Thursday, July 8, 2021

Tree Mitigation Costs for Developers Slashed by City Staff/Design Review Commission

I knew that the tree mitigation fee ordinance would run into trouble when it was passed in early 2019, and boy, was I right. In the two cases discussed below, the mitigation fees for developers as determined by the ordinance were reduced, in one case by over $600,000. Scott Sanders mentioned it in the last BMA meeting, so I decided to investigate. The ordinance is in Sec. 22-107 c (1). It reads   

Should the city choose to require a payment in-lieu of tree dedication fee, the fee shall be calculated as follows: A (total DBH of trees removed) × B (the current market rate cost of a typical 3" DBH caliper tree, type and cost determined by the parks director (or designee) and/or economic and community development director (or designee), broken down by inch) = amount of in-lieu of tree dedication fee to be paid. (A cap to the payment in-lieu of tree dedication fee may be implemented, at the discretion of the design review commission, if the owner is proposing to retain trees of significant size and species and/or if the trees being removed are unhealthy or of a less significant species. In this case, an independent arborist report shall be required, at the applicant's expense.) The payment in-lieu of tree dedication fee shall be collected prior to approval by the board of mayor and aldermen of the development contract for the project.

Now let's take a look at the implementation of this, in two cases. 

Olde Field Green 

The Olde Field Green is a 20 acre development south of Forest Hill School, off Forest Hill Road. 

The Olde Field Green Tree Mediation dollar fee is discussed in the Design Review Commission meeting of August 27, 2019 

Link to meeting-- start at 2:44 

The Design Review Commission accepts the staff recommendation of tree mitigation cost of $24,750. Staff does state that the amount was reduced from the full amount in the ordinance, by recalculating the number based on the property being a field, rather than heavily forested.  The staff does not say the dollar amount of the calculation as per the ordinance (which, incidentally, as you can see above, does not specify that a forest can be calculated as a field.) Please note that in this case, this was an arbitrary decision by the staff-- the staff seemed to ignore the requirements of the ordinance. The ordinance does give the Design Review Commission authority to reduce the amount, given certain conditions, but it says nothing about the staff arbitrarily reducing the amount, and, as you can see, the conditions of the ordinance for reducing the amount of the fee were not met.

The original figure per the ordinance for this development came up at another meeting, the one discussing Neshoba Farms, on January 26, 2021. At that meeting, staff was asked for the original number of Old Field Green as calculated by the Ordinance. After checking, staff said that the dollar mitigation produced by the ordinance would have been $654,000. The Commission members noted that the final figure charged was 3.8% of the amount in the ordinance!

Neshoba Farms 

Neshoba Farms is the 6.5 acre PUD on Neshoba Road west of Riverdale.  
The tree mitigation fee recommended by staff was calculated per the ordinance--$74,000.

At the January 26, 2021 meeting, the developer requested that the tree mitigation fee computed by the staff of $74,000 be waived. This was based on worthy trees being removed being replaced by newly planted trees. To the developer, a worthy tree is a hardwood tree, and an unworthy tree is a non-hardwood tree such as pine tree or crape myrtle.  There was a considerable amount of discussion on this topic by the Design Review Commission. 

When the staff was asked about the Ordinance-computed amount for Olde Field Green development, we learned that it was $654,000. The Commission decided to keep the precedent set by that development, and slashed the staff-recommended $74,000 tree mitigation fee to $4,500.   

Link to Entire Discussion 38.15 

Link to Justification for the Reduction 1:22.28   


Obviously staff thought that the $654,000 mitigation fee for Olde Field Green, as computed by the ordinance, was excessive, and would have kept the land from being developed as it should have done. The staff, rather arbitrarily, and against the code, recomputed the figure as if it had been fields, and submitted that figure--$24,750 to the Design Review Commission.

The staff did not believe that the $75,000 fee computed per the ordinance for the Neshoba farms field was excessive, so that figure was submitted to the Design Review Commission. Keep in mind that the Neshoba Farms property is one-third the size of the Olde Field Green Property, yet the staff submitted a tree mitigation fee three times the size for that property than for Olde Field Green. The Design Review Commission felt that a precedent had been set by the Old Field Green development, and drastically reduced the ordinance amount. Because the Old Field Green $654,000 mitigation fee as determined by the ordinance had been reduced to $24,750, the decision was made to reduce the Neshoba Farms fee from $75.000 to $4.500.

However, if any precedent was set by Olde Field Green, it was that all tracts of land should be considered as farmland rather than forests. Had that precedent been followed, then the tree mitigation amount for Neshoba Farms should have been roughly one-third of the amount of Olde Field Green, because the size of the Neshoba Farms property is about one-third of the size of Olde Field Green. That figure would have been about $8,000, rather than $4,500.   

Conclusion: The methodology of computing the Olde Field Green tree mitigation fee was not allowed by the Ordinance, and it now stands as the precedent for other fee mitigation fee cases that come before the Design Review Board. 


The Design Review Commission and the Staff need help, in the form of a new tree mitigation fee ordinance.  The Design Review Commission is using Olde Field Green as a precedent, yet that precedent did not follow the ordinance! The amounts per tree are fine, but an established minimum amount per acre should be built into the code. The developer would be charged the lesser of the amount as determined by the ordinance, or the minimum amount per acre.  There could continue to be a measure for a builder to reduce the fee below this, with an arborist report.  If I had my druthers, the minimum per acre would be set above the amount that would be above the amount set by assuming the land was a field. After all the purpose of the ordinance is to preserve trees. Also developers here, unlike many places pay no impact fees. Funds into this go into a special tree fund that is used for the care and planting of trees on public land.  

Addendum: The Duke property development north of Forest Hill School has also had a tree ordinance passed, on May 25, but it was decided in Executive Session of the Design Review Commission, and it was passed as part of the consent agenda. It would take a a couple of weeks to get information about that through open records requests, and I thought this issue needs attention now.

Saturday, February 20, 2021

Actual Return to Transparency proposed for BMA meetings


In the future, will all aldermen once again be allowed to speak on subjects important to the City at BMA meetings?  That depends on whether a proposal by Scott Sanders is passed on Monday.

At the Monday, Feb. 22 BMA meeting, Alderman Sanders is proposing a return to Robert's Rules of Order, and the Consent Agenda, rather than the so-called Preliminary Agenda. Robert's Rules of Order is the gold standard of parliamentary procedure that virtually every municipality in the country adheres to, other than Germantown.

History: April 6, 2019 was a day that will live in infamy in the history of our City. That was the day that the BMA ditched Robert's Rules of order and silenced minority voices of the aldermen. The "consent agenda" was abandoned, in favor of a "preliminary agenda".  In a consent agenda, a number of different items can be passed at the same time, with no discussion, as long as all aldermen agree to it. This is a useful time-saving measure.  In the made-up term "preliminary agenda", only three of the five aldermen have to agree for something that can be passed with absolutely no discussion.  For more information, see this blog post:  

City Administration Wants Sanitized BMA Meetings 

A Call to Action: 
Please consider sending in your thoughts on the subject to "Citizens To be Heard." 

From the City Website:  

The Board of Mayor and Aldermen encourage active participation and engagement with governing by making available Citizens to be Heard as part of the meeting agenda. To participate in Citizens to be Heard, please send your submittals, 500 words or less, to and include your name, address and phone number. All emails submitted between Wednesday at 12 pm before the meeting and 12 pm the day of the meeting will be delivered to the Board prior to the 6 pm Board meeting.  The CTBH emails will be included in the agenda packet and available for the public to view at 6 p.m.

Here were my thoughts on the subject, shared with the BMA in Citizen's to Be Heard later on that year-- 

This Board’s new rule regarding the consent agenda is an arrow aimed at the heart of transparency.

The change surrounding the renamed Consent Agenda, now called “Preliminary Agenda”, is shocking in its abandonment of good governance. In the preliminary Agenda, items can be passed as a group with zero discussion. Items can now be removed from the preliminary agenda only by the vote of three aldermen. The name change became necessary because the term consent” is an official term used by Robert’s Rules of Order. Robert’s Rules is the centuries old gold standard of parliamentary procedure, the time tested way of balancing the need for orderly meetings while respecting the rights of minority members to be heard. In a jaw-dropping move, the City has abandoned Robert’s Rules of Order. An item’s inclusion in a consent agenda requires unanimous approval using the time-tested Robert’s rules.

And, for your information, the word preliminary means an event preceding something fuller or more important. Just when do we get to the something that is fuller and more important? It actually sounds like the vote itself is preliminar

The only conclusion that I can draw is that you fear the citizens’ hearing honest debate and discussion. Only in the short, untelevised Executive session is there a small hint of discussion allowed about the preliminary agenda.