Up Sucker Creek

Up Sucker Creek
Photo Courtesy of the Lake Oswego Library

Thursday, July 7, 2016

Hoops, hurdles and hassles

Asking "Permission" to Cut 
Your Own Trees
Don't trust, just verify.
Navigating the maze of tree regulations in Lake Oswego

The Oregonian February 2, 2015
Timely review for a burdensome tree code: The 
Editorial Board
 That doesn't mean [Lake Oswegans] are happy with everything, though. They're not, and the thing that bugs them most, they said in 2013, is the city's tree code, which was adopted way back when Richard Nixon was president. More than half of those surveyed said tree regulations are too strong, compared with a mere 6 percent who said they're not strong enough. 

Mayor Kent Studebaker says constituents complain to him occasionally about the process homeowners must go through to remove trees wider than 10 inches at breast height, the size at which the code becomes remarkably stringent. Other people, he says, get upset when they run into problems cutting view-blocking trees that  were small when they bought their homes. City residents may not cut trees greater than 10 inches in diameter "for the sole purpose of providing or enhancing views."

And then there are the fees, the mitigation, the mandatory notice to neighbors, who may object and appeal, and so on. Combine the tree code's complexity and little-known roadblocks with the tall pile of permits issued each year - more than 1,000 in a city with a population of roughly 38,000 - and you can understand the widespread frustration. Unless public sentiment has changed dramatically since 2013, there's likely no small interest in meeting the City Council's aspiration to "balance the goals of community aesthetics and environmental quality with the preservation of property rights and individual freedom." Those things certainly aren't balanced now

And who knows? Perhaps the 2016 iteration of Lake Oswego's code will even allow homeowners to cut down big trees that block their views. It's a strange code, indeed, that allows a neighbor's interest in a tree to trump that of the person who bought the land on which the tree stands, who owns the tree, and who may have paid    dearly for the view the tree blocks.

How do the revised Tree Codes stack up?  

Have the Tree Code Amendments made the code more user-friendly, with less stringent regulations for citizens who want to cut a tree?  Have they resulted in less administrative processing and cost for city staff time?  Will they make the urban forest healthy and more sustainable?  These were the objectives the City Council gave to the Ad Hoc Tree Code Committee.  How well did the committee do, and how well did the Council do when discussing and approving the modifications?

I cannot list all the detail of the code changes - please read the draft in the Staff Report contained in the Agenda for the July 5 City Council Public Hearing.

Important:  The Tree Code Committee was self-selected. It was not a cross-section of of Lake Oswegans, and only a minority felt the tree codes were too restrictive - exactly opposite of what the city survey showed.  There were at least 4 married couples with each spouse having a vote. A large percentage of members came from the First Addition where mature trees are being cut daily to make room for large houses on 5,000 SF lots, changing the character of the neighborhood.  These are development code problems, not tree code issues.

NOTE: USC was on the Tree Code Committee and one of the minority group.  USC envisions a more trusting and open government and citizenry.

What didn't change:
1.    The cumbersome Type II application, filled with unnecessary and intrusive questions and information remains unchanged.  Why does the city need to know why you want to cut a tree?  Why does the property owner constantly need to verify their tree status?  Why does the city want permission to do a search of your property for prior violations of the tree code?  
2.    Homeowners still can't cut down trees for the sole
purpose of retaining a view.
3.    Type I Tree Permits still allow only 2 trees per year with a limit on tree size.
4.    No accommodations were made to make the city safe regarding wildfire. 
5.    There is still a questionnaire that asks the resident to defend their reason for cutting down their tree - so staff can see if "criteria" is met and a resident's reasoning and verification is good enough.  
6.    The emphasis continues to be on retaining large trees, but in doing so, creates a perverse incentive for residents to avoide planting large-scale trees for the next generation of a healthy, sustainable forest.  There is no understanding that people don't want to have government control over their property and will get rid of whatever invites government interference.
7.    There is still a Tree Topping Permit, though I don't believe very many people know a permit is required and that topping a tree is against the law.  Yet trees are topped all the time (still not a good idea).  The code does not prevent tree topping. Enforcement is nil.  The code is a joke.  Why do we have this code?
8.    You still need a permit to cut down a Dead Tree.  AND, the city manager may require you to retain the dead tree for wildlife habitat! 
9.    You need to pay for an ISA certified arborist to assess a Hazard Tree.  If it leans, if it's too close to the house, if the roots are getting into your sewer - you have to prove that tree removal is really necessary.  ALSO, the tree stays if there is any way you can minimize the damage to infrastructure without taking down the tree.  (Who pays for the damage if the city's wrong?)
10.   There's a Street Tree Permit if you have a tree in the public ROW.  You may have planted the tree, but it's not yours if it's in the ROW - you just have to take care of it.  And replace it if you don't like it any more - with a tree the city approves of.  Will people be planting street trees in the ROW?
11.   There are still too darn many permit types -  about 6?   A check box on the main page should be all that is needed.   (Then get rid of the waiver, the questionnaire, and fix the site plan....)
12.  There is still that Constitution-busting a over the city asks you to sign.  (Should you give up your rights to due process?)

Changes that make life easier for residents:
1.    Type I Permits have moved up the size limit to trees between 6" to 15" DBH.  (Was 5" to 10")
2.    Trees under 6" can be cut without a permit. (Was 5")
3.    A Dead Tree Permit can now include a tree that is on life support and not actually dead yet .
4.    Fruit trees do not need a tree-cutting permit.
5.    Posting public notices will allow comments and appeals for one week, not two.  
6.    Residents may now "thin" their trees if they have too many, without having to replace them with new trees, but anyone can still pay a mitigation fee to get out of replacing trees if they can afford it.   (Unequal justice.)   

New codes were added or  enhanced:  (How does this simplify code?)
1.   Following an appeal by a judge who said the code did not require a landscape "plan" before he 
cut his tree (Type II Permit), the City plugged that hole with the update by explicitly requiring a landscape plan.  No more sloppy interpretation of that code, except... What is the landscape plan supposed to look like?  And why can't it just be for cutting just one tree?  This code is very subjective - expect uneven application and multiple appeals.  Again.
2.    The newly  required Landscape Plan cannot be for the sole purpose of cutting down trees.  (Why not?)
3.    If you cut down a native tree, you have to replant using a native tree.  (Why? I know why, but really, are homeowners now required to maintain a wildlife habitat?)  

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