Tree Protection Ordinance 1.0

What could be more mind-numbingly boring than reading a blog post about a local ordinance?

And yet here I am, asking you to do so, because the City of Atlanta is revising its tree protection ordinance, and that’s a big, big deal if you’re fond of drinking clean water, breathing clean air, and not being burned to a crisp every summer.

Anyone still reading? Okay, here’s what I’m going to try to do.

  1. Tell you something about how Atlanta currently protects trees.
  2. Set out the rudiments of the proposed changes to our law.
  3. Explain how you can help ensure the best possible outcome of this process.

Part 1: Tree Protection in Atlanta

In 1977 — the year UGA lost to Pitt in the Sugar Bowl, Jimmy Carter became president, the L5P Community Pub opened for business, and Bobby Cox was hired to manage the Braves — Atlanta adopted a law regulating tree removals. It’s been revised several times since then. The principle of the tree protection ordinance (TPO) could not be simpler: most of Atlanta’s trees may be privately owned, but they’re also a public good like clean air. The basic mechanism to protect Atlanta’s trees is simple, too: require those who remove trees to seek approval from the city and then replant on site or, if that’s not possible, to pay into a fund that can provide money for replanting of trees elsewhere in the city.

In a sense, everything else about the ordinance is just details. The fundamental principle and mechanism have been in place for years. In a different sense, everything has changed since the TPO’s early days. Here are just a few of the things that are different today versus yesterday:

  • The city has fewer trees than in 1977.
  • The metro area has many more people and much more pavement than in 1977.
  • Average temperatures are hotter, due to climate change and the urban heat island effect.
  • The required payment (“recompense”) for tree-removal-without-replanting no longer appears to function as a strong incentive to preserve as many trees as possible or as a strong deterrent to unnecessary removal of trees. For some developers, it’s just the cost of doing business.
  • Enforcement of the ordinance by the city is hampered by inadequate staffing and bureaucratic inefficiencies.
  • Money in the Tree Trust Fund has been siphoned off for many ancillary purposes, e.g., to pay the salaries of city arborists.
  • The growing complexity and spotty enforcement of the law increasingly frustrate and befuddle the public.
  • We know a LOT more about the ecology of urban forests and the ecosystem benefits of trees than we used to know.

Atlanta has lost and continues to lose trees in the years since the ordinance was enacted. A 2001 report by American Forests, focusing on the center of the wider metropolitan area, found that heavy tree cover (>50% of land surface) had declined from 47.5% in 1974 to 26.4% in 1996. In 2012, two researchers found that over the five-year period they chose to study, Atlanta lost trees despite the ordinance. Georgia Tech’s tree canopy research indicates that as of 2014, about 48% of the city has tree canopy.

Is Atlanta’s existing TPO a dud, a failure, a travesty? Not at all. Despite everything, it’s done some great work for us. Without it, we would certainly be in much worse shape. But we do need a reset.

Part 2: Draft TPO 1.0

The city released its first draft of a rewritten ordinance in March. This work on the ordinance is being done within a broader planning process known as the Urban Ecology Framework (UEF), which is itself part of a still broader plan for Atlanta called the Atlanta City Design, completed in 2017.

I have served as a member of a UEF stakeholder committee. Our committee contributed ideas first to a kind of concept plan for future green spaces, green connections, and green policies in Atlanta. Then work on the ordinance began, in which our committee has been much less involved. The schedule for the rewrite continues until August, as you can see below.

The headline of my interim report to you on Draft TPO 1.0 is as follows: it’s a missed opportunity. The city and its consultant Biohabitats have made the ordinance even more complicated, without clear improvements that promise more scientific, more effective protection for our trees and tree canopy.

What follows is my attempt to summarize in part what has been offered to the public. Please know that it is imperfect and incomplete. Why? Partly because the process has been highly imperfect, with key changes mid-process within the city’s planning team; subpar communication and followup with the technical and advisory committees; and release of this draft version without any annotations or without redlining to reveal the proposed changes from the existing ordinance.

It’s also imperfect and incomplete because this is a highly technical, 50-page document, encompassing minutiae on tree valuation, tree density, preservation thresholds and incentives, reasons for removal, notifications and posting, appeals process, parking lot requirements, and much, much more. Frankly, some of it is beyond my competence to assess, and it’s far beyond my ability to summarize here.

In any case, here are some highlights.

NOT A BRAND-NEW ORDINANCE

Broadly speaking, this “new “ordinance amounts to a tweaking of our existing ordinance. The city has NOT started from scratch. Instead, it has simply altered the existing ordinance.

Note that other cities have taken a more holistic and thoroughgoing approach to improving protection of their trees and forests, by better incorporating current scientific knowledge and making better use of zoning. For example, in our nation’s capital, site designs for construction are required to achieve a certain score, varying by zoning district and calculated by the green elements selected and the area of the site they cover. A number of different green elements qualify for what’s called the Green Area Ratio including permeable surfaces, vegetated roofs, bioretention, and trees.

Washington, D.C.’s Green Area Ratio

 

GOAL TO “SLOW OR HALT” CANOPY LOSS

The stated goal is “to protect and advance a high-quality urban forest within the boundaries of the city and slow or halt canopy loss.” That is, the city is committing itself only to slow canopy loss.

NO CLEAR-CUTTING!!!

It is the intent of this Article to prevent the clearing and removal of all trees on a lot for construction or landscaping. Permits to allow removal of all trees on sites that contain 3 or more healthy (i.e., non-invasive/undesirable) trees, not including hardwoods less than 6-inch DBH and pines less than 12-inch DBH, will be reviewed by the City Arborist and referred with their recommendation to the Tree Conservation Commission for final approval or disapproval. Tree Conservation Commission hearing procedures apply.

NEW CATEGORY: TREE SIGNIFICANCE

A major addition to the existing ordinance is that trees will now be assigned to a significance category. More significant trees get more protection; less significant trees get less protection. The new ordinance creates a weighted point system for tree attributes (e.g., species? native or non-native? age? size? condition? etc.); ecological and site factors (e.g., grove presence? grove age? riparian buffer? floodplain? steep slope? etc.); and project type (linear infrastructure? mass transit? affordable housing? urban agriculture? handicapped access? etc.) .

Category 1 has the lowest significance (e.g., tree is dead, diseased, hazardous, etc.) and Category 5 has the highest significance (i.e. tree provides the highest environmental services, is specially designated as historic or specimen, etc.).

These new categories affect tree protection in a variety of ways throughout the proposed revision. For example, the higher the significance of a removed tree, the more trees that must be replanted / the greater the recompense payment as determined by the ordinance’s formula.

These screenshots from presentations made by the city suggest how the significance categories could affect tree protection:

That some trees are more valuable than others — in that they provide a higher level of ecosystem services, more support for wildlife, and so on — is inarguable. So it’s a good thing that the new ordinance would distinguish between a 20-inch white oak in a floodplain and a 20-inch tree of heaven in a kudzu patch.

More analysis will be needed to determine whether the city is providing enough protection for trees of lower significance, and how trees will be categorized in practice — for example, at present the city envisions having the property owner evaluate tree significance and fill out a form (see this working example) that must be submitted with the permit application, a process that seems absurdly unworkable and open to widespread abuse.

REMOVING HEALTHY TREES

Atlanta’s existing ordinance does allow for the removal of some healthy trees. The most obvious example is in the case of smaller trees (<6″ in diameter) on private property, which the government does not regulate at all. And obviously, healthy trees in the buildable area of a lot can be removed, provided that the developer or building owner applies for a permit and agrees to replant or pay recompense.

The existing ordinance also allows for the permitting of some removals without requiring any replanting or recompense, as in the example of trees growing near the foundation of a house or in the case of certain undesirable tree species.

Draft TPO 1.0 creates some new justifications for private property owners to remove healthy trees.  Here are a few examples:

  • Once every three years, a property owner can remove a healthy tree or trees (up to 5% of the total inches of diameter on site) for any reason, provided that certain conditions are met and the tree is not Category 4 or 5.
  • Property owners may apply for a permit to remove a healthy tree of any category if it is causing “severe hardscape damage” or is in “significant conflict with overhead and underground utilities.”
  • Property owners may also remove a tree if it poses imminent danger to property, provided that the owner applies for and is granted a permit after the fact.

An argument exists that these new allowances and exemptions are unnecessary or imprudent as written. Why allow a property owner to remove an otherwise healthy, large, mature tree on a whim? What does “severe hardscape damage” really mean — not cracks in a homeowner’s driveway, surely? Does “imminent danger to property” include danger to a birdbath?

BUREAUCRACY

Draft TPO 1.0 makes no change in two areas of significant concern to people who care about Atlanta’s trees.

The proposed ordinance splits jurisdiction over privately owned and street trees, on the one hand, and trees in parks, on the other, between City Planning and the Office of Parks, respectively. Many of us believe that one unified staff of arborists within city government should be given responsibility for all trees in the city. There appears to be no rationale for the division other than the bureaucratic organization of Atlanta’s government.

The proposed ordinance also continues to divert money intended for replanting into other uses. These include:

  1. Up to $50,000 for administering the ordinance.
  2. Up to 5% of the money added to the fund the previous year or $100,000, whichever is greater, for educational materials.
  3. Up to $110,000 per year for the salary and benefits of two (2) arborist positions in the Department of City Planning.
  4. Up to $75,000 annually for the salary and benefits of an arborist senior/project manager position.
  5. Up to $200,000 per year for the salary and benefits of a tree pruning crew, consisting of one forestry crew supervisor, one tree trimmer senior, and one tree trimmer.
  6. Up to $60,000 per year for the salary and benefits of an administrative analyst
  7. An undefined amount annually for the salary and benefits of the clerk of the Tree Conservation Commission.

These administrative and operational expenses are draining up to $600,000 from other uses of the Tree Trust Fund, namely, replanting, acquiring forest land, purchasing forest easements, maintaining trees in parks, etc.

LOOPHOLES

Provisions of Draft TPO 1.0 open up a number of opportunities for the City of Atlanta to set aside the requirements of this law. The rationale on paper may seem plausible, but in practice, there is potential for abuse.

One example is implementation of the Atlanta City Design of 2017, which envisions intense development and higher population density along north-south and east-west axes in the city.

And so, “to promote new construction or substantial reconstruction in City Design Growth Areas, the City may reduce site density levels and preservation thresholds for non-single- family zoning categories by 50% for projects planned in the City Design Growth areas.” Roughly speaking, then, even fewer trees in places where the urban forest has been most reduced in the past several decades, in exchange for more trees on the periphery.

Atlanta’s tree cover as of 2008

Also functioning as loopholes, and already mentioned above, are projects that the city deems important enough to justify modifying the proposed ordinance, e.g., mobility improvement, mass transit, affordable housing, “green” building, stormwater management, handicapped access, solar access, etc.

Part 3: How You Can Help

As you can see from the calendar above, in July and August the City Council and the NPUs are slated to take up the final version of the proposed TPO. Letting Amir Farokhi know — now or later — that you want a stronger ordinance and do not want to see the city weaken protections for our trees would be so great!

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