Ashland, OR Tree Preservation and Protection

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Type: Ordinance

Status: Adopted on 6/4/02

Source File: http://www.ashland.or.us/Page.asp?NavID=717

Text:

ORDINANCE NO. 2883
AN ORDINANCE ADDING A NEW CHAPTER TO THE ASHLAND MUNICIPAL CODE - LAND USE ORDINANCE REGARDING TREE PRESERVATION AND PROTECTION

THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:

SECTION 1. Chapter 18.61 of the Ashland Municipal Code - Land Use Ordinance is added to read:

Chapter 18.61
TREE PRESERVATION AND PROTECTION

18.61.010 Purpose.
The City of Ashland recognizes the importance of trees to the character and beauty of Ashland as well as the role that trees have in advancing the public health, safety and welfare. The City has therefore determined that reasonable regulation of the removal of certain trees is necessary and that this regulation of trees is based upon the following general guidelines:

A. The City recognizes that trees can provide soil stability, noise buffering, and wind protection benefits. The City of Ashland greatly values trees for their ecological importance, temperature mitigation, enhanced wildlife habitat and aesthetics.

B. The City recognizes the special significance of heritage and distinctive trees, and values the contribution, which such trees make to the beauty and quality of life of Ashland.

C. The City recognizes that because of the known benefits of trees, development property should be protected from unregulated removal of trees prior to the approval of development plans. Trees on such properties should be preserved so that they may be considered for incorporation into development plans.

D. The City recognizes that residents in single family zones should have the freedom to determine the nature of their private landscaped surroundings.

E. The City recognizes that city-owned property and properties located in multi-family residential zones often have special landscaping circumstances, and that these special circumstances have the potential to affect significantly larger numbers of persons if unregulated. Because of this, such properties require reasonable regulation.

18.61.020 Definitions.

A. Arborist means a person who has met the criteria for certification from the International Society of Arboriculture or American Society of Consulting Arborists, and maintains his or her accreditation.

B. Caliper Inch refers to a manner of expressing the diameter inches of a tree as calculated by measuring the tree's circumference and dividing by Pi (approximately 3.14159). Specially calibrated "diameter tapes" or "calipers" are used to determine caliper inches.

C. Dead Tree means a tree is lifeless. Such evidence of lifelessness may include unseasonable lack of foliage, brittle dry branches, or lack of any growth during the growing season.

D. Diameter at breast height or DBH means the diameter of the trunk, at its maximum cross section, measured 54 inches (4 1/2 feet) above mean ground level at the base of the trunk.

E. Dripline means an imaginary vertical line extending downward from the outermost tips of a tree's branches to the ground.

F. Heritage Tree means any tree listed on the official City of Ashland Heritage Tree list adopted by the City Council.

G. Immediate danger of collapse means that the tree may already be leaning, with the surrounding soil heaving, and/or there is a significant likelihood that the tree will topple or otherwise fail and cause damage before a tree removal permit could be obtained through the non-emergency process. "Immediate danger of collapse" does not include hazardous conditions that can be alleviated by pruning or treatment.

H. Person means any individual or legal entity.

I. Removal means to cut down a tree, or remove 50% or more of the crown, trunk, or root system of a tree; or to damage a tree so as to cause the tree to decline and/or die. "Removal" includes topping. "Removal" includes but is not limited to damage inflicted upon a root system by application of toxic substances, operation of equipment and vehicles, storage of materials, change of natural grade due to unapproved excavation or filling, or unapproved alteration of natural physical conditions. "Removal" does not include normal trimming or pruning of trees.

J. Significant Tree means a "tree" having a trunk 18 caliper inches or larger in diameter at breast height (DBH).

K. Staff Advisor means the Planning Director or the Planning Director's designee.

L. Topping means the severe cutting back of a tree's limbs to stubs 3 inches or larger in diameter within the tree's crown to such a degree so as to remove the natural canopy and disfigure the tree. Topping does not include the practice of "pollarding" when conducted in accordance with the standards established by the International Society of Arboriculture.

M. Tree means any woody plant having a trunk six caliper inches or larger in diameter at breast height (DBH). If a tree splits into multiple trunks above ground, but below 4.5 feet, the trunk is measured at its most narrow point beneath the split, and is considered one tree if greater than six inches DBH. Plants commonly planted as shrubs, including but not limited to English laurel, photinia, arborvitae, poison oak, English holly, and English ivy shall not be considered a "tree". Trees specifically planted and maintained as a hedge shall also not be considered a "tree".

N. Tree Account means an account established by resolution of the Council for the receipt of funds to be utilized for future tree purposes, as outlined in the resolution.

O. Tree Removal Permit means written authorization from the City for a tree removal to proceed as described in an application, such authorization having been given in accordance with this chapter.

P. Tree Protection Zone means the area reserved around a tree or group of trees in which no grading, access, stockpiling or other construction activity shall occur as determined by the Staff Advisor based on review of the tree and site conditions.

18.61.025 Heritage Trees

A. The City of Ashland recognizes that specific trees in Ashland are deserving of special status due to distinctive form, size, age, location, species, unique qualities, or historical significance.

B. Any person may nominate, with the written consent of the property owner, a mature tree for consideration as a Heritage Tree. This nomination shall include all information necessary for evaluation based on the items described in section A above. The Tree Commission shall review all nominations and shall make a written final recommendation to the City Council. The City Council shall review the recommendation and make the final determination for Heritage Tree status.

C. Should the Council approve the nomination, the tree shall be included on the Heritage Tree list adopted by resolution of the City Council. The property owner shall be notified of the Council's action.

D. Once designated, a Heritage Tree shall be subject to the applicable provisions of this ordinance.

E. A Heritage Tree may be removed from the list by the City Council upon its own motion or upon written request by the property owner. A request by the owner must state the reasons for removal from the list. The Council shall have the right to determine removal or addition to the list.

18.61.030 Regulated Activities.

A. All tree removal and tree topping activities, unless exempted below, shall be carried out in accordance with the requirements of this chapter.

B. No person who is required to install or maintain tree protection measures pursuant this chapter shall do any development activities including, but not limited to clearing, grading, excavation or demolition work on a property or site which requires a planning action without approved tree protection measures properly installed and maintained pursuant to this Chapter.

18.61.035 Exempt Tree Removal Activities
The following activities are exempt from the requirement for tree removal permits:

A. Those activities associated with the establishment or alteration of any public park under the Ashland Parks and Recreation Commission. However, the Ashland Parks and Recreation Department shall provide an annual plan in January to the Tree Commission outlining proposed tree removal and topping activities, and reporting on tree removal and topping activities that were carried out in the previous year.

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.

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).

D. Removal of trees less than 6" DBH in any zone, excluding those trees located within the public right of way or required as conditions of approval with landscape improvements for planning actions.

E. Removal of trees less than 18" DBH on any public school lands, Southern Oregon University, and other public land; but excluding Heritage trees and street trees within the public right of way.

F. Removal of trees within the Wildfire Lands area of the City, as defined on adopted maps, for the purposes of wildfire fuel management, and in accord with the requirements of the Physical and Environmental Constraints Chapter - 18.62.

G. Removal of dead trees.

H. Those activities associated with tree trimming for safety reasons, as mandated by the Oregon Public Utilities Commission, by the City's Electric and Telecommunication Utility. However, the Utility shall provide an annual plan to the Tree Commission outlining tree trimming activities and reporting on tree trimming activities that were carried out in the previous year. Tree trimming shall be done, at a minimum, by a Journeyman Tree Trimmer, as defined by the Utility, and will be done in conformance and to comply with OPUC regulations.

18.61.042 Approval and Permit Required.
A person who desires to remove a tree, not otherwise exempted in 18.61.035, shall first apply for and receive one of the following tree removal permits before tree removal occurs:

A. TREE REMOVAL - EMERGENCY PERMIT:

1. If the condition of a tree presents an immediate danger of collapse, as defined in 18.61.020, and represents a clear and present hazard to persons or property, an emergency tree removal permit may be issued and the payment of a fee may be waived.
2. Emergency tree removal permits are approved by the Staff Advisor. The Staff Advisor may require the applicant to hire an arborist to review the evidence to ascertain whether the tree presented an immediate danger of collapse.

B. TREE REMOVAL - VERIFICATION PERMIT:

1. If a site has received development approval through a planning action consistent with the standards of this chapter, then a Verification Permit shall be required for those trees approved for removal through that process. To obtain a verification permit, an applicant must clearly identify on the property the trees to be removed by tying pink tagging tape around each tree and submitting a site plan indicating the location of the requested trees. Vegetation 4" to 6" DBH that is to be removed shall also be marked with pink tagging tape. The Staff Advisor may require the building footprint of the development to be staked to allow for accurate verification of the permit application. The Staff Advisor will then verify that the requested trees match the site plan approved with the planning action. The City shall require the applicant to mitigate for the removal of each tree pursuant to AMC 18.61.084. Such mitigation requirements shall be a condition of approval of the original development permit.
2. Verification permits shall be required prior to the issuance of a building permit for the subject property.

C. TOPPING PERMIT: Topping is an injurious pruning practice which may lead to stress, disease, and decay in trees. It should be avoided whenever an alternative exists.

1. A topping permit may be issued only if the following apply:
a. A utility, public agency, or other person who routinely tops trees in furtherance of public safety, may apply for a topping permit pursuant to this section based upon an arborist's report establishing a methodology for topping in compliance with this subsection.
b. Trees under utility wires may be topped only where other pruning techniques are impractical.
c. When authorized as part of a Tree Removal-Staff Permit.
2. The City, in granting approval for tree removal in an open space or undeveloped area, may allow a tree to be topped to a designated height in order to maintain a "snag" for wildlife habitat.

D. TREE REMOVAL - STAFF PERMIT:

1. Tree Removal-Staff Permits are required for the following activities:
a. Removal of trees greater than 6" DBH on any private lands zoned C-1, E-1, M-1, or HC.
b. Removal of trees greater than 6" DBH on multi-family residentially zoned lots (R-2, R-3, and R-1-3.5) not occupied solely by a single family detached dwelling.
c. Removal of significant trees on vacant property zoned for residential purposes including but not limited to R-1, RR, WR, and NM zones.
d. Removal of significant trees on lands zoned SO, on lands under the control of the Ashland School District, or on lands under the control of the City of Ashland.
2. Applications for Tree Removal - Staff Permits shall be reviewed and approved by the Staff Advisor pursuant to AMC 18.61.080 (Approval Criteria) and 18.108.030 (Notice Requirements). If the tree removal is part of another planning action involving development activities, the tree removal application, if timely filed, shall be processed concurrently with the other planning action.

18.61.050 Plans Required.

A. An application for all Tree Removal and Tree Topping Permits shall be made upon forms prescribed by the City. The application for a Tree Removal Permits shall contain:

1. The number, size, species and location of the trees proposed to be removed or topped on a site plan of the property.
2. The anticipated date of removal or topping.
3. A statement of the reason for removal or topping.
4. Information concerning proposed landscaping or planting of new trees to replace the trees to be removed, and
5. Evidence that the trees proposed for removal or topped have been clearly identified on the property for visual inspection.
6. Any other information reasonably required by the City.

B. The applicant shall have the burden of proving that the application complies with the criteria for approval of the applicable class of permit. If the application is for a Tree Removal-Staff Permit, the applicant shall submit specific written findings and evidence addressing the criteria in section 18.61.080 for issuance of a Tree Removal-Staff Permit.

C. Misrepresentation of any fact necessary for the City's determination for granting a tree removal permit shall invalidate the permit. The City may at any time, including after a removal has occurred, independently verify facts related to a tree removal request and, if found to be false or misleading, may invalidate the permit and process the removal as a violation. Such misrepresentation may relate to matters including, without limitation, tree size, location, health or hazard condition, justification for issuance of permit, or owner's authorized signature.

18.61.080 Criteria for Issuance of Tree Removal - Staff Permit.
An applicant for a Tree Removal-Staff Permit shall demonstrate that the following criteria are satisfied. The Staff Advisor may require an arborist's report to substantiate the criteria for a permit.

A. Hazard Tree: The Staff Advisor shall issue a tree removal permit for a hazard tree if the applicant demonstrates that a tree is a hazard and warrants removal.

1. A hazard tree is a tree that is physically damaged to the degree that it is clear that it is likely to fall and injure persons or property. A hazard tree may also include a tree that is located within public rights of way and is causing damage to existing public or private facilities or services and such facilities or services cannot be relocated or the damage alleviated. The applicant must demonstrate that the condition or location of the tree presents a clear public safety hazard or a foreseeable danger of property damage to an existing structure and such hazard or danger cannot reasonably be alleviated by treatment or pruning.
2. The City may require the applicant to mitigate for the removal of each hazard tree pursuant to AMC 18.61.084. Such mitigation requirements shall be a condition of approval of the permit.

B. Tree that is Not a Hazard: The City shall issue a tree removal permit for a tree that is not a hazard if the applicant demonstrates all of the following:

1. The tree is proposed for removal in order to permit the application to be consistent with other applicable Ashland Land Use Ordinance requirements and standards. (e.g. other applicable Site Design and Use Standards). The Staff Advisor may require the building footprint of the development to be staked to allow for accurate verification of the permit application; and
2. Removal of the tree will not have a significant negative impact on erosion, soil stability, flow of surface waters, protection of adjacent trees, or existing windbreaks; and
3. Removal of the tree will not have a significant negative impact on the tree densities, sizes, canopies, and species diversity within 200 feet of the subject property. The City shall grant an exception to this criterion when alternatives to the tree removal have been considered and no reasonable alternative exists to allow the property to be used as permitted in the zone. Nothing in this section shall require that the residential density be reduced below the permitted density allowed by the zone. In making this determination, the City may consider alternative site plans or placement of structures or alternate landscaping designs that would lessen the impact on trees, so long as the alternatives continue to comply with other provisions of the Ashland Land Use Ordinance.
4. The City shall require the applicant to mitigate for the removal of each tree granted approval pursuant to AMC 18.61.084. Such mitigation requirements shall be a condition of approval of the permit.

18.61.084 Mitigation Required.
An applicant may be required to provide mitigation for any tree approved for removal. The mitigation requirement shall be satisfied by one or more of the following:

A. Replanting on site. The applicant shall plant either a minimum 1 ½-inch caliper healthy and well-branched deciduous tree or a 5-6 foot tall evergreen tree for each tree removed. The replanted tree shall be of a species that will eventually equal or exceed the removed tree in size if appropriate for the new location. The tree shall be planted and maintained according to the specifications in the City Tree Planting and Maintenance Guidelines as approved by the City Council.

B. Replanting off site. If in the City's determination there is insufficient available space on the subject property, the replanting required in subsection A shall occur on other property in the applicant's ownership or control within the City, in an open space tract that is part of the same subdivision, or in a City owned or dedicated open space or park. Such mitigation planting is subject to the approval of the authorized property owners. If planting on City owned or dedicated property, the City may specify the species and size of the tree. Nothing in this section shall be construed as an obligation of the City to allow trees to be planted on City owned or dedicated property.

C. Payment in lieu of planting. If in the City's determination no feasible alternative exists to plant the required mitigation, the applicant shall pay into the tree account an amount as established by resolution of the City Council.

18.61.092 Expiration of Tree Removal Permits.
Tree removal permits shall remain valid for a period of 180 days from the date of issuance or date of final decision by a hearing body, if applicable. A 30 day extension shall be automatically granted by the Staff Advisor if requested in writing before the expiration of the permit. Permits that have lapsed are void. Trees removed after a tree removal permit has expired shall be considered a violation of this Chapter.

18.61.094 Conditions of Approval for Tree Removal Permits.

A. The City may impose conditions of approval on any Tree Removal Permit if the condition is reasonably related to preventing, eliminating or mitigating a negative impact or potential negative impact on natural features or processes or on the built environment of the neighborhood which is as created or contributed to by the approved tree removal.

B. Conditions of approval may include, but are not limited to:

1. Requiring modifications in the location, design or intensity of a development or activities on a site or to require or prohibit certain construction methods. Modifications may result in a decrease in size of residential or commercial structures, but modifications shall not reduce the density of residential development below the permitted density allowed by the zone;
2. Requiring vegetation not requiring a tree removal permit to remain in place or be planted.
3. Requiring the removal of injurious or noxious vegetation (such as English Ivy) from other trees on the property.

18.61.125 Evidence of Violation.

A. If a tree is removed without a Tree Removal Permit, a violation shall be determined by measuring the stump. A stump that is 8 caliper inches or more in diameter shall be considered initial evidence of a violation of this chapter.

B. Removal of the stump of a tree removed without a tree removal permit prior to the determination provided in subsection A of this section is a violation of this chapter.

C. Proof of violation of this chapter shall be deemed prima facie evidence that such violation is that of the owner of the property upon which the violation was committed. Prosecution of or failure to prosecute the owner shall not be deemed to relieve any other responsible person.

D. Tree removal or topping caused by natural weather conditions shall not be deemed a violation of this chapter and shall be exempt from all penalties set forth in AMC 18.61.130.

18.61.130 Penalties.

A. Fine. A violation of any provision of this chapter, a permit issued under this chapter or any condition of a permit issued under this chapter shall be an infraction as defined by AMC 1.08.020. and punishable by a fine as set forth in that section. The removal of a tree in violation of this chapter, in violation of a permit or any condition of a permit issued under this chapter shall be a separate offense for each tree. Failure to comply with the provisions of this chapter or a permit or any condition of a permit issued under this chapter shall be a separate offense each day the failure to comply continues.

B. Enforcement Fee. In addition to any fine, the court may impose an enforcement fee as restitution for the enforcement costs incurred by the City. This fee may be imposed upon any person who violates any provision of this chapter or who violates any permit or condition of any issued under this chapter. The fee shall be in an amount established by resolution of the city council.

C. Restoration fee. In addition to any fine and enforcement fee, the court may impose a restoration fee as restitution to the city for restoring the tree. This fee may be imposed upon any person who violates any provision of this chapter or who violates any permit or condition of any permit.

1. The fee shall be paid into the City's Tree Account and shall be a standard fee per caliper inch for the total number of caliper inches of the tree damaged or removed in violation of this chapter. The standard fee shall be in an amount as established by resolution of the City Council.
2. The court may require the person to pay into the City's Tree Account an increased fee per caliper inch or pay for the value of the tree, whichever is greater, if any of the following apply:
a. The person has committed a previous violation of a provision of this chapter, or
b. Tree protection measures as required by this chapter were not installed or maintained, or
c. The tree removed or damaged was
(1) 18 caliper inches in diameter or greater;
(2) a designated Heritage Tree;
(3) expressly protected or required to be preserved as a condition of approval of a development permit pursuant to the Ashland Zoning or Development Codes or Standards; or
(4) located on public right of way, City owned or dedicated property, a public or private open space area or conservation easement.
3. The value of a tree under this section shall be determined by an Arborist in accordance with the methods set forth in the "Guide for Plant Appraisal" an official publication of the International Society of Arboriculture.

D. Injunction. Upon request of the Staff Advisor, the City Attorney may, or upon order of the City Council, the City Attorney shall institute appropriate action in any court to enjoin any violation of this chapter or any violation of a permit or condition of a permit issued under this chapter..

E. Arborist Report and Required Treatment. Upon request by the City, a person who violates any provision of this chapter shall submit a report prepared by an arborist to evaluate the damage to a tree and/or make recommendations to remedy the violation. The City upon evaluating these recommendations, may, at the City's discretion, require that the recommended measures be implemented.

F. Cumulative Remedies. The rights, remedies, and penalties provided in this chapter are cumulative, are not mutually exclusive, and are in addition to any other rights, remedies and penalties available to the City under any other provision of law.

18.61.200 Tree Protection.
Tree Protection as required by this section is applicable to any planning action or building permit.

A. Tree Protection Plan Required.

1. A Tree Protection Plan approved by the Staff Advisor shall be required prior to conducting any development activities including, but not limited to clearing, grading, excavation, or demolition work on a property or site, which requires a planning action or building permit.
2. In order to obtain approval of a Tree Protection Plan; an applicant shall submit a plan to the City, which clearly depicts all trees to be preserved and/or removed on the site. The plan must be drawn to scale and include the following:
a. Location, species, and diameter of each tree on site and within 15 feet of the site;
b. Location of the drip line of each tree;
c. Location of existing and proposed roads, water, sanitary and storm sewer, irrigation, and other utility lines/facilities and easements;
d. Location of dry wells, drain lines and soakage trenches;
e. Location of proposed and existing structures;
f. Grade change or cut and fill during or after construction;
g. Existing and proposed impervious surfaces;
h. Identification of a contact person and/or arborist who will be responsible for implementing and maintaining the approved tree protection plan; and
i. Location and type of tree protection measures to be installed per AMC 18.61.230.
3. For development requiring a planning action, the Tree Preservation Plan shall include an inventory of all trees on site, their health or hazard condition, and recommendations for treatment for each tree.

B. Tree Protection Measures Required.

1. Except as otherwise determined by the Staff Advisor, all required tree protection measures set forth in this section shall be instituted prior to any development activities, including, but not limited to clearing, grading, excavation or demolition work, and shall be removed only after completion of all construction activity, including landscaping and irrigation installation.
2. Chain link fencing, a minimum of six feet tall with steel posts placed no farther than ten feet apart, shall be installed at the edge of the tree protection zone or dripline, whichever is greater, and at the boundary of any open space tracts, riparian areas, or conservation easements that abut the parcel being developed.
3. The fencing shall be flush with the initial undisturbed grade.
4. Approved signs shall be attached to the chain link fencing stating that inside the fencing is a tree protection zone, not to be disturbed unless prior approval has been obtained from the Staff Advisor for the project.
5. No construction activity shall occur within the tree protection zone, including, but not limited to dumping or storage of materials such as building supplies, soil, waste items, equipment, or parked vehicles.
6. The tree protection zone shall remain free of chemically injurious materials and liquids such as paints, thinners, cleaning solutions, petroleum products, and concrete or dry wall excess, construction debris, or run-off.
7. No excavation, trenching, grading, root pruning or other activity shall occur within the tree protection zone unless approved by the Staff Advisor.

C. Inspection. The applicant shall not proceed with any construction activity, except installation of erosion control measures, until the City has inspected and approved the installation of the required tree protection measures and a building and/or grading permit has been issued by the City.

18.61.250. Performance Security
The City may require the permittee to post with the City a bond, or other suitable collateral as determined by the city administrator, ensuring the satisfactory completion and maintenance of the tree protection plan. Suitable collateral may be in the form of letters of credit, certificates of deposit, cash bond, or bonds issued by an insurance company legally doing business in the State of Oregon.

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