had told him he could amend both Chapters at the same time. The Town Administrator said he didn't say that, because such a motion was impossible. (It seemed obvious to me that it was a minor mis-communication, but angry words in the meeting led to an unfortunate confrontation later.)
Councilman Kernodle then moved to amend Chapter 8 so that grand tree would be all trees other than pines with 18 inches or greater diameter. I moved to amend the amendment so that it would be all trees other than pines or sweet gum. That passed. I then moved to amend the amendment to remove Chinese tallow. That passed. I then moved to amend the amendment to remove Mimosa. That died for lack of a second. (I would have gone on to remove all of the trees I could remember from the state's list of exotic and invasive species.)
The amendment passed 3 to 2. I was surprised since it included the change in the definition of grand tree from 24 inches to 18 inches, and two other members of council told me they would not support that change. Councilman Blank and I voted against it. Chapter 8 then passed first reading also 3 to 2, with Councilman Blank and I opposed. Councilman Kernodle proposed to amend Chapter 9 so that grand tree is defined as all trees other than pines, sweet gum, or Chinese tallow with diameter 18 inches or greater. It passed 3 to 2, with Councilman Blank and I voting against. The chapter passed first reading, again, 3 to 2, with Councilman Blank and I opposed.
The next day, I contacted a staff member from the Charleston County Planning Department. I asked why Chapter 8 included the definition of grand tree rather than just referencing the definition in Chapter 9, which covers tree regulation. He agreed and said that fixing this is just an editorial change.
I also said that it seemed very wrong to me that our procedures had put an entire Chapter on the table for Council to amend after the public hearing. In my view, citizens should know what is being proposed before the public hearing. I asked how we could change our procedures to avoid this situation from happening in the future. To my surprise, he responded by citing a state law that prohibits changing the recommendation from the Planning Commission after the public hearing. Others from the Charleston County Planning Department looked at this, and we sent it to the Municipal Association for their view as well. They agreed that the amended versions of Chapter 8 and 9 needed to be sent back to the Planning Commission for their recommendation, and then a new public hearing must be held. After that, Town Council can hold first reading on the amended definition of grand tree and at a subsequent meeting, it can have the second and final vote. The Town Attorney wanted a copy of the draft minutes from the June 20 meeting before providing an official opinion. He provided his opinion consistent with the view of the Charleston County Planning Department and the Municipal Association on July 10th.
The Town Administrator notified the Planning Commission at their July 11 meeting that they must consider the definition of grand tree and provide a recommendation on the version of the amendment that passed Council at their next meeting, They can also propose an alternative definition of grand tree.
I support the compromise of defining grand tree as all trees other than pines and sweet gum with diameter 24 inch or greater. I support adding a separate sentence saying that no species on the state's list of exotic and invasive trees are included as protected trees, including grand trees. The recommendations for Chapter 9 already includes a definition of protected tree as all trees with diameter 8 inches or greater, bringing the Town's ordinance in line with that of Charleston County and much like that of the City of Charleston.
While I was surprised to see the change in definition of grand tree pass on June 20, that was just the first reading. Also, I had anticipated that there would be an effort to change the definition of grand tree after the workshop in the Fall. At some point, I knew I was going to have to ask all the citizens of James Island to contact their members of Council about this effort to micromanage every homeowner's yard. After June 20, I though it was going to be July 18. Now, because of this state law, it will be later. Please keep out an eye for further news.
The Town signed an intergovernmental agreement with Charleston County in August of 2012. The agreement included a provision for Charleston County planning staff to apply the Town's Zoning and Subdivision Regulation Ordinance. After Town Administrator Hal Mason arrived in early September, I appointed him to serve as Planning Director, but the Charleston County Planning Department continued to provide extensive staff support. In March, the Town hired Kristen Crane to serve as Planner. Much of the staff support continues to be provided by the Charleston County Planning Department, but I am gradually increasing the responsibilities of the Town's own planner. I anticipate that she will soon be responsible for all day-to-day activities.
Last fall, the Town began a complete review of the Zoning and Subdivision Regulation Ordinance. The Town's Planning Commission reviewed each chapter of the ordinance with the help of staff from the Charleston County Planning Department. The Town Administrator, as Planning Director, participated in all meetings. The Chairman of the Town's Land Use Committee, Leonard Blank, also participated in the meetings.
The revisions mostly involved updating the Town's ordinance consistent with the changes in Charleston County's ordinance that have occurred over the years. I think this approach makes sense, because for the most part, the Town's ordinance was based upon the Charleston County Zoning and Subdivision Ordinance from 2002. The Charleston County planning staff could point to changes in state law or various problems they had discovered over the years, requiring changes in their ordinance. Councilman Blank's role was to make sure that the Planning Commission was aware of any differences from the County ordinance that had been intentional on the part of the Town.
After the Planning Commission reviewed and revised several chapters, planning staff would put an ad in the James Island Messenger scheduling a public hearing for the next Town Council meeting. The ad must appear 15 days before the meeting for changes in zoning rules and 30 days before the meeting for changes in subdivision regulations. Those are requirements from state law. After the public hearing, Council would vote on an ordinance adopting the chapter at first reading. And then, at the next meeting, Council would approve the ordinance at its second and final reading.
Chapters 1, 2 and 3 came up at the November meeting of Town Council. No one spoke at the public hearing. There was a single ordinance adopting the "text amendments of Chapters 1, 2, and 3 .... which are attached hereto as exhibit "A" and made a part of this Ordinance by reference." Exhibit "A" included all three chapters as they would read after the ordinance passed. For the most part, this would be no different from the existing ordinance, but there were a variety of small changes included. The second and final reading was at the December meeting of Town Council.
Chapters 4, 5, and 6 came up at the April meeting of Town Council. No one spoke at the public hearing. Again, there was a single ordinance adopting "the text amendments" for all three chapters. It passed first reading unanimously. At the March meeting, some beekeepers came to speak in favor of allowing beekeeping in residential areas. This had been been included as a special exception in the recommendations from the Planning Commission, which had already passed first reading. The ordinance passed second reading unanimously.
Chapter 8 and 9 were much more controversial. Chapter 9, "Development Standards," includes tree regulations, including the definition of grand tree. Chapter 8, "Subdivision Regulations," makes reference to grand trees, and provides the definition as well. The Planning Commission forwarded their recommended changes for these chapters and ads were placed in the James Island Messenger announcing a public hearing at the Town Council meeting on June 20. The ordinance adopting chapter 8 states that it adopts the "text amendments" from exhibit "A" and the ordinance adopting chapter 9 includes the same language. Chapters 8 and 9 were provided as they would read if the respective ordinances passed. The Chapters recommended by the Planning Commission included no change in the definition of grand tree, leaving it unchanged as all oak species with diameter 24 inches or greater.
At the public hearing, a number of speakers called for changing the definition of grand tree to all trees other than pines with diameter 18 inches or greater. Only the day before, Councilman Kernodle had written an email to me and the rest of Council stating an intention to propose an amendment to that effect.
While Councilman Kernodle's plan to propose the amendment was new, the proposal was not. At the Planning Commission meeting in April, Commissioner Milliken had made this same proposal and it was included in the working draft for chapter 9. There had been no vote, because the Planning Commission works by consensus. However, there had been no consensus, since two members of the Planning Commission opposed changing the definition of grand tree. At the May meeting, the Planning Commission voted 4 to 1 to change the working draft and make no recommendation regarding grand trees to Town Council.
In response, Commissioner Milliken enlisted Save Harbor View Road and Nix 525 in a campaign to reverse the recommendations of the the Planning Commission and have Town Council directly amend the definition of grand tree. Save Harbor Road is an organization whose purpose has been to block the Harbor View Road improvements. Nix 526 aims to block the completion of 526. Commissioner Milliken, Commissioner Hardin, Councilwoman Berry, and Commissoner Milliken's wife, Susan Milliken, are all involved in the Save Harbor View Road organization.
I asked two members of Town Council what they thought about the proposed change in the tree ordinance. Of course, I spoke with them separately. Both said that they opposed a change in the definition of grand tree at this time. Councilman Blank had called for a joint workshop for the Planning Commission and Town Council to learn more about tree ordinances. The time was not specified, but sometime this Fall. Both members of Council thought that it was best to wait until after this workshop before changing the definition of grand tree. Given these assurances, I was not concerned about growing evidence that the Save Harbor View Road and the Nix 526 organizations would seek to have Town Council amend the definition of grand tree at the June 20 meeting of Council. There were three votes on Council opposed.
Can Town Council make amendments to recommendations from the Planning Commission? When the possibility first arose, Councilman Blank, Chairman of our Land Use Committee, said that he thought that Council would have to send the Chapters back to the Planning Commission. He was right. Hal Mason, the Town Administrator, said that the Planning Commission is only a recommending body and Town Council, as governing body, can amend what was recommended by the Planning Commission. He was right, too. However, the Town Administrator's view of the process was that the Town Council can make any change it chooses in the recommendation, go to first reading, and then at a subsequent meeting, pass its own version at second and final reading. That was mistaken. I asked him to check with the Municipal Association and the Charleston County Planning Department about this. They both agreed with his (mistaken) interpretation.
I found the situation absurd. Part of the problem was that entire chapters of the Zoning and Subdivision Regulation Ordinance were being sent to Town Council. Was it really true that by putting the entire chapter "on the table," Town Council could change any part of it? It makes a mockery of the requirement for a public hearing. In my view, the Planning Commission had really recommended a set of discrete changes in those chapters. It seemed inappropriate for Town Council to pass amendments to parts of the chapters that included no recommended change. Shouldn't we list all of the changes actually recommended and vote for them individually or as a group?
While I expressed all of these concerns to the Town Administrator, his view was that it was too late. By presenting Chapter 8 and Chapter 9 (and all of the chapters before) as a single document, it was open to Council to amend any part of those Chapters in any way. Of course, since the grand tree amendment being pushed by Commissioner Milliken and Save Harbor View Road could not pass with three votes opposed, I put my concerns on the back burner.
As the June 20 meeting approached, it became clear that Councilwoman Berry was pursuing an amendment. She never spoke to me directly, but she approached Councilman Blank and Councilman Mullinax, (separately, of course,) with a compromise. While the size of grand tree would remain 24 inches or greater in diameter, all trees other than pines would be protected. I heard about it from each of them (separately, of course.) I pointed out that all trees other than pines and sweet gum would make our ordinance in line with that of the City of Charleston. I explained that a sweet gum was a "gumball" tree, and that it has brittle wood and the spiky seed pods are difficult to deal with. I also shared my opposition to the Town protecting exotic and invasive trees, such as Chinese tallow trees. I explained that those are "popcorn" trees. However, I insisted that I would not vote to amend the definition of grand tree until after the Town had completed its review of other ordinances, the vacant parcels in the Town, and native trees of James Island. Still, I began to expect that an amendment to the definition of grand tree would pass on June 20, making it consistent with the City of Charleston's definition--all trees other than pines and sweet gum with diameter 24 inches or greater.
The campaign by Save Harbor View Road and Nix 526 intensified in the days leading up to the June 20 meeting of Town Council. The misinformation was rife. The "protected trees" in other jurisdictions were compared to the Town's grand tree ordinance. There was a "consensus" on the Planning Commission, but I bullied them to change. Supposedly, my wife helped in the bullying! It is rumored that I am being paid off by developers. Even the Post and Courier editorial page joined in, repeating the claims made by the activists without verification.
Interestingly, the Save Harbor View Road and Nix 526 groups combined their effort to change the grand tree definition with an effort to impose conditions on the Harborview Road Improvement project. The conditions they proposed were to extend the sidewalks and bike paths to the James Island Connector, to reduce the size of the center lane from 13 to 12 feet, and to provide barriers to protect animals crossing the road. As I explained earlier, these were "poison pill" conditions that would block, or at least postpone, approving the project.
I received 39 emails calling for both a change in the definition of grand tree and for these conditions to be added for approving the Harborview Road Improvement project. Councilman Kernodle's email cited the correspondence he had received to explain his proposal to amend both the definition of grand tree and to add the conditions to the municipal agreement with Charleston County and SCDOT. There were 19 emails from residents of the Town and 20 emails from others, including some from as far away as New York.
After receiving the email from Councilman Kernodle, I emailed Councilwoman Berry and asked her about this issue for the first time. I was curious as to what had happened with the "compromise" that I had heard about second hand. She explained that she supported all of Councilman Kernodle's proposals. Either I had misunderstood all the talk of compromise, or she was changing her position.
At the Town Council meeting of June 20th, perhaps 25 activists were there to support both the change in the definition of grand tree and the imposition of conditions on the Harbor View Road Improvement project. Councilman Kernodle proposed to amend the municipal agreement to impose additional conditions. Councilwoman Berry seconded the motion. It failed 3 to 2. I believe that Councilman Mullinax had intended to vote for the conditions and was surprised to discover that this would be the same as a "no" vote. After the amendment failed, the Harbor View Improvement Project passed 3 to 2. This is what I had expected, because there had been three votes in favor of approving the project going into the meeting.
Then the ordinance adopting the Planning Commission's recommended changes in Chapter 8 came up. While tree regulation is in Chapter 9, the definition of grand tree is repeated in Chapter 8. Councilman Kernodle made a motion to amend both Chapter 8 and Chapter 9 at the same time. I ruled that was out of order, because only Chapter 8 had been moved and seconded. Councilman Kernodle said that the Town Administrator had told him he could amend both Chapters at the same time. The Town Administrator said he didn't say that, because such a motion was impossible. (It seemed obvious to me that it was a minor mis-communication, but angry words in the meeting led to an unfortunate confrontation later.)
Councilman Kernodle then moved to amend Chapter 8 so that grand tree would be all trees other than pines with 18 inches or greater diameter. I moved to amend the amendment so that it would be all trees other than pines or sweet gum. That passed. I then moved to amend the amendment to remove Chinese tallow. That passed. I then moved to amend the amendment to remove Mimosa. That died for lack of a second. (I would have gone on to remove all of the trees I could remember from the state's list of exotic and invasive species.)
The amendment passed 3 to 2. I was surprised since it included the change in the definition of grand tree from 24 inches to 18 inches, and two other members of council told me they would not support that change. Councilman Blank and I voted against it. Chapter 8 then passed first reading also 3 to 2, with Councilman Blank and I opposed. Councilman Kernodle proposed to amend Chapter 9 so that grand tree is defined as all trees other than pines, sweet gum, or Chinese tallow with diameter 18 inches or greater. It passed 3 to 2, with Councilman Blank and I voting against. The chapter passed first reading, again, 3 to 2, with Councilman Blank and I opposed.
The next day, I contacted a staff member from the Charleston County Planning Department. I asked why Chapter 8 included the definition of grand tree rather than just referencing the definition in Chapter 9, which covers tree regulation. He agreed and said that fixing this is just an editorial change.
I also said that it seemed very wrong to me that our procedures had put an entire Chapter on the table for Council to amend after the public hearing. In my view, citizens should know what is being proposed before the public hearing. I asked how we could change our procedures to avoid this situation from happening in the future. To my surprise, he responded by citing a state law that prohibits changing the recommendation from the Planning Commission after the public hearing. Others from the Charleston County Planning Department looked at this, and we sent it to the Municipal Association for their view as well. They agreed that the amended versions of Chapter 8 and 9 needed to be sent back to the Planning Commission for their recommendation, and then a new public hearing must be held. After that, Town Council can hold first reading on the amended definition of grand tree and at a subsequent meeting, it can have the second and final vote. The Town Attorney wanted a copy of the draft minutes from the June 20 meeting before providing an official opinion. He provided his opinion consistent with the view of the Charleston County Planning Department and the Municipal Association on July 10th.
The Town Administrator notified the Planning Commission at their July 11 meeting that they must consider the definition of grand tree and provide a recommendation on the version of the amendment that passed Council at their next meeting, They can also propose an alternative definition of grand tree.
I support the compromise of defining grand tree as all trees other than pines and sweet gum with diameter 24 inch or greater. I support adding a separate sentence saying that no species on the state's list of exotic and invasive trees are included as protected trees, including grand trees. The recommendations for Chapter 9 already includes a definition of protected tree as all trees with diameter 8 inches or greater, bringing the Town's ordinance in line with that of Charleston County and much like that of the City of Charleston.
While I was surprised to see the change in definition of grand tree pass on June 20, that was just the first reading. Also, I had anticipated that there would be an effort to change the definition of grand tree after the workshop in the Fall. At some point, I knew I was going to have to ask all the citizens of James Island to contact their members of Council about this effort to micromanage every homeowner's yard. After June 20, I though it was going to be July 18. Now, because of this state law, it will be later. Please keep out an eye for further news.
Friday, July 12, 2013
The Grand Tree Amendment Returned to the Planning Commission
The Town has returned recommended changes to Chapters 8 and 9 in its Zoning and Subdivision Regulations Ordinance to the Planning Commission to comply with state law.
The Town of James Island's Planning Commission recommended changes to chapters 8 and 9 of the Zoning and Subdivision Regulation Ordinance. Town Council held a public hearing on the two chapters on June 20. Included in both chapters is the definition of grand tree as all oak species with diameter 24 inches or greater. The Planning Commission did not recommend a change in the definition of grand tree. After the public hearing, Council voted 3 to 2 to amend both chapters to change the definition of grand tree to all trees other than pines, sweet gum, or Chinese tallow with diameter 18 inches or greater.
The Town of James Island's Planning Commission recommended changes to chapters 8 and 9 of the Zoning and Subdivision Regulation Ordinance. Town Council held a public hearing on the two chapters on June 20. Included in both chapters is the definition of grand tree as all oak species with diameter 24 inches or greater. The Planning Commission did not recommend a change in the definition of grand tree. After the public hearing, Council voted 3 to 2 to amend both chapters to change the definition of grand tree to all trees other than pines, sweet gum, or Chinese tallow with diameter 18 inches or greater.
Soon after, planning staff brought to my attention that the South Carolina Code of Laws Section 6-29-760 states that "No change in or departure from the text or maps as recommended by the local planning commission may be made pursuant to the hearing unless the change or departure be first submitted to the planning commission for review and recommendation." Pursuant means "according to" or "following."
The Charleston County Planning staff and the Municipal Association of South Carolina both agreed with my understanding that the changes in the definition of grand tree requires that the chapters be returned to the Town's Planning Commission. On July 10, the Town Attorney provided an opinion to that effect.
The Town Administrator notified the Planning Commissioners at their meeting on July 11 that they must provide a recommendation regarding the change in the definition of grand tree at their next meeting. After receiving their recommendation, Town Council will hold a new public hearing on Chapter 8 and Chapter 9. The proposal to change the definition of grand tree to all trees other than pines, sweet gum, and Chinese tallow with diameter 18 inches or greater will be included, along with the Planning Commission's favorable or unfavorable recommendation. In addition, the Planning Commissioners can recommend a different change in the definition of grand tree if they choose.
After Town Council holds the public hearing, there will be a first reading of an ordinance adopting the chapter. Town Council will be able to include the definition of grand tree as all trees other than pines, sweet gum, and Chinese tallow 18 inches or greater, or else any alternative definition of grand tree that might be recommended by the Planning Commission. If the ordinance passes first reading, then at a subsequent meeting of Town Council, there will be a second and final reading of the ordinance.
Thursday, July 11, 2013
More on the lost Tax Credit
David Engelman, Chairman of the James Island Public Service District, included in the District's Island Update, a bit more information as to why he and the majority of Commissioners refuse to work with us to provide a tax credit to Town taxpayers. (Island Update is included with the monthly sewer bill.)
First, the Chairman repeated his claim that "it would significantly increase the District's accounting and auditing costs." This is just what he said in the letter he wrote to the Town on June 11th. Still no explanation as to what these "accounting and auditing costs" are exactly and how much they would be.
In my view, if the Town's specific proposal would create added accounting or auditing costs, we should modify the proposal to reduce the costs. But first we need some explanation of what these costs would be. Then, the Town would like good faith negotiations rather than a flat refusal.
Second, he argues "It would cause confusion among District taxpayers, as Town residents would receive the credit, but those living outside the Town's limits would not. Answering tax bill questions would increase the District's customer service base." This is slightly more informative than the version mailed to the Town, which stated, "It would cause confusion among our constituents and significantly increase the District's customer service costs."
It is important to understand that the James Island PSD does not create property tax bills, mail them out, or receive money from taxpayers. The Charleston County Auditors Office creates the property tax bills and mails them out. These tax bills include the property taxes imposed by the Charleston County School Board, Charleston County, and various other jurisdictions, including the JIPSD. The Charleston County Treasurers Office receives a single payment from each taxpayer to cover all of the property taxes. The Charleston County Treasurer's Office then sends a limited number of checks to each of the various jurisdictions. The JIPSD will be receiving a limited number of checks for all of the property taxes collected from District 3-8, which is the Town's tax district.
The Town's proposal is that the Charleston County's Auditor's Office make the adjustment to the tax bills, not the JIPSD. There would be a Town of James Island tax credit line on the bill, which would reduce the amount of money the taxpayer pays to the County Treasurer. The Charleston County Treasurer would reduce the amount paid to the James Island PSD. And then the Town would write a single check to the JIPSD to make up the difference.
Only residents of the Town would have "Town of James Island tax credit," on their tax bills they receive from Charleston County and pay a reduced amount to the Charleston County Treasurer. Apparently, James Islanders who live in the District, but not in the Town, would find out that their friends and relatives who live in the Town received a tax credit. They would ask, why didn't we receive the credit? The answer, of course, is that they don't live in the Town.
I doubt that many taxpayers bring questions about their tax bills to the JIPSD. The questions go to the County Auditor who makes up the bills Regardless, we at the Town will be more than happy to listen to any complaints of those who were formerly in the Town and want to return to obtain tax credits.
Finally, there was a significant addition to what was in the previous letter to the Town regarding legal issues. Before, all that Chairman Engelman wrote was that "it is legally complicated and questionable." Exactly how is it complicated or questionable? Chairman Engelman now claims that "participating in the proposed plan would likely involve the District in a costly legal battle. By law, public service districts are not entitled to receive Local Option Sales Tax money. Mayor Woolsey's plan would invite a lawsuit, which the District would probably lose."
This is a little more specific. Our lawyer reviewed the proposal and found no problems. Perhaps Chairman Engelman could actually cite the law that he believes would cause a problem. There is no doubt that the money received from the Local Option Sales Tax belongs to the Town. Because the Town has no property tax millage, we are legally entitled to spend it as we see fit. I find it hard to believe that the JIPSD can be prohibited from accepting money from the Town in payment for fire protection or solid waste pickup.
Still, the Town would be more than happy to have our lawyer discuss this matter with the JIPSD's lawyer. Again, we are interested in good faith negotiations.
While some variant on the current proposal is possible, there is an alternative. The Town can charge all the property tax millage, provide the Local Option Sales Tax credit exactly as is done in other municipalities, and then pay the JIPSD for fire protection and solid waste protection. If that is the option the JIPSD prefers, I am willing to start negotiations.
First, the Chairman repeated his claim that "it would significantly increase the District's accounting and auditing costs." This is just what he said in the letter he wrote to the Town on June 11th. Still no explanation as to what these "accounting and auditing costs" are exactly and how much they would be.
In my view, if the Town's specific proposal would create added accounting or auditing costs, we should modify the proposal to reduce the costs. But first we need some explanation of what these costs would be. Then, the Town would like good faith negotiations rather than a flat refusal.
Second, he argues "It would cause confusion among District taxpayers, as Town residents would receive the credit, but those living outside the Town's limits would not. Answering tax bill questions would increase the District's customer service base." This is slightly more informative than the version mailed to the Town, which stated, "It would cause confusion among our constituents and significantly increase the District's customer service costs."
It is important to understand that the James Island PSD does not create property tax bills, mail them out, or receive money from taxpayers. The Charleston County Auditors Office creates the property tax bills and mails them out. These tax bills include the property taxes imposed by the Charleston County School Board, Charleston County, and various other jurisdictions, including the JIPSD. The Charleston County Treasurers Office receives a single payment from each taxpayer to cover all of the property taxes. The Charleston County Treasurer's Office then sends a limited number of checks to each of the various jurisdictions. The JIPSD will be receiving a limited number of checks for all of the property taxes collected from District 3-8, which is the Town's tax district.
The Town's proposal is that the Charleston County's Auditor's Office make the adjustment to the tax bills, not the JIPSD. There would be a Town of James Island tax credit line on the bill, which would reduce the amount of money the taxpayer pays to the County Treasurer. The Charleston County Treasurer would reduce the amount paid to the James Island PSD. And then the Town would write a single check to the JIPSD to make up the difference.
Only residents of the Town would have "Town of James Island tax credit," on their tax bills they receive from Charleston County and pay a reduced amount to the Charleston County Treasurer. Apparently, James Islanders who live in the District, but not in the Town, would find out that their friends and relatives who live in the Town received a tax credit. They would ask, why didn't we receive the credit? The answer, of course, is that they don't live in the Town.
I doubt that many taxpayers bring questions about their tax bills to the JIPSD. The questions go to the County Auditor who makes up the bills Regardless, we at the Town will be more than happy to listen to any complaints of those who were formerly in the Town and want to return to obtain tax credits.
Finally, there was a significant addition to what was in the previous letter to the Town regarding legal issues. Before, all that Chairman Engelman wrote was that "it is legally complicated and questionable." Exactly how is it complicated or questionable? Chairman Engelman now claims that "participating in the proposed plan would likely involve the District in a costly legal battle. By law, public service districts are not entitled to receive Local Option Sales Tax money. Mayor Woolsey's plan would invite a lawsuit, which the District would probably lose."
This is a little more specific. Our lawyer reviewed the proposal and found no problems. Perhaps Chairman Engelman could actually cite the law that he believes would cause a problem. There is no doubt that the money received from the Local Option Sales Tax belongs to the Town. Because the Town has no property tax millage, we are legally entitled to spend it as we see fit. I find it hard to believe that the JIPSD can be prohibited from accepting money from the Town in payment for fire protection or solid waste pickup.
Still, the Town would be more than happy to have our lawyer discuss this matter with the JIPSD's lawyer. Again, we are interested in good faith negotiations.
While some variant on the current proposal is possible, there is an alternative. The Town can charge all the property tax millage, provide the Local Option Sales Tax credit exactly as is done in other municipalities, and then pay the JIPSD for fire protection and solid waste protection. If that is the option the JIPSD prefers, I am willing to start negotiations.
Tuesday, July 9, 2013
What is a Grand Tree?
What
is a Grand Tree?
Here is a Grand Tree. 
It is Angel Oak on Johns Island. Angel oak is a live oak and estimated to be
400 to 500 years old. It is 107 inches
in diameter.
What is diameter?
Stand in front of a tree and look at the trunk. How wide is it? Angel oak is about 9 feet wide. Angel oak is certainly a grand tree and a
historic tree. Even if it is only 400
years old, it would have been an acorn in 1613. By the time the first English settlers
arrived in Charleston Towne Landing, it would have been 57 years old.
Here is a tree on James Island. It is just off Folly Road, near Highland Avenue. It is a live oak and has a 53 inch
diameter. It is about half of the size of Angel Oak, but
it is quite grand.
Here is a grand tree near Town Hall.
Since 2007, the Town of James Island has defined “grand
tree” to be all oak species with a diameter 24 inches or greater. Here is a grand tree according to the Town’s current
regulation.
Stand in front of an oak tree. Is the trunk 2 feet or wider at “breast
height?” If it is, then it is illegal
to cut it down or damage it without a permit.
Excessive pruning counts as
damage. No more than 3 six inch or
greater limbs can be removed without a permit.
And no more than 25% of the tree’s canopy can be removed.
Failure to get a permit results in heavy fines. The fines are based upon the size of the
tree. You pay the costs of planting
replacement trees with total inches equal to three times the inches of the tree
illegally removed or pruned. For
example, removing a 36 inch tree requires replacement of 108 inches, which
would be 54 2 inch trees. The cost would be at least $8,100.
A permit
costs $25, but it is necessary to appear before the Town’s Board of Zoning
Appeals. The majority of the members
of the Board must vote to allow the tree to be cut down or heavily pruned. It is treated as a variance and the
homeowner must prove that keeping the tree is a hardship. If the Board decides to let you remove your
tree from your yard, then you must mitigate inch for inch. A 36
inch tree would require 18 two inch trees, which would cost about $2,700. However, the Board could require you to
replace it with 4 or 6 inch trees.
While the number of trees would be only 8 or 6, planting large trees can
be expensive. It could cost as much as
$15,000.
A member of the Town’s Planning Commission, Garret
Milliken, proposed that the Town change its tree ordinance to cover all trees
other than pines 18 inches in diameter or greater. Apparently, only one other Commissioner
supported this proposal and so it wasn’t included in the recommended changes
sent to Town Council on June 20th.
However, a majority of Town Council voted to amend the recommendation
from the Planning Commission to include the Milliken rule. It was further amended at the Town Council
meeting to exclude sweet gums and Chinese tallow trees.
It just so happens that we have a live oak in our front
yard that has a diameter of almost exactly 18 inches. We are very fond of the tree and have no
interest in cutting it down, but is it really grand?
We bought it at Hyams here on James Island. It was planted on Mother's day 17 years ago. Kathy looks a bit younger, and Will was
just finishing up first grade. He is
older now. He graduated from The Citadel
in 2011 and has just been promoted to First Lieutenant while serving in
Afghanistan. This tree is special to us and we have no
desire to cut it down. Here is another photo
of the youth of what might soon be a “grand tree.”
We have many trees in our yard, but we didn’t plant all of them. The previous owner
planted two river birches. Under current
regulations, they are not defined as grand trees, but if the ordinance is
changed to all trees other than pines, sweet gums and Chinese tallow trees,
then they will become "grand." While the
river birch is native to the Southeastern U.S., they live on fresh water river
banks, and our waterways are too salty.
However, landscapers find the striking bark and drooping foliage attractive. These attributes are most noticeable when
the tree is young, which is the focus of many landscape architects. In my
neighborhood, there are a good many quite large river birches that were much
smaller when they were planted years ago in our front yards.
Is our preference for the
live oak tree a hardship? Should Kathy
and I have to convince the Board of Zoning Appeals that we should be allowed to
remove one tree in our yard to allow another to thrive? Should we have to get permission from the BZA
to prune the oak tree’s branches to keep them off the roof? How much money should we have to pay in
mitigation?
The second river birch is almost 18 inches in
diameter. It too might suddenly become “grand.” The problem is that it shades the pecan
tree. The pecan tree is much smaller,
and at this rate, it will never be “grand” by any standard!
Where did this one come from? Kathy pulled it out of the trash pile at Cross Seed. It had break in the top that was so bad we were sure it would
die. It is now 17 years later. The fronds are a bit spikey, but we have
grown attached to it. Yet suppose we wanted to plant something
else? Is this a grand, historic
tree? Should it require a variance from the BZA? How much extra money should we have to pay?
Why is our yard covered with trees? It is because we have planted new trees and
nurtured the ones already here. What
was it like before?
And now look at the portion of James Island that makes up
the Town back in 1939.
In my opinion, that is the way it should be. I don’t believe that the Town should impose
new regulations, fees and fines on our homeowners to try to micromanage the
landscaping decisions they make for their own yards.
Harbor View Road Improvement Project Approved
The Town barely approved the Harbor View Road
Improvement project. The vote was 3 to
2, with Councilmen Blank and Mullinax joining me to allow the project to go
forward. Councilman Kernodle and
Councilwoman Berry voted to block the project.
The issue was confused because of a last minute
amendment proposed by Councilman Kernodle to amend the intergovernmental
agreement between the Town and Charleston County and the State of South Carolina. These agreements are standardized and imply
a point of no return for a municipality.
After Town Council votes to accept the project as it has been specified
at the time of the agreement, there is no way to force further changes.
Councilman Kernodle announced to the rest of Council
a proposed amendment the night before the meeting. In his email, he stated,
“As an elected official I believe that it is my duty
to support the beliefs of the voters who put me here, not necessarily my own
beliefs. The main way of me accessing what the people want is through these
correspondence. The majority (by far) of these communications lead me to the
conclusion that people want the DBH to be 18" and include all species; to
lower the planned turn lane on Harborview Road from 13' to 12'; to extend the
bike paths and sidewalks all the way to the JI connector; and to make sure that
the designated wildlife crossings have proper fencing.”
At the meeting, the amendment to the Municipal Agreement
he proposed was:
1. Reduce
the center lane from 13’ to 12’.
2. Extend
sidewalks and bicycle paths to the James Island Connector.
3. Create
wildlife safety protections from the Dr. Thomas Buxton, Jr. Bridge to Mikell
Drive.
4. James
Island Town Council is required to review and approve all plans for said
wildlife protection before they are implemented.
I had also received emails calling for these
changes. I also received a copy of the
email from Nix 526 asking their supporters to contact Council. Apparently 39 Nix 526 supporters responded
to the call. There were 19 emails from
Town residents and 20 from others (Yes, I checked each one.) I always keep in mind that there are nearly
9,000 registered voters in the Town of James Island.
The day of the meeting, our Town Administrator
contacted Charleston County about amending the agreement. They spoke to the South Carolina Department
of Transportation, and concluded that passing the agreement with an amendment
was the same thing as voting no. The
Town Administrator also checked with the South Carolina Municipal Association. They agreed that amending the agreement was
not acceptable. If the majority of
Council insisted that the current plan requires changes, then they need to vote
against the municipal agreement. If a
modified plan could be negotiated, then Council could later vote yes for the
modified plan.
I don’t favor making any of these changes conditions for the completion of the
Harbor View Road project.
In late 2010, the Town asked that the proposed center
lane on Harbor View Road be reduced from 15’ to 12’. I supported that change. Charleston County Roadwise asked SCDOT, which
said the standard is 15’. The Town hired
an engineering consultant for a second opinion, who said the same.
Fortunately, when Councilman Qualey began
working on the issue, SCDOT compromised.
The key difference was that Councilman Qualey put together a majority of County
Council to support modifications to a project that was in his district. The center lane was reduced from 15’ to
13’.
SCDOT didn’t just meet the Town’s initial demand
half way. They gave us more than half. There were 3 feet at issue, and they gave us
2.
It is hard to see the “no compromise” amendment as
anything other than a “poison pill.”
What that means is that whole point of making the demand, insisting on
the Town’s initial 12’ lane width or nothing, is that it will be unacceptable
to SCDOT. And that means the Harbor
View Road project would be blocked.
What about the condition of extending the sidewalks
and bike paths? I think extending the sidewalks and bicycle
paths to the James Island Connector is a great idea. I strongly support this, and have been
especially interested in this goal since the Town has become involved in the
Battery to Beach intergovernmental working group. Unfortunately, the causeways are very
narrow in places. Putting in bike lanes
and sidewalks would be very expensive, particularly due to the environmental
issues involved in filling salt marsh.
Demanding that Charleston County come up with several million dollars
more or else nothing, looks to be a poison pill aimed at blocking the project.
Charleston County Roadwise has expressed willingness
to include some wildlife protection.
They are willing to put up an official wildlife crossing sign and plan
the landscaping to encourage the animals to cross there. My interpretation is that these would be
limited to where the narrow lakes cross the road. While I am skeptical that animals will pay
much attention to crosswalks or landscaping, it isn’t very expensive. On the other hand, if the proposal is for
some kind of barrier from the bridge at James Island creek all the way to
Mikell drive, then such barriers are going through people’s front yards. I would strongly oppose any such plan. Again, it looks like a poison pill making
the entire project unfeasible.
Fortunately, the amendments were defeated. The vote was 3 to 2. Blank, Mullinax, and Woolsey opposed the
amendments. Kernodle and Berry voted in
favor. And then came the vote for the
Harbor View Road project, which was approved 3 to 2. Blank, Mullinax, and Woolsey voted in favor. Kernodle and Berry voted to block the project.
Five Myth's about Our "Tree Ordinance"
Five Myths about Our “Tree Ordinance”
Myth 1: The “grand tree” definition only imposes restrictions on developers and road projects.
False. Both individual homeowners, as well as large and small developers, are subject to heavy fines for cutting down or damaging any grand tree without a permit. “Damage” includes excessive pruning. A permit requires a $25 fee, approval by the Town’s Board of Zoning Appeals, and then planting new trees on an inch-by-inch basis in mitigation.
Myth 2: The Town only has a “temporary” or “emergency” tree ordinance.
False. The Town’s Zoning and Subdivision Regulation Ordinance was passed on an emergency basis at the first meeting of Town Council on August 2, 2012. However, a “permanent” ordinance passed second and final reading on October 18, 2012, after a public hearing and first reading on October 1, 2012. Since that time, there has been nothing “temporary” or “emergency” about any part of the Town’s Zoning and Subdivision regulations.
What does this have to do with trees? In Chapter 9, ”Development Standards,” there are regulations regarding trees, including grand trees. The Town’s current rules define a “grand tree” as any oak species with a diameter 24 inches or greater. This definition is unchanged from the Zoning and Subdivision Regulation Ordinance from the Town’s third incorporation, which was passed in early 2007. The current definition of grand tree has applied in the Town portions of James Island for most of the last six years.
Myth 3: The James Island Planning Commission had a consensus that the definition of grand trees should be changed to all trees other than pines with a diameter greater than or equal to 18 inches.
False. At the JI Planning Commission meeting on April 11, 2013, Commissioner Milliken proposed changing the Town’s definition of grand tree. Charleston County planning staff, which is helping the JI Planning Commission revise the Town’s Zoning and Subdivision Regulations Ordinance, changed the working draft of chapter 9, Development Standards, to define “grand trees,” as all trees other than pines with a diameter greater than or equal to 18 inches. When the Town Administrator, Hal Mason, reported this to me the next day, I asked “What was the vote?” He replied that the Commissioners didn’t vote, because they worked by consensus. I said that must mean it was unanimous.
Later that month, I ran into a Planning Commissioner at the Free James Island commemoration on April 24. I asked why he supported the change in the definition of grand tree. He said he didn’t. I was troubled that the working draft had been changed when there was no consensus. I told Councilman Blank about it. He said that another Planning Commissioner had called him about another issue, and he had asked about the change in the definition of grand tree. That Commissioner didn’t support the change either. Clearly, there was no consensus, but perhaps a narrow 3 to 2 majority in favor of the new rule. I called a third Commissioner who reported being neither in favor or opposed. So, it was 2 opposed, one neutral, and, I assumed, one other Commissioner who supported Milliken’s proposal for new and stricter tree regulation.
I assumed that since the Planning Commission works by consensus, and there had been no consensus, it would be a simple matter to return the draft back to the existing definition of grand tree at the next JI Planning Commission meeting on May 9th. However, Commissioner Milliken insisted that they vote to change the working draft. The vote was 4 to 1 against Milliken’s new regulation.
The next day, Commissioner Hardin emailed me to say she regretted her vote and wanted to back Commissioner Milliken. At the next meeting of the Planning Commission on June 13 and at the Town Council meeting on June 20, Commissioner Hardin said she supported changing the definition of grand tree.
Commissioners Bevon, Lohr, and Neal voted to keep the Town’s definition of grand tree unchanged for now. There was never a consensus on the Planning Commission in favor of stricter tree regulation.
Myth 4: Charleston County and the other area municipalities all define grand trees at smaller diameters than the Town of James Island.
False. Charleston County, the City of Charleston, and the City of North Charleston all define grand trees as being 24 inches or greater in diameter. The Town of Mount Pleasant does the same, but calls them “historic” trees. However, most municipalities have other categories of “protected trees” that are given less protection than “grand” trees. In Charleston County and the City of Charleston, only the rules for grand trees apply to individual homeowners.
Myth 5: The Town’s “tree ordinance” defines protected trees as all trees greater or equal than 8 inches in diameter.
False. The JI Planning Commission recommended that the Town change its Zoning and Subdivision Regulation Ordinance to define “protected tree” as all trees greater than or equal to 8 inches in diameter. The proposed regulation of these protected trees follows Charleston County and is very similar to the City of Charleston.
However, the existing Town ordinance, while based on the County ordinance from 2002, includes no separate category of “protected tree.” Apparently, when the existing ordinance was drafted in 2007, every mention of “protected tree” was replaced with “grand tree.” The current Town ordinance remains the same. There is currently no category of “protected tree,” in Town law. Only if the ordinance recommended by the Planning Commission receives a proper first and second reading will the Town regulate “protected trees,” along the lines of Charleston County and the City of Charleston.
(I helped spread this last “Myth. I was mistaken and apologize for my error. It is the Planning Commission’s recommendation that defines “protected trees” as all trees with a diameter greater than or equal to 8 inches. The existing Town ordinance does not yet include a category of “protected tree.”)
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