Shady Deal

Houston's first tree protection prosecution proves to be all bark and no bite

It was a real massacre, say the folks at Stages Repertory Theatre, made all the worse because they had thought the granddaddy of an oak on the corner of D'Amico and Waugh was going to survive. The felling occurred last summer, just one day after a construction crew had flattened the surrounding land in preparation for a new shopping strip. When that first day's work was complete, the stately post oak with its long, twisty branches remained standing on the corner on a city right-of-way.

"It was the one you could put in front of a Southern mansion and call it home," says Stages box office worker Ken Williamson, who had grown fond of the tree outside the window.

The "bulldozer" appeared around 6 p.m. on August 17, when Williamson and his co-workers were least expecting it.

Dorfman, with Wyatt (right), believes civil penalties would be more effective against tree cutters.
Deron Neblett
Dorfman, with Wyatt (right), believes civil penalties would be more effective against tree cutters.

"We were all in shock," says Cary Winscott, recalling how they went outside to watch the destruction. The heavy machinery advanced repeatedly on the tree, knocking one thick branch after the other off the main body. The coup de grâce came when it toppled the remains with a loud crack.

"It was like seeing someone [get] hacked to death," says Winscott, a young, sandy-haired fellow with John Lennon-style glasses. "I think it's absolutely criminal and heartbreaking."

Cutting down certain kinds of trees without permission is indeed illegal along a public right-of-way, but that hasn't stopped people from unlawfully downing hundreds. Since the ordinance protecting street trees went on the books in 1999, city officials can recall pursuing charges in only one instance -- the one involving the D'Amico oak.

Conservationists hoped that case, which went before a municipal court earlier this month, would establish a sobering precedent for would-be tree killers. For years, they struggled to get city leaders to recognize the importance of trees. Oaks, elms, hickories and a host of others not only make Houston more beautiful, says Katie Dorfman of Trees for Houston and Scenic Houston, they also rid the air of pollutants and reduce storm-water runoff.

Indeed, a report co-sponsored by the U.S. Department of Agriculture Forest Service studied changes in the Houston landscape between 1972 and 1999. The study found that the loss of trees has led to huge increases in storm-water flow during heavy showers. Those same trees also would have removed more than 15 million pounds of sulfur dioxide, carbon monoxide, ozone and particulate matter from the atmosphere annually, the report concluded.

"Trees are one of the only natural assets we've got," Dorfman says.

Over the years, Houston has had various measures designed to protect the tree population. But the city's pro-development proclivities and lack of zoning have made for statutes that lack the teeth of those in Dallas, San Antonio and Austin, says City Councilmember Annise Parker.

"The problem is our ordinances are relatively weak," Parker says.

Going after violators is often complicated by a lack of evidence linking a particular person to a specific crime, officials say. The D'Amico case was different because they had solid evidence. Carla Wyatt, the coordinator of a nonprofit conservation program called TreeScape, had received an ominous tip and snapped a picture of the tree. When she returned the next day, the oak was gone. In addition to her dramatic before-and-after snapshots, there was a witness from the theater.

Officials soon fingered Larry Romero, a lead consultant for the shopping center that was being developed by Houston's KNA Partners. Victor Cordova, Houston's chief forester, cited Romero for a Class C misdemeanor. Romero pleaded not guilty, setting the stage for a legal showdown before Municipal Judge Hector Hernandez.

"We had all the ducks in a row," says Wyatt, whose TreeScape program includes The Park People, Trees for Houston and Scenic Houston. She felt certain that they had a slam dunk.

Tree preservationists hoped the judge would allow a jury trial, and that Romero would have to replace or pay for the tree. Dorfman says it was valued between $20,000 and $30,000. They believed they could meet the tough standard of proving beyond a reasonable doubt that Romero was the man who gave the order to fell the old oak. Both Wyatt and Cordova alleged that he had admitted as much to them before he got hit with the citation. Romero staunchly denies that.

"I didn't give any orders to anyone," he says, adding that he lacked the authority to do so.

Prosecutors also had no eyewitnesses to testify that Romero gave the order -- the "weak link" in the case, says assistant city attorney Michael Cropper. Besides, the tree ordinance recommends offering offenders the option of deferred adjudication. In exchange for a no contest plea, Romero got the deferred disposition, meaning that if he doesn't illegally cut down a tree for six months, the case will be dismissed.

Wyatt and Dorfman were stunned that he got off without paying a fine or replacing a tree that had graced the neighborhood for more than 60 years.

"If this case can't be effectively prosecuted, I don't foresee any case being prosecuted," Dorfman says. She says that such cases should be handled in civil court because the burden of proof there is less stringent than in criminal cases. In addition, a civil action would allow the city to circumvent a current $500 cap on penalties and recover the full value of a tree.

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