3. Ordinance Components for regulation of privately owned trees
The regulations that specifically apply to the management of trees on private property are often grouped together in their own article or section within the tree ordinance. These regulations are most often focused on land development, but may also include requirements for tree removal permitting on private property outside of the land development process.
- Tree Removal Permits
- Tree Density Requirements
- Tree Plans
- Timber Harvesting Regulations
- Tree Planting and Protection Bonds
- Alternative Compliance
- Variances and Appeals
Tree Removal Permits
Tree removal permits provide a direct way for a community to control the conservation of trees. The tree removal permitting process also provides opportunities to discuss tree health, risk, and proper maintenance with tree owners.
In many cases the requirement for a tree removal permit applies to the removal of trees as part of the development process or part of an approved tree plan. Treating an approved tree plan as a tree removal permit reduces the time and costs for extra paperwork and application fees for developers. While the tree plan requires an approval, a separate permit for each tree is usually not necessary.
In some communities the tree removal permit applies only to trees on public property, but in other cases applies to private property, either undeveloped or developed, residential or commercial or a combination of these conditions.
When tree removal permits are applicable to developed residential properties, the permit usually applies only to trees in a certain category (i.e., specimen), or above a minimum size (DBH), or to the removal of trees over a certain number in a specified time period.
Tree Density Requirements
Tree density is a quantitative measure of the number of trees or amount of tree cover per unit area.
In tree ordinances that regulate trees during the process of land development, a minimum amount of tree density is required on a per acre basis. This minimum tree density requirement takes one of four common forms–number of trees, tree density units, DBH inches, or tree canopy cover. (See Tree Density in “Types of Tree Ordinances).
The community’s goals for its community forest should be reflected in the method chosen for requiring tree density. Once community priorities and goals are set, then trees can be required in specific priority areas, such as in parking lots and buffers, or along road frontages, or in a certain concentration or configuration on a lot or within a development.
Number of Trees
Many ordinances require a specific number of trees along street frontages, in parking lots, and in buffers. For street trees, these requirements may say 2 trees must be planted in the front yard of a residential lot, or 1 tree must be planted for every 25 to 40 feet of road frontage. Some ordinances require a specific number of trees.
Communities that require a minimum amount of DBH (diameter at breast height) inches on a property upon completion of development generally require a tree plan that identifies the DBH inches of trees to be conserved and replaced with the sum total equaling the minimum standard required.
Tree Density Units (TDU)
Some communities have adopted a requirement for a minimum number of tree density units per acre, which is based on cross-sectional areas of trees. These density units are based on a conservation or replacement schedule. Most commonly, 15 to 40 tree density units are required per acre and this may, but does not always, vary by zoning.
Tree Canopy Percent
Communities that employ a tree canopy standard require a minimum percentage of canopy to be on a site at the end of construction activities. These percentages vary and are often stratified by zoning classification.
A tree plan is a visual depiction, with required notations, of existing trees and site conditions, proposed site changes, how tree density requirements will be met, and how conserved trees will be protected. Tree plans are required in ordinances that regulate trees during land development.
There are many factors and conditions on a development site that go into which existing trees in which locations can and should be successfully protected and conserved, and where new trees can and should be planted to thrive and function best to meet tree ordinance intent and community goals. The tree plan brings all these factors together in a graphic depiction of how tree density and other tree ordinance requirements will be met.
The tree plan–usually called a tree conservation plan, tree preservation plan, or tree canopy plan–becomes the primary, official document showing how a property owner or their agent proposes to meet tree ordinance requirements. Once approved, it may only be modified with further approval by the tree ordinance administrator, community arborist or other designated official.
In addition to the tree plan, a tree protection plan or tree planting or replacement plan may be required, either as a separate plan or included in the tree plan. Tree protection plans show how and where conserved trees will be protected. Tree planting plans and tree replacement plans show where and which new trees will be planted on the site to meet minimum tree density requirements.
As part of the development of the tree plan, a tree survey is usually required so that the location, species and size of all existing trees, groups of trees, and tree stands found on the site can be depicted on the tree plan. Some communities require that location information include the location of the trunk and the location of the critical root zone for each tree or tree group.
Tree plans are submitted to the appropriate department and reviewed by the city arborist or other designated staff for approval. It is a standard requirement that tree plans must be approved before a land disturbance permit or other development permit can be issued for an applicable site.
Pre-Planning Site Visit
A visit to a site to be developed is often done to initiate a discussion of which trees should be conserved and where tree density should be distributed. The site visit may be done by designated staff or the arborist. The discussion should also include a review of how conserved trees are to be protected and other technical requirements that will be important for the development of the plan. It is also important to discuss where buildings, driveways, materials storage, temporary buildings, ingress and egress drives, equipment washouts, and vehicle travel and parking areas should be located.
Typical Plan Requirements
The plan should contain all information that is needed to approve or reject the proposed tree plan. This includes but is not limited to which trees will be conserved and planted, along with a complete picture of all activities, structures, and processes that will impact tree density and tree health.
To help with making sound decisions and developing a successful plan, communities typically require that the tree plan be developed and certified by an ISA certified arborist or registered forester to ensure that someone with technical expertise was involved in determining how the tree ordinance requirements will be met.
Timber Harvesting Regulations
The limits of communities in regulating timber harvesting operations are set forth in Georgia by state code through OCGA 12-6-24 Notice of Timber Harvesting Operations. This code applies only to “timber harvesting operations which qualify as forestry land management practices or agricultural operations, …not incidental to development, on tracts which are zoned for or used for forestry, silvicultural, or agricultural purposes.”
This state code section describes the authority of city and county governments to regulate timber harvesting activities as follows:
- Communities may require a notice of timber harvesting operations which requires notification prior to, or at the latest within 24 hours of beginning, operations and within 24 hours of completing the operations.
- Communities may not require a fee for a notice of timber harvesting operations.
- Communities may not require a permit for timber harvesting on properties zoned for agricultural, forestry or silvicultural land uses.
- Communities may require a bond or letter of credit for any damage that may be caused for up to $5,000, valid only for the calendar year it was delivered.
- Fines for violations of the notice requirements may not exceed $500.00.
Information required on the notice of timber harvesting operations is limited to the following:
- A map of the area identifying the location of the tract to be harvest, including the main points of ingress and egress of trucks to and from the tract onto a public road.
- Whether the timber will be removed as a lump sum sale, per unit sale, or owner harvest for ad valorem tax purposes.
- The contact information of the timber seller or the timber owner if an owner harvest.
Additional Local Government Requirements
Many tree ordinances that address timber harvesting include a requirement that all forestry and timber harvesting operations be done in accordance with Georgia’s Best Management Practices for Forestry guidelines. The Georgia Forestry Commission has an agreement with the Georgia Environmental Protection Division to administer a program to educate the forestry community, promote best management practices and investigate and mediate issues associated with forestry operations and water quality. More information on Georgia’s Forestry BMPs can be found on the GFC website.
Some communities regulate timber harvesting activities that take place on land that is not zoned agricultural (i.e., on residential and commercially zoned property), requiring buffers, the conservation and protection of special trees, a tree plan, or conservation of trees in high priority areas for tree canopy. In some communities, clearcutting of timber may only occur on properties zoned agricultural, with only thinning allowed on non-agricultural zoned properties. Buffers may be required even on land that is zoned agricultural in some communities.
In an effort to discourage the removal of all trees in a timber harvesting operation that will lead to development or speculative grading in anticipation of development, many communities place a moratorium on any development permits for a period ranging from 3 to 5 years after the completion of the timber harvest. However, some of these ordinances also state that if a tree plan showing compliance with the tree ordinance is submitted in conjunction with the notice of timber harvesting, the moratorium does not apply. This leaves it up to the property owner to decide whether they want to pursue development after the timber harvest.
Tree Planting and Protection Bonds
Bond requirements serve the purpose of elevating the importance of the trees on a site and encourage compliance with standards and best management practices to ensure tree health and survival.
Tree ordinances can require bonds and irrevocable letters of credit for developers to ensure installation of trees at the appropriate time of the year, to cover the cost of replacement of planted trees if they do not survive through a specified establishment period, or to cover the cost of replacing conserved trees that might be damaged during construction.
When a property owner or developer has completed construction and is required to plant new trees, the season of completion is an important consideration. The viability of new trees will be significantly affected by the time of year the trees are planted. If it is outside the planting season--which is considered broadly to be December through March in Georgia--then planting should be delayed.
While it is natural to want to plant trees just prior to project completion for both efficiency and aesthetic reasons, when trees are planted at the wrong time, even with the best follow-up maintenance (watering particularly), they often struggle, suffer significant dieback, and eventually have to be replaced. This is costly. Instead, a community may ask a developer for a tree planting bond for somewhere between 110 to 130 percent of the total cost to purchase and plant the trees, and upon receipt of the bond will issue a temporary Certificate of Occupancy. Then, when the trees are planted by the developer (within a year of project completion), the bond is returned. If the trees are not planted within a year, the bond is forfeited and the community may use the money to plant trees on public property.
Even when trees are planted at project completion and the Certificate of Occupancy is issued, some communities require a bond for a period of 1, 2, or 3 years until the trees are well established. Should trees struggle or die, the developer or property owner must replace the trees or otherwise forfeit the bond.
In some communities, a bond is required to cover the replacement cost of trees conserved on a development site. This bond serves to encourage the protection of conserved trees and ongoing maintenance of tree protection fencing. When trees are damaged or destroyed, if the property owner or developer does not adequately provide remedial maintenance or replacement planting as required by the community, then the bond may be forfeited.
Variances and Appeals
Variances and appeals provide flexibility in cases where the strict application of tree ordinance regulations would create an undue hardship or result in an outcome that is in conflict with the intent of the tree ordinance. Appeals are also available to challenge allegedly erroneous interpretations of the tree ordinance.
The processes used to grant variances and hear appeals defined within a tree ordinance should be the same processes that are used in other sections of the community’s code.
In some ordinances, the processes are described in the zoning ordinance or unified development code and not repeated in the tree ordinance. In other ordinances, the processes for applying for and granting variances and appeals are written in the body of the tree ordinance.
There are two types of variance procedures described in tree ordinances. The first type is administrative, when an administrator is given authority to grant a variance from a specific regulation. The request for an administrative variance must be submitted to the administrator in writing, and decisions of the administrator may be appealed.
The administrator may be given the power and authority to waive or vary certain requirements of the tree ordinance, which might include:
- Yard setbacks
- Fences, walls, and hedges
- Other minor code variances and minor tree or site plan amendments
The second type of variance is more formal and usually includes:
- A description of the process for submitting a variance request, which must be done in writing to the board of appeals or other authority before the approval of any permits
- Statement of the conditions under which a variance may be granted and the minimum standards for granting the variance
- Description of the procedures for appealing a decision of the administrator or the board of appeals on a variance request.
Appeals are a way for a person who believes he or she is aggrieved by alleged errors or decisions of the arborist, administrator, board of appeals, or public officials to petition for relief from the interpretation or application of a regulation in the tree ordinance to a higher authority. The appeals process for decisions regarding the tree ordinance should be treated the same as any other appeals process described in other parts of the community’s code.
The initial appeal of a decision of the arborist or administrative staff is usually made to one of the following, depending on the authority hierarchy established within the community:
- Department director
- Tree board
- Board of appeals (zoning board of appeals)
Appeals of a decision of one of these individuals or groups usually proceeds to the:
- City manager
- City council or county commission
Appeals of a decision of one of these individuals or groups may eventually end up in court.
A timeframe for appealing a decision is often included in the appeals process, with communities requiring that the appeal be filed with 10 to 90 days of a decision. The appeal must be in writing and certain information is usually required. Appeals to the board of appeals or city council or county commission are usually considered in an open public hearing setting.
When 100% compliance with tree density regulations will result in limited growing space for trees, a conflict between trees and the permitted use of the site, or other undesirable conditions, then having a method of alternative compliance is helpful to maintaining tree canopy cover.
Alternative compliance usually takes the form of either a tree bank for establishing trees off-site, or a tree fund which receives payments in lieu of tree conservation or planting.
Recompense is a method of complying with tree conservation or specimen tree protection requirements by paying for tree density removed that cannot be replaced on the site.
The use of alternative compliance requires the approval of the city arborist or administrator in most cases, but in some cases requires the submittal of a variance request.
When the conservation or establishment of trees on-site to satisfy tree density requirements is not practical, some communities may approve a limited amount of tree density for planting off-site, in a tree bank.
The community may have public areas that serve as tree banks or may require the trees be placed on private property. A tree plan is still required, and the tree density planted off-site according to the tree plan usually must remain on that site in perpetuity.
A tree fund is a revenue account established by the community to receive alternative compliance payments, recompense payments (see above), donations to the community’s tree program, and fines and penalties for violation of the tree ordinance. A standard rate of dollars per specified amount of tree density (tree density units, DBH inches, tree canopy square footage, etc.) is established in the ordinance or referenced and included in the community’s fee schedule.