Zoning Practice — July 2008

Ask the Author

Here are reader questions answered by Jim Schwab, AICP, author of the June 2008 Zoning Practice article "Better Foliage Through Zoning."

Question from Dean Koonts, HBB Landscape Architecture:

We have written, reviewed, and revised a Tree Protection ordinance for a local jurisdiction. As part of this process, the city has wanted to strengthen its penalties for illegal tree removal or noncompliance with an approved tree plan. We've recommended that they could make removal of each tree a misdemeanor offence. However, the city council and code enforcement officer would like to see something stronger. I'm aware of the use of escrow accounts and certificates of occupancy in addition to fines and penalties, but was wondering if you know of other mechanisms that have been used as enforcement measures to protect urban trees.

Any example ordinances, direction, and suggestions you can give are appreciated.

Answer from author Jim Schwab:

One option is to look at code enforcement in Urbana, Illinois. Drivers should be careful not to hit trees in that town. Urbana charges citizens for tree damage if they hit one by driving off the road. If the tree is damaged beyond repair, the culpable party must also pay for the removal and a replacement tree.

With regard to development projects, the zoning ordinance stipulates that contractors who wish to remove trees in the right-of-way for commercial development must get city approval, remove them at their own expense, and replace the value of the tree according to standards developed by the Council of Tree and Landscape Appraisers (2000) and published by the International Society of Arboriculture (ISA).

The value of mature trees may turn out to be much greater than the size of the fines the city has been levying for violations, in which case the stick becomes that much stronger. In addition, as you note in passing, it is also possible to give the city arborist or some similar enforcement personnel the power to deny a certificate of occupancy in cases where developers have not complied with such provisions. Time is money, and compliance may follow just to ensure that the building opens on time.

Question from Dottie Cirelli:

My question relates to the recent article on Tree Forestry (Ordinances). I live in a beach community that has a tree ordinance including requirements for removal and addition of trees located on private property. What are the pros and cons of including private property in the tree ordinance?

Answer from author Jim Schwab:

The main con, I suspect, is that by including more property owners in the scope of the ordinance, you may engender greater opposition to the ordinance. That is basically a political question that can be solved by involving more people in the discussion of such a proposal at the outset, making the case for why everyone would benefit, and bringing as many people on board to support it as possible before moving it through the local governing body. You have to decide at some point what is politically feasible and what is not, and what sorts of enforcement resources you are able or willing to commit in order to make the ordinance workable. You may also have to ask about the size of the trees to which you will apply the ordinance, and how much is gained for the effort involved.

All that said, the pros are that, if you are aiming for significant tree canopy goals — say, achieving a 30 or 40 percent tree canopy coverage of the community — you need to realize that concentrating on trees on public property and rights-of-way is unlikely to get you there because there is just not enough room on public property for enough trees to do the job. Baltimore, for instance, realized that to achieve its tree canopy goals in excess of 40 percent, it would have to enlist the efforts of private property owners. Passing regulations, of course, is not the only way to do that. You may wish to consider incentives for tree planting as well, but for new development, at least, some planting and tree protection requirements are certainly in order. To ensure tree survival, the involvement of a trained arborist or city forester is also necessary in order to see that the right species of trees are being planted in places and under circumstances where they are likely to thrive.

These are somewhat general answers, to be sure, and the best answers will derive from the context in which you are considering the regulations and from a healthy level of public involvement in discussing the pros and cons and the issues involved. Be ready with a well-informed campaign of public education to underwrite such an effort.

Question from Beth Hendrickson:

Are there precedents for implementing tree ordinances that keep anyone with a chainsaw and a pickup truck from topping trees in rights-of-way and on private property?

Answer from author Jim Schwab:

Yes, there are precedents. And there should be. Tree toping is one of the worst tree-pruning atrocities around. The Missouri Community Forestry Council, in fact, has a brochure titled, "Think of It as a Really, Really Bad Haircut ... Which Could Kill You," because such trimming can be fatal to the long-term health of the trees subjected to it. The International Society of Arboriculture (ISA) takes an equally dim view of tree topping, referring to it in its "Tree Ordinance Guidelines" on its website as a poor pruning practice that is "especially obvious in winter after leaf fall."

ISA recommends a windshield survey of the community to document the prevalence of tree-topping practices before proposing an ordinance to ban it or control other undesirable practices. You can find more resources on how to do this at www.isaarbor.com/publications/tree-ord/ordprt3d.aspx. You can find information on ground surveys for the same purpose at http://phytosphere.com/treeord/ordprt3d.htm.

One example of a tree-topping ban is the Street Tree Ordinance in Missoula, Montana. Since definitions are important in ordinances, it defines topping as "the severe cutting back of limbs to stubs larger than three inches in diameter within the tree's crown to such a degree so as to remove the normal tree canopy and disfigure the tree." Here is the language banning the practice:

Section 14. 12.32.140 Tree Topping. It shall be unlawful, as a normal practice for any person, tree service business, city department or any other private or public entity to top any street tree, park tree or other tree located in a public area. Trees severely damaged by storms or other obstructions where other pruning practices are impractical may be exempted from this ordinance at the determination of the conservation committee.

Note that, in situations where there may not be a practical alternative, this ordinance provides a review or appeal process through the conservation committee. This gives the city control while allowing a minimum of flexibility. Other cities, like Urbana, Illinois, have found tree or conservation commissions an effective mechanism for allowing appeals from decisions of the city arborist, who otherwise makes administrative decisions.

Walla Walla, Washington, also has taken steps to address tree topping. It has acted to prevent topping in a Heritage Trees ordinance. The following statement appears in the city's Urban Forest Management Plan:

Topping of trees has been a fairly common practice locally. It is known to be destructive to trees, shortening their lifespan substantially. Topping is no longer permitted in planting strips (Municipal Code 12.49). The practice of topping trees on private property needs to be disallowed on behalf of the preservation of our community trees. Public education is needed to implement an "anti-topping" campaign.

I hope that these examples provide some help.

Question from Jeff Hirt, Wheat Ridge, Colorado:

Many communities interested in a tree protection ordinance do not have the resources for an arborist on staff or the ability to analyze their tree canopy. The community I work for has this issue — we recognize that we have an excellent tree canopy and its benefits environmentally, aesthetically, and even economically. Yet we have no controls in place in our zoning code. My question is this: Do you feel a community needs an arborist on staff to implement such a regulation, even on a modest scale? Do you know of any examples of successful tree protection ordinances in smaller communities where they didn't have such resources?

Answer from author Jim Schwab:

This is a very good question. Not every community has the resources or enough work to retain a full-time city forester or arborist. At the same time, many small communities can still be fiercely proud of their tree canopy and willing to find ways to protect it. Planners have long used other means to address situations where they need special expertise on an occasional or periodic basis, but not enough to justify adding someone as a full-time staff member.

One alternative is to prepare a request for proposals and hire an outside firm to work on contract. That firm could then work with your planning staff. I would suggest several stages of work, possibly, starting with an analysis of your existing tree canopy and whatever problem areas they can identify that need attention. That analysis could become the basis for preparing a well-written tree protection ordinance that should become part of the zoning code. The code should specify adequate enforcement personnel to ensure compliance, but if you are sure there is not enough work in this area to retain someone full-time as a city employee, an alternative is to contract with arborist for part-time work to handle enforcement duties. For specifications in the request for proposals, you could contact the International Society of Arboriculture for technical direction.

A second alternative is to establish a fee system in your zoning code for development applications to underwrite the cost of retaining an arborist or similar professional to review the plans and inspect the building site, either on a project basis or part time or as staff.

Question from Demetra J. McBride, Manager, Sarasota County Government/Natural Resources, Urban Forestry Program:

What have you found to be:

  1. the biggest obstacle(s) to integrating urban canopy into development/redevelopment; and
  2. the biggest opportunity for increasing urban canopy to derive the greatest social, environmental, and economic benefits?

Also, do you have an estimated time of arrival on the PAS report?

Answer from author Jim Schwab:

One of the beauties of the project from which this Zoning Practice article was derived is that it is a partnership involving APA, the U.S. Forest Service, the International Society of Arboriculture (ISA), and American Forests. In addition, we held a symposium to which we invited nine experts from across the country to advise us. With that team in place, I am able to tap their collective wisdom to help answer some of the questions in this forum. We don't all have to have all the answers. Instead, foresters and planners can ask each other and work together.

In this case, Jim Skiera, the executive director of ISA, weighed in with the following response:

The biggest obstacles are finding the space, both above and below ground, to support a healthy tree for any period of time. The biggest opportunities are the public's current desire to increase the amount of green space. This is allowing budget dollars to purchase the new technologies coming out that are allowing designers opportunities to design and build the planting environment in urban areas that can support large trees and still accommodate engineering specifications that protect the surrounding infrastructure.

APA expects the PAS report to be in print no later than October of this year.

Question from Drew Todd, Ohio Division of Forestry, Columbus:

Ohio's city foresters are experts in managing urban forest resources. They're skilled arborists that know how to plant, care for, and maintain trees and other vegetation along their public rights-of-way. Over the years, they've worked tirelessly to place their programs on par with other municipal services. Unfortunately, they lack backgrounds in city and regional planning, zoning, and local development regulations.

Do you feel they need to acquire this knowledge in order to expand their traditional roles, and if so, how to you suggest they go about it?

Answer from author Jim Schwab:

The answer depends on whether they are taking on this task alone or with allies. Our case study research for the forthcoming PAS Report, Planning the Urban Forest: Ecology, Economy, and Community Development suggests strongly that collaboration between foresters and planners is the key to success. Each group has its own expertise, but the synergy that results from their working together is greater than the sum of their separate parts.

I suggest, at the local level, that they meet regularly to discuss how forestry and planning intersect and to educate each other on the relevant aspects of their respective fields. Most planners will never become tree experts, but they can learn enough to understand how the urban forest and, more generally, green infrastructure improve the community aesthetically, environmentally, socially, and economically. At the same time, planners can help educate foresters and arborists on ways in which the community's development process can be influenced to produce a better outcome for trees. We call these strategic points of intervention: those parts of the public decision-making process where planning can help effect that better outcome. These include long-range community visioning and goal setting; plan making of all types; implementation tools, such as the various local development codes that regulate land use; development work, such as site plan review and redevelopment plans; and public investment.

In our case studies, the best results often materialized when those development codes specified a role in the process for a forestry professional to review plans for compliance with tree protection and planting regulations, and where tree ordinances were incorporated directly into the zoning code to make them part of the overall development process. This serves to institutionalize both the collaboration between planners and foresters and a specific authoritative role for the city forester in reviewing and approving pending plans.