Confusion vs. Clarity

How a shrub becomes a tree becomes a shrub

Background:

Arborvitae and a fence “erroneously” built in the city right-of-way (ROW) took up considerable time and energy at two Shorewood council meetings. Because of vague language in the ordinance, on May 28 the Council engaged in a confusing conversation, followed by an unusual 43 seconds of silence, when no motion was made to correct the issue of the matter. The end result was the Council denial of an “encroachment agreement” that would have allowed both of these code violations to remain in place. The property owners’ attorney argued that the City made three inspections and provided incomplete surveys, which contributed to the failure. The city staff did not provide background to support or refute the allegations.

CM Maddy spoke forcefully against creating more agreements for the city to monitor. He was clear in not supporting any nonconforming items in the ROW. CM Sanschagrin agreed, adding that fencing companies must be held to account when doing installations.
Part of the extensive discussion centered on the ordinance meaning of “vegetation” as it applied to allowing the arborvitae. Planning Director Darling stated that the arborvitae tree qualified as vegetation–as long as it was maintained at 30”– therefore the inappropriately planted trees could remain in the ROW.
The relevant ordinance language:
Ordinance 901.01, Subd. 3 LANDSCAPING. …”The use of living plants to modify an area of land, including ornamental shrubs, plants and flowers. For purposes of this chapter, the definition excludes trees, boulders, other natural obstructions, and manmade features such as fences, structures, patios, parking pads, and the like.”
Arborvitae: trees or shrubs? Per the University of Ohio: “Arborvitae^{^[1]} is an evergreen tree or shrub from the Cypress Family.” These trees and shrubs are a small-to-medium-sized perennial woody plant. Unlike herbaceous plants, which are plants with flexible, green stems with few to no woody parts, trees and shrubs have persistent woody stems above the ground. It appears under the definition above that arborvitae qualify as landscaping if they are shrubs – and not allowed if they are trees.

The same fence/tree topic was back on the agenda on June 24 for a revised agreement that moved some of the arborvitae and left the fence in place. A motion made by CM Callies and seconded by CM Zerby to accept the agreement failed, 3-2. A second motion to revert to the original decision, which was to clear the property of all encroachments, passed 3-2 with Maddy, Sanschagrin and Labadie on the prevailing side.

Facts:

The Council followed the law by expecting compliance with its ROW ordinance.
The agreement assumes the property owner would keep the trees/shrubs trimmed to 30”. Should that not happen, the City would not take action unless a neighbor made a “complaint” to get compliance, putting neighbors in a tenuous position. (Shorewood follows complaint only enforcement.)
Further, should utility or street work be required, taxpayers will pay to remove the trees from the easement, and then possibly be challenged for the cost of replacement.
Planning Director Darling made a judgment call on “vegetation” that was questioned. Going forward, the Council must take action to clarify the ordinance. Two different discussions sought to determine what was allowed in the ROW due to current vague terminology regarding what constitutes a shrub. Without sound and defining documentation, interpretation is subjective and inconsistent.
Finally, the ordinances have piecemeal and scattered references in various sections of the code, making it difficult for residents to understand the rules for city owned ROW. See the Council discussion during revision of the sign ordinance.