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Divided (and cranky) Vienna Town Council OKs tree-canopy hearing

Dissenters question the rush to move forward on contentious issue

With one additional vote that hadn’t been there a week earlier, the Vienna Town Council narrowly agreed Oct. 2 to hold an 23  public hearing on a proposed tree-canopy ordinance.

The Council on Sept. 25 could not agree on holding the hearing. The matter failed on a 3-3 tie vote, with members Charles Anderson, Steve Potter and Ray Brill Jr. voting in the affirmative  and Nisha Patel, Ed Somers and Mayor Linda Colbert casting nay votes.

The difference was Council member Howard Springsteen, who had been vacationing in France during that meeting, but was back in time for the Oct. 2 decision, for which he voted “aye.”

The Council differed over elements of two proposed tree-canopy ordinances:

• Option 1, created by town resident and Pedestrian Advisory Commission member Brian Land, would consolidate all tree-canopy-and-preservation components into one chapter of the town code.

This option would delete existing tree-replacement standards from within two town code chapters and replace them in the new chapter with tree-preservation standards. It also would eliminate the existing town-code definition of the Tree Board and replace it within the new chapter with a Tree Commission and an updated definition.

This option would institute a tree bond and 12-month inspection provision, and assign the Vienna Department of Parks and Recreation sole responsibility for implementing the new town-code chapter, including the development standards.

• Option 2, drafted by Town Attorney Steven Briglia to establish the same goals in the town code, would update Vienna’s tree standards and leave them in the code where developers and town regulatory staff could find them most easily. This option also would update and amend the description of the Tree Board and include the reporting responsibility within the amended Tree Board description.

The Vienna Department of Planning and Zoning, in consultation with public-works and parks-and-recreation staff, currently enforces the town’s existing development standards regarding trees, officials said.

Briglia recommended that the town retain that arrangement because the Department of Planning and Zoning, via its zoning administrator, has final decision and enforcement authority for all development standards, but relies on technical expertise from those other two departments. State code stipulates that violations of the town’s tree regulations be enforced the same as zoning violations.

Council member Anderson offered a motion that elevated Option 2 as the primary document for consideration, with Option 1’s form, content and structure being considered for possible inclusion.

Somers opposed this, saying he didn’t “like putting things before the public that I’m not convinced are legally defensible.”

Colbert said it seemed “irresponsible” to include Option 1 in the motion.

Council member Potter said town residents have indicated the tree-canopy issue is important to them.

“We’re trying to send this on and it’s being stonewalled,” he said. “That is not representing the needs of this community, to say to them that we’re not going to allow discussion of this, here’s the answer, make up the question. That’s not the democratic way of doing it. I think this is shameful.”

Council member Patel desired a legal debriefing at a work session before voting on the proposed tree regulations.

“I’m feeling very rushed,” she said. “I’m not really quite understanding what the warp speed is with this particular item.”

There appeared to be a push for passing the new rules before Council members’ terms end, Patel said, adding that this was not responsible governance.

“I think what we need to do is properly vet this out,” she said.

Somers proposed to strike language from Anderson’s motion regarding consideration of Option 1 and instead refer only to the town attorney’s Option 2, which includes recommendations from Christina Caplan, chair of the town’s Conservation and Sustainability Commission, regarding an amended Tree Board.

Potter opposed this, saying much provided information would not be discussed.

“If there is something that is missing in the town attorney’s [proposed ordinance] that makes sense, is legal and is being used in other places, why would we not want to look at that?” he asked.

Somers’ motion failed, with Anderson, Brill, Potter and Springsteen voting nay.

The Council then approved Anderson’s motion, with those same four members voting in the affirmative.

Following the Oct. 23 public hearing, the Council will be slated to adopt the tree ordinance on Nov. 13 or perhaps Dec. 4.

Before the Council wrangled over the proposed  ordinances at the Oct. 2 meeting, Somers questioned how the item ended up on the Council’s agenda again so quickly after the failed tie vote.

“The town manager added it back to the agenda because a single Council member asked for him to?” Somers said. “Without a vote to renew or a vote to reconsider, anything that fails in a meeting can be just brought back up based on the single action request of a Council member?”

Mayor Colbert said she had researched the matter and found that “renewing a motion that has failed is appropriate.”

Town Manager Mercury Payton said  town code required him to add an item to the agenda if even one Council member asked for it. The person chairing the meeting then would decide whether the request was proper or not, he said.

Somers demurred, saying this “doesn’t seem to be a good procedure.”

“We had a vote and I think it should be left to us to decide if a Council member wants to make a motion to renew or motion to reconsider,” he said.

The Council can vote on whether to honor the member’s request to have a matter put back on the agenda, Briglia said.

“Our town code talks about a safety valve,” he said. “If you all want to reconsider something, even if it’s out of order, you can overrule the chair by a simple majority.”

Payton subsequently clarified that “three or four” Council members had asked that the item be put back on the agenda, but a request from only one was enough to initiate such an action.

Anderson said Payton’s not disclosing that more than one member had pressed for the item’s reconsideration was misleading and had led to wasted effort.

“We ended up going down a rabbit hole on whether it’s good or bad for one Council member to be able to do this and that whole discussion was rendered moot by the response we just heard,” he said.