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Planning Commission (View All)

Planning & Tree Commission Joint Study Session

Minutes
Tuesday, January 22, 2002

JOINT STUDY SESSION

ASHLAND PLANNING COMMISSION

ASHLAND TREE COMMISSION

JANUARY 22, 2002

MINUTES

CALL TO ORDER

Tree Commission Chair Rich Whitall called the meeting to order at 7:10 p.m.

Tree Commissioners present were:

Greg Covey

January Jennings

Dan Moore

Bryan Holley

Bryan Nelson

Absent Member: Tom Piel

Planning Commissioners present were:

Mike Gardiner, Chair

Marilyn Briggs

Alex Amarotico

Ray Kistler

Kerry KenCairn

Russ Chapman

John Fields

Mike Morris

Colin Swales

No absent members

 

Staff present were John McLaughlin and Sue Yates. Mayor Alan DeBoer and Council Liaison Chris Hearn were also present.

INTRODUCTIONS - All Commissioners introduced themselves.

McLaughlin said in the past couple of years there have been some rather high-profiled planning actions for new development that have involved the removal of trees. As those went through an appeal process, the City Council asked that the Tree Commission look at preparing an ordinance that would address tree removal. Over the past couple of years, the Tree Commission has worked at preparing an ordinance. The ordinance has gone through many discussions, drafts and public workshops.

McLaughlin said the ordinance regulates tree removal throughout the city in all zones. One of the key elements is the preservation of the existing tree canopy in the city and the benefits it provides to the community. The loss of the canopy is a loss, not only to individual yards, but also to the community as a whole. Development proposals have triggered the ordinance. There is a lot of effort in this ordinance relating to development. It discusses: taking trees into consideration in the original design, protecting trees that are designated for retention, mitigation measures if trees are removed on the site, replanting provisions, and a penalty section.

McLaughlin explained how the ordinance would apply in each zone and when permits would be required (see draft ordinance dated 12/19/01). The permit process would start with the Planning Department. It would require notification of surrounding property owners and would be processed similar to a staff permit. If there were no request for a hearing received, the application would be approved and issued. Someone can request a hearing. There would be a review before the Tree Commission and ultimately the Planning Commission. Appeals would be made to the City Council. There are a variety of permits: emergency permits for trees in immediate danger, verification permit linked with development, topping permits, and staff permits (most common).

There are criteria for the permits. If a permit is to be approved, it must comply with other parts of the Land Use Ordinance. For example, there are certain requirements in the Site Review Ordinance for placing buildings on property with parking to the rear. Some of the design standards may conflict with existing tree locations. It is a balance of determining the important issue on each site. It may be a determination to remove a tree to accommodate the use on a site to meet the design standards. There are additional criteria applying to different situations.

McLaughlin recommended, should the homeowner component of this ordinance move forward for individual properties, that a permit cost approximately $25. The cost of processing one of these permits is close to $250 (staff time, file work, meetings, etc.). Since this process would be a benefit to the community as a whole, the cost would be subsidized. Tree removal requests linked to a development request, would be in the $250 range (per application).

Swales asked what the current provisions are in the Comprehensive Plan and Site Design Standards with regard to trees. McLaughlin said the Comp Plan has policies valuing our urban trees that state we should adopt policies and ordinances to protect trees. The Site Design and Use Standards specifies inventorying trees on the site as a development plan is started and work towards preserving natural features of the site and incorporating them into the overall design. Again, it becomes a balance. Does the tree enhance the development or become an impediment? McLaughlin cited the Hillside Inn application as an example that probably precipitated this ordinance.

Briggs asked what percentage of lots fall into 25,000 square feet or under (18.61.084). McLaughlin did not know.

PUBLIC COMMENTS

GERRY MANDELL, 484 Euclid Street, read a letter to the editor that he wrote a couple of years ago. In perusing the proposed ordinance, he did not see any mention of property rights. He would like Bob Wrightís letter to the editor entered into the record. He believes this ordinance is most appropriate for new development.

JACK HARDESTY, 525 Dogwood Way, stated he is opposed to this ordinance as it applies to individual homeowners. He would like the City to play by the same rules. He noted significant trees in front of Blue Mountain Cafe (site of the new fire station) and the trees in front of the hospital. Who do they get permission from to cut a tree?

JIM SHUTE, 1347 Prospect, said he has planted 34 trees on his property. He has some forestry/parks background. He is concerned about property rights. Originally, this town was sparsely populated with oak and manzanita, mostly small in stature. In the hands of private property owners, the townís trees have changed for the better. It has been done without city interference. Mostly the Electric Department abuses some of the trees. The solution is to plant tree species under utility lines that grow no more than 25 feet. The Parks Department de-horns willows at the golf course on a regular basis. The trees could be replaced with more suitable species for a lot less than periodic topping. What is the most important factor in placing a house on a site? Is it a tree of 16 inches in diameter, the neighborís wishes, or what is going to be the best location of that house for the next 100 years? If permission to cut a tree is refused by the Council, what happens if the tree falls? Who is liable? Can pruning be considered a "taking"? He would recommend the Tree Commission remove the portion of the ordinance pertaining to private homeowners.

JACK BLACKBURN, 805 Oak Street, said homeowners are not cutting trees down. The proposed permitting process is cumbersome and he suspects this ordinance will cost more than what is stated. He is not sure why a full employment provision for an arborist is in the ordinance. Blackburn is the one who spent his money and took his time to take care of his trees. He totally rejects the idea of the trees belonging to the community. He has planted 55 trees. He wants the private homeowners left out of this. He sees no need for it.

STEVE ARMITAGE, 205 Randy, said he sat on the Planning Commission for eight years. He is a professional forester and member of the Society of American Foresters. He gave the Commissioners a handout. Section 18.61.025A talks about a treeís age. It is the only place in the ordinance he noticed an age reference. Age is a category that is in much need of further discussion. Age will come forward as an emotional issue about old growth. He cited the Hillside Inn as an example. The tree on that site was not old growth. It was planted in 1942. He believes they need to work on the issue of age--what is meant by "age" and further define it. Old aerial photographs exist at the city and they can help.

Armitage mentioned "Heritage Tree" (18.61.025C). He finds it difficult to understand how a future property owner can know they have a Heritage Tree because the ordinance does not seem to specify requiring this as an encumbrance on the property.

He is surprised the Parks Department does not have to come before any body if they want to cut down a tree (18.61.035). If anyone in town is capable of planning in advance, it should be the Parks Department.

He is concerned, after having served on the Planning Commission, about the ability to be arbitrary and capricious in deciding whether or not to remove a tree. He does not believe the language in the proposed ordinance is tight enough to not have large latitude.

Armitage noted the Ivy Lane property during his tenure on the Planning Commission. It was forested on the perimeter of the city with lots of trees on the property. It became a very difficult property to develop without cutting lots of trees. That changed the forest characteristic of the property, causing many other issues. If this ordinance passes the way it is, it would be important to know where the large properties are.

Section 18.61.094 - Negative impacts on natural features - He wondered if "natural" means "native"?

Armitage is concerned with private property rights. Why would anyone plant a tree when the tree is capable of obtaining large stature in the future with the ordinance written the way it is, if there is a possibility you would be encumbered later on? Why wouldnít he remove a tree that is 17.5 inches in diameter before he needed to get a permit, if he thought he might want to develop that property?

He believes they are trying to ordinance their way out of difficult discussions. All the issues that came before the Planning Commission during his tenure were talked about, discussed, ordinances were gone over, and compromises were made. It was not easy.

PAUL MENSCH, 451 North Main Street, wondered if there are were a large number of citizens of Ashland revving up their chainsaws with the intent of cutting down every tree in site? The desire to make sure something doesnít happen again, almost always results in actions that only serve to make things worse. He believes this ordinance is a prime example of that. It seems individuals in single family zones have more rights to maintain their property as they see fit than those in multi-family zones. Why the difference? Why is the Parks Department exempt? In discussing criteria, Mensch believes the city gets itself into trouble when trying to define "character" and "aesthetics". He takes exception to the section on mitigation. Is a city tree planting and maintenance guideline even needed? He referred to the penalties section of the proposed ordinance. It is like trying to kill a flea with a thermonuclear device.

Mensch believes this ordinance is based on faulty assumptions. He believes most citizens realize the value of trees. He should be able to add, remove and maintain trees on his property as he sees fit without having to ask permission and pay for a permit. This ordinance seems to assume that more government is the answer to the alleged Ashland tree problems. This ordinance will take more staff time and generate more paperwork (comes from trees) and increase the overall expense of city government. He suspects the real reason for this ordinance is to stick it to developers.

MERLE MILLS, 34 Scenic Drive, said he was assured at a workshop a few months ago that this section was going to be removed. He has a 25,000 + square foot lot. He has at least 30 trees on the property, 12 of which he planted. He does not need this ordinance to tell him how to take care of them. He asked them to recommend to the City Council that all references to private property be deleted.

ALAN PARDEE, 10820 Shadow Wood, Weed, CA 96094, landscape architect and planning consultant, said he has worked with tree ordinances in other cities. Though well intended, they tend to oversimplify the issue of preserving trees in the site development. After a tree is determined to be preserved, the cats are on the site, rain is falling, trenches collapsing, etc., it gets ugly, complicated and expensive. The fencing requirements, site inspection requirements and the difficulty of working on the site with everyone get very expensive. He has seen too many trees, even on his own projects, they worked very hard to preserve, five to ten years down the road begin to decline. He suggested a statement of intent in the site plan or development process as part of the criteria.

DON GREENE, 253 Normal Avenue, asked why 18.61.010E, multi-family zones are looked at more strongly? Multi-family zones are going to necessitate, at times, the removal of trees.

18.61.035 - Exemptions - We are exempting public school lands, SOU and other public lands. He believes this would include city owned lands. He feels people really object to being put under standards that they perceive the city not being held to. He does not understand the exemption for single family lots with houses. Why is a vacant lot any different?

The cost of processing will not be the only costs. The costs will include plans, experts to look at the plans, etc. We talk about affordable housing, and yet we are adding more costs and singling out multi-family housing.

18.61.080 A2 - Criteria for removal standards - How are you going to write a finding that removing a tree will protect an adjacent tree? "Character and aesthetics" is an impossible standard to meet. It is not a clear and objective standard.

18.61.092 - Expiration of permit - sixty days is not long enough for the permit.

18.61.094 - Conditions of approval for tree removal - This is a completely open-ended portion of the ordinance. Is "intensity" referring to density? It conflicts with infill and increased density.

Penalties - He could not believe the penalties; fines, costs incurred for enforcement, value of the tree, revoking a business license, and ineligibility to bid city projects.

He does not think we have that big a problem. He has moved seven trees from Hillside Inn and one from OSF. Other people do that.

RICK HARRIS, 320 E. Main Street #100, said this ordinance is about a huge stick. It makes no sense. If you want to encourage trees in this town, encourage people, donít stand over people. If you are trying to accomplish making Heritage Trees, do that. About 40 percent of the town are included in the hillside development ordinance that includes a tree protection segment. There is an extensive site review process. Why add another layer? Each new layer of regulation adds cost.

18.61.020 - He believes the definition of a hazardous tree is so overly restrictive that it does not allow for homeowners to protect themselves.

Page 3 subparagraph M - If you have a multi-trunked tree, it is a tree that is more likely to break and be more of a hazard.

Page 3 subparagraph P - Tree protection zone - They are unwittingly creating the ability to protect the trees but not get onto the lot to do the development.

He does not like the city exemption.

18.61.42 - Approval and permit required - This could be a Dolan (takings) case if someone removes a tree and is required to replace a tree.

18.61.50 - Plans required - This significantly adds to the cost to a project.

DEAN ING, 1105 Ivy Lane, believes homeowners should have the right to cut trees on their private property. The only way to reduce fire danger is fewer big trees. He suggested requiring permits to plant trees.

COMMISSIONERSí DISCUSSION AND MOTION

Gardiner appreciated the comments. He appreciated the Tree Commissionís long hours of developing this ordinance. He believes Armitage made a good point. We are trying to ordinance our way out of thoughtful discussion and coming up with conditions to preserve the trees. He also likes to encourage protection of trees by individual property owners, not forcing protection.

KenCairn said it has been difficult because we have needed an ordinance with some tooth behind the intent. Then the developers would know what is expected and the city would have a way to say how things should happen with an ordinance to back it up. She is not certain how to create the tool that would help all of us save trees we want to save without doing an ordinance. She faces this almost everyday. In almost every plan she sees, she finds herself looking at a tree they want to save and trying to figure out how to do it. It may not be financially feasible or there arenít proper guidelines to see how to get there. This proposed ordinance was an attempt to start getting there.

Mayor DeBoer feels we should kill the ordinance. The tree canopy is greater than it has ever been and we donít have a problem with people cutting down trees. The Hillside Inn was red tagged and the project stopped because the contractor backed into a tree they were supposed to protect. The contractor was required to pay into a tree fee. There must be enforcement already in place and we could enforce our existing ordinances. The planning process already restricts people. Maybe you end up cutting down a tree someone wanted to save, but the process is there. Maybe the Tree Commission needs to say clearly, or have more authority, "we take this position that we donít want that tree cut and redesign". People donít like this type of infringement on their property rights. He doesnít know if he wants appeals coming to the Council because of a tree issue. Subsidizing the cost ($25 permit fee) takes city funds from other things such as affordable housing. Do we want such strong enforcement policies? DeBoer commented that the Parks Department does a wonderful job. Not one person spoke in favor of this ordinance. Letís take the public involvement and just stop working on this.

Moore was surprised to hear Mayor DeBoerís recommendation to kill the ordinance after the Tree Commission has worked for more than a year and half on it. It has been very difficult to draft an ordinance to protect trees. The Tree Commission was charged with developing an ordinance and policies to protect trees throughout the city. Why do we need to say there is a problem? Why canít we just recognize that protecting trees is a worthy goal? He stands behind it.

Fields understands the difficulties the Tree Commission has encountered writing this ordinance. However, it is really heavy-handed. Using the library as an example, there was a Heritage Tree, the ginkgo. The problem is the community really wanted to expand the library. There are other competing values. The Planning Commission is constantly facing trade-offs. This ordinance doesnít help the process. It creates the regulations and the way to punish violators, but when it comes down to it, they are stuck with the same decision. Is the project meeting density, community needs, and do all these issues outweigh the tree? The problem is growth, change and infill. This means we are losing our de facto open space and we will lose trees. This ordinance does not give Fields measurable tools. It does not hold up clear and objective standards.

Jennings thanked the audience and the Tree Commissioners. She said the Tree Commission has not been wrong in their concern for trees. Whatís happening is that we are partaking in the process. The more feedback, the better the result. She doesnít apologize for their intention. Re-examining her position in supporting the ordinance after reading and hearing people's statements has humbled her. She believes it boils down to respect. She never intended to break a boundary for a respect for anyoneís private property. She has heard what has been said. Maybe the complexity of this goes beyond the resources and scope of their volunteer Tree Commission that meets once a month.

Holley wanted to make it clear to Mayor DeBoer, they are serving on volunteer commissions and volunteering their time to present something still considered a "draft". With all good courtesy to the Planning Commission and the public, the Mayor sends a warning shot across the bow, and Holley feels like he has run into a brick wall. He urged everyone to look at the chartering language for the Tree Commission. It asks them to propose for review and possible vote by City Council an ordinance. They did not send out something that was pabulum. They spent 24 months working on this.

Holley said DeBoer had told him that he believed city departments should be held to higher standards than private property owners. The only departments they left out were the Parks Department and a few others that they have already shown by their actions that they are trying to work with the Tree Commission to protect the trees that are under their purview, for example, the Cemetery Department, Parks Department, and SOU. The rest of the city departments will be held to the same standards.

Holley discussed property rights. Property rights are a bundle of things. We are discussing a new concept here. The trees and landscape of any town in America deserve the respect of the people around them. Trees are immobile.

Moore said he obtained some information from the City of Salem that he passed out. It is an analysis of other communities in Oregon with tree ordinances and their comparisons. He would not propose scrapping the ordinance. At this point, he would like to take the comments and try to re-work it and make it better. There may be some areas of compromise they can talk about such as residential tree removal.

KenCairn said that though there was the most opposition about private property, if the ordinance was just targeted at development properties, the room would be full of developers.

Chapman did not see Ashland used as a comparison on the chart. He photocopied the tree protection measures we already have and should be included in the comparison. If this ordinance had stopped the Hillside Inn or the library, he would have opposed it. The Planning Commission has to balance the numerous values that are in the Comprehensive Plan. We are trying to ordinance our way out of having the flexibility to manage these proposals when they come before them. You canít write a black and white ordinance. He appreciates the time the Tree Commission has spent on this. He wondered if the Tree Commission has considered their role in outreach and education.

Briggs said a letter in the packet talked about "carrot and the stick". It stated the ordinance was all stick and no carrot. If somehow they can have incentives to plant trees as well as save trees, we could be ahead. The penalties seem overwhelming.

KenCairn agreed the penalties seemed overbearing. However, if there is an ordinance in effect and everyone knows it, and someone knowingly goes against that ordinance, then there has to be a big stick.

Chapman has seen the Staff hold developers feet to the fire and it is important to give the Staff some flexibility.

Whitall takes exception that the Tree Commission does not do outreach and public education about trees and planting of trees. They do a lot. This is an ordinance. They have been told it has to be about what is required, not about they want people to do or how to encourage them to do it. They preferred to use carrots and encourage people and they spend a lot of time and energy doing that. They are also required in their charter to draft an ordinance for tree protection in the city. It does have a big stick. As Holley stated if it was pabulum, there would have been no comments because it wouldnít have mattered. They needed to hear what people thought. A good part of their goal setting is about public education and improving the cityís landscape relative to trees.

Swales thanked the Tree Commission for the work they have done. He believes the process has been remarkable. He read all the comments. There were a number of people praising the Tree Commission for the ordinance as well as those who spoke tonight. From this process we have learned that involving the public at an early stage is often messy and awkward but in the long run we will get what is best for tree protection. He believes this ordinance goes a long way in addressing some of the concerns about commercial development.

Jennings wondered where the evidence or proof is that we need to do something about trees on private property. She wondered about doing a removal registration, an annual record of tree removal throughout Ashland. It would be a volunteer program and administered by the Conservation Department and the Tree Commission. They would find out approximately how many trees are being removed from private and public lands to get a number.

Covey suggested talking with the Engineering Department about their aerial maps. They could see the canopy cover now and check it on a yearly basis to see any changes.

Kistler does not see there is a problem with trees being removed by private landowners.

Jennings noted this draft ordinance started years before the Hillside Inn. This was not a response to that issue. Whitall said they didnít preface this whole meeting with justification for the ordinance. They did not do that presentation. There is data they could present.

Gardiner wondered if there was a point at which the Tree Commission made the leap to include all private property. The Planning Commission is involved with the development phase and looking for ways to guide themselves through the planning process.

Whitall said they started by applying across the board standards. They left wording in on purpose because they felt they needed as much input as possible and this would be the venue to get the maximum amount of input.

Holley said he was one of the proponents of carrot language. The carrot language they put in was taken out because of budget purposes because they wanted to offer perhaps a reduction in some sort of development fee.

Nelson said they started by examining a lot of other tree ordinances. They thought they were being less and less restrictive. Even at their last meeting, there was a debate about whether to include private residences. Tree sizes were being debated. He noted that the Tree Commission has done a lot of outreach and education. They celebrate Arbor Week and try to show there are important trees in this town. They work with each planning action by showing how different tree species would work. Most people are happy with the Tree Commissionís input. The original draft had a lot of incentives for saving trees. Unanimously, they wanted a carrot proposal, not a stick proposal.

Jennings would like to get a definite figure on the price of permits. People expressed concerns about not knowing how much a permit would cost.

Moore suggested revising the ordinance to include private property lots created after the ordinance goes into effect.

Fields finds the criteria problematic. Not one is clear and objective. "Removal of tree will not have significant negative impact...". "Removal of the tree is not the sole purpose of providing or enhancing view...". What it comes down to, is can you remove this tree or not? Currently it is possible to weigh that and make people not remove it and design their building around it. We have to balance that with permitted use prescriptive things. Solar access is missing. Does a neighbor have a right over that? It is very complex. Fields credits the Tree Commissionís diligence.

Mayor DeBoer said he means to be clear with his opinion that may not be shared by the Council. He appreciates each person on the Commission, their opinion and values. He believes the charge is to not necessarily to write an ordinance. It may not be needed. Or, there may be other ways. It is okay to come back and try something else. He appreciates their volunteerism and did not mean to belittle that at all.

STAFF DIRECTION

McLaughlin said they had originally scheduled this for a hearing with the Tree Commission and then Planning Commission and Council. Jennings believes they need to take time to digest the feedback and decide whether or not to make changes. McLaughlin said they could do this as a working document.

The proposed ordinance can go back to the Tree Commission for revision and then it can be sent along to the Planning Commission. The Planning Commission can review it and make revisions and send it along to the Council. There is no timeline. The Planning Commission is just the next level of review. There are still several opportunities for input.

Whitall thanked everyone for their participation either at this meeting or through phone calls and e-mails. The Tree Commissioners will discuss this at their next meeting (February 7th at 5:00 p.m. at the Council Chambers) and decide how to proceed. At the very minimum, there will be revisions. They will discuss if this document has a future.

ADJOURNMENT - The meeting was adjourned at 9:45 p.m.

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