Legislation often has unintended consequences. But rarely are those consequences so extreme and foreseeable as in the strange case of Seattle’s new Tree Protection Ordinance and its longtime, now ironically upended Heritage Tree Program.
The new ordinance grants new legal status and near-absolute protection to the city’s 300-odd designated “heritage trees,” leafy landmarks of extraordinary stature and significance. At the same time, it makes it easier to remove all other trees for construction. In effect, the new legislation turns an arboreal honor roll into a Potemkin forest of protection. The ordinance’s drafters and promoters seem never to have thought to ask the Heritage Tree Committee whether this was a good idea. The surprising and painful result: they’ve shut down the program, maybe killed it.
Some background: The Heritage Tree Program was founded in 1995 by Cass Turnbull, the late den mother of Seattle tree protection, who also founded Plant Amnesty and TreePAC and inspired many of today’s tree warriors. Unlike TreePAC, however, the Heritage Tree Program was never intended to have a political role or protective force. It was a purely voluntary scheme designed to identify and celebrate Seattle’s most notable trees, encourage but not require their protection, help guide tree walks, and inspire Seattleites who might otherwise take their rich and diverse urban forest for granted.
A few years later the Seattle Department of Transportation, which had the mapping and arborist resources the growing heritage list needed, and the University of Washington Botanic Gardens partnered with Plant Amnesty in running the project. Even then, “it was a pretty informal, impromptu program,” says SDOT arborist Nolan Rundquist, who’s helped run it since. “It was just a bunch of people who love trees.”
When trees were nominated, a troop of those tree lovers would fan out with clipboards, tape measures, and laser gauges to determine whether the nominees were sufficiently enormous, rare, historic, prominent, and/or important to their communities to make the honor roll.
Contrary to a widespread misimpression, most heritage trees do not grow on public property; Rundquist knows of only about “a dozen” in parks and another 10 or 12 on curb strips. The rest grow in private yards, home to the largest, most varied, and generally healthiest portion of Seattle’s urban forest. Usually owners were the ones who nominated their trees; they could always veto listings.
These owners knew that listings carried no legal force. Heritage trees enjoyed exactly the same semi-protection under Seattle’s soon-to-be-obsolete 2009 tree code as its 6,000 other jumbo “exceptional” trees: Developers had to submit their plans for review and, often, extensive negotiation and revision, and prove they couldn’t achieve their allotted lot coverage without cutting them down.
Proud heritage tree owners could chip in with Plant Amnesty to erect bronze plaques and hold ceremonies honoring their prizes. The Heritage Tree Program would invite them to lock in protection by granting conservation easements.
This approach, says Rundquist, “was fairly original when Cass came up with it.” But like bicycle policing, craft beers, and other made-in-Washington innovations, it’s since spread much farther. Today, “almost every city has a heritage tree program,” says Timothy Beatley, a University of Virginia planning professor who studies urban forestry.
Given how entrenched and familiar the idea has become, it’s surprising that those charged with regulating Seattle’s trees didn’t understand it better.
No one seems to know exactly who first proposed granting heritage trees special protection. Sandy Shettler, a prominent Seattle tree-protection advocate, thinks the idea came from another well-meaning activist. Bryan Stevens of the Seattle Department of Construction and Inspections (SDCI), which drafted the new code, says the notion came “in response to feedback from the Urban Forestry Commission [the city’s expert advisory panel] on increasing the scope of tree protection in the ordinance,” and was modeled after the Seattle Housing Authority’s treatment of trees at its Yesler Terrace project.
In fact, what SDCI borrowed from SHA was the notion of “tiers” of trees, classified by size. These replace the old tree code’s vague qualitative designations (“exceptional,” “significant”). The ordinance lowers the threshold trunk diameter for “exceptional trees,” the top category, from 30 to 24 inches and relegates them to “Tier 2” status. Builders will be allowed to cut them down without pesky negotiations over site plans, so long as they either pay an in-lieu fee or plant replacement saplings elsewhere.
As for the Heritage Tree Committee, “I don’t think they were” consulted, says Rundquist. “I got a question from council staff about how the committee was made up. The caller didn’t give any context, didn’t mention that it was in the ordinance.”
The code writers and the City Council designated heritage trees an exclusive “Tier 1” category, granting them absolute protection unless they become dangerous or their owners prove “extreme financial hardship.” The Urban Forestry Commission endorsed the idea, though its co-chair Josh Morris warns that people shouldn’t “get the idea this provides protection for a significant number of trees.” Three hundred trophies out of nearly a million trees in Seattle do not an urban forest make.
Builders, who emphatically don’t want more mandatory tree protection on the properties they develop, were initially wary of the idea, then seemed to realize that a tiny Tier 1 class of protected trees provides useful cover for withholding protection from the vast arboreal masses—as long as that class doesn’t expand. In July 2022 their lobby, the Master Builders Association of King and Snohomish Counties, submitted a “Proposal for Bill to Support Housing and Trees” under which “Heritage Tree [sic] would be protected as they are today. However, new heritage trees could not be designated on private property.”
That restriction never got traction. Instead, City Councilmember and Land Use Committee chair Dan Strauss, who spearheaded the tree ordinance’s passage, proclaimed when he introduced it to the full council that it “maintained and expanded access to SDOT’s Heritage Tree program.” He has since boasted that his bill protects heritage trees, which previously “did not have protection.”
Both claims are strained. When asked, Strauss explains that “expanded access” means more outreach to enroll property owners in the program. And the new “protection” that was formerly lacking consists of requiring that owners plant new saplings to “replace” heritage trees that are removed as hazardous. “How do you replace a landmark?” I asked Strauss. “Before, if you took down a hazardous tree, you didn’t have to replace it,” he replied. “Now you have to replace it.”
That replacement requirement is a fundamental principle of the new tree code. It also marks an essential divide between its supporters and critics. The boosters of the new approach see trees as fungible and interchangeable, abstract quantities that can be cut and “replaced” elsewhere by saplings that may (a big “may”) eventually become giants themselves. The critics believe particular trees (heritage and otherwise) have particular value as bearers of stories and keepers of memory – visual beacons and emotional anchors in a fast-changing cityscape. Not to mention all the cooling shade and transpiration, wild habitat, runoff control, and cleansing air and water filtration they provide right now.
Still, you can already thank the new ordinance for saving one magnificent heritage tree (or blame it for blocking five new homes, depending on your point of view), even before it takes effect on July 24. On May 22, the day before the ordinance was passed, developer Augustus Bukowski of Seattle Luxury Homes filed a pre-application to build a $2 million house with a detached accessory unit and three “affordable” ($700,000 to $800,000) townhouses beside an existing house on a rare 27,000-square-foot parcel in Ravenna, next to Cowan Park.
Unfortunately, that plot happens to contain one of those 300 heritage trees: a soaring, Atlas cedar now endangered in its native Morocco and Algeria. At 100-plus feet tall, it may be the largest true cedar in Seattle. Bukowski hoped a late amendment would strip the heritage-tree protection from the ordinance. That didn’t happen, and so, he says, “the deal is dead.” With its vast root system, 70 percent of it protected under the code, “that tree eliminates one to two buildable lots” from the parcel. The remaining building sites couldn’t meet his financial expectations. “I need to double my money every three years,” Bukowski says, and he bailed out of purchasing the parcel.
His arborist, Mary Ellen Russell, wrote to the council urging that it drop the special protection and make it as easy to cut down heritage trees as to remove other jumbo trees under the new ordinance: “This would be a continuation of the current regulation.”
Yes and no. Under the old code, it was more difficult to remove any big tree; the new heritage-tree provision is an amplified echo of that old protection. But Russell has a point when she notes the arbitrariness of the new legal status for heritage trees. “People who added their trees to the registry years or decades ago… had no reason to think [it] would preclude future development of their property, and sellers did not have any reason to disclose heritage trees as part of a sale. Likewise many large and beautiful privately owned trees are not part of the heritage tree registry.”
Developer Bukowski puts it more bluntly: “I think if you’d had a serious conversation with them and said, ‘Hey, this will devalue your property by $600,000,’ they wouldn’t have listed their trees.”
In the category of strange political bedfellows, add the Heritage Tree Committee. In May the committee somewhat ironically also urged the city council to remove special heritage-tree protections from the then-proposed ordinance or, failing that, to reject the ordinance entirely. The committee “was not established nor has it ever been charged to be code enforceable, and the legal implications are significant,” wrote David Zuckerman, horticulture manager at the UW Botanic Gardens.
He warned that the volunteer commissioners would be “subject to potential lawsuits” for the financial consequences of past listing decisions. Passing the ordinance “leaves us with no other choice but to dissolve the Heritage Tree program. This would be an utter shame and travesty to the citizens of Seattle who currently own heritage trees, those who may have yet to nominate future heritage trees and for all those who simply love to celebrate special trees.”
So far the program hasn’t formally dissolved, but it has gone dark. Zuckerman told me in June the committee would meet privately to discuss next steps. “We’re looking at a public announcement by July 24 when [the] new ordinance goes into effect.”
“Some members weren’t interested in being part of a regulatory body,” says Rundquist. “Some were okay with it. I think if the bylaws were crafted to insulate members from liability, it could work.”
But if heritage trees remain the only fully protected trees in the city, another sensitive issue arises. The new tree ordinance is dedicated to “a focus on low-canopy neighborhoods in environmental-justice priority areas” and “policies that commit the City to realize its vision of racial equity and environmental justice.” Not surprisingly, the 300 registered heritage trees are concentrated in affluent, largely white neighborhoods, in particular Capitol Hill, Montlake, Queen Anne, Ravenna, lower Ballard, Madrona, Magnolia Bluff, and West Seattle’s west side. They’re spotty or absent in the Central District, Rainier Valley, Beacon Hill, Georgetown, South Park, Delridge, High Point, Judkins, Haller and Bitter Lakes, Northgate, and Lake City.
And if the program does dissolve, Jim Davis, co-chair of The Last 6,000, a group dedicated to protecting Seattle’s remaining jumbo trees, sees a potential threat even to the 300 heritage trees already listed: “How can you have heritage trees in the ordinance and not have a program? A builder would say, ‘The program under which this tree was a heritage tree no longer exists,’” so the protection is invalid. Bukowski might get another shot at Ravenna’s mammoth Atlas cedar.
Meanwhile, the Heritage Tree Program remains up in the air. “We do expect that it will be updated in a way that aligns with city tree policy,” says Patti Bakker, the Seattle Office of Sustainability and Environment’s urban forestry advisor, adding that she “can’t comment on specifics….There have not been any formal decisions.”
It’s remarkable and disheartening that such should still be the case for this showpiece of the new tree ordinance. “It wasn’t thought through,” Jim Davis, a Cass Turnbull protege, observes. “It was rushed through.” He suggests not thinking it through was convenient for officials who wanted to ease housing construction by loosening tree protections broadly. “It provided cover for the removal of all the protections for the exceptional trees.”
Davis saddens when he imagines Turnbull’s reaction to such a coda to her long efforts to preserve remarkable city trees. “It was never Cass Turnbull’s intention to use the Heritage Tree Program to replace protections for many more numerous trees.”