Hamilton couple loses 15-month, $5,400 fight to save two beloved trees

The trees, two Siberian elms, stood about 25 feet from each other on a narrow strip of land behind the wooden fences that led to a neighbour's backyard.

Evan Aagaard and Laura Borrelli didn't notice them much when they moved into the Picton Street East home in 2016.

We never thought of them as ours," Aagaard said, because both of these trees sit in this No Man's Land where they're not quite on anybody's property but surrounded on all sides by deep backyard lots."

But one of the trees did belong to the couple - well, about 30 per cent of one of them.

That's what the City of Hamilton drew up when it ordered the removal of both beloved trees for reasons residents claim were misguided, rash and arbitrary.

Four property owners - two on Picton Street East, one on Ferrie Street East and another on Ferguson Avenue North - were ordered by the city to pay for the removal of the two trees in September 2019.

The 55-foot-high Siberian elms were on the boundary line of the properties, the city claimed, and owners bore a collective financial responsibility to remove them proportional to the sections of the trees which extended to their properties.

Sound confusing? It was. Especially to Aagaard and Borrelli.

The city, they won't explain how they've determined who owns what," said Borrelli. They said the only way to find that out is to do a survey, which we would have to pay for at a cost of $2,000.

At that point, we might as well just take them down."

That's what the neighbours did on Nov. 20 after a bitter and emotional 15-month fight to save the trees ended in a $5,400 bill to reduce them to mere stumps.

What triggered the removal order was a complaint in July 2019 from a tenant who lived on Ferguson, who contacted the city about one of the boundary tree branches hanging over his yard.

A city arborist concluded in a tree risk assessment report that both trees - not just the one the complaint stemmed from - were unhealthy, at high-risk of failure and could be a danger to people.

The only mitigation option listed in the report was to remove the trees.

But a separate assessment, conducted by a certified arborist who neighbours hired out of pocket, concluded the trees to be of just moderate risk. The mitigation options listed in the report were yearly maintenance, inspections and the pruning of some branches.

Aagaard said the city refused to consider the independent assessment at an appeal hearing with the Property Standards Committee on Jan. 21.

We found alternatives to avoid this and the city just did not want to listen to them," said Aagaard, who represented neighbours at the hearing which he likened to a dog and pony show."

And it seemed like they didn't want to do that because they didn't want to entertain the notion they could be wrong."

The city doesn't want to take your word for it. They don't go out and get other opinions," added Borrelli. It's so black and white."

The Spectator posed several questions to the city in relation to the neighbours' concerns. None were directly answered.

If residents disagree with decisions made by the Property Standard Committee, their alternative is to appeal to a higher court," said Tamara Reid, supervisor of operations and enforcement in the city's bylaw department. Reid said the city is obligated to adhere to the committee's decision.

What particularly confused Aagaard and Borrelli was the city's argument that the trees could be dangerous to people in backyards.

The city assessment concluded the likelihood of branches impacting people in backyards to be high" and the consequences of such to be severe."

But our lots here in the North End are very deep, and anything around the trees are sheds," said Borrelli. If these trees were right over someone's house, or kids were playing, I feel like it would be a different story. But there's nothing."

Hubert Labelle, a next-door neighbour to the couple who was also subject to the removal order, said he never had any issue" with the trees in 40 years of living on Picton.

Mother Nature gave us those trees," said Labelle, 73. We should take care of them."

Labelle was there when a former neighbour, a longshoreman, plopped the trees into two patches of soil on a whim in the 1980s. He brought out a beer and watched as the roots dug into the soil.

They were wee-little things back then," he said, but afterwards I used to sit out there all the time and watch the squirrels bounce around."

In the summertime, the trees played host to all kinds of wildlife: chirpy birds, noisy woodpeckers, springy squirrels. The canopies brought life to a brick-heavy north Hamilton landscape. They were a comfort," Labelle said. It's a shame what has happened. It's barren out there now."

Linda James was there to watch the trees grow and mature after her mother bought the longshoreman's Ferrie Street East property in 1984. She never knew who planted them, or who they belonged to, but everyone loved them," she said.

Year after year after year, I lived there over 30 years, and they were beautiful and afforded us privacy," said James, who sold the family home before the trees were cut down.

James bore the brunt of the removal costs because the majority of the trees fell on her property.

She took issue with the way the city zoned properties in the order, and said at least two more neighbours - one directly adjacent to her home and another on Ferguson - should have been subject to it.

There was more neighbours involved in the sharing of those trees, but they stopped at the ones they picked," James said. They picked the ones they picked and left two neighbours out where the trees were actually on their property."

A photo of one of the trees, presented at the appeal hearing, showed a stump growing over James' fence line and onto her next-door neighbour's backyard on Ferrie. The neighbour was never added to the removal order.

Honest to God, it's like they made up the rules," James said. We didn't know what was going on. Thanks goodness for Evan and Laura - we wouldn't understand anything without them."

Aagaard echoed that sentiment of widespread confusion among neighbours.

He pointed to one specific example in February when, after the appeal had been lost, he received an email confirmation from a bylaw officer which stated, (T)he trees can be cut down to the 8-12 ft. levels, as noted in the arborist's letter."

Then in September - the removal order deadline was extended from three months post-appeal to November due to COVID - Aagaard received an email from supervisor Reid that the trees had to be axed to ground level.

She contradicted her own bylaw officer," Aagaard said. They all seemed confused about how to handle the situation."

It's been more than a month since the Siberian elms came down. The immediate stress of the year-long fight to save them has dissipated. The emotional toll has not.

I couldn't even go back there a few weeks ago," Aagaard said. I didn't want to look at it because of how barren it feels."

Evan and I, we went above and beyond try and save these things," Borrelli added. And to explain to neighbours that, at the end of the day, our hands our tied and they're coming down ... It sucks."

Sebastian Bron is a Hamilton-based reporter at The Spectator. Reach him via email: sbron@thespec.com