Since Portland’s new “citywide” tree code (Title 11) went into effect last year, myths and rumors abound about its impact, its implementation and how to improve it. What follows are some of the common myths and why they are not true.
Myth 1: Portland’s new tree code weakened safeguards for trees.
This rumor circulated after it was revealed that a developer could fell three massive sequoias in Eastmoreland Neighborhood and pay only $1,200 to plant two saplings to replace them. How could that be? Some speculated that Portland once had stronger safeguards for trees in the past and that the City Council’s action in adopting Title 11 made it easier to cut trees. This certainly seems plausible given recent events, but it is false.
Before Title 11 no tree regulations applied to development or redevelopment of individual properties, only in new subdivisions, planned developments, and environmental or scenic overlay zones. For the first time, Title 11 required tree mitigation and planting in conjunction with thousands of building permits per year. Hence, where rules require only $1,200 to mitigate the removal of the massive Eastmoreland sequoias, the old tree code would have required none at all. Title 11 also made tree cutting rules in nondevelopment situations clearer and more inconsistent. While far from perfect, Title 11 consolidated tree regulations and provided a much more coherent framework that can and should be reassessed, evaluated and reformed over time.
That said, it is also evident that Portland’s new tree code is a lot weaker than Portlanders expected it would be. In part, this is because the tree code was developed between 2008 and 2011 during the Great Recession. At that time, few could have anticipated the white-hot real estate market we’re experiencing today. But it also because the new tree code was not as strong as it could and should have been.
Myth 2: Portland’s new tree code requires developers to preserve trees.
Read Title 11 and you might think it requires tree preservation. The code refers to a “preservation standard” that appears to require the preservation of one-third of trees on a development site. However, in fact, nothing in Title 11 requires that any tree associated with new development to be preserved. Developers who decide they can’t or simply don’t want to preserve one-third of the trees can pay a fee in lieu of preservation to plant new trees on public land. There are some tree preservation requirements that apply specifically in separate codes for development in environmental zones, new subdivisions and some planned developments (Title 33), but these situations are a small and shrinking percentage of all new development in Portland.
The language in Title 11 that suggests a “tree preservation” requirement where there isn’t any is one of the most confusing and frustrating aspects of the new code for ordinary Portlanders. However, legally, there is nothing to prevent the City Council from establishing a real Title 11 tree preservation requirement. The Title 11 Oversight Advisory Committee, the Urban Forestry Commission and Southeast Uplift have already proposed the city develop a site review process for some large healthy trees that would require developers to demonstrate the need to remove trees to meet desired density before permitting removal. This approach would be entirely consistent with the stated purpose of Title 11: Preserve trees that can be preserved with new development.
Myth 3: Portland’s new tree code applies equitably citywide.
Portland’s new tree code was born from the “City-Wide Tree Project,” which heeded calls for reform in neighborhoods across the entire city. Between 2008 and 2011, the project staff and stakeholders worked to develop a “consistent, cohesive and comprehensive” regulatory framework for all types of trees across all types of land uses. But a pending lawsuit related to industrial land supply and some 11th-hour lobbying by developers and real estate interests during the legislative process successfully exempted most commercial and industrial sites from new tree regulations. After the code went into effect last year, internal lobbying by the Portland Bureau of Transportation successfully narrowed the city forester’s discretion with the effect of lowering the maximum tree mitigation that could be applied with public right-of-way improvements (See Myth 8).
Such exceptions and exemptions make for inequitable outcomes for Portlanders and undermine efforts to foster a healthy urban forest citywide. Industrial lands and the public right-of-way are the two land-use categories that are currently the farthest from achieving the city’s canopy cover targets. They are also where more and larger trees have the greatest potential to reduce urban heat and improve air and water quality and thereby yield improved public health outcomes. High poverty, lower canopy neighborhoods such as Cully or many parts East Portland have more unimproved streets and more industrial land. Hence the new tree code is weakest in precisely the neighborhoods where the lack of trees is a significant environmental justice issue. For all these reasons, the Title 11 OAC, the Urban Forestry Commission, and Audubon Society of Portland have all recommended removing exemptions for commercial and industrial land as part of future reforms.
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Myth 4: Preserving more trees in Portland will force expansion of the urban growth boundary and threaten forest and farmland preservation.
This argument is an old favorite of those who see a political opportunity in pitting urban tree advocates against advocates for forest and farmland preservation and walkable neighborhoods. The variant on this myth is that a “tight” UGB and regional density goals threaten urban trees by constraining land supply and forcing conflict with development.
For several reasons, both variants pose a false choice. First, both Title 11 and zoning code changes adopted in 2011 were intended to improve tree preservation and tree planting while allowing development to meet zoned densities. As noted above, the code clearly was not intended to preserve all trees on development sites but merely encourage (but ultimately not require) more tree-friendly design in meeting zoning. More importantly, housing capacity in Portland is more than sufficient to support both tree canopy and housing goals. Even if the city required developers to preserve more healthy, non-nuisance, non-hazard trees, it needn’t limit density in most situations. But even if it did, the space to preserve more large healthy trees would be a drop in the bucket in terms of the overall land supply and zoned capacity, especially on the regional scale. Consider the fact that the Metro Council has added more than 31,000 acres to the UGB since 1979, but only 6 percent has been developed. Consequently there is room for 40,000 new single-family homes inside the current UGB, plenty of room to have new development and large healthy trees in our neighborhoods.
This is not to say that zoning never comes into conflict with tree preservation. Some local governments, including Portland, have made bad zoning decisions that have put trees in conflict with development. But those are just that, bad zoning decisions that should be corrected, in part, through smarter regulations that allow or require more tree preservation. To suggest the UGB or regional density goals are responsible for local tree removal is to distract from the real threats to a healthier, more diverse urban forest.
Myth 5: Preserving more trees will make Portland unaffordable.
This argument needlessly pits tree advocates against affordable-housing advocates by posing another false choice. First, as noted above, even a strengthened tree code need not reduce housing supply which is only partially related to land supply. Second, the cost of preserving and planting trees is small compared to the cost of permitting, designing and constructing new developments. The impact on affordability is even smaller when you consider these costs are as likely to be passed on to the previous landowner (in the purchase price for land) as they are to future homeowners.
Third, trees provide important public health benefits such as reduced urban heat island effect and improved air quality that maintain and improve human health. These values should not be pitted against affordable housing. Cutting one to achieve the other should be unacceptable. It was not long ago some developers used the same arguments to fight stormwater management requirements to control pollution. Today, these requirements are simply another cost of doing business and help create safer, healthier and cleaner neighborhoods for everyone. Sensible tree preservation and planting requirements should be no different.
Portland is facing an affordability crisis, and Portlanders should be strong advocates for both affordable communities and a healthy urban forest. It turns out, there are plenty of city policies that negatively and significantly impact housing affordability and create even less space for trees. One of the biggest culprits is parking (Myth 7). Research by the city of Portland found that parking requirements can add between $3,000 and $45,000 per parking space to the cost of developing each new housing unit.
Myth 6: Portland’s new tree code forces developers to remove trees.
After trying to pit tree advocates against forest and farmland preservation advocates (Myth 4) and then affordable-housing advocates (Myth 5), some try to divide tree advocates against themselves. They argue the new tree code actually forces developers to remove trees. The argument goes like this: “Rigid” rules for the protection of tree root zones of preserved trees effectively force developers to remove trees that they could or would otherwise “preserve.”
The reality is that root protection rules are not rigid. Title 11 allows developers to encroach on 25 percent of root protection zones without additional review. If that is still not enough to accommodate development, additional encroachment can be permitted if the developer can demonstrate with the opinion of a certified arborist that it won’t eventually kill the tree. The opinion of a certified arborist is critical because the vast majority of developers aren’t arborists. Simply giving developers free reign to encroach on root zones is folly because it will result in situations where encroachment could eventually kill trees after the developer is long gone and unaccountable for mitigating the loss.
There is sometimes uncertainty in assessing tree survivability from root zone encroachment. So in rare instances, it is possible for tree root zone protection and tree preservation to come into conflict. Some tweaks in the code might be helpful. But most of these rare conflicts could be headed off entirely if the city code outright required some trees to be preserved in the first place.
So no, Title 11 does not force developers to remove trees. However, it is true that other parts of the city code unrelated to trees do. There are real regulatory barriers to thoughtful developers who want to preserve trees with their development.
Myth 7: Portland developers don’t care about trees.
The reality is most developers understand the value of trees to their developments, and the exceptional developer will go out of their way and above and beyond code requirements to preserve them. These stories don’t get told enough. One recent example is developer Steve Melkerson, who responded to neighbors’ concerns by actually shrinking and redesigning his “Paradox 50” development in Mt. Tabor neighborhood in order to preserve a massive Paradox Walnut as an asset. This is a great success story of a positive outcome.
But it should pose a question. Are developers like Melkerson put at a competitive disadvantage for such responsiveness and creativity? Why should developer Vic Remmers, who held the Eastmoreland sequoias hostage, walk away enriched? Shouldn’t the city make it easier for thoughtful developers to save trees that can be saved and harder for hasty ones to remove the same trees?
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The city could do a lot more to remove regulatory barriers to tree preservation and planting. Examples include flexible lot-line setbacks and reduced height restrictions and parking requirements in order to preserve trees. Parking in particular takes up enormous amounts of space in the urban environment and many outdated parking requirements mean less space to preserve and plant trees while adding to costs of housing (Myth 5).
When it comes to public street improvements, rules and processes could allow or make it much easier to install tree-friendly sidewalk designs or technologies such as rubber sidewalks. In some situations the city could consider charging developers a fee in lieu of sidewalk construction and redirect funds to where new sidewalks are most needed, desired and not in conflict with large healthy trees.
The city should address theses types of barriers to tree preservation and planting in the existing code head-on in the current Residential Infill and Mixed Use projects.
Myth 8: City bureaus are held to a higher standard of tree protection and preservation.
City bureaus are actually held to a lower standard than private development in many instances. For example, PBOT has lobbied for and secured reductions in mitigation required for street trees deemed necessary for removal in order to accommodate for “street improvements.” PBOT argues they need this special treatment because tree regulations make these public works project “less financially feasible.”
Portlanders should question these policies and their rationale. What are these “public improvements” that require the unmitigated loss of healthy trees? Why does preserving or mitigating trees make them less financially feasible, and for whom? What exactly constitutes “financial feasibility”?
Urban trees provide multiple ecosystem services. They include stormwater management, improved air quality, reduced urban temperatures and enhanced wildlife habitat, services that have value and cost labor and resources — real money — to replace or restore. Hence the loss of these ecosystem services are costs that are born by the community and sometimes the city itself. The whole purpose of tree mitigation is to compel developers and city bureaus to internalize rather than externalize these values of healthy non-nuisance trees and the costs of their removal. To that end and as a matter of simple fairness, agencies like PBOT should be helping raise rather than lower the bar for themselves.
The upshot
Portland’s new tree code is far from perfect especially in the current real estate development market. It will need sustained refinement and improvement over time. But reform should be based on real problems not distractions and false choices. Reform should keep a laser focus on the achievable goal of a healthy and diverse urban forest accessible to all Portlanders, new and old.
Jim Labbe grew up in Portland’s well-treed neighborhoods, where he enjoyed playing in his tree fort high in the canopy of a bigleaf maple. He served as Audubon Society of Portland’s urban conservationist from 2002 to 2016 and on the citywide Tree Project Advisory Committee, which developed the city’s new tree code, from 2008 to 2010. In 2015, he also served on the Oversight Advisory Committee that reviewed the first year of Title 11 implementation.