Developer Pays Fine After Allegedly Poisoning Protected Trees On 2 D.C. Sites

A D.C. developer has agreed to pay a $144K fine for allegedly poisoning trees it wanted removed from a development site.

The firm, H2 Design Build, agreed to pay the fine to the Urban Forestry Division after the District agency found that four large trees had been poisoned on two development sites, The Washington Post reported.

H2 denied it poisoned the trees, despite paying the fine in May, saying in a statement it was happy to pay into a program that supports the tree canopy of the District more broadly. An H2 spokesperson told Bisnow that the firm disagrees with the findings of the District's arborists and said paying the fine was a "business decision," not an admission of guilt or liability.

"We had serious concerns about the accuracy and inconsistencies in the UFD report," the spokesperson said. "Two additional studies completed by a separate arborist indicate a proper investigation was not conducted by UFD and the conclusions in their report were unsubstantiated and reflect a rush to judgment.”

The additional studies, commissioned from a Delaware-based arborist by H2, claimed that other environmental factors could have led to the trees' demise, and that the presence of herbicide could have been from treatment of ground cover rather than a targeted poisoning. 

D.C. has protected heritage trees, defined as those larger than 100 inches in circumference, since 2016, with fines that start at $30K for unlawful removal. The District also has protections for smaller trees starting at 44 inches in circumference that require a developer to acquire a permit before removal.

The protections evolved as the District set out on a goal to cover 40% of its territory with trees by 2032, but it has come into conflict of late with developers who are trying to meet ambitious housing production goals as well.

Those twin goals have led to rising tensions between developers and arborists, with the total number of fines issued by the District's Urban Forestry Division increasing over the past few years, according to the Post.

The allegations against H2 Design Build concern two white oaks on a parcel of land in the 5400 block of D Street SE and two elms at a parcel bounded by Howard Road SE and Shannon Place SE.

Property records show H2 Development acquired the property on D Street for $1.6M from the H Street Community Development Corp. in October 2020. The developer planned to build 29 townhomes on the site, which had trees but no commercial structures.

In February 2022, forestry officials examining the site noticed "injection holes" on two heritage white oaks on the site that had died, which they determined couldn't have been created through natural causes. An investigation into the trees' deaths turned up herbicides in tissue samples, the Post reported.

The investigation triggered a closer look at another site acquired by H2 from the District for $1. 

At the 2400 block of Shannon Place SE, the Office of the Deputy Mayor for Planning and Economic Development had acquired a parcel adjacent to the Anacostia Metro station for $1.5M before handing it over to H2 for the production of affordable housing in 2018.

There, the developer was planning to construct 20 for-sale townhomes and had filed a permit in 2022 to remove two dead American elm trees. 

When urban foresters raised concerns about the site to DMPED, the latter agency notified H2, and the dead elms were reportedly removed before foresters could reach them. Subsequent testing of the stumps confirmed presence of herbicide.

“The District remains committed to protecting all of its natural resources and helping DC’s tree canopy flourish and thrive across all eight wards," a DMPED spokesperson told Bisnow in a statement. "When urban foresters requests a closer look, DMPED reached out to the developer to gain access to the site. In the meantime, the trees were removed in accordance with the permit DDOT had already issued.”

A former arborist with the District said there were "critical questions" surrounding the poisoning and removal of the trees in an interview with the Post, including the connection between DMPED and H2.

The firm's founder and principal, Harvey Yancey, has worked with DMPED and other city agencies to develop affordable housing and serves on the mayor's Black Homeownership Strike Force.

DMPED told the Post that it had followed "customary" protocols when notifying H2. The agency also told the Post it would work more closely with DDOT, the parent agency for the Urban Forestry Division, "to ensure more effective communication on such matters in the future."

UPDATE, FEB. 14, 3:45 P.M. ET: Comments from a spokesperson from H2 have been added.