SUPPORTS ITEM NO. 5(a)
P&E COMMITTEE AGENDA
JUNE 27, 1996
POLICY REPORT
Development and Building
Date: June 13, 1996
Dept. File No. MvH
TO: Standing Committee on Planning & Environment
FROM: Director of Land Use & Development, in consultation with the
Directors of Permits & Licenses and Legal Services, General
Managers of Human Resource Services, Board of Parks &
Recreation and Engineering Services, Manager of Facilities
Development and Comptroller of Budgets & Research
SUBJECT: Options for an Improved Private Property Tree By-law
Protecting Significant Trees
RECOMMENDATIONS
THAT Option 3, described herein, which expands the application of
the existing Private Property Tree By-law to protect and regulate
significant trees at any time be approved, subject to:
i) the approval of the companion report recommendations that
detail the financial, staffing and by-law implications; and
ii) enactment of the appropriate amendments to the Private
Property Tree By-law.
MANAGER'S COMMENTS
The General Managers of Community Services, Engineering Services
and City Manager comment as follows:
Clearly, this proposal creates a new higher level of control and
bureaucracy in the management of trees. The costs for this control
are in higher development permit and tree permit fees and the
hiring of professionals to submit reports and follow-up on the
required planting. These costs will be passed on to residents
directly or indirectly. There will still be ways to circumvent the
by-laws.
We understand there has been strong support for such a by-law from
community groups and individuals. We are concerned that Council
recognize that some individuals will feel strongly that this is an
unwarranted interference in their rights - for example, to cut down
the tree which they planted, and which now interferes with their
garden, their sewer, or their view. These individuals may argue
that they have not been consulted in any way on this proposal, and
Council may wish to consider a public consultation program or
survey before proceeding with this report.
The General Manager of Community Services, while fully supportive
of these comments, notes further that neighbourhoods are pressing
for an ever-increasing amount of regulation to maintain character
and amenity, and (for example, roof colour). Recognizing that
trees have a greater impact on neighbourhood character and amenity
than many other factors now regulated, I am not prepared to
recommend that Council reject the tree regulation proposals in this
report. I note that they are considerably cheaper than previous
proposals which Council rejected.
Given that this proposal provides a relatively efficient way to
provide this level of regulation, and that Council wishes to
involve the City in this previously unregulated area, the General
Manager of Community Services RECOMMENDS approval of the above
recommendation.
COUNCIL POLICY
Council in the past has indicated a desire for greater regulation of
trees being removed on private property. This was reflected in tree
replacement provisions in the Zoning and Development By-law implemented
under Charter authority provided by the Province in 1990.
Other relevant policies regarding tree planting and awareness were
adopted through the Clouds of Change report [Section 28(b)] and similar
principles presented in the Urban Landscape Task Force report were
adopted by Council on November 3, 1992. These principles were further
affirmed in the Greenways Implementation report, adopted by Council on
July 18, 1995.
On February 3, 1994, Council resolved that during the term of the
1994-1996 Budget Management Program, any proposed increase in programs
and/or services be offset by corresponding spending reductions elsewhere
in the City's operating budget or by increases in non-taxation revenues,
subject to Council discretion.
On February 15, 1994, Council directed that the current level of
regulation not be expanded. The new Private Property Tree By-law
enacted by Council on November 1, 1994, maintained the same level of
regulation but within the legislative context of Bill 77, the new
provincial tree legislation.
SUMMARY
This report discusses three options to protect significant trees and
recommends that Option 3 be approved to improve the retention of
significant trees that do not have to be removed. Further detailed
financial and staff implications of this recommendation are the subject
of a companion report.
PURPOSE
This report responds to a request from Council to report back on options
to protect significant trees that do not have to be removed as a result
of development. Significant trees are defined as those trees with a
minimum diameter of 20 cm, or a minimum combined diameter of the 3
largest trunks of 20 cm, measured 1.4 m above the ground. Within this
discussion, the report also addresses other outstanding issues including
Vancouver Charter amendments, minimum tree requirements based on site
size, retention of trees and potential issues with the Untidy Premises
By-law.
BACKGROUND
Council amended the Zoning and Development By-law in April 1991 by
adding provisions for replacement of larger trees removed from private
property as a result of development. At the time, these provisions
represented the fullest extent of the Vancouver Charter authority
provided by the Province in 1990 in response to Council's request for
authority to protect trees on private property. Under these provisions,
replacement trees only were required and retention of existing trees
could not be required.
In July 1992, the Province responded to the City's and other
municipalities' concern over the limited legislative authority to
protect trees on private property by introducing Bill 77, the Municipal
Amendment Act (No. 2). Bill 77 provided additional powers to regulate
the removal of trees on private property but it also eliminated the
discretion in the application of tree regulations and precluded full
cost recovery of administrative costs incurred by the City in issuing
tree permits. With this in mind, Council enacted a new Private Property
Tree By-law on November 1, 1994 that maintained, to the greatest extent
possible, the tree regulation program but within the framework of Bill
77.
On September 12, 1994 Council requested staff to report back after a
year of experience with the new Private Property Tree By-law with
recommendations to amend the Vancouver Charter, if necessary, to allow
the Director of Land Use & Development greater flexibility to administer
the tree regulations. Staff were also to report back on outstanding
concerns related to regulation of trees and landscaping, including
minimum trees based on site size, formalizing regulation and
enforcement, the identification and protection of trees and any
potential conflict with the Untidy Premises By-law.
On February 1, 1996, further dissatisfaction with the limitations of the
new Private Property Tree By-law, especially in retaining significant
trees that did not have to be removed as a result of development,
prompted Council to request staff to report back on options to retain
significant trees.
DISCUSSION
Progress Report on the Private Property Tree By-law
The current Private Property Tree By-law enacted on November 1, 1994
maintains the previous tree regulation program, to the greatest extent
possible, within the framework of the Province's Bill 77. Tree
retention and tree relocation is not required but encouraged. Trees are
defined as self-supporting woody plants having a minimum diameter of 20
cm, or a combined diameter of its 3 largest trunks of a minimum of 20
cm, measured 1.4 m above the ground. Replacement trees are required for
trees removed at the time of site development or redevelopment. Under
the By-law, property owners are responsible for maintenance of the
replacement trees on their property, and the By-law also prohibits
removing or damaging retained, replaced or relocated trees. Section
3.2.6 of the Zoning and Development By-law, which allows the Director of
Land Use & Development to relax the siting of buildings to allow tree
retention, has proved very useful and has been retained from the
previous Zoning provisions as a valuable tool to help retain trees.
Along with the Private Property Tree By-law, a number of other measures
in the form of tables and guidelines try to minimize negative impacts of
the Tree Plans, such as overplanting, planting under hydro lines,
protecting existing trees, suggesting suitable replacement trees, tree
planting close to buildings and property lines, and maximum number of
trees required on the site.
Although the Private Property Tree By-law and the accompanying
guidelines and tables have improved the information provided to the
public, they have created less flexibility in regulating appropriate
site specific solutions than was possible under the previous
regulations. The new regulations also have not significantly affected
the overall number of trees retained, relocated and replaced, as this
total number continued to be in the 4,000 - 5,000 range in 1995, which
was similar to previous years as exhibited in Appendix A - Tree Counts.
Still, the most important continuing dissatisfaction with the Private
Property Tree By-law and the previous regulations is the lack of
protection of significant existing trees. A number of issues continue
to arise from this major limitation:
- Significant trees are being removed that do not have to be removed
as a result of new development. These trees are outside the area
affected by development and are, in many cases, regarded as valuable
community "edge" trees that define streetscape and neighbourhood
character.
- Significant trees continue to be removed prior to the sale of some
properties, or prior to a site survey for submission as part of a
development application, without any consultation with City staff.
This allows no possibility of negotiations to retain valuable
trees, including consideration for relaxations.
- Many significant trees that are to be retained, continue to be
damaged during construction with disregard for their value.
Significantly smaller replacement trees are the only requirement
under the current By-law. Even replacement trees are reportedly
being planted temporarily in some instances and then removed.
The combined result has drastically altered some streetscape character
in parts of Vancouver. It has also destabilized the urban forest in
some areas by removing most of the older growth, thereby losing the
dynamic natural balance of old and new growth in the community. At the
same time, the physical presence of the huge trees cannot be replaced by
a 10 foot high replacement tree. Many of these large trees are regarded
as heritage trees within the community and there are no current
safeguards or incentives to preserve them.
Community Response
During 1995 and early 1996 the West Kerrisdale Residents' Association
Tree and Landscape Committee, and the Urban Forest Preservation
Association, another West side community-based organization, actively
pursued improved tree regulation to preserve trees.
The West Kerrisdale Residents' Association Tree and Landscape Committee
canvassed over 600 households in their neighbourhood and had a 63%
return rate that supported amendments to the Private Property Tree
By-law to preserve trees. Similarly, the Urban Forest Preservation
Association received unanimous support from community associations
across the City to add tree retention requirements to the current
By-law.
The suggested amendments to the current By-law include:
- a tree permit process for significant tree removal outside the
building area;
- provisions to allow tree removal where there is a tree hazard, a
tree in ill health or a tree that disrupts site services;
- the amendments would affect all properties, even those not under
development or redevelopment, in order to prevent unnecessary
removal of trees; and
- penalties would include the replacement of the same tree species in
the same location for those that were to be retained and were
damaged during construction, or removed without a permit. More
severe penalties considered major fines and jail terms for
contravention of the amended By-law.
Options and Administrative Procedure
On September 12, 1994, four options for a new Tree Regulations By-law
under Bill 77 were submitted to Council for information. Of the four
options, three examined additional tree protection as an alternative,
and the other retained the existing regulation. This latter option was
the preference of Council at the time, adding one technical position to
obtain the acceptable level of service under the existing regulations.
The other three options that included increased tree protection also
required a staff complement and additional non-recoverable costs. These
resource implications made each one of these options extremely
prohibitive under Council's policy of full cost recovery. The resource
requirements were based on hypothetical projections of the number of
permits and associated administrative support requirements. Since that
time, the actual experiences from the City of Toronto and the District
of Saanich, both of which have had at least one year of experience with
a tree permitting process, help lend a new and more realistic basis to
reconsider the three options. This recent experience suggests that a
tree permitting process can be undertaken with fewer resources than
originally projected.
With this new information in mind, the three remaining 1994 options can
be reviewed again to examine which one can be most effective in
protecting trees in balance with the additional staff complement and
cost recovery.
OPTION 1: SEEK REPLACEMENT PLANTING BUT ALSO REGULATE (PROHIBIT)
SOME TREE REMOVAL AT THE TIME OF DEVELOPMENT APPLICATION
This option requires retention of trees (without a tree permit) that are
not affected by site development, in accordance with criteria set out in
an amended Private Property Tree By-law. Under this option:
- a separate tree permit would not be required;
- tree removal would not be prohibited prior to development
application, but if mature trees exist on a site at the time of
application, they would have to be retained unless affected by site
development, in accordance with criteria laid out in the by-law;
- tree replacement would be required for those mature trees that were
to be retained, but were removed or damaged in contravention of the
approved permit;
- more trees would be retained which could contribute to a better mix
of retained, relocated and replacement trees; and
- circumvention of the by-law could continue (and most likely
increase) by trees being removed prior to site survey for submission
as part of the development application.
OPTION 2: SEEK REPLACEMENT PLANTING BUT ALSO REGULATE (PROHIBIT)
SOME TREE REMOVAL AT ALL TIMES
This option would expand application of the by-law to protect and
regulate trees at any time, even when no site development is
contemplated. City approval would be required for removal of any trees,
although exemptions to allow tree removal would be possible in
accordance with specific criteria laid out in the by-law. Subject to
By-law provisions, the City would require replacement trees for those it
allowed to be removed or that were removed in contravention of the
By-law. It could also prohibit removal of trees outside the site
development such that the tree retention does not prevent use of the
land or its development to the density permitted under applicable
zoning.
Of the three options, this option would require the greatest increase in
staff and entail the highest amount of non-recoverable annual program costs, as internal staff would co-ordinate tree permit administration
and inspections.
Under this option:
- a separate tree permit would be required;
- tree removal at any time would require City approval and only be
permitted in accordance with criteria laid out in a new by-law;
- tree replacement would be required for trees permitted to be
removed, trees that are removed in contravention of the by-law, for
trees that are to be retained but are later removed or damaged, and
for replacement trees that are later removed; and
- since the By-law would be operative at all times, irrespective of
site development or redevelopment, there would be reduced ability to
circumvent it, so more mature trees would be retained and more
replacement trees would be planted than with Option 1.
OPTION 3: OPTION 2 WITH PRIVATE SECTOR PARTICIPATION
Option 3 differs from Option 2 in that initial assessments of trees
proposed for removal and subsequent required supervision or inspections
would be performed by private sector landscape practitioners, similar to
the process used by the Ministry of Environment's watercourse protection
procedures for areas adjacent to streams.
Applicants, at their own cost, would acquire the services of a Certified
Arborist to initially assess the condition of a tree the applicant
wishes to remove, against removal criteria laid out in the By-law. The
applicant would submit the Arborist's report as part of a tree permit
application. If the tree(s) complied with the removal criteria, City
staff would issue the permit, subject to replacement trees to be
selected, planted and maintained in accordance with By-law provisions.
Landscape practitioners (not necessarily Certified Arborists) would be
responsible to assure the City that the required replacement trees had
been planted as specified on the tree permit within the period of the
permit's validity (recommended as six months). Random spot-checks by
City staff or complaint-inspired inspections would be conducted as
necessary by appropriate staff. A City tree telephone hot-line could
provide further assistance for early warning of violations.
Under this option:
- a separate tree permit would be required;
- the scope and effect of the by-law would be the same as in Option 2;
- all up-front tree assessments and site inspections, the costs of
which the City is not able to recover, would be "privatized" and
conducted prior to the formal application process, at the expense of
the applicant wishing to remove a tree;
- any costs associated with subsequent required supervision,
inspections and assurances (to be submitted to the Director of Land
Use & Development by a landscape practitioner) that permit
conditions were fulfilled would be borne by the permit holder, since
the City is also not able to recover these costs;
- quality control related to tree planting, other arboricultural
practices and resulting survival rates, would probably increase due
to the participation of landscape practitioners; and,
- the liability assumed by a private consulting Certified Arborist may
result in a very liberal interpretation of a tree's hazard
potential, which may result in more trees being removed with Option
3 than with Option 2.
Comparison of Options: Staffing and Ability to Recover Costs
OPTION STAFF COMPLEMENT ESTIMATED ANNUAL
NON-RECOVERABLE COSTS
1 6 n/a
2 18 $450,000
3 4* ---
* The required staff complement would be 5 (compared to 8.5 for this option in the 1994 report) but 1 Landscape
Architectural Technician was added in 1994.
The estimated increase in required staff level for Option 1 and Option 2
is based on the September 1994 Council report. Option 3 estimates the
reduction of predicted tree permit applications from 8,000 to 2,000
based on the average number and type of development applications
requiring tree plan approval over the past five years and
non-development applications estimated from the actual number of trees
removed from private property in one year. Some of the difference rests
in the fact that pruning has been left out of the amendments.
Consequently, the staff complement is estimated to be reduced from 8.5
to 4 and the non-recoverable costs can be recovered to the extent of the
estimated tree permit revenue. The tree permit revenue will fluctuate
based on the number of applications and the fee schedule.
Recommended Option
Even though Option 1 could require tree protection at the time of
development without the requirement for a tree permit, it would not
necessarily save more trees than under current regulations. This would
be due to the ability, and possibly greater incentive, to circumvent the
By-law provisions prior to development application submission.
Options 2 and 3 are very similar, except Option 3 delegates much of the
responsibility of the tree permit assessments and inspections into the
hands of the permit holder, thereby significantly reducing increased
staffing and reducing non-recoverable costs. Option 3 thereby appears
most effective for both tree protection and resource requirements.
Further Amendments to the Vancouver Charter
Considering the sense of urgency to retain more significant trees, it is
recommended that any consideration to amend the Vancouver Charter be
deferred. Although the regulations under Bill 77 provide a lack of
flexibility in administering the By-law, the result of the proposed
amendments will hopefully outweigh any drawbacks felt by the
inflexibility. Any consideration to amend the Vancouver Charter should
be set aside until after at least one year of administering the proposed
amended By-law.
Financial Implications
Council has a policy that all proposed increases in programs be offset
by corresponding reductions or by increased in non-taxation revenues.
The additional tree program costs identified are proposed to be
partially recovered by an estimated 7% increase in Development Permit
fees based on the $2 million budget for 1996. Only those tree permit
applications related to development permits, estimated at 70 percent of
the total applications, can be cost recoverable through increases in
development permit application fees. The balance of 30 percent of the
applications will be cost recoverable to the extent of the tree permit
fees.
Trees and Other Landscape - related Concerns
The amendment of the current Private Property Tree By-law as proposed
might provide some opportunity to record some of the significant trees
within the city as part of the site review process. However, the tree
permit applications will normally only include those trees to be
removed. The exact process and recording of significant trees could
have further resource implications and will be the subject of a report
back to Council.
Staff are also in the process of reviewing and formalizing Landscape
regulation and enforcement including landscape submission requirements,
security requirements and inspection requirements by Landscape
Architects, to better ensure quality installations.
Other outstanding tree and landscape related concerns include
establishing an outright minimum number of trees based on site size, to
help reforest the city especially where no trees exist. The focus of
both previous and current Charter authorities has been on existing trees
and therefore treeless sites have not been affected by by-law
regulation.
The other ongoing concern that needs further investigation is the
possible conflict between the By-law and Section 4 of the Untidy
Premises By-law No. 4548, which can require properties to be cleared of
trees as well as weeds, brush and other growths.
Environmental Implications
The suggested amendments to the current Private Property Tree By-law
will protect more significant trees in the city and promote the
protection and enhancement of our urban forest.
CONCLUSION
Option 3 is the recommended alternative as it creates the most effective
tree protection, while minimizing additional staff and other associated
costs. In so doing, it will help preserve and enhance neighbourhood
character, streetscape quality and valued trees in our urban forest.
These changes to the tree program will also help to increase the
awareness and environmental benefits of trees to the citizens of
Vancouver.
The costs associated with Option 3 will be partially recoverable through
an estimated 7% increase in Development Permit fees. The balance of
non-recoverable cost relating to non-development applications can be
recovered to the extent of the tree permit fees. Further details of the
financial and staff requirements are covered in a companion report.
The report also recommends that the Director of Land Use & Development
report back on potential Vancouver Charter amendments following
experience with the amended By-law. Other concerns related to the
regulation of trees and landscaping would also be reported on at that
time.
* * * * *
APPENDIX A
TOTAL TREE COUNT STATUS REPORT
PRIVATE PROPERTY TREE BY-LAW
APRIL 9, 1991 - DECEMBER 31, 1995
ITEM DEVELOPMENT COMBINED BUILDING TOTALS
PERMIT PERMIT PERMIT TO
DATE
A. NO. OF APPLICATIONS/ 2249 6,488 661 9,398
PERMITS REVIEWED
B. NO. OF APPLICATION 600 1,556 19 2,175
RELATED SITE
INSPECTIONS
C. NO. OF TREES TO BE 4,303 5,022 1935 11,260
RETAINED
D. NO. OF TREES TO BE 305 121 12 438
RELOCATED
E. NO. OF TREES 7,837 4,952 155 12,944
REPLACED
F. TOTAL TREES 12,445 10,095 2,102 24,642
RETAINED, RELOCATED
AND REPLACED
(C+D+E)*