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HomeMy WebLinkAboutPSD-070-17Planning Services Report If this information is required in an alternate accessible format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131. Report To: Planning and Development Committee Date of Meeting: October 2, 2017 Report Number: PSD-070-17 Resolution: File Number: PLN 17.7.2 By-law Number: Report Subject: Comments on Region of Durham Tree By-law, Five Year Review Recommendations: 1.That Report PSD-070-17 be received; 2.That Council endorse the comments provided on the Region of Durham Tree By-law, Five Year Review; 3.That Report PSD-070-17 be sent to the Commissioner of Planning and Economic Development for the Region of Durham; and 4.That any interested parties or delegations be advised of Council’s decision. #PD-183-17 Municipality of Clarington PSD-070-17 Page 2 Report Overview This report is prepared in response to Council’s request for staff to prepare and bring forward comments for Council to endorse on the Region of Durham Tree By-law Five Year Review. 1. Background 1.1 General Government Committee at its meeting on September 5, 2017 passed the following resolution: “That Communication item 9.5 from Dimitri Pagratis, Project Planner, The Regional Municipality of Durham – Region of Durham Tree By-law, Five Year Review, be referred to staff to provide comments to the Regional Municipality of Durham prior to October 2, 2017; and that the comments from staff come back to Council for endorsement.” Regional Staff are aware that Clarington’s comments will be submitted after Council has reviewed this report. 1.2 Council has received a report from Staff on the Regulation of Tree Preservation in Clarington in 2016. CLD-013-16 is attached for Council’s information as it provides an overview of tree protection covered by various pieces of legislation. It also outlines the differences between the Region’s Tree By-law and Clarington’s By-law. 2. Discussion 2.1 Neither the Region’s nor Clarington’s by-laws address individual tree protection, rather they deal with woodlots and woodlands. The Region as the upper tier is restricted by Provincial legislation to woodlands over one hectare. 2.2 The Region’s Tree By-law was first introduced in 2008 and revised in 2012 to address operational issues. The by-law was prepared under the authority of the Municipal Act, 2001. The Region is carrying out a review as part of its 5 year review schedule. Also there was a Regional Council concern regarding the ability of farmers to cut trees as part of normal farm practices and how clear cutting is addressed. 2.3 The majority of interaction between the Regional Tree By-law and its enforcement in Clarington is addressed by the Municipal Law Enforcement Division with back-up and support from Planning Services. 2.4 The Municipality of Clarington’s comments on the Region’s Tree By-law are: a) That the Region of Durham change the name of the Regional Tree Conservation By- law to the Regional Woodlot Conservation By-law to accurately reflect the purpose of the by-law and address any confusion. b) Enforcement protocols seem to be working to the extent that response time has been good when notified of an infraction. Municipality of Clarington PSD-070-17 Page 3 c) Once an enforcement issue has been identified, after the initial investigation and response the Region should monitor the site for a period of time up to five years to ensure that subsequent replanting and tree cutting is in compliance. d) Clarington staff should be notified of tree cutting permits within woodlands in advance of the work occurring. e) Proactive engagement with the development community and property owners in urbanizing areas would be beneficial. The Region should notify property owners within woodlands of their responsibilities for protection of the resource on a regular basis. f) Regional staff should provide annual monitoring reports to Regional Council and area municipal councils on woodlots in urban areas, any tree cutting permits and enforcement activities so that there is a better understanding of how successful the by-law is operating. g) The current regulations governing the clearing of hedgerows and scrub to allow tillable lands to be more efficiently farmed should continue. In addition, the by-law should continue to allow for supply of fence posts and rails for farming. h) Lumber operations are required and should continue to follow good forestry practices including replanting. i) The Region should identity replanting areas in consultation with area municipalities. 2.5 Should the Region’s review of its Tree By-law recommend additional restrictions on applications that could impede a farmer’s right to farm, staff have requested changes be reviewed with both the Durham Agricultural Advisory Committee and Agricultural Advisory Committee of Clarington. 3. Concurrence This report has been reviewed by the Director of Operations, Director of Engineering Services and Municipal Clerk who concur with the recommendations. 4. Conclusion Subject to the comments above, the Region’s Tree By-law appears to be working well. It is respectfully recommended that Council endorse the comments contained in this report. 5. Strategic Plan Application Not applicable. Municipality of Clarington PSD-070-17 Page 4 Submitted by: Reviewed by: David, J. Crome, RPP Andrew C. Allison, B. Comm, LL.B Director of Planning Services CAO Staff Contact: Faye Langmaid, Manager of Special Projects, 905-623-3379 ext. 2407 or flangmaid@clarington.net Attachment 1 – CLD-013-16, Regulation of Tree Preservation in Clarington Attachment 2 – Summary of the Regional Tree By-law I:\^Department\LDO NEW FILING SYSTEM\PLN Planning Files\PLN 17 Environment\PLN 17.7.2 Regional Tree By-law\2017 review\Staff Report\PSD-070-17 Staff Report.docx J Clerk's Report If this information is required in an alternate accessible format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131. Report To: General Government Committee Date of Meeting: June 20, 2016 Report Number: CLD-013-16 Resolution: File Number: By-law Number: Report Subject: Regulation of Tree Preservation in Clarington Recommendations: 1. That Report CLD-013-16 be received; 2. That Ms. Racansky be thanked for her delegation and diligence in bringing the inter- relationship of these items to the attention of Council; 3. That the Municipality include as part of the steps to address climate change the development of an urban forest strategy; 4. That funding for an urban forest strategy be included in the 2017 budget for Council's consideration; and 5. That all interested parties listed in CLD-013-16 and any delegations be advised of Council's decision. Municipality of Clarington Attachment 1 to Report PSD-070-17 Municipality of Clarington CLD-013-16 Page 2 Report Overview In response to concerns raised by a Clarington resident, this Report details tree preservation regulations, established through provincial and municipal authorities, governing trees within the Municipality of Clarington. 1 . Background At the January 4, 2016 General Government Committee meeting Ms. Libby Racansky presented her concerns with possible shortcomings of the Clarington Tree By-law 97-35. Ms. Racansky conveyed to Committee what she felt were the needed changes to Clarington's By-law to protect the natural environment of Clarington and to prevent unnecessary destruction of trees. Through Resolution GG-004-16, staff were directed to review her comments and prepare a report for Council. 2. Discussion 2.1 . General There are many pieces of legislation related activities and processes that govern tree preservation in addition to Clarington's Tree By-law. To fully understand tree preservation, Clarington's By-law, the Region of Durham's Tree By-law and provincial legislation must be considered collectively. Below is a brief outline of the many regulations that affect protection or cutting of trees and woodlots. A number of pieces of legislation have been introduced or amended since Clarington's Tree By-law was enacted in 1997. 2.2. Municipal Tree By-laws The Municipal Act, 2001 grants the authority to upper and lower tier municipalities to enact a by-law to prohibit or regulate the destruction or injuring of trees and requires the municipality to have regard to good forestry practices as defined in the Forestry Act, 2001, c.25, s. 135(5). An upper tier municipality's authority governs woodlands as defined in the Forestry Act that are one hectare or more in area. The Municipal Act, 2001 further provides that the local municipality may not prohibit or regulate the destruction of trees in any woodlands designated in the upper-tier by-law. 2.2.1 . Durham Region Tree By-law The Durham Region Trees By-law came into force on June 27, 2012, replacing an earlier by-law. The Regional Tree By-Law reflects the Region's commitment to protect forested areas and the natural environment. Through this by-law, Regional Council recognizes that Woodlands contribute to ecosystem health, human health, and our overall quality of life. Municipality of Clarington CLD-013-16 Page 3 The Regional Tree By-law applies to woodlands within the Region that are 1 hectare 2.5 acres) in size and greater. Please note that the Region's Tree By-Law does not apply to areas less than one hectare. The Region's By-law defines a woodland as follows: Woodland" or "Woodlands" means land on one or more properties with a density of: i) at least: 1) 1 ,000 Trees, of any size, per hectare; 2) 750 Trees, measuring over five (5) centimetres at DBH, per hectare; 3) 500 Trees, measuring over twelve (12) centimetres, at BH, per hectare; or 4) 250 Trees, measuring over twenty (20) centimetres, at DBH, per hectare. ii) but does not include: 1) a cultivated fruit or nut orchard; 2) a plantation established for the purpose of producing Christmas Trees and which is being actively managed and harvested for the purposes for which it was planted, except that this does not refer to plantations that have ceased being managed or harvested for their intended purpose for a period of 15 years or more; 3) a bona fide tree nursery that is being actively managed and harvested for the purposes for which it was planted; 4) a fence row; or 5) land previously cleared and used for agricultural purposes, which has become overgrown with young (less than 15 years old) and early successional tree species common on disturbed fields (e.g. Sumac, Hawthorn, Apple, Scots Pine, Poplar, White Birch, Ash) and which is intended to be used again as part of an Agricultural Operation. Municipality of Clarington CLD-013-16 Page 4 2.2.2. Clarington Tree By-law Clarington's Tree By-law 97-35 is twenty years old and applies to woodlots having an area equal to 0.2 ha or greater but less than 1 ha. As well it applies to any tree within lands designated Environmental Protection Area on Map A of the Official Plan and any tree within 120 metres of a wetland as identified on Map C of the Official Plan. Clarington's By-law defines Woodlot as follows: WOODLOT" shall mean an area 0.2 ha in area or greater having not less than: i) 200 trees of any size in a 0.2 hectare area; ii) 150 trees measuring more than 5 centimetres dbh [diameter at Breast Height] in a 0.2 hectare area; iii) 100 trees measuring more than 12 centimetres dbh in a 0.2 hectare area; or iv) 50 trees measuring more than 20 centimetres dbh in a 0.2 hectare area; but shall not include: v) an orchard, as defined pursuant to subsection 19 (9) of the Assessment Act, R.S.O. 1990; vi) a Christmas Tree farm; or vii) a landscape farm; that is being actively managed and harvested for the purposes for which it was planted. The spatial extent of any woodlot shall be defined according to its ecological limits as determined by a forestry consultant, and not according to property boundaries or other natural or man-made features which may divide the woodlot. The upper tier (Durham Region) Tree By-law applies to areas in excess of 1 hectare. The Clarington Tree By-law applies to areas under 1 hectare (2.5 acre) and greater than 0.2 hectare (1/2 acre) south of Taunton Road. The size was set in 1997 when the By-law was originally enacted. The recommendation from staff had been 0.4 ha and Council reduced the size to 0.2 ha, presumably at the request of delegations. The By- law's purpose was to protect woodlands and not individual trees. As detailed above, Clarington's Tree By-law regulates .2 ha (or 1/ 2 acre). It does not regulate individual trees (as is the case in the City of Toronto). To reduce to an area under that size would render the By-law extremely cumbersome and would require significant resources to enforce. Municipality of Clarington CLD-013-16 Page 5 2.3. Provincial Legislation There are some natural heritage features such as significant wetlands and significant coastal wetlands where development and site alternation are not permitted. Typically these policies are enforced by Conservation Authorities (CA) in concert with the local Ministry of Natural Resources staff. In addition, the Conservation Authorities administer Ontario's Regulation of Development, Interference with Wetlands and Alteration to Shorelines and Watercourses. The Regulation applies to all valleylands and any wetlands, therefore these areas would not be addressed under a municipal tree by-law. They are already addressed under the CA's regulation. 2.4. Environmental Assessments Where a project has been approved by the Ministry of Environment and Climate Change under the Environmental Assessment Act, the project can proceed as set out in the Environmental Study Report, subject to the conditions imposed by the approval. Therefore, projects such as the construction of Highway 407 and Highway 418, widening of Highway 401, and the Clarington Transformer, which are proceeding under their Environmental Assessment Act approvals, would not be subject to a municipal tree by-law. 2.5. Planning Act Applications For projects that are proceeding under a Planning Act application there is a rigorous process for the determination of natural heritage area protection and tree preservation. An applicant attends a pre-consultation meeting where the need for various studies including Environmental Impact Studies (EIS), are set out. A tree preservation plan is often a requirement fora complete application; it is prepared in accordance with the EIS. Environmental Impact Studies are a requirement used for all types of development applications where the natural heritage system may be impacted. The natural heritage system includes wetlands, woodlands, valley lands, and the Natural Core and Linkage areas of the Oak Ridges Moraine (as set out in the Official Plan). Clarington has very strong policies in our Official Plan to protect and enhance the natural heritage system and its ecological integrity. The 1996 Official Plan set a new standard for the protection of natural heritage features in Southern Ontario. The proposed Official Plan policies continue to protect Clarington's natural heritage system from incompatible development. While only minor policy modifications are recommended for the natural heritage section, the supporting mapping that accompanies the policies is now of a much improved standard and has been developed in co-ordination with the Conservation Authorities using the most recent aerial photography. The Environmental Impact Studies that are prepared are reviewed by Conservation Authority staff, determines the limits of protection which are then enforced through the development agreement. Tree Preservation Plans are reviewed by Engineering Services and approved by the Director. The Municipality also has the ability to require a Peer Review of the Tree Preservation Plan where warranted. Municipality of Clarington CLD-013-16 Page 6 2.6. Woodlots in Clarington The much improved mapping tools referred to in Section 2.5 uses Geographic Information System (GIS) technology. Using this mapping tool it is possible to analyse how many woodlots the municipal by-law would have jurisdiction over. The mapping layers are continuously updated as new information comes available such as wetland mapping from the province, aerial photography (received annually) and satellite imagery. Currently, there are some 1200 wooded areas between 0.2 and 1 hectare in Clarington to which the trees by-law could apply (if the Trees By-law were amended to cover all of Clarington). However, many of these are hedgerows in agricultural areas. The removal of hedgerows can be part of Normal Farm Practices, and would be exempt from the Clarington's Tree By-law. Normal Farm Practice is defined to include the removal of trees for personal use, as well as the removal of trees for farm-related uses such as fence posts and rails) but does not include clear cutting. To obtain a more accurate count of affected woodlands, staff were able to isolate lands zoned agriculture (a total of 935), which would reduce the number of woodlots to 265. The woodlots in valleylands or wetlands that are regulated by the Conservation Authorities were isolated from the count as well; leaving 94 woodlots between 0.2 and 1 ha that the municipality has jurisdiction over. Seven of these are in urban areas. The 7 woodlots between 0.2 and 1 ha within urban areas, where the Municipality would have jurisdiction, would also be subject to Planning Act application processes. Some urban woodlots could be in jeopardy if an owner began to clear them, prior to an application. 2.7. Individual Tree Protection With regard to individual trees, some highly urban municipalities have tree by-laws that protect individual trees and some municipalities have designated heritage trees. Clarington has some trees noted as part of the heritage conservation district; however individual heritage tree designation has not occurred. To provide individual tree protection in urban areas only, the Municipality should have an up-to-date tree inventory of municipal street trees, parks and green spaces and an urban forest strategy for both public and private lands. Clarington, to date, has not undertaken an urban forest strategy for our different urban areas. An urban forest strategy is a plan that is intended to provide direction on the protection, maintenance and enhancement of the urban tree canopy. It considers all trees within an urban area, including trees in private yards, street trees, parks, greenspaces and woodlands. An inventory of trees on boulevards in urban areas and hamlets was completed in 2012 at which time there were 17,913 trees; 2,466 of which were ash. Information that was collected included; location (includes both street number and name, and GPS co- ordinates), species, size (diameter at breast height), condition, and comments (such as maintenance need and priority, proximity to utility lines, traffic signals and signs, insect Municipality of Clarington CLD-013-16 Page 7 and disease problems). To carry out an urban forest strategy the inventory would need to be updated and expanded to include parks, greenspaces and woodlands and a determination of how to address private trees in urban areas. 2.8. Climate Change Ostensibly the reason Ms. Racansky made her delegation in January was to address climate change and the relationship between woodlands, tree clearing and climate change. Healthy trees and woodlands play an important role in climate resilience, and economic, environmental, social, and public health benefits. There is no doubt that there is a relationship between tree clearing and ecological function and thus climate change. Further, some highly urban municipalities are using tree by-laws to take action on climate change adaptation and mitigation. Currently, the Municipality does not have an overall climate change strategy; however, at the May 2, 2016 Council meeting Council approved Report PSD-030-16 which authorizes staff to become involved with Durham Region in a Municipal Energy Plan. The Municipal Energy Plan is an encompassing plan that will address a number of operational strategies and items, it could also include an urban forest strategy. 2.9. Applications and Enforcement According to our records, dating back to 2000, there has been a total of 9 applications submitted for permission to remove trees. Only 1 charge has been laid which was against a company who undertook tree removal prior to receiving the approval of their plan of subdivision application. Staff report that, while we receive the occasional call regarding tree removal, those calls typically do not fall within the scope of Clarington's Tree By-law. 3. Concurrence This report has been prepared in conjunction with Planning Services and reviewed by Andrew Allison, Municipal Solicitor, Fred Horvath, Director of Operations and Tony Cannella, Director of Engineering Services who concur with the recommendations. 4. Conclusion Clarington's Tree By-law was enacted in 1997. Over the past 19 years many new approaches have been instituted through provincial legislation governing Clarington as well as external agencies such as the conservation authorities. Upon thorough review, staff determined that of the woodlots governed by Clarington's Tree by-law, which only applies to 0.2 ha to 1 ha woodlots, 7 are in urban areas. This equates to approximately 4 acres of land. Based on planning forecasts, staff anticipate that these lands would be built out within 30-40 years and the fate of any trees located within these 4 acres would be determined through future planning applications. Municipality of Clarington CLD-013-16 Page 8 Recognizing that to implement a policy which governs individual trees requires significant staff resources, it is recommended that an urban forest strategy be developed. Such a strategy will build on the work already undertaken through the initial tree inventory, but will require additional work to update the inventory. As well, the urban forest strategy will support the staff investment into the Durham Region Municipal Energy Plan and will form part of the steps to address climate change through a more sustainable approach. Operations Staff will include funding for an urban forest strategy in the 2017 budget for Council's consideration. 5. Strategic Plan Application The recommend ns itai ed ' this report conform torfhe Strategic Plan. Submitted by: Reviewed by: ne dre tree, BA, CMO Franklin Wu, Municipal Clerk Chief Administrative Officer Staff Contact: Anne Greentree, Municipal Clerk, 905-623-3379 ext. 2102 or agreentree@clarington.net Attachments: None The following is a list of the interested parties to be notified of Council's decision: Libby Racansky CAG/FL The Regional Municipality of Durham The Regional Tree By-Law DURHAMREGION Application Fee Application forms and fees Prior to the issuance of a permit by the Region, an application form must be completed and submitted to the Durham Region Planning and Economic Development Department for review, along with the required fee. Good Forestry Practices Permit: $50 Minor Clear Cutting Permit: $75 Major Clear Cutting Permit: $100 Application forms may be obtained from the Region’s website, and may also be obtained in person from the Planning and Economic Development Department, or from any of the area municipal administrative ofces across the Region. Questions? In all cases, consultation with Regional staff is recommended. The Region has also engaged the services of a Forestry Consultant for by-law enforcement, administration and to assist with technical advice. Please note that even though you may not be subject to the Region’s Tree By-law, you may be subject to an area municipal tree cutting by-law. For further information contact: E-mail: forestry@durham.ca Phone: 905-668-7711 Toll-Free: 1-800-372-1102 Website: www.durham.ca (plus advertising costs for the notice of public meeting) Durham Region Planning and Economic Development Department 605 Rossland Rd. E. Whitby, Ontario L1N 6A3 Attachment 2 to Report PSD-070-17Municipality of Clarington Do I need a permit to cut down trees?Do I need a permit to cut down trees?If you are planning to cut down or remove trees If you are planning to cut down or remove trees within a Woodland area, you may need a permit within a Woodland area, you may need a permit from the Region. There are two types of permits from the Region. There are two types of permits available under the Region’s Tree By-lawavailable under the Region’s Tree By-law---- a a Good Forestry Practices PermitGood Forestry Practices Permit and a and a Clear Cutting PermitClear Cutting Permit. . Good Forestry Practices PermitGood Forestry Practices PermitA Good Forestry Practices Permit may be A Good Forestry Practices Permit may be required if you are planning to cut or remove required if you are planning to cut or remove certain selected trees within a Woodland area. certain selected trees within a Woodland area. In minor situations where just a few trees are to In minor situations where just a few trees are to be removed, the Region has the discretion to be removed, the Region has the discretion to waive the need for a permit. If more than 50 waive the need for a permit. If more than 50 trees are to be removed, or if the Woodland trees are to be removed, or if the Woodland contains a Sensitive Natural Area, a Forest contains a Sensitive Natural Area, a Forest Management Prescription may be required. Management Prescription may be required. The Good Forestry Practices Permit process is The Good Forestry Practices Permit process is intended to be relatively quick.Clear Cutting PermitClear Cutting PermitIf you are planning to remove an entire Woodland, If you are planning to remove an entire Woodland, or if you are planning to clear cut an area of or if you are planning to clear cut an area of Woodland greater than 0.1 hectare (1/4 acre), a Woodland greater than 0.1 hectare (1/4 acre), a Clear Cutting Permit would be required.Clear Cutting Permit would be required.If the Woodland area to be clear cut is less than If the Woodland area to be clear cut is less than one hectare in size, the Permit may be issued one hectare in size, the Permit may be issued administratively by the Regional Commissioner of administratively by the Regional Commissioner of Planning and Economic Development. If the area Planning and Economic Development. If the area to be clear cut is greater than one hectare, to be clear cut is greater than one hectare, approval from Regional Council would be approval from Regional Council would be required, as well as a public meeting.required, as well as a public meeting.within the region that are one hectare (2.5 acres) in size and greater. Please note that the Region’s Tree By-Law does not apply to areas less than one Tree By-Law does not apply to areas less than one hectare, as these areas are the responsibility of hectare, as these areas are the responsibility of the local area municipalities. the local area municipalities. Under the Regional Tree By-Law, it should also be Under the Regional Tree By-Law, it should also be noted that the term “Woodlands” does not include noted that the term “Woodlands” does not include orchards, tree nurseries, Christmas tree plantaorchards, tree nurseries, Christmas tree planta-tions, fence rows, or land previously cleared for tions, fence rows, or land previously cleared for agricultural purposes, but which has become agricultural purposes, but which has become overgrown with scrub and/or small trees, overgrown with scrub and/or small trees, and is intended to be used againand is intended to be used again for farming.for farming.What is the Regional Tree By-law? What is the Regional Tree By-law? The Regional Tree By-law was passed by The Regional Tree By-law was passed by Durham Regional Council on June 18, 2008, and amended by a new by-law passed on June 27, 2012. The Regional Tree By-Law reflects the Region’s commitment toprotect forested areas and the naturalenvironment. Through this by-law,Regional Council recognizes thatWoodlands contribute to ecosystem health, human health, and ouroverall quality of life. overall quality of life. The Regional Tree By-law applies to Woodlands What if I am a farmer?What if I am a farmer?The By-law specifies that the removal of trees as part of trees as part of Normal Farm Practices, are exemptare exempt. Normal Farm Practice isdefined to include the removal of treesfor personal use, as well as the removalof trees for farm-related uses (such as fence posts and rails). fence posts and rails). Normal Farm Practices does not include clear Normal Farm Practices does not include clear cutting of any kind. Permit fees will be waived cutting of any kind. Permit fees will be waived for bona fide farmers.for bona fide farmers.Are there other exceptions?Are there other exceptions?The Regional Tree By-law does not apply to The Regional Tree By-law does not apply to the following situations:the following situations: Activities undertaken by the Region, Activities undertaken by the Region, an area municipality, or a conservation an area municipality, or a conservation authority. authority. Trees removed for surveying purposes. Trees removed for surveying purposes. Trees removed on lands licensed for a pit Trees removed on lands licensed for a pit or quarry. or quarry. Where a building permit has been issued Where a building permit has been issued for a building or structure. for a building or structure. The removal of dead and/or The removal of dead and/or hazardous trees. hazardous trees. )ss)dssaanaaaa8,awwk.