Making them stick
When the stakes are high, property owners may challenge rules that limit their development opportunities, or their profits. Even homeowners may file suit just to clear their property for a garden — despite rules prohibiting removal of certain trees.
Remember: if you lose one, you set a precedent for others. When drafting new rules it pays to incorporate them in a council-enacted ordinances.
Writing Enforceable Tree Protection and Preservation Ordinances
Keep your city attorney involved from the very beginning
An enforceable ordinance must:
- Be reinforced by explicit purpose statements that establish the community’s dependence on trees and mutual responsibility of all parties to protect and preserve them.
- Be complete and detailed about what constitutes a special tree
- Define as specifically as possible to whom the ordinance applies (not just public vs private, but which private owners)
- Designate exceptions (e.g., DDH, invasives, noxious trees)
- Include clear and specific standards applied to different types of owners, and to specific categories of trees
- Set clear conditions for appeals. Many communities require that permitting decisions can be overturned only when it’s based on “misstatements of material facts, or erroneous application of provisions” of the ordinance.
- Ensure other plans and policy documents reflect importance of tree protection and preservation
- Assign high priority to tree protection and preservation when different city policies may conflict (e.g., affordable housing, solar, etc.) If possible, the ordinance should favor tree protection and preservation.
Stipulate a clear and complete process for administration. Laws can’t be enforced unless the “who’s” and “how’s” are embedded in municipal code. Plans and policy documents (e.g., landscape manuals) may not be considered legally binding unless they:
- Include the appeal process.
- Specify which agency and/or staff person is responsible for enforcement, and the process by which enforcement will take place.
- Make applicants aware of requirements before the fact – ideally through education on an ongoing basis
- Consider registration, licensing and/or required training for tree care companies and staff that explain the city’s rules and regulations. Some cities require companies to be registered before working on public/private property. Frequent violators may be expunged from the list.
- Ensure city arborists are involved in any permitting or plan review as early as possible for both public and private projects. Several cities require arborists to approve landscaping after construction, or certificates of occupancy may be withheld.
- Consider whether and how the public can be notified of proposed removals, (e.g., posting) and provide an opportunity for appeals by aggrieved residents or business owners
- Conditions for granting an appeal or variance
- Which body will hear the appeal