Background: This public hearing was continued open from the meeting of February 9, 1998, where councilors were directed to submit in writing their proposed changes to City staff and that those proposed amendments be discussed by the Community Forestry Commission (CFC). Staff was to return to City Council with the amendments in ordinance form and comments from the CFC for discussion.
Staff Reporrt: Additional amendments were made to the original Tree Ordinance based on Council discussion and written comments, and reviewed by the City Attorney. The following changes were made: 1) Removed language which could have been construed as making this ordinance some type of historic ordinance for trees; 2) Retained the concept of a) maintaining a larger inventory of important community trees, protecting only those trees placed on a Register adopted by Council and b) allowing property owners to opt out in the adoption process; 3) Required a formal procedure for property owners to remove trees from the adopted register; 4) Placed a maximum amount on penalties for the illegal removal or "major pruning" of protected trees when on developed single-family sites.
Mr. Mawson reviewed the history and issue in detail. This ordinance does not create a tree list; the CFC will come back to Council sometime in the future with a recommended Register (tree list). The revisions being recommended were designed to make the ordinance easier to understand and less restrictive. The City Attorney has advised that this ordinance does not have to comply with the State historic legislative procedures; that they were not the same. To make it clear that they were not the same, most references to historic were removed from the ordinance. He noted that on Exhibit A, Pg. 1, Line 47, Inventory section, the phrase "and historic" needs to be removed. Although the City does not have to comply with the State historic legislation, it can choose to use the provisions it deems appropriate. He explained that the Inventory of Trees was kept in the ordinance- -the inventory is just information on trees in the City, it is not the protected list. The protected list is the Register and it will come to Council later. Property owners will be allowed to opt out from the Register in the adoption process; once the tree is on the Register, there is a process for property owners to remove their trees. Requests for removal of a tree from the Register will be reviewed by the CFC and can be appealed to Council if desired. On penalties, Council will need to decide which of two options to put in the ordinance: Set a fine per Sec. 1.095 of the Municipal Code, where the maximum is $ 1,000 or fine shall not exceed 1% of total assessed value (land + improvements). The only protected trees on single-family property will be the trees put on the Register.
Coun. Johnson stated she generally is in favor of preserving, trees in the City but has concerns about this ordinance. She was concerned about Sec. 9.940 (4) "Trees on Approved Site" which are existing trees and/or shown on site plans and are part of an approved development. Does approved development mean every approved development like residential neighborhoods. Mr. Mawson explained this refers to trees on private property that are approved as part of site plan review--property that is reviewed under site plan review is multi-family, commercial and industrial.
Coun. Minor asked if this included subdivisions. Mr. Mawson explained that trees are not included in review of subdivisions, except for street trees. Coun. Minor stated he was not ready to protect all trees that are six inches in diameter or larger. He only wanted to talk about significant trees.
Coun. Fuiten noted that the City's policy of trying to save groves of trees or significant trees is a fairly recent policy. Sec. 9.946 will apply mostly to street trees, with the rare exception if there is a registered tree on developable land. Also, Sec. 9.945(4) (Pg. 7) has ten criteria by which trees can be removed. He did not think the City would be significantly interfering with anybody's development or property rights.
Coun. Johnson asked if Sec. 9.950 applies to all trees covered by this ordinance or just the list of significant trees. Mr. Mawson explained the section applies to all the provisions of the ordinance--it has always applied to everything,
Coun. Bliss stated in his amendments he proposed a sunset clause for trees on approved site plans. Mr. Mawson explained the CFC discussed all the amendments suggested.
[Ed. Note: The debate here resulted from a misunderstanding, namely that the section on "Approved Sites" would apply to essentially every lot in the city, since every site was once "an approved site." Karl's explanation was that site review applied only to commercial/multi-family developments, so "approved sites" do not include single-family residential sites, and no "sunset clause" was deemed necessary.]
Coun. Johnson felt the Council should maintain the final acceptance of what trees go into the Inventory. Mr. Mawson repeated that it is the Register that is the critical aspect--the Register is the list of protected trees. The Inventory is merely a data information base on trees in the City--it has no relationship to any regulation.
PROPONENTS:
Tim ShieL, CFC Chair, 2258 Goff Place, explained that "the six-inches and above trees on developable property" was discussed by the CFC and their consensus was that the trees were protected while the area was being developed; once that became private property then it was a private tree. The CFC discussed the sunset clause suggested by Coun. Bliss but they assumed that at the point of sale it becomes private property. On the penalty section, the CFC wanted Council to decide based on the best interests of the residents and taking into consideration people's ability to pay. Coun. Johnson asked if he thought the ordinance was silent on the point of transfer; Mr. Shiel thought it was and it could be addressed.
OPPONENTS: None.
NEUTRAL PARTY:
Kathy Worley, 2020 Main Street, asked questions about the City's liability if a protected tree damaged a home and how a purchaser of a property is notified that a tree is protected. The City Attorney explained the title company is required to notify a purchaser of special conditions of the property, including a protected tree. Also, the ordinance requires that a notice go out annually to each property owner. If a tree proposes a threat there is a process to remedy that immediately in the ordinance. If nobody knows that the tree is diseased or that a branch will fall, that is unpredictable.
No one else wished to be heard and the public hearing was closed at 8:37 p.m. Coun. Fuiten noted that Sec. 9.950, lines 625 and 629, should be less not lessor. Mayor O'Brien noted that the ordinance was not in the usual format, with the front page being the enabling ordinance. Because of this, the City Attorney read the ordinance in its entirety, rather than just reading the title.
It was moved by Coun. Kidd and seconded by Coun. Draznin that the ordinance receive its first reading by unanimous consent. Mr. Frost read the ordinance.
First Reading Ordinance: It was moved by Coun. Fuiten and seconded by Coun. Draznin that the Ordinance Amending Forest Grove Ordinance Sec. 9.940 Et. Seq., the Tree Protection Ordinance, pass its first reading.
Motion to Amend Ordinance:
It was moved by Coun. Fuiten and seconded by Coun. Kidd to amend Ord. Sec. 9.950 by adopting the penalty option on lines 627, 628 and 629, which reads "shall not exceed the fine set forth in Section 1.095 of the Municipal Code or the value of the tree set forth in Section 9.950(B)(b) below, whichever is less." (Coun. Johnson asked how Sec. 9.950(D) "Other Penalties" applies to this penalty section being considered. The City Attorney explained this allows the additional requirement of mitigation (tree replacement) in addition to the fine. Coun. Johnson said mitigation was already discussed and this section was redundant. Mayor O'Brien suggested placing Sec. 9.950(c), (d) and (e) as subsections under Sec. 9.950(B)(b), since they all apply to the (b) section. Coun. Bliss asked if this (mitigation and penalties) would apply to street trees. Mr. Mawson replied Sec. 9.950(B)(b) applies to all trees except registered trees on private property--Sec. 9.950(B)(a) addresses Register Trees on developed single-family property, not street trees. Couns. Johnson and Minor felt it was not clear that on private property only registered trees are protected. Mr. Mawson explained that under this proposal, the only tree that is protected on single-family developed property is a registered tree--there are no other provisions in this ordinance to protect trees on a single- family lot. The street tree is not exempted in terms of the penalty. There was general discussion on the wording "historic" in the ordinance first considered by Council last February. Coun. Fuiten explained he wrote a memo to the CFC expressing concern about the use of the word historic because of the State statute which allows anyone to opt out of such programs. The City Attorney advised that it does not apply and recommended removal; the CFC agreed.) Motion carried 5-2, Couns. Johnson and Minor voting no.
Motion: It was moved by Coun. Kidd and seconded by Coun. Fuiten to amend the ordinance by eliminating Sec. 9.950(D) "Other Penalties" (Pg. 14, lines 654 and 655). (Discussion: Coun. Fuiten agreed it seemed redundant.) Motion carried 5-2, Coun. Minor and Mayor O'Brien voting no.
There was general discussion on size of trees being required but no change was made to the ordinance.
Coun. Fuiten stressed that it is important for the public to understand that this is a non-mandatory ordinance. There are several ways that people can opt out of the program at the time of adoption and after a tree is on a register. There are private property rights built into this ordinance which is why he accepts it. This has to be balanced against the benefit to the community at large in protecting the urban forest which is rapidly diminishing. He felt this was a step in the right direction; there is a large public constituency that wants these trees protected and that is why he will vote for it.
Coun. Kidd noted that at the Tree City USA ceremony today, a comment was made that FG has fewer trees now than it did a few years ago; the tree stock is diminishing rather than increasing. He felt it was significant that the Council should be passing this ordinance on the day the City received this award.
Couns. Johnson and Minor felt the language of the ordinance was not clear as to which trees this applies to. Coun. Fuiten replied it was not the intent of the ordinance to protect all trees in the City; only those that are on the Register list.
Coun. Johnson suggested an amendment to the ordinance to make it clear it applies to Register trees only--she still felt that under Sec. 9.940(4) "Trees on Approved Site Plan", it could apply to all parcels ever developed. Coun. Fuiten explained this ordinance has been thoroughly reviewed by the CFC and staff and he was nervous about changing language and possibly skewing the ordinance. Mr. Mawson repeated that Site Plan Review is part of the Zoning Ord. and covers commercial, multi-family and industrial development only. Subdivision review is done through the Subdivision Ord. and is not Site Plan Review. The language in the original ordinance used to say "Trees identified as part of development review." which could apply to subdivisions. It was not meant that this should apply to subdivisions, so the language was changed to "Trees on Approved Site Plan" to ensure that this would apply to Site Plan Approval and that a site plan is available. This narrows the reference down. No change was made in reference to Coun. Johnson's suggestion.
Motion: It was moved by Coun. Minor and seconded by Coun. Bliss to amend Pg. 1 of the ordinance Sec. 9.941 7. by removing the phrase "and historic" from the definition of Inventory. Motion carried 5-2, Couns. Johnson and Minor voting no.
Motion to Pass Ordinance as Amended: It was moved by Conn. Kidd and seconded by Coun. Fuiten to pass the Tree Protection Ordinance as amended. ROLL CALL VOTE: AYES: Couns. Fuiten, Kidd, Draznin, Bliss and Mayor O'Brien. NOES: Couns. Johnson and Minor. ABSENT: None. Second reading on May 11, 1998.
AMEND ZONING ORD. SEC. 9.940 - TREE PROTECTION ORDINANCE
It was moved by Coun. Kidd and seconded by Coun. Fuiten that the ordinance title receive its second reading by unanimous consent. Mr. Frost read the ordinance title.
Ordinance No. 98-08: It was moved by Coun. Kidd and seconded by Coun. Fuiten that the Ordinance Amending Forest Grove Ordinance Section 9.930 Et. Seq. Tree Protection Ordinance, pass its second reading. (Discussion: Coun. Minor asked about Sec. 9.943(B)(4) which requires that stumps be removed to a depth of six inches below the surface of the ground or finish grade of street--he wanted to know why this was required and felt that it is cheaper to just cut the stump at ground level and not remove it than to have to grind it out. Staff explained that this is an agricultural industry standard and is done because: 1) It is cheaper to grind a stump than to have it pulled out; 2) safety; 3) to level and smooth the ground for future planting; and 4) to prevent suckers from the tree.) ROLL CALL VOTE: AYES: Couns. Fuiten, Kidd, Draznin, Bliss and Mayor O'Brien. NOES: Couns. Johnson and Minor. ABSENT: None