Report to: Development Services Committee May 20, 2008

SUBJECT: Private Tree Preservation By-law

PREPARED BY: Linda A. Irvine, Manager, Parks and Open Space Development, ext. 2120

RECOMMENDATION:

THAT the report to Development Service Committee dated May 20, 2008 entitled “Private Tree Preservation By-law” be received; and

THAT, pursuant to s. 135 of the Municipal Act, 2001, S. O. 2001, c. 25, Council exercise its powers to pass a by-law to prohibit or regulate the injury or destruction of trees, to require that a permit be obtained prior to the injury or destruction of trees, and to impose conditions to a permit, for the purpose of protecting trees on private property within the Town of Markham; and

THAT Community Services staff proceed with hiring the “Tree Preservation By-law Technical Coordinator” to develop an appropriate “Tree Preservation Education Program” and appropriate administrative procedures, practices and policies required to administer the “Private Tree Preservation By-law”; and

THAT the “Private Tree Preservation By-law 2008-XXX” attached as Appendix ‘A’ to the report to Development Service Committee dated May 20, 2008 entitled “Private Tree Preservation By-law” be enacted and come into force and effect on September 1, 2008; and

THAT the amendment to the “Fee By-law 2008-XXX”, attached to this report as Attachment “B”, be enacted and come into force and effect on September 1, 2008; and

THAT, as recommended by the Tree Preservation By-law Task Force of Council, prosecutorial staff be requested to seek maximum fines through the Courts whenever possible and where appropriate, due to the environmental impacts and community health concerns associated with unnecessary tree removal; and further

THAT staff be authorized and directed to do all things necessary to give effect to this resolution.

EXECUTIVE SUMMARY:

Direction to prepare this report was received by staff at the March 4, 2008, Development Services Committee including authorization to prepare a Tree Preservation By-law based on the recommendations of the Council-based Task Force which was established by Council on December 11, 2007. Two public information meetings were held on June 21, 2005 and June 14, 2007 to seek resident input on the proposed Tree Preservation By-law. The attached by-law is a culmination of years of work and consultation that began in 2002. It is now time to enact the by-law in order to further protect and regulate tree cutting on private property.

FINANCIAL CONSIDERATIONS:

The Community Services 2008 operating budget provides for a “Tree Preservation By-law Technical Coordinator” position and the 2008 Capital Budget account 57-5350-8474-005 has funding of $25,000 for a vehicle for this position. Hiring of this individual was conditional on the by-law being enacted. There is a workstation in the Miller Office allocated to this position and the cost of the standard phone and computer in the amount of approximately $2,000 for this workstation has been budgeted for by the ITS department.

In 2002, based on some tree cutting incidents in the Town and expressed concerns of residents and Councillors, staff was directed to begin exploring options for a tree by-law covering private lands. In the fall of 2003, Council directed staff to retain consultants to develop a draft Tree By-law and Report that would be “scoped” to cover priority areas.

Since 2003, the consultants have conducted their research, and scoped field work, and provided preliminary recommendations on the “scoped” approach, as well as an option for a “town-wide” tree preservation by-law.

There have been a number of presentations and reports to Development Services Committee including:

Project Overview and Status Report, December 9, 2003;
Status Report, March 22, 2005;
Chronology and Recommended Options, May 3, 2005;
Options for Tree Preservation, June 7, 2005;
Proposed Tree Preservation By-law Public Consultation Process, September 5, 2006;
Options for Tree Preservation, February 7, 2006
Proposed Tree Preservation By-law Update, May 8, 2007;
Update on the Tree Preservation By-law, December 4, 2007;
Presentation on the Recommendations of the Council Task Force, March 4, 2008;

On June 21, 2005 a public meeting was held to seek resident input on the proposed Tree Preservation By-law. On June 14, 2007, a second public information meeting was held to seek additional resident input. Both meetings were advertised in the local newspapers and on the Town web-site. Of those attending, majority support was for a single standard across the Town which would require a permit to cut trees of a certain diameter in size or greater. However, there was no consensus on whether or not the standard should be 20 cm (8 inches), 25 cm (10 inches) or 30 cm (12 inches) DBH (diameter at breast height).

In March, 2007, the Town of Richmond Hill enacted By-law No. 41-07 that prohibits or regulates the injuring or destruction of trees on private property in Richmond Hill. In this By-law, a permit is required to injure or destroy a tree in the Municipality having a trunk diameter of more than 20 cm (8 inches), unless otherwise exempted by the by-law. In June 2007, the City of Vaughan enacted By-law No. 185-2007 that prohibits or regulates the destruction or injuring of trees located on private property in Vaughan. In Vaughan, a permit is required to injure or destroy a tree having a trunk diameter of 20 cm (8 inches) or more, unless otherwise exempted by the by-law.

On December 4, 2007, staff provided an update on the proposed Tree Preservation By-law to Development Services Committee and on December 11, 2007, Council approved the establishment of a Council-based Task Force to provide recommendations on the proposed Tree Preservation By-law and to report back. The Task Force met on four occasions and on March 4, 2008, staff presented the recommendations of the Task Force to Development Services Committee. Based on the recommendations of the Task Force, staff has prepared this final report and by-law.

Based on the recommendations of the Council Task force, the proposed Tree Preservation By-law provides for:

Permit Requirements:

That a 20 cm (8 inch) standard DBH be enacted. This standard is consistent with the neighbouring municipalities of Richmond Hill and Vaughan. Based on generalized tree growth data, trees that are a minimum of 20 to 40 years old (depending on their species) will be protected by this by-law.

The proposed Tree Preservation By-law requires that permits be obtained for the injuring or removal of any trees that have a DBH of 20 cm (8 inches) or greater.

Permit Exemptions under the Municipal Act, 2001:

Permit exemptions under the Municipal Act, 2001 are permitted for:

tree removal undertaken by a municipality or local board;
tree removal as a condition of approval of a site plan;
tree removal as a condition of a plan of subdivision or consent;
tree removal as a condition of a development permit; and
woodlots and woodlands covered by the Region of York By-law.

Additional Permit Exemptions:

That the following additional exemptions be included in the by-law:

hazard tree removal;
emergency work removal;
property standards order removal;
maintenance or pruning in accordance with Good Arboricultural Practice;
tree removal on rooftop gardens, in indoor courtyards, solariums or raised podiums;
nursery business trees; and
removal authorized or required under a municipal building permit.

Removal of Trees other than Exempt Trees:

That permit applications be required and subject to review by the Tree Preservation By-law Technical Coordinator for the removal of all trees other than exempt trees including:

dead, diseased or damaged trees as certified by a qualified tree expert;
trees that are causing structural damage to load bearing structures, drains or buildings;
tree removal associated with a building demolition permit;
tree removal associated with a pool enclosure permit; and,
trees that are a “substantial” nuisance” as defined by the by-law.

Permit Conditions:

That the by-law provide for the Tree Preservation By-law Technical Coordinator to impose permit conditions where appropriate such as:

provision of a qualified arborist’s report;
replacement of plantings for non-residential zoned properties;
landscape restoration plans; and,
one or more “Tree Management Plans”.

Tree Management Plans:

That the by-law provide for owners of large land holdings including cemeteries, golf courses and commercial and/or institutional facilities have the option to have a “Tree Management Plan (10 years)” prepared by a qualified arborist and approved by the Tree Preservation By-law Technical Coordinator. Upon approval, the landowner would be required to follow the plan when cutting or planting trees. Any contravention of the Tree Management Plan would be a contravention of the By-law. Permits to remove trees would only be granted in accordance with the approved tree management plan.

Permit Fees:

That permit fees be established as $200.00 for the first tree and $100.00 for each additional tree, capped at $5,000 for each permit application. There would be “no charge” for confirming exemptions from permit applications. Staff recommends that the fee for approval of a “Tree Management Plan” would be based on the above unit rates including an additional $200.00 for plan review. Revenue generated would be used to offset administration, enforcement and replanting program costs.

Appeals:

Appeals to the Ontario Municipal Board from tree removal permit refusals are no longer available (former section 136 repealed). The Task Force recommended that permit refusal appeals be heard by the Town’s Licensing Hearing Committee. This has been incorporated into the by-law. The Clerks' Department has expressed some concerns regarding permit denial appeals being heard by the Licensing Hearing Committee. The Licensing Hearing Committee's mandate provides authority for them to deal with issues of denial or revocation of business licenses. Clerk's Department expressed further concerns regarding the time element and the difficulty in getting the Licensing Hearing Committee together on short notice. The Clerks' Department suggests either a staff appeal process or a citizen tribunal that would include some expertise would be preferable.

Penalties:

The By-law includes minimum fines as prescribed by Section 429 of the Municipal Act, 2001. However, the Task Force recommends that Council request prosecutorial staff to pursue maximum fines through the courts whenever possible and where appropriate, due to the environmental impacts and community health concerns associated with unnecessary tree removal. The By-law also includes provisions to seek orders under Section 431 to discontinue or to correct a contravention with other actions such as replanting.

Recommended Staffing Requirements:

Staff recommends the following:

That Community Services staff proceed with hiring the “Tree Preservation By-law Technical Coordinator” to develop an appropriate “Tree Preservation Education Program” and appropriate administrative procedures, practices and policies required to administer the “Private Tree Preservation By-law”;

That staff at the Contact Centre be trained in the scope and application of this by-law to assist the Tree Preservation By-law Technical Coordinator in the administration of this By-law;

That By-law Enforcement staff enforce provisions of the By-law and lay applicable charges as necessary;

That future additional staffing requirements be determined based on an annual monitoring of the actual number of permit applications submitted, permits approved, and infractions encountered; and,

That staff work with Corporate Communications to create a public awareness campaign to educate residents on the requirements of the proposed By-law.

Recommended Enactment of the By-law:

Staff recommends that the draft “Private Tree Preservation By-law” (attached as Appendix ‘A’) be enacted and come into force and effect on September 1, 2008. This date has been established to allow time for the Tree Preservation By-law Technical Coordinator to be hired and the appropriate administrative policies and practices to be set in place.

Not applicable

ENVIRONMENTAL CONSIDERATIONS:

The purpose and intent of the recommended By-law is tree preservation and environmental enhancement.

ACCESSIBILITY CONSIDERATIONS:

Not applicable

ENGAGE 21^ST CONSIDERATIONS:

The purpose and intent of the recommended By-law is tree preservation and environmental enhancement.

BUSINESS UNITS CONSULTED AND AFFECTED:

Operations, Finance, By-laws and Legal Services have been consulted.

RECOMMENDED BY:

Valerie Shuttleworth, M.C.I.P., R.P.P.

Director of Planning & Urban Design

Jim Baird, M.C.I.P., R.P.P.

Commissioner of Development Services