In April of this year, Tom and Cynthia Sheperak, a couple in their late 70’s, of 102 Oak Street in Swanton, had an arborist tell them they had a dying 95-foot red oak tree on their property that quickly needed to be removed before it fell. The arborist said root damage was the cause of the tree’s failure and it was likely caused when the Village or a contractor performed a sewer repair on Oak Street.
The Sheperaks notified the Village which then asked the Swanton Tree Commission (STC) to assess the tree. The STC came out and assessed the damaged tree and advised the Sherperaks to submit a formal request for assessment. The request was submitted and the STC returned, reassessed the tree and filed a report with the Village.
The report read, in part: Very large (30” diameter) and tall oak tree. Serious rot at the bottom of the trunk on the SE side of the trunk. Trunk also has a horizontal crack on the south side. Dead limbs in upper branches. Potential hazard to homes and other trees in the area. Measured at 24’ from the center of Oak Street making it a street tree. Recommendation: High priority to remove ASAP.
With the STC labeling the dying oak a “street tree” it became the responsibility of the Village to take care of. However, Village Administrator Rosanna Hoelzle wanted confirmation of the tree’s location to be sure it was in the Village’s right-of-way and therefore, its responsibility. This started a process involving the Fulton County Engineer’s office which caused a two-week delay. Ultimately, it was confirmed that the tree belonged to the Village.
In the meantime, acting upon the STC’s recommendation, the Sheperaks had the tree removal work estimated by five companies with the lowest price coming in at $2,145 from Sidonian Tree Service, a company the Village had used in the past. They were also told by one of the estimators that if the tree fell it would land on their neighbor’s house. Given this information and the urgency of the situation, the Sherperaks had the tree removed, eight days before the Village received confirmation that it owned the tree.
Sometime after the Sheperaks were informed that the tree did indeed belong to the Village they asked to be reimbursed for the $2,145. Unfortunately, because they did not obtain a permit to remove the tree as stated in Ordinance 2009-24, the reimbursement was denied. Also stated in the Ordinance is the property owner must receive approval from the Tree Commission which the Sheperaks thought they had. However, Ms. Hoelzle said that the STC “recommendation” does not mean “approval”. In effect, weaponized semantics.
There are several things to consider with this case. First, it was undisputable that the tree needed to come down ASAP, As Soon As Possible, not when all the red tape requirements were satisfied. Second, also undisputable, the tree was the responsibility of the Village. In fact, it was very possible the Village caused the damage to the tree. And it was during a time of the year of rapidly changing weather conditions in Northwest Ohio, changes that often trigger storms, storms with heavy rain and damaging winds.
It was close to the same time just two years ago when an oak tree of comparable size came down in Memorial Park and crushed the Beard Pavilion. It was in the morning of a school day just after all the kids were in class and nobody, fortunately, was hurt. You know what they say. “Those who forget history are doomed to repeat it.” We can only wonder what could have happened if the tree at 102 Oak Street had not been removed when it was.
The Sheperaks appealed in front of the Village Council for reimbursement and were told a decision would be rendered at the August 23rd Council meeting after it was discussed by the Village Services Committee members Dave Pilliod, Craig Rose and Katy Kreuz. After some discussion, Mr. Pilliod, chairman of the Committee, spoke to the Sheperak’s request. “I thought it was very legitimate, he said. You didn’t exactly cross all the t’s and dot all the i’s but you came close enough for me to reimburse you. That’s my feeling.”
Mr. Rose, on the other hand felt differently. “I thought it could have been handled completely different,” he countered. “Looking at the folks you had who said it was a safety hazard, I’m not sure that those people we would have necessarily called upon to assess the damage of that tree. I’m going to go ahead and say I’m not in favor of compensating for that.”
Mr. Sheperak then reminded Mr. Rose that it was the Swanton Tree Commission that assessed the tree and said it had to come down “high priority, ASAP”. Ms. Hoelzle interjected and said the Village still needed to go through their procedure and by the time it was done, the tree had been removed, inferring that the opportunity for the Village to be held liable for the expense had been lost.
When asked for her opinion on the issue, Ms. Kruez said she did not know if she would be “willing to go the whole amount” but did not know what amount she would agree to. Eventually, Councilwoman Dianne Westhoven suggested the cost be evenly split between the Village and the home owner. A motion to split the cost evenly was made and seconded.
The vote was taken and went this way. Mr. Pilliod (Yes), Mr. Rose (No), Ms. Kruez (Yes), Mr. Stuart (No), MS Westhoven (Yes) and Mr. Rochelle (No). It was tied at three apiece forcing Mayor Neil Toeppe to cast the deciding vote. Mr. Toeppe voted yes and the motion for each party to pay $1,072.50 was approved.
What I find hard to understand with respect to this case is what motivated the Village administration and several council members to push back so hard not to cover the cost of a bill they were morally obligated to pay. Why were they willing to let a public safety hazard remain for as long as they did? There are times when circumstances need to take priority over what protocol and procedures outline, especially when the safety of the public is at risk.
They even questioned if there was enough money in the Village’s 11-million-dollar annual budget to cover the $2145 bill, a bill they would have had to pay if a permit had been filed. Maybe they were just trying to get out of having to pay the bill by taking advantage of a 79-year-old resident who was not familiar with the ordinance. Yes, most of us know that ignorance of the law is not a defense or an excuse. They even had the courtesy to explain that to Mr. Sheperak, a retired attorney.
What if the tree had fallen after the Village became aware of its condition and had caused damage or injury or, God forbid, a fatality? What would that have cost the Village? As I see it, the Sheperaks did the Village of Swanton a big favor. But you know what else they say, “No good deed goes unpunished.”
Pictured: Mr. Thomas Sheperak in Council chambers
Fulton County Ohio Media 