Council Denies Appeal To Save Downtown Tree Over Liability Issue

Council Denies Appeal To Save Downtown Tree Over Liability Issue
tree over sidewalk

OCEAN CITY — Despite an impassioned plea from the property owners, resort officials this week denied an appeal that might have saved a decades-old pine tree in the south end of town that hangs over the public sidewalk.

On Tuesday, the Mayor and Council heard an appeal from property owners Frank and Dee Rubinic, whose pine tree in front of their house on St. Louis Avenue in the area of 1st Street partially hangs over the sidewalk. The tree’s upper branches have been trimmed back on multiple occasions by the property owners, but the thick trunk is crooked and bends toward the sidewalk closest to the property line.

Responding to a complaint, the Recreation and Parks Department inspected the tree and found it to be in violation of tree encroachment over the sidewalk impeding the public right-of-way for passage. The city’s guidelines call for trees overhanging public sidewalks to have a seven-foot clearance, but because of its crooked trunk that bends toward the walkway, achieving the seven-foot clearance would likely force the property owners to remove it.

After the initial complaint was filed, the Rubinics trimmed the tree again, but a follow-up inspection by the Beautification Committee revealed the trunk still partially hung over the sidewalk and the tree would likely have to be removed. The property owners filed an appeal to the Mayor and Council that was heard on Tuesday to no avail.

“We did trim the tree and they came back and looked at it again,” said Dee Rubinic. “The problem is the trunk because it is leaning. If we cut that off, that’s basically the end of the tree.”

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Frank Rubinic said the couple bought the property in 1991 and the house dates back to 1948. Rubinic said he trims the tree regularly, but the trunk grows on an angle which projects it somewhat over the sidewalk.

“We’ve been here 25 years and we keep it in great condition,” he said. “I asked several people if they had any problem walking under the tree and all I heard was why would the city want you to cut down such a beautiful tree. We don’t see what the problem is with a five-foot sidewalk there.”

In a letter to the Beautification Committee in June, the Rubinics explained they had grown attached to the tree and could not see the reason for it to be completely removed.

“We have trimmed this tree in the past and are willing to do so again, but we object to being told to replace this tree,” the letter reads. “It is a very slow-growing tree and would be impossible to replace with something that would achieve similar size in our lifetimes. The tree has character and every year it is home to several bird nests.”

The letter suggests the tree is likely older than the street and sidewalk in the area and urged city officials to direct their energies to larger problems.

“I really think City Hall has better issues to address than one lone pine tree which has probably been on the property since its construction in 1948 and before street-widening, sidewalks and tree regulations were in place …,” the letter reads. “Talk about beautification. Never mind that they have burned and/or torn down the blocks in two directions from our property, along with the grass, vegetation and trees. Or that our block has looked like a war zone these past nine months with the drilling operation on 1st Street and the ongoing construction of the giant water tower overshadowing our house.”

Some on the council said they personally inspected the situation and found the tree to be hanging over the sidewalk, presenting possible liability issues if someone were to be injured while walking into the tree.

“I went down and looked at this and I have to disagree,” said Councilmember Mary Knight. “I am 5’4” and when I stood on the sidewalk, the tree was touching my head.”

The slightly taller Councilman Dennis Dare said he too went down and physically inspected the tree.

“I’m very sympathetic to your plight,” he said. “I went down there and it hit my head and I’m 5’7” going on 5’6”. I think it’s a liability. Once the city is made aware of it, it becomes a liability.”

Councilman Wayne Hartman said the width of the sturdy tree trunk hanging over the sidewalk could cause an injury to a pedestrian, particularly in an area with restaurants and bars in the area.

“Two things concern me,” he said. “The trunk is leaning over the sidewalk and there is no forgiveness there if somebody were to hit their head. I think the policy in town is seven feet of clearance and there are a lot of businesses in that area with a lot of pedestrian traffic.”

Frank Rubinic took exception to the council’s perceived nod to the businesses in the area.

“You people give all the consideration to the businesses,” he said. “We have never complained about the loud music, the trash, the noise and the big trucks that pull in there, yet you give all the consideration to the businesses. We’re just asking for one thing. All we want is to keep our tree.”

City Solicitor Guy Ayres was asked for an opinion on the issue, in particular the possible liability concerns.

“Theoretically, they probably own it, but it is subject to the right-of-way,” he said. “For clarification purposes, the seven-foot requirement should be codified, but a defect is a defect and liability is still there.”

Knight made a motion to have the tree trimmed back to the seven-foot height and included in the motion possible assistance from the city for the Rubinics for an appropriate replacement.

“If that means the tree must come down, the town will replace it with a nice new tree,” she said.

However, Hartman, while sympathetic to the property owners, said, “I disagree. We don’t want to set a precedent that any time a tree needs to come down, the town would have to replace it.”

Knight amended her motion to include an offer from the town to assist the property owners with identifying a proper replacement and how and where to find it. The motion passed with a 6-1 vote with Council President Lloyd Martin opposed.

About The Author: Shawn Soper

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Shawn Soper has been with The Dispatch since 2000. He began as a staff writer covering various local government beats and general stories. His current positions include managing editor and sports editor. Growing up in Baltimore before moving to Ocean City full time three decades ago, Soper graduated from Loch Raven High School in 1981 and from Towson University in 1985 with degrees in mass communications with a journalism concentration and history.