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HomeMy WebLinkAboutPD-136-98DN: PD-1~'-98 _ THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON REPORT Meeting: General Purpose and Administration Committee File # Date: Monday, December 7, 1998 Res. # ~ p i) ' (~-1~"`'~~ Report.#: PD-136-98 File #: PLN17.7.1; PLN 30.1 By-law # Subject: TREE PRESERVATION FILE NO.: PLN 17.7.1; PLN 30.1 Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following 1. THAT Report PD-136-98 be received; 2. THAT Council approve the following policy changes: • require a tree assessment at the subdivision application stage; and • require the value of the trees to be preserved by the approved tree preservation plan to be included in the subdivision agreement and any letter of credit posted shall not be reduced below the value of trees until such time the Municipality assumes the subdivision; 3. THAT Council approve the proposed amendment to the Woodlot Preservation By- law and direct the Clerk to provide notice as required under the Municipal Act; and 4. THAT all interested parties listed in this report and any delegations be advised of Council's decision. 1. BACKGROUND 1.1 On September 28, 1998, Council passed the following resolution: "THAT Staff be requested to review and report on imposing a financial requirement on developers before a subdivision is approved to ensure that trees are not removed prematurely without the approval of the Municipality." 1.2 We understand that Council is concerned that developers have removed trees prior to development, or removed trees prior to approval of a tree preservation plan. In addition, there is no financial leverage to ensure trees are protected despite the presence of a tree preservation plan. As a result, Staff reviewed the effectiveness of - b~2 ~ 'REPORT PD-136-98 PAGE 2 the Woodlot Preservation By-law and examined various options to protect trees on lands awaiting development. 2. WOODLOT PRESERVATION BY-LAW 97-35 2.1 The Municipal Act (Section 223.2) permits Council to pass a by-law to prohibit or regulate the injury or destruction of trees or any class of trees in any defined area or any class of land. The Municipality's Woodlot Preservation By-law (By-law 97-35) was approved by Council on April 14, 1997 pursuant to the Municipal Act. Said By-law applies to that area south of Taunton Road and easterly to include Newcastle Village, as this was felt to be the area most subject to development pressures. 2.2 Subsequent to our review of the Woodlot Preservation By-law, we note the following deficiencies: a) As evidenced by its name, the current focus of By-law 97-35 is on the protection of woodlots. A 'woodlot' is defined by the By-law as generally being any wooded area 0.2 ha in area or greater and defined as follows: • 200 trees of any size in a 0.2 hectare area; • 150 trees measuring more than a 5 cm diameter in a 0.2 hectare area; • 100 trees measuring more than a 12 cm diameter in a 0.2 hectare area; or • 50 trees measuring more than a 20 cm diameter in a 0.2 hectare area but does not include orchards, Christmas tree farms, or landscaping farms. The By-law does not protect individual trees if the trees are not within the definition of a woodlot as stated above. b) The By-law applies to lands where applications for subdivision or consent approval are submitted but ceases to apply once subdivisions are draft approved and consents are approved. Presumably, the tree preservation plan requirement will kick in to protect tree removal, making it redundant to apply the By-law after draft plan approval. However, it now becomes apparent that many months or years may lapse before a tree preservation plan is submitted and approved by the Municipality. During this time frame, there is no mechanism in place to preserve trees. 2.3 The By-law permits the Municipality to issue an Order to require that the cutting of trees be stopped. The By-law also provides for anyone who contravenes the By-law to be charged and, if convicted by the Court, to be liable for fines of up to - b~~' s REPORT PD-136-98 PAGE 3 $10,000.00 for a first conviction, and up to $20,000.00 for a second conviction. The Court may also order the person convicted of the offense to replant the trees. 3. TREE PRESERVATION REQUIREMENTS IN SUBDIVISION AGREEMENTS 3.1 The Municipality enters into a subdivision agreement with the developer of each subdivision which specifies the terms of development and the financial requirements. Prior to execution of a subdivision agreement, the developer must submit a tree preservation plan to the Municipality for approval. The approved plan forms part of the subdivision agreement and must be executed and registered on title of the property prior to issuance of building permits. 3.2 Once the tree preservation plan is approved, trees cannot be removed, destroyed, or damaged, unless they are in accordance to the approved plan. Where trees are removed or damaged contrary to the plan, the agreement requires that the trees must be replaced by the developer with trees of a height, caliper, and species as determined by the Director of Planning. However, this requirement is not all that effective because it is almost impossible to ask the developer to replace a 100 year old maple tree. Inevitably, this leads to replacement of a smaller tree. In addition, there is no financial penalty or fine for tree removal contrary to tree preservation plan. As a result, if the "preserved trees" are in the way of construction equipment, their prospect of survival are in doubt. 4. STAKEHOLDER CONSULTATION 4.1 Staff sent copies of this report to all interested parties listed on this report for comment. Staff met with representatives of the development community to discuss the report. The following summarizes the development community's concerns contained in a letter from Kelvin Whalen (see Attachment No. 1): a) The development community agrees in principle with the concept of tree preservation, where practical, within new developments. bL~~ REPORT PD-136-98 PAGE 4 b) It is suggested that a tree assessment rather than a full inventory is required at the subdivision application stage. This report would recommend areas eligible for preservation measures. c) The Tree Preservation By-law should be amended to cover the enforcement of tree preservation in plans of subdivision. d) Given the threat of fines under the revised Tree Preservation By-law, tree preservation securities should not be imposed on the development community. 4.2 The response has been reviewed and the following comments are offered for consideration a) Staff is encouraged that the development community has a positive view towards tree preservation. b) The original report had requested that subdivision applications be accompanied with a tree inventory. This would identify the number of species of all existing trees with a minimum height of 1.5 m and minimum caliper of 60 mm. After due consideration, Staff agree that this would be excessively onerous since most of the small trees generally cannot be preserved. Instead, a tree assessment would be more appropriate. This requirement is discussed in Section 5.1.1 of this report. c) The development community argues that amendments to the Tree Preservation By-law provide severe fines that deter developers from removing trees illegally. Staff do not concur with this position because instances could occur where the value of trees removed could outweigh the potential fines. d) Staff had initially proposed that, prior to the registration of a plan of subdivision, a letter of credit be taken in the amount of the value of the trees subject to preservation. The development community would prefer that fines under the Tree Preservation By-law replace the requirement for a letter of credit. As a result, Staff are proposing that existing letters of credit be used as security. This is discussed in Section 5.2.1 of this report. 5. CORRECTIVE MEASURES 5.1 Tree Assessment Requirement 5.1.1 Staff propose to amend the subdivision application by requiring a subdivision application to be accompanied by a tree assessment prepared by a qualified forestry consultant. The assessment would identify the condition, amount and type of site vegetation and outline areas where tree preservation is possible. The assessment would eventually form the basis of the tree preservation plan. The subdivision bL~ ` 'REPORT PD-136-98 PAGE 5 application form would be amended to include this new requirement. The tree assessment requirement would not apply to severance applications or on lands where there are no trees. 5.2 Tree Preservation Plan Security 5.2.1 Where a tree preservation plan is required as a condition of draft approval, monetary value for the trees that are being preserved will have to be provided by the developer at the time of submission of the tree preservation plan. No additional letter of credit will be required for this. Rather, as other works within a subdivision are completed, the letter of credit would be reduced down to the amount equivalent to the value of trees that are to be protected. 5.2.2 If an infraction occurs, the Municipality will use the balance of the letter of credit for replanting purposes based on replacement value and not necessarily on a one for one basis. For example, if the total value of trees destroyed is $5,000, the Municipality will have the developer replant trees worth $5,000 regardless of the number of new trees needed. Should the developer fail to do so, the Municipality will draw on the letter of credit and perform the work. If the developer adheres to the tree preservation plan, the letter of credit is gradually released until the subdivision is assumed by the Municipality or all lots are built, whichever occurs last. This process will require a slight increase in Staff time for regular inspections during construction to ensure that the developer has adhered to the tree preservation plan. 5.2.3 Staff surveyed the other lakefront municipalities in Durham Region to determine what requirements were in place for tree preservation. Whitby, Ajax, and Pickering all indicated that they had no measures to enforce tree preservation prior to approval of the tree preservation plan. The tree preservation plan forms part of the registered subdivision agreement but no securities are required to ensure compliance. b~0 ' 'REPORT PD-136-98 PAGE 6 The City of Oshawa has several policies to protect trees on lands with a development applications. One of these policies requires the developer to post financial securities to guarantee tree protection once a tree preservation plan is approved. This requirement is similar to what is being proposed for Clarington. 5.2.4 Staff is cognizant of the fad that many subdivisions are now in the process of working towards final approval and registration. Therefore, this policy change should only apply to all future subdivisions and those subdivisions that have not yet submitted engineering drawings for approval. Staff will amend the standard subdivision agreement to implement this new policy. 5.3 Amending the Woodlot Preservation By-law 5.3.1 In order to correct the deficiencies in the current by-law, Staff propose the following amendments. The amendments to By-law 97-35 is contained in Attachment #1 and would have the following effect: • expand the scope of the By-law to protect individual trees on vacant land having a maximum lot size of 0.4 hectares within all designated urban areas; and, • extend the By-law to cover all plans of subdivision applications, up to the time the subdivision agreement is registered. 5.3.2 Should tree cutting occur in contravention of the By-law, Municipal Staff will have the authority to order the destruction of the trees to be stopped. As well, persons charged and convicted under the By-law will be subject to the financial penalties and replanting orders provided for in the By-law. In this regard, the tree assessment proposed to be submitted with the application of a plan of subdivision would be vital background information to permit the effective enforcement of the By-law. 6. CONCLUSIONS 6.1 Staff feel that the proposed corrective measures would provide for better protection of premature or unauthorized tree removal particularly on those lands awaiting future development. Implementation of these policy changes would be done in ~~7 ' 'REPORT PD-136-98 PAGE 7 consultation with the Public Works Department. All parties listed in this report have received notice of the Committee Meeting. Respectfully submitted, ~~ ~_-~ ~. Reviewed by, ~~~,~~ Franklin Wu, M.C.I.P., R.P.P., Director of Planning & Development Chief Administrative Officer RH*FW*cc November 30, 1998 Attachment No. 1 - Letter from Kelvin Whalen, Urban Development Institute, Durham Chapter Attachment No. 2 - Proposed Amendments to Woodlot Preservation By-law 97-35 Interested parties to be notified of Council and Committee's decision: Mr. Jamie Maclnnis, President Durham Home Builders Association 1333 Boundary Road Unit 4, Oshawa, Ontario L1 J 6Z7 Oshawa Durham Homebuilders Association King Street Postal Outlet - P.O. Box 26064 206 King Street East Oshawa, Ontario L1H 1C0 Mr. Kelvin Whalen Urban Development Institute -Durham Chapter c/o The Kaitlin Group Limited 1029 McNicoll Avenue Scarborough, Ontario M1 W 3W6 Evylin Stroud 89 Little Avenue Bowmanville, Ontario L1C 1J9 bLt~ ATTACHMENT N1 Urban Development Institute /Ontario Durham Chapter November 24, 1998 Mr. L. D. Taylor Manager of Development Review, Planning Department The Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1C 3A6 Deaz Sir, ~r yq , 5 ~'~a ~d`W~ _~~ NOY 2 7 1958 h1U'~,~ "'':GTON PLAPr...- _,, - ~"JT Re: Proposed Improvements to Tree Preservation Measures Your File PLN 17.7.1 and PLN 30.1 On behalf of the Durham Chapter of the Urban Development Institute, I would like to thank you for the opportunity of meeting with yourself and Richard Holy on November 20, 1998, and to offer the following comments; - In principle, we agree with the concept of encouraging tree preservation to the extent practical, within new developments. Not only does preservation reduce the site preparation costs, but the retention of trees adds to the allure of the development and therefore its value. However, we can also appreciate that the Municipality would like to strengthen its ability to enforce preservation to ensure compliance by the development community. - We would therefore suggest that as a requirement of draft approval by the Municipality, that the developer should be required to engage a qualified landscape architect or forestry consultant to prepaze a Tree Assessment. This report would be submitted to the Municipality for their review and approval and would describe the extent, quality and quantity of the site vegetation and provide recommendations for areas eligible for preservation measures. This would form the basis for the Tree Preservation Report which would itself be provided as a condition of draft approval, and compiled in conjunction with the detailed engineering design that follows draft approval. The Municipality may wish to clarify in their conditions that the Developer may not proceed to remove any trees until the Tree Preservation report is approved. - As their currently appears to be a deficiency in the existing Tree Cutting by-law in that it no longer pertains to lands that are draft plan approved, the Municipality may wish to consider amending the by-law to extend beyond the draft approval period. This will then serve as a deterrent to remove any trees during the period following draft approval since severe fines could be applied for non-compliance. /2 ~~' o ~ ~ 2025 SHEPPARD AVENUE EAST, SUITE 2208 ~ WILLOWDALE ~ ONTARIO ~ M2J 1V6 ~ (416) 498-9121 ~ FAX (416) 498-6356 'j' ~T Urban Development Institute /Ontario ~J'~ Durham Chapter -2- -Given that the threat of fines through the by-law exists, this will be sufficient deterrent to negligent tree removal, and therefore the imposition of specific securities through the subdivision agreement would not be required.. Thank you for this opportunity to comment and we would appreciate being provided with a copy of the draft report once available. Should you require any further discussion of this matter, please do not hesitate to contact the undersigned. Yours very truly, Kelvin Whalen, Chair, Durham Chapter 2025 SHEPPARD AVENUE EAST, SUITE 2208 ~'+" (~ ~ U WILLOWDALE ~ ONTARIO ~ M2J iV6 (416) 498-9121 ~ FAX (416) 498-6356 THJ= CORPpRATION OF THE MUNICIPALITY OF CLARINGTON " BY-LAW NUMBER 98- being a By-law to amend By-law 97-35, the Woodlot Preservation By-law of the Municipality of Clarington. WHEREAS the Council of the Corporation of the Municipality of Clarington deems it advisable to amend By-law 97-35 of the Municipality of Clarington. NOW THEREFORE BE IT RESOLVED THAT the Council of the Corporation of the Municipality of Clarington enacts as follows: 1. Section 3.1, AREA OF APPLICATION OF BY-LAW, is hereby amended by adding the following new sub-sections: " (iv) any tree on lands located within a designated urban area in the Official Plan having a minimum lot size of 0.4 hectares or greater; (v) any tree on lands that are subject to an Application for Draft Plan of Subdivision, until such time as a Subdivision Agreement between the Owner of the lands and the Municipality has been executed." 2. Section 7.2, ISSUANCE OF PERMIT, is hereby amended by adding the following new sub-section: "(iii) The destruction of trees is proposed to occur on lands as defined by Section 3.1 (iv) provided that the Director is satisfied that the intent of the Official Plan and this By-law is maintained and a report has been prepared by a forestry consultant indicating that the destruction of trees is necessary. (iv) The destruction of trees is proposed to occur on lands subject of a Drak Approved Plan of Subdivision, provided that the Director is satisfied that the intent of the Official Plan and this By-law is maintained, and a report has been prepared by a forestry consultant indicating that the destruction of trees is necessary to allow the development of the subdivision in accordance with the Draft Approved Plan and conditions thereto." 3. This By-law shall come into force and take effect on the day of enactment by Council. BY-LAW read a first time this day of 1998. BY-LAW read a second time this day of 1998. BY-LAW read a third time and finally passed this day of 1998. MAYUK CLERK ~J~ ~, ~ ~ ~;~,~~,,'r;'" I ,~_,; ~r ''t ~ ~ ,~ ~ t ~~ '! r r ~~11YI f-~ ,h., ~•~+~i. t °. /...: