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Court ruling and recent ordinance change reshape how Brookhaven will handle tree-variance requests
Summary
At a Brookhaven planning work session, staff reported a superior court decision allowing a developer to remove a tree the board previously denied and described a city-council-approved text amendment to the tree ordinance that removes an economic-value test and adds an administrative variance for site constraints.
Staff at a Brookhaven planning work session told board members that a developer who lost a tree-variance request at East Club Drive appealed to Cap County Superior Court and was told the court would allow the applicant to remove the tree; staff said it had not yet received the court’s written findings.
The development was raised by a staff member (Speaker 2), who also told the board that the city council on the prior evening approved a text amendment to the tree ordinance. "We did revise the criteria to make it more… streamline in a way where it kinda aligns with what your current zoning variance criteria are," Speaker 2 said. The amendment, staff said, removes prior criteria tied to the tree’s economic value and focuses future reviews on age, size, health and significance of the tree, feasibility of alternative design, and due diligence performed.
Why it matters: under the ordinance changes, future applicants and staff will evaluate tree-variance requests under standardized criteria similar to zoning variance review. "It deletes the idea of no economic value as of the grant of the variance," Speaker 1 said when summarizing the changes, noting the standard now centers on age, size, health and significance. The ordinance also adds an administrative-variance pathway for site constraints, which staff said could simplify approvals for cases driven by physical constraints.
Board members asked procedural questions about how recently filed cases will be judged. Staff advised that applications must be evaluated under the ordinance in effect on the date they filed, so pending applications filed before the change remain bound to the prior criteria. "When you file an application of any sort... you have to use the current ordinance of the date when you filed it," Speaker 7 said.
The board also raised the practical possibility that a court decision — like the one staff described for East Club Drive — could lead applicants to withdraw and refile. Speaker 2 said staff expects to provide the board with the court’s written findings once received and will bring any procedural clarifications needed for upcoming agenda items.
What happens next: staff said it will circulate the court's findings to the board when available and apply the new ordinance language only to applications filed after the text amendment’s effective date.
