Gordon Quan was not at all pleased when he learned recently that a developer had illegally toppled a 60-year-old oak on city property at D'Amico and Waugh Drive. What really angered the councilmember, however, was that the alleged offender got off without so much as a fine.
" I am disappointed to learn of the City of Houston's inability to successfully enforce its own ordinance regarding the protection of its historic trees," he wrote in a July 2 letter to City Attorney Anthony Hall. Quan pushed the city to file a civil suit to recapture the value of the oak, estimated at more than $20,000.
Such an action would be a first for a city famous for its slash-and-pave approach to development, a mentality that has turned lush green spaces into roiling urban sprawl. Hundreds of Houston trees have been felled over the years without permission, and with impunity. But the case of the D'Amico oak has been different from the start.
The mighty oak fell victim to the blades of progress in August 2000, when the developer of a new shopping strip leveled it to make room for shrubs. KNA Partners took this drastic step despite the fact that the tree was located on a city right-of-way, making its removal a crime.
The KNA crew did not realize that an environmental group had documented the destruction with before-and-after photos. In addition, an outraged eyewitness was ready to testify against the developer. Thus armed, the city attempted to prosecute the man who allegedly gave the order to chop down the old tree. It was the first time Houston's legal department had pushed such a case into the courts since the ordinance protecting street trees went on the books in 1999.
Conservationists, however, were skeptical that this unprecedented step would yield significant results. Under state law, the penalties for destroying a tree on public property are modest. Cities with zoning, such as Dallas, can impose sanctions of up to $2,000. Houston, however, can levy a maximum fine of only $500. Furthermore, Houston's ordinance favors educating violators over punishing them.
Thus it came as no surprise that the June showdown in the court of Municipal Judge Hector Hernandez produced only a token punishment for Larry Romero, the consultant on the shopping center project who allegedly called for the toppling of the oak. Romero pleaded no contest. In return, he received deferred adjudication, meaning the case would be dismissed if he refrained from illegally felling a tree for six months.
Some hailed the case as a victory for enforcement. But Quan felt it set a feeble precedent.
"You just can't cut down a tree and get away with a slap on the wrist," he says. "I felt we needed to make a statement here." The most eloquent statement, he surmised, would be recapturing the cost of the tree -- something that could be achieved through civil litigation.
Katie Dorfman, a lawyer and the public policy manager for the conservation groups Scenic Houston and Trees for Houston, has long argued that a civil court is the appropriate venue for a case involving a destroyed tree. The burden of proof is less stringent than the "beyond a reasonable doubt" standard for a criminal matter, she says, and it is easier to sue a company.
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Quan's July letter to the city legal department prompted officials there to lay the groundwork for a civil suit in the D'Amico affair. Harlan Heilman, the chief of the claims and subrogation division, says first they must determine the value of the tree and pinpoint who is responsible for the tree's demise. Once they have completed those assessments, they will send the "responsible parties" a formal demand letter asking them to pay for the oak, Heilman says. Should they refuse to pay, the city may proceed with the civil action.
"Once we complete our preliminary phase of getting all the necessary support documents, then we'll proceed with the formal collection process," Heilman says.
As the city plants the seeds for another legal skirmish, Romero, who has maintained his innocence all along, promises a spirited fight.
"I can assure you, [a civil lawsuit] will be met with a much more vigorous defense," he says.