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Ordinance No. 95-19 r M CITY OF TIGARD, OREGON ORDINANCE NO. 95-E— AN ORDINANCE TO AMEND PROVISIONS OF THE COMMUNITY DEVELOPMENT CODE BY ADOPTING A REVISED CODE CHAPTER 18.150 REGARDING TREE REMOVAL (ZOA 92-0004) AND NEW SECTIONS 18.24.070. WHEREAS, the City of Tigard finds it necessary to revise the Community Development Code periodically to improve the operation and implementation of the Code; and WHEREAS, the City of Tigard Planning Commission reviewed proposals for revising Section 18.150 at public hearings on January 4, 1993, October 4, 1993, and January 17, 1994 and at work segsnions September 20, 1993, October 18, 1993, December 28, 1993 and February 7, 1994; and WHEREAS, the City of Tigard Planning Commission voted to recommend the revised Section 18.150, which was revised by the City Council and then revamped after review by a City Council appointed Tree Task Force as shown in Exhibit 'A"; and WHERE.&&, the City Council held public hearings on July 12, October 11, 1994 and January 24, 1995 to consider the drafts of a proposed amendment and a further public hearing on September 12, 1995 to consider a revised ordinance as recommended by the Tree Task Force. THE CITY OF TIGARD ORDAINS AS FOLLOWS: SECTION 1: The proposal is consistent with all relevant criteria as noted below: The relevant criteria is this case are Statewide Planning Goals 1, 2 and 5, City of Tigard Comprehensive Plan Policies 1.1.1 a. and c., 2.1.1, 2.1.3 and 3.4.2.b. and Implementation Strategy 4 of Policy 3.4 and Cowmunity Development Code Chapter 18.30. The proposal is consistent with the applicable Statrswide Goals based on the following findings: 1. Goal 1, Citizen Involvement, is met because the City has followed its adopted citizen involvement program which involved review by neighborhood planning organizations and public hearings as listed above. The City's citizen involvement policies in the comprehensive plan have been acknowledged to be in compliance with Goal 1. Notice for all hearings was provided in the Tigard Times which summarized and outlined the amendments being made to existing code provisions and was done so for each public hearing. Copies of the latest revised ordinance drafts have always been available at least seven days prior to the hearings 'which follow Community Development Code procedure. 2. Goal 2, Land Use Planning, is met because the City has applied all relevant Statewide Planning Goals, City Comprehensive Plan Policies and Community Development Code requirements in review of this proposal. 3. The Council has reviewed the Goal 5 questions and arguments raised by David Smith (in letters dated January 17, 1994, July 11, 1994, and October 4, 1994), and understands the concern raised by DLCD that the ordinance is part of the City's Goal 5 implementation program. The Council adopts by this reference the analysis of these issues provided by the City Attorney (in memoranda dated March 1, 1994 and August 31, 1994). We conclude that the amendments to the Tree Removal Chapter of the Community Development Code do not require amendment of the City 's Goal 5 implementation program or a new Economic, Social, Environmental and Energy i �iljllgl !IIIIII pig!Ili • ~ amount of land falling under this permit requirement. Previously, the ordinance excluded developed residential property. That term was left undefined by the ordinance; staff interpreted it as including any residential property, 3 acres or less in area with an existing use. It now includes all land which either contains no existing use or which is capable of further' subdivision or partitioning. The Council finds this to improve the effectiveness of implementation of Strategy 4 by placing more land under the term 'undeveloped, and providing vegetation thereon with better protection. 4. Community Development Code Section 18.30 which establishes procedures for legislative code changes is satisfied according to the aboi findings. SECTION 2.: Community Development Code Chapter 18.150 shall be revised as shown in Exhibit 1A0, and Section 18.24.010 and shall be added as shown in Exhibit SECTION 3: This ordinance shall be effective 30 days after its passage by the Council, approval by the Mayor, and posting by the City Recorder. PASSED: By UYUn-irn"ni'D vote of all Council members $$r sent after being read by number and title only, this Pol day of &-tiyve,�S.B/V , i995. ---- Catherine Wheatley, City Rdkor er APPROVED- This ay of �1�, 1, Approved as to form: 3a e icoli a Mayor City Attorney fqi Date I Mr. Smith further contends that the City could avoid Goal 5 by adopting ordinances that meet the objective of the Forest Practices,Act (FPA). The City Council finds that: 1) when the original drafts were reviewed, the Department of Forestry said it would no longer administer the FPA within City limits and the City's regulations (including erosion control requirements adopted by the City and required by the Unified Sewerage Agency) were more restrictive than the FPA. (See letter -from Kevin Birch dated January 25, 1993); 2) the City Council prefers to retain local control rather than return to general state regulation; and 3) this amendment is pursuant to the FPA. The proposal is consistent with the City's acknowledged Comprehensive Plan based on the following findings: 1. Policies 1.1.1 a. and c. are satisfied because the proposed code changes are consistent with Statewide Planning Goals as indicated above and the changes help to keep the development code current with local needs, 2. Policies 2,1.1 and 2.1.3 are satisfied because the proposal has been reviewed at multiple public hearings, work sessions and neighborhood groups beginning in January, 1993 through the present. 3. The Council has reviewed the argument concerning Implementation Strategy 4 of Plan Policy 3.4 (hereinafter referred to as Strategy 4) contained in the letters of David Smith dated January 17, 1994, July 11, 1994, and October 4, 1994. The Council adopts by this reference the analysis of this issue provided in the City Attorney's memorandum of March 1, 1994. - We concluded that Strategy 4 is satisfied by the amended ordinance. The Council finds the proposed ordinance to satisfy 'Strategy 4 because the ordinance as amended will continue to protect large and unique stands of trees and major vegetation areas as called for by that strategy. That strategy provides: 'where there exists large or unique stands of trees or major vegetation areas within the planning arca on undeveloped land, the City shall ensure that development proposals do not substantially alter the character of the vegetation areas through the planned development process and the 'tree cutting' section of the Community Development Code.' In his lotter January 17, 1994 letter, Mr. Smith suggests that this policy is effectively amended because the proposed new ordinance addresses 'all trees on undeveloped land . ..° The Council finds this reasoning to be unpersuasive. Strategy 4 does not require that the tree removal ordinance necessarily be circumscribed to those areas (large or unique stands of trees or major vegetation areas) which it describes. Rather, it requires that ordinance must carry out the strategy by 'ensuring that development proposals do not substantially alter the character' of the described areas. The Council finds that the amended ordinance does so in that it requires development proposals, brought under the restrictions of the ordinance by the Site Development Review proses, §18.120.180.A.1.1, to obtain permits for tree removal. g18.150.030.A. To obtain such a permit requires a. showing that, among other things, the removal is 'necessary' for the development to take place. S18.150.040.C. This requirement is unchanged from the current ordinance. Some of the applicable criteria have changed.. Notably, reasonable alternative to the removal cannot exist. Also changed is the (ESEE) inventory and analysis under Goal 5 and its -- implementing rules. AD The Council recognizes that the City's Goal 5 implementation Program references the tree removal ordinance. However, the Council notes that the specifically identified function of the ordinance under that plan iR to protect 'major vegetation on undeveloped 'land' in the Little Bull Mountain Forest. volume 1, Page I-97, Natural Features and Open Space Comprehensive Plan Report. By showing that the amended ordinance will continue to provide this protection, the Council finds compliance with the City's Goal 5 ESEE plan. Since that plan itself is acknowledged as in compliance with the goal, the ordinance does not require a new ESEE analysis. Many ordinances may be referenced as part of a Goal 5 implementing program. However, to require a new ESEE analysis upon any amendment to such ordinances would produce an absurd result which is not required under the Oregon land use system. Under that system, the various implementing measures of the comprehensive plan, including the Goal 5 implementation plan, are the guiding documents of the development ordinances. Upon acknowledgement, the plan is presumed to be in compliance with the goal. Ordinances, thus, must show compliance with the plan. The key issue for the Council to determine is whether the amended ordinance continues to fulfill its requirement under the implementing program. Fir. Smith contends that under Goal 5, 'the City must first inventory the location, quality and quantity of the trees it wants to protect., He thus reasons that upon such inventory, the City must follow the rest of the Goal 5 process, including an ESEE analysis. The Council finds Smith's premise, that trees are a resource required to be inventoried under Goal 5, to be faulty. Reference to the goal makes clear that trees per se are not e:. listed resource. The City Attorney's memorandum Of August 31, 1994 more fully sets out this reasoning. The, Council finds that the amendments will serve to maintain or increase the protection provided by the existing language. The Tree Removal Chapter as amended will continue to protect °major vegetation on undeveloped land" within the Little 3ull Mountain Forest, the only such requirement in the City's Goal 5 EVRE analysis in volume 1, Appendix I of the acknowledged Comprehensive Plan. The identified resource areas will not change, and need not be re-inventoried or re-analyzed because of these amendments. The Council finds no other reference to the Tree' Removal chapter in the City's acknowledged Natural Features and Open Spaces Report. Therefore, we find also that the amended Tree Removal Chapter will serve the same Goal 5 function as the existing acknowledged Tree Removal Chapter. The Council finds that, in fact, these amendments have the effect of increasing protection for "major vegetation on undeveloped land. Under the existing ordinance, developed land is exempted form the permit requirement. Since the term 'developed land' was not defined in the ordinance, it became a matter of staff interpretation. That interpretation was made as including any lot or parcel with an existing use. By setting out a definition which includes in developed residential land only those lots or parcels with an existing use which are not capable of being subdivided or partitioning nder this permit the amended ordinance will place more land u requirement. The Council finds that such a result increases the level of resource protection sought by the implementation program. 13 s August 22, 1995 CITY OF TIGARD EXHIBIT "A" TO ORDINANCE NO. '15-JCJ CHaI�PTE R 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 JFA,150.010 Pur hose. A. After years of both natural growth and planting by residents, the City noir benefits from a large number of trees. These trees of varied types add to the aesthetic beauty of the cormunity, help clean the air, help control erosion, maintain water quality and provide noise harriers. 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 tree plan for developing properties; 4. Protect sensitive lands from erosion; S. Protect water quality; and 7. Provide incentives for tree retention and protection; 8. Regulate commercial forestry to control the removal of trees in an urban environment. C. The City recognizes that, notwithstanding these purposes, at the time of development it may be necessary to remove certain EXHIBIT "All TO ORDINANCE No. 95- Page 1 ' trees in order to accommodate structures, streets, utilities, and other needed or required improvements within the development. (Ord. 8906; 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 calendar 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. "Pr=ingi9 shall mean the cutting or trimming of a tree in a manner which is consistent with recognized tree maiatenance 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 wean 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 Coda. 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 PlannReggirement 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. Protection is preferred oder removal where possible. r B. The tree plan shall include the following: EXHIBIT "A"" TO ORDINANCE No. 95-- 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 calipar 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 18.150.0700. 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 Rjrmit Reiremen�t. 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. 95-A—, Page 3 a! 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 Peranit Cr.itr.Tja. A. -The following approval standards shall be 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, flag 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 yroperty, 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 floe 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 leas than a 75 percent canopy cover or no less than the existing canopy cover if the existing conopy cover is, less than 75 percent. 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: EXHIBIT "A" TO ORDINANCE No. 957 'Page 4 1. Density Bonus. 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, a one percent (1#) .bonus may be applied to density computations of Chapter 18.92. No ,more than a twenty percent (20$) b6nus 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 o-er. twelve inches in caliper in the development plan for any land division under Chapter 18 ..'x60, lot width and lot depth, may be reduced uta 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- t%4elve inches in caliper that are preserved and incorporated into a development plan f or commercial, industrial or civic uses listed in Section. 18.105.030, Minimum Off-Street Parking Requirements, a one percent (1t) 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 caliper that are preserved and incorporated into a development plan, a one percent (1t) reduction in the required amount of landscaping may be granted. No more than twenty percent (20-'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 EXHIBIT 61A" TO ORDINANCE No. 95--_a_ Page 5 ' or exceptions set out elsewhere in this Code, including 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 or 18.130.8. , and shall not be subject to removal under any other section of this Chapter. The property owner shall record a deed restriction as a condition of approval of any development permit impacted by this section to the effect that such tree may be removed only if the tree dies or is hazardous according to a certified arborist. The deed restriction may be removed or will be 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.x.50.01!5. Ex jration of Aopro`ral - 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. 18.15Q.060 Z.Mplication 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. 95- %1 Page 6 2. The number, size, type and location of the trees) to be cut; 3. The time and method of cutting or removing than tree(s) ; 4. Information concerning any proposed landscaping or 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. 19SA52.07t? lecgal Tree Remove SViolatig—Replaccant Qf Ttees. A. The following constitute a violation of this chapter: 1. Removal of a tree: aa. 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: I. 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 01A" TO ORDINANCE No. 95- I9 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 sections 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 Arboriculture'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 numbek , 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 "All TO ORDINANCE No. 95-- l C! Page 8 • CITY OF TIGARD EXHIBIT "B" TO ORDINANCE NO. Iq SECTION18.24.070 1. Chapter 15.24 is amended by adding Section 181.24.070 to read as follows: "18.24,070 Stop Order ffearina. A. Whenever any work is being done in violation of the provisions of the Code or a condition of any permit or other approval granted pursuant hereto, the Director may order the work stopped by notice in writing served on persons engaged in doing such work or causing such work to be done. All work under the permit or approval shall cease until it is authorized to continue. B. The Director shall schedule a hearing on the stop order for the soonest practicable date, but not more than seven (7) days after the effectiveness of any required notice. At the discretion of the Director, such hearing may be: 1. Part of a hearing on revocation of the underlying permit or approval pursuant to Section 15.32.390; or 2. Solely to determine whether a violation has occurred. The hearings Officer shall hold this hearing and shall crake written findings as to Uha violation within seven (7) days. Upon a finding of no violation, the Bearings Officer shall require the issuance of a resume work order. Upon finding a violation, the stop order shall continue to be effective until the violating party furnishes sufficient proof to that Hearings Officer that the violation has been abated. The Hearings Officer's decision is subject to review under Section 15.32.310.B." EXHIBIT "B" TO ORDINANCE No. 95- August 22, 1995 Page 1