South Austin family deals with construction up against home, removal of trees

AUSTIN, Texas - In December, FOX 7 told you the story of a couple who has construction running through their yard without compensation because of a $1 easement from 1958. 

Now, construction is further along, and several trees have been removed, including one they thought was going to be saved.

The backstory:

Eden and Ryan O'Malley live in a historic 1940s home on Thornton Road. Construction for the Del Curto Storm Drain Improvement Project is right up against their house.

Crews recently cut down three trees in their yard as well. Two trees were in the city-owned easement. The O'Malleys claim the third one is on their property line, though the city says it's in the easement.

"The construction's been happening, it's very extreme, but I think the most jarring for us recently was the loss of three 100-plus-year-old, like 100-foot tall trees," Eden said. "There's been zero communication plan from the city about the mitigation or replacement or anything like that. They're just gone."

Dig deeper:

The O'Malleys say they were originally told the third tree would be saved.

"I think the construction company is just doing what they've been told. The city told them that they did not need to get a permit for one of the trees. It would be completely fine through the construction. Of course, their equipment severed the roots of that tree, and got confirmation from an arborist on site that that's exactly what happened. They did get a permit for it. It was a little unsettling," Eden said.

The tree removal permit described the tree as having "multiple gashes in branches, potential car damage to the trunk, very poor health, and potential hazard."

"The main reason they listed for it needing to go was that there was car damage to the trunk of the tree, which has never happened. It was just kind of like putting the blame onto us and not taking any type of responsibility for it," Eden said.

The city told FOX 7, "the tree in question was a 25" hackberry tree in dead, diseased, or imminent hazard (DDI) condition prior to the project. It was not classified as a heritage tree, as heritage trees are defined in the Environmental Criteria Manual (ECM) as trees 24" or larger in diameter of specific species, a list that does not include hackberries (see the Code of Ordinances definition of COA Heritage Trees here). A 25" hackberry could qualify as a protected tree, but not if it is in DDI condition, and City arborists determined that this tree met DDI conditions independent of any actions of the project. In addition, per the survey, the tree was located within a City drainage easement on the adjacent property, and its roots were preventing the construction of the planned drainage facilities."

FOX 7 asked the city if the tree was going to be removed anyway. The city says, "Originally, the City had hoped to avoid removing the tree. Nevertheless, the 25" hackberry tree qualified for removal regardless of construction occurring in the area, as it both prevented construction and maintenance within a City-owned drainage easement, and met DDI conditions, as determined by City arborists."

FOX 7 also asked why car damage was cited in the permit, even though the O'Malleys dispute that. The city said: "The permit application cited 'potential' mechanical damage or storm damage based on observations of the tree. It is difficult to say exactly what caused the damage, but City arborists determined the tree is in DDI condition due to multiple large cavities along the trunk, significant splitting, structural defects to the bark where it is severely included, and evidence of previous damage. City arborists review trees for DDI conditions regardless of what is written on the applications.  No mitigation is required for trees in DDI condition."

The city says the other two trees in the easement will not be replaced because they could obstruct the maintenance of assets like storm drains. 

What's next:

The O'Malleys continue to deal with construction six days a week, from 7 a.m. to 7 p.m.

"We understand they're trying to just get their job done as fast as possible, but it's extremely hard to live and work and have the dust, have the noise, have the vibration. We've experienced over 100-plus decimals of digging noise. The City of Austin thinks it's still safe for us to be here and live here," Ryan said. "There just needs to be more invested into protecting the residents that have to live through the construction."

FOX 7 asked the city what they're doing to communicate what's happening and how the burden can be eased on residents.

They said, "the City has been sending out updates via email to residents on the subscription list. These emails include updates on construction schedule, what streets are being worked on, and potential neighborhood impacts. The residents also have been reaching out to our construction inspector, who has been working efficiently to address concerns and questions as they arise. The project team has been in close contact with the residents and their attorney and received agreement in writing for the removal of the tree before its removal."

7 On Your SideSouth Austin