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DIR2012-00003 DIRECTOR'S INTERPRETATION TIGARD DIR2012 -00003 DATE: June 18, 2012 CODE CHAPTER: 18.790 — Tree Removal TOPIC: Tree Removal Permit Applicability LOCATION: Sensitive Lands I. REQUEST The Tigard Development Code recognizes that some parts of the code may not provide adequate guidance in some situations. It was not possible for the code's drafters to anticipate all land use circumstances. To address this, Chapter 18.340 of the code authorizes the director to render an administrative code interpretation to provide greater clarity. City staff has received inquiries about whether tree removal permits are required to remove noxious trees in sensitive lands. The Tigard Development Code is ambiguous on this matter and does not provide clear direction. In order to address this circumstance, the following two sections analyze the situation and establish an appropriate Director's Interpretation on how the code is to be administered. II. ANALYSIS The City of Tigard, in partnership with Clean Water Services, engages in the restoration of sensitive lands to implement the Healthy Streams Program, which supports the city's compliance with the Metro Urban Growth Management Functional Plan (UGMFP) and Statewide Planning Goal 5 requirements. Restoration activities include the removal of noxious vegetation and replacement with native vegetation, which improves water quality and wildlife habitat. Among the noxious vegetation typically removed are several species of non -native trees such as English hawthorn, English holly and sweet cherry. Section 18.775.020.B of the Tigard Development Code (WC) lists the removal of noxious vegetation in sensitive lands among the "outright permitted uses with no permit required." Further, section 18.775.020.0 lists "stream and wetlands restoration and enhancement programs" and "non- native vegetation removal" among the exemptions from sensitive lands permits. Also, Metro Council adopted a "Nuisance Plant List" through Resolution 98 -2708, which exempts the removal of nuisance /noxious vegetation, including trees, from within environmental areas regulated by Metro under the UGMFP. 1 of 2 However, section 18.790.050 of the TDC requires tree removal permits "for the removal of any tree which is located on or in a sensitive land area as defined by Chapter 18.775 ". Section 18.790.050 does not differentiate between noxious and native trees regarding permit applicability. Therefore, there is a conflict between Chapter 18.790 of the TDC, which requires permits for noxious tree removal in sensitive lands, and Chapter 18.775 of the TDC, which exempts from permits the same activity, as well as, the regulations adopted by Metro that essentially direct local governments to exempt noxious tree removal from their environmental regulations. Given the conflict between Chapters 18.790 and 18.775, the more specific regulations should apply. Chapter 18.775 is more specific because it acknowledges the need to restore sensitive lands by removing noxious vegetation. Chapter 18.790 applies more generally to tree removal and does not differentiate between noxious and native trees in the same manner as Chapter 18.775. Therefore, the exemption from permit requirements in Chapter 18.775 should supersede the permit applicability in Chapter 18.790 for the removal of noxious trees. In addition, while the City of Tigard does not have a list of noxious trees, it is in the process of developing one through the Urban Forestry Code Revisions (UFCR) project. The draft list of noxious trees being developed through the UFCR is substantially similar as the trees in the Nuisance Plant List adopted by Metro through Resolution 98 -2708. Therefore, the specific trees that should be considered noxious, and thus exempt from permit requirements, should be those listed in the Nuisance Plant List adopted by Metro until such time as the city's list is adopted and made effective through the UFCR. III. INTERPRETATION Trees in the Nuisance Plant List adopted by Metro through Resolution 98 -2708 shall be exempt from tree removal permit requirements in Chapter 18.790.050. This interpretation shall be effective until the UFCR is adopted by the Tigard City Council and made effective. (O/41/Z Susan Hartnett, Assistant Community Development Director Date For Ron Bunch, Community Development Director ATTACHMENT: NUISANCE PLANT LIST EXCERPTED FROM METRO RESOLUTION 98 -2708 2 of 2 Nuisance Plant List Plants on this list can be removed without environmental or greenway review. Other local, state or federal laws may still regulate removal of certain plants on this list. These plants may be native, naturalized or exotic. They are divided into two groups: plants which are considered a nuisance because of their tendency to dominate plant communities and plants which are considered harmful to humans. Indicator Scientific Name Common Name Status Dominating Plants Acer platanoides Norway Maple NI Ailanthus altissima Tree -of- Heaven NI Alliaria officinalis Garlic Mustard Chelidonium majus Lesser Celandine Cirsium arvense Canada Thistle FACU+ Cirsium vulgare Common Thistle FACU Clematis ligusticifolia Western Clematis FAC - Clematis vitalba Traveler's Joy Convolvulus arvensis Field Morning -Glory Convolvulus seppium Lady's- Nightcap Cortaderia selloana Pampas Grass Crataegus sp. except c. douglasii Hawthorn, except native species Daucus carota Queen Anne's Lace Egeria densa* South American Waterweed OBL Elodea densa South American Waterweed Equisetum arvense Common Horsetail FAC Equisetum telemateia Giant Horsetail FACW Erodium cicutarium Crane's Bill Geranium robertianum Robert Geranium Hypericum perforatum St. John's Wort Ilex aquafolium English Holly Iris pseudacorus Yellow Flag OBL Lemna minor Duckweed, Water Lentil OBL Leontodon autumnalis Fall Dandelion FAC Myriophyllum spicatum Eurasian Watermilfoil OBL Poa annua Annual Bluegrass _ FAC Polygonum coccineum Water Smartweed OBL Polygonum convolvulus Climbing Bindweed FACU - Polygonum sachalinense Giant Knotweed FACU Prunus laurocerasus English, Portugese Laurel Rubus laciniatus Evergreen Blackberry FACU+ Senecio jacobaea Tansy Ragwort FACU Solanum dulcamara Blue Bindweed FAC+ Solanum sarrachoides Hairy Nightshade Taraxacum officinale Common Dandelion FACU Metro Native Plant List Page 19 Utricularia vulgaris Common Bladderwort Various genera Bamboo sp. Vinca major Periwinkle (large leaf) Vinca minor Periwinkle (small leaf) Xanthium spinoseum Spiny Cocklebur FACU Harmful Plants Conium maculatum Poison - Hemlock FACW- Laburnum watereri Golden Chain Tree Rhus diversiloba Poison Oak Solanum nigrum Garden Nightshade FACU Metro Native Plant List Page 20