City told homeowners to foot bill to remove tree far behind property line, but covered cost of removing tree standing mostly on investor-owned property

FOR IMMEDIATE RELEASE

September 26, 2024

The City of Portland ordered the owners of a Southwest Portland home to pay to cut down a tree 30 feet behind their property line in an unimproved section of the public right-of-way. At the same time, it readily covered the removal costs of an ancient elm tree that stood mostly on private property owned by a real estate investment company.

"In the case of these homeowners, the City is enforcing ambiguous rules arbitrarily, unfairly and in a way City Council explicitly rejected in 2017," Deputy Ombudsman Andy Stevens said.

In April 2024, the Ombudsman's Office received a complaint from the owners of a Southwest Portland home. The City had ordered them to remove a tree approximately 30 feet behind their property that had damaged a sidewalk, posing a safety hazard. The cost to remove the tree was estimated at $5,000. The tree is situated in an unpaved portion of the public right-of-way. The unpaved section, which is approximately 30 feet wide and overgrown with vegetation, is situated between the property line and a City-maintained street. The property owners cannot directly access the area from their property, nor are they likely able to insure against liability that may be caused by conditions there.

In response to the complaint, the Office reviewed City Code provisions addressing adjacent property owner responsibilities for trees in unimproved or partially improved rights-of-way and found them to be poorly written and confusing. The Office noted that Portland Parks and Recreation's Urban Forestry Division had handled similar situations inconsistently and without clear guidelines, accepting responsibility for removal costs in several comparable cases.

The Office also considered Urban Forestry's position to hold the homeowners responsible for the tree to be at odds with City Council's direction. In 2017, following public outcry, Council declined to adopt a proposed amendment to City Code that would have added language expressly making property owners responsible for maintaining trees in any "unimproved or partially improved rights-of-way" adjacent to their property. At the time, Mayor Wheeler took the position that it was "premature" for Council to make the proposed change to Code. Commissioners expressed a desire for more study and discussion of the proposed amendments. The amendments never went back to Council.

Given the ambiguity in Code and Council's refusal to adopt language that would have clearly imposed financial responsibility on homeowners, the Office recommended in July 2024 that Urban Forestry cover the cost of removing the tree. Urban Forestry rejected the recommendation.

In contrast, Urban Forestry readily took full financial responsibility to remove the City's oldest Heritage Tree behind the Portland Art Museum in August 2024. Heritage Trees are formally recognized by Council for their unique size, age, historical or horticultural significance. The American Elm Heritage Tree had long been regarded as a private tree due to its location on private property and was maintained by the property owner, Schnitzer Properties. Urban Forestry determined that a mere six inches of the tree's more than 48-inch base had grown into the right-of-way and assumed full financial responsibility for its removal. Tree experts estimate that removing a tree of that size, species, and location would cost approximately $15,000. The Ombudsman's Office found it unfair that Urban Forestry refusedto cover a much less expensive tree removal for ordinary homeowners when the tree is many feet behind their property, Code is unclear on whether they should be responsible, and the legislative history does not support this position.

In August 2024, Deputy Ombudsman Stevens recommended to Deputy City Administrator Sonia Schmanski that Urban Forestry cover the tree removal costs for the Southwest Portland homeowners, pointing out the City's contrasting approach to the Heritage Tree. Schmanski did not accept the recommendation. If the City had accepted the Office's recommendation, Urban Forestry would have addressed the public safety hazard caused by the tree rather than putting this financial burden on the homeowners.

Contact

Andy Stevens, Deputy Ombudsman