Chapter 16.08
PROTECTION OF TREES AND VEGETATION
Sections:
16.08.035 City tree protection professional.
16.08.038 Forest practice applications.
16.08.050 Permit required – Applications – Requirements – Processing – Conditions of issuance.
16.08.060 Performance and maintenance bond may be required.
16.08.072 Maintenance requirements.
16.08.075 Heritage trees designated.
16.08.110 Violation – Criminal penalties.
16.08.120 Violation – Civil penalties – Presumption – Other remedies.
16.08.010 Short title.
This chapter shall be known and may be cited as the “tree and vegetation protection ordinance” of the city.
(Ord. O2002-012, Amended, 07/16/2002; Ord. O94-029, Amended, 09/20/1994; Ord. 1190, Added, 05/16/1989)
16.08.020 Purposes.
The regulations are adopted for the following purposes:
A. To promote public health, safety and general welfare of the citizens of Tumwater, and to retain as many existing mature trees as possible, without preventing the reasonable development and maintenance of land;
B. To preserve and enhance the city’s physical and aesthetic character by preventing indiscriminate removal or destruction of trees and ground cover, and by encouraging development that incorporates existing trees and ground cover into site development practices;
C. To retain trees and vegetation for their positive environmental effects including, but not limited to, the protection of wildlife habitat;
D. To promote identification and protection of trees that have historical significance; are unusual due to their size, species, or age; are unusual for their aesthetic quality; or have other values or characteristics that make them worthy of protection;
E. To prevent erosion and reducing the risk of landslides;
F. To protect environmentally sensitive areas;
G. To minimize surface water runoff and diversion. To reduce siltation and other pollution entering city storm sewer systems, other utility improvements, and the city’s rivers, streams, and lakes;
H. To retain trees and ground cover to assist in abatement of noise, to provide wind breaks, and for improvement of air quality;
I. To promote building and site planning practices that are consistent with the city’s natural topographical, soil, and vegetation features and to reduce landscaping costs for new development by utilizing existing trees and ground cover to help fulfill landscaping requirements;
J. To ensure prompt development, restoration and replanting, and effective erosion control of property after land clearing;
K. To promote conservation of energy;
L. To educate the public regarding urban forestry;
M. To implement objectives of the State Environmental Policy Act and Growth Management Act; and
N. To implement and further the city’s comprehensive plan and other related ordinances.
(Ord. O2006-014, Amended, 04/17/2007; Ord. O2002-012, Amended, 07/16/2002; Ord. O2000-012, Amended, 08/01/2000; Ord. O97-029, Amended, 03/17/1998; Ord. O94-029, Amended, 09/29/1994; Ord. 1190, Added, 05/16/1989)
16.08.030 Definitions.
A. “Buildable area” is that portion of a parcel of land wherein a building, parking and other improvements may be located and where construction activity may take place. Buildable area shall not include streams, flood hazard areas, geological hazard areas or wetlands and their buffers as defined in TMC Chapter 18.04. For the purpose of calculating required tree protection open space area, existing and newly dedicated city rights-of-way shall not be included.
B. “City” means the city of Tumwater, Washington.
C. “Code administrator” means the director of the community development department or the director’s designated representative.
D. “Conversion option harvest plan (COHP)” means a voluntary plan developed by the landowner and approved by the Washington State Department of Natural Resources and the city of Tumwater, indicating the limits and types of harvest areas, road locations, and open space. This approved plan, when submitted to the Department of Natural Resources as part of the forest practice application and followed by the landowner, maintains the landowner’s option to convert to a use other than commercial forest product production (releases the landowner from the six-year moratorium on future development).
E. Critical Root Zone or CRZ. Unless determined otherwise by the tree protection professional, the root protection zone for trees means an area contained inside an area on the ground having a radius of one foot for every inch of tree diameter, measured from four and one-half feet above ground level, but in no event shall the root protection zone be less than a six-foot radius.
F. “Drip line” of a tree means an imaginary line on the ground created by the vertical projections of the foliage at its circumference.
G. “Environmentally sensitive area” means any lands with the following characteristics:
1. “Geologically hazardous areas” as defined in TMC Chapter 16.20;
2. Lakes, ponds, stream corridors, and creeks as defined in TMC Chapter 16.32;
3. Identified habitats with which endangered, threatened, or sensitive species have a primary association as defined in TMC Chapter 16.32;
4. Wetlands as defined in TMC Chapter 16.28.
H. “Grading” means excavation, filling, or any combination thereof. Excavation and grading is governed by the International Building Code (IBC).
I. “Greenbelt” means certain designated areas of a project or development that are intended to remain in a natural condition, and/or private permanent open space, or serve as a buffer between properties or developments.
J. “Greenbelt zone” means any area so designated on the official zoning map of the city and subject to the provisions of TMC Chapter 18.30.
K. “Ground cover” means vegetation that is naturally terrestrial excluding noxious or poisonous plants and shall include trees that are less than six inches in diameter measured at four and one-half feet above ground level.
L. “Hazardous tree” means any tree that, due to its health or structural defect, presents a risk to people or property.
M. “Heritage tree(s)” means tree(s) designated by the city and their owners as historical, specimen, rare, or a significant grove of trees.
N. “Historic tree” means any tree designated as an historic object in accordance with the provisions of TMC Chapter 2.62.
O. “Land clearing” or “clearing” means any activity which removes or substantially alters by topping or other methods the vegetative ground cover and/or trees.
P. “Open space” means unoccupied land that is open to the sky and which may or may not contain vegetation and landscaping features, subject to the provisions in TMC 17.04.325 and 17.12.210.
Q. “Parcel” means a tract or plot of land of any size which may or may not be subdivided or improved.
R. “Qualified professional forester” is a professional with academic and field experience that makes them an expert in urban forestry. This may include arborists certified by the International Society of Arboriculture, foresters with a degree in forestry from a Society of American Foresters accredited forestry school, foresters certified by SAF, or urban foresters with a degree in urban forestry. A qualified professional forester must possess the ability to evaluate the health and hazard potential of existing trees, and the ability to prescribe appropriate measures necessary for the preservation of trees during land development. Additionally, the qualified professional forester shall have the necessary training and experience to use and apply the International Society of Arboriculture’s Guide for Plant Appraisal and to successfully provide the necessary expertise relating to management of trees specified in this chapter.
S. “Topping” is the removal of the upper crown of the tree with no consideration of proper cuts as per the current ANSI A300 Standard. Cuts created by topping create unsightly stubs that promote decay within the parent branch and can cause premature mortality of a tree. Topping a tree is considered to be a removal, and may require a tree removal permit.
T. “Tree” means any healthy living woody plant characterized by one or more main stems or trunks and many branches, and having a diameter of six inches or more measured four and one-half feet above ground level. Healthy in the context of this definition shall mean a tree that is rated by a professional with expertise in the field of forestry or arbor culture as fair or better using recognized forestry or arbor cultural practices. If a tree exhibits multiple stems and the split(s) or separation(s) between stems is above grade, then that is considered a single tree. If a tree exhibits multiple stems emerging from grade and there is visible soil separating the stems, then each soil-separated stem is considered an individual tree. Appropriate tree species under six inches may be considered with approval of the city tree protection professional.
U. “Tree plan” is a plan that contains specific information pertaining to the protection, preservation, and planting of trees pursuant to this chapter.
V. “Tree protection open space” is a separate dedicated area of land, specifically set aside for the protection and planting of trees.
W. “Tree protection professional” is a certified professional with academic and field experience that makes him or her a recognized expert in urban tree preservation and management. The tree protection professional shall be either a member of the International Society of Arboriculture or the Society of American Foresters or the Association of Consulting Foresters, and shall have specific experience with urban tree management in the Pacific Northwest. Additionally, the tree protection professional shall have the necessary training and experience to use and apply the International Society of Arboriculture’s Guide for Plant Appraisal and to successfully provide the necessary expertise relating to management of trees specified in this chapter.
(Ord. O2013-017, Amended, 08/19/2014; Ord. O2013-025, Amended, 01/07/2014; Ord. O2011-002, Amended, 03/01/2011; Ord. O2006-014, Amended, 04/17/2007; Ord. O2002-012, Amended, 07/16/2002; Ord. O97-029, Amended, 03/17/1998; Ord. O94-029, Amended, 09/20/1994; Ord. 1311, Amended, 04/07/1992; Ord. 1190, Added, 05/16/1989)
16.08.035 City tree protection professional.
In the city’s interest of achieving professional assistance in the city’s tree protection efforts and achieving consistency in tree protection decisions; the city shall contract with a “city tree protection professional” that qualifies as a tree protection professional under the definition of this chapter. The tree protection professional shall be responsible for providing the information and services required of a tree protection professional described herein.
Individual applicants will be responsible for payment of costs of the tree protection professional for projects necessitating work to be performed by the tree protection professional with the exception that the code administrator may waive payment by the applicant for minor work of the tree protection professional in determining an exempt project; provided however, that the city shall be responsible for billing and collecting costs charged to the applicant and transferring payment to the tree protection professional unless the city has opted for some other mechanism of providing for the costs, such as inclusion of costs in application fees.
(Ord. O2002-012, Amended, 07/16/2002; Ord. O97-029, Added, 03/17/1998)
16.08.038 Forest practice applications.
Pursuant to RCW 76.09.240, requiring local jurisdictions to set standards for and to process class IV forest practice applications, such permits shall be processed as a land clearing permit, and shall meet the requirements of this chapter.
A. The application of this chapter to forest practice activities regulated by the Washington State Forest Practices Act (Chapter 76.09 RCW) shall be limited to:
1. General forest practices.
B. This chapter is intended to allow the city of Tumwater to assume jurisdiction for approval of general forest practices, approvals occurring in the city of Tumwater, as authorized under the Washington State Forest Practices Act, Chapter 76.09 RCW. Until such time as jurisdiction for these permits is transferred to the city by the State Department of Natural Resources, the city will act as the State Environmental Policy Act (SEPA) lead agency for all general forest practice approvals occurring within the city limits. This chapter shall rely upon existing definitions contained within the Washington State Forest Practices Act (Chapter 76.09 RCW), Rules for the Washington State Forest Practices Act (Chapter 222-16 WAC), and the Tumwater Municipal Code.
(Ord. O2006-014, Amended, 04/17/2007; Ord. O2002-012, Added, 07/16/2002)
16.08.040 Tree account.
There is hereby established within the city a “tree account” for the purposes of acquiring, maintaining and preserving wooded areas, and for planting and maintaining trees within the city.
A. Collections and Deposits. All fines collected for violations of this chapter shall be deposited into the tree account. All donations and mitigation fees collected related to the preservation of trees or the enhancement of wooded buffer areas shall also be deposited into the tree account.
B. Maintenance of Account. The tree account shall be maintained by the finance director as a separate, interest-bearing account.
C. Use of Funds. Funds in the tree account shall be used only upon appropriation by the city council. Funds may be withdrawn from the tree account with the approval of the code administrator, and may be used for any purpose consistent with the intent of this chapter. Funds used to plant trees may be used only on city-owned property, or on property upon which the city has been granted an easement for the purpose of establishing or maintaining trees or other vegetation.
(Ord. O2002-012, Amended, 07/16/2002; Ord. O94-029, Added, 09/20/1994)
16.08.050 Permit required – Applications – Requirements – Processing – Conditions of issuance.
A. No person, corporation, or other legal entity not exempt under TMC 16.08.080 shall engage in land clearing or tree removal in the city without having received a land clearing permit.
B. Requirement Established. The application for land clearing permit shall be submitted with any project permit as defined in TMC 14.02.020(O), including single-family and duplex structures unless a land clearing permit was previously reviewed as part of prior project permit. A tree protection plan is required to obtain a land clearing permit and is also required for any land development not exempt under TMC 16.08.080. The tree protection plan shall be developed by a qualified professional forester and be submitted in conjunction with other environmental submittals and site plan development permits. For single-family homes on lots created prior to November 1994, the applicant has the option of using the city tree protection professional to prepare the permit application. This service will be provided at the same hourly rates charged to the city under its contractual arrangement with the tree protection professional.
C. An application for a land clearing permit shall be submitted on a form provided by the city. Accompanying such form shall be a report which includes the following information:
1. General vicinity map;
2. Date, north arrow and scale;
3. Property boundaries, the extent and location of proposed clearing and major physical features of the property (streams, ravines, etc.);
4. Tree Inventory. Drawn to scale on the preliminary or conceptual site plan: a map delineating vegetation types. Each type should include the following information:
a. Average trees and basal area per acre, by species and six-inch diameter class. For nonforested areas, a general description of the vegetation present.
b. Narrative description of the potential for tree preservation for each vegetation type. This should include soils, wind throw potential, insect and disease problems, and approximate distance to existing and proposed targets.
c. Description of any off-site tree or trees, which could be adversely affected by the proposed activity;
5. Tree Protection Plan. Drawn to scale on the site plan, grading and erosion control and landscape plans. It should include the following information:
a. Surveyed locations of perimeters of groves of trees and individual trees to be preserved, adjacent to the proposed limits of the construction. General locations of trees proposed for removal. The critical root zones of trees to be preserved shall be shown on the plans.
b. Limits of construction and existing and proposed grade changes on site.
c. Narrative description, buildable area of the site, and graphic detail of tree protection, and tree maintenance measures required for the preservation of existing trees identified to be preserved.
d. Timeline for clearing, grading and installation of tree protection measures.
e. Final tree protection plan will be drawn to scale on the above described plans and submitted with the final application packet;
6. Tree Replacement Plan. Drawn to scale on the site and landscape plans. The tree replacement plan shall be developed by a licensed Washington landscape architect, Washington certified nursery professional, ISA certified arborist, board certified horticulturist, qualified professional forester or Washington certified landscaper. It should include the following information:
a. Location, size, species and numbers of trees to be planted.
b. Narrative description and detail showing any site preparation, installation and maintenance measure necessary for the long-term survival and health of the trees.
c. Narrative description and detail showing proposed locations of required tree planting, site preparation, installation and maintenance within critical root zones of preserved groups or individual trees.
d. Cost estimate for the purchase, installation and three years’ maintenance of trees;
7. A timeline for implementation and monitoring of the tree protection, and/or replacement plan;
8. A plan indicating how the site will be revegetated and landscaped;
9. A proposed time schedule for land clearing, land restoration, revegetation, landscaping, implementation of erosion controls, and any construction of improvements;
10. Information indicating the method to be followed in erosion control and restoration of land during and immediately following land clearing;
11. A note indicating that the city will have the right of entry upon the subject property for the purpose of performing inspections consistent with the provisions of this chapter;
12. The approved tree protection plan map will be included in contractor’s packet of approved plans used for construction on the project; and
13. Other information as deemed appropriate to this chapter and necessary by the code administrator or city tree protection professional.
D. In addition to the requirements noted in subsection C of this section, on timbered property greater in size than one acre or commercial property with more than fifteen trees, or other sites the city deems necessary because of special circumstances or complexity, the code administrator may require review of the site and proposed plan and submittal of a report by the city’s tree protection professional for compliance with the requirements of this chapter.
Further provided, that the code administrator may modify the submittal requirements of subsections C and D of this section, on individual applications where the information is not needed or is unavailable.
E. Each application shall be submitted with a fee established by resolution of the city council, to help defray the cost of handling the application, no part of which fee is refundable.
F. The code administrator shall notify the applicant whether the application is complete within twenty-eight calendar days of receipt of the application. If incomplete, the code administrator shall indicate in the notice the information required to make the application complete. The code administrator shall approve, approve with conditions or deny the permit within thirty calendar days of receipt of the complete application, or within thirty calendar days of completion of any environmental review, whichever is later. For applications such as site development proposals where there is more than a land clearing permit pending, the code administrator shall, whenever feasible, coordinate reviews, notices and hearings, and act upon the land clearing permit concurrently with other pending permits.
G. Any permit granted under this chapter shall expire eighteen months from the date of issuance, unless said permit is associated with another development permit. If it is associated with another development permit, the restrictions and deadlines of that approval will apply. Upon a written request, a permit not associated with another development permit may be extended by the code administrator for one six-month period. Approved plans shall not be amended without being resubmitted to the city. Minor changes consistent with the original permit intent will not require a new permit fee or full application standards to be followed. The permit may be suspended or revoked by the city because of incorrect information supplied or any violation of the provisions of this chapter.
H. Once issued, the permit shall be posted by the applicant on the site, in a manner so that the permit is visible to the general public.
(Ord. O2017-022, Amended, 12/05/2017; Ord. O2006-014, Amended, 04/17/2007; Ord. O2002-012, Amended, 07/16/2002; Ord. O97-029, Amended, 03/17/1998; Ord. O94-029, Amended, 09/20/1994; Ord. 1190, Added, 05/16/1989)
16.08.060 Performance and maintenance bond may be required.
A. The code administrator may require bonds and bond agreements in such form and amounts as may be deemed necessary to assure that the work shall be completed in accordance with the permit. Bonds, if required, shall be furnished by the applicant or property owner. A bond agreement shall provide assurance that the applicant has sufficient right, title and interest in the property to grant the city all rights set forth in the agreement.
B. In lieu of a bond, the applicant may file assigned funds or an instrument of credit with the city in an amount equal to that which would be required in a bond.
C. The amount of bonds or other assurance instrument shall not exceed the estimated cost of the total restoration, revegetation, planting or landscaping work planned, as determined by the code administrator.
D. The duration of any bond or other required surety shall be not less than three years from the date that said restoration, revegetation, planting or landscaping has been accepted by the code administrator.
(Ord. O2006-014, Amended, 04/17/2007; Ord. O2002-012, Amended, 07/16/2002; Ord. O94-029, Amended, 09/20/1994; Ord. 1190, Added, 05/16/1989)
16.08.070 Standards.
All land clearing not exempt under TMC 16.08.080 shall conform to the approved plan and the following standards and provisions unless alternate procedures that are equal to or superior in achieving the purposes of this chapter are authorized in writing by the code administrator:
A. No land clearing and/or ground surface level changes shall occur in a greenbelt zone as delineated on the official zoning map except as required for uses permitted in that zone. In addition, such land clearing and/or ground surface changes shall be subject to all other applicable standards and regulations;
B. Land clearing in designated greenbelt, open space, tree tract or buffer areas of approved and recorded subdivisions or approved projects which would substantially alter the character or purpose of said greenbelt or buffer areas is prohibited, except in cases involving land clearing plans approved by the code administrator for removal of hazard trees, invasive or noxious plant species and replanting with native plant and tree species;
C. Erosion control measures shall be provided by the applicant’s professional engineer, in conformance with the Drainage Design Erosion Control Manual for the Thurston Region, Washington, as currently written and subsequently amended. The erosion control measures shall be reviewed and subject to approval by the code administrator. The requirement for a professional engineer may be waived by the code administrator on a case-by-case basis;
D. Land clearing shall be accomplished in a manner that will not create or contribute to landslides, accelerated soil creep, settlement and subsidence on the subject property and/or adjoining properties;
E. When land clearing occurs that does not include development, the proposal shall contain provisions for the protection of natural land and water features, vegetation, drainage, retention of native ground cover, and other indigenous features of the site;
F. Land clearing shall be accomplished in a manner that will not create or contribute to flooding, erosion, or increased turbidity, siltation, or other form of pollution in a watercourse;
G. Land clearing in wetlands, and fish and wildlife habitat areas shall be in accordance with the provisions of TMC Chapter 16.28, Wetland Protection Standards, and TMC Chapter 16.32, Fish and Wildlife Habitat Protection;
H. During the months of November, December, and January, no land clearing shall be performed in areas with average slopes of fifteen percent or greater, or any slopes of forty percent or greater;
I. During the months of November, December, and January, no land clearing shall be performed in areas with fine-grained soils and a slope greater than five percent. For the purposes of this section, fine-grained soils shall include any soil associations which are classified in hydrologic soil groups C or D, as mapped in the Thurston County Soil Survey, or as determined by a qualified soil scientist;
J. Land clearing shall be undertaken in such a manner as to preserve and enhance the city’s aesthetic character. The site shall be revegetated and landscaped as soon as practicable, in accordance with the approved revegetation plan. Where the construction schedule does not provide for revegetation of the site prior to October 15 of any year, all disturbed areas shall be hydro seeded or otherwise revegetated on an interim basis. The revegetation plan shall include plantings along public streets and adjoining property boundaries, especially between areas of differing intensities of development. For land clearing permits that are part of a specific development proposal, land use development shall be initiated or a vegetative screen or buffer established within six months of the date of initiation of land clearing activities;
K. Land clearing shall be conducted so as to expose the smallest practical area of soil to erosion for the least possible time, consistent with the construction schedule. Provisions shall be made for interim erosion control measures;
L. Land clearing activities shall be limited to the hours of 7:00 a.m. to 8:00 p.m. on weekdays and 9:00 a.m. to 8:00 p.m. on Saturdays in accordance with TMC Chapter 8.08;
M. Open burning of land clearing debris is prohibited. Slash shall be properly disposed of off site or chipped and applied to the site within six months of the completion of the land clearing. Chipped material deposited on the site shall be spread out or other means used to prevent fire hazard;
N. Any trees to be retained shall be flagged or otherwise marked to make it clear which tree or groups of trees are to be retained;
O. Any trees or groups of trees to be retained shall have temporary fencing installed around the critical root zone. Temporary fencing must be adequate to protect the critical root zone of trees designated for retention. On construction sites where circumstances warrant, the code administrator may require more substantial tree protection fencing, as necessary, to protect intrusion of construction activity into the CRZ areas. Machinery and storage of construction materials shall be kept outside of the CRZ of trees designated for retention. The code administrator may require fencing beyond the CRZ if, in the code administrator’s determination, such additional protection is needed to protect the tree from damage. Trees designated for retention shall not be damaged by scoring, ground surface level changes, compaction of soil, attaching objects to trees, altering drainage or any other activities that may cause damage of roots, trunks, or surrounding ground cover;
P. Any trees designated for retention shall be field verified by the city tree protection professional before land clearing begins;
Q. Not more than thirty percent of the trees on any parcel of land shall be removed within any ten-year period, unless the clearing is accomplished as part of an approved development plan. Such clearing shall be done in such a way as to leave healthy dominant and codominant trees well distributed throughout the site (taking into account the interdependency of the trees) unless, according to the determination of the city tree protection professional, this requirement would conflict with other standards of this section. For every tree removed at least one replacement tree shall be planted. Replacement trees shall consist of seedlings of the same or similar species to those trees removed, which shall be at least two years old. In lieu of this planting of replacement trees, the applicant may contribute a cash payment to the city’s tree account in an amount equal to one hundred twenty-five percent of the retail value replacement cost. The time schedule for the planting of replacement trees shall be specified in the approved plan. If a land clearing permit is applied for as part of a development plan within ten years of clearing under this subsection, all trees removed under this standard will be counted towards required tree retention/replacement when a land clearing permit is issued;
R. When land clearing is performed in conjunction with a specific development proposal not less than twenty percent of the trees, or not less than twelve trees per acre (whichever is greater), shall be retained.
Provided, however, where it can be demonstrated that the trees on a site were planted as part of a commercial Christmas tree farm, then no less than seventeen percent or twelve trees per acre, whichever is less, shall be retained. Commercial tree farm status must be verified by the city tree protection professional.
1. Size, Type and Condition of Retained Trees.
a. For the purpose of calculating tree retention standards, trees twenty-four inches or greater in diameter measured four and one-half feet above ground level shall count as two trees.
b. Species such as willow, cottonwood, poplar and other species, the roots of which are likely to obstruct or injure site improvements, sanitary sewers or other underground utilities, shall not be considered trees for the purpose of calculating tree retention standards if located within the buildable portion of the lot.
c. A tree must meet the following standards in order to be counted for the purpose of meeting tree retention standards:
i. Must have a post-development life expectancy of greater than ten years;
ii. Must have a relatively sound and solid trunk with no extensive decay or significant trunk damage;
iii. Must have no major insect or pathological problems;
iv. Must have no significant crown damage;
v. Should be fully branched and generally proportional in height and breadth for the tree age;
vi. Must be windfirm in their post-development state.
2. These standards may be waived or modified by the code administrator if the applicant provides substantial evidence demonstrating that strict compliance would make reasonable use of the property impracticable for three or more of the following reasons:
a. Removal of the tree or trees is needed to enable use of a solar system. A waiver for this reason must be accompanied by a bond assuring completion of the solar system within the timeframe associated with the underlying building permit issued for the project.
b. The tree retention standard cannot be achieved because of the necessity of complying with applicable zoning and development requirements including, but not limited to, residential densities, open space requirements for active recreation, floor area ratios (FAR), parking requirements, stormwater requirements, street construction requirements, etc.
c. The tree retention standard cannot be achieved because the tree or trees do not have a reasonable chance of survival once the site is developed or modified and may pose a threat to life or property if retained.
d. The applicant has made reasonable efforts to reconfigure or reduce the building footprint(s), site access, on-site utility systems and parking area(s) to avoid impacts to trees on the property.
e. For commercial and industrial land uses, the project pro forma demonstrates that economically viable use of the property cannot be achieved while meeting the tree retention standards in this chapter. This standard is presumed to be met without a pro forma if the area disturbed by development of the property would be less than eighty-five percent of the land.
f. The granting of the waiver or modification will not result in increasing the risk of slope failure, significant erosion or significant increases in surface water flows that cannot be controlled using best management practices.
3. Where the standard is waived or modified, the applicant shall plant not less than three trees for each tree cleared in excess of the standard.
a. These replacement trees shall be at least two inches in diameter measured at a height of six inches above the root collar.
b. Replacement trees shall be planted on the same parcel as the proposed development, unless the code administrator approves of an alternate location.
c. Replacement trees must first be planted in a “tree protection open space.” The tree protection open space shall be comprised of a minimum of five percent of the buildable area for the purpose of retaining existing trees and/or for the planting of replacement trees. Replacement trees in the tree protection open space shall be a mix of native coniferous and deciduous trees. The tree protection open space shall be a contiguous area. The tree protection open space is required to be eighty percent covered by tree canopy after fifteen years utilizing retained and/or replacement trees. Approved trees and their CRZ area within a critical area buffer may count for up to fifty percent of the required tree protection open space. Stormwater facilities can be considered as part of the tree protection open space if trees can be retained and/or planted successfully and not disable the operating functions of the facility.
d. If more replacement trees are required than necessary to meet the canopy requirement in the tree protection open space, then these trees (either native and/or nonnative species) can be planted elsewhere on the parcel(s).
e. If the city tree protection professional determines that more replacement trees are required than can be planted in the tree protection open space and the rest of the parcel, then the applicant shall contribute a cash payment to the city’s tree account in an amount determined by the current city fee resolution.
4. In situations where a parcel of land to be developed does not meet the retention standards above in an undeveloped state, the applicant shall be required to reforest the site to meet the applicable standard outlined above at a 1:1 ratio as a condition of project approval.
5. In determining which trees shall be given the highest priority for retention, the following criteria shall be used:
a. Heritage or historic trees;
b. Trees which are unusual due to their size, age or rarity;
c. Trees in environmentally sensitive areas;
d. Trees that act as a buffer to separate incompatible land uses;
e. Trees which shelter other trees from strong winds that could otherwise cause them to blow down;
f. Trees within greenbelts, open space, tree protection open space or buffers;
g. Trees with significant habitat value as identified by a qualified wildlife biologist or by the city tree protection professional; and
h. Trees which are part of a continuous canopy or which are mutually dependent, as identified by a qualified professional forester or the city tree protection professional;
S. In addition to the provisions of this chapter, the cutting or clearing of historic trees requires the issuance of a certificate of appropriateness in accordance with TMC Chapter 2.62.
(Ord. O2013-017, Amended, 08/19/2014; Ord. O2006-014, Amended, 04/17/2007; Ord. O2002-012, Amended, 07/16/2002; Ord. O97-029, Amended, 03/17/1998; Ord. O94-029, Added, 09/20/1994)
16.08.072 Maintenance requirements.
A. Maintenance Requirement. Trees are to be maintained in a vigorous and healthy condition, free from diseases, pests and weeds. Trees which become diseased, severely damaged or which die shall be removed by the owner as soon as possible but no later than sixty days after notification by the city. As it pertains to this section, all replacement trees that die shall be replaced with healthy trees of the same size and species as required by the approved tree protection plan for the property. If retained trees die due to construction damage or negligence on the part of the applicant, the city tree protection professional shall determine the appraised landscape value of the dead trees, and the applicant shall plant the equivalent value of trees back onto the site. In the event that space is not available for the required replacement trees (as determined by the city tree protection professional), the equivalent value shall be paid into the tree fund.
B. For areas dedicated as tree protection open space areas, street trees and single-family residential land divisions, the maintenance requirement of this section shall be in effect for three years from the date the final plat is approved or the trees are planted. The tree plan shall be a condition of approval and identified on the face of the plat. The applicant shall also execute a covenant in a form agreeable to the city, which shall require the applicant and his successors to comply with the maintenance requirement of this section. The covenant shall obligate both the property owner and the homeowner’s association and shall be recorded with the county auditor. The recording fee shall be paid by the applicant.
C. For multifamily residential, commercial, and industrial developments, the maintenance requirement for all trees covered by the tree plan shall apply in perpetuity. The applicant shall execute a covenant in a form agreeable to the city, which shall require that the applicant and his successors comply with the maintenance requirement imposed by this section. The covenant shall be binding on successor property owners and owners’ associations. The covenant shall be recorded with the county auditor and the recording fee shall be paid by the applicant.
D. Maintenance Agreement. Each development to which the maintenance requirement for this chapter applies and that contain a heritage tree(s) shall also be subject to a maintenance agreement. The code administrator shall require the applicant to execute a maintenance agreement with the city, in a form acceptable to the city attorney, which shall include the provisions of the maintenance requirement in this chapter, to ensure the survival and proper care of any heritage trees identified in the tree plan.
E. Failure to Maintain. Retained trees, replacement trees and street trees as per the requirements of this chapter and/or TMC Chapter 18.47, Landscaping, shall be maintained according to the American National Standards Institute, current edition of the American National Standards, ANSI A300. Failure to regularly maintain the trees as required in this section shall constitute a violation of this chapter and, if applicable, the plat covenant.
(Ord. O2006-014, Added, 04/17/2007)
16.08.075 Heritage trees designated.
A. Trees can be nominated for designation by citizens, the Tumwater tree board, or city staff.
1. Application for heritage tree designation must be submitted to the community development department. The application must include a short description of the trees, including address or location, and landowner’s name and phone number. The application must be signed by both the landowner and nominator.
2. The tree board reviews the application and makes a recommendation to the city council.
3. All heritage trees will be added to city tree inventory and public works maps.
B. Trees that are designated as heritage trees shall be classified as follows:
1. Historical – A tree which by virtue of its age, its association with or contribution to a historical structure or district, or its association with a noted citizen or historical event.
2. Specimen – Age, size, health, and quality factors combine to qualify the tree as unique among the species in Tumwater and Washington State.
3. Rare – One or very few of a kind, or is unusual in some form of growth or species.
4. Significant Grove – Outstanding rows or groups of trees that impact the city’s landscape.
C. The city will provide an evaluation and recommendation for tree health and care and will provide up to one inspection annually upon request of the landowner. The city may, at its discretion, provide a plaque listing the owner’s name and/or tree species/location.
D. Heritage Tree Removal.
1. A tree removal permit is required for removal of any heritage tree(s).
2. The city tree protection professional shall evaluate any heritage trees prior to a decision on the removal permit. Recommendations for care, other than removal, will be considered.
3. Dead or hazardous trees are exempt from a tree removal permit after verification by the city tree protection professional.
E. Heritage Tree Declassification. Any heritage tree may, at any time, be removed from heritage tree status at the request of the landowner after providing two weeks’ written notice to the community development department. Unless an agreement can be reached to preserve the tree, the tree will be removed from the heritage tree inventory list and the plaque, if any, will be removed.
(Amended during 2011 reformat; O2006-014, Amended, 04/17/2007; Ord. O2002-012, Amended, 07/16/2002; Ord. O2000-012, Added, 07/18/2000)
16.08.080 Exemptions.
The following shall be exempt from the provisions of this chapter; provided however, the code administrator may require reasonable documentation verifying circumstances associated with any proposal to remove trees under any of the following exemptions:
A. Land clearing in emergency situations involving immediate danger to life or property. For every tree cleared under this exemption, at least one replacement tree shall be planted. Except for the number of trees, replacement trees shall conform to the standard for replacement trees described in TMC 16.08.070(R);
B. Land clearing associated with routine maintenance by utility companies such as the power company and telephone company. Utility companies shall notify the community development department at least two weeks prior to the start of work and shall follow appropriate vegetation management practices;
C. Land clearing performed within any public right-of-way or any public easement, when such work is performed by a public agency and the work relates to the installation of utilities and transportation facilities (such as streets, sidewalks and bike paths). To the greatest extent possible, all such work shall conform to the standards set forth in this chapter;
D. Land clearing within ten feet (when required for construction) of the perimeter of the single-family or duplex dwellings and associated driveways or septic systems must be indicated on the plot plan submitted to the building official with an application for a building permit. This exemption does not apply to land clearing located within environmentally sensitive areas, or to areas subject to the provisions of the shoreline master program;
E. Clearing of dead, diseased, or hazardous trees, after verification by the city tree protection professional. For every tree cleared under this exemption, at least one replacement tree shall be planted. Except for the number of trees, replacement trees shall conform to the standard for replacement trees described in TMC 16.08.070(R);
F. Clearing of trees that act as obstructions at intersections in accordance with the municipal code;
G. The removal of not more than six trees from any parcel of land in three consecutive calendar years. This exemption does not apply to heritage or historic trees, or to trees located in a greenbelt or greenbelt zone, or in wetlands or critical areas and their buffers or to tree topping. A letter of “waiver” for the exempt removals must be obtained from the community development department prior to tree removal;
H. Land clearing associated with tree farming operations specifically preempted by Chapter 76.09 RCW, Washington Forest Practices Act; provided, that a harvesting and reforestation plan is submitted to the code administrator prior to any land clearing;
I. Clearing of noxious ground cover for the purposes of utility maintenance, landscaping, or gardening. This exemption applies solely to ground cover, for protected trees clearing must conform to subsection G of this section;
J. Clearing of trees that obstruct or impede the operation of air traffic or air operations at the Olympia Airport. The tree replacement standards of this chapter must be met. Trees should be replanted outside the air operations area;
K. Clearing of not more than six trees every three consecutive calendar years on developed properties, when such clearing is necessary to allow for the proper functioning of a solar-powered energy system. Such clearing may be done only after verification of the need to clear the trees, issuance of a waiver letter, and the issuance of a building permit for such a system by the code administrator.
(Amended during 2011 reformat; O2006-014, Amended, 04/17/2007; Ord. O2002-012, Amended, 07/16/2002; Ord. O97-029, Amended, 03/17/1998; Ord. O94-029, Amended, 09/20/1994; Ord. 1311, Amended, 04/07/1992; Ord. 1190, Added, 05/16/1989)
16.08.090 Alternative plans.
Required tree mitigation must conform to the standards contained in this chapter unless alternate plans that are equal to or superior in achieving the purposes of this chapter are authorized in writing by the code administrator. The code administrator may modify or waive the requirements of this chapter only after consideration of a written request for any of the following reasons:
A. Special circumstances relating to the size, shape, topography or physical conditions, location, or surroundings of the subject property, or to provide it with use rights and privileges permitted to other properties in the vicinity and zone in which it is located;
B. Improvement as required without modification or waiver would not function properly or safely or would not be advantageous or harmonious to the neighborhood or city as a whole;
C. The proposed modification would result in an increased retention of mature trees and/or naturally occurring vegetation on the site;
D. The proposed modification represents a superior result than that which could be achieved by strictly following the requirements of this chapter, the proposed modification complies with the stated purpose of TMC 16.08.020 and the proposed modification will not violate any city of Tumwater codes or ordinances.
Any modifications under this chapter shall be as limited as possible to achieve the aim of relating required mitigation for tree protection to the impacts caused by the individual development.
(Ord. O2006-014, Amended, 04/17/2007; Ord. O2002-012, Amended, 07/16/2002; Ord. 1190, Added, 05/16/1989)
16.08.100 Appeal procedure.
Any person aggrieved by a decision or an action of the code administrator in the enforcement or implementation of this chapter may, within fourteen calendar days of such decision or action, file a written appeal to the hearing examiner. Any decision of the hearing examiner may be appealed to the Thurston County superior court in accordance with the provisions of TMC Chapter 2.58.
(Ord. O2017-022, Amended, 12/05/2017; Ord. O2006-014, Amended, 04/17/2007; Ord. O2002-012, Amended, 07/16/2002; Ord. O94-029, Amended, 09/20/1994; Ord. 1259, Amended, 11/06/1990; Ord. 1190, Added, 05/16/1989)
16.08.110 Violation – Criminal penalties.
A. Any person who violates the provisions of this chapter or fails to comply with any of the requirements shall be guilty of a misdemeanor and subject to the penalties set forth in TMC 1.12.010. In keeping with the city’s concern regarding protection of the environment, the court should consider the imposition of minimum fines of no less than $1,000 per occurrence. Each day such violation continues shall be considered a separate, distinct offense. In cases involving land clearing in violation of this chapter, the clearing of any area up to the first acre shall be considered one offense, and the clearing of each additional acre and of any additional fractional portion that does not equal one more acre shall each be considered a separate and distinct offense.
B. Any person who commits, participates in, assists or maintains such violation may be found guilty of a separate offense and suffer the penalties as set forth in subsection A of this section.
C. In addition to the penalties set forth in subsections A and B of this section, any violation of the provisions of this chapter is declared to be a public nuisance and may be abated through proceedings for injunctive or similar relief in superior court or other court of competent jurisdiction.
D. Upon determination that a violation of the provisions of this chapter has occurred, the building official shall withhold issuance of building permits for the affected property until corrective action is taken by the responsible party. However, if mitigating circumstances exist and reasonable commitments for corrective action are made, the building official may issue building permits. Such corrective action may include:
1. Restoration and replanting of surface vegetation with plant material similar in character and extent as existed prior to the unauthorized clearing;
2. Implementation of drainage and erosion control measures;
3. Replanting of trees equal in value to those lost through unauthorized clearing. The value of the trees removed shall be determined by the city’s tree protection professional using landscape tree appraisal methodology published in the current edition of the International Society of Arboriculture’s Guide for Plant Appraisal.
(Ord. O2002-012, Amended, 07/16/2002; Ord. O97-029, Amended, 03/17/1998; Ord. O94-029, Amended, 09/20/1994; Ord. 1311, Amended, 04/07/1992; Ord. 1190, Added, 05/16/1989)
16.08.120 Violation – Civil penalties – Presumption – Other remedies.
A. As a supplement or alternative to the remedies set forth in TMC 16.08.110, the code administrator shall have the authority to seek civil penalties for violation of the provisions of this chapter.
Any person, corporation, partnership or other entity being the owner of real property or holder of timber rights upon such property who violates the provision of this chapter or fails to comply with any of its requirements shall upon a proper showing be deemed to have committed a class 1 civil infraction as defined by TMC 1.10.120(D)(1). Civil liability shall also attach to others who violate the provisions of this chapter, whether or not such violation occurs at the direction of the owners or holder of timber rights.
As provided by law, the Tumwater municipal court is hereby vested with jurisdiction to hear civil infraction cases under this chapter. Said cases shall be heard by the court without jury and upon a finding that the infraction has been committed by a preponderance of the evidence.
The code administrator shall have the authority to charge as a separate violation each such tree removed or destroyed.
B. Presumption. For purposes of administration and prosecution of alleged violations of this chapter, there is hereby created a rebuttable presumption that the person whose name appears on tax records of the Thurston County assessor, with respect to the real property in question, has responsibility for ensuring that violations of provisions of this chapter do not occur on the property in question.
C. In addition to the penalties set forth in this chapter, any violation of the provisions of this chapter is declared to be a public nuisance and may be abated through proceedings for injunctive or similar relief in superior court or other court of competent jurisdiction.
D. Upon determination that a violation of the provisions of this chapter has occurred, the building official shall withhold issuance of building permits for their affected property until corrective action is taken by the responsible party. However, if mitigating circumstances exist and reasonable commitments for corrective action are made, the building official may issue building permits. Such corrective action may include:
1. Restoration of surface vegetation with plant material similar in character and extent as existed prior to the unauthorized clearing;
2. Implementation of drainage and erosion control measures;
3. Replanting of trees equal in value to those lost through unauthorized clearing. The value of the trees removed shall be determined by the city’s tree protection professional using landscape tree appraisal methodology published in the current edition of the International Society of Arboriculture’s Guide for Plant Appraisal.
(Amended during 2011 reformat; O2002-012, Amended, 07/16/2002; Ord. O97-029, Amended, 03/17/1998; Ord. O94-029, Added, 09/20/1994)