The state Land Use Board of Appeals (LUBA) has dismissed a petition from Brookings resident David Carlson, appealing the city council’s decision to cut down 35 trees in Azalea Park.

The issue drew scores of people to City Hall to speak out against the proposal this spring.

The dilemma began when a tree fell during a storm in 2015, and Coos-Curry Electric Cooperative expressed concern about the nearby high-voltage wires that run along Lundeen Road. When those trees were cut, most were found to have conk, a common disease in Douglas fir as they reach the end of their lifespans.

That discovery prompted city officials to examine trees throughout the park. An azalea expert was summoned to evaluate how the trees shade the flowers and possibly affect their health. An arborist came here to discuss the health of the trees and make recommendations: Fell, trim, prune; remove, save.

The rancor never died — including a petition circulated online in December 2016 that stopped the felling the day before it was to begin — but the council ultimately decided to remove those with conk, codominant trunks, split and asymmetrical tops, a history of limb failure and large dead branches.

In a 10-page response to Carlson’s petition asking for LUBA to appeal the decision, the agency said it lacks jurisdiction because the appeal was “untimely filed,” and the decision on appeal is not a land use decision.

LUBA’s jurisdiction is limited to appeals related to comprehensive plan provisions and land use regulations, the decision reads.

State law defines “land use regulation” as “any local government zoning ordinance, land division ordinance or similar general ordinance establishing standards for implementing a comprehensive plan.”

Carlson, however, argued the city should have applied Goal 5 of Brookings’ comprehensive plan, which is “to conserve open space and protect natural, scenic resource, cultural and historic areas while providing for the orderly growth and development of the city.”

“According to the petitioner,” the decision reads, “protection of natural resources means the city must budget funds to treat and maintain the trees in the park, rather than remove them.”

The city argued that goal doesn’t apply to tree removal in Azalea Park.

“Goal 5 policies are implemented through zoning and subdivision ordinances and… the petitioner has not identified any… that would govern the city’s decision whether to remove trees from a city park,” it reads further.

The Brookings’ Goal 5 “presumably” implements the state’s Goal 5, which requires local government to inventory significant natural resources sites and adopt a program to protect them.

Carlson did not contend the park or trees are inventoried as significant resources, or identify any program that protects them.

Carlson also argued the city was in violation of its open space zoning rules because, in opting out of cutting merely eight trees as suggested by an arborist and instead going with 35 trees to offset the cost of cutting them constitutes logging, which is not permitted in open space parcels.

“The city responds, and we agree, that the proposed removal of 35 trees in a city park does not constitute ‘logging,’” the decision reads, adding the comprehensive plan does not have regulations that apply to tree removal in parks.

“Significant impacts”

Occasionally, LUBA officials noted, the agency can review an appeal that isn’t a land-use decision, if it qualifies as one of significant impact. But the person filing the complaint has to prove the decision had significant effects on present or future land uses.

Carlson contended the removal of the trees will prevent present and future generations from enjoying them; the city said tree removal will have no impact on any land uses in the park.

“Azalea Park will continue to be a city park that offers a full range of park uses,” the decision reads. “The removal of 35 trees, … in the 33-acre park, does not constitute a ‘significant’ impact on present or future land uses.”

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