1. AMENDMENT TO THE MUNICiPAL TREES AND NATURAL AREAS PROTECTION BY-LAW 2006-279

MODIFICATION au règlement 2006-279 sur la protection des arbres et des espaces naturels municipaux

COMMITTEE RECOMMENDATIONS

That Council amend the Municipal Trees and Natural Areas Protection By-law (By-law No. 2006-279, as amended), by:

1. Adding a new subsection 11(c), substantially in the form that follows, to allow the removal of City trees that are or are likely to cause serious damage to private property:

“(c) a tree that is causing, or likely to cause in the future, serious damage to private property where other mitigation measures are unlikely to prevent future damage”; and

2. Replacing the definition of “Director” with the current position title of the General Manager, Public Works.

RECOMMANDATIONS DU COMITÉ

Que le Comité de l’environnement recommande au Conseil de modifier le Règlement sur la protection des arbres et des espaces naturels municipaux (Règlement n^o 2006-279, modifié) en :

1. ajoutant un nouveau paragraphe 11(c), essentiellement dans la forme qui suit, afin de permettre l’enlèvement d’arbres de la Ville qui causent ou sont susceptible de causer des dommages graves aux propriétés privées :

« (c) un arbre qui cause, ou est susceptible de causer à l’avenir, de graves dommages à une propriété privée quand d’autres mesures ne permettront pas d’empêcher des dommages futurs » ;

2. remplaçant la définition de « Directeur » et le titre par le titre actuel de directeur général, Travaux publics.

DOCUMENTATION :

1. Deputy City Manager, City Operations and City Clerk and Solicitor’s report dated 10 January 2012(ACS2012-COS-PWS-0001);

2. Extract of Draft Minute 17 January 2012.

Report to/Rapport au:

Environment Committee/

Comité d’environnement

and Council / et au Conseil

January 10, 2012 / le 10 janvier 2012

Submitted by/Soumis par:

Steve Kanellakos, Deputy City Manager/Directeur municipal adjoint, City Operations/Opérations municipales

Rick O’Connor, City Clerk and Solicitor/Greffier municipal et Chef du contentieux

Contact Person/Personne ressource : John Manconi, General Manager

Public Works/Travaux publics

(613) 580-2424 x 21110, John.Manconi@ottawa.ca

City Wide/à l'échelle de la Ville

Ref N°: ACS2012-COS-PWS-0001

SUBJECT:	AMENDMENT TO THE MUNICiPAL TREES AND NATURAL AREAS PROTECTION BY-LAW 2006-279

OBJET :	MODIFICATION au règlement 2006-279 sur la protection des arbres et des espaces naturels municipaux

REPORT RECOMMENDATIONS

That the Environment Committee recommend that City Council amend the Municipal Trees and Natural Areas Protection By-law (By-law No. 2006-279, as amended), by:

3. Adding a new subsection 11(c), substantially in the form that follows, to allow the removal of City trees that are or are likely to cause serious damage to private property:

“(c) a tree that is causing, or likely to cause in the future, serious damage to private property where other mitigation measures are unlikely to prevent future damage”; and

4. Replacing the definition of “Director” with the current position title of the General Manager, Public Works.

RECOMMANDATIONS DU RAPPORT

Que le Comité de l’environnement recommande au Conseil de modifier le Règlement sur la protection des arbres et des espaces naturels municipaux (Règlement n^o 2006-279, modifié) en :

3. ajoutant un nouveau paragraphe 11(c), essentiellement dans la forme qui suit, afin de permettre l’enlèvement d’arbres de la Ville qui causent ou sont susceptible de causer des dommages graves aux propriétés privées :

« (c) un arbre qui cause, ou est susceptible de causer à l’avenir, de graves dommages à une propriété privée quand d’autres mesures ne permettront pas d’empêcher des dommages futurs » ;

4. remplaçant la définition de « Directeur » et le titre par le titre actuel de directeur général, Travaux publics.

BACKGROUND

At its meeting of May 10^th, 2010, the Planning and Environment Committee passed the following motion:

THEREFORE BE IT RESOLVED THAT the Planning and Environment Committee direct the City Forester and City Clerk and Solicitor, jointly and in consultation with the City’s Forest and Greenspace Advisory Committee, to conduct a comprehensive review of By-Law 2006-279 to ensure that it strikes the appropriate balance between promoting the environmental stewardship values reflected in the City’s Forest Strategy while respecting the rights of other property owners and to report back to the Committee by the end of May 2011 with any recommended by-law amendments.

The motion followed City Council’s direction on April 14^th, 2010, that the City Clerk and Solicitor abandon the appeal of the Ontario Superior Court ruling in Guinan v. City of Ottawa. That case was the first to be decided after Council’s enactment of the Municipal Trees and Natural Areas Protection By-law, which emphasized the protection of the City’s trees and limited staff’s discretion to remove trees thought to be causing foundation and other types of property damage. A more detailed review of the decision is set out later in this report.

In accordance with the Committee’s direction, staff has reviewed the Municipal Trees and Natural Areas Protection By-law 2006-279 in light of the court decision in Guinan. This report outlines the rationale for the proposed amendment of the By-law to provide greater flexibility to staff to undertake the removal of a City tree that is causing serious damage to private property.

Municipal Trees and Natural Areas Protection By-law 2006-279

At amalgamation, the City of Ottawa’s policy regarding the cutting of City trees provided a fairly broad discretion to staff to remove a tree thought to be causing damage to private property. This was a continuance of a policy of the former City of Ottawa, which was put in place in 1997. In keeping with that policy, staff was permitted to remove a City tree that was causing foundation damage to an adjoining property, even if the tree was otherwise healthy.

On February 23^rd, 2005, City Council passed a motion calling for a moratorium on the removal of any more trees until the Planning and Environment Committee was able to receive the results of a policy review, planned to be completed in June 2005: a copy of the motion is attached as Document No. 1. This direction was partly in response to concerns expressed by the City’s Local Architectural Conservation Advisory Committee which opposed the cutting down of two mature maple trees within the Centretown Heritage Conservation District in April – May 2004.

The planned review was concluded and considered in a report entitled: “Trees and Foundation Strategy in Areas of Sensitive Marine Clay in the City of Ottawa”: (ACS2005-PWS-SOP-0006). This report was approved by the Planning and Environment Committee and City Council on September 27^th, 2005, and October 12^th, 2005, respectively. This Strategy included a revised, Four Phase Assessment Process for cases of alleged foundation damage due to the presence of City trees. In essence, it emphasized that, even in such cases, “the trees will be retained in recognition of the significance of the City’s urban forest and its contribution to the quality of life in the City of Ottawa and the City will implement [the] arboriculture mitigation measures” outlined in the report. A copy of the full report is set out in Document No. 2.

On June 13^th, 2006, the Planning and Environment Committee considered a staff report outlining the issues associated with the conservation of the City’s urban forest, as well as a draft harmonized by-law for the new City: (ACS2006-PWS-SOP-0004). This report is attached as Document No. 3.

On July 12^th, 2006, City Council enacted the Municipal Trees and Natural Areas Protection By-law, which came into effect on September 1^st, 2006. In keeping with the earlier Trees and Foundation Strategy adopted by City Council in October 2005, the new harmonized by-law provided for a much more restrictive authority in staff to effect the removal of City trees. Notably, Section 11 of the By-law provided only two circumstances in which staff was authorized to cut down a City tree:

11. The Director may approve the removal by the City of,

(a) a dead tree; or,

(b) a dangerous, diseased, dying, decayed or broken tree from municipal property.

As a result of this change, staff was no longer able to remove a healthy tree thought to be causing damage to an adjoining property. In response to questions raised during the Committee’s consideration of the item, particularly as to whether the term “dangerous” would also encompass “a tree breaking into a foundation”, staff indicated that this determination would be made through a process including geotechnical surveys and assessments by independent engineers.

Guinan v. Ottawa

Following the adoption of the more restrictive removal authority, the City faced a number of legal claims for damage allegedly caused by City trees. The Municipal Trees and Natural Areas Protection By-law, as well as the Trees and Foundation Strategy, themselves became the focus of litigation in the case of Guinan v. City of Ottawa. Launched in 2007, this claim alleged that a City tree had caused serious damage to the plaintiffs’ foundation and sought a contractor to remove the tree. However, in light of the restrictions imposed by the By-law not to remove a healthy tree, Legal Services was unable to conclude a settlement of the case within its delegated authority. Therefore, during an in camera briefing of the Planning and Environment Committee on May 13^th, 2008, staff provided its opinion of the case and sought direction from the Committee. As such, a motion directing staff to settle the matter by removing the tree located at the property was put forward but was defeated. As a result of the direction given, the claim proceeded to trial in December 2009 and July 2010.

Despite the various arguments put forward by the City with respect to its Four Phase Assessment Process for dealing with trees and Leda clay, the Ontario Superior Court of Justice decided on February 26^th, 2010, that the City was liable for the foundation damage and ordered that the tree be removed. The court rejected the notion that the City’s Municipal Trees and Natural Areas Protection By-Law, as a clear policy decision by Council, served to insulate the City from claims for damage caused by its trees:

The public interest in maintaining the urban forest in general and mature City street trees is an important consideration, but in my view given the significant defect caused by this tree the public interest ought not to outweigh the common law rights of the Plaintiffs where damages have been found to be an inadequate remedy. Although a mandatory order to remove the tree is a drastic remedy not be granted without considerable thought, in these circumstances it is warranted.

The fact that the City took reasonable steps to minimize the damage through its ongoing watering and pruning program is not a defence. Nor is it a defence that the Plaintiffs built their home knowing the silver maple was in front of their property.

In light of the significance of the decision, the City Clerk and Solicitor filed a Notice of Appeal so as to preserve the City’s right to ask the Ontario Court of Appeal to review the trial decision and to provide guidance for future cases. However, on April 14^th, 2010, City Council received an in camera briefing from Legal Services staff and then directed that the appeal be abandoned in open session.

In light of the April 2010 direction, and recognizing the cost of litigating property damage claims stemming from City trees, it is appropriate that the City move away from the more restrictive policy approach adopted in 2005 and 2006. Given the City’s inability to guarantee that mitigation efforts will be 100% effective in preventing a City tree from causing further damage to property where a claim has arisen, a greater discretion in staff to effect the removal of such a tree may help to limit the necessity of litigating damage claims, particularly where adjoining property owners are seeking orders for the removal of a City tree.

In order to strike an appropriate balance, consideration must also be given to the City’s overall forest strategy.

City’s Forest Strategy

The City’s Forest Strategy is well described in the “Trees and Foundation Strategy in Areas of Sensitive Marine Clay in the City of Ottawa” cited above and attached as Document No. 2. Most notably, the Strategy recognizes the social and environmental importance of trees to the City landscape, as well as Ottawa’s uniquely characteristic blend of urban, suburban and rural areas. Given their importance, the City’s Forest Strategy emphasizes that removal of a tree thought to be causing property damage is a measure of last resort, with a clear preference for comprehensive mitigation measures to limit the impact of mature trees on adjoining properties. As noted in the 2005 report, these mitigation efforts can include: lifecycle pruning; root pruning and barriers; and, watering programs.

The Forest Strategy’s emphasis on preserving the City’s urban, suburban and rural forests must be recognized as part of a revised approach to dealing with property damage claims arising out of the presence of City trees.

DISCUSSION

Further to the Planning and Environment Committee’s May 2010 direction, staff of the Forestry Services Branch, in consultation with the City Clerk and Solicitor Department, conducted a review of By-Law 2006-279, being the Municipal Trees and Natural Areas Protection By-Law. The review took into account the Ontario Superior Court ruling in the Guinan as well as the guidance offered by the judge in that case. Ultimately, staff concluded the need to strike an appropriate balance between promoting the environmental values reflected in the City’s Forest Strategy and the common law rights of adjacent property owners.

While municipalities in Ontario have the statutory right to enact policies and/or by-laws prohibiting or regulating the destruction and preservation of trees, such authority does not shield a municipality from the potential liability in the event that a tree creates a nuisance to an individual’s property. Therefore, based on the ruling of the Ontario Superior Court that the existing by-law does not insulate the City from damage claims, and in view of other recent claims for compensation based on foundation damage, it is apparent that the City needs to adopt a more flexible approach to the investigation and resolution of instances where City trees may be causing serious damage to adjoining property.

The limitation on staff’s discretion to effect the removal of a healthy tree causing damage to an adjoining property had the effect of pitting the City against residents in litigation, increasing the City’s legal costs and exposing the City to greater liability. The existing restrictions in the By-law, which permit the removal of trees where there are “dead” or “diseased” limit the City’s ability to mitigate the damage that may be caused to a nearby home by a healthy tree. As a result, the City is potentially faced with significant damage claims which can only be resolved through court proceedings. Therefore, City staff is proposing a revised approach that would allow the General Manager of Public Works, in consultation with the City Clerk and Solicitor, to remove or permit the removal of an otherwise healthy tree that is causing damage to a nearby home or building, or is likely to do so in the future.

The Four Phases Assessment Process approved in 2006 will continue to be an appropriate and effective tool to evaluate the site in question. This assessment process provides staff with detailed information related to the properties of the soil, which can facilitate the evaluation of the specific contribution of the tree to any claimed damage. Any decision to remove the tree would be based on the results of a complete analysis of the file and in consultation with the Office of the City Clerk and Solicitor with respect to any legal implications. This greater flexibility will permit staff to address claims in a more balanced way, giving them an ability to mitigate the damage being caused by a City tree. Such an approach should serve to minimize the value of claims against the City and reduce the need to incur legal and other related expenses in respect of tree claims.

The City’s trees form an important and distinctive feature of its landscape. They provide many benefits to daily lives and they contribute to the social, cultural, environmental, economic and aesthetic well being of the community. Given those benefits, it is understood that the removal of a healthy tree is a measure of last resort and will be used as a mitigation strategy only in cases of serious damage. Forestry Services staff will also continue to educate the public on the issue surrounding sensitive marine clay (Leda clay) and how it interacts with buildings and structures, how all the factors interact with one another and how they can take steps themselves, such as watering their tree or engineering solutions to avoid future problems.

ENVIRONMENTAL IMPLICATIONS

The proposed change to the by-law has minimal impact on the City’s Official Plan goal of increasing the City’s forest cover. The potential loss of trees in this process is expected to be minimal and will be compensated by replanting trees through one of the City’s existing tree planting programs. The location of the tree may differ from its original site, but efforts will be made to replant the tree within the neighbourhood where it is best suited, with low water demand species that will not cause further damage to properties.

RURAL IMPLICATIONS

The City of Ottawa’s surficial geology information shows a few sensitive marine clay areas in the rural portion of the City. There have been a very limited number of requests for reviews in the rural area and the impact of the proposed amendment to the by-law would be minimal.

CONSULTATION

As this report was at the direction of City Council, public consultation was not undertaken. Internal consultation has been made with City Clerk and Solicitor in the preparation of this report.

Forestry Services staff has consulted with the Ottawa Forest and Greenspace Advisory Committee through the regular monthly meetings. To date, the Committee has provided a written submission and comments on how to modify the development in new areas, and a review of different species that could be planted in Ottawa for consideration. These items are being reviewed by Planning and Growth Management Department as part of a further study of future development lands and the impact sensitive soils have on the design of the community.

COMMENTS BY THE WARD COUNCILLOR(S)

This is a City-wide report.

LEGAL IMPLICATIONS

The implementation of changes to the Municipal Trees and Natural Areas Protection By-Law which would allow for the removal of trees causing serious damage to adjoining properties should serve to limit the number of claims made against the City, as well as the legal costs associated with litigating these claims in the courts. Though no amendment is likely to eliminate these altogether, a more flexible approach provides a greater possibility that claims can be resolved earlier in the process, which is in keeping with the City’s preference for negotiated settlements over protracted litigation.

RISK MANAGEMENT IMPLICATION

The risk implications have been identified and explained in the report and are being managed by the appropriate City staff.

CITY STRATEGIC PLAN

The importance of protecting and increasing the City's forest cover, protecting our urban and rural natural heritage and the concept of sustainability and environmental protection outlined in the City's Official Plan form Forestry Services' mandate. These objectives are further achieved through the Environmental Stewardship Strategic Priorities (ES2 - Enhance and protect natural systems) as approved as part of the term of Council Strategic Priorities, as well as the City's Strategic Plan under a Sustainable, Healthy and Active City Priority (Objective 3: Expand the amount of City-owned green space in Ottawa).

The proposed amendment to the by-law has minimal impact on these goals. To mitigate the impact of the potential loss of trees as part of the review process, trees will be replanted through one of the City's Tree Planting programs.

TECHNICAL IMPLICATIONS

There are no technical implications to implementing the recommendations in this report.

FINANCIAL IMPLICATIONS

Any tree removals undertaken as a result of this By-Law would be covered by the existing Forestry Services Operating Budget.

ACCESSIBILITY IMPLICATIONS

There are no direct implications associated with the implementation of the report recommendation.

SUPPORTING DOCUMENTATION

Document 1 - February 23, 2005 City Council Motion

Document 2 - Trees and Foundations Strategy in Areas of Sensitive Marine Clay in the City of

Ottawa ACS2005-PWS-SOP-0006

Document 3 - Harmonization – Municipal Trees and Natural Areas Protection By-Law

ACS2006-PWS-SOP-0004

DISPOSITION

Upon approval, the Public Works Department, Forestry Services Branch, together with the City Clerk and Solicitor Department, will prepare and process the required amending by-law for enactment by Council.

SUBJECT:

OBJET :

BACKGROUND

DISCUSSION

SUPPORTING DOCUMENTATION

REPORT RECOMMENDATIONS: