Report to/Rapport au :
Planning Committee
Comité de l'urbanisme
and Council / et au Conseil
25 October 2011 /
le 25 octobre 2011
Submitted by/Soumis
par : Nancy Schepers, Deputy City
Manager,
Directrice
municipale adjointe, Infrastructure
Services and Community Sustainability, Services
d'infrastructure et Viabilité des collectivités
Contact
Person/Personne-ressource : Richard Kilstrom, Manager/Gestionnaire,
Policy Development and Urban Design/Élaboration de la
politique et conception urbaine, Planning and Growth Management/Urbanisme et
Gestion de la croissance Élaboration de la politique et conception urbaine
(613) 580-2424 x22653, Richard.Kilstrom@ottawa.ca
Orleans (1), Innes (2), Barrhaven (3), Kanata North/ Kanata-Nord (4),
Stittsville (6), Bay/Baie (7), College/Collège (8), Knoxdale-Merivale (9),
Gloucester-Southgate (10), Beaconhill-Cyrville (11) Rideau-Vanier (12),
Rideau-Rockcliffe (13), Somerset (14), Kitchissippi (15) River/Rivière (16),
Capital/Capitale (17), Alta Vista (18), Gloucester-South
Nepean/Gloucester-Nepean-Sud (22), Kanata South/Kanata Sud (23) Ref N°: ACS2011-ICS-PGM-0216
|
SUBJECT: |
Two Year Review of the urban Tree conservation by‑law |
|
OBJET : |
Examen du Règlement municipal
sur la conservation des arbres urbains deux ans après son adoption |
Background
On
June 24, 2009, Council enacted the Urban Tree Conservation By-law 2009-200
which regulates tree cutting on private property within the urban area of
Ottawa. The Urban Tree Conservation By‑law (UTCB) requires a
City-approved Tree Conservation Report (TCR) to remove trees 10 centimeters
in diameter or greater on properties greater than one hectare in size.
On
properties one hectare or less, it requires a tree permit to remove distinctive
trees, which are trees 50 centimeters in diameter or greater.
The
by-law was enacted to apply to all species of trees on all privately-owned
properties within the urban area of the city, as defined by the Official Plan.
It also includes a small part of Ottawa’s rural area in the City’s east end
between the urban boundary and Ted Kelly Lane, known as Schedule R 37 or
Area 11 in the recent discussions on urban expansion. The decision to apply the
by-law to this part of the rural area was moved and approved on the floor of
Council at the passing of this by-law. It was raised in response to concerns
about tree clearing in urban expansion areas.
On
October 12, 2011, Council approved an amendment to the UTCB extending the
application of the by-law to the parcels of land recommended by staff to be
added to the urban area under OPA 76. As such, the UTCB now applies not only to
the urban area of Ottawa but also to the staff-proposed urban expansion areas.
The
Planning and Growth Management Department implements Part II of the UTCB
pertaining to properties greater than one hectare in size through the development
review process; it came into effect upon enactment on June 24, 2009. The City’s
Forestry Services Branch implements Part III of the UTCB pertaining to
distinctive trees on properties one hectare or less; it came into effect on
September 1, 2009.
In
the staff report on the UTCB tabled at Council in June 2009, staff indicated
that, at the time, no additional staff resources were required to implement the
by-law, but that the demand for service would be assessed through
implementation, and that staff would report back to Committee/Council as
necessary with respect to any resource issues.
The
June 2009 staff report on the UTCB included the requirement for a $50
distinctive tree permit fee. The decision to include a $50 fee was deferred
through a motion at the Council meeting because there was concern that a permit
fee may discourage property owners from complying with the intent of the
by-law. The deferral motion directed staff to report back by the end of Q1 in
2012 on how well the by-law is working and to include an analysis of the
requirement for a permit fee at that time.
At
the Council meeting on June 24, 2009, in the motion directing staff to apply
the provisions of the UTCB to the above-mentioned portion of the rural area,
staff was also directed to report to Agriculture and Rural Affairs Committee (ARAC)
in fall 2009 on extending the provisions of the by-law to include lands within one kilometer
of the urban boundary. Staff prepared a preliminary report in late 2009 on this
topic, but it was deferred based on other more pressing priorities at the time
and has not been revived since.
DISCUSSION
This report
will:
1.
Explain how
the by-law has been working over the last two years, including an assessment of
resource issues and a proposal for further changes to the by-law.;
2.
Provide an
assessment of the $50 distinctive tree permit application fee requirement; and
3.
Address the
idea of applying the provisions of the by-law to the area within one kilometre
of the urban boundary.
Properties Greater than one hectare
Part II of
the by-law, pertaining to properties greater than one hectare in size, is
implemented by the Forester in the Planning and Growth Management Department.
For new developments, the by-law is implemented through the review and approval
of Tree TCR submitted with Site Plan Control applications or applications for
Plans of Subdivision as part of the City’s development review process. The
majority of these require a Tree Permit signed by the General Manager before
any tree removal can occur on site. For properties that are already developed
but that are greater than one hectare in size (i.e. condominiums,
commercial, and institutional properties), the by-law is implemented through
the review of scoped TCRs that are submitted directly to the Planning Forester
for approval. Since the by-law came into effect just over two years ago, the
Planning Forester has reviewed TCRs for 119 new development applications and 96
developed properties (condominiums, commercial, and institutional). So far in
2011, 65 reports have been reviewed and there are 14 more outstanding
applications for review. The Planning Forester receives between 170 and 210
calls each month related to the UTCB.
The
majority of new developments require the removal of trees to make way for the
proposed development and therefore most of these 119 reviews resulted in the
issuance of a tree permit to remove trees. However, for these new developments,
the City was presented with the opportunity to comment on and discuss tree
retention in advance of the trees being cleared. In almost all cases, more
trees were retained in these new developments than would have been prior to the
enactment of the UTCB. Staff are seeing an increase in tree retention in new
developments on school blocks, within parks, within the rear yards of
properties that back on to natural features, and generally along the edges of
new developments.
Most
applications require considerable negotiations and discussion prior to a tree
permit being issued. Site Plan approvals can take more than three or four
months in total and applications for Subdivisions can be active for a year or
more. As a result, the Planning Forester
may have 40+ files active at any given time. There are over 25 development
review Planners, four Parks Planners, and close to 20 engineers responsible for
the review of the same files. Currently, the turnaround time for comments from
the Planning Forester on an application or a revised application is approximately
four to six weeks due to the high workload. With the appropriate level of
resources, this would ideally be two to three weeks. The increased time to
receive tree-related comments can cause a delay in the development approvals
process, hence compromising service excellence within the Planning and Growth
Management Department. Many developers have indicated frustration with the
turnaround time for tree-related comments.
The
Planning Forester’s workload makes it difficult to conduct site visits, meaning
that there is an increased reliance on the information provided by the
consultant and on the assessment of aerial photographs. There have been several
situations where it has been discovered too late in the process that the
information provided by the consultant within the TCR was not entirely accurate,
and opportunities for tree retention have been lost as a result. Another
implication of the high workload is that it is increasingly difficult to
investigate tree cutting incidents in a timely or complete manner. This means
that some tree cutting incidents have the potential to pass under the radar
with no charges or discussion of required compensation.
For
developed properties, particularly for condominium properties, the TCRs outline
required tree maintenance activities, for example the removal of dead, dying
and diseased trees. It is clear that the UTCB is having little to no impact on
the number of trees that are being retained and/or removed on condominium
properties. Each TCR reviewed for condominium properties results in the
issuance of a tree permit. The review of these TCRs is relatively quick in
comparison with the review of TCRs associated with new developments. On
average, application review and tree permit issuance for developed properties
is 30 minutes to an hour. The majority of the staff time spent on TCR review
and Tree Permit issuance for developed properties is administrative in nature;
making files, preparing the permit, faxing and mailing the permit, phoning the
applicant, and processing the permit fee.
Distinctive Tree Permits
Part III of
the by-law, pertaining to Distinctive Trees on properties one hectare or less
that are not subject to a development application, is implemented by a Forestry
Inspector in the City’s Forestry Services Branch through the review of arborist
reports and the issuance of Distinctive Tree Permits. The majority of the tree
permit applications received under this part of the by-law are for residential
properties. Since the by-law came into effect Forestry Services has received
2150 inquiries related to Distinctive
Trees and has issued 732 permits; approximately one third of the calls received
result in the issuance of a Distinctive Tree Permit. This part of the by-law
has played an important role in educating the public on the importance of trees
in our urban environment through either tree retention, tree protection during
construction and/or tree replacement.
Issues Encountered and Proposed Solutions
In the
first two years of implementing the UTCB, two main issues have been
encountered: 1) overly demanding requirements for tree permits on condominium
properties greater than one hectare, and 2) a lack of adequate staff resources
to review TCRs within a timely manner.
Condominium
Properties
Most
condominium properties in Ottawa are generally on sites larger than one hectare
in size and, as such, the provisions of Part II of the UTCB apply, despite the
fact that they are residential properties. Condominium managers are required to
submit a TCR for the removal of any tree on their property and given the
increased level of tree cover on condo properties, this is an onerous task for
what is essentially the general and required maintenance of these properties.
Since the
intention of the by-law was to regulate the cutting of distinctive trees within
existing neighbourhoods, staff proposes a by-law amendment to exempt registered
condominium properties from the provisions of Part II of the by-law and instead
apply the provisions of Part III to these properties. Over the past two years,
staff has concluded that the majority of condominium properties share the
objective of maintaining their existing tree canopy and tree removals are
generally only done because of tree decline or public safety considerations.
The proposed by-law change ensures that the original intention of the UTCB is
met by requiring a permit to remove distinctive trees on these properties,
rather than requiring a full TCR for the removal of any tree. In addition, this
change will result in a slight reduction in the workload for the Forester in
the Planning and Growth Management Department by removing the review of 40 to 50
smaller files each year. It will download a portion of that UTCB workflow to
the Forestry Services Department that implements the distinctive tree portion
of the by-law. However, the workload would be reduced because permits would be
required for distinctive trees only, rather than all trees, and there are
generally fewer large sized than smaller trees across the city. Document 1 of
this report outlines the proposed amendment to the UTCB. When this report is
approved, the by-law will be amended and included within the by-law list of
Council’s agenda in the near future.
Additional
Resources Required
The
original intention for the Planning Forester position was that the workload be
balanced between development review and other policy work. Given the
unexpectedly high workload associated with implementing Part II of the UTCB,
this has not been possible. Examples of work that cannot be currently completed
include: development of a Forest Strategy; forest/community management plans
for the City’s Urban Natural Features and Natural Environment Areas; a wrap up
of the City’s South March Highlands Conservation Forest Management Plan; input
into Community Development Plans; the review of Official Plan amendments,
Zoning By-law amendments, and Committee of Adjustment applications with
tree-related issues; and other relevant policy work. In addition, it has been
necessary to temporarily allocate 25 per cent of the time of two full-time
employees in Natural Systems to assist with the implementation of the UTCB.
This puts a strain on other important policy initiatives the Natural Systems
group is trying to complete and may compromise the timelines of other projects.
One
additional full-time employee to assist in the review of the TCRs for
properties greater than one hectare in size will;
It was
difficult to assess the staff resources required to implement the UTCB when it
was first proposed in June 2009. Now, after two years of implementation, it is
clear that one staff member is not sufficient to implement the Part II of the
by-law for properties greater than one hectare in size. In order to meet
service delivery timelines for the development review process and other
Forester responsibilities, one additional full-time employee is required to
assist in the implementation of the UTCB within Planning and Growth Management.
A request for an additional Forester
position is included in the 2012 budget.
The
presence of the emerald ash borer (EAB) in Ottawa has resulted in an increase
in requests for Tree Permits to remove infected ash trees on both large and
small properties within the urban area. It is expected that this increase in
Tree Permit requests will continue as the EAB expands across the city and will
level off once the high density ash areas have been affected. If the structural
integrity of a tree has been compromised as a result of an EAB infestation, it
would be considered a hazardous tree and be exempt from the UTCB as per Section
25(f) which exempts trees that are an immediate threat to public health and
safety.
Distinctive Tree Permit Application
Fee
In
the 2009 staff report outlining the need for an UTCB, the staff-proposed by-law
included a $50 fee for the Distinctive Tree Permit. The decision to include a
$50 permit fee was deferred through a motion at Council because there was concern
that a permit fee may discourage property owners from complying with the intent
of the by-law. The fee was originally proposed because most of the
municipalities in Ontario that have tree by-laws for private property have
included a permit fee and in most cases the permit fee is significantly higher
than $50. Given the anticipated public reaction to the by-law in general in
Ottawa, it was felt that a higher fee would garner increased negative
attention, in turn creating unnecessary backlash against the by-law in the form
of reduced compliance. The by-law does cost the property owners as they are
required to hire an arborist to complete and arborist report which can cost
anywhere from $50 to $125. In addition, a fee that would provide cost recovery
to implement the Distinctive Tree portion of the by-law would have to be
upwards of $300 or more. Currently, compliance with the provisions of the
by-law is good and the climate surrounding increased regulations on private
land has not changed in Ottawa. Therefore, staff does not recommend the
introduction of a Distinctive Tree Permit fee at this time. Staff will continue
to assess the need for a permit fee and will report back to Council, if
necessary, with a request to impose such a fee.
Addressing Tree Clearing Related to
Urban Expansion
As
a result of concern for tree clearing in areas where urban expansion is
anticipated, Council passed a motion in June 2009 directing staff to report to
ARAC that fall on extending the provisions of the by-law to include lands
within one kilometer of the urban boundary that have environmental designations
in the Official Plan. Staff prepared an information report for ARAC on the
topic in late 2009, but it was deferred and never tabled because of other
priorities at the time. This fall Council approved an amendment to the UTCB to
extend the application of the provisions of the by-law to the parcels of land
recommended by staff to be added to the urban area in regards to the appeal of
OPA 76. Possible urban expansion areas are considered to be at highest risk for
pre-development tree clearing. Now that the UTCB applies to these areas in the
interim, prior to the required Official Plan amendment, the risk of tree
clearing has been mitigated.
There
has always been and still is very little appetite within the rural area for
increased regulations on private land, particularly associated to tree cutting.
It is staff’s position that since the areas on the urban fringe that are at
highest risk for tree clearing are now covered by the UTCB, the further
extension of the UTCB into the rural area should not be pursued at this time.
Staff will continue to assess the need for extension of the provisions of the
UTCB into the rural area and will report back as required with any proposed
amendments to the by-law.
Summary
The
UTCB has been in effect now for just over two years. It appears as though
compliance with the by-law is quite high, but this is difficult to assess and
measure. There have been a handful of UTCB contraventions for which City staff
has been made aware. The City is currently in the midst of hearings for the
first two charges under the by-law; one for tree clearing on a development
property greater than one hectare in size without an approved TCR or Tree
Permit and one for the removal of a Distinctive Tree without a Distinctive Tree
Permit.
This
report proposes changes to the UTCB 2009-200 (as outlined in Document 1) and shows
the need for the addition of one full-time employee to assist in the
implementation of the by-law. Both will improve the efficiency of the
implementation of the UTCB, in turn improving service for the City’s
development review process.
There are no immediate rural
implications as a result of the recommendations of this report.
There has been no broad public consultation or notification on this matter. Notice of this report has been posted on the City’s website and people with an interest in this topic will be notified of the date and time of this meeting and their ability to provide the committee with feedback.
The information in this report was discussed at the October 24, 2011 meeting of the Ottawa Forest and Greenspace Advisory Committee (OFGAC). OFGAC is in support of the Urban Tree Conservation By-law.
Informal discussions with members of the development community, condominium managers, and arborists indicate that all these groups are in general agreement with the information outlined in this report.
Comments by the Ward Councillor(s)
N/A
LEGAL
IMPLICATIONS
There are no legal impediments to implementing the recommendation of this report. Section 135 of the Municipal Act, 2001 provides that a municipality may prohibit or regulate the destruction or injuring of trees.
RISK MANAGEMENT IMPLICATIONS
There are no risk implications.
There are no direct financial implications associated with this report.
Environmental
Implications
The UTCB 2009-200 supports the
conservation of trees in the urban area and has an overall positive impact on
Ottawa’s air quality, water quality, energy use, stormwater retention
capacities, and climate change mitigation, as well as the liveability of
Ottawa’s neighbourhoods. The
by-law applies to privately-owned land, which contains most of the trees in the
urban area (75 per cent), and targets areas with the greatest tree coverage and
the trees with the greatest environmental benefits.
About one-third of the tree cover on privately-owned land is on vacant
land and land slated for future development.
The first component of the by-law enables the City to consider tree
conservation opportunities on these lands before development occurs. The by-law also protects large, mature trees
on small lots because when trees reach maturity and their canopies are the
largest, they are able to produce their greatest environmental benefits. The
larger the tree, the greater its capacity to sequester and store carbon and
particulate matter from the air. In new developments in Ottawa, the planting of
large trees is restricted in those areas containing marine clay soil, thereby
emphasizing the importance of preserving existing mature trees.
The recommendations of this report will
improve the efficiency and effectiveness of the implementation of the by-law, which,
in turn, will maintain high levels of compliance with the by-law while
providing all the above-noted environmental benefits.
The Official Plan outlines the requirement
for land to be developed in a manner that is environmentally sensitive and
incorporates design with nature principles; the UTCB is one of the only tools
within the urban area to implement this. In addition, the Official Plan has a
target of reaching and maintaining 30 per cent forest cover for the entire
city. The UTCB contributes to this target by making residents think twice
before removing large trees on their property within the urban area and by
ensuring that tree retention opportunities are assessed and implemented in new
developments prior to the trees being removed. Without appropriate resources to
implement the UTCB in a timely manner, there is a risk that compliance will
lower and tree retention opportunities will be lost.
Technology
Implications
There
are no technology implications.
City
Strategic Plan
Planning and Growth Management – Manage growth and create sustainable communities by evaluating the impact of policy and development decisions on communities.
Document 1 Proposed Changes to the Urban Tree Conservation By-law 2009-200
Legal
Services, in consultation with Planning and Growth Management, By-law and
Regulatory Services and the Forestry Services Brach, will process the by-law
with the changes outlined in Document 1 to Council for enactment.
Planning
and Growth Management will provide for any necessary notification to the public
and internally to staff.
Proposed Changes to the Urban
Tree Conservation By-law 2009-200 DOCUMENT
1
Recommended Amendment
to Urban Tree Conservation By-law 2009-200
Purpose: To exempt condominium properties from the provisions of Part II of the UTCB and to instead apply the provisions of Part III.
Method:
1. Add the following to Section 4, “SCOPE”, of Part II;
Part II
SCOPE
4A. Despite Section 4, the provisions of this Part shall not
apply to condominiums on properties greater than one hectare.
2. Change the wording of Section 14, “SCOPE”, of Part III as follows;
Part III
SCOPE
14. This Part applies to distinctive trees on properties one hectare or less in area and on condominium properties greater than one hectare in area within the urban area of the City.
3. Add a definition of “condominium” to Part I under DEFINITIONS as follows;
“condominium” means a corporation created upon registration of a declaration and description under the provisions of the Condominium Act, 1998.