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DIR2008-00001 pik,01068-60 DIRECTOR'S INTERPRETATION • . ; t ARDi DATE: February 26, 2008 CODE CHAPTER: 18.790 Tree Removal TOPIC: How should the statement, "Protection is preferred over removal wherever possible" in Section 18.790.030 be interpreted? How can an applicant demonstrate that they have adequately considered tree protection given code preference for protection over removal? DIRECTOR'S INTERPRETATION: I. Introduction A tree plan is required when a development application is filed: 18.790.030 Tree Plan Requirement A. Tree plan required. A tree plan for the planting, removal and protection of trees prepared by a certified arborist shall be provided for any lot, parcel or combination of lots or parcels_ for which a development application for a subdivision, partition, site development review, planned development or conditional use is filed. Protection is preferred over removal wherever possible. Historically, applicants have been required to identify all of the trees on the site, specify which will be removed, and propose protection methods for those to be retained. Any or all trees could be removed as long as they were appropriated mitigated. This process does not prioritize protection over removal as required by Section 18.790.030. In order to clarify the intent of the, "Protection is preferred over removal wherever possible" requirement, a Director's interpretation is needed. II. Interpretation One of the primary purposes of Chapter 18.790 of the Tigard Development Code is to preserve existing trees. Therefore, a development application is required to demonstrate that the site analysis and development plan protects the maximum amount of existing, viable trees (i.e. healthy and sustainable individuals or stands). The City recognizes that some tree removal is unavoidable in order to meet certain planning and /or construction requirements as indicated in Section 18.790.010. 18.790.010 Purpose C. Recognise need for exceptions. The City recognises that, notwithstanding these purposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets utilities, and other needed or required improvements within the development. In order to determine that preservation of viable trees has been adequately considered, the tree plan shall include a narrative that addresses the following: 1. How does the site, lot and /or building layout maximize tree retention? 2. How have improvements such as roads, driveways, utilities, and walkways been designed and located to maximize tree retention? 3. Have tree compatible construction techniques been considered and utilized wherever possible to maximize tree retention? (examples of tree compatible construction techniques include but are not limited to tunneling for utilities, "no -dig" pavement installation, and use of retaining walls in certain situations to limit root disturbance) 4. Is it possible to reduce the number of parking spaces to maximize tree retention? 5. Is it possible to reduce the total number of lots to maximize tree retention? 6. Could lot size averaging per Section 18.790.040(2) be utilized to maximize tree retention? 7. Could lot width and /or depth per section 18.790.040(3) be reduced in order to maximize tree retention? 8. How have buildings and building footprints been designed to maximize tree retention? 9. Are offsite trees that may be impacted by development inventoried and adequately protected? 10. Describe additional techniques not mentioned above that have /will be used to maximize tree retention. Failure to demonstrate that the proposed development will preserve viable trees wherever possible may result in findings for denial of a development application. This interpretation shall become effective immediately. / By: Tom Coffee Community Development Director Case Activity Listing 2/13/2009 ` - G+ EL Case #: M11S2008 -00005 8:40:34AM .... �.:. Ate. aV` 'r t To' Bu �. Notes a' ;�' ate• , <I1o1dE- ;� ':Dis "r. -; �, e °2 Dt 3 i n i " :� D`atexl Act De t o M1S1020 Application received 3 /14/2008 None DONE ST 2/13/2009 The Home Builder's Association of PLL Metro Portland Appealed the 2/26/08 Director's Interpretation of Chapter 18 790 -Tree Removal. MIS1030 Case created 3/14/2008 None DONE ST 3/14/2008 ST MIS1040 Planner assigned 10/1/2008 None DONE GBP PLL 10/1/2008 PLL MIS1000 CASE REVIEW 5/13/2008 None HRNG GBP PLL 10/1/2008 5/13/08 public hearing is scheduled MENU PLL before the City Council to consider the appeal. AT THE 5/13/08 PUBLIC HEARING, THE COUNCIL CLOSED THE PUBLIC HEARING AND SCHEDULED 6/10/08 TO RECONVENE TO REVIEW AND DELIBERATE ON THIS ITEM MIS1000 CASE REVIEW 6/10/2008 None HRNG GBP PLL 10 /1 /2008 6/10/08 public hearing is scheduled MENU PLL before the Council, continued from 5/13/08 MIS2020 Approved 6/10/2008 None APRV GBP PLL 10/1/2008 On 6/10/08 the Council reconvened PLL to consider this item and ultimately concluded that the clarity of interpretation of a Code that is v could be construed as a "judge making law from the bench" and that it is vulnerable to a LUBA challenge The Council pointed out that the Tigard Tree Code will be completely revised shortly following the Comprehensive Plan update and thatg that would be the proper place to address this matter A unanimous vote of Coucil present was approved to uphold the appeal Page 1 of 2 CaseActivity tpt 2/13/2009 Case Activity Listing ACCEL/' Case #: M1S2008 -00005 8 40 34AM As s► ned ";.'.' ,Done U )�tlated r �� �i/ '447.,,,,/:4;4 rte <, ma . C�. +`-, n � �t 7'. @, a To..,'' B Notes," Ho -.Dis �',. 'B v ,�`. Date:_: `_Date ld, Dated � �. i N it � "rt rtion �,.`�. - -. ;Act v Desc v- MIS2070 Case closed 10/1/2008 None CLSE PLL 10/1/2008 PLL Page 2 of 2 CaseActivtty.rpt DATE: 2/26/2008 CODE SECTIONS: 18.790.030 • 1 ; Tree Removal/Tree Plan Requirement INTERPRETATION: TO CLARIFY THE INTENT OF "PROTECTION IS PREFERRED OVER REMOVAL WHEREVER POSSIBLE" REQUIREMENT OF SECTION 18.790.030 - TREE PLAN REQUIREMENT. TOPIC: How should the statement, "Protection is preferred over removal wherever possible" in Section 18.790.030 be interpreted? How can an applicant demonstrate that they have adequately considered tree protection given code preference for protection over removal? I. INTRODUCTION A tree plan is required when a development application is filed: 18.790.030 Tree Plan Requirement A. Tree plan required. A tree plan for the planting, removal and protection of trees prepared by a certified arborist shall be provided for any lot, parcel or combination of lots or parcels for which a development application for a subdivision, partition, site development review, planned development or conditional use is filed. Protection is preferred over removal wherever possible. Historically, applicants have been required to identify all of the trees on the site, specify which will be removed, and propose protection methods for those to be retained. Any or all trees could be removed as long as they were appropriated mitigated. This process does not prioritize protection over removal as required by Section 18.790.030. • In order to clarify the intent of the, "Protection is preferred over removal wherever possible" requirement, a Director's interpretation is needed. II. INTERPRETATION One of the primary purposes of Chapter 18.790 of the Tigard Development Code is to preserve existing trees. Therefore, a development application is required to demonstrate that the site analysis and development plan protects the maximum amount of existing, viable trees (i.e. healthy and sustainable individuals or stands). The City recognizes that some tree removal is unavoidable in order to meet certain planning and /or construction requirements as indicated in Section 18.790.010. 18.790.010 Purpose C. Recognize need for exceptions. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain trees in order to accommodate structures, streets utilities, and other needed or required improvements within the development. In order to determine that preservation of viable trees has been adequately considered, the tree plan shall include a narrative that addresses the following: 1. How does the site, lot and /or building layout maximize tree retention? 2. How have improvements such as roads, driveways, utilities, and walkways been • designed and located to maximize tree retention? 3. Have tree compatible construction techniques been considered and utilized wherever possible to maximize tree retention? (examples of tree compatible construction techniques include but are not limited to tunneling for utilities, "no -dig" pavement installation, and use of retaining walls in certain situations to limit root disturbance) 4. Is it possible to reduce the number of parking spaces to maximize tree retention? 5. Is it possible to reduce the total number of lots to maximize tree retention? 6. Could lot size averaging per Section 18.790.040(2) be utilized to maximize tree retention? • 7. Could lot width and /or depth per section 18.790.040(3) be reduced in order to maximize tree retention? 8. How have buildings and building footprints been designed to maximize tree retention? 9. Are offsite trees that may be impacted by development inventoried and adequately protected? 10. Describe additional techniques not mentioned above that have /will be used to maximize tree retention. Failure to demonstrate that the proposed development will preserve viable trees wherever possible may result in findings for denial of a development application. This interpretation shall become effective immediately. By: Tom Coffee, Community Development Director UPDATE: 3/14/08, the Home Builder's Association of Metro Portland Appealed the 2/26/08 Director's Interpretation of Chapter 18.790 - Tree Removal, to the City Council. See land use file MIS2008- 00005. Council held a public hearing on the appeal on 5/13/08 and closed the public hearing and scheduled 6/10/08 to reconvene to review and deliberate on this item. On 6/10/08, the Council reconvened to consider this item and ultimately concluded that the clarity of interpretation of a Code that is vague could be construed as a "judge making law • from the bench" and that it is vunerable to a LUBA challenge. The Council pointed out that s the Tigard Tree Code will be completely revised shortly following the Comprehensive Plan update and that that would be the proper place to address this matter. A unanimous vote of Council present was approved to uphold the appeal.