Rebekah Hall
AGAINST TREE ORDINANCE: Kevin Crass, a Little Rock attorney, speaks against the Heights Neighborhood Association’s proposed overlay district ordinance that would require homeowners in the neighborhood to maintain or replant trees demolished during construction.

At a Little Rock Planning Commission meeting on Thursday afternoon, commissioners unanimously voted to recommend the city board of directors approve an ordinance presented by the Heights Neighborhood Association that would create a design overlay district in the Heights.

The Heights Landscape Design Overlay District ordinance applies to single-family homeowners who apply for a construction or demolition permit, including new construction or additions larger than 600 square feet, who intend to remove one or more trees from their yards. It would require these homeowners to plant or keep an existing 2.5-inches or greater caliper tree for every 40 feet of *street fronting property before they can receive an occupancy permit.

The ordinance is not retroactive, so it does not apply to people with current construction or demolition permits, and it also doesn’t apply to individuals with office, multi-family or conditional use permits, such as those for country clubs and churches.

There are currently nine overlay districts in Little Rock, including the Midtown, River Market, Central High, Highway 10, Presidential Park and Granite Mountain districts, which all also have tree requirements.

Natalie Capps, a member of the Heights Neighborhood Association, said the goal of the ordinance is to prevent further deterioration of the historic neighborhood’s tree canopy. She said the ordinance does not seek to stop development, just the effects that development has had in the neighborhood, such as the clear-cutting of lots.

“The ordinance does not restrict developers, tree removal, home design or architecture, and hopefully with the tight way the design was written, it will address the primary problem of developers in the neighborhood,” Capps said. “Development is not the problem. The problem is the removal of trees as a result of development. We like developers, but we want the neighborhood to have its original character and charm.”

The ordinance also specifies the species of trees approved to be replanted in the neighborhood, and it allows for homeowners to “apply” to plant a species of tree not listed in the ordinance.

At Thursday’s meeting, many Heights residents and members of the neighborhood association showed up to support the ordinance. Capps shared a presentation with the commission detailing damage done to the tree canopy in the neighborhood, including the effects tree removal has had on drainage and flooding in the area. The presentation also included a copy of the petition created in support of the ordinance. As of noon on Thursday, she said 361 people had signed it.

Capps also explained that the neighborhood association began working on this ordinance in July 2017 with Brian Minyard, a planner with the city planning commission, “to ensure the policy was feasible.” Many changes were made to the original parameters of the ordinance after residents shared feedback on its requirements, according to Capps, including the exception to the ordinance made for individuals with office, multi-family or conditional use permits.

While Capps was joined at the meeting by many supporters of the ordinance, those in opposition to it also voiced their concerns. Kevin Crass, an attorney with Friday, Eldredge and Clark, stepped up to the podium to ask commissioners not to support the ordinance.

Crass, who lives in the Heights, said he also represented other neighborhood residents opposed to the overlay district, including Joe Ford, the former CEO of Alltel, who Crass said is in the process of remodeling a home on Jackson Street.

“Someone asked me today [if this] was going to be contentious, and I hope not, because we’re talking about friends here, we’re talking about neighbors here,” Crass said. “And we’re talking about people who have really the same goal. Nobody is in here saying we want to eliminate the tree canopy of the Heights district, and nobody is saying we want to destroy the character of the Heights neighborhood. But what we do disagree about is the severity of the problem, despite the pictures of probably less than 15 [or] 20 houses, and we disagree about the process by which we’re here, and we disagree with the solution.”

Crass said that though the neighborhood association had worked with Ward 3 City Director Kathy Webb and Minyard to develop the ordinance, it “never gave copies of the proposed ordinance to either the members of the Association or the residents of the neighborhood who are not members.”

He said Heights residents who do not attend neighborhood association meetings, receive association emails or those who are not members of the association never saw a copy of the ordinance until a notice from the city was sent out with a link to the ordinance, which Crass said “frankly looked like junk mail,” so he overlooked it.

“This idea that the Heights Neighborhood Association has included all of us in this is just flat out false,” Crass said.

Crass said he thinks the ordinance should require more research and input from “experts,” both about the types of trees approved for the overlay district and on the potential impact of such a district on the future of the neighborhood.

“If this is such a great idea, why would we just apply it to the Heights?” Crass said, explaining he posed this question to board members at a recent neighborhood association meeting about the ordinance. “Why wouldn’t we apply it to the city? And the answer I got at the meeting was, ‘Well, the trees that we’re requiring be planted are too expensive for people that don’t live in the Heights.’ ”

Many supporters then audibly spoke up in the audience, saying this was not true.

“I don’t believe that,” Crass said. “What they said to me was they don’t want a little sapling from Walmart to be able to satisfy the requirement. That’s exactly [a neighborhood association member’s] words.”

Since the ordinance only requires individuals applying for construction or demolition permits to replant or retain trees, Crass said that if a homeowner does not demolish a house, they would be able to tear down all trees in the yard with no requirement to replace them. This would, according to Crass, create “two classes of residents” in the neighborhood: Those who are subject to the overlay district, and those who aren’t.

Crass also expressed concern about whether the ordinance potentially violates the Private Property Act of 2015, a state law that prohibits certain restrictions on an individual’s ability to his or her land as they see fit. He said if the ordinance does infringe on this, the city could potentially owe money to homeowners for “illegal taking.”

Crass ended his comments by saying that at the recent neighborhood meeting about the ordinance, he was asked what he would propose as an alternative method to help preserve the tree canopy.

“If you’ve got these developers that have signed on to doing it pursuant to the requirements — in other words, they’re going to voluntarily plant trees — we don’t need government imposing a restriction on private property,” Crass said. “The market and peer pressure of the neighborhood, which has worked for over 100 years to preserve this neighborhood, will do it again.”

In her comments after Crass spoke, Emily Pennel, a neighborhood association member, said Crass was hired by those in opposition to the ordinance.

“You’ve heard tonight about government intrusion, and that’s why an attorney has been hired to fight this,” Pennel said. “It’s really not about the trees, it’s about ‘The government is telling us what to do on my private property.’ Well, we disagree. When you build a home, you have to pay the city a permit, and you have to follow [a] set of extensive codes, that’s part of living in a community. Your process is your codes, your permits, your inspections, they’re what keep our neighborhoods healthy and safe.”

A few commissioners asked questions and made comments about the ordinance, including commissioner Craig Berry, who said this is “not the first time opposition parachutes in at the 11th hour.”

“This time, [it’s] very high legal octane, of course, that’s been hired, and that’s fine, that’s what this process is for,” Berry said. “I find some arguments disingenuous. … On the spectrum of design overlays, this is a very benign, regulatory one.”

Commissioner Robin Rahman also said the ordinance is lenient compared to other tree ordinances, including those in Atlanta, and also said: “The argument that the invisible hand of the market is somehow going to protect 100 years of success, 100 years from now, does not resonate with me particularly well.”

In closing, commissioner Tom Brock was brief: “I don’t live in the Heights. I’m nowhere near the Heights. I’m out in Southwest.  I can tell you, I wish this ordinance were citywide, and if our city directors had any salt about them, they’d make it citywide.”

All commissioners voted to support recommending approval of the ordinance to the city board of directors. The board of directors will then vote on whether the ordinance will become a law.

*Correction: A previous version of this story incorrectly stated the tree ordinance would require homeowners to plant or keep an existing 2.5-inches or greater caliper tree for every 40 feet of yard.