Monday, February 26, 2024

One tree or two? Dispute over razed oak highlights need for objective county arborist, tree experts say

Property at the future Battleship Marine on Market Street has been cleared, removing 25 live oaks, including one (or two) at the center of a dispute between a consultant and local tree experts. (Port City Daily photo/Johanna F. Still)
Property at the future Battleship Marine on Market Street has recently been cleared, removing 25 oaks, including one (or two) at the center of a dispute between a consultant and local tree experts. (Port City Daily photo/Johanna F. Still)

NEW HANOVER COUNTY –– What seems like a philosophical question recently had real-life ramifications when local ordinances were applied: If a tree has multiple trunks that separate at ground level, is it one tree, or are they each their own organism?

A razed live oak in Ogden split developers and local tree experts in a dispute that showcases the lack of tree expertise at the New Hanover County planning department’s disposal. 

RELATED: County razed more than 300 pines, about 90 oaks for Healing Place development

Last year, arborist Joshua Shields was contacted by a real estate agent to assess a large live oak tree off Market Street: “Hoping you find that this is two trees,” the text to Shields stated, adding a fingers crossed emoji. 

The otherwise inconsequential question carried weight:

If it was two trees, each trunk could be cut without going through extra bureaucratic hurdles to remove them. If it was one, the oak could have breached the county’s threshold for being considered a “specimen” tree, which kicks in for live oak trunks 36 inches in diameter measured at breast height. 

Specimen live oaks can only be removed via a variance, which requires approval before the board of adjustment. 

At his site visit, Shields walked the property, dug around, and stepped back to observe. “All indicators pointed to me that this was a single tree,” he said. “So I said ‘No,’ verbally, ‘No, I won’t write this report. This is one tree.’” 

Close to a year passed. He never heard back. By happenstance, he drove by the property three weeks ago as the tree he inspected was being removed. “So I called up the county, and said, ‘What’s the deal? How did this happen?’” he said.

He was forwarded a report that concluded the opposite. Penned by a licensed forester and real estate agent out of Myrtle Beach, the report opined, based on images only, that the two trunks served as a “textbook example” of coppice growth –– when multiple sprouts arise from a stump. “Each of the sprouts are considered individual trees,” in coppice growth, Jeff Burleson wrote in his report. 

Dr. James Gregory, a licensed forester and chair of the Wilmington Tree Commission, counters this dogma. “A multi-stem tree, if it started as sprouts from a stump and those stems are coming from one stump and one root system, then that’s one tree,” he said. “In all cases, that multi-stem tree is still considered to be one tree.”

In the tree world, experts have mulled over the multi-stem dilemma, though chiefly in the process of crowning champions, or the largest of each species. It arises far less frequently in the context of cutting them down.

“This is a somewhat complex issue,” Shields said. Despite the nuanced complications, he said the basics are clear: “They exploited a technicality.”

With no one on staff with the expertise to review the report with scrutiny, the county accepted it and issued the applicant a tree permit in April.

“This situation illustrates that New Hanover County needs the services of a certified arborist,” Gregory said. 

The conclusion of the consultant's report was that the oak was two individual trees that sprouted from a stump. (Courtesy/New Hanover County)
The conclusion of the consultant’s report was that the oak was two individual trees that sprouted from a stump. (Courtesy/New Hanover County)

A multi-stemmed problem

In his work as owner of Joshua Tree of Wilmington, Shields has been asked to care for the Airlie Oak, arguably the community’s most prized tree. With 22 years of experience and as a board member on the Alliance for Cape Fear Trees and as vice-chair of the Wilmington Tree Commission, Shields specializes in live oaks, and argues the unique species doesn’t abide by generalized tree measurement rules.

When crowning champions, a multi-stem tree debate over whether to measure the base before the split(s) or the largest trunk was settled by the American Forests’ tree measurement guidelines: Measure the largest trunk. The issue arises because the industry standard –– measure at breast height ––  isn’t feasible when trunks split below 4.5 feet. (According to Shields, other accepted methodology includes measuring the largest trunk then adding half of all additional trunk diameters or calculate the square root of the squares of all trunk diameters; in either calculation, he said the total exceeded the county’s specimen tree threshold.)

The guidelines don’t appear to be definite. The Seven Sisters Oak in Louisiana, believed to be between 500 and 1,000 years old, was named president of the Live Oak Society after a mid-70s inspection of the mammoth tree with a crew of crawling trunks determined it had a single root system. 

“Nobody argues for measuring two or more separate trees and submitting them as one, but there has been a fair amount of disagreement around coppices,” the American Forests guidebook states. Multi-stem coppice growth can produce a single tree, according to the document (this observation is contrary to Burleson’s conclusion about each stump sprout being a singular tree). 

“I made my determination based on my knowledge of live oaks and other hardwood growth patterns in the southeastern United States,” Burleson explained in an email. “By no means did I make my decision of these stems based on any other social or economic criteria that apparently has been implied here and that is absolutely ridiculous.” 

Burleson said he simply wrote a report containing his professional opinion. 

“I didn’t ask anybody to cut down any trees nor did I mandate anybody to remove anything. I only gave my professional opinion about a couple of stems on a lot on Market Street,” he wrote in the email.

Purchased by Carson Baker of CFB Powersports LLC in February, the property has been cleared in the center, with several trees saved on the perimeter, including two large live oaks: one 41-inch “specimen” and one 31-inch “significant” tree. The other 25 oaks were razed from the previously wooded lot, along with dozens of other tree species, according to the tree inventory list. 

Baker said his team worked extensively with its engineers and the county to “redesign the project several times” to save multiple live oaks. “That cost alone was tens of thousands of dollars but we wanted to preserve as much as possible and create something we and our neighbors could be proud of,” he wrote in an email. 

The effort prompted his team to consult with “multiple professionals on their opinions,” about the multi-stem oak, he said. Multiple live oaks were among development challenges that contributed to the difficulty in selling the property, Baker said.

In the process of designing the future boat showroom Battleship Marine, Baker said his team took extra effort creating a plan that preserved the most mature oaks, with the oldest incorporated into a planned outdoor waiting area with chairs and picnic tables. “These are some of the small details we integrated by choice, not because it was required,” he said.

No county arborist

Connie Parker, president of the Alliance for Cape Fear Trees, said while she is not a licensed expert, she is unnerved by the procedure that took place in this case, whereby a developer appears to have shopped for the answer he wanted.

“It just concerns me because we’ve got somebody in town who’s an expert who says it’s one tree, it’s one root system,” she said. “And then they find somebody else, just like in a trial, they go and find somebody else who will say what you want to say, and then turn it in.”

After public outcry saved a cluster of live oaks from a new car wash at the old Island’s Fresh Mex Grill on Market Street in 2019, New Hanover County created the specimen category, designed to prohibit the removal of the oldest live oaks in the most protected designation. 

Before the ordinance change, Parker said she sat at a table with tree representatives, planning staff, developers, and commissioners. At the time, she consented to the 36-inch designation just to get something through, believing it would be revisited with the subsequent Unified Development Ordinance adoption, but it never was. 

“It’s too generous,” she said of the specimen threshold. In its recent Land Development Code rewrite, the City of Wilmington added a specimen category, like the county, but made it begin at a more restrictive 24 inches in diameter, and also included pond cypress, bald cypress, and longleaf pines in addition to live oaks. 

“Since the specimen tree requirements were adopted in 2019, this is the first situation where a tree report has been necessary to determine whether a particular tree or trees meets the criteria for a specimen,” a county spokesperson provided in a statement from planning staff. 

No specimen live oaks –– other than potentially this one on Market Street –– have been removed to the county’s knowledge since passing the ordinance.

County code allows either certified arborists or N.C. licensed foresters to make determinations regarding tree retention, which allowed the contested report to be accepted. “With the questions that have been raised regarding 7775 Market St., we are exploring ways to improve the administrative process if similar situations were to arise,” the spokesperson wrote. 

RELATED: Tree-saving petition on tiny ocean-adjacent lot brings private property rights, relocation difficulties to light

Having any ordinance to protect trees is better than nothing, Shields said, adding he supported the new specimen designation. “But I also don’t think that it’s right for me to sit by and watch this ordinance being exploited by developers to still do whatever they want,” he said.

Multi-trunk trees are not addressed in the code. It’s difficult to create one standard when dealing with organic matter, Shields said. “There’s so much variability.” 

New Hanover County does not have an arborist on staff. In contrast, the city employs two among its nine-member urban forestry team. This team monitors 450 miles of streets, 750 acres of parks, and conducts pruning, removal, planting, and other general maintenance activities while overseeing more than 30,000 trees, according to a city spokesperson. 

“There needs to be somebody on the county’s payroll that can help them navigate through these kinds of issues,” Shields said. “This is another large tree that due to a technicality is being removed, even though we as a community put rules in place to protect them.”

Though tree advocates have asked the county to hire an arborist, “situations where a certified arborist would be necessary to determine how regulations apply have been infrequent,” according to the county spokesperson.

To fund the position, staff would have to present proof of a demonstrated, ongoing need, but “there isn’t evidence at this point to indicate there would be enough work to warrant a staff arborist, though we will continue to evaluate this,” the spokesperson wrote.

However, the county is considering outsourcing for future insight if necessary, based on the experience with this Market Street oak. “[W]e will likely explore other options for making sure we have access to neutral expert guidance if similar situations were to arise, such as contracting for arborist services or partnering with another agency,” the spokesperson wrote. 

Send tips and comments to Johanna F. Still at

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