city of richmond, virginia - tree removal - ordinance 2010-59 - comments

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© 2010 C Wayne Taylor

Table of Contents

ORDINANCE 2010-59

Comments by C. Wayne Taylor 3/15/2010

Part I ORDINANCE NO. 2010-59 SHOULD BE REJECTED 2

Part II Required Procedure 2

................................................................................................................................... 31 Permit Required For Tree Removal

................................................................................................................................... 32 Moratorium Suspends Applications For Permits

................................................................................................................................... 33 Moratorium Allows Applications In Four Situations

................................................................................................................................... 34 Approvals Required For Tree Removal

................................................................................................................................... 45 Approval Is Not Automatic

................................................................................................................................... 46 Applicant Must Pay Cost Of Removal

................................................................................................................................... 47 Applicant Must Pay Cost of Replacement

................................................................................................................................... 48 Applicant Must Assume Liability

Part III Relevant Facts 5

................................................................................................................................... 51 Existing Damage Is Irrelevant

................................................................................................................................... 52 Future Sidewalk Damage Is Irrelevant

................................................................................................................................... 53 Future Fence Damage Is Irrelevant

................................................................................................................................... 54 Future Foundation Damage Is Unevidenced

Part IV Determination of Facts 5

................................................................................................................................... 61 Liability Assessment

................................................................................................................................... 62 Precedence Assessment

................................................................................................................................... 63 Building Assessment

................................................................................................................................... 64 Risk Assessment

Part V Appendix 7

................................................................................................................................... 71 Ordinance 2010-59

................................................................................................................................... 92 Tree Removal Application

................................................................................................................................... 93 List Of Ordinances

Richmond Tree Removal2


1 ORDINANCE NO. 2010-59 SHOULD BE REJECTED

On February 8th, 2010, a revised Municipal Tree Policy ordinance was introduced. On February22nd, the ordinance was withdrawn. On March 8th, Mr. Samuels introduced an ordinance for theremoval of a healthy tree at public expense.

Ordinance No. 2010-59 should be rejected because:

1. It proposes to by-pass procedural and substantive city requirements.

2. It proposes to pay costs required to be paid by the property owner.

3. It lacks documentation of asserted facts.

4. It fails to demonstrate a need for action.

5. It may set an unwanted precedent.

THE PROPERTY OWNER IS REQUIRED TO SUBMIT AN APPLICATION TO THE CITY AND DEMONSTRATEENTITLEMENT TO RELIEF.

ORDINANCE SUMMARYRequire the removal of an American elm tree by the City's Urban Forestry Division notwithstandingthe current moratorium on the removal of City owned trees in Ordinance No. 2008-239-234; andauthorize the planting of a citizen donated tree in its place. The tree is located in the 100th block ofNorth Plum Street and faces a home at 1432 Floyd Avenue. Require both removal and planting ofthe donated tree within 45 days of passage of the ordinance.

BACKGROUNDThe City arborist has determined that the tree in question is healthy; however, there are reportsthat the root growth of the tree is displacing city-owned sidewalk and has become a hazard topedestrians. There are additional reports that that root system is displacing a privately ownedfence and the foundation of a nearby privately owned house. This has raised concerns of thepossibility of liability to the City if the tree is not removed and/or the potential hazards are notmitigated. A citizen has already paid for a replacement tree through the City's Adopt-A-TreeProgram.

2 Required Procedure

Ordinance 92-231-227 establishes the procedure and standards whereby a property owner mayapply for a permit to remove a tree located on public property.

Ordinance 2008-239 -234 imposed a moratorium on applications for tree removal.

Ordinance 2008-239 -234 specifies four exceptions when an application may be submitted.

Required Procedure 3


2.1 Permit Required For Tree Removal

1. WHEREAS, the City of Richmond recognizes the necessity of providing standards by whichall tree activity must take place within the City on City property.

2. That the establishment of a City of Richmond Municipal Tree Policy is hereby authorizedconcerning the planting, maintenance, and removal of trees on City owned property. The City ofRichmond Municipal Tree Policy shall be as set forth in the document attached to the draft of thisordinance.

3. No person or property owner shall remove a tree from the tree lawn for the purpose ofconstruction, or for any reason, without first filing an application and procuring a permit from theDirector of Recreation and Parks.

4. Citizens are encouraged to participate in tree care, but shall not plant, spray, fertilize,preserve, prune, remove, cut above ground, or otherwise disturb any tree on any street ormunicipal-owned property without first filling out an application and procuring a permit from theDirector of Recreation and Parks and/or his designated authority.

5. Requests for removal of healthy trees for the purpose of property improvement shall bein writing to the Director of Recreation and Parks.

2.2 Moratorium Suspends Applications For Permits

[N]otwithstanding any provisions or laws to the contrary, a moratorium is hereby imposed on theremoval of trees pursuant to the provisions of the City of Richmond Municipal Tree Policy, adoptedby Ordinance No. 92-231-227 on June 23, 1992, concerning the planting, maintenance and removalof trees on City owned property, or otherwise, until such time as the City's Administration makes apresentation to the City Council on the criteria used to determine when tree removal is necessary. 2008-239-234

2.3 Moratorium Allows Applications In Four Situations

1. [T]he moratorium imposed by this ordinance shall only apply to tree removal and shall notapply to tree trimming or tree pruning or if a tree or any part of a tree (i) has died, (ii) is designatedas a hazard to life or property, (iii) is a public nuisance or (iv) otherwise poses a danger to publicsafety or in any way exposes the City to liability if such tree is not removed. 2008-239-234

2. Hazardous Trees shall mean any tree that is determined as structurally unsound due toinsect or disease problems, or unsound root system or trunk.

3. Public nuisance shall mean any tree that produces bad smelling fruit, or seed that attractsinsects considered to be pests.

2.4 Approvals Required For Tree Removal

1. City Arborist is the Municipal Arborist, Forester, or other qualified designated official of theMunicipality of Richmond City, Virginia, assigned to carry out the enforcement of this Ordinance.



2. All permits are subject to approval by the City Arborist.

3. On recommendation of the City Arborist the Director of Recreation and Parks shall issue thepermit provided for herein if, in his/her judgement, the proposed work is desirable and theproposed method and workmanship thereof are of a satisfactory nature.

4. Unless specifically authorized by the City Arborist, no person shall intentionally damage,cut, carve, transplant, or remove any tree;

5. Any removal or retention of a street tree, that is contrary to the City Arborist'srecommendation, shall require approval of The Shade Tree Commission,(if that body isestablished), or the Director of Recreation and Parks.

6. Permits shall be issued the property owner through the Department of Recreation andParks.

2.5 Approval Is Not Automatic

1. The application required herein shall state the number of trees to be set out; the location,grade, species, cultivar or variety of each tree; the method of planting; and such information as theCity Arborist shall find reasonably necessary to a fair determination of whether a permit should beissued.

2. No trees will be removed from public places unless they constitute a hazard to life orproperty, a public nuisance, or because a revision for (sic) planting plans necessitates the action.

3. If just cause can not be provided for the removal of said trees, no permit will be issued.

2.6 Applicant Must Pay Cost Of Removal

All approved removals shall be done at the property owners expense.

2.7 Applicant Must Pay Cost of Replacement

1. Replacement of trees shall be in accordance with the adopted Arborcultural Specifications.Such replacement shall meet the standards of size, grade, species, and placement as provided forin a permit issued by the City Arborist.

2. Replacement of trees shall be at the property owners expense, and must be approved bythe Department of Recreation and Parks.

2.8 Applicant Must Assume Liability

Once a permit is issued the property owner, or the property owners contractor assumes all liabilityrelated to the removal of said trees.

Relevant Facts 5


3 Relevant Facts

3.1 Existing Damage Is Irrelevant

Removal of the tree does not undo any existing damage.

3.2 Future Sidewalk Damage Is Irrelevant

Trees that cause sidewalks to be raised shall be preserved whenever possible and excessive rootpruning that may weaken the tree(s) and make it susceptible to disease is not to be undertaken justto install a cement sidewalk or other improvements. The use of asphalt or other suitable materialshould be substituted for the cement walk.

3.3 Future Fence Damage Is Irrelevant

The owner built the fence next to an existing tree.

The owner knew of the risk and voluntarily exposed himself to the risk.

There is no visual evidence of damage.

Potential future damage is negligible.

3.4 Future Foundation Damage Is Unevidenced

There is no visible exterior damage.

The owner has not produced any evidence of:

1. Risk of future foundation damage.

2. Risk of future damage to the structure.

3. Quality of the foundation design, materials and construction.

4. Lack of other causes such as "street creep."

5. Lack of alternative root control methods.

4 Determination of Facts



4.1 Liability Assessment

The City Attorney should be consulted:

Argument Against Liability. The planning and design of streets and appurtenances is agovernmental function. The city is immune from claims for injury or damage resulting from agovernmental function.

Potential Admission of Liability. Does approval under moratorium exception iv. ("exposes theCity to liability if such tree is not removed") admit liability?

4.2 Precedence Assessment

The City Attorney should be consulted:

This appears to be the first instance of attempting to bypass sections 92-231-227 and 2008-239-234.

Will reliance on the language "exposes the City to liability if such tree is not removed" set anunwanted precedent?

Will other property owners automatically be entitled to tree removal at city expense?

4.3 Building Assessment

The Bureau of Permits and Inspections should be consulted regarding the building condition.

4.4 Risk Assessment

The Department of Finance should be consulted regarding risk analysis:

Assessment Of Risk

1. Probability of occurrence2. Potential severity of loss

Management Of Risk

1. Avoidance - remove tree2. Reduction - control damage3. Sharing - buy insurance4. Retention - accept risk and budget for possible losses

Appendix 7


5 Appendix

5.1 Ordinance 2010-59

INTRODUCED: March 8, 2010 AN ORDINANCE No. 2010-59

To require the Chief Administrative Officer to cause the Director of Public Works to remove anAmerican elm tree located on City-owned right-of-way in the 100 block of North Plum Streetfacing the property known as 1432 Floyd Avenue and to plant a suitable replacement tree in placeof the removed American elm tree within 45 days after the date on which this ordinance isadopted.

Patron - Mr. Samuels Approved as to form and legality by the City Attorney

PUBLIC HEARING: MAR 22 2010 AT 6 P.M.

WHEREAS, by Ordinance No. 2008-239-234, adopted October 27, 2008, as amended byOrdinance No, 2008-312-2009-18, adopted January 26, 2009, the City imposed a moratorium on theremoval of trees pursuant to the provisions of the City of Richmond Municipal Tree Policy,established by Ordinance No. 92-231-227, adopted June 23, 1992, unless a tree or any part of atree (i) has died, (ii) is designated as a hazard to life or property, (iii) is a public nuisance or (iv)otherwise poses a danger to public safety or in any way exposes the City to liability if such tree isnot removed; and

WHEREAS, a City arborist has determined that an American elm tree located on City-owned right-of-way in the 100 block of North Plum Street facing the property known as 1432 FloydAvenue is a healthy tree; and

WHEREAS, the Council Member for the district in which the tree is situated hasreceived reports that the root growth of the tree is displacing a City-owned sidewalk and hasbecome a hazard to pedestrians and that the root system is displacing a privately owned fenceand the foundation of a house on the property known as 1432 Floyd Avenue; and

WHEREAS, a replacement tree has already been paid for through the City's Adopt-A-Tree Program;

WHEREAS, the Council believes that it is in the best interests of the City and its citizensthat this tree be removed and replaced with a new tree as soon as possible notwithstanding theexisting moratorium on tree removal;

NOW, THEREFORE,THE CITY OF RICHMOND HEREBY ORDAINS:

§ 1. That, notwithstanding the provisions of Ordinance No. 2008-239-234, adoptedOctober 27, 2008, as amended by Ordinance No. 2008-312-2009-18, adopted January 26, 2009, orany other law to the contrary, the Chief Administrative Officer shall cause the Department ofPublic Works to remove the American elm tree located on City-owned right-of-way in the 100block of North Plum Street facing the property known as 1432 Floyd Avenue.

§ 2. That the Chief Administrative Officer shall cause the Department of Public Worksto plant a suitable replacement tree in place of the removed American elm tree once theAmerican elm tree has been removed.



§ 3. That the Chief Administrative Officer shall cause the Department of Public Worksto comply fully with sections 1 and 2 of this ordinance no later than 45 days after the date onwhich this ordinance is adopted.§ 4. This ordinance shall be in force and effect upon adoption.

Ordinance/Resolution Request

TO David Seitz, Interim City Attorney THROUGH Daisy E. Weaver, Council Chief of StaffFROM Steven Taylor, Council Policy AnalystCOPY Charles Samuels, 2nd District Councilmember Jan Girardi, 2nd

District LiaisonDATE March 3, 2010PAGE/s 1 of 2TITLE Authorizing the Removal of A City Owned Tree at the 100th block of

North Plum Street and faces a home at 1432 Floyd Avenue andrequiring the planting of a replacement tree.

This is a request for the drafting of an OrdinanceREQUESTING COUNCILMEMBER/PATRON SamuelsSUGGESTED STANDING COMMITTEE Land Use, Housing & TransportationORDINANCE/RESOLUTION SUMMARYRequire the removal of an American elm tree by the City's Urban Forestry Divisionnotwithstanding the current moratorium on the removal of City owned trees in Ordinance No.2008-239-234; and authorize the planting of a citizen donated tree in its place. The tree is located

in the 100th block of North Plum Street and faces a home at 1432 Floyd Avenue. Require both

removal and planting of the donated tree within 45 days of passage of the ordinance.

BACKGROUNDThe City arborist has determined that the tree in question is healthy; however, there are reportsthat the root growth of the tree is displacing city-owned sidewalk and has become a hazard topedestrians. There are additional reports that that root system is displacing a privately ownedfence and the foundation of a nearby privately owned house. This has raised concerns of thepossibility of liability to the City if the tree is not removed and/or the potential hazards are notmitigated. A citizen has already paid for a replacement tree through the City's Adopt-A-TreeProgram.

FISCAL IMPACT STATEMENTFiscal Impact NoBudget Amendment Required NoEstimated Cost or Revenue Impact $ TBDFiscal Summary: Generally it costs the City between $1,500 and $2,700 to remove trees. Cost ofactually planting a replacement tree depends on the size of the tree. A citizen has already paidfor a replacement tree through the Adopt-A-Tree Program.Attachment/s No

Richmond City Council Ordinance/Resolution Request Form/updated 12.22.08/srs

Appendix 9


5.2 Tree Removal Application

Richmond, VA, ________, 20___To: The Department of Public Works, Urban Forestry Division

Submitted By:

________________________, ____________, ______________, ______________ Applicant Phone Fax Email

_______________________________________, ________, ___, ______________ Address City & State Zip Code

I hereby request permission to remove_____ tree(s), at my own expense at the followinglocation:

________________________________________________, Richmond, VA, _____________ Address City & State Zip Code

I deem it necessary to remove said tree(s) for the following reason(s):

___________________________________________________________________

___________________________________________________________________

Attach additional/supporting information if necessary.

The above-described tree removal will be performed by the following tree removal contractor:

______________________________, ____________________, _______________ Company Name Contact Phone

_______________________________________, ________, ___, ______________ Address City & State Zip Code

Tree maintenance contractors must have their insurance company fax a proof on insuranceform directly to the Urban Forestry Division at 646-3087.

The applicant hereby agrees for themselves, their heirs and assigns to indemnify and saveharmless the City of Richmond from any and all damages to persons or property (public orprivate) resulting from the removal of the trees described above.

_______________________________ ________________________ ________ Signature of Applicant Approved By Date

5.3 List Of Ordinances

Introduced Disposition No. Description1992 06 08 1992 06 23 92-231-227 Tree Policy1992 06 08 1992 06 23 92-R136-132 Tree Commission1996 07 22 1996 09 09 96-R118-111 Reduce Commission to 9



2009 09 22 2008 10 27 2008-239-234 Moratorium2008 12 08 2009 01 26 2008-312-2009-18 Deadline for tree removal criteria2009 01 12 2009 01 26 2009-1-19 Urban Forestry to Public Works2008 12 08 2009 03 23 2008-306 stricken (Hazardous Trees; Tree Commission)2009 03 23 2009 06 22 2009-47 stricken (Hazardous Trees; Tree Commission)2010 02 08 2010 02 22 2010-33 withdrawn (Revised Tree Policy)2010 03 08 2010-59 Remove Tree - Plum Street

Endnotes 2... (after index)

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city of richmond, virginia - tree removal - ordinance 2010-59 - comments

Documents

tree removal application

richmond tree removal

healthy tree

donated tree

ordinance summary

cost of removal

american elm tree

removal of city owned