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04/26/1995 - Packet UPCOMING MEETING NOTIFICATION CITY OF TIGARD TREE TASK FORCE TREE TASK FORCE MEETING WEDNESDAY APRIL 26, 1995 7:00 P.M. TIGARD CITY HALL, TOWN HALL CONFERENCE ROOM 13125 SW HALL BOULEVARD TIGARD, OR 97223 (503) 639-4171 OW Please Note: Enclosed is a copy of a draft tree removal code incorporating the task force's suggestions. MEMORANDUM CITY OF TIGARD, OREGON TO: Tree Task Force FROM: Dick B. and Carol L. DATE: April 17, 1995 SUBJECT: Revised tree ordinance Based on the group's comments at its last meeting, the following changes were made to the draft ordinance: 1. 18. 150.010 - added # 8 to regulate commercial forestry 2. . 18 . 150.020 - added definition of commercial forestry (10 trees per year per acre for sale) 3 . 18. 150. 025 - changed registered arborist to certified arborist; Tog ain certification an arborist must meet experience, schooling and test requirements. Urban forester is a title used in some cities and does not necessarily mean that person is certified. 4 . 18. 150.025 - added a range of mitigation based on the amount of tree removal; This still may be a burdensome requirement. 5. 18. 150. 030 - added the word "only' relative to sensitive lands and tree permits; - added a provision to prohibit commercial forestry as defined by this code; The State Forest Practices Act does not limit the amount of harvest and relates primarily to water quality, fish and wildlife. Referencing the State Forest Practices Act as the standard does not work for urban areas according to State Forest Practice Act administrators. The State will provide consulting services but does not want to review commercial forest removal inside cities and we would, therefore, not be able to require state sign off on review of applications. City staff is not equipped to administer the Forest Practices Act, much of what is irrelevant to urban areas. Wildlife/fish issues are goal five related and staff believes venturing into this area would create difficulty and delay adoption of tree removal requirements. 6. 18. 150.040 - changed the distance from a stream or wetland to 50 feet; There are two ways to look at this change. There could be some concern that this added distance will unduly complicate the development process, require more permits and administration costs as well as potentially lower urban density. On the other hand, 50 feet could be considered more appropriate because greater density increases the threat of damage to wetlands. 7. 18.150.045 - Attached is a memo from the City Attorney's office indicating there would be no cloud on the title due to the original wording of this section. To ease concern, however, an attempt has been made to further clarify that the deed restriction state that trees retained under the incentive section may be removed only if a tree dies or is hazardous and that the deed restriction may be removed or will be considered invalid if such a tree is removed because it died or was removed as a hazardous tree. OTONNELL RAMIS CREW CORRIGAN & BACHRACH ✓ AVORMs AT"W rrn N.W.Hor SUV" padand.oreem 972M nnZ MOLAL (503) FAX(S03)243-2W DATE: Apra 10, 1995 VIA FAQ TO: Dick Bewersdorff, Tigard Senior Planner FROM: TSI & Wyman, City Attorney's office-Ty"� RR Tigard proposed Ordinance Section 18.150 -Tree Removal This memorandum is in response to your inquiry regarding the referenced ordinance. Section 18.150.145.B sets forth limitations on lemoval of pied trues and requires the recording of a deed emiction regarding the Hmitatiaa on tree removal You have inquired as to the possble impact of this restriction as a potential cloud on title. Section 18.150.145.8 of the proposed ordinance reads as follows: An tree reserved or retained is accordance with this section may Y P _ thereafter be removed only for the reasons set out at Section 18.150.030.8.1 through 18.150.030.8.4, and shall not be subject to removal under any other Section of this Cbapter. The property owner shall record a deed restriction to this effect as a condition of approval of any development pmnut impacted by this Settle°' The form of this deed restriction shall be subject to approval by the Director. on title in tlbc sense that it would seri restdctiwn does not create a cloud , ad The recordation of . Rather, tbc deed restriction would le title , prevent the conveyance of a marketable merely Place all parties on eonstracdve notice of the limitations on removal of preserved trees. Parties acxluiring the Property would therefore be placed on notice that they may not ramovc trees except in accordance with ordinance Section 18.150.030.B.1 through 18.150.030.8.4. Section 18,150.030.A.A states that: Except as set out in subsection B of this Section, the removal of any trees shall tape place only p=ant to a tree removal peanit- Subsection "B" of that ordinance provides, at subsections 1 through 4, inclusive as follows: E/Z'd SIWHa `113HKM,O WdbZ:tT S6. 0Z bdd ' O'DONNM.L RAMIS CRBV CORRIGAN & BACHPACH Memo re: Tigard Proposed Ordinance Section 18.150 - Tree Removal Apldl 10, 1995 - Page 2 A tree removal permit shall not be required for the removal of a tree which: 1. Interferes with, or prevents safe access to,underground or overhead utility lines; 2. Obstruct visual clearance as defined in Chapter 18.102 of the Code; . + 3. Is a dead or hazardous tree; 4. Is a nuisance affecting public safety as defined in Chapter 7.40 of the Code; It is apparent from the foregoing that both Sections 18.150.045,B and 18.150.030.B permit removal of dead or hazardous trees or other trees which interfere, obstruct or constitute a nuisance as set forth above. Under the circumstance, this would appear to be a reasonable and valid restriction, not m the class of restrictions prohibited by ORS 93.270 (dealing with dxscnminatory restrictions in conveyancing instrwments) and as such is a valid and appropriate exercise of the authority of the City of Tigard. As indicated above, marketable dile can clearly be conveyed subject to the dead restriction. Therefore, there is no "cload" on title in the ordinary usage of that tem. However, the recording of a deed restriction would place all parties on constructive notice that removal of trees can only be accomplished without a permit in accordance with provisions of Section 18.150.030.B.1 through 18.150.030.8.4. The effect of this restriction on marketability or resale value of a property cannot be foreseen with complete accuracy. However, the ordinanaes cited clearly _mecMDicros for removal of trees both with and without a permit- Any reasonable interpretation of the proposed Ordinances establishes that a property owner could remove trees which would become a hazard or a nuisance, even if such a tree was one originally "preserved" for the purpose of qualifying for the incentives specified in Section 18.150.045.A of the ordinances. Accordingly, it is anticipated that the impact on marketability of lots receiving incentives would be minimal- I hope this satisfies your concerns regarding the proposed ordinance. Should you have any questions regarding the foregoing, please do not hesitate to call- a•�s-wm..y Eifi'd S I Wtia 1113M )a,0 WtibZ:11 S6. OT Ndb April 17, 1995 CITY OF TIGARD EXHIBIT "A" TO ORDINANCE NO. CHAPTER 18.150 TREE REMOVAL Sections: 18. 150.010 Purpose 18. 150. 020 Definitions 18. 150.025 Tree Plan Requirement 18. 150.030 Permit Requirement 18. 150. 040 General Permit Criteria - Discretionary - Mitigation 18. 150.045 Incentives for Tree Retention 18. 150.050 Expiration of Approval - Extension of Time 18. 150.060 Application Submission Requirements 18. 150.070 Illegal Tree Removal - Violation - Replacement of Trees 18. 150.010 Purpose. A. After years of both natural growth and planting by residents, the City now benefits from a large number of trees. These trees of varied types add to the aesthetic beauty of the community, help clean the air, help control erosion, maintain water quality and provide noise barriers. B. The purposes of this chapter are to: 1. Encourage the preservation; planting and replacement of trees in the City; 2 . Regulate the removal of trees on sensitive lands in the City to eliminate unnecessary removal of trees; 3 . Provide for a treelan for developing properties; P P g 4. Protect sensitive lands from erosion; 6. Protect waterualit • and q Y� 7. Provide incentives for tree retention and protection; 8 . Regulate commercial forestry to control the removal of trees in a urban environment. C. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain EXHIBIT "A" TO ORDINANCE No. 94- Page 1 trees in order to accommodate structures, streets, utilities, and other needed or required improvements within the development. (Ord. 89-06; Ord. 83-52) 18. 150. 020 Definitions. A. Except where the context clearly indicates otherwise, as used in this chapter: 1. "Canopy cover" shall mean the area above ground which is covered by the trunk and branches of the tree. 2 . "Commercial forestry" shall mean the removal of ten or more trees per acre per year for sale. 3 . "Hazardous tree" shall mean a tree which by reason of disease, infestation, age, or other condition presents a known and immediate hazard to persons or to public or private property. 4. "Pruning" shall mean the cutting or trimming of a tree in a manner which is consistent with recognized tree maintenance practices. 5. "Removal" shall mean the cutting or removing of 50 percent (50%) or more of a crown, trunk or root system of a tree, or any action which results in the loss of aesthetic or physiological viability or causes the tree to fall or be in immediate danger of falling. "Removal" shall not include pruning. 6. "Tree" shall mean a standing woody plant, or group of such, having a trunk which is six inches or more in caliper size when measured four feet from ground level. 7. "Sensitive lands" shall mean those lands described at Chapter 18.84 of the Code. B. Except where the context clearly indicates otherwise, words in the present tense shall include the future and words in the singular shall include the plural. 18. 150. 025 Tree Plan Requirement A. 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, major partition, site development review, planned development or conditional use is filed. B. The tree plan shall include the following: EXHIBIT "A" TO ORDINANCE No. 94- Page 2 1. Identification of the location, size and species of all existing trees including trees designated as significant by the city; 2. Identification of a program to save existing trees or mitigate tree removal over 12 inches in caliper. Mitigation must follow the replacement guidelines of Section 18. 150.070.D. according to the following standards: a. Retainage of less than 25 percent of existing trees over 12 inches in caliper requires a mitigation program according to Section 18. 150. 070.D. of no net loss of trees. b. Retainage of from 25 to 50 percent of existing trees over 12 inches in caliper requires that two- thirds of the trees to be removed be mitigated according to Section 18. 150.070.D. C. Retainage of from 50 to 75 percent of existing trees over 12 inches in caliper requires that 50 percent of the trees to be removed be mitigated according to Section 18. 150. 070D. d. Retainage of 75 percent or greater of existing trees over 12 inches in caliper requires no mitigation. 3 . Identification of all trees which are proposed to be removed; 4. A protection program defining standards and methods that will be used by the applicant to protect trees during and after construction. C. Trees removed within the period of one year prior to a development application listed above will inventoried as part of the tree plan above and will be replaced according to Section 18.150. 070 D. 18. 150.030 Permit Requirement. A. Tree removal permits shall be required only for the removal of any tree which is located on or in a sensitive land area as defined by Chapter 18.84. B. A tree removal permit shall not be required for the removal of a tree which: 1. Obstructs visual clearance as defined in Chapter 18. 102 of the Code; EXHIBIT "A" TO ORDINANCE No. 94- Page 3 2 . Is a hazardous tree; 3 . Is a nuisance affecting public safety as defined in Chapter 7.40 of the Code; 4. Is used for Christmas tree production, or land registered with the Washington County Assessor's office as property tax deferred tree farm or small woodlands, but does not stand on sensitive lands; C. Commercial Forestry as defined by 18. 150.020.A.2 . and excluding B.4 above is not permitted. 18. 150. 040 Permit Criteria. A. The following approval standards shall used by the Director or designee for the issuance of a tree removal permit on sensitive lands: 1. Removal of the tree must not have a measurable negative impact on erosion, soil stability, flow of surface waters, or water quality as evidenced by an erosion control plan which precludes: a. Deposits of mud, dirt, sediment or similar material exceeding 1/2 cubic foot in volume on public or private streets, adjacent property, or into the storm and surface water system, either by direct deposit, dropping, discharge or as a result of the action of erosion. b. Evidence of concentrated flows of water over bare soils; turbid or sediment laden flows; or evidence of on site erosion such as rivulets on bare soil slopes where the flow of water is not filtered or captured on site using the techniques of Chapter 5 of the Washington County Unified Sewerage Agency Environmental Protection and Erosion Control rules. B. Within stream or wetland corridors, as defined as 50 feet from the boundary of the stream or wetland, tree removal must maintain no less than a 75 percent canopy cover. 18. 150. 045 Incentives for Tree Retention. A. In order to assist in the preservation and retention of existing trees, the Director may apply one or more of the following incentives as part of development review approval and the provisions of a tree plan according to Section 18 .150.025: 1. Density Bonus. For each two percent (2%) of canopy cover provided by existing trees over twelve inches in caliper EXHIBIT "A" TO ORDINANCE No. 94- Page 4 that are preserved and incorporated into a development plan, a one percent (1%) bonus may be applied to density computations of Chapter 18.92. No more than a twenty percent (20%) bonus may be granted for any one development. The percentage density bonus shall be applied to the number of dwelling units allowed in the underlying zone. 2 . Lot Size Averaging. In order to retain existing trees over twelve inches in caliper in the development plan for any land division under Chapter 18. 160, lot size may be averaged to allow lots less than the minimum lot size allowed by the underlying zone as long as the average lot area for all lots and private open space is not less than that allowed by the underlying zone. No lot area shall be less than eighty percent (80%) of the minimum lot size allowed in the zone. 3 . Lot Width and Depth. In order to retain existing trees over twelve inches in caliper in the development plan for any land division under Chapter 18. 160, lot width and lot depth may be reduced up to twenty percent (20%) of that required by the underlying zone. 4. Commercial/Industrial/Civic Use Parking. For each two percent (2%) of canopy cover provided by existing trees over twelve inches in caliper that are preserved and incorporated into a development plan for commercial, industrial or civic uses listed in Section 18. 106.030, Minimum Off-Street Parking Requirements, a one percent (1%) reduction in the amount of required parking may be granted. No more than a twenty percent (20%) reduction in the required amount of parking may be granted for any one development. 5. Commercial Industrial Civic Use Landscaping. For each / / two percent (2%) of canopy cover provided by existing trees over twelve inches in P are caliper that reserved P and incorporated into a development plan, a one percent (1%) reduction in the required amount of landscaping may be granted. No more than twenty percent (20%) of the required amount of landscaping may be reduced for any one development. 6. Setback Adjustment. The Director may grant a modification from applicable setback requirements of this Code for the purpose of preserving a tree or trees on the site of proposed development. Such modification may reduce the required setback by up to 50%, but shall not be more than is necessary for the preservation of trees on the site. The setback modification described in this section shall supersede any special setback requirements or exceptions set out elsewhere in this Code, including EXHIBIT "A" TO ORDINANCE No. 94- Page 5 but not limited to Chapters 18.96, 18. 146, and 18 . 148, except Section 18.96.020. B. Any tree preserved or retained in accordance with this section may thereafter be removed only for the reasons set out in a tree plan according to Section 18. 150.025, and shall not be subject to removal under any other section of this Chapter. The property owner shall record a deed restriction that such tree may be removed only if the tree dies or is hazardous according to a certified arborist to this effect as a condition of approval of any development permit impacted by this section. The deed restriction may be removed or will considered invalid if a tree preserved in accordance with this section should either die or be removed as a hazardous tree. ) The form of this deed restriction shall be subject to approval by the Director. C. A modification to development requirements granted under this section shall not conflict with any other restriction on the use of the property, including but not limited to easements and conditions of development approval. D. The City Engineer may adjust design specifications of public improvements to accommodate tree retention where possible and where it would not interfere with safety or increase maintenance costs. 18. 150. 050 Expiration of Approval - Extension of Time. A. A tree removal permit shall be effective for one and one-half years from the date of approval. B. . Upon written request by the applicant prior to the expiration of the existing permit, a tree removal permit shall be extended for a period of up to one year if the Director finds that the applicant is in compliance with all prior conditions of permit approval and that no material facts stated in the original application have changed. 18 . 150. 060 Application Submission Requirements. A. Application for a tree removal permit shall be on a form provided by the Director. Completed applications shall consist of this form, two copies of the supplemental data and narrative set out in Subsection B or this section, and the required fee. Applications shall not be accepted unless they are complete as defined herein. B. The supplemental data and narrative shall include: 1. The specific location of the property by address, assessor's map number, and tax lot; EXHIBIT "A" TO ORDINANCE No. 94- Page 6 r 2. The number, size, type and location of the trees) to be cut; 3 . The time and method of cutting or removing the tree(s) ; 4. Information concerning any proposed landscaping or f planting of new trees; and 5. A narrative as to how the applicable criteria of this chapter, for example, Section 18. 150. 040.A, are satisfied. C. In accordance with Section 18.32 .080, the Director may waive any of the requirements in Subsection B above or request additional information. 18. 150.070 Illegal Tree Removal-Violation-Replacement of Trees. A. The following constitute a violation of this chapter: 1. Removal of a tree: a. without a valid tree removal permit; or b. in noncompliance with any condition of approval of a tree removal permit; or C. in noncompliance with any condition of any City permit or development approval; or d. in noncompliance with any other section of the Code. 2 . Breach of a condition of any City permit or development approval, which results in damage to a tree or its root system. B. If the Director has reason to believe that a violation of this chapter has occurred, then he or she may do any or all of the following: 1. Require the owner of the land on which the tree was located to submit sufficient documentation, which may include a written statement from a qualified arborist or forester, showing that removal of the tree was permitted by this chapter. 2. Pursuant to Section 18.32.390, initiate a hearing on revocation of the tree removal permit and/or any other permit or approval for which this chapter was an approval standard. 3 . Issue a stop order pursuant to Section 18.24 . 070 of the Code. EXHIBIT "A" TO ORDINANCE No. 94- Page 7 4. Issue a citation pursuant to Chapter 1. 16 of the Code. 5. Take any other action allowed by law. C. Notwithstanding any other provision of this Code, any party found to be in violation of this chapter pursuant to Section 1. 16 of the Code shall be subject to a civil penalty of up to $500 and shall be required to remedy any damage caused by the violation. Such remediation shall include, but not be limited to, the following: 1. Replacement of unlawfully removed or damaged trees in accordance with Subsection D of this section; and 2 . Payment of an additional civil penalty representing the estimated value of any unlawfully removed or damaged tree, as determined using the most current International Society of Aboriculture's Guide for Plant Appraisal. D. Replacement of a tree shall take place according to the following guidelines: 1. A replacement tree shall be a substantially similar species considering site characteristics. 2 . If a replacement tree of the species of the tree removed or damaged is not reasonably available, the Director may allow replacement with a different species of equivalent natural resource value. 3 . If a replacement tree of the size cut is not reasonably available on the local market or would not be viable, the Director shall require replacement with more than one tree in accordance with the following formula: The number of replacement trees required shall be determined by dividing the estimated caliper size of the tree removed or damaged by the caliper size of the largest reasonably available replacement trees. If this number of trees cannot be viably located on the subject property, the Director may require one or more replacement trees to be planted on other property within the City, either public property or, with the consent of the owner, private property. 4. The planting of a replacement tree shall take place in a manner reasonably calculated to allow growth to maturity. E. In lieu of tree replacement under Subsection D of this section, a party may, with the consent of the Director, elect to compensate the City for its costs in performing such tree replacement. F. The remedies set out in this section shall not be exclusive. EXHIBIT "A" TO ORDINANCE No. 94- Page 8 MEMORANDUM CITY OF TIGARD, OREGON R TO: Tree Task Force FROM: Dick B. and Carol L. DATE: April 6, 1995 SUBJECT: Revised tree ordinance Based on the group's comments at its last meeting, the following changes were made to the draft ordinance: 1. 18. 150.010 - added # 8 to regulate commercial forestry 2. 18. 150.020 - added definition of commercial forestry (10 trees per year per acre for sale) 3 . 18.150.025 - changed registered arborist to certified arborist; To gain certification, an arborist must meet experience, schooling and test requirements. Urban forester is a title used in some cities and does not necessarily mean that person is certified. 4. 18. 150.025 - added a range of mitigation based on the amount of tree removal; This still may be a burdensome requirement. 5. 18.150.030 - added the word "only' relative to sensitive lands and tree permits; - added a provision to prohibit commercial forestry as defined by this code; The State Forest Practices Act does not limit the amount of harvest and relates primarily to water quality, fish and wildlife. Referencing the State Forest Practices Act as the standard does not work for urban areas according to State Forest Practice Act administrators. The State will provide consulting services but does not want to review commercial forest removal inside cities and we would, therefore, not be able to require state sign off on review of applications. City staff is not equipped to administer the Forest Practices Act, much of what is irrelevant to urban areas. Wildlife/fish issues are goal five related and staff believes venturing into this area would create difficulty and delay adoption of tree removal requirements. 6. 18. 150.040 - changed the distance from a stream or wetland to 50 feet; There are two ways to look at this change. There could be some concern that this added distance will unduly complicate the development process, require more permits and administration costs as well as potentially lower urban density. On the other hand, 50 feet could be considered more appropriate because greater density increases the threat of damage to wetlands. 7. 18. 150.045 - clarified that the deed restriction state that trees retained under the incentive section may be removed only if a tree dies or is hazardous and that the deed restriction may be removed or will be considered invalid if such a tree is removed because it died or was removed as a hazardous tree.