The Hardship Variance for a 34-Inch White Oak
Riverton's tree ordinance protects every tree 8 inches DBH or larger on private property and requires a removal permit, a 2:1 mitigation ratio (caliper inches planted per inch removed), and a variance only upon written findings of "unnecessary hardship." A developer proposes a 60-unit affordable housing project on 3.1 acres and applies to remove 14 protected trees, including a 34-inch white oak and three 20-inch maples. The site plan shows 58 of 60 units still fit if the oak and the access drive are reconfigured, at an estimated added cost of $190,000. The developer's arborist reports 30% canopy dieback and a basal wound on the oak; the city's consulting arborist measures 15% dieback and calls the wound compartmentalized. The planning commission hearing is in 10 days. The mayor has publicly endorsed the project, a neighborhood group has retained counsel, and the tree board must send a written recommendation.
1. What findings must the tree board make on the hardship variance for the oak, and what should the recommendation be?
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Work through the ordinance criteria in order rather than jumping to the tree's condition.
- Is the hardship peculiar to this property? Nothing in the record suggests the site is uniquely constrained; the constraint is the applicant's chosen layout.
- Is it self-created? Yes, if a 58-unit layout works. A self-created hardship is normally disqualifying.
- Does denial deprive the owner of reasonable economic use? No. The test is reasonable use, not maximum profit. Roughly $190,000 spread over 60 units is about $3,200 per unit - a cost differential, not a taking.
- Is the tree a hazard or incapable of retention? This is where the arborists disagree. A 15% versus 30% dieback estimate is a real conflict, but dieback percentage alone does not meet a hazard standard or justify removal. The wound is described as compartmentalized.
Recommendation: deny the variance for the oak, approve removal only of trees inside the unavoidable building and utility footprint, and require an independent Level 3 assessment plus a preservation plan if the applicant wants to keep arguing hazard. Do not let the affordable-housing framing substitute for the ordinance's findings - the board can support the project and still deny this variance, and should say so explicitly.
2. If the commission nonetheless approves removal of the oak, how should mitigation be calculated and structured?
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The 2:1 ratio yields 68 caliper inches, but that is a legal floor, not ecological compensation. A 34-inch oak provides canopy volume and ecosystem services that 68 inches of 2-inch nursery stock will not approach for decades, so the board should say so in its findings and use the ratio as a minimum.
Structure mitigation in a hierarchy:
- On site first: large-caliper or boxed material where soil volume and rooting space can actually support it - not 4-foot tree pits.
- Off site second: plant in a defined priority area such as a heat-vulnerable block or a park with low canopy, with a recorded planting plan.
- Cash in lieu last: base it on an appraised value (trunk formula), not on nursery cost, and hold it in a dedicated tree fund.
Attach enforceable conditions: a performance bond or escrow, 80% survival measured at three years, a maintenance and irrigation commitment, and replacement of failures. Require an inspection schedule and a written as-built planting plan. The board should also require that the reconfiguration be built as shown so the approved removal does not expand later.
3. What process steps make the decision defensible on appeal and preserve public trust?
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The record is the defense. Before the hearing:
- Obtain and disclose the independent arborist report to both sides; do not rely on a report the other party has not seen.
- Ensure board members with any financial or personal interest recuse, and document it.
- Confirm that no member has had ex parte contact with the mayor's office or the developer; the mayor's public statement does not bind the board and should not be treated as direction.
At the hearing:
- Take testimony on the record, apply each ordinance criterion explicitly, and adopt written findings of fact tied to evidence.
- Address the dieback conflict directly rather than ignoring it; explain why the hazard standard was or was not met.
- Show consistency with prior variance decisions - an unexplained departure is the easiest thing to overturn.
After the hearing:
- Issue the decision with conditions, inspection schedule, bond amount, and appeal rights.
- Keep staff, board, and commission roles separate; the board recommends, the commission decides.
A well-reasoned denial with findings usually survives; a thin approval issued under political pressure is the vulnerable one.