Portland’s tree code, also known as Title 11, was fueled by citizens’ alarm over the loss of trees on private property. Understanding the code’s genesis informs current efforts to give the code more teeth to stem the loss of large, healthy trees.
As tree advocates pressure the City Council to tighten the tree code within today’s urgent context of climate crisis and environmental inequity, it’s useful to know how Title 11 came to be. Its drafters, and the stakeholders with whom they consulted, knew it was not perfect and would need to be revisited. Their years of hard work built the foundation for a code that, one decade on, is, as predicted, sorely in need of reforms.
Title 11 was, in part, a product of the city’s attempt to strike a balance between Portland’s tree canopy goals and development goals. Contrary to what some of us assume, Portland’s tree code was not designed to require that developers preserve trees but to encourage that by making it easier to preserve than to take trees down when possible. Title 11’s adoption, in 2011, predated the City’s more recent, pressing calls for expanded and more equitably distributed tree canopy to address climate change and environmental inequity, stated in its 2015 Climate Action Plan and its Comprehensive Plan 2035, adopted in 2018.
Tree Regulation Before Title 11
Prior to today’s tree code--approved in 2011 but due to budget constraints not implemented until 2015--tree-related regulations were spread across multiple codes administered by many different bureaus. Developers, homeowners, and City staff had difficulty figuring out which regulations to follow, as many of them conflicted. Roberta Jortner, now retired, was then senior environmental planner at the Bureau of Planning and Sustainability, and at the time managed the multi-bureau effort to create a tree code. “There was no system or clear criteria” for trees on development sites or for residents wanting to remove a tree on their property, she says. The public didn’t know which bureau to go to with questions, and agencies weren’t talking to one another about trees.
The community wanted to group tree regulations under its own title, Title 11. The City wanted trees seen and managed as part of the city’s infrastructure instead of as an optional amenity. That was the goal, at least.
Specifically, the new code was meant to tackle gaps and inconsistencies in tree-related rules, and in situations where the code was largely silent. Permits for removing trees on private property were on the books in some city areas but nobody seemed to know that, as evidenced by the sparse number of permit applications. The zoning code (Title 33) was already regulating trees in environmental zones, greenway zones along the Willamette River, and in certain “plan districts” such as Johnson Creek, Rocky Butte, and in scenic areas, says a Bureau of Development Services planner. But catch this: Pre-tree code, the only strong tree preservation requirements in development situations applied to land divisions under Portland’s zoning code. Outside of the land division process, “there was no other requirement to preserve a tree or to even consider preserving a tree or pay for it if you didn’t,” says Jortner. The result was that a developer proposing to build or expand a new home or commercial building but who was not dividing a property was not subject to tree preservation or mitigation. That provided an incentive for developers who were going to apply for land division to take down trees beforehand because there was nothing stopping them from doing so.
To remedy this situation, through the new tree code the City aimed to make tree requirements seamless across all development types and between development and non-development situations, says Jortner. For instance, the threshold for when mitigation fees kick in for cutting a tree was set at 12 inches DBH (diameter-at-breast-height) for trees on development sites. That same DBH triggers tree removal permit requirements when no development is proposed. Code drafters also strengthened tree preservation criteria in land division, amended other sections of Title 33, and updated language in other city titles to make them consistent with Title 11.
Citizen Pressure to Stop the Tree Cutting
It was Southwest Portland residents’ deep concerns about trees being razed that sparked City leaders’ action to craft a new, unified tree code. The Southwest Tree Committee advocates were alarmed by intentional tree cutting on private property and the death of trees from construction abuse. In 2005 they wrote a paper calling for tree regulatory reform. They blamed tree losses to inadequacies in regulations and public education around trees. “They were persistent, persuasive, and they were right,” recalls Jortner. They convinced the City Council to fund a project to develop a consistent set of policies and regulations for Portland’s trees. Eventually a diverse array of voices from across the city weighed in on the need for a unified tree code including groups supporting and opposing the idea.
Groundwork Laid
The development of the tree code, begun in 2007, took three and a half years. It was a complex endeavor called, for short, the Citywide Tree Project, that was coordinated by the Bureau of Planning and Sustainability, or BPS. (The Bureau of Planning and Sustainability, which Mayor Sam Adams formed from two different bureaus, didn’t exist when the tree code formulation began in 2007; its predecessor in coordinating the tree code project was the Bureau of Planning.)
The project involved multiple bureaus including Parks, Development Services, Environmental Services, Water, Transportation, Fire and Rescue, and Police. The City spent six months identifying goals, developing a public involvement process, then a year and a half working with stakeholders to identify problems and solutions. It formed a 20-member stakeholder advisory group comprising members of the public on all sides of the issue. Staff researched tree regulations across the country, analyzed the challenges around tree preservation in various situations, and listened to stakeholders’ views on the pros and cons of different solutions. BPS and other bureaus first brought solution concepts to the Planning Commission and the Urban Forestry Commission to make sure they were on the right track before they started writing the code. For the next phase, project coordinators needed City Council to reaffirm its political support by directing the bureaus to keep working with them and by continuing to fund the project.
“If we hadn’t done that we would have imploded because there was so much controversy,” says Jortner.
The Urban Forestry Commission and the Planning Commission (which in August 2010 was folded into the then new Planning and Sustainability Commission) held joint hearings on the draft code between March and June 2010—a first for the City, according to Jortner—so people testifying didn’t have to appear separately before two different bodies. Dozens of people testified at these hearings, the vast majority in favor of the new code, though developers and others were concerned about the effect of the new code on development and housing costs during the then recession. For instance, the Home Builders Association of Metropolitan Portland questioned whether a tree problem was serious enough to warrant a policy overhaul in light of the city’s development goals, which require space.
The hearings allowed the Planning Commission to learn an awful lot about trees, which had not been on its radar; the Urban Forestry Commission to learn about developers’ challenges; and both to better understand other bureaus’ concerns.
In April 2011, after many more hours of public testimony, the City Council adopted Title 11. Dave Nielsen, CEO of the Home Builders Association of Metropolitan Portland, called the new code “a workable, fair, and consistent system for housing development.” Portland Audubon’s conservation director, Bob Sallinger, described it as “a huge step forward for our environment.”
Charting Controversy and Challenges
Developers’ concerns aside, some City staff were not fully on board with the code. According to another former staff person working for the City at the time, some staff didn’t like feeling as if what they had been doing for a long time hadn’t been enough. Some didn’t support the values of the new code, for instance, requiring people to get a tree removal permit on private property, or they were concerned about potential public reaction to tree requirements on private property.
Other challenges were keeping the code reasonable, simple, and able to balance city goals other than increased tree canopy. If the code wasn’t reasonable, it wasn’t going to get adopted, complied with, or enforced, notes Jortner. The biggest technical challenge, she says, was making the rules simple enough to cover a myriad of tree situations, which are complicated, and have the public be able to understand the rules and the staff be able to explain and implement them.
Competing City goals such as respecting private property, retaining space for development, and meeting affordable housing needs were, in the end, perhaps insurmountable challenges to drafting more robust preservation rules. The compromises made to balance these other priorities weakened the tree code’s spine, leading to current public pressure for code tightening. One such compromise is the play-or-pay mechanism, which permits developers who do not preserve at least one-third of non-exempt trees with a DBH of 12 inches or greater to pay an in-lieu fee. These mitigation fees are meant as compensation for tree loss. They fund city tree planting elsewhere.
Ongoing Tree Code Reforms
Once the tree code was rolled out in 2015, an improved economy brought more development and more tree removals, leading to community alarm. This sparked the City Council to adopt emergency, temporary “large tree” amendments to Title 11 that increased developer mitigation fees for choosing to cut rather than preserve large trees. Trees for Life Oregon and others pressed the City Council to extend these amendments for five years, which it did in December 2019.
There is also strong community interest in conducting a comprehensive review and update of Title 11. When, in late 2019, Mayor Wheeler drafted a resolution proposing two- and three-year delays on taking action to revisit specific exemptions in Title 11 amendments and to initiate a code overhaul, critics of the delays argued that the spadework for such amendments had already been done because of the tree-related hearings of fall 2019 and earlier. True, but the spadework goes much deeper than that. On top of five years of tree code implementation, which has yielded evidence of its flaws, related to design and scarce funds for enforcement, a voluminous amount of City staff analysis and public testimony about tree preservation is already on record from the tree code creation process itself. Public pressure forced shortened timelines (to July 2020) for City bureaus to bring proposals on code amendments and a plan and budget for a Title 11 overhaul before City Council. In May 2021, City Council approved a multi-year plan to update the Urban Forest Management Plan and the tree code.
Nothing Magical about the Code’s Standards
The standards in Title 11 for when trees had to be preserved, when mitigation fees would kick in if people took trees down, and how the fees were calculated, according to Commissioner Amanda Fritz, “were our best judgment about what might work.” During a February 7, 2020 interview with Trees for Life, she recalled people coming into her office with a piece of yellow tape that was two feet wide and a piece three feet wide, and the conclusion that “Yeah, three feet looks like a big tree.” Title 11 was developed before Portland’s recent citywide tree inventories, so little data about our trees existed at the time. “There was nothing magical” about setting the code standards, she said. “Many of the elements of the tree code were a best guess, including even some of the ways it was supposed to work together and not give staff and developers headaches.” (Commissioner Fritz will be retiring at the end of 2020. Commissioner Nick Fish, another tree proponent, died in January 2020.)
Has the Tree Code Met Its Aims?
Whether Title 11 has fixed the problems it was meant to resolve depends on whom you ask, says a staff person at the Bureau of Development Services. It clarified the rules and elevated trees into the development review process. But, reflecting the middle ground the city settled on, it didn’t go far enough for some people, while for others it went too far. The same BDS source hears complaints from residents who thought the law was going to be tougher on tree preservation instead of having a payment option for those who don’t meet the standards.
Those sentiments were echoed from the get-go in a report written by the Tree Code Oversight Advisory Committee, which Commissioner Fritz set up to review Title 11’s first year of implementation. The group found “a significant gap between community expectations for the new code and the actual requirements of the code,” especially around preserving existing mature trees. The 2016 report recommended that the code “be recalibrated to provide a better balance” between tree preservation and new development. A series of 2016 articles that Jim Labbe, urban conservationist with Portland Audubon at the time, wrote in Street Roots, crystalizes the code problems.
Based on data from the tree code’s first two years of implementation, a City Auditor’s report issued in 2017 also showed mixed results: tree protection improved “in some areas,” according to the study, but in non-development situations, where property owners apply to take down trees without building new structures, three times as many large-species trees were removed than were planted in both 2015 and 2016. The report also found overall enforcement problems due to insufficient city staffing.
According to Angie DiSalvo, Urban Forestry’s outreach and science manager, bare-bones funding of Title 11 means that some important code elements, such as compliance, aren’t funded. For instance, Parks’ Urban Forestry division doesn’t have enough staff to revisit sites where trees were required to be planted. The city’s latest compliance study, which looked at whether people were planting trees required by Title 11 in 2016, found continual declines in non-development permit compliance, with an estimated 1,866 required trees not planted. That same year, for permitted development projects an estimated 219 trees weren’t planted as required. The compliance rate for development permits did increase for new construction, to 84 percent, while it remained unchanged, at a low 51 percent, for remodels. (Compliance studies are done every three years; the next one will be conducted in summer 2020.)
Some of Title 11’s non-regulatory improvements were successful. The city introduced badly needed customer service improvements, including the 823-TREE hotline, offering a single contact point for answering questions about city tree regulations, and public-friendly tree guidance, now web-based.
Another positive product of the tree code process, during which the city heard testimony about tree-deficient areas in East Portland, was a growing awareness that trees are an equity issue, says Roberta Jortner. “It wasn’t on the radar that trees were really a key element in terms of livability and equity. That gained momentum as we went along.”
Code Holes and Weaknesses
“Once we implemented the tree code,” Commissioner Amanda Fritz told Trees for Life Oregon, “it was really clear that in some cases our best guess was not good enough. In others, there was a clear loophole we’re now trying to fix. And in others, although we thought we had fixed some of the glitches, we actually haven’t.”
One flaw, which Portland Audubon’s Bob Sallinger has long pointed out, is the tree code’s exemptions from preserving or planting trees on lands in certain industrial and commercial zones. Quashing these exemptions is one of the code amendments that city leaders will be voting on in July 2020. The city promised that these exemptions would be revisited shortly after the tree code was approved and after it conducted an industrial and commercial lands inventory as part of an economic opportunities analysis. The study was completed but the exemptions have not yet been revisited. The city’s concern relates to state laws requiring a constant, 20-year availability of industrial land, according to Fritz. Yet, she says, “We don’t have a 20-year availability requirement to have natural area or open space.”
Most tree advocates would agree that the tree code is certainly a step in the right direction. In the words of Jortner, who managed the process of drafting a code where there wasn’t one before, “At least it’s here now for people to fix. There’s something to fix.”
(Read here about the tree code amendments passed in 2020 and here about the City’s approval to overhaul the code in 2024-2025.)
—By Kyna Rubin, March 2, 2020; updated June 15, 2021
The next article in this series will elaborate on the code repairs desired by tree advocates and city bureau staff, on whether today’s political climate is more conducive than it was ten years ago to fortifying the code, and some of the challenges to large-tree preservation that lie outside the tree code.