information
Memorial Day closure

Most City of Portland offices will be closed Monday, May 27, in observance of Memorial Day.

Ombudsman recommends Urban Forestry revisit fees and regulations governing certain development permit reviews

Report
Two people walking down a sidewalk on a tree-lined block.
After a complaint, the Ombudsman investigated how Urban Forestry reviews some development permits for compliance with street tree planting standards. In December, the Ombudsman sent a memo to Parks Director Adena Long identifying concerns with the review fee and the clarity of City Code provisions.
Published
In this article

Read this memo as a PDF: 


Summary

In spring 2023, the Ombudsman’s Office was contacted by a complainant who raised a concern about the development permit review conducted by Portland Parks and Recreation Urban Forestry. The complainant felt that it is unfair to assign the Urban Forestry review for development projects valued at over $25,000 regardless of the scope of work, resulting in some permit applicants being charged a review fee when projects do not involve exterior work and do not impact street trees.

We looked further into this complaint by consulting with relevant City staff, examining the Tree Code and reviewing documentation and data provided by Urban Forestry about the development review process.

We find the complaint to be partially substantiated. In principle, a requirement that development projects exceeding a certain valuation be reviewed in relation to street tree standards may serve broader City goals and does not necessarily raise fairness concerns. However, we have concerns about the reasonableness of the review fee, which is a flat fee that has increased over the years while the financial threshold that is one of the triggers for Urban Forestry review has not. In addition, the City Code provisions in this area are vague and confusing, contributing to a lack of clarity about whether they align with their stated purpose. This can make it difficult for community members to navigate the requirements and lead to confusion about Urban Forestry’s authority to review permits when projects do not impact on the right of way.

We recommend to reassess the fee to ensure that it is commensurate with the extent of review involved and is equitable for permit applicants undertaking relatively smaller projects. We also recommend to revise the relevant Code sections to make the tree plan and street tree planting requirements clearer and more transparent to community members.

Background

The development permitting process generally involves multiple infrastructure bureaus conducting reviews of the proposed development for compliance with requirements. Urban Forestry is one of the bureaus and groups that might review a development permit. Urban Forestry reviews are conducted any time a project is valued at $25,000 or greater and any time a Street, City, or Heritage tree may be impacted or removed by the development.1

City Code Title 11, known as the Tree Code, addresses trees in both development and non-development situations. Its chapters seek to enhance the quality of the urban forest and optimize the benefits that trees provide. Chapter 11.50 addresses trees in development situations. Its stated purpose is to support and complement other development requirements with a focus on achieving baseline tree preservation and total tree capacity on a site, considering the anticipated use and level of development (11.50.010). The Chapter regulates the removal, protection, and planting of trees through the development process to encourage development, where practicable, to incorporate existing trees into the site design, to retain sufficient space to plant new trees, and to ensure suitable tree replacement when trees are removed.

According to 11.50.020, a tree plan is required with all development permits, unless there are no private trees 12 inches or more in diameter, no city trees six inches or more in diameter, and/or no street trees three inches or more in diameter, and the site or activity is exempt from the On-Site Tree Density Standards (11.50.050) and the Street Tree Planting Standards (11.50.060). Urban Forestry is responsible for reviewing development permits for compliance with City and street tree preservation and protection and street tree planting requirements, while the Bureau of Development Services (BDS) reviews development permits for compliance with private tree on-site preservation, protection, and planting requirements (11.10.010).

The Street Tree Planting Standards apply to projects “within or fronting on any City-owned or -managed streets.” Among the exemptions are development activities associated with additions, alterations, repair, or new construction where the project value is less than $25,000. Based on this provision, one of several triggers for Urban Forestry review of a development permit is the valuation of a new construction or remodel project at $25,000 or higher.

Urban Forestry development review process

The Urban Forestry development review is conducted either by a Development Services Technician II only or by both Development Services Technicians and Tree Inspectors. According to the Urban Forestry permitting manual,2 a preliminary Technician review consists of reviewing the case in the City’s permitting software (A7), the tree plan, geographic information system, and the property history. The manual outlines when Technicians should reassign the case to a Tree Inspector, including if existing street trees are proposed for removal or development will impact existing street trees.

To set fees, Urban Forestry estimates 4.5 hours of staff time for the typical development review. According to data provided to the Ombudsman’s Office by Urban Forestry, in calendar year 2022, out of a total of 2,914 issued permits they reviewed, 32% of cases had a final sign off after a preliminary review by Development Services Technicians while 68% had a final sign off by Tree Inspectors. Permit applicants are charged the same review fee regardless of whether the review is approved after the preliminary review or following the additional review by a Tree Inspector which, according to Urban Forestry, commonly includes a field review.

Depending on the development project, Urban Forestry’s review of a tree plan might result in requirements to plant or retain street trees and/or the approval or required mitigation of street tree removal.3 According to data provided by Urban Forestry, 18% of the reviewed permits issued in 2022 resulted in requirements to plant street trees and 26% in requirements to retain street trees. According to Urban Forestry, this data does not reflect the full picture of street tree activity since it excludes some types of permits where this information is not captured in A7.4

As of Fiscal Year 2023-24 (FY 2023-24), the Urban Forestry review fee is $613 for residential and commercial remodel and construction permits. According to Urban Forestry, past variation in the fee depending on whether the project was residential, commercial, remodel or construction was eliminated because their review process is the same across these different types of permits.

Issues of concern

Fairness and reasonableness of the review fee          

The flat nature of the Urban Forestry development review fee raises questions of fairness if community members are charged the same amount for a desk review or for an inspector’s field visit and regardless of project scale or impact on street trees. For example, Urban Forestry reviews of approximately one-third of permits issued in 2022 did not involve a Tree Inspector and were approved after Development Services Technicians conducted a preliminary review. In addition, the fee has increased over the years since the current Tree Code came into force in 2015. Urban Forestry attributes this increase to cost recovery efforts. However, the $25,000 threshold for exemptions is the same as in the previous version of the Tree Code decades earlier, when presumably that amount entailed a significantly larger project than today. This creates a situation where more permits are likely to be assigned Urban Forestry review, and it may disproportionately affect permit applicants undertaking relatively smaller projects, such as small businesses or homeowners from historically marginalized communities. For projects close to the $25,000 threshold, for example, the Urban Forestry fee of $613 is one of the largest line items. (A sample online fee estimate for a residential project valued at $28,000 shows only the Bureau of Environmental Services Plan Review fee to be higher, at $760.)

Figure 1. The development permit review fee has increased while the $25,000 threshold under the Street Tree Planting Standards has not

Chart showing that the fee for both residential and commercial remodel projects has increased from 2015 to 2024.

Source: Urban Forestry fees for remodel projects valued at or over $25,000, Fiscal Year 2015-16 to 2023-24 (not adjusted for inflation). Current fee schedule accessed online; past fee schedules accessed in eFiles.

Lack of clarity in the Tree Code and possible misalignment with purpose

A number of the Code provisions governing trees in development are overly confusing. For example, as noted above, a tree plan is required in conjunction with all development permits unless there are no private trees 12 inches or more in diameter, city trees six inches or more in diameter, and/or street trees three inches or more in diameter, and the site or activity is exempt from the On-Site Tree Density Standards and the Street Tree Planting Standards (11.50.020). This vague wording does not specify where the trees should be located in relation to the development activity, or if they should be impacted by it. This can lead to confusion about when the tree plan requirement applies, for example in a situation when a project is not taking place in proximity to any of the trees on a property. The reference to the tree plan not being required if the site or activity is exempt from the On-Site Tree Density Standards and the Street Tree Planting Standards is also confusing.5  This can also make it difficult for community members to understand when they are required to submit a tree plan.

In addition, the Street Tree Planting Standards apply to “projects within or fronting on any City-owned or managed streets.” While it seems clear that a project “within” a street takes place in the right of way, it is less clear what it means for a project (such as a kitchen remodel) to “front on” a street. The current interpretation by Urban Forestry, that a project fronts a street because the site (property) fronts the street, might result in 11.50.020 being applied overbroadly, since “project” is a narrower term than “site.”

Another point of confusion is that while the Street Tree Planting Standards apply to “projects within or fronting on any City-owned or managed streets” (11.50.060A), the Street Tree Planting Requirement (11.50.060C) states that “Any proposed change in width in a public street right-of-way or any other proposed street improvement, including the development of new public streets, shall include areas for tree and landscape planting where practical.” Paragraphs 11.50.060C(1) and (2) specify the actual requirement. The narrower language in 11.50.060C referring to changes in the right-of-way appears to create a mismatch between the scope of the regulations and the required action. This can leave community members unclear about what is actually required.

Commentary prepared on Title 11 also suggests a nexus between the Street Tree Planting Standards and activity in the right of way: “This standard establishes the expectation for Street Tree planting, ensuring that they are considered along with other competing requirements for use of the right of way, rather than at the end when identifying what room is left over to plant trees.”6 An interior alteration, for example, would presumably not create competing requirements for use of the right of way. Furthermore, the overall purpose of Chapter 11.50 implies that its scope is development that would impact existing trees or affect the space for planting: “to encourage development, where practicable, to incorporate existing trees into the site design, to retain sufficient space to plant new trees, and to ensure suitable tree replacement when trees are removed.”

Urban Forestry points out that the conceptual approach that street tree planting is a nonconforming upgrade in development is not new, and that the previous version of the Tree Code required planting street trees if development exceeded a valuation of $25,000. Even so, the current Code creates ambiguity about whether the requirement involves a nexus between the development and the right of way. Clarifying this and the other points mentioned above would make the rules easier to understand and more transparent, particularly to community members who may incur high transaction costs in trying to navigate them.

Recommendations

Protecting and growing the urban tree canopy is an important goal that has become even more urgent due to climate change. It is also important that measures to advance this goal are reasonable, fair, and transparent. We recommend that Urban Forestry take the following steps to ensure that its review of development projects in relation to street tree standards is fair and equitable for community members and is based on Code that is formulated in a clear and understandable way.

  • Reassess the flat fee for Urban Forestry review of residential and commercial remodel and construction permits in relation to the level of effort involved with the process. Options could include charging a lower fee when the permit is reviewed only by a Development Services Technician and adding inspection fees if needed at the final approval stage, and having fees vary depending on project valuation. This assessment should take into account Parks’ cost recovery policy to reduce cost as a barrier for underserved communities.7
  • Revise the Tree Code chapter on trees in development to clarify provisions regarding when a tree plan is needed and when development creates obligations under the Street Tree Planting Standards, ensuring that the language is aligned with the overall purpose of the chapter on trees in development. If project valuation below a certain amount is retained as one of the exemptions to the standards, the amount should be updated to reflect current project costs.

1 Overview of Urban Forestry development review on the City website.

2 Portland Parks and Recreation Permitting and Regulation Manual, Building Permit Reviews - Procedure, edited on 12/15/2022, page 2-2.

3 The Tree Preservation Standards (11.50.040) govern approval or mitigation of street tree removal.

4 The data does not include public works permits or permits issued through the Field Issuance Remodel Program.

5 Specifically, it is unclear whether the point that the Code intends to convey is that the Standards are not applicable if a site or activity falls under 11.50.050 and/or 11.50.060 but is then exempt under those subsections, or whether the Standards are not applicable if either 11.50.050 and/or 11.50.060 does not apply in the first place or the subsections apply, but the activity is then exempt under those subsections. In other words, does 11.50.020 mean to say: “A tree plan is required in conjunction with all development permits, unless…Section 11.50.050 and Section 11.50.060 do not apply or the site or activity is otherwise exempt under these sections”?

6 Title 11 Trees: Code and Commentary, updated January 24, 2013, p. 102.

7 PRK-3.06


Portland Parks & Recreation Response

View the response to the memo from Parks Director Adena Long: