MEMORANDUM. Land Use Management Ordinance Text Amendment -- Proposed Changes to the Tree Protection Ordinance PURPOSE

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1 MEMORANDUM TO: FROM: SUBJECT: Chapel Hill Planning Board J.B. Culpepper, Planning Director Gene Poveromo, Development Coordinator Curtis Brooks, Urban Forester Land Use Management Ordinance Text Amendment -- Proposed Changes to the Tree Protection Ordinance DATE: May 1, 2007 PURPOSE The Planning Board is asked to make a recommendation on a Land Use Management Ordinance text amendment which proposes interim expansion of the Town s current tree protection regulations. A Public Hearing has been scheduled for May 14, 2007 to consider the proposed changes. BACKGROUND On February 12, 2007, the Council endorsed a Planning Board recommendation to consider a two phased approach for changes to the current Tree Protection Ordinance. The two-phased approach involves a first step intended to provide some immediate expansion of today s tree protection regulations while more substantive changes are being developed. The two-phased approach for changes to the tree protection regulations includes: 1) A May 14, 2007 Public Hearing to consider an interim expansion of current tree protection regulations; and 2) Authorization of a Request for Proposals to seek consultants to guide the more substantive changes to the tree protection regulations. Proposed changes to the Tree Protection Ordinance, recommended by the Planning Board and endorsed by the Council in February, would establish a new vision statement that calls for no net loss of trees/canopy cover and an increase in trees proportional to population growth. CURRENT REGULATIONS The current Tree Protection Ordinance requires that Landscape Protection Plans be submitted for most development. This requirement applies to existing single-family/two-family homes where land disturbance exceeds 5,000 square feet. In most circumstances the land disturbance activity associated with this requirement is associated with a building permit.

2 2 Except for some circumstances involving residential landscaping projects, a Landscape Protection Plan must be approved before any tree can be removed or disturbed on developing land, including single-family homes with land disturbance over 5,000 square feet when a building permit is being requested. Landscape Protection Plans must show all proposed grading and improvements, including, if applicable, walkways and utilities, in addition to all trees 18 inches or more in diameter at breast height (dbh) within 50 feet of the proposed limits of the proposed land disturbance. The plan further indicates critical root zones of trees surveyed, noting which trees are to be removed, and where fencing will be installed to protect the root zones of trees to be retained. Review of Landscape Protection Plans required by the Tree Protection Ordinance provides an opportunity for discussion between the applicant and Town staff, advisory boards, and/or the Town Council about the effects of proposed grading and construction on the existing trees. State Law Provisions Regarding Forestry: State law includes provisions regarding the practice of forestry as a land use. Chapel Hill s regulations address this right to harvest trees with a forestry permit from the State (Section 5.7.3). A local permit is required for this type of forestry activity and we are typically able to preserve a perimeter landscape buffer around the clear cutting area. Under the State law, Chapel Hill s regulations cannot prohibit this type of bona fide timber harvesting activity. DISCUSSION OF PROPOSED CHANGES To develop new tree regulations, the Council has endorsed the Planning Board recommendation for a two-phased approach moderate restrictions in the short term followed by more substantive changes in the future. There is a sense that additional restrictions are needed immediately as a protective measure for the community. The justification for the proposed ordinance revision is linked to a Town wide commitment to sustainability, with potential to reduce carbon emissions and decrease the urban heat-island effect. As a long-term objective, the Council desires a more comprehensive review of the Tree Protection Ordinance. It plans to hire a consultant with expertise in specialized tree ordinances to develop the more substantive changes to the Tree Protection Ordinance. A copy of the draft Request for Proposals is attached. Chapel Hill s existing Tree Protection Ordinance requires residents to submit tree protection plans and tree surveys if they intend to remove trees as part of a building project (such as a house addition) or most residential activities that will affect 5,000 square feet or more of land. This requirement applies to existing single-family/two-family homes. The proposed interim changes to the ordinance would require permits to remove trees in a cumulative area when more than 5,000 square feet of land clearing (ie removal of tree canopy) is being removed.. The interim change will also lower the threshold of trees that must be surveyed. Land clearing in this context is tree removal that results in loss of contiguous tree canopy. Attachment 1 provides the proposed language.

3 3 More comprehensive revisions for the future could include regulations that apply to all regulated land uses, including existing single-family and two-family residential regardless of the amount of clearing proposed, regulations that account for variation among species, particular to our region, climate, and eco-systems; and regulations that include a permitting process for tree removal with financial disincentives for unauthorized tree removal. EFFECTS ON SINGLE-FAMILY HOMEOWNERS With this proposal, tree protection regulations are to be decoupled from the building permit/land disturbance process, and a Zoning Compliance Permit will be required of homeowners prior to land clearing (removal of tree canopy) sections of their property greater than 5,000 square feet. In addition the minimum threshold for trees that must be surveyed is proposed to be lowered. With the land clearing (removal of tree canopy) threshold at 5,000 sq.ft., or approximately 1/8 of an acre, we believe that relatively few homeowners will be affected because it has been our experience that it is uncommon for homeowners in Chapel Hill to clear sections of this size on existing lots when they are not already considering other site changes that would necessitate a building permit. We believe that the interim measures, as proposed, would not, in most circumstances, restrict the removal of individual trees on single- and two-family properties. ANALYSIS OF PROPOSAL Analysis of the amendment proposal is organized around the requirement of the Land Use Management Ordinance which states that the Ordinance shall not be amended except: a) to correct a manifest error in the chapter; or b) because of changed or changing conditions in a particular area or in the jurisdiction generally; or c) to achieve the purposes of the Comprehensive Plan. A) An amendment is justified to correct a manifest error. Comment: We believe the information in the record to date can be summarized as follows: Arguments in Support or Opposition: We were unable to identify any arguments in support or opposition of a manifest error. B) An amendment is justified because of changed or changing conditions in a particular area or in the jurisdiction generally. Comment: We believe the information in the record thus far can be summarized as follows: Arguments in Support: We are unable to identify any arguments in support of changed conditions. Arguments in Opposition: We are not aware of changed conditions.

4 4 C) An amendment is justified to achieve the purposes of the Comprehensive Plan. Comment: We believe the information in the record thus far can be summarized as follows: Arguments in Support: Arguments in support of this finding can be summarized as follows: The justification for the proposed ordinance revision is linked to a Town-wide commitment to protecting natural resources and a commitment to sustainability, with potential to reduce carbon emissions and decrease the urban heat-island effect. Arguments in Opposition: No arguments in opposition have been submitted to date. We believe the justification of the text amendment application is to achieve the purposes of the Comprehensive Plan particularly as it relates to protecting natural resources. RECOMMENDATION In preparation for the May 14 Public Hearing, we recommend that the Planning Board consider the attached Ordinance language (Attachment 1) which propose phased adjustment to the tree protection regulations. The proposed interim changes to the ordinance would require a permit to remove trees in a cumulative area of more than 5,000 square feet even if a building permit is not involved. The interim change will also lower the threshold of trees that must be surveyed. We have also provided a draft copy of the Request for Proposals (RFP) to seek consultants to guide the more substantive changes to the tree protection regulations. We anticipate that the RFP will be distributed in mid-may. ATTACHMENTS 1. Draft Ordinance Language adjustments 2. Draft Request for Proposals for substantive changes to regulations 3. Aerial Photo of square footage areas around Town Hall

5 5 ATTACHMENT 1 DRAFT ORDINANCE AN ORDINANCE AMENDING THE CHAPEL HILL LAND USE MANAGEMENT ORDINANCE TREE PROTECTION REGULATION PROVISIONS WHEREAS, the Council of the Town of Chapel Hill has considered the proposed text amendments to the Land Use Management Ordinance regarding tree protection regulations and finds that the amendments are warranted in order to achieve the purposes of the Comprehensive Plan; NOW, THEREFORE, BE IT ORDAINED by the Council of the Town of Chapel Hill as follows: Section 1. Subsection 5.7.2(a) and (b) of the Chapel Hill Land Use Management Ordinance is hereby revised to read as follows: Permits Required (a) Activities Requiring a Permit Except as otherwise specifically exempted herein, it shall be unlawful to: (1) remove, prune, apply chemicals that are harmful to or disturb any tree or the soil within the critical root zone of any tree; or (2) clear vegetation from a site; or (3) begin any excavation, remove soil or place fill on a site within Chapel Hill and its extraterritorial jurisdiction until the Town Manager has issued a permit certifying that such activity complies with the applicable provisions of Sections 5.7.3, 5.7.4, and of this Section. (b) Applicability The provisions of this Article shall apply to any development except: (1) land in the Town's Office/Institutional-3 or Office/Institutional-4 zoning districts, provided, however, that Section of this Article shall apply to all public and private lands within the Town planning jurisdiction; (2) routine maintenance of existing vegetation outside the public right-of-way, such as pruning, watering and fertilizing; (3) the removal of dead trees and shrubs, or trees and shrubs that have been diagnosed and determined to be diseased beyond treatment, the burden of proof being placed on the remover;

6 6 (4) the removal of soil or vegetation from undeveloped land or from existing singlefamily and two-family properties to allow for noncommercial open space no greater than 5,000 square feet one-quarter (1/4) acre, providing this land clearing is not cumulatively over 5,000 square feet. For purposes of (b)(4), cumulative means any time after the enactment of the provision: (insert date). Land clearing in this context is tree removal that results in loss of contiguous tree canopy. activity does not take place within the critical root zone of any rare or specimen tree; (5) land disturbing activity normally associated with the occupancy of an existing single-family or two-family dwelling; (6) any new construction or expansion of a single-family or two-family dwelling requiring a building permit and involving land disturbance less than 5,000 square feet. Section 2. Subsection of the Chapel Hill Land Use Management Ordinance is hereby revised to read as follows: Rare and Specimen Trees (a) Invasive Exotic Species The following invasive exotic species are not required to be shown on proposed development plans, regardless of size. These species cannot be planted to satisfy any Town landscaping requirements and are recommended for removal and replacement, should they be identified on developing property: Acer platanoides (Norway Maple) Alianthus altissima (Tree of Heaven) Albizia julibrissin (Mimosa) Broussonetia papyrifera (Paper Mulberry) Melia azadarach (Chinaberry) Morus alba (White Mulberry) Paulownia tomentosa (Princess Tree) Populus alba (White Poplar) Pyrus calleryana (Callery/Bradford Pear) Quercus accutissima (Sawtooth Oak) Ulmus pumilia (Siberian Elm) (b) (a) Specimen Tree Defined

7 7 With the exception of invasive exotic species listed above, A a specimen tree is any healthy living Pine tree that has a trunk diameter of 18 inches or more, or any other species that: (1) has a trunk diameter at breast height (DBH) of inches or more; or (2) a trunk DBH of 12 6 inches or more in the case of North Carolina native the following species from the following genera: Aesculus (Buckeye) Amelanchier (Serviceberry) Asimina (Pawpaw) Karpinus (Hornbeam) Cercis (Redbud) Chionanthus (Fringetree) Cornus (Dogwood) Crataegus (Hawthorn) Diospyros (Persimmon) Fagus (Beech) Halesia (Silverbell) Hamamelis (Witch-hazel) Ilex spp. (Holly) Juniperus (Cedar) Magnolia spp. Ostrya (Hophornbeam) Oxydendrum (Sourwood) Sassafras (Sassafras) Tsuga spp. (Hemlock) (c) (b) Rare Tree Defined With the exception of previously listed invasive exotic species, A a rare tree is any healthy living Pine tree that has a trunk diameter of 36 inches or more, or any other species that: (1) has a trunk diameter at breast height (DBH) of inches or more; or (2) a trunk DBH of inches or more in the case of North Carolina native species from the following species genera: Aesculus (Buckeye) Amelanchier (Serviceberry) Asimina (Pawpaw) Karpinus (Hornbeam) Cercis (Redbud)

8 8 Chionanthus (Fringetree) Cornus (Dogwood) Crataegus (Hawthorn) Diospyros (Persimmon) Fagus (Beech) Halesia (Silverbell) Hamamelis (Witch-hazel) Ilex spp. (Holly) Juniperus (Cedar) Magnolia spp. Ostrya (Hophornbeam) Oxydendrum (Sourwood) Sassafras (Sassafras) Tsuga spp. (Hemlock); or (3) is listed as a State or National Champion by the North Carolina Forest Service or the American Forestry Association; or (4) provides unique habitat for any endangered or threatened wildlife species protected by Federal law; or (5) has been cited by the Town Council as being historically significant; or (6) represents an uncommon species, such as Long Leaf Pine, Live Oak or Sequoia Redwood, that the Town Manager considers to be desirable and not to pose a threat to the local ecological balance. (d) (c) Rare and Specimen Trees on Developing Land (1) Rare and specimen trees shall be shown on all preliminary Landscape Protection Plans if such trees are within one hundred (100) feet of areas where soil disturbance or construction activity is proposed. In addition, these trees shall be identified and located by survey on the approved Landscape Protection Plan if such trees are located on the development site or adjacent public property. The Town Manager may visit the site to determine the accuracy of identification. (2) Proposed development should be designed to maximize the preservation of rare and specimen trees. Where rare and specimen trees exist, flexible approaches such as adjustments to lot layout, placement of buildings and paved surfaces and location of utilities should be pursued in order to save them. (3) Notwithstanding any provision of the Land Use Management Ordinance to the contrary, saving of a rare or specimen tree shall constitute sufficient evidence that Sections (a) (e) has been met in any variance application.

9 9 (4) No soil disturbance from construction, trenching or grading, or paving, or storage of equipment or materials shall take place within the critical root zone of any rare or specimen tree to be preserved unless the Town Manager determines there is no reasonable way the property can be developed without such disturbance or unless the proposed work will be carried out in accordance with the specifications for such work in the Town's Landscaping Standards and Specifications. (5) No rare tree shall be removed from developing land unless the Town Manager determines there is no reasonable way the property can be otherwise developed, improved or properly maintained and the tree saved. (e) (d) Voluntary Protection of Rare and Specimen Trees on Private Land (1) Rare and specimen trees that are located on individual lots with single- and twofamily homes shall be protected if voluntarily registered by the property owner. (2) Registration of such trees shall survive transfer of ownership if language is contained in the document transferring ownership and shall extend the coverage hereof and render the owner of the lot subject to the following privileges: A. The owner shall be entitled to consultation with the Town Forester concerning proper care of the tree. B. If a permitted auxiliary structure or addition to a house is being planned, notwithstanding any provision of the Land Use Management Ordinance to the contrary, saving of a rare or specimen tree shall constitute sufficient evidence that Section of the Land Use Management Ordinance has been met in any variance application. (3) Once so registered, trees may be removed from the register at a later date at the request of the property owner. Section 3. That all ordinances and portions of ordinances in conflict herewith are hereby repealed. Section 4. That these amendments shall become effective upon enactment. This the day of, 2007.