Proposed Amendment to Tree Protection Ordinance

Changes in red:

Section 158-29.  Definitions.

City Arborist.  An employee of the City who is responsible for administering and enforcing this Article.  City Arborists in the Department of Planning and Community Development (DPCD), also referred to as Buildings Arborists, are responsible for enforcing this Article regarding trees on private property as well as Atlanta Public Housing Authority (AHA) and Atlanta Public Schools (APS) property.  Buildings Arborists shall also administer and enforce this Article during the planning and construction phases on all city-owned trees potentially or actually impacted by private construction projects, all building projects in City parks, and construction of the Atlanta Beltline Project or other building on City land.  City Arborists in the Department of Parks and Recreation (DPR), also referred to as Parks Arborists, are responsible for administering and enforcing this Article regarding trees on City-owned and public property, excluding AHA and APS property and, during the planning and construction phases, all City-owned trees subject to impact by construction on private property, in City parks, the Atlanta Beltline Project or other building on City-owned land.

 

Exploited Loophole -- No Right to Appeal a DDDH Decision

One of the most commonly exploited loopholes in Atlanta's tree ordinance can be found in Section 158-101(c)(1) of the  Atlanta Tree Protection Ordinance.

This section says, in part:  "Such [Dead, dying, diseased or hazardous tree] permits are not subject to the notice of preliminary approval of subsection 158-101(d), the posting requirements of subsection 158-101(e), the standards for tree replacement or afforestation of subsection 158-103(1), the recompense formulas of subsection 158-103(b), or to public appeal."

In other words, if the city arborist says a tree is DDDH, no amount of evidence showing otherwise will permit you to appeal that decision.  Nor will the owner of the property on which the DDDH tree(s) resides be required to replace or pay recompense on the tree(s).

backyard viewTo the left is a picture of a decapitated stand of mature oak trees that used to shade the Virginia-Highland property from which this picture was taken.  Upon learning that many of these trees had been declared DDDH by the city arborist, a nearby neighbor filed an appeal, stating that an independently hired arborist did not find any evidence that these trees were DDDH.  The Tree Commission denied this citizen the right to appeal using Section 158-101 of the tree ordinance.  The developer who subsequently built an infill home on this property was not assessed recompense on these destroyed trees since the city arborist had declared them DDDH.

This "DDDH Loophole" has caused an incredible amount of frustration and heartache for Atlanta citizens who, after having lived next to a stand of healthy trees for decades, discover one day that all the trees have been deemed "DDDH" because they are in the way of a planned construction project.  To avoid paying recompense on removed trees, builder/developers often hire their own arborist to submit a report to the Arborist Division identifying the trees the builder wants removed as "DDDH".  The city arborist is then allowed to rubberstamp that report "as is", without verification, because there can be no appeal of the city arborist's decision.

It doesn't take much stretch of the imagination to realize that when there is no way to challenge a city arborist's DDDH decision, it is much simpler for the city arborist to declare the trees as DDDH than to have to inspect the trees in person, write a report showing why the trees are not DDDH and then go head-to-head with the builder/developer and their arborist, challenging them as to why they are wrong.

Until this specific section of the tree ordinance is changed to allow citizens the right to appeal a DDDH decision -- which would require the city arborist to show how he or she determined the trees are DDDH -- we can expect this loophole to significantly contribute to the diminishment of Atlanta's tree canopy.

 

Atlanta’s Tree Protection Ordinance: The Basics

The following highlights some of the basic information of Atlanta's Tree Protection Ordinance:

Permit requirement. A permit is required to remove, destroy or injure any tree on city-owned property, regardless of size, or any tree of 6 inch or greater diameter at breast height (dbh) on private property.   There are no exceptions, either by species or present condition. Even dead trees require a permit for removal. [Sec. 158-29; Sec. 158-101(a)]

Enforcement. The forestry division of the Office of Parks has jurisdiction over city-owned trees.  The Arborist Division of the Office of Buildings has jurisdiction over privately owned trees.  Both foresters and arborists have police power to enforce the ordinance. The Atlanta Police Department (APD) should be called (911) to halt any tree removal or tree destruction activities until a permit for the removal or destruction is obtained.  [Sec. 158-33]

Dead, dying, diseased or hazardous (DDDH) tree permits. DDDH applications are approved or denied based on an individual tree inspection by a city forester or arborist.  Denied DDDH applications may be appealed.  Approved permits may not be appealed.  DDDH permits do not require prior public notice, though the permit must be posted on site for public inspection.  [Sec. 158-101(c)(1)]

Building construction, renovation or demolition tree permits. Building plans are submitted to the Office of Buildings.  Copies are routed to the Office of Buildings Arborist Division and, if necessary, to the Office of Parks division for review.  [Sec. 158-101(d)]

“Notice of Plan Submittal” posting. If initial cursory evaluation indicates the intent to remove, destroy or injure trees on the subject or adjacent properties a “Notice of Plan Submittal” posting is made by placing an orange sign on the property announcing the potential for tree removal.  This sign must remain in place for a minimum of 10 calendar days.  The impacted trees do not need to be marked at this stage.  The plans are available for public inspection in the arborist division. [Sec. 158-101(e)(?) (as amended)]

Preliminary Approval” posting. If plan review determines that trees must be removed or destroyed in the intended construction a “Preliminary Approval” posting is made by placing a yellow sign on the subject property for a minimum of 5 working days.  The impacted trees must be prominently marked with orange paint and the plans must match the site conditions for this posting to occur.  Arborist decisions that include errors of law or of fact may be appealed. The appeal must be made within the 5 working day period.  [Sec. 158-101(e)(f)(?) (as amended)]

Site plan requirements for building construction. A building site plan must include the following elements:

  • A tree survey identifying the size, species and location of all hardwoods of 6 inch or larger diameter at breast height (DBH) and all pines of 12 inch or larger DBH.
  • Trees to be saved and trees to be destroyed are labeled.
  • “Boundary trees” on adjacent properties are identified.
  • Topography at two-foot contour intervals is usually necessary.
  • Existing and proposed structures, including driveways and parking areas, water detention ponds, utilities, material staging areas, and all areas requiring cut or fill.
  • The root save area (critical root zone) of each tree to be saved must be identified, along with a calculation of the percentage of the area to be impacted by construction.
  • Tree protection fences must be correctly located.
  • A proposed tree replacement plan must be included, as well as the manner that the newly planted trees will be watered.  A paid maintenance contract may be required.
  • If a construction limit line is established on the plan it must also be established by a tree protection fence on site, beyond which no activity is allowable. [Sec. 158-105(a)(b)]

Landscape permits. Permits to remove trees for landscaping are subject to the same requirements as building permits, but the plans are submitted only to the Arborist Division and do not need to be as detailed.  Posting, tree protection, replacement and recompense provisions are the same as for building permits. [Sec. 158-101(c)(2)]

Silvicultural permits. Permits to remove trees for forest stand improvement also must be approved by the Arborist Division.  They are subject to the posting and tree protection requirements, but may or may not be subject to the replacement and recompense provisions of the ordinance. [Sec. 158-101(c)(3)]

Location to house permits. A tree within 5 feet of the foundation of a single-family residence or a duplex is usually approved for a permit as a “DDDH” tree if it meets several additional criteria. [Sec. 158-101(i)(1-12)]

Additional criteria for non-DDDH tree permits. All requirements of the ordinance must be met; a tree replacement plan must be approved; and, in the case of building permits, the tree is located within the buildable area of the lot or in the setback or required yard areas that must be used for driveways or utilities that cannot be accomplished through any other means. [Sec. 158-102(a)(1-3)]

Undesirable species. A permit to remove certain healthy trees – Mimosa, Ailanthus, White mulberry, Paper mulberry, Chinaberry, Paulownia, Cherry laurel, Bradford pear and Leyland cypress – may be granted without recompense if the tree in question is less than 12 inches dbh and meets certain other criteria.  [Sec. 158-102(b)]

Nuisance trees. A DDDH tree on private property may be declared a nuisance and its removal forced if it threatens public streets or public property. [Sec. 158-110(1)]

Standards for tree replacement. The ordinance calls on both homeowners and builders to minimize the impact on trees on their properties and to replant an equal number of trees to replace those removed for construction or landscaping purposes.  Replacement trees shall be overstory (> 80’ at maturity) planted at a minimum of 35’ on center or mid-canopy (60-80’ at maturity) planted at a minimum of 25’ on center.  Only if site conditions require may understory or ornamental trees be planted at 15’ on center to qualify as recompense.  No undesirable species may be planted for recompense. [Sec. 158-103(a)(1-2)]

Recompense. A signature feature of the Atlanta Tree Protection Ordinance is “recompense,” the purpose of which is to recoup some of the lost public value that occurs in the destruction of trees.  Recompense is satisfied by the “in-kind” planting of replacement trees or by “in-cash” payment into the Tree Trust Fund according to various formulae.  All hardwoods of 6 inch dbh and greater and all pines of 12 inch dbh or greater are subject to recompense.  [Sec. 158-103(b) and (c)(1)]

Standard Recompense. The formula below is the most common form of recompense:

R = $100.00 (Nrem - Nrep) + $30.00 (TDBHrem - TCIrep), R >=0
Where R = cash recompense
Nrem = number of trees removed
Nrep = number of trees replaced
TDBHrem = total diameter inches of the trees removed
TCIrep = total caliper inches of the trees replaced

Maximum recompense. New subdivisions, new lots of record and vacant lots may qualify for maximum recompense with different requirements for different zoning classification.  using various formulas  is established by zoning category. Additional formulas for low income housing units, infrastructure development and conservation easements are also established under maximum recompense formulae. [Sec. 158-103(c)(2-8)]

Tree protection. On lots and subdivision of one acre or more environmentally sensitive areas such a wetlands, streams, stands of mature trees and other significant aspects of the natural environment must be included on the site plan and protected to the maximum degree possible.  On sites of less than one acre trees in the setback and required yard areas must be protected to the maximum degree possible.  No more than 10 percent of the trees in a wetland or floodplain may be approved for removal or destruction.  [Sec. 158-104]

Legal penalties for illegal destruction or removal. The Office of Buildings arborist or Office of Parks forester may cite under the Atlanta Code of Ordinances the owner, architect, builder, contractor and/or tenant on any site where trees are removed or destroyed without a permit.  Such cases are adjudicated in Municipal Court as misdemeanors, subject to fines of $500 for the first offense, $1000 for each offense thereafter. [Sec. 158-34(a)]

Administrative penalties for illegal destruction or removal. The Office of Buildings arborist or Office of Parks forester may also charge illegal destruction under the specific provisions of the Tree Protection Ordinance.  Such charges, if appealed, are adjudicated by the Tree Conservation Commission.  Violators are usually subject to Standard Recompense plus $500 for the first tree, $1000 for each additional tree, and often also required to replant a tree for each tree removed or destroyed.  Special provisions exist for cases where an unknown number or unknown diameters of trees removed cannot be determined. [Sec. 158-34(a)(b)]

Tree Conservation Commission (TCC). The TCC theoretically consists of 15 members, eight appointed by the mayor and seven by the city council.  All appointees are approved by city council.  Mayoral appointees include a registered landscape architect, a registered architect, a member of an environmental organization, a real estate professional, a private arborist, two lay citizens interested in environmental protection, and either a botanist, forester, horticulturalist or nursery worker.  Council members can appoint a residential builder, a residential developer, a commercial or industrial developer, an urban or environmental resource planner, and three lay citizens.  Appointments are for two years.  Provision is made for the filling of vacancies and for temporary appointments.  Administrative staff is assigned by city government.  [Sec. 158-61 and 158-62]

TCC powers and duties. In addition to its primary functions of hearing appeals and educating the public, the TCC is tasked with assisting the city arborist in maintaining records of historic, specimen or environmentally significant trees in the city, reviewing and approving arboricultural and legal standards of enforcement, and assisting the city forester in the creation of a master plan for the urban forest. [Sec. 158-63]

TCC meetings. The commission holds monthly business meetings open to the public.  A full-time city employee serves as clerk to maintain all records of the commission.  [Sec. 158-64]

TCC appeals. An appeal before the commission must be based on allegations and evidence that a decision by a city official – usually, but not necessarily, an arborist or forester – misinterpreted or misapplied specific sections of the Tree Protection Ordinance.  Appeals must be filed with the clerk of the commission within the 5 calendar days established by the “preliminary approval” posting described previously.  A $75 administrative fee or a detailed and signed “hardship” letter must accompany the appeal. [Sec. 158-65(a)(1)(2)(3)]

Who may appeal. Appeals regarding trees on private property are based on residence or ownership of property or business within the neighborhood planning unit (NPU) in which the subject property is located or within 500 feet of the property.  Appeals regarding trees on public property may be made by any citizen of Atlanta, any owner of property or a business in Atlanta, or any civic organization in the NPU in which the trees are located.  [Sec. 158-65(a)(1)]

After an appeal is filed. Any activity authorized by the decision under appeal is stayed:  “no permits shall be issued, no trees cut, nor earth disturbed.”  The clerk sets a hearing date.  Public notice of the hearing, including the posting of a white appeal sign on the property, must be made at least 15 days prior to the hearing.  At least two weeks prior to the hearing the appellants and other interested parties must submit in writing their detailed appeals.  Within one week of the hearing all rebuttal arguments and evidence must be submitted in writing.  No new evidence will be heard by the commission unless such evidence emerged in the week prior to the hearing. [Sec. 158-65(a)(5)]

Appeal hearing. At least three commission members must be present for a quorum.  Any person, agent or attorney may sign up to speak at the hearing. Time limits are established for evidence and rebuttal by all parties. Requests for additional time must be made in advance of testimony.  Following presentations by all parties the commission closes public comment and discusses the case.  A ruling, determined by majority vote of the commissioners present, is usually made at the hearing.  Specific circumstances may delay a ruling, but not for more than two months.  [Sec. 158-65(a)(5)]

Superior Court appeals. Commission decisions may be appealed to the Superior Court of Fulton County.  Written notice of an intent to appeal must be filed with the clerk of the commission within six calendar days of the written decision of the commission in order for the stay on activity to remain. [Sec. 158-65(b)]

Frivolous appeals. An appeal can be declared frivolous by a vote of the commission in advance of the hearing if “it clearly appears … that no facts could be brought forth at a hearing that could sustain such an appeal as a matter of law.”  The clerk then notifies all parties of the decision.  A notice of an intent to appeal a “frivolous” ruling must be made in writing to the clerk within 3 working days of the commission’s written ruling. [Sec. 158-65(c)]

   

Enforcement

The Atlanta Tree Protection Ordinance specifies in Section 158-61 that:

The bureau of parks and the bureau of buildings shall be charged with the enforcement of this article. The city forester and the city arborist have police power to do all acts necessary to ensure that the provisions of this article are not violated, including, but not limited to, the issuance of citations for the violation of any provision of this article. In instances in which an individual or firm is found cutting or otherwise destroying a tree without a permit to do so in their possession, the Atlanta Police Department shall require such person or persons to cease such operations until a permit is obtained.

Please print this article and show it to the police officer if you need to call one to stop illegal tree cutting.  Not all police officers know that one needs a permit to damage or cut trees, even when the tree is dead, dying, diseased or hazardous.

 

Tree Conservation Commission

The Atlanta Tree Protection Ordinance specifies in Section 158-61 that:

There is established a tree conservation commission for the City of Atlanta, referred to in this article as the commission. The commission shall consist of 15 members, eight of which shall be appointed by the mayor and seven by the council. All members shall be confirmed by the city council. Each of the members shall contain specialized knowledge about trees, the Tree Protection Ordinance, and/or the impact of construction activities on trees. The membership shall consist of the following:

  1. One member shall be appointed by the mayor who is a registered landscape architect.
  2. One member shall be appointed by the mayor who is either a botanist, forester, horticulturist or nursery worker.
  3. One member shall be appointed by the mayor who is a registered architect.
  4. One member shall be appointed by the mayor who is a member of an environmental organization.
  5. One member shall be appointed by the mayor who is a real estate professional.
  6. One member shall be appointed by the mayor who is a private arborist.
  7. Two members shall be lay citizens appointed by the mayor interested in environmental protection.
  8. One member shall be appointed by the council who is a residential builder.
  9. One member shall be appointed by the council who is a residential developer.
  10. One member shall be appointed by the council who is a commercial or industrial developer.
  11. Three members shall be citizens appointed by the paired districts in consultation with the at-large council member.
  12. One member shall be an urban planner or an environmental resource planner appointed by the president of council.

In addition to its primary functions of hearing appeals and educating the public, the Tree Conservation Commission is tasked with assisting the city arborist in maintaining records of historic, specimen or environmentally significant trees in the city, reviewing and approving arboricultural and legal standards of enforcement, and assisting the city forester in the creation of a master plan for the urban forest. [Sec. 158-63]

The commission holds monthly business meetings open to the public.  A full-time city employee, This e-mail address is being protected from spambots. You need JavaScript enabled to view it serves as clerk to maintain all records of the commission.  [Sec. 158-64]

   
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