Five large heritage trees, protected by D.C. law, are standing in the way of a project to build nearly 200 apartments a site near the Minnesota Ave. Metro Station in Ward 7, according to a developer. The company, City Interests Development Partners, has gotten legislation introduced in the D.C. Council that would exempt its property from the city’s heritage tree protections, allowing the trees to be cut down.

It’s the latest chapter in an ongoing tussle between those who seek to protect and expand the District’s tree canopy — who note that climate change is making the city hotter and making trees all the more important — and developers, some of whom see trees as taking up space that could be more profitably used, and who say protecting the trees is at odds with D.C.’s goals to build more housing.

Numerous developers have simply ignored the law that’s been in place since 2016, illegally cutting trees and then paying the hefty fine, chalking it up to the cost of doing business in the District. But in this case, the developer isn’t ignoring the law, but, rather, trying to rewrite it.

The mixed-use project, called Parkside, has been in the works since 2004, and already hundreds of townhomes and apartments have been built, including subsidized affordable housing, public housing, and market rate housing. But on the site where two new buildings are slated to go up, stand five trees each measuring more than 100 inches in circumference, large enough to qualify as protected heritage trees. Such trees can only be removed if they are certified by a District arborist as being dead or otherwise hazardous. Fines for illegal removal start at $30,000.

“What we have here is a bit of a conundrum for a developer,” says Peter Farrell, managing partner of City Interests. “We were given a right to develop the property and subsequent to that being issued, the District government introduced new legislation protecting heritage trees. So we’re at a conflict because without removing the trees, you can’t build the buildings.”

The location of the five heritage trees, in the block bounded by Parkside Pl., NE and Kenilworth Terr., NE.

City Interests hired a lobbyist to plead its case before the D.C. Council, spending $9,000 since the beginning of the year. The lobbyist emailed and met with with staff from the office of Councilmember Mary Cheh (D-Ward 3), who chairs the transportation and environment committee and who originally introduced the heritage tree legislation, and with staff from Councilmember Vincent Gray’s office (D-Ward 7), who represents the area where the development is located.

Cheh was not interested.

“I was not inclined to consider an exemption,” Cheh tells DCist/WAMU. “I know the exemption business: Once you have one, then you have two.”

Councilmember Gray, on the other hand, lent a sympathetic ear, and introduced a bill to exempt Parkside from the heritage tree law. Gray was not available for an interview with DCist/WAMU and did not provide comment on the bill, despite multiple requests.

Cheh says she supports the development, but does not want to start a precedent of allowing exemptions for particular properties, which she says would undermine the law. And, she says, since the bill is in her committee, it won’t be going anywhere.

“I have no intention of moving this bill,” Cheh says. “I think it’s bad business, and I’m sorry that after they got the reception that they got from my office, that they figured they would shop it around to somebody else, because I’m still not interested.”

Rather than paying a lobbyist to try to get a loophole written in to the law, Cheh says City Interests should instead pay to have the trees relocated, as some other developers have done, in order to comply with the heritage tree law.

“They would be the beneficiaries of these magnificent trees, their magnificent canopies, and they should just pencil it in as part of the cost of their development,” Cheh says.

But Farrell says that’s not realistic — he says the project is already being squeezed by rapidly rising financing and construction costs. To move the five trees, he says, would cost at least $1 million.

“People might say, ‘Well, jeez, you can’t afford $1 million? You’re a developer!’ Well, fact of the matter is, we can’t afford $1 million,” Farrell says. “It’s the confluence of all of these economic and financial strains all happening at once that’s going to stymie this project from going forward.”

The five heritage trees on the Parkside development property that would be exempted from protections under the proposed bill.

Environmentalists, though, say these mature trees provide a nearly irreplaceable benefit to the community.

“Our heritage trees, our special trees, our oldest and largest trees, they provide the most ecosystem services through cooling shade, flood mitigation, and better air quality,” says Kelly Collins Choi, director of policy and land conservation at the nonprofit Casey Trees. “When you take those trees down, even if you plant new, younger trees, it will really take decades for them to catch up and provide those same services.”

The most recent data on the District’s tree canopy shows, for the first time since 2006, a decrease in tree coverage. The tree canopy shrunk by 1%, losing roughly 550 acres, according to Casey Trees. In wards 5, 6 and 8, the rate of canopy loss was double the citywide average, driven by booming development.

“These are also the areas of our city that are most vulnerable to climate impacts, such as heat and flooding, as well as experiencing health inequities, such as higher asthma rates in children,” Choi says.

“We’re not against development, but we are for equitable, sustainable development,” Choi adds. “These communities — and every community — deserve to benefit from the ecosystem services that these large old shade trees provide.”

But Farrell says the five protected trees on his building site present a choice — between greenery and making progress toward the District’s goal of building 36,000 new homes by 2025. That goal aims to keep up with demand and to prevent housing costs from skyrocketing further.

“We just have to decide, since we can’t achieve both,” Farrell says. “I think housing is a critically important element for this city: We simply don’t have access to affordable housing for enough people in the District of Columbia. Period. End of discussion.”

D.C. lawmakers, led by Cheh, recently have been working to tighten protections for heritage trees, after several cases where developers illegally cut down trees while city officials looked on, powerless to stop them. Under emergency legislation, the city can now issue stop work orders to prevent illegal tree removal, rather than just retroactively issue a fine.