This legislation will elevate tree protection to a level of scrutiny and review roughly equivalent to the amount of effort we put into geotechnical review. Each project will require a survey, and arborist report, an arborist’s review of plans letter, and likely several rounds of back and forth with reviewers to ask for refinement of documentation on the plans, further detailed field investigation to determine the extent and location of key feeder roots, soil conditions, water table, etc. It will create significant cost and time delay associated with each project, and in most cases, it will just be process for the sake of process.
The only provision for the removal of exceptional trees (tier 2 trees) in this legislation is a rule that allows for removal if the basic tree protection areas leave less than 85% of the site available for buildings, access, walkways, utilities, etc. This is a rule that is workable for townhouse developments on low-rise sites that have relatively low lot coverage. However, it is totally unworkable for commercial zones, where the building itself typically covers 80% of the site and the flexibility for how the building is configured is minimal. For these types of sites, tree preservation is almost always incompatible with full development to the zoned capacity. There needs to be a general rule that allows trees to be removed if an applicant can demonstrate that preservation is incompatible with development to the zoned capacity of the site. The current tree regulations have such an exception, but it's been written out of these new regulations. Developers are paying MHA fees for every square foot they build in exchange for the last increment of floor-area. Regulations that deny developers access to that development potential essentially turn MHA fees into a taking.
There will be many instances, particularly in commercial zones, where full development along with preservation of a tier 2 tree might be technically possible but would lead to a bad design. Boards need to have the discretion to allow for tree removal when doing so leads to a building that is more compatible with the design guidelines. Some Tier 2 trees will be exceptional specimen trees, but many of them will be ordinary and otherwise unremarkable. Quite often trees will be designated as Tier 2 because of a low fork in the tree that increases the measure diameter of the tree. There are also a number of trees in the six-to-12-inch diameter range that are designated as Tier 2. We need rules that allow design review boards and planners to make discretionary calls.
The legislation uses two concepts: “Basic tree protection area” is what we use today. This is the area under the tree canopy. This is easy to define. “Tree protection area” is a more nebulous concept that includes the basic tree protection area but can also be expanded up to twice the area of the tree canopy. Mostly the legislation refers to the more nebulous “tree protection area” in determining portions of the site where you cannot build and where construction activities cannot occur. Leaning heavily on this subjective standard will make it difficult for applicants to understand where they can build and where they can't. It will require the preparation of extensive reports on the part of the applicant which the Seattle Department of Construction and Inspections (SDCI) must then evaluate and whose conclusions they may choose to challenge, leading to a difficult and lengthy review process. This is a swamp into which we will sink countless hours of arborist reports, opinion letters, correction cycles, increased costs, and lost housing.
All trees >12” are required to be administered with the same care that we reserve today only for exceptional trees (mostly 30” diameter and larger), and no trees >6” can be removed without a building permit. This is a massive increase in the bureaucratic load that SDCI has to carry. This is a problem for housing developers, but the problem is not just associated with new development. 150,000 homeowners who believe they are entitled to the quiet enjoyment of their own land will wake up to discover that they have a whole new relationship with city government that they will not be happy about, and with good reason.
The inflexibility of these rules and the City’s discretionary role in enforcing and defining a tree protection area is particularly problematic when it comes to off-site trees. It is not uncommon for trees to be planted near property lines and for canopies and root systems to extend from neighboring properties onto a development site. While state law allows for a property owner to limb a neighbor’s tree at the property line, this legislation does not seem to acknowledge any limitation for when a neighboring tree can impinge on the development potential of a neighboring site. Given that the city has the discretion to define a tree protection area as being twice the tree canopy, large portions of a site could be rendered undevelopable by a neighbor’s tree. No remedy for these situations is recognized in the code.
This legislation requires costly processes both in the permitting stage and during the construction process to protect existing trees, but it also allows removal of trees as needed to facilitate development. Most developers and builders will logically conclude that they should remove every tree possible from a site so as to avoid the costs and bureaucratic hassles associated with preserving them. If this legislation were enacted, it is easy to imagine a situation a few years down the road where people will be complaining about developers clear-cutting sites then calling for further restrictions on new development, when in fact the problem is the costs associated with tree preservation.
For the Seattle Department of Construction and Inspections (SDCI), the obvious outcomes from this legislation are likely to be:
A surge in applications for hazardous tree removal, which is now the only way to get rid of a tree outside of new development.
A massive increase in the workload for the SDCI arborist department, leading to a staffing crisis and long delays in permit reviews.
Significantly increased costs for every permit application for survey, arborist reports, detailed exhibits from the architect, numerous correction cycles, increased permit review fees for all the staff time.
Increased time required for permit approval.
Increased disputes between neighbors. As the impact of off-site trees on development sites becomes more significant, the legal landscape becomes murkier, and the stakes become higher.
This proposal includes 48 new pages of rules. The costs, time, and bureaucratic headache created by it are all chasing after incredibly little benefit. Most of the benefits this legislation aims for could be achieved in a two-bullet point memo.
New development should attempt to retain existing trees. Development and construction activities should minimize disturbance of the tree roots underneath the tree canopy.
Where sites cannot be developed to the full zoned capacity while preserving trees, such trees may be removed, equivalent trees must be replanted on-site, or a fee must be paid to plant them off-site.
10. This legislation is all stick; no carrot. The goal of the legislation is to protect existing trees, most of which came into existence simply because people like trees and so they plant them where they can. Instead of trying to leverage our general affinity for trees and encourage the planting of more of them, this legislation proceeds from an assumption that people will cut down trees at the first opportunity they have to do so. The City has an army of people that would be delighted to plant trees on their land, and to help plant them along parking strips and in natural areas. It offers no rewards to the landowners or developers who protect existing trees. On the contrary, it burdens them with page after page of new restrictions on the quiet enjoyment of their land.
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