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ASHLAND PLANNING DEPARTMENT
STAFF REPORT  

April 9, 2002 
 
PLANNING ACTION: 2002-042 
APPLICANT: City of Ashland 
ORDINANCE REFERENCE: 18.108 - Procedures 

REQUEST: Adoption of new Tree Preservation and Protection Ordinance - Chapter 18.61 of the Ashland Land Use Ordinance 
 
I. Relevant Facts 

1) Background - History of Application: 
The Tree Commission has been working on the preparation of the draft Tree Preservation and Protection Ordinance for over a year. Several public workshops have been held, as well as joint study sessions with the Planning Commission. 

2) Detailed Description of the Site and Proposal: 
The ordinance is attached and is designed to address the preservation, protection and removal of trees throughout the City. After significant public comment, the ordinance has been revised to not require city approval for tree removal on residential property containing a single family detached home. Permits are required for vacant residential properties, commercial, employment, and industrial lands, and multi-family residential properties. 

Vacant residential properties were included in the permit process due to their future development potential. 

II. Project Impact
Overall, we believe that the ordinance provides clear standards for the preservation, protection and removal of trees within the City. The process ensures that our tree resources are carefully considered during development applications, and the standards for tree protection during development ensure that trees designated for retention will be retained for future generations. 

The Rogue Valley Association of Realtors has raised two point regarding the ordinance. One, that the issuance of tree permits is a land use decision, and two, that the new ordinance may negatively affect the inventory of buildable lands.  

First, we concur that a tree permit is a land use decision, with review by the Tree Commission and the final decision being made by either the Staff Advisor or Planning Commission, with possible appeals to the City Council. The Realtors are incorrect in their assumption that the Tree Commission will be making the final decisions. That power lies with the Planning Commission as required by the Municipal Code. 

Second, an issue was raised regarding impact on buildable land inventories. It is our opinion that the ordinance will have essentially no impact on the buildable lands inventories in the community. Regarding residential lands, while development applications may be required to be modified to protect trees on a parcel, the modifications cannot reduce the density below the base density allowed by the zone (18.61.094.B.1.). This effectively addresses the impact on our residential inventories. 

As for commercial, employment, and industrial lands, we have examined the vacant and redevelopable lands and have determined that there are very, few trees located on these lands. There are no significant stands of trees such that any large areas would be declared unbuildable to protect the trees. We are confident that the overall impact of this ordinance on our buildable lands inventories will be negligible.  

III. Procedural - Required Burden of Proof 

• The criteria for a legislative amendment to the land use ordinance are as follows: 
  

18.108.170.A. It may be necessary from time to time to amend the text of the Land Use Ordinance or make other legislative amendments in order to conform with the comprehensive plan or to meet other changes in circumstances and conditions. A legislative amendment is a legislative act solely within the authority of the Council. 

The City Council, as part of their annual goal setting process, adopted the following goal in 2001: "Develop a tree preservation ordinance and appropriate enforcement mechanisms." The City Council, recognizing changes in the community and development patterns, adopted this goal in order to address the impacts of new development on our urban forest. 

The City's Comprehensive Plan contains the following policies: 

Policy VIII-12: Require, where possible, that the original vegetation be retained and require the restoration of new vegetation if it is removed. 

The proposed ordinance requires the retention of existing trees where appropriate, and provides a mechanism for review of removal requests. Further, the ordinance provides methods for mitigation of lost trees through replanting, either on or off site. 

Policy VIII-16: Develop an urban forest plan for the City including a street tree and non-street tree section, a tree resource inventory, a plan for preservation and renewal of trees of stature and native species, long range maintenance plan, a plan to promote the greater use of trees and shrubs on both public and private land, and a plan to educate the public regarding benefits of trees on public rights-of-way. (underlining added) 

The City has already adopted a street tree ordinance, and requirements for the planting of street trees in new development. The proposed ordinance addresses non-street trees, and provides a mechanism for the preservation of trees of stature, as well as providing a plan for renewal (mitigation) of trees removed. 

Policy VIII-18: Establish a Plant Arboretum and/or a directory of notable trees in the City. 

The proposed ordinance contains a section (18.61.025) regarding Heritage Trees, creating a list of notable trees in the City that "are deserving of special status due to distinctive form, size, age, location, species, unique qualities, or historical significance." 

Policy VIII-19: Increase the portion of the city covered by a tree canopy, especially parking lots and other paved areas. 

The proposed ordinance will help increase the portion of city covered by tree canopy by helping to retain existing tree canopy, and through replanting of trees to mitigate the loss of trees approved for removal. 

IV. Conclusions and Recommendations 

Staff recommends adoption of the proposed tree preservation and protection ordinance. However, we recommend that the public hearing remain open until the May 14, 2002 meeting to allow for adequate public input and compliance with ORS 197.610. 

We would also recommend the following language changes for internal consistency and clarity in the ordinance: 

18.61.035.B. Removal of trees in single family residential zones on lots occupied only by a single family detached dwelling and associated accessory structures, except as otherwise regulated by the Physical and Environmental Constraints ordinance (18.62) regarding Hillside, Wildfire and Riparian lands. 

18.62.035.C. Removal of trees in multi-family residential zones on lots occupied only by a single family detached dwelling and associated accessory structures, except as otherwise regulated by the Physical and Environmental Constraints ordinance (18.62) regarding Hillside, Wildfire, and Riparian lands.

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Questions and Answers
Proposed Tree Preservation and Protection Ordinance
April 2002

Thank you for your interest in this ordinance. The City of Ashland Tree Commission is eager to receive input from the public on the contents and intent of this proposed ordinance by January 16 (though public input is encouraged and welcome beyond that date). Later in the spring, the Ashland City Council will review the ordinance and make final recommendations.

You can submit your comments via e-mail to pearcer@ashland.or.us, by mail to Robbin Rearce, City Hall, 20 East Main, or by phone at 552-2062.

The following questions and answers may be helpful in understanding the proposed ordinance.

Why does the City of Ashland need an ordinance to protect trees?

Trees provide a valuable resource for erosion control, the reduction of air and noise pollution, temperature mitigation, enhanced wildlife habitat and more. The Comprehensive Plan also encourages the "preservation and renewal" of trees within the City. The preservation and protection of Ashland's urban forest is a responsibility of the City and best addressed by an ordinance.

Does this ordinance pertain to all trees in Ashland?

The ordinance pertains to trees of a specific size on private and public property.

1) Property owners of residentially zoned, single-family detached homes are not required to obtain permits for tree removal on their property.

2) Property owners of vacant single-family zoned property are required to obtain permits for removal of trees that measure 18 inches or more.

3) Property owners of multi-family residentially zoned properties not occupied solely by a single-family dwelling must obtain and receive approval prior to removing trees that measure six inches or more.

4) Developers of land zoned for commercial, employment and industrial uses must obtain and receive approval prior to removing trees that measure six inches or more.

Where is the tree measured?

The circumference of the trees is measured 54 inches (4 ½ feet) up from the ground.

Will I be able to remove any trees in my yard without getting a permit?

Yes. You can removed trees from your yard without a permit if you live in a residential zone on a lot occupied by a single family detached dwelling. If you live in attached housing, apartments, or similar housing in multi-family zones, permits are required for removal of trees six inches or greater.

What if I want to add on to my home and must remove a large tree in order to make space for the addition?

You do not need a permit if you live in a single family detached home on a residential lot. Expansions of attached housing or apartments do require a permit, and your plans may be modified in an attempt to preserve the tree.

My neighbor wants to cut down a large tree in his yard that shades my property. I don't want that tree removed. Do I have a say?

Yes and no. But you won't be making the decision. The neighbor must apply for a permit to remove the large tree if the lot is vacant and residentially zoned, or if it has apartments or attached housing and is multi-family zoned. Once he applies for a permit, the Community Development Department will notify the neighbors and other interested parties that he has applied for a tree removal permit. That notification will include information on what you can do to have your concerns heard. This could involve a public hearing, and perhaps an appeal to the City Council.

However, if your neighbor lives on property that is occupied by a single family detached residence and residentially zoned, he will not be required to get a permit and you will not have an official right to comment on the tree removal.

I live on the hillside; does this ordinance pertain to me? And what about Wildfire Lands?

On slopes greater than 25%, your property is already covered by the Hillside Ordinance. And Wildfire lands are also covered by an existing ordinance regulating the removal of trees for fuel reduction.

What if a large tree is about to fall on my house? Do I need a permit to cut it down?

Only if you live in a multi-family residential zone. You must contact the City to obtain a Hazard Removal Permit, which can be issued through an expedited process.

What authority approves or denies the permit? What is the cost of the permit? How long will it take to get the permit and approval?

Most permits will be approved by the Staff Advisor with input by the Tree Commission, although appeals will be heard by the Planning Commission and ultimately the City Council. Permit fees are yet to be established and will be dependent upon issues raised by the public and the cost of providing the permit. Most permits will be issued in approximately 10-14 days to allow for noticing of surrounding neighbors. Others may take longer dependent upon appeals.

If I receive a permit to remove a large tree, can I do it myself or do I have to have an arborist remove the tree?

You can do it yourself or hire an arborist. Arborists working in Ashland need to have a current City of Ashland business license and be certified by either the International Society of Arboriculture or the American Society of Consulting Arborists.

Property owners, builders, landscapers, contractors or arborists that remove a tree without receiving a permit will be subject to strict penalties, which are specified in the ordinance.

What option does a developer have if there are large trees on the property that conflict with the project design?

The developer could be required to modify the design in order to eliminate the need to remove the large trees, including modification of the location, design, or intensity of the development. The developer will not be required to reduce the number of units in a residential development below the base density of the zone. If it is agreed that the design cannot or should not be modified, the developer would be required to mitigate the loss of the existing trees such as re-planting the trees elsewhere on the property or at an off-site location or to make a payment to the Tree Account.

How else would this ordinance affect development?

Several sections would affect new development. Development activities such as clearing, grading, excavating or demolition on property that requires a Planning Action or building permit would require a Tree Protection Plan. This section would require an applicant to present a plan that identifies existing trees, drip lines of each tree and numerous additional specifics. Such plan would usually require the participation of an arborist who meets the legal definition of arborist: that is, anyone who is certified by the International Society of Arboriculture or by the American Society of Consulting Arborists. Such Tree Protection Plan would be processed concurrently with the applicant's Planning Action.

What about trees on public property?

In most cases, public agencies must follow the same requirements for tree removal as vacant residential single family residential property. Tree removal on multi-family residential, and commercial zoned properties is regulated by more stringent standards.

Removal of trees less than 18" DBH (Diameter at Breast Height) within any public school area, Southern Oregon University, and other public land does not require a permit. Removal of any Heritage Tree or any street tree within the public right of way, regardless of its size or who wants to remove it, requires a permit.

Certain other public activities do not require permits for tree removal or topping. The establishment or alteration of any public park within the Ashland Parks and Recreation Department does not require tree removal permits. However, the Parks Department must present an annual report to the Tree Commission which outlines tree removal and related activities. Similarly, the City's Electric Department is also allowed conduct annual tree trimming and topping without permits, but is required to submit an annual report on their activities.

What if I want to remove a street tree within the public right of way? Who is responsible for street trees?

The existing Ashland Municipal Code requires a tree removal permit to remove any street tree within the right of way, regardless of size. Although the City owns street trees within the public right of way, existing City code states the property owner is responsible for planting, maintaining, and removing street trees. The code currently requires the property owner to obtain a permit to plant, prune, or remove street trees. The proposed ordinance will not change these existing City code requirements.

Explain the tree protection element of this proposed ordinance.

First, all projects involving tree removal would require permits and plans. After applying to receive a Verification Permit (part of the Planning Action process) the applicant would be required to tag all trees to be removed with pink tagging tape. Additionally, all vegetation four to six inches DBH proposed to be removed would be flagged with pink tape. Finally, chain link fencing would be used to protect all trees during construction projects. Such fencing would be flush with the initial undisturbed grade and inside the defined tree protection zone. No project would proceed until the City inspects and verifies the installation of all required tree protection measures. Onsite, City inspections would also monitor the parking or storage of any materials, excavation, trenching, grading, etc. under the tree's dripline or over the tree's root system.

What sort of penalty is proposed if someone violates the ordinance?

A violation of the ordinance is considered an infraction of the City's municipal code and subject to a fine as set forth in the code. The responsible party could also be fined a dollar amount based on the caliper inch of the tree removed. The amount has not yet been determined. A restoration fee may also be imposed to allow the City adequate funds to provide restoration efforts. Additional fees could be assessed if previous violations had occurred.

What will the City do with the input it receives from the community?

The Tree Commission and Planning Commission will be reviewing all comments received from the community prior to making their recommendations regarding the ordinance. All comments and recommendations will be forwarded to the City Council for their review prior to the public hearing on the final ordinance. Public comments will be allowed and encouraged throughout the ordinance adoption process.

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