As described in The Birth of Portland’s Tree Code, Title 11 drafters acknowledged its imperfections and hoped its flaws would be corrected in the near future. With few exceptions, its shortcomings have not been remedied. Nine years since the tree code was adopted, in 2011, here are some of the main fixes that sources in and outside of City bureaus have tagged as code weak points. We also discuss several related problems and obstacles to preserving Portland’s healthy, large-form trees including the City’s competing priorities, and its weak channels for neighbors to meaningfully influence most decisions about trees in nearby development projects.
A plethora of tree code reforms are required if Portland’s leaders wish to take a firmer hand in meeting the City’s canopy goals in an era of climate crisis and environmental inequity. Preserving and growing our canopy is not a luxury. It is a necessity for meeting climate and equity challenges.
High on the list are Title 11 loopholes that Commissioner Fritz referred to in her February 7, 2020 interview with Trees for Life Oregon. Note that, on the good-news front, after much public pressure, on November 12, 2020, the City Council approved code amendments that eliminate the exemption from tree code requirements for most industrial zones (the Council left intact the exemption for Heavy Industrial zones) and commercial zones; it also approved the amendment to reduce the diameter threshhold that triggers inch-for-inch mitigation fees for developers who cut trees down from 36 inches to 20 inches.
But other code shortcomings abound.
The Less-than-5,000-Square-Foot-Lot Exemption
One of the biggest holes is the tree preservation exemption for development on lots that are smaller than 5,000 square feet, according to a source at the Bureau of Development Services (BDS), citing an issue raised by neighbors of such sites. Originally, code drafters pegged that threshold at 3,000 square feet. Due to pressure from developers, the lot size cut-off was raised to balance City goals for trees and development. Portland has many lots that are smaller than 5,000 square feet.
Here’s the thing. Developers can buy a property that’s 5,000 square feet or larger, then engage in what’s called lot confirmation to reestablish two or more lots that are less than 5,000 square feet. How so? Underlying many areas of Portland are lots that, when first platted years ago, were much smaller, say 25 or 30 feet wide, while other areas were platted at a more standard 50 feet. When originally developed, these smaller lots would often get grouped together in twos or threes, with one house built on them. Typically, developers today may buy the house, tear it down, and because they’ve reconfirmed the historic lot lines, build two new houses on what is now two plots. Because those lot lines are already there, developers needn’t apply for a land division, which, says a BDS source, requires a time-consuming review and, relatively speaking, more stringent tree requirements. A state law in effect as of March 1, 2020 allows at least one residential unit on all residential platted lots, which will reinforce this trend.
Some of the reconfirmed lots contain large trees. Neighbors who contact the City with their concern about loss of these trees can get “pretty frustrated” when learning that tree preservation requirements don’t apply to newly confirmed lots less than 5,000 square feet, says a City source.
Addressing this and other exemptions will be a priority of community stakeholders for the next Title 11 update.
Competing Priorities: The Affordable Housing Issue
Pressure on the City to provide more affordable housing for Portland residents while heeding builders’ cost concerns has led to certain affordable housing projects being exempt from the tree code. An argument has long been made that preserving trees adds to housing costs, though others have made a strong case that trees versus new housing is a false dichotomy. Trees are an equity issue. Is it fair that residents of affordable housing should not have access to the well-documented health benefits that nearby large trees provide? If preserving trees on these sites does sometimes increase cost, maybe the City and developers should start to view that cost as a worthy long-term investment in the well-being of families who will be living in affordable housing.
“There are some real and perceived conflicts between housing prices and trees,” observes Roberta Jortner, now retired, who was senior environmental planner at the Bureau of Planning and Sustainability and managed the City of Portland’s tree code creation process. She is concerned when she hears about trees being pitted against affordable housing, as both are needed and should be integrated. (It can be done. Read here where Habitat for Humanity has built with trees in mind.) It would be useful for tree and affordable housing advocates to be talking about this, she feels.
To the Home Builders Association of Metropolitan Portland, whose members include for-profit and nonprofit developers, the City’s tree code is already too punitive and fees-based (the group would prefer a mitigation system revolving more around compensatory planting than fees.) According to HBA’s Ezra Hammer, vice president for policy and government affairs, “It is disingenuous for the City to pretend that it doesn’t have competing priorities” around affordable housing and trees. Preserving trees on small infill or “skinny” lots can be especially challenging. Due to City setback rules, there’s little wiggle room on where to place a house. If a tree lies where the house has to be, the City charges the developer to remove the tree, he says. The City shouldn’t be “penalizing people for putting housing on sites zoned for housing. In infill situations, the City should own its decision to zone for residential uses and say, ‘we’re going to plant trees in other places, but here, we want housing.’”
Increased building costs get passed on to home buyers. Pricing, Hammer says, is very sensitive for lower income people buying small starter homes through the City’s Homebuyer Opportunity Limited Tax Exemption (HOLTE) program, set up by the City to incentivize builders to construct homes for people making less than the area medium income. Both nonprofit and for-profit builders participate in HOLTE. The cost of complying with the City’s tree regulations can kick new homes out of the program, says Hammer.
City officials may not gracefully mediate the competing forces around affordable housing and tree preservation, but they are aware of vying priorities.
Commissioner Fritz is not optimistic about reversing the affordable housing tree exemptions. “That’s not a battle that’s winnable at this time,” she said, because the first issue for several current Commissioners is housing costs. All that can be done there, she said, is to focus on street trees, which are required on affordable housing sites.
Trees for Life Oregon would like the City to do better than this for its disadvantaged residents.
Urban Forestry’s Desired Code Changes
The City bureaus involved with Title 11 maintain long lists of needed code fixes. Urban Forestry, which handles non-development tree code situations--the Bureau of Development Services focuses on development sites—has such a list. Urban Forestry staff love trees and are closest to understanding what’s wrong with the current tree code.
It’s useful to look at a priority list of Urban Forestry-desired code changes, dated November 2018, which City Forester Jenn Cairo shared with Trees for Life Oregon. This list contains desired repairs that are familiar to residents who are following Title 11, as well as some that may not be. Seven of the eight issues listed as “Inconsistent within code or not working as intended” remain unresolved:
--Ability to place liens to recapture unpaid tree fees and fines. The current tree code does not give direct authority for Urban Forestry to collect fees via property liens—an oversight when the code was written, according to Urban Forestry’s Nik Desai. BDS enforces the regulations for private property, though recapturing unpaid fees through liens can take time, according to BDS’s Emily Sandy.
--Mitigation for removing healthy street trees in development is set at a maximum of two trees for every one tree removed. The maximum is set too low to meaningfully replace large trees.
--Developers of projects costing less than the non-conforming upgrade valuation, currently about $150,000, can remove two-thirds of healthy trees (as well as all less than 12” DBH, dead, dying, dangerous, and nuisance species) on site and not replant anything.
--By-right removal of trees less than 10 feet from a building. Some of these trees could be preserved, if required to be; there’s also the issue of small, make-shift structures being thrown up to avoid having to save a tree or pay a fee for removing it. In addition, only tree-for-tree mitigation is required for removing a tree within 10 feet of a structure, no matter how large the tree is.
--Tree size calculation for tree density currently values fast-growing species over slow-growing species. Yet the wood of slow-growing species such as some oaks is dense and therefore more stable and better able to survive wind and storms than the wood of fast-growing species.
--Trees adjacent to a development site can be affected when their roots are removed by development.
--Nuisance trees. Trees on the City’s nuisance list are exempt from all tree preservation requirements in development, according to Urban Forestry’s Nik Desai. In non-development situations on private land, these trees are automatically approved for removal with greatly reduced mitigation—1:1 instead of up to inch for inch. These species pose a threat to native ecosystems. Yet some of them benefit the urban forest—think Norway maples lining our parks, for instance. Removing large nuisance trees without any mitigation leads to a significant loss of environmental services, with no replacement, says Desai.
Importantly, below are two more problems that Urban Forestry has identified, listed under “Working as per code, however, possibly [causing] significant canopy issues.” Both were addressed, though only in part, by the 2020 code amendments:
--Tree preservation during development on private property. This refers to the lack of preservation and to play-or-pay mitigation fees. These fees could be much higher, or the code could substitute required preservation and do away with the pay option.
--Exemptions from tree preservation standards for private property development in Heavy Industrial zones, on lots less than 5,000 square feet, and on lots with existing or proposed building coverage of more than 85 percent. These exemptions leave an awful lot of Portland trees unprotected.
Limited Ability for Public Input into Tree Removal from Development Sites
In small development situations, say a new house going up in a Southeast residential area, a developer who plans to take out a tree that is 36 inches diameter or greater is required to post a notice to that effect on site and to notify the neighborhood association. In theory, neighbors can work with the builder to save the tree. But that rarely happens. And from a regulatory standpoint, there’s nothing nearby residents can do to make the developer preserve the tree as long as he is following code, says BDS’s Emily Sandy.
By the time the public realizes that one or more large trees in their neighborhood is slated to be removed by a developer, it’s pretty much already too late to alter the outcome. The only way for neighbors to weigh in very early on a project is by making it their business to constantly check Portland Maps for permits developers are applying for in their area.
In theory, public input on tree removal can have more influence on development projects that require BDS’s discretionary review, says BDS’s Sandy. Such review is triggered by land division, “conditional use” like a church or school or commercial use in a residential zone, environmental zones, design review (required mostly in the central city and Gateway), greenway (along the Willamette River), Johnson Creek Basin, and “plan districts.” During these reviews written public notice goes out to neighborhood associations and residents. Concerned neighbors can talk about the situation directly with BDS staff. In land division, which neighbors are most likely to notice when large new housing developments are about to be built, the public can potentially influence BDS staff decisions, says Sandy, if they can link their concerns directly to the “approval criteria” in Title 33, which governs land division. What won’t work is simply saying “I want that tree saved.”
Issues to be Tackled In and Outside the Tree Code
Trees compete for space with so many things—buildings, sidewalks, utility lines, telephone poles, bioswales. Street trees are supposed to be planted every 25 feet in development projects but are not, says a former City staff person—not because of the tree code but because of these contending elements. Despite their importance for meeting climate change, trees continue to be low on the hierarchy relative to right-of-way items like sidewalks.
The Portland Bureau of Transportation regulates sidewalks, and no doubt for safety, liability, and simplicity reasons likes them to be broad and straight. On development sites sidewalks are required to be six feet wide, which often leaves insufficient room for planting strips deep enough to accommodate large-form street trees. As for reserving enough room for existing large-species trees on private development property next to sidewalks, Trees for Life Oregon has documented the challenges PBOT creates for developers who wish to preserve a large tree by bumping out a sidewalk.
Giving wider berth to large-species trees or space for large-species trees in the right-of-way is an ecological necessity if Portland is to expand its canopy. And the City could require that developers bump out sidewalks to preserve adjacent valuable large-species trees. Such a requirement would be in keeping with City’s green infrastructure goals, but would necessitate a shift in thinking at the City and bureau levels.
Another issue is that it’s hard for the City to tell homeowners what they can and can’t plant on their private property. In non-development situations, homeowners who take down a bigleaf maple in their yard are not required to replace that large-form tree with a species that will reach the same size at maturity. Big trees are often replaced by small-form ornamentals such as dogwoods or cherries, which are short-lived and much less environmentally valuable to the broader community than large-form trees. In development situations, according to Urban Forestry’s Nik Desai, density planting requirements provide incentives for planting large-form trees. But developers “constantly opt to plant a large number of small trees instead of a small number of large trees.”
Right-of-way curbside planting strips are not private property. Relatively speaking, it would be easier for the City to regulate street trees than yard trees. But the tree code does not require a homeowner replacing or planting a street tree to go with the largest form tree on the City’s approved-street-tree list for that spot. The result is underplanted planting strips all over the city, a problem documented by Portland’s street tree inventory. The inventory found that only one-fifth of Portland’s street trees are large-form varieties, and that nearly 18,000 planting strips deep enough to hold large-form trees remain unplanted. Absent regulation and enforcement, how do we get more of the public to want large trees in both their private-property yards and right-of-way planting strips?
A major consideration in developing the City’s approved street tree list, according to Desai, “was to ensure that we were not underplanting sites.” Thus, larger form trees are on the list for planting sites that can accommodate them. But more public education and stewardship events like the City’s Yard Tree Giveaway, which provides large-form, native and evergreens to eligible property owners, are sorely needed.
Lingering Obstacles to a Tougher Tree Code
Urban Forestry, which implements the non-development parts of Title 11--meaning where no new building or renovation affecting the ground is involved--is under Portland Parks and Recreation. That bureau has been facing budget issues for some time.
Commissioner Fritz, who was in charge of Parks and Recreation from 2013 to 2018, told Trees for Life Oregon there was never a designated funding stream for tree code evaluation. “We kept asking for one-time funding for a limited-term position to do the updates and kept getting turned down.” After the discovery of structural problems with the Parks budget, she said, the time was never right to ask for extra money for tree code development. “Adequate staff resources to implement and update the [tree] regulations are challenging and limiting,” City Forester Jenn Cairo told Trees for Life Oregon in December 2019.
A more bureaucratic problem, according to Commissioner Fritz, is that responsibility for implementing the tree code is divided between the Bureau of Development Services and Parks’ Urban Forestry division. She was able to work on that issue when she was assigned both of those bureaus, she says, but since they were then assigned to different commissioners the matter “has not had as much focus.”
In this next round of debate over tree code amendments and possible overhaul, development goals versus canopy goals will still be in conflict, says Commissioner Fritz. And, she says, supporters of retaining industrial zone exemptions from tree code requirements will continue to link the exemptions to the need for more jobs, whether or not that’s a valid concern.
Changed Political Environment
These obstacles to Title 11 reforms aside, the political context has changed since the tree code was approved in 2011. Today, climate crisis and environmental equity are urgent issues that the City Council cannot ignore.
“Visibility of the climate crisis and the historical inequity in forest services to low-income residents and communities of color is now greater,” says City Forester Jenn Cairo. “Trees are increasingly recognized as an impactful means of addressing and reversing climate change, discrimination, and environmental justice needs,” she adds. “We have a saying in arboriculture, ‘Trees are the answer.’ It’s true in many ways, and more than professional arborists are recognizing this.”
Portland’s 2015 Climate Action Plan and Climate Preparation Strategy goals should now be key drivers in the update to Title 11, says Roberta Jortner. “Climate change has been on the radar for some time, but the group that worked on the original tree code didn’t have the more recent City’s climate policy framework or the scientific community’s declaration of a climate emergency to help guide the effort.” Today no one, she says, should have to work quite as hard as the code’s developers did years ago to make the case that trees are crucial to Portland.
We now know that they are, more than ever.
--By Kyna Rubin, April 21, 2020; updated June 8, 2021