U.S. Bank’s April 11 cutting of several historical Japanese Zelkova trees in downtown has spurred a protest and an arrest, and suggestions for reviews of city procedures.

The process that led to the cutting of the trees began in 2010, when the City’s Public Works staff recommended that the five trees to the north of the bank at 302 State Street be removed prior to a repaving project.  City staff concern was that the trees caused extensive damage to the sidewalks and streets.

However, Salem’s Shade Tree Committee – a group of Parks and Recreation Advisory Board members and citizen volunteers – recommended then that cutting be postponed, and in summer 2012, the trees’ roots were simply pruned by the City to relieve their impacts on the sidewalk.

Photo by Will Bragg

U.S. Bank still wanted the Japanese Zelkovas taken out and asked the city twice in 2012 to allow this.  The main reason, says Ryan Allbritton, regional president of the bank, was the tripping hazard the trees posed by buckling sidewalks.  “The biggest issue is our client’s safety, our customers and citizens walking on the sidewalk.”

In fact Edward Fisher, risk manager for the City of Salem, reports that there has been one complaint of tripping and falling on the sidewalk outside the U.S. Bank branch since 2007.  Others might have occurred, but not been reported.  The city takes such concerns seriously, Fisher says.  “Slipping and falling, especially with an elderly person, can take that individual quickly from an independent life into assisted living.  It can be quite serious.”

The two 2012 requests by U.S. Bank were considered by the Shade Tree Advisory Committee, which balanced pro-cut arguments (that trees obscured the sight lines to a historic building and led to cracked sidewalks), with preservation arguments (considering the value of mature trees and the wishes of 22 downtown businesspeople to retain them).  It elected, both times, to keep the Zelkovas where they were.

But City law says that recommendations of the Shade Tree Committee, “shall be considered by, but shall not be binding upon” the person who makes the final decision, which is Public Works Director for the City of Salem, Peter Fernandez.  In March 2013, Fernandez authorized the trees’ removal.

He was reluctant to do this, he says.  “I usually do not change the committee’s recommendation, but in this case the code clearly gave the property owner the right to remove the trees.”  His decision was the result of a careful reading of Chapter 86 of the Salem Revised Codes (SRC), which are the rules that govern the city.

The specific points that played into Fernandez’ decision are found in SRC 86.130, he says, especially that, “Trees shall not be planted in a location which would obscure significant architectural features,” “Only trees of a columnar nature or open limb structure… may be planted”, and “Tree branches shall be at least seven feet from any building.”

“In the end,” Fernandez reports, “this was a matter of law and not of opinion.”

Protestors outside the bank on April 9 were not convinced.  They maintained that the SRC’s language (“trees shall not be planted…”) refers to vegetation that has not yet been inserted into the ground.  Applying these rules to existing trees, instead of those yet to be planted, one opponent said, makes no sense.

Woody Dukes, a certified arborist who joined the City of Salem tree crew in 1993, told how he’d pruned the trees above protestor’s heads many times.  It would be a simple matter, he added, for further pruning “to get the required clearance from the building.”  He encouraged passersby to sign petitions to ask Salem’s City Council to stop the removal of the trees and to create an appeals process for future tree removal permits.

Also protesting was Claudia Howells, who expressed concern about how the Shade Tree Committee’s recommendations were overruled “without further public input.”  Howells said, if she wanted the trees in front of her house taken down “I’d have a much more difficult time.”  Her reference was to the sense of some others outside the bank, that Allbritton’s stature in the community influenced the final decision.
“The City of Salem treats all citizens and business owners with respect,” Fernandez says. “All are provided the due process that they are entitled to.  The decision to allow removal of the trees was based on the provisions of SRC Chapter 86, not on who had made the request.”

Public Works receives frequent requests for tree removal, and each is decided on its merits.   When he had to render a final decision on the matter, Fernandez says, he “realized that the bank, in fact, had a legal right to remove the trees.”

Understanding that his decision would be controversial, and because of the long history of the issue, Fernandez wrote a detailed account of the issue and a policy analysis, which all members of the Shade Tree Committee and City Council received.*

Speaking to a group on April 13, Ward 1 Councilor Chuck Bennett said Fernandez believed he had only one true option.  He’d spoken with Fernandez two nights prior to the scheduled cutting, and related that Fernandez “thought it still possible… that US Bank was rethinking [its] decision [to cut.]”

The matter appeared open until a half hour before the machinery arrived the afternoon of April 11, when Allbritton told Salem Weekly that he had the authority to stop the cutting but, “at this point in the process, no, that’s not going to happen.”

At six p.m., three of the five Japanese Zelkovas were cut down by a tree service. Two protestors and five policemen were present.  The police remained all the hours the procedure lasted.

Many describe themselves as jarred by what Bennett calls, “the sort of suddenness of the decision, the suddenness of the tree’s removal.”  Bennett says the “situation with the trees on State” point to a flaw in city code.  “Right now, if my understanding is correct… none of the trees downtown are in a particularly safe situation if the adjacent owner wants to see their removal.”  He adds, “We don’t have the current criteria to protect these trees, and that’s got me worried.”

The day following the cutting, David Rosales, owner of La Capitale and Andaluz restaurants, entered the bank to protest.  Observers say he knocked over a table.  Police were called; Rosales was arrested.  When we contacted his father, Pedro Rosales, the elder Rosales wished to go on record.

Owner of La Margarita Restaurant in downtown Salem for 28 years, Rosales told us;  “My family has three restaurants downtown.  We love downtown, which is why we concentrate all our energy in it.  Instead of going backwards, our family wants downtown to move forward.”

Rosales described his actions on la capitale’s facebook page on April 15: “As a semi-public figure I took a stand on something I believe in: Salem and downtown.”

Since the incident, he wrote, “we have seen overwhelming support from our community as well as an increase in dialogue regarding the city process… and the role outside companies have in deciding what our Salem looks like.”

The two remaining Japanese Zelkovas have birds’ nests in their branches.  These two will be cut down once the chicks have fledged.

At least two members of the City Council have voiced an interest in revamping the code.  Bennett suggests the public should, “express concern over what happened, and the expectation that there be a code in place that would give a better opportunity for public input in the removal of major street trees.”

Kasia Quillinan is a former Salem City Councilmember, a member of the Shade Tree Committee and serves on the Parks and Recreation Board.  “Given what occurred,” she says, “we need to look at the process more carefully, and I think City Council will do that.  We need to look at code provisions more carefully.  Currently most of the control is in the hands of the owners of historic buildings; we need to review that.”

all agendas, minutes and reference material is available at the Parking Task Force webpage;