The Real Estate Council of Austin

Tree Ordinance

History

On February 9, 2006, the Austin City Council approved a resolution sponsored by then Council Member Lee Leffingwell that created a tree task force to review, develop, and recommend to Council policies and procedures related to the City of Austin’s tree trimming and tree removal programs. The task force with the support of Austin Energy created a new policy designed to address aggressive tree trimming and tree removal policies by Austin Energy employees. The task force expanded its scope of work, making broader recommendations on reducing the urban heat island effect by promoting a more robust tree canopy over the City.

On Wednesday, April 16, 2008, RECA's Austin Policy Issues Committee received a presentation from the City of Austin's Arborist Michael Embesi regarding potential changes to the Tree Ordinance. Embesi proposed changes including: 1) the creation of a new heritage tree at a 24-inch circumference or larger, which would require a public hearing for removal, and 2) the requirement of 3 trees on all new residential lots.

When the first draft of changes to the Tree Ordinance were released for public comment, there were three components:

A new Heritage Tree designation has been developed, requiring a public hearing for the removal of any designated Heritage Tree.
Three trees will be required on all single-family lots.
A tree planted median will be required between every two bays of parking in large parking lots.

The proposed ordinances were considered and approved by the Environmental Board on Wednesday, June 4, 2008.

On July 22, 2008, 2008 RECA President Tom Terkel sent a letter to City Manager Marc Ott asking him to pull down the proposed tree ordinances until the City had a clearer vision for growth and development.

The Planning Commission approved an amended version of the Heritage Tree Ordinance and two other proposed tree ordinances on a five to two vote at its regularly scheduled meeting on Tuesday, August 26, 2008. The heritage tree amendment adds an administrative variance for trees removed due to current or potential oak wilt infestation. Commissioners Mandy Dealey, Saundra Kirk, Jay Reddy, and Tracy Atkins joined Chairman Dave Sullivan in supporting the ordinances, while Commissioners Chris Ewen and Clint Small voted against sending them to City Council. Commissioner Ewen's vote came after he expressed concerns about applying the ordinance to densely developed areas and the need for tougher enforcement of current ordinances. Commissioners agreed to explore stricter penalties and tighter enforcement and compliance mechanisms in subcommittee meetings.

Subsequently, the City of Austin Watershed Protection and Development Review Department took public comments on the proposed rules changes and tree protection ordinance amendments at a meeting on Friday, October 3, 2008. A summary of the changes is provided here.

The Watershed Protection and Development Review Department proposed three tree ordinances: 1) the designation of a new classification of tree called “heritage tree,” certain species of trees at a 24-inch diameter (dbh) or larger, which would require a public hearing for removal, 2) the requirement of three trees on all new single-family lots, and 3) creating tree medians in parking lots for every two parking bays.

City staff prepared revised ordinances that address some or all of RECA's concerns. RECA continues to work with Council Members to convey changes needed. Click here for a memo from 2009 RECA President Craig Douglas summarizing RECA's issues.

On Thursday, April 23, 2009, City Council set a public hearing to consider all three, revised proposed tree ordinances on Thursday, May 14, 2009. However, at that meeting, Mayor-elect Leffingwell announced a postponement of the public hearing, announcing a Thursday, June 11, 2009 staff briefing to Council, followed the next week by a public hearing on all three tree ordinances.

The Austin City Council approved two tree ordinances and postponed a third one at its meeting on Thursday, June 18, 2009 after a public hearing. The first ordinance Council passed requires a planted median between every two bays of parking in large parking lots. The other ordinance Council passed requires three trees on all single-family lots in new subdivisions. At the request of several stakeholders and affordable housing advocates, Mayor-elect Lee Leffingwell amended the ordinance to require only two trees on SF-4A lots, the City's smallest lots.

HERITAGE TREE ORDINANCE

A final ordinance, referred to as the Heritage Tree ordinance, was postponed at the request of environmental activists. Those activists are demanding a public hearing before removal of a Heritage Tree, among other changes. Mayor Lee Leffingwell convened a heritage tree ordinance working group in which RECA participated to reach consensus on a proposed ordinance. That working group met each Wednesday in July 2009 and Wednesday, August 5, 2009 to continue deliberations on the ordinance.

On September 11, 2009, a revised heritage tree ordinance was released. RECA issued its position on the revised ordinance via a letter to Mayor Lee Leffingwell on September 16, 2009.

On Monday, October 5, 2009, the Urban Forestry Board (UFB) considered the heritage tree ordinance in a special-called meeting. The board recommended modifying the ordinance to make all heritage trees with a diameter of 24" or greater eligible for a public hearing and requiring an applicant be denied "all" reasonable uses of his/her land before being able to remove a heritage tree. Other changes the board recommended include: allowing multi-stem measurements; taking the exemption out for "dying" trees; and adding in a three-day waiting period for approval of a permit to remove a heritage tree and the actual removal of that tree. A complete list of UFB's recommendations can be found here. (These recommendations are unofficial until the UFB votes to approved them at its next meeting.)

On Wednesday, October 7, 2009, the Environmental Board held a public hearing on the heritage tree ordinance. After closing the public hearing, the Board appointed a subcommittee to evaluate the ordinance, considering testimony received at the hearing including testimony from Board members Jeff Howard and Paul Linehan and RECA member Aan Coleman. The subcommittee members who will make recommendations to the full board at a future meeting are: Chairwoman Mary Gay Maxwell and Board Members Robert Anderson and Jon Beall.

On Monday, October 19, 2009, the Electric Utility Commission considered the heritage tree ordinance and approved a series of changes designed to ensure reliable utility service.

On Tuesday, October 20, 2009, the Planning Commission's codes and ordinance subcommittee voted to advance the heritage tree ordinance without recommendation to the full Planning Commission for consideration at a future meeting. The Environmental Board, Zoning and Platting Commission, and Planning Commission all postponed meetings in November while the Environmental Board subcommittee continued its work.

Despite these postponements, the Environmental Board took up the ordinance at its meeting on Wednesday, November 18, 2009. That board appointed a subcommittee to evaluate the ordinance, which met three times to explore every aspect of the ordinance and elicit public input. Based on the subcommittee's work, the entire Environmental Board adopted a list of changes to the ordinance. The most significant ones follow:

Allowing "total diameter" measurements for trees. This would mean some additional multi-stem trees would qualify for Heritage Tree designation as opposed to just trees with at least one stem greater than 24" (as currently written).
Rejecting the Urban Forestry Board's attempt to make denying "all reasonable uses" of a property the standard for removal of a tree. The Environmental Board recommended keeping the language "a reasonable use."
Requested that Council direct that a study be conducted on the economic impact of the Heritage Tree ordinance on development projects.

On Thursday, November 19, 2009, the Austin City Council set the date for its consideration of the heritage tree ordinance for Thursday, February 4, 2010.

On Tuesday, December 8, 2009, the Planning Commission considered the heritage tree ordinance . After taking roughly 90 minutes of testimony, Commissioner Danette Chimenti made a motion to approve the September 11, 2009 version of the ordinance with the following amendments:

Require heritage trees 24" - 30" in size to go before the Urban Forestry Board (UFB) at a public hearing for a recommendation prior to an administrative decision. Heritage trees greater than 30" would still be subject to a public hearing and Planning Commission consideration.
Allow "total diameter" measurements for trees. This would mean some additional multi-stem trees would qualify for heritage tree designation as opposed to just trees with at least one stem greater than 24" (as in the September 11 draft.)
Adopt denying "all reasonable uses" of a property as the standard for removal of a tree with a request that City legal staff explain the ramifications of that heightened standard (Chairman Dave Sullivan and Commissioner Clint Small voted against this amendment.)
Delete the paragraph that allows a land owner to remove a heritage tree in order to preserve the maximum number of trees.
Remove "dying" trees from the list of acceptable exemptions.
Require that a tree pose an "imminent" danger for removal.
Include a list of heritage tree species in the ordinance (Chairman Sullivan and Commissioner Saundra Kirk voted against this amendment.)
Adopt the additional Environmental Board (EB) requests, including a recommendation that Council direct that a study be conducted on the economic impact of the heritage tree ordinance on development projects.
A recommendation to treat city-owned projects (applications) the same as privately-owned projects (applications).

The Austin City Council unanimously approved the staff recommendation of the heritage tree ordinance on all three readings on Thursday, February 4, 2010, making it more difficult to remove certain trees 24" or greater in diameter. Trees larger than 24" but smaller than 30" will require an administrative variance prior to removal, and trees larger than 30" will require a land use commission public hearing before a variance is granted.

RECA came out in opposition to the public hearing component of the ordinance. Despite RECA's testimony and strong showing at City Hall, Council kept the public hearing process in the ordinance. Council Members amended the ordinance with the following changes:

Include a tree list in the ordinance that will be subject to future modifications by rule, if necessary. RECA advocated for the inclusion of a tree list in the ordinance.
Grant flexibility in the heritage tree variance language by allowing for exceptions if the removal of that tree will result in "a design that will allow for the maximum provision of ecological service, historic, and cultural value from the tree." RECA advocated for more flexible removal criteria.
Require monthly reporting from the City Arborist to the Urban Forestry Board on tree removals between 24" and 30" instead of public hearings for those trees. RECA advocated against public hearings for those trees.
Allow for multi-stem measurements. However, a public hearing would only be required for trees with at least one stem greater than 30". RECA opposed multi-stem measurements, but this amendment will not increase the number of public hearings.
Remove certain exemptions for electric utilities. RECA was neutral on this aspect of the ordinance.

The final point of contention was the standard of removal for protected trees. City staff and RECA encouraged Council to keep that standard as denying "a reasonable use" of one's property to allow for removal. Tree advocates asked for the denial of "all reasonable uses" before a tree could be removed. Council agreed with the RECA position.

It is also important to note that Council moved forward with the staff recommendation version of the ordinance as opposed to Planning Commission's version. Tree advocates testified in favor of the Planning Commission version, which would have been more onerous towards property owners.

The ordinance, which became effective on Monday, February 15, 2010, will now be subject to a rules process to determine mitigation rates for heritage trees, potential stiffer penalties for illegal removal of trees, and how to interpret the following removal criteria: "a design that will allow for the maximum provision of ecological service, historic, and cultural value from the tree."

Tree Rules

The City of Austin's Planning and Development Review Department (PDR) released the proposed tree ordinance rules in July 2010 as part of the 4th Quarter rules update. The proposed rules revise the Environmental Criteria Manual as it pertains to Tree Modifications. There was a stakeholder meeting on July 20, 2010 to discuss the proposed rules. The City is collecting all comments on the proposed rules until August 31, 2010. RECA submitted official comments on the rules, and individual members also submitted comments.

The City responded to RECA’s comments and all comments collected and posted a revised version of their proposed tree ordinance rules on Friday, October 8, 2010 and collected another round of comments on the proposed revised rules through Saturday, November 6, 2010.

Because parties interested in appealing the rules could do so up to 30 days prior to the earliest date of adoption, i.e., February 6, 2011, RECA appealed the implementation of the rules relating to tree and natural area preservation goals on January 12, 2011. (R161-10.42) Austin City Manager Marc Ott rejected RECA's appeal on March 4, 2011.

The rules were adopted on Monday, February 7, 2011, and affirmed on Friday, March 4, 2011.

Tree Rules Revisted

In late 2011, t he Development Committee of the Environmental Board began reviewing the Heritage Tree Ordinance to reconcile conflicts between accommodating density in the urban core and preserving a tree canopy in that area. RECA member Jim Schissler, who serves on that committee, came to the RECA City of Austin Policy Issues Committee meeting on Wednesday, November 16, 2011 to discuss the scope of the committee’s work and collect feedback from RECA members on changes to the Heritage Tree Ordinance. Moreover, on Thursday, November 17, 2011, RECA member Bob Anderson, who chairs the Environmental Board Development Committee, invited RECA to submit testimony.

In addition to reviewing the testimony RECA provided, Anderson also laid out the following steps for the work the committee is doing:

Work with the City Manager's office to create an inventory for trees in and around the downtown core.
Identify iconic trees that have the highest public value in these areas.
Explore different mitigation options and criteria for trees in these areas.
Revisit the "reasonable use" criteria established in the HTO ordinance to ensure that removal criteria is appropriately applied depending on the circumstances.

April 2012 Update

On Tuesday, March 6, 2012, the RECA Board approved a list of modifications to the Heritage Tree Ordinance (HTO). The modifications included suggestions for changes to the definition of a Heritage Tree, mitigation requirements, procedural considerations, and removal criteria that RECA believes is needed to make the ordinance workable. RECA also suggested that an affordability impact statement be required for each land use commission tree removal request in order to make an accurate determination as to the costs of tree removal versus tree protection.

The Development Committee of the Environmental Board continued its work on reviewing the HTO as it pertains to downtown at its meeting on Thursday, March 8, 2012. At that meeting, EB Development Committee Chair Bob Anderson brought forward the following proposed changes to the HTO ordinance, which are still being considered by the committee:

Mitigation Options for tree removals downtown

Keep tree(s) in place, but allow for higher/taller buildings or increased density, FAR, or impervious cover. (RECA supports.)
Transplant tree(s) onsite. (RECA supports.)
Transplant tree(s) offsite nearby. Locations will be determined by the City of Austin. (RECA supports.)
Plant a pre-determined amount of replacement inches of new trees in nearby park sites to offset the removal of a tree. (RECA supports.)
Contribute to the tree mitigation fund as a mitigation tool. (RECA supports.)
Establish a tax abatement as an incentive to save trees. (RECA supports.)
Donate land in lieu of mitigation. (RECA has not taken a position.)
Create safe harbor green space for either tree preservation in a sector of downtown or transplant site. (RECA has not taken a position.)

Procedural Considerations for tree removals downtown

Determine an appropriate increased value for trees downtown. (RECA would support with the understanding that the tree value would be capped at 125 percent of its assessed valuation and that the tree removal would be administratively approved.)
Allow the imposition of additional mitigation requirements for trees greater than 30 inches. (RECA would support with the understanding that the tree removal would be administratively approved.)
If a removal is denied, offer applicants the option of an immediate reapplication process. (RECA supports.)
Relocation should be an option available to all property owners unless the tree is a very special and iconic tree. (RECA supports.)
Allow applicants to appeal tree removal decisions to City Council. (RECA supports.)

The committee will meet at least one more time to consider these recommendations, but that meeting has not been set. RECA members continue to work with the committee on creative solutions to the HTO.

Resources

Heritage Tree Ordinance (approved February 4, 2010)

Heritage Tree Ordinance (September 11, 2009 draft)

Heritage Tree Ordinance (August 5, 2009 draft)

Heritage Tree Ordinance (May 29, 2009 draft)

Residential Subdivision Tree Ordinance (May 29, 2009 draft)

Parking Lot Tree Ordinance (May 29, 2009 draft)

Heritage Tree Ordinance (April 7, 2009 draft)

Residential Subdivision Tree Ordinance (November 17, 2008 draft)

Parking Lot Tree Ordinance (November 17, 2008 draft)

Environmental Criteria Manual changes Spring 2008 draft

Heritage Tree Ordinance 3-31-08 draft