PRK-2.04 - Replanting Requirements for Tree Removal on Private Property, City-Owned and Managed Sites and Public Rights-of-Way

REPLANTING REQUIREMENTS FOR TREE REMOVAL ON PRIVATE PROPERTY, CITY-OWNED AND MANAGED SITES AND PUBLIC RIGHTS-OF-WAY

Administrative Rule Adopted by Portland Parks & Recreation and Bureau of Development Services Pursuant to Rule-Making Authority

ARB-PRK-2.04

RELATING TO

Chapter 3.26 - Bureau of Parks, Title 11 Trees 

FOR INFORMATION CONTACT

Urban Forestry 503-823-TREE (8733)  trees@portlandoregon.gov

 AUTHORITY: 3.26.040, 11.05.030, 11.10.010

CITATIONS:

3.26.040 Nursery and Planting Division

Removal of trees, permits for removal of trees, removal of limbs of trees and reports in regard to trees shall be subject to the rules and requirements of Title 11. The City Forester shall be responsible for the application and enforcement of provisions of the Tree Regulations in Title 11, as further specified within that Title.

11.05.030 Authority

The regulations of Title 11, Trees are adopted under the City’s police power to regulate to protect the public health, safety and welfare. Pursuant to Section 2-104 of the City Charter, the City Council confers its non-legislative functions as described herein to the City Forester and Director of the Bureau of Development Services to administer and enforce this Title.

11.10.010 Code Administration and Duties Performed

The City Forester and Bureau of Development Services (BDS) Director are authorized to adopt, amend and repeal administrative rules, consistent with the provisions of this Title, pertaining to matters within the authority or responsibility of the City Forester or BDS Director under the provisions of this Title. No such rule shall be effective or binding on any person until it is filed for inclusion in the City Auditor’s Portland Policy Documents repository in accordance with the provision of Chapter 1.07 of this Code.

FINDINGS:

1.  On January 1, 2015 a new Title 11 Trees went into effect. This Title includes regulations for tree removal and tree planting in both development and non-development situations. Title 11 contains discretionary tree replacement requirements when trees are removed during development projects. It also contains discretionary tree replacement requirements when trees are removed by private property owners. As such, the tree code lacks clarity on how many trees must be planted when large trees are removed by both private property owners seeking to remove trees in their yard, or as part of a development project.

2.  On April 20, 2015 the Bureau of Development Services and Portland Parks and Recreation adopted an interim administrative rule (the Interim Rule) for tree planting associated with Title 11 Trees to create clarity and predictability. This Interim Rule defined tree replacement requirements when trees are removed on private property and as part of a development project.

3.  The Bureau of Development Services and Portland Parks & Recreation bureau directors determined that adopting a Rule was imminent to the implementation of Title 11 Trees. As such, it was filed under 3.30.045C Administrative Rulemaking procedures which allows the Bureau of Development Services Director to adopt an interim rule without prior notice upon a finding that a failure to act promptly will result in prejudice to the public interest.

4.  The Interim Rule was filed with City Auditor’s office on April 20, 2015. Notice of adoption was also sent to the Office of Neighborhood Involvement and posted on the Tree website at portland.gov/trees.

5.  Between April 20, 2015 and August 12, 2015 BDS solicited comments from the Tree Code Oversight Advisory Committee and the Urban Forestry Commission, the Bureaus of Parks & Recreation, Planning and Sustainability, Transportation, Environmental Services, and the Water Bureau. BDS revised the Interim Rule based on comments received, and drafted a Proposed Administrative Rule (the Proposed Rule).

6.  On September 4, 2015 BDS published a notice of a public hearing for the Proposed Rule in The Oregonian (from September 4 to September 18, 2015) and in The Daily Journal of Commerce (from September 4 to September 18, 2015). Notice of the public hearing was posted on the Tree website and made available to the public in the BDS Development Services Center. BDS then held a public hearing to receive comments on the proposed rule on September 18, 2015, two weeks after the published notice.

7.  Two primary issues were raised during the comment periods.

a.  Graduated Tree Replacement for Large Trees Removed as Part of Development Projects on City Owned and Managed Property. The Interim Rule included tree replacement at a maximum of two trees for every single tree removed over the applicable size threshold. Several comments suggested that tree replacement should be graduated based on the size and condition of the tree removed.

Language was added to the section of the Proposed Rule relating to tree replacement during Development Projects that allows the City Forester to base tree replacement on the size and condition of the tree.

b.  The City Traffic Engineer Procedures for Removing Trees that are Dangerous to the Traveling Public. The Tree Code does not include permit procedures when a tree has been identified by the City Traffic Engineer as a safety hazard for the traveling public.

Language was added to the Proposed Rule under Tree Maintenance Specifications and Responsibilities that addresses permit procedures, time frames and mitigation requirements for trees that must be removed to ensure public safety and for compliance with the Americans with Disabilities Act.

CONCLUSION

As provided in Title 3.30.45, the Directors of BDS and PP&R hereby adopts the Administrative Rule.

PURPOSE

The purpose of these Rules is to provide tree replacement standards for trees removed as part of certain development projects and non-development tree permits. A development project means that a development permit application has been submitted to the City by a bureau or private applicant for development on a site or in the street. A non-development permit is a permit application submitted for tree work when no other development is taking place on a site or in a street.

ADMINISTRATIVE RULES

Intent

These Rules support the goals of the Urban Forestry Management Plan and advance the Portland Plan’s integrated strategies for a Healthy Connected City by creating vibrant neighborhood centers, and improving connections for people, places, water, and wildlife. They are reflective of the City Council’s intent for implementation as part of the Citywide Tree Policy Review and Regulatory Improvement Project adopted in April 2011. This intent is provided in Ordinance 184533 passed by the City Council which calls for tree regulations that are: designed to support multiple city goals, clear and transparent, customer friendly, easy to understand and work with, and equitable and effective. The Rules are designed to meet other tree project objectives as follows:

•  Recognize that tree regulations are relational and inter-dependent across development and non-development situations.

•  Increase consistency and equity in how trees are regulated on public and private property, and in public and private development situations.

•  Ensure that the tree removal permit system is, and is perceived as reasonable, fair, simple, and useful in helping meet Urban Forest Management Plan goals and canopy targets.

• Build on existing City programs and strengths to improve overall regulatory efficiency and effectiveness, and limit impacts on development and permitting costs.

Tree Permits (No Associated Development)

Title 11 establishes a standardized tree permit system that applies to tree removal in non-development situations. The permit system is designed to complement the development standards. The Rules below build on and further standardize planting requirements when trees are approved for removal. They create a predictable and consistent replanting metric by establishing a basic tree capacity requirement. This tree capacity threshold is similar to the development standards. In this way, replanting requirements in non-development situations are consistent with development standards thus creating a more equitable requirement.

Private and City-Owned Property

•  An applicant requesting a tree removal permit that triggers up to inch per inch mitigation per Section 11.40 Table 40-2 or Table 40-3 shall replant a minimum of one tree for each tree removed. Additional tree planting may be required only if the site and/or abutting right-of-way falls below the On-Site Tree Density Standards in Section 11.50.050 C.1 and the Street Tree Planting Standards in Section 11.50.060 C.1 after the tree has been removed. Sites that fall below the required tree density must replant trees to conform to this standard. However, trees planted shall not exceed the number of diameter inches being removed and properties shall not move further out of compliance with the density standards. Applicants may choose to pay a fee in lieu of replanting as specified below. The City Forester shall grant a waiver to the minimum replanting requirement, including the fee in lieu, when the site and/or the abutting right-of-way meet density standards in accordance with Section 11.40.060 C and the tree was not required under any other city code provision.

•  Fee in lieu of planting. Applicants may choose to pay a fee in lieu of planting in accordance with Section 11.50.050 C.3.c. The fee per tree shall be credited at a rate of one medium canopy size tree. The cost shall be in accordance with the adopted Tree Code fee schedule Fee in Lieu of Planting per Inch rate.

•  The City Forester will determine if a site and right-of way adjacent to the site is meeting tree density standards in Sections 11.50.050 and 11.50.060 upon site inspection. A Tree Inspector will evaluate existing trees and determine if trees are a small, medium, or large canopy species. Sites will be credited based on the size of existing trees at maturity in accordance with Section 11.50.050 C.1 and C.2. Trees that are dead, dying or dangerous or a nuisance species tree will not be credited toward meeting the density standard.

•  On privately owned property developed with a single family residential dwelling, fees in lieu per tree shall be in accordance with the $1,200 Cap on Fee in Lieu of Replanting for Single Family Development policy directive attached to the end of this Rule. Applicants may choose to pay a fee in lieu of planting replacement trees in accordance with Table 60-1 and the adopted Tree Code fee schedule.

Street Trees

•  When a Street Tree is approved for removal, applicants whose permits that trigger up to inch per inch replacement shall plant a minimum of one tree and a maximum of two trees for each tree removed. Trees shall be planted in the same planting strip in front of the site as first priority, or second priority in the planter strip on the side street on a corner lot, or on the site itself. The City Forester shall grant a waiver to the minimum replanting requirement, including the fee in lieu, when the site and/or the abutting right-of-way meet density standards in accordance with Section 11.40.060 C. and the tree was not required under any other city code.

•  Fee in lieu of planting. Applicants may choose to pay a fee in lieu of planting. Replacement trees shall be planted in conformance with 11.60.020 Table 60-1 Broadleaf Tree Size Requirements, referenced below, and the adopted Tree Code fee schedule Fee in Lieu of Planting per Inch rate.

Table 60-1 Broadleaf Tree Size Requirements

Development Projects

Title 11 creates a systematic approach to address trees during City capital improvement and public works projects. On City owned or managed sites and when improvements are proposed to the right-of-way, applicants are required to consult with the City Forester at the preliminary project design phase if trees are proposed for removal. Per Section 11.50.040, the purpose of this consultation is to identify potential impacts and opportunities to retain existing trees, as well as any measures required to protect trees on site, on adjacent sites or in the street. Per Section 11.50.070 Tree Plan Requirements, applicants must show trees greater than or equal to 6 inches in diameter within either a 15 foot or 25 foot buffer beyond the development impact area (depending on the project type). When this buffer area extends onto private property the surveyed location and size of trees is not required. However, applicants shall include tree size and location estimates for City Forester review. Applicants are not required to install tree protection measures on private property unless the trees are located within the development impact area. The City Forester will respond in a timely manner to these requests. This rule standardizes tree replacement requirements when trees cannot be preserved on City owned or managed sites and right-of-way improvements.

For projects on sites where City and Street trees will be impacted, the City Forester will apply tree replacement requirements for trees 6 inches in diameter and greater that are healthy trees and not dangerous or a nuisance species. For street improvement projects where the existing street is partially or completely unimproved, the replacement requirements are reduced to acknowledge constraints of designing within restricted rights-of-way widths, that these areas may include large numbers of trees, the relative lack of available planting spaces after a street improvement is completed, and the potential cost of mitigation on top of the public improvement cost. In these cases, replacement is only required for trees 12 inches in diameter and larger.

City Owned or Managed Sites

Any required replanting specified below shall occur on the site, in the street planting strip, or in the same watershed either by planting in a location approved by the City Forester or via payment into the Tree Planting and Preservation Fund. Trees shall be replanted in accordance with 11.60.020, Tree Planting Specifications.

•  No tree replacement is required for trees removed that are less than 6 inches in diameter or for trees identified by the City Forester as dead, dying or dangerous.

•  The following table provides the maximum tree replacement requirement based on the size of the tree removed. The City Forester shall take into account the overall value of the tree removed when determining the number of trees to be planted.

•  Payment in lieu of planting. Applicants may choose to pay a fee in lieu of planting replacement trees. The fee in lieu of planting is based on the cost of planting and establishing a 1.5 inch caliper tree in accordance with the adopted Tree Code fee schedule Fee in Lieu of Planting per Inch rate.

Tree Replacement for Development on City Owned or Managed Sites

Right-of-way Improvements

Any required replanting specified by development type below shall occur on the site, in the street planting strip, or in the same watershed either by planting in a location approved by the City Forester or via payment into the Tree Planting and Preservation Fund.

Residential and Commercial Building Permits

For development projects taking place on a site that include Street Tree removal for right-of-way improvements such as a new driveway or improvements to an existing sidewalk or planting strip, applicants shall replant a maximum of two trees for every healthy, non-nuisance species tree allowed to be removed that is 6” DBH and larger. Applicants shall also meet the Street Tree Planting Requirements in accordance with Section 11.50.060 C.1., in addition to this requirement.

Half and Full Street Improvements

For development projects taking place in the street, including street improvements requested under a capital improvement project or when a public works permit includes improvements to a partially or fully unimproved street, applicants shall replant a maximum of two trees for every healthy, non-nuisance species tree allowed to be removed that is 12 inches in diameter or larger. Trees planted to meet Street Tree Planting Standards will be credited toward meeting this requirement.

Tree Maintenance Specifications and Responsibilities

This section establishes tree permit and mitigation requirements when the City Traffic Engineer determines that a tree must be removed or pruned to maintain safety for the traveling public. Both the City Traffic Engineer and City Forester shall prioritize permits that are necessary to ensure public safety.

Emergency pruning, root cutting, or tree removal

The Tree Code includes provision to relieve a person from the need to obtain a permit before pruning or removing a tree when an emergency exists. Provisions are also included for emergency work that the Responsible Engineer or designated crews may be responding to. A retroactive permit is required to document the removal or pruning and the emergency situation in accordance with Chapter 11.40.

•  The Responsible Engineer maintains authority to remove street trees in accordance with Sections 11.40.020 D.1 and 11.40.020 D.2, at the Responsible Engineer’s discretion, if an emergency exists because the condition or location of a tree presents a danger to structures, utilities or to public safety.

If the Responsible Engineer determines that a tree is a danger and must be removed, the bureau of the Responsible Engineer shall replace the tree removed with one tree, or pay a fee in lieu of replacement.

Trees and Public Safety

•  The City Traffic Engineer maintains authority as granted under Title 16 to require the removal or pruning of any street tree in the public right-of-way that obscures the visibility of or for drivers, bicyclists, or pedestrians, or in any way presents a safety hazard during a development project and when no development is proposed.

•  When the City Traffic Engineer determines that a tree is causing a safety hazard or must be removed for installing facilities necessary for compliance with the Americans with Disabilities Act, a Type “A” removal permit is required in accordance with Section 11.40.040. The application shall include an assessment of alternatives to tree removal that were considered such as limb and root pruning, weed and shrub management and other alternatives as deemed appropriate by the City Traffic Engineer. If a tree is being reviewed under an existing development permit, a separate Type “A” permit is not required. Alternatives to tree removal shall be submitted as part of the existing permit.

•   To ensure public safety is maintained, the City Forester shall issue a Type “A” permit within fifteen days of receiving a tree removal application by the City Traffic Engineer. The City Traffic Engineer shall meet with the City Forester upon request to discuss alternatives to tree removal.

•  When a healthy street tree 20 inches in diameter or greater is removed at the request of the City Traffic Engineer, the City Traffic Engineer shall bring the block frontage, whichever is less from which the tree was removed into compliance with the Street Tree Planting Requirements in Section 11.50.060 C.1 and C.2. However, no more than 4 replacement trees shall be required for any single tree removed. Trees less than 20 inches in diameter shall be replaced with no more than two trees. When the street is in compliance with the Street Tree Planting Requirements in Section 11.50.060 C.1. and C.2. after the tree has been removed one replacement tree shall be planted.

•  If either the City Forester or City Traffic Engineer determines that there is no suitable space for tree planting then the City Traffic Engineer shall pay a fee in lieu of planting in accordance with Table 60-1 and the adopted fee schedule.

Infrastructure Repair

The purpose of this section is to provide guidance for tree replacement and permit requirements in association with utility and sidewalk repair when no other development is proposed. Applicants shall first seek to avoid trees and minimize impacts to trees to the extent practicable. Sidewalk repairs shall minimize asphalt or other hardscape design over existing root structures as long as accessibility to the traveling public is maintained. In the event that tree removal is unavoidable, for example a tree located on a damaged sewer or water line, the tree may be removed in accordance with Section 11.40 Tree Permit Requirements. When sidewalks need to be replaced to remediate unsafe conditions street trees may be removed and replaced in accordance with this Rule and 11.40 Tree Permit Requirements.

Sidewalks and Underground Utilities

The City Engineer shall consider alternatives to tree removal including but not limited to:

•  Root pruning.

•  Grinding a raised sidewalk edge.

•  Ramping the walking surface over the roots or lifted slab with pliable paving.

•  Routing the sidewalk around the tree roots.

•  Installing flexible paving or rubberized sections.

•  Considering alternatives to conventional pavement and sidewalk materials for new sidewalks. Substitute permeable and/or flexible materials for typical asphalt or concrete overlay.

Sidewalks. Section 11.40.040 B2.c Review Factors calls for The City Forester to evaluate whether the maintenance of a tree creates an unreasonable burden for the property owner. Street and private trees that are in conflict with sidewalks that must be repaired, and where the conflict cannot be resolved, may be removed and replaced at a 1:1 ratio. If tree removal is not addressed under an existing permit a tree removal permit is required in accordance with permit requirements in Chapter 11.40.

Underground Utilities. When no other development is proposed and a utility connection will damage or otherwise cause a tree to fail or when a tree is causing damage to a utility, a tree removal permit is required in accordance with 11.40. Tree replacement shall continue to be at 1:1 ratio. The Responsible Engineer shall consult with the City Forester only when routine maintenance of a utility may cause significant damage to a tree or tree roots.

Policy Statement

$1200 Cap on Fee in Lieu of Replanting for Single Family Development

January 1, 2015

The Commissioner in Charge of Parks and Recreation has directed the City Forester, in exercising the discretion given under Title 11 of the City Code, to limit the fee charged to an owner or resident of a single-family dwelling, in lieu of replanting for trees removed in non-development situations under Chapter 11.40 of the City Code, to not more than $1,200 per tree removed.

This policy limits the amount of any fee in lieu of planting (per inch) that is charged to owner or resident of single dwelling development for removal of trees on the site or in the adjacent right-of-way, to no more than $1,200 per tree removed. This policy is intended to equalize the amount that applicants for development must pay in lieu of tree preservation with the amount that the owner or resident of a single family dwelling must pay in lieu of planting in non-development situations. This is necessary so that the single dwelling property owner is not required carry a disproportionate burden of paying to maintain the urban canopy relative to those who develop.

This policy applies only to applicants who are owners or residents of single-family dwellings in use as a dwelling unit, only. The tree(s) in question must be located on the subject property, or the adjacent right-of-way. This policy does not apply to commonly held tracts of land.

HISTORY

Interim administrative rule adopted by Director of Portland Parks & Recreation April 7, 2015.

Filed for inclusion in PPD April 10, 2015 and effective April 20, 2015.

Amended and made permanent by Director of Portland Parks & Recreation and Director of Bureau of Development Services October 19, 2015.