By Lindsay Peyton

The ponderosa pine located in the middle of the side yard of 3038 39th Ave SW isn’t just any old tree.

It’s more than 90 years old, stretches higher than 100 feet up in the sky and has become a favorite landmark in the neighborhood.

The tree is also in imminent danger of being cut down – and has become the center of a heated debate.

Lisa Parriott has lived across the street from what she calls “the Silent Giant” for the past 24 years.

She explained that the former owner of 3038 39th Ave SW sold his house last winter.

“He had this gorgeous tree on his property,” she said. “It’s perfectly straight, perfectly healthy and it frames all of our yards. We love this tree. It’s precious to us.”

Parriott said that the pine has been designated an “exceptional tree” by the Seattle Municipal Code (SMC 25.11) and therefore protected.

There is an exception to the rule, Parriott explained. The tree may be removed on a site undergoing development if the maximum lot coverage cannot be achieved otherwise.

Parriott said that the side yard did not seem like a spot that anyone would consider as a building site, since it is smaller than the minimum allowed lot size by almost 2,000 sq. ft.

When the home was purchased, however, a sign went up proclaiming the intention to build a new house on the side lot.

Parriott said that the City of Seattle issued a preliminary opinion that the lot is “buildable” based on a “historic lot exemption” – a measure designed to allow construction on lots smaller than 5,000 sq. ft. when it can be proven that a homeowner purchased the property with intention of development before 1957.

Parriott said that more than 80 individuals posted comments on the City’s website in opposition to the project.

“We don’t want our tree chopped down – and we don’t want a towering house; it’s not in character with our neighborhood,” she said. “You’ve got neighbors banding together. We’re the ones who pay property taxes. We’re the one who live in the city. We’re the ones who vote – and nobody likes what’s happening.”

Still, she is concerned that the group may not have as strong of a voice as developers -- when it comes to facing city officials.

“Developers are exploiting this old loophole – and it needs to be closed,” she said. “We feel this code is pro-developers. I’m amazed by how many people are upset about this and yet nothing is happening.”

The property’s current owner Cliff Low argues that Seattle has a shortage of available homes, which outweighs the desire to retain this tree.

“In a city where there is a housing crisis, we believe our intent to have a home built on this lot benefits the community and families who want to make West Seattle their home,” he said. “We look forward to providing work for electricians, plumbers, architects, painters, roofers, contractors, carpenters, engineers, landscapers and designers, all of whom have families to care for and benefit from the building of a home.”

Low added that the City of Seattle’s creation of this lot predates the building of many of the current homes and the families that now live in the neighborhood. 

“The current City of Seattle Code allows us to remove the tree to build a modest two-story home on this lot,” he said. “We look forward to providing a new modest home for a family to live in so that they also can enjoy the neighborhood.”

Parriott and her neighbors are challenging the City’s written opinion that the lot is an acceptable building site.

“They’ve inferred the intention to sell the side lot as a separate lot – but the facts don’t support that statement,” Parriott said.

She said that the City is requiring the neighborhood to request a land use interpretation at a cost of at least $2,800 – as its only recourse to challenge whether this lot qualifies for a historic lot exemption. 

“We’re paying them to review a decision that they’ve already made,” she said. “We fully intend to do so – but now we have to overcome this financial burden.”

Parriott and her neighbors have created a Go Fund Me page to help cover the legal expenses required to challenge the city: www.gofundme.com/2cxyaw4 .

One resident, 9-year old Myla Bauersfeld, hopes others will join in the effort to save the tree. She has gone house-to-house with Parriott asking for support.

“They shouldn’t chop the tree down,” she said. “I really like animals and don’t want them to lose their home. They might not find another one.”

The neighbors are also working with a legal advisor, Alex Sidles with the Washington Forest Law Center, who has asked the City to rescind its preliminary opinion based on the facts, the law and previous court rulings. 

“The whole community is up in arms about this tree,” Sidles said. “There were dozens and dozens of comments to the city. It was an amazing outpouring – and that’s why we decided to take this case on.”

He said that there is no historic mention of an intention to develop the side lot.

“Our contention is that there has to be evidence of a separate building site,” he said. “There’s just not enough evidence to support the developer. It’s been there 86 years – and no one has built there.”

Sidles also questions the constitutionality of requiring the $2,800 payment.

“They ought to be able to go to a judge and make their argument,” he said. “To impose that type of requirement before you can even walk into a courtroom, well that deprives a lot of citizens. It’s a fee to repeat work that has already been done – and I think a lot of meritorious cases get stifled because of that fee. It creates an institutional barrier.”

Bryan Stevens, spokesman for Seattle’s Department of Construction and Inspections, explained that a proposal to build a new home typically has no discretionary or subjective elements – and an owner must meet the prescriptive technical and zoning codes to receive a permit.

“In the case of the property at 3036 39th Ave SW, the owner first wanted to verify that the undeveloped portion of property could in fact be deemed a separate legal building site,” Stevens said. “Even if the property owner is confident in their understanding of those existing rules, they often want a formal written opinion from the City for peace of mind and lending purposes. This is called a legal building site letter, which requires a fee for the hours of review conducted by staff.”

He said that staff confirmed in that letter that this site qualifies as a legal building site per the existing rules for undersized lots in the Land Use Code.

“Since no discretion is applied in formulating this letter, the findings in the letter cannot be appealed, even if that person is the property owner,” he said.
 
Stevens said that since the tree on this site is situated in the center of the property, the owner must demonstrate the level of impact the tree’s removal would have on the site’s development potential.

“If allowed for removal, then tree replacement is required to help offset the loss of tree canopy,” he said.
 
Addressing the court fee, Stevens said that the cost covers the staff time preparing for and presenting at the appeals.
 
“Code interpretations by staff require a lot of research and analysis in developing a written response,” he said. “Staff review the submitted material from the individual requesting the interpretation and often compare it with historical case law, established precedent and ownership information dating back over 60 years. With that in mind, the fee is intended to cover 10 hours of review time at $280 per hour.”

He said the city has no current means of subsidizing this work and have to bill for the time spent.
 
Stevens added that the policies in the Land Use Code and tree protection ordinance are meant to balance private property rights with the scale of development and the city’s tree canopy goals.

“A few years ago, residents of various single-family neighborhoods in Seattle expressed concern that developers had found ‘loopholes’ in the minimum lot area exceptions of the Land Use Code and were developing some very small lots in ways that were not intended when the rules were written,” he said. “The department engaged in a lengthy process, involving much public input, and proposed amendments to substantially tighten up the lot area exceptions, as well as imposing new height limits on small lots that continued to qualify for separate development.”

Stevens said after much debate, and with amendments by several Council members, these amendments were adopted by Ordinance No. 124475 in 2014 by a unanimous vote.
 
“Our staff are well versed in the City’s rules and regulations, which admittedly are complex,” he said. “But we aim to apply these prescriptive rules in a fair and consistent manner.”

Parriott said that the tree in her neighborhood is symbolic of larger issues – of the needs of a city’s ever-increasing density and of development threatening the evergreen urban canopy and green space.

“I’m not against developers,” she said. “I just want wise development – where we preserve the character of our neighborhood.”

Her neighbor Elaine Ike, a member of the Seattle Green Spaces Coalition, agreed that the ponderosa pine has a special significance.

“You can’t replace this tree,” she said. “And these trees become more valuable as we develop properties. Our urban canopy has decreased in the last four years in Seattle. It’s irreplaceable and I don’t think people understand that.”