Marie Ostwald

The Brazilian pepper tree that Marie Ostwald's now-deceased husband planted in 1959 can stay for good, says an August 7 letter from the City of San Diego's Planning Department. After review from the Community Forestry Advisory Board, the city has agreed to register Ostwald's tree as a "heritage tree," thus protecting it from removal.

In May of this year the city informed Ostwald that crews would be cutting down the tree on Mission Gorge Road because roots had uplifted the sidewalk in front of her home.

The news did not go over well. The 91-year-old Ostwald took her case to the media.

She made signs pleading mayor Kevin Faulconer to come to her rescue and save the tree. On Mother's Day, Faulconer visited Ostwald's home and informed her that he would order the city to back off and allow her to keep the tree.

Despite Faulconer's assurance, Ostwald and her attorney Cory Briggs sued the city to make sure that Faulconer and the city kept their word.

At the same time, Ostwald filed a petition with the city to nominate her pepper tree as a "heritage tree." In order to qualify, trees must be more than 50 years old or have been planted by a historically significant person and be at least eight inches in diameter.

On August 7, Urban Forestry program manager Jeremy Barrick wrote a letter to Ostwald, notifying her that her tree was designated a heritage tree by the City of San Diego.

"Upon inspection of the tree by the Streets Division Horticulturist and review of the nomination by the Community Forestry Advisory Board, the City of San Diego has agreed to designate this tree as a Heritage Tree given the age of the tree.

"As a Heritage Tree, the street tree inventory records will be updated to reflect this status and the tree protection measures outlined in Council Policy 900-19 will be afforded this significant tree from here forward.

"Thank you for your nomination and vigilance in preserving and protecting our great urban forest."

The designation, says Briggs, is the first step toward dismissing the lawsuit. "The lawsuit will be dropped once the city confirms in writing that minor pruning has been completed and that no further harm will come to the tree."

UPDATE 8/15, 4:05 p.m.

City of San Diego spokesman Paul Brencick wrote in to "clarify a few points in your article for your reader’s information."

"The opening paragraph suggests that the tree will not ever be removed and that’s not the case. As per Council Policy 900-19, Nothing in this policy will restrict the removal of any designated tree if the tree is a threat to public safety after reasonable efforts have been made for additional care, corrective actions or maintenance to correct these problems. Currently, the City has no plans to remove this tree and will continue to monitor it.

"Section C. of the policy outlines the protections afforded this tree as a result of Heritage Tree Designation are as follows:

"1. No permits will be issued for tree removal unless a clear, imminent and significant public safety hazard exists or if the City Urban Forester, in consideration of any comments received from the Community Forest Advisory Board, informed by a certified arborist’s report and recommendations, determines that protection may not be the appropriate course and the project applicant or adjacent owner has agreed to pay 100% of the assessed value of the tree.

"2. Tree pruning or root pruning will only occur under the guidance of a licensed arborist, with the written approval of the City Arborist. This shall not apply to root pruning that is necessary to protect the water and sewer infrastructure.

"3. Extraordinary measures will be taken to avoid excessive pruning, topping or removals related to line clearance that may be required by the California Public Utilities Commission.

"4. Regardless of sidewalk damage, no action will be taken that will result in the death of the tree. Sidewalk relocation or redesign may be considered.

"5. Special techniques for extending the life of the tree will include, but not be limited to: limb supports, root zone protection and other disease control to be administered by the City.

"6. Roadway widening requirements will avoid damage to trees where possible. When avoidance is not possible, tree protection during construction, tree transplanting or tree replacements will be required.

"7. Environmental review of all projects requiring CEQA documentation will consider the protected status of these trees as a factor in determining potential significant impact to visual quality and community character resources.

"8. When the designated tree is in the city street rights-of-way or on public lands administered by the city, as a priority, funds will be expended to allow for an annual inspection, pruning or other corrective actions that may be needed to resolve any particular public safety or sidewalk problem.

"9. Trees damaging public or private improvements and utility infrastructure can be removed if damage cannot be reasonably corrected by trimming, root pruning, or other corrective action or adjustment, as determined by the City’s Urban Forester. All trees so removed require replacement consistent with existing policies.

"Section D. of the CP outlines the penalties for tree removal or damage of a designated tree without a permit are:

"The following fines shall be assessed to those individuals found to be responsible for removal or damage of protected public trees without a permit:

"1. For protected trees, fines in the amount of 300% (or up to the maximum amount allowed currently under municipal code) of the assessed value of the tree will be levied for anyone found responsible for intentionally removing trees without permit or causing fatal damage to any tree found in the public street rights-rights-of-way. The assessed value will be determined by the City of San Diego Urban Forester.

"2. Any individual or company found to have caused the topping, excessive pruning or permanent disfigurement of protected trees within the public street rights-of-way will be subject to the same penalty as listed. Topping of trees is illegal under current State of California statutes and results in trees that are not only aesthetically inferior but are unsafe due to weak trunks and limbs. All fees, in-lieu fees, permit fees and fines collected under this policy will be deposited into a tree replacement program administered by the City Urban Forester with review and comments on the uses of these funds provided by the Community Forest Advisory Board.

"Additionally, last month the City commissioned Atlas Tree Service Inc. and the German firm Brudi & Partner TreeConsult to conduct an innovative and cutting edge statics integrating pull test on this tree. The test uses structural engineering principles to measure the tree’s ability to withstand wind forces by installing measuring devices in the tree and root plate while pulling the tree to a known force with high tension cables. The tree was found to be stable to the equivalent force of a wind loading event up to 73 miles per hour and it was recommended that the canopy be reduced and the tree monitored."