Bainbridge Finally Set to Tackle Tree Retention Ordinance After Long Delay

Posted by on November 18, 2013 at 11:00 am

Although the task of developing Bainbridge’s Tree Ordinance—also known by the user-friendly appellation comprehensive vegetation management and tree retention regulations—was assigned a high priority in the City’s 2013 work plan, staff couldn’t get to it until now. City Manager Doug Schulze says that’s because of changes in staffing and competing high priorities, including the SMP update, the 2013 Comprehensive Plan Amendments, and the HDDP Program revisions. One and a half months from the end of 2013, City staff are finally looking up at our Island’s trees.

It’s not that the City hasn’t had a tree ordinance until now. But a legal challenge in King County put Bainbridge tree retention regulations on pause. In a 2006 court case, Citizens Alliance v. King County, the Snohomish County Superior Court upheld King County’s land clearing standards, which were enacted after the Washington State Growth Management Act and were designed to protect critical areas, against a challenge by private property owners. However, in a 2008 appeal, Citizens Alliance for Property Rights v. Sims, the State Appellate Court reversed that decision and determined that King County clearing and grading regulations constituted an unlawful tax on the development of land. After an additional appeal, the State Supreme Court affirmed the decision of the Appellate Court. So when COBI updated City Codes, the city omitted tree retention requirements in response to the ruling.

In November of 2012, COBI passed an interim ordinance to fill that gap in tree retention requirements. Now the City is finally tackling the development of a new ordinance in partnership with Clarion Associates, the national land-use and real estate consulting firm that assisted the City in the Code Update project.

The previous, scrapped code, Chapter 18.15.010 of the Bainbridge Island Municipal Code, required that new development retain 15 percent of the significant trees (not including perimeter buffers) or 30 percent of the existing tree canopy (including perimeter buffers). The current, interim ordinance stipulates that each development approved in specific zoning districts leave at least a specified minimum amount of tree coverage, measured in “tree units,” reflecting the degree of tree coverage prior to development or redevelopment. Tree units are described in the ordinance as a metric assigned to existing trees that reflect the diameter of the trunk at breast height or the mature height of the tree.

The COBI-Clarion team will have to determine how to measure and protect tree coverage going forward in a way that will satisfy what Schulze calls the “community’s commitment to tree protection measures.” It will also have to establish a way to prove that any imposed restrictions on tree removal constitute ”a reasonably necessary condition,” as the State Court of Appeals argued in its decision.

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Photo by Brew Books.

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3 Responses to “Bainbridge Finally Set to Tackle Tree Retention Ordinance After Long Delay”

  1. Ron Peltier says:

    This is something citizens who understand the value of trees need to weigh in on. When city staff, and private firms, are given the main task of writing ordinances, they are empowered to in effect set policy. One of the planning staff has commented in the past that tree ordinances are a hindrance to developers, leaving me to ask: “what does that have to do with the price of beans in Alaska?”

    Planner’s policy opinions should be expressed though the same channels as the opinions of other citizens. They should not be expressed through the exercise of considerable discretion delegated to them by a city council reluctant to provide clear guidance. All of this applies to the City Manager, as well. He has let it be known that he doesn’t like tree ordinances. Your opinion regarding tree ordinances, Doug Schultz, should be limited to how best to implement the will of the city council. PERIOD. You are not an elected official and your policy opinions should be expressed the same as other citizens, and not in the course of doing your job.

    It is the role of citizens and the City Council to set policy and to write a new tree ordinance. We don’t need an overpaid corporation, Clarion, to spoon feed us. A citizen’s tree commission, appointed by the council, would be quite capable of writing a good tree ordinance. City staff, including the city attorney, should function as support to that committee and should have absolutely no say in policy. It is time to upset the status quo, here. The jig is up. Time to take back our Island.

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  2. Robert Dashiell says:

    I believe the City has already spent some $10,000 on consultants in it's first attempt to write a tree retention ordinance. Any new contract will almost certainly be that level or greater. Add City staff time, and City lawyer at roughly $250/hr.

    There are dozens of tree ordinances available to use as templates. City Council hasn't figured out what they want, and there is certainly not agreement in the citizenry on what all the tree ordinance should be written to accomplish.

    Protecting existing trees should be site specific. The no-taproot natives (Douglas fir, Hemlock, Alder) are prone to wind blow-over if isolated … and that isn't compatible with many land use developments, because they are hazardous. Similar thing with Lombard Poplars like the Council wants to protect on Ketchel Way … should someone be unfortunate enough to be struck, they are going to likely be injured or even killed.

    Some cities take a different approach … they partially subsidize replacement trees that are size and character compatible to a development.

    Tree are another issue that has and is still going to polarize citizens. There are a huge number of stakeholders, and no shortage of opinions.

    City has a Community Forestry Commission … I believe they have tried to write a tree ordinance and have not been successful.

    I too would encourage one more try by the Community Forestry Commission before any more money is spent on consultants to either write or facilitate the next edition of a COBI tree ordinance.

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  3. Debbie Vann says:

    I agree with Ron. It is the City Council's job to draft legislation, not management or staff. Staff's job is to support the Council in writing legislation. The City Manager's job is to implement the laws drafted and passed by the Council. State law is clear on the separation of powers and who does what. I am surprised to hear that the City Manager thinks he writes policy.

    As to the tree ordinance, staff have opposed a strong tree retention ordinance for years going back to 2007. There is no longer a forestry commission in existence. As of 2010 when I was on the commission, all of the experts except one had resigned. In 2009, all of the commissioners resigned from the ordinance drafting process when staff refused to implement any of their suggestions. Several of them are highly regarded professionals, including a professor who is an expert in Urban Forestry.

    When I got on the Commission in 2010 we started once again with trying to get something accomplished. Council members who were part of the committee simply did not have the time to devote to the process. We did get an improvement by requiring some minor tree retention in the CORE and Council fortunately passed that. Clarion was asked to do some work for us at that point and what they provided was nothing new and nothing that we had not already discussed. Simply, it was a waste of money.

    Now I hear that the City Manager and staff and Clarion are drafting a new ordinance and "citizens" are involved in that process. Who picked the citizens? Isn't it strange that none of us who spent hundreds of hours on this are included and none of the experts on trees are involved either? I can only surmise from this that staff picked people who would agree with them and staff are using the same draft they did that we all objected to for years. I don't want my tax payer dollars spent on a firm that has no expertise in this field and which has drafted legislation in the past (the Land Use Code Update) that was full of problems. I am also confused as to why Council was not asked to approve funding for a contract for Clarion to do this work. Can the City Manager decide to hire a firm to work on Council legislation without Council approving that contract or process? I don't think that is how it's supposed to work.

    It seems to me that Council needs to take back their jobs of drafting legislation from the City Manager. They should make their own decisions about who to put on the committee to work on the tree ordinance and whether an outside consulting firm with no expertise in tree retention issues is the right way to go.

    Debbie Vann

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