By Thomas K. Pendergast

Fees, as opposed to trees, are now offered as an option for smaller property developers, due to D-4 Supervisor Alan Wong and S.F. Mayor Daniel Lurie’s ordinance, passed 7-4 by the Board of Supervisors in early September.

Instead of planting new trees as previously required, developers can now pay in-lieu fees, and that money will be placed into a slush-fund account called the Adopt-A-Tree Fund, to pay for the planting and maintenance of new trees elsewhere in the City.

Four variables will determine if a development project is too large to qualify for the in-lieu fee option: the lot must be more than a half-acre in total area; be more than 50,000 square feet of new construction; be at least 150 feet of lot frontage on the street; or take up the entire lot frontage of a full City block between two streets.

If the lot has one of those four conditions, and the scope of work is either: new construction of 10 or more dwelling units, new construction of 10,000 square-feet of commercial use, an addition of 20% to an existing building on that lot or a change of use of 10,000 square feet of an industrial project to a non-industrial project, then the project will be ineligible to “fee out” and would have to plant new trees.

“Projects that require tree planting as an environmental offset to development will now allow permit applicants to choose one of two options: either plant street trees in front of their property or pay an in-lieu fee and skip a multi-step and often unpredictable tree permitting process,” Lurie announced in a press release. “This second option enables Public Works to plant trees in neighborhoods with the greatest need for canopy coverage. This shift transfers tree-planting responsibility from individual property owners to the City, allowing for strategic investment in underserved areas while making permitting easier, faster and more affordable. Applicants will have more options earlier in the process, reducing permitting timelines by weeks.”

D-3 Supervisor Danny Sauter was one of the four supervisors who voted against the measure.

“I’m worried about the fact that if we don’t plant these trees at the time of construction-development, that we may never get them planted again,” he told the Board when it came before them. “I like that this does potentially open up some flexibility with where we’re planting trees, because that’s something that we are constrained on right now.

“All things said, I would much rather see us put our time and energy towards the things that I hear on a very, very regular basis from constituents. First and foremost, that is the maintenance and pruning of our existing trees. Every few days our office hears about a particular tree that a neighbor is worried about, and we have very little recourse,” he said.

“We were years late in actually doing our first round of maintenance and pruning of our existing trees, so there’s work that needs to be done there. And then ultimately, putting our energy towards finding a more sustainable source of funding for new tree plantings. So that’s where I’d rather see us put our energy, rather than this. And for those reasons, I’ll be voting ‘no.’”

Although the San Francisco Chapter of the Sierra Club has not taken a position on this legislation, Katherine Howard, a landscape architect and prominent member of the local chapter, agreed with Sauter.

“Eliminating the relatively simple tree permits in favor of feeing-out does not ensure that trees will be planted elsewhere. What it does ensure is that fewer tree planting locations will be available in the future,” Howard said. “For a new project, standard architectural drawings lay out infrastructure and landscape plans. Trees must be located away from water lines, sewer lines and undergrounded electrical connections.

“However, if a builder fees out of planting trees, then they also do not have to plan for infrastructure placement. In my experience as a landscape architect, developers are willing to follow rules, as long as there is a level playing field,” she said. “If feeing-out tree planting is financially beneficial for one developer, then all developers may have to eliminate trees in order to compete.

“If you think, ‘Oh, trees can be planted in the future,’ please think again. It is very costly to retroactively open a sidewalk and a street, to move utility lines, and to install an irrigation system,” Howard said.

D-7 Supervisor Myrna Melgar defended the legislation from an ideological perspective.

“I do think that it makes it easier for smaller property owners, mostly home-owners on the west side, to add those ADUs … which is what we want. But I also really want to reject some of the talking points about how this will negatively affect the tree canopy,” Melgar told the Board. “I think the underpinning of that argument is the mistrust of government; that somehow government will not do the work as effectively as a private sector. And that, colleagues, is a conservative Republican talking point and I will have none of it.

“These workers are represented by Laborers Union 261. They are out there doing the work every day. They actually do a really good job in addressing the racial disparity in tree canopy between wealthier neighborhoods and low-income neighborhoods and I think ‘are we perfect?’ ‘no,’ ‘are we done?’ ‘no.’ But I think that having a plan and centralizing it and having it be a goal of our department is a really good thing,” she said. “Frankly, the local government does a lot better job than the private developers, who then sell and change ownership of the development, and then go to someone else. …I think government does a much better job in doing that than the private sector.”

Because wealthier areas can muster more legal resources to resist unwanted projects, new construction tends to be more focused on less affluent neighborhoods. D-9 Supervisor Jackie Fielder said she was concerned about the long-term consequences for them.

“By allowing developers an in-lieu of payment for mandated tree allocations, this legislation may inadvertently put at risk neighborhoods that are underrepresented in canopy and green spaces,” Fielder told the Board.

“I appreciate the environmental justice lens that my colleagues have included, an important step to recognizing that low-income communities have higher environmental health burdens and lower tree canopies that can help counter these factors. However, depending on the environmental justice determination measures used, neighborhoods like the Mission might end up being deprioritized.”

The ordinance passed with supervisors Connie Chan, Shamann Walton, Fielder and Sauter voting against it. Lurie signed the legislation on Sept. 18, and it will take effect 30 days after that.

Once the legislation takes effect, eligible projects will be able to use the new in-lieu fee option established by the ordinance. A webpage outlining the new permitting procedures and providing additional guidance for applicants will then be posted.