HomeMy WebLinkAboutOrdinance 4539ORDINANCE NO. 4539
AN ORDINANCE AMENDING TITLE XV: UNIFIED
DEVELOPMENT CODE, OF THE CODE OF FAYETTEVILLE, TO
PROVIDE AMF.NDMF.NTS TO AND CLARIFICATION OF
VARIOUS PROVISIONS CONCERNING TREE. PRFSFRVATION
AND PROTECTION.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That Section §167.04 C. is hereby repealed and the following is
inserted in its stead:
C. Canopy area. In all new Subdivisions, Large Scale Developments,
Industrial and Commercial Developments, and all other improvements listed
above, trees shall be preserved as outlined in Table 1 under Percent Minimum
Canopy, unless the Applicant has been approved for On -Site Mitigation or Off -
Site Alternatives as set forth in subsections I. & J. below. The square foot
percentage of canopy area required for preservation in new development is
based on the total area of the property for which the Applicant is seeking
approval, less the right-of-way and park land dedications. An Applicant shall not
be required to plant trees in order to reach the Percent Minimum Canopy
requirement on land where less than the minimum exists prior to development,
unless trees have been removed.
Section 2. That Section §167.04 D. 1. is hereby repealed, and the following
is inserted in its stead:
D. Prior Tree Removal.
1. If trees have been removed below the required minimum within the
five (5) years preceding application for development approval, the site must be
forested to meet the Percent Minimum Canopy requirements set forth in Table 1,
plus an additional ten percent (10%) of the total area of the property for which
the Applicant is seeking approval, less the right-of-way and park land
dedications. The number of trees required to be planted shall be calculated using
the Base Density for I ligh Priority trees.
Section
3. That Section §167.04 F.
is hereby
repealed, and the following is
inserted in its
stead:
F. Tree
Preservation
Requirements
for Proposed Residential and Non -
Residential
Subdivisions,
1. Residential Subdivisions. The Percent Minimum Canopy in
residential subdivisions shall be located in areas that have the least possibility of
impact as utilities are installed and homes built. The intent is to leave
undisturbed as many existing trees as possible for the use and enjoyment of
prospective lot owners. Residential Subdivisions requesting tree removal below
the Percent Minimum Canopy requirement may choose either Residential On -
Site Mitigation, or to contribute to the Tree Escrow Account as set forth in
§167.04 J.4.a. Trees in utility easements shall not be counted toward the Percent
Minimum Canopy requirement, and such utilities shall be routed to avoid
existing canopy.
Section 4. That
Section
§167.04
I. is
hereby
amended by inserting Exhibit
A, attached hereto and
made a
part
hereof.
Section 5. That §167.04 J. 4. is hereby repealed, and Exhibit B, attached
hereto and made a part hereof, is inserted in its stead.
PASSED and APPROVED this 3rd day of February . 2004.
.TTEST:
By: 46UAIe.., &nnn�
SONDRA SMITH, City Clerk
APPROVED:
By:
F1
DAN COODY, Mayor
0 Exhibit A •
§167.04 TREE PRESERVATION AND PROTECTION DURING
DEVELOPMENT,
I. Request for On -Site Mitigation.
9. Residential On -Site Mitigation. Applicants requesting On -Site
Mitigation for Residential Subdivisions shall comply with all the provisions of
§167.04 I. 1-7, as well as the following:
a. The Applicant's Mitigation Plan shall meet or exceed the required
number of Mitigation Trees based on the Forestation Requirements as set forth at
§167.04 I.4.
b. All Plans requesting Residential On -Site Mitigation shall include a
binding three (3) year maintenance and monitoring plan, which shall hold the
Applicant responsible for the health of all planted trees.
i. Approval of a Plan requesting Residential On -Site Mitigation
shall be contingent upon the Applicant depositing with the City an irrevocable
Letter of Credit in an amount equal to the estimated cost of materials and labor
for all trees at the time of planting. The irrevocable Letter of Credit must cover
the entire three (3) year maintenance and monitoring period. Applicant shall
submit cost estimates to the Landscape Administrator for approval.
ii. Upon completion of the three year landscape establishment
period, the Landscape Administrator shall inspect the site and determine
whether ninety percent (90%) of the trees are healthy and have a reasonable
chance of surviving to maturity. Upon such a finding, the City shall release the
Letter of Credit.
iii. In the absence of such. a finding, the Applicant shall be
notified to replace any unhealthy or dead trees, or take other appropriate action
as approved by the Landscape Administrator. If the Applicant does not take
remedial steps to bring the property into compliance, the City shall use the
necessary moneys from the Landscape Establishment Guarantee to do so.
iv. In the event trees are injured or destroyed by natural
disasters, including but not limited to, tornadoes, straight-line winds, ice storms,
fire, floods, hail, or lightning strikes, or through the independent actions of third
parties, the applicant shall be relieved of the responsibility of replanting the tree
or trees so affected.
c. The Applicant shall establish a bona fide Property Owners
Association with a Bill of Assurance and Protective Covenants sufficient to
ensure the continued health and vitality of the mitigation trees within the
subdivision. The Bill of Assurance and Protective Covenants shall be filed of
record with the Circuit Clerk and Ex-Officio Recorder of Washington County,
Arkansas, and file -marked copies thereof shall be provided to the Landscape
Administrator prior to Final Plat approval.
d. Developers requesting mitigation trees be planted along the street
right of way of a Subdivision shall submit a street tree planting plan that
complies with the standards outlined in the City of Fayetteville Tree
Preservation, Protection, and Landscape Manual in order to ensure that new
trees planted are of the highest quality, require low maintenance, and do not
interfere with public safety. The species of trees to be planted shall be selected
from the Approved Street Tree Species List, or be otherwise specifically
approved by the Landscape Administrator.
i. The Applicant's Mitigation Plan for planting street trees
shall describe in detail the method for tracking the development of the
individual lots, which shall best ensure that required number and species of
Mitigation Trees are planted.
ii. The applicant shall submit an annual schedule of the initial
structural pruning for all Mitigation Trees planted along street right of ways with
the name and contact information of the International Society of Arboriculture
(ISA) Certified Arborist or pruning service performing the work.
`a
• Exhibit B •
§167.04 TREE PRESERVATION AND PROTECTION DURING
DEVELOPMENT,
J. Request for Off -Site Alternatives.
4. Tree Escrow Account. Large Scale Development Applicants
requesting Off -Site Alternatives, and any other Applicant unable to achieve
either On -Site Mitigation, Off -Site Preservation or Off -Site Forestation, shall
make a payment to the City of Fayetteville Tree Escrow Account for each tree
required to meet the Base Density requirements set forth above. The amount of
money to be paid shall be based on the fair market value of materials and labor
at the time of planting. The Applicant shall submit cost estimates to the
Landscape Administrator for approval.
a. Residential Subdivisions requesting tree removal below the Percent
Minimum Canopy requirement may choose to contribute to the Tree Escrow
Account. The City shall use the money paid into the Tree Escrow Account to
plant street trees within the subdivision, when possible, once the subdivision is
built out.
b. Money contributed in lieu of On -Site Mitigation or Off -Site
Forestation shall be paid prior to issuance of a Building Permit on all
Commercial, Industrial, or Multi -Family Residential buildings and prior to Final
Plat acceptance for all Residential and Non -Residential Subdivisions.
c. Money contributed under this section:
(1) May be used for canopy mitigation, including planting site
identification, tree acquisition, planting, and maintenance, utilizing either City
Staff or contract labor;
(2) Shall be deposited in a separate interest -bearing Tree Escrow
Account, and,
(3) Shall not revert to the general fund for ongoing operations.
d. If it is not possible to plant street trees within the subdivision,
planting locations will be sought in appropriate sites within a one (1) mile radius
of where the original project is located, but if this cannot be achieved, the moneys
shall be used to plant the trees in the park quadrant in which the development
took place, and if that cannot be achieved, anywhere in the City limits. The
location of appropriate planting spaces is to be derived from the Fayetteville Tree
Inventory to be updated every seven (7) to ten (10) years.
e. The City of Fayetteville shall refund the portion of the money
contributed under this section, including the accrued interest that has not been
expended seven (7) years from the date of the contribution. Interest shall be
based on a four percent (4%) annual rate.
f. Refunds shall be paid to the Applicant who made the original
contribution.
g. Notice of the right to a refund, including the amount of the refund
and the procedure for applying for and receiving the refund, shall be sent or
served in writing to the Applicant no later than thirty (30) days after the date
which the refund becomes due. The sending by regular mail of the notices to the
Applicant shall be sufficient to satisfy the requirement of notice.
h. The refund shall be made on a pro rata basis, and shall be paid in
full no later than ninety (90) days after the date certain upon which the refund
becomes due.
i. At the time of the contribution to the Tree Escrow Account, the
Landscape Administrator shall provide the Applicant with written notice of
those circumstances under which refunds of such fees will be made. Failure to
deliver such written notice shall not invalidate any contribution to the Tree
Escrow Account under this Ordinance.
2
NAME OF FILE: Ordinance No. 4539
CROSS REFERENCE:
Item # Date Document
1 1.13.04 memo mayor & city council
draft ordinance
memo planning commission
copy planning commission minutes
staff review form for 2.3.03 mtg
2 2.9.04 memo to Dawn Warrick
3 2.10.04 Affidavit of Publication
NOTES:
City Council fling of February 3, 2004
Agenda Item Number
CITY COUNCIL AGENDA MEMO
To: Mayor and City Council
Thru: Tim Conklin, AICP, CP&E Services Director/l"�_
Dawn T. Warrick, AICP, Zoning and Development Administrator
From: Craig Camagey, Sr. Planner / Landscape Administrator w
Date: January 13, 2004
Subject: Amendment to Chapter 167 establishing standards and requirements that would
allow subdivision developments the option to mitigate on -site for the removal of trees
and clarifying that parkland dedications are not to be included in tree preservation areas.
Staff recommends approval of an ordinance amending Chapter 167 Tree Preservation and
Protection of the Unified Development Code to allow an on -site mitigation option for
subdivisions and to clarify the treatment of parkland dedication areas with regard to tree
preservation requriements for development.
Currently, Chapter 167.04 (J)(4) of the Unified Development Code of the City of
Fayetteville requires developers of subdivisions that remove trees below the designated
percent minimum to pay money for this removal into an escrow account as a method of
mitigation. The City of Fayetteville uses this money to replant trees within the
subdivision, or within a one mile radius of where the subdivision is located. Subdivision
developers have not had the option to implement their own on -site mitigation plans
unless a variance to the ordinance was submitted. The proposed amendments would
provide subdivision developers the same option as large scale developers, to either pay
into the Tree Escrow Account, or submit for approval a plan with guarantees to plant
their own trees within a development.
Other items
Insertion of the word Parkland Dedication under 167.04(C)&(D) In most circumstances
within a proposed subdivision, land to be dedicated for a park, and areas to be designated
for tree preservation, are kept as separate dedications. Parkland is typically accepted to
create a community use with design elements for active recreation such as sport fields.
These community park design elements often require the removal of trees. A tree
preservation area is considered a natural area to be left relatively untouched by any form
of development. While these two uses at times coincide, they have historically been
considered separate uses within a subdivision in Fayetteville. One of the amendments
proposed here simply explicates this in the language of the ordinance by stating that an
applicant shall not include land dedicated for a park when calculating the sites preserved
• City Council Aing of February 3, 2004
Agenda Item Number
tree canopy. This will ensure that the integrity of tree preservation areas within
subdivisions are protected.
DISCUSSION
After discussion within the Planning Division, with the City Attorney, and the Tree and
Landscape Advisory Committee, this amendment was recommended to the Planning
Commission. On January 12, 2003, the Planning Commission voted 7-0-0 to forward this
item to the City Council with a recommendation for approval.
The amendment allowing on -site mitigation as an option for residential subdivisions is
formatted in a manner to reflect the recent waiver request for the Legacy Pointe
subdivision (ADM 03-22). This action was approved by the Planning Commission with
an 8-0-0 vote on September 8, 2003 (minutes attached). The waiver was then approved
by the City Council on consent at the October 7, 2003 meeting.
The request to include the word `parkland' throughout is to clarify the intent to maintain
parkland and tree preservation requirements separately for development projects.
BUDGETIMPACT
None.
ORDINANCE NO.
AN ORDINANCE AMENDING TITLE XV: UNIFIED
DEVELOPMENT CODE, OF THE CODE OF FAYETTEVILLE, TO
PROVIDE AMENDMENTS TO AND CLARIFICATION OF
VARIOUS PROVISIONS CONCERNING TREE PRESERVATION
AND PROTECTION.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That Section §167.04 C. is hereby repealed and the following is
inserted in its stead:
§167.04 TREE PRESERVATION AND PROTECTION
DEVELOPMENT. l
C. Canopy area. In all new
Industrial and Commercial Devele
above, trees shall be preserved as (
Canopy, unless the Vpl"�T t has I
Site Alternati a set,th in
percents of c o y a e requirE
basi0 tot are of the D
requ
removed.
and
in Ta
listed
Pn \p • roved f • On -Site Mion or Off-
0 s I. below. The square foot
erva � • in new development is
)erty o rich the Applicant is seeking
rk I '4 dedications. An Applicant shall not
to reach the Percent Minimum Canopy
the minimum exists prior to development,
ion 2.
That Section §167.04 D. 1.
is hereby
repealed,
and the following
in its
stead:
D. Prior Tree Removal.
1. If trees have been removed below the required minimum within the
five (5) years preceding application for development approval, the site must be
forested to meet the Percent Minimum Canopy requirements set forth in Table 1,
plus an additional ten percent (10%) of the total area of the property for which
the Applicant is seeking approval, less the right-of-way and park land
dedications. The number of trees required to be planted shall be calculated using
the Base Density for High Priority trees.
Section
3. That Section §167.04 F.
is hereby
repealed,
and the following is
inserted in its
stead:
1. Residential Subdivisions. The Percent Minimum Canopy in
residential subdivisions shall be located in areas that have the least possibility of
impact as utilities are installed and homes built. The intent is to leave
undisturbed as many existing trees as possible for the use and enjoyment of
prospective lot owners. A41 Residential Subdivisions requesting tree removal
below the Percent Minimum Canopy requirement are required may choose
either Residential On -Site Mitigation, or to contribute to the Tree Escrow
Account as set forth in §167.04 J. 4. a. Trees in utility easements shall not be
counted toward the Percent Minimum Canopy requirement, and such utilities
shall be routed to avoid existing canopy.
Section 4.
That
Section
§167.04
1. is
hereby amended by inserting Exhibit
A, attached hereto and
made a
part
hereof.
Section 5.
That §167.04
J.
4. is hereby repealed,
and Exhibit B,
hereto and made
a part hereof,
is
inserted in its stead.
PASSED and APPROVED this day
"I
By:
2
• Exhibit A r
§167,04 TREE PRESERVATION AND PROTECTION DURING
DEVELOPMENT,
I. Request for On -Site Mitigation,
9. Residential On -Site Mitigation. Applicants requesting On -Site
Mitigation for Residential Subdivisions shall comply with all the provisions of
§167.04 1.1-7, as well as the followin.
a. The Applicant's Mitigation Plan shall meet or exceed the required
number of Mitigation Trees based on the Forestation Requirements as set forth at
6167.04 I. 4.
b.
Applicant responsible for the health of all planted trees.
i.
iii. In the absence of such a finding, the Applicant shall be
remedial
steps
to
bring
the property
into compliance,
the
City
shall
use the
necessary
moneys
from
the
Landscape
Establishment
Guarantee to
do
so.
iv. In the event trees are injured or destroyed by natural
disasters, including but not limited to, tornadoes, straight-line winds, ice storms,
fire, floods, hail, or lightning strikes, or through the independent actions of third
parties, the applicant shall be relieved of the responsibility of reDlantine the tree
or trees so affected
0 •
c. The Applicant shall establish a bona fide Property Owners
Association with a Bill of Assurance and Protective Covenants sufficient to
ensure the continued health and vitality of the mitigation trees within the
subdivision. The Bill of Assurance and Protective Covenants shall be filed of
record with the Circuit Clerk and Ex-Officio Recorder of Washington County,
Arkansas, and file -marked copies thereof shall be provided to the Landscape
Administrator prior to Final Plat approval.
fA
complies with the standards outlined in the City of Fayetteville Tree
Preservation, Protection, and Landscape Manual in order to ensure that new
trees planted are of the highest quality, require low maintenance, and do not
interfere with public safety. The species of trees to be planted shall be selected
from the Approved Street Tree Species List, or be otherwise specifically
approved by the Landscape Administrator.
i. The Applicant's Mitigation Plan for planting street trees
shall describe in detail the method for tracking the development of the
individual lots, which shall best ensure that reouired number and species of
Mitigation Trees are planted
ii. The applicant shall submit an annual schedule of the initial
structural pruning for all Mitigation Trees planted along street right of ways with
the name and contact information of the International Society of Arboriculture
(ISA) Certified Arborist or pruning service performing the work.
2
Exhibit B
§167,04 TREE PRESERVATION AND PROTECTION DURING
DEVELOPMENT.
J. Request for Off -Site Alternatives.
4. Tree Escrow Account. Large Scale Development Applicants
requesting Off -Site Alternatives, all Residential Subdivisien Applieants
requesting tTee removal belew the Pereent Minimum Canopy requirement, and
any other Applicant unable to achieve either On -Site Mitigation, Off -Site
Preservation or Off -Site Forestation, shall make a payment to the City of
Fayetteville Tree Escrow Account for each tree required to meet the Base Density
requirements set forth above. The amount of money to be paid shall be based on
the fair market value of materials and labor at the time of planting. The
Applicant shall submit cost estimates to the Landscape Administrat: •r
approval.
a. All Residential Subdivisions requesting ' 63ral lWee w the
Percent Minimum Canopy requirement are req��ire a� choose to con�!''�bute to
the Tree Escrow Account,
City sh se the
money paid into the Tree Escrow Ac to plan' ee trees w the
subdivision, when possib -e the subf• iv is buii ut.
/bb oney ntrib ed in n-Sit ligation or Off -Site
Fore t 4*Tlr h5 b ai prior t9tt issuanc uilding Permit on all
ercial, stiE' ulti-Fa y Resid Is
buildings and prior to Final
PI cceptanc r all esi e t 'al an • on -Residential Subdivisions.
c. nevco tributed under this section:
,j(I) NITy be used for canopy mitigation, including planting site
a�h n, tree acquisition, planting, and maintenance, utilizing either City
contract labor;
(2) Shall be deposited in a separate interest -bearing Tree Escrow
Account; and,
(3) Shall not revert to the general fund for ongoing operations.
d. If it is not possible to plant street trees within the subdivision,
planting locations will be sought in appropriate sites within a one (1) mile radius
of where the original project is located, but if this cannot be achieved, the moneys
shall be used to plant the trees in the park quadrant in which the development
took place, and if that cannot be achieved, anywhere in the City limits. The
location of appropriate planting spaces is to be derived from the Fayetteville Tree
Inventory to be updated every seven (7) to ten (10) years.
e. The City of Fayetteville shall refund the portion of the money
contributed under this section, including the accrued interest that has not been
emended seven (7) years from the date of the contribution. Interest shall be
based on a four percent (4%) annual rate.
f. Refunds shall be paid to the Applicant who made the original
contribution.
g. Notice of the right to a refund, including the amount of the refund
and the procedure for applying for and receiving the refund, shall be sent or
served in writing to the Applicant no later than thirty(30) days after the date
which the refund becomes due. The sending by regular mail of the notices to the
Applicant shall be sufficient to satisfy the requirement of notice.
h. The refund shall be made on a pro rata basis, and shall be paid in
full no later than ninety (90) days after the date certain upon which the refund
becomes due.
i. At the time of the contribution to the Tree Escrow Account. the
Landscape Administrator shall provide the Applicant with written notice of
those circumstances under which refunds of such fees will be made. Failure to
deliver such written notice shall not invalidate any contribution to the Tree
Escrow Account under this Ordinance.
2
I
FAYETTEVILLE
THE CITY OF FAYETTEVILLE, ARKANSAS
PLANNING DIVISION CORRESPONDENCE
PC Meeting of January 12, 2004
113 W. Mountain St.
Fayetteville, AR 72701
Telephone: (479) 575-8264
TO: Fayetteville Planning Commission
FROM: Craig Camagey, Landscape Administrator
THRU: Dawn Warrick, AICP, Zoning & Development Administrator
Tim Conklin, AICP, Community, Planning & Engineering Services Director
DATE: January 7, 2003
ADM 03-29.00: Administrative Item (Tree Preservation and Protection Ordinance) An
amendment to Chapter 167 establishing standards and requirements that would allow subdivision
developments the option to mitigate on -site for the removal of trees.
RECOMMENDATION:
Staff recommends the Planning Commission forward the amendments to Chapter 167 for
adoption by the City Council,
PLANNING COMMISSION ACTION: Required
O Approve(
Date: January 12, 2003
CITY COUNCIL ACTION: Required
O Approve(,
Date: January 20, 2003
BACKGROUND:
O Denied
Currently, Chapter 167.04 (J)(4) of the Unified Development Code of the City of Fayetteville
requires developers of subdivisions that remove trees below the designated percent minimum to pay
money for this removal into an escrow account as a method of mitigation. The City of Fayetteville is
then required to use this money to replant trees within the subdivision, or within a one mile radius of
where the subdivision is located. The original intent of this provision was to insure that the health
and survival of mitigation trees would not be adversely affected as individual lots were developed.
The first subdivision to be platted under this new provision was Legacy Pointe. The developer of
this subdivision requested a variance from this provision in order to plant mitigation trees on their
own. Attached with this variance was a comprehensive planting plan with guarantees submitted to
the City. This variance was recommended by staff and approved by both the Planning Commission
C.-Documents and SellingslydmmasULocal SeltingslTempV67Amendment repore.doc
and City Council (October 7, 2003). Since this time several subdivision developers have requested to
plant their own mitigation trees using similar standards as Legacy Point with guarantees. To date,
staff has not had the option to allow developers to implement their own on -site mitigation plans
unless a variance to the ordinance was submitted. After discussion within the Planning Division,
with the City Attorney, and the Tree and Landscape Advisory Committee, this amendment was
forwarded to allow subdivision developers the choice to either pay into the Tree Escrow Account, or
submit for approval, a plan with guarantees to plant their own trees within a development.
Other items
Insertion of the word Parkland Dedication under 167.04(C)&(D) In most circumstances within a
proposed subdivision, land to be dedicated for a park, and areas to be designated for tree
preservation, are kept as separate dedications. Parkland is typically accepted to create a community
use with design elements for active recreation such as sport fields that often require the removal of
trees. A tree preservation area is considered a natural area to be left relatively untouched by any form
of development. While these two uses at times coincide, they have historically been considered
separate uses within a subdivision in Fayetteville. One of the amendments proposed here simply
explicates this in the language of the ordinance by stating that an applicant shall not include land
dedicated for a park when calculating the sites preserved tree canopy.
FINDINGS:
The amendments to Chapter 167.04 (I) and (J) incorporates standards and requirements for a
subdivision developer to implement their own on -site mitigation plan. These standards and
requirements provide a guarantee to the City of Fayetteville that a mitigation plan will be
implemented in a manner that is compatible with current urban forestry standards and guarantee the
planting, maintenance and viability of all trees installed during a developer's project.
General Amendments:
Exhibit A
a. An applicants plan shall meet or exceed the required number of mitigation trees
prescribed for their development.
b. All mitigation plans shall submit a binding three year maintenance and monitoring plan.
This plan shall include an irrevocable letter of credit equal to the estimated cost of
materials and labor for planting and maintaining all trees. Upon completion of this three
year period an inspection will be performed by the City to determine that no less than
90% of all required trees planted are healthy and viable. If such a finding is made the
letter of credit will be returned to the applicant, otherwise the applicant will be requested
to replant, or the City will use the necessary dollar amount from the letter of credit to
replant trees.
c. The applicant will establish a Property Owners Association with a Bill of Assurance and
Protective Covenants sufficient to ensure the continued health and vitality of the
mitigation trees planted within the subdivision.
C kDocumenu and SettingslrthomaslLocal Settings;Temp1167Amendmentreportdoc
r
d. Developers requesting mitigation trees be planted along the street right of way within a
subdivision shall submit a separate street tree planting plan that complies with the
standards outlined in the City's Tree and Landscape Manual. A method for tracking the
development of individual lots to ensure trees are planted at appropriate times will be
included with this plan, as well as an annual schedule of initial structural pruning with
the name of the ISA (International Society of Arboriculture) Certified Arborist hired to
perform this work.
Exhibit B
Removes some language not applicable if this amendment is adopted, and describes the
terms for refunding a developers money paid into the Tree Escrow Account if those funds
have not been used within a specified time frame.
Other Items
All other changes made in this amendment proposal are minor additions of language to either
further clarify the above mentioned amendments or include the word parkland when
considering how to calculate tree canopy.
CID"umenu and Settingstrihoma V"al Sel ingslTempUOAmendment report.do
Planning Commission •
September 8, 2003
Page 36
ADM 03-22.00: Administrative (Sloan Petition for Tree Ordinance Variance,
Legacy Pointe Subdivision) Mr. Charles W. Sloan, the Developer of Legacy Pointe
Subdivision off Double Springs Road, has requested an alternate method of compensation
to the City of Fayetteville's Tree Escrow Account for the removal of trees on the above
mentioned property.
Hoover: Moving on to item number four, ADM 03-18.00 Sloan Variance Petition
for the Tree Ordinance.
Camagey: Mr. Charles Sloan, the developer of Legacy Pointe subdivision off of
Double Springs Road has requested an alternate method of compensation
to the City of Fayetteville for removal of trees on the above -mentioned
property. The method proposed is for the developer to plant, establish and
maintain all trees that are currently required for mitigation planting. There
are really two issues here. One is whether or not the developer meets the
criteria of Chapter 156.03, which is a petition for a variance from the
requirements of Chapter 167. The applicant, the developer Mr. Sloan, and
David Whitaker will address. The other issue is whether the method that
the developer is proposing to plant, establish and maintain all of these
trees, meets the requirements that are laid out for planting mitigation trees
in the landscape manual. I will give you a little bit of background on this
section. In accordance with the city's tree preservation protection
ordinance, all residential subdivisions requesting tree removal below the
minimum canopy requirement are required to contribute to the tree escrow
account. During the Preliminary Plat process the developer reserved the
right to request a tree variance before Final Plat approval. The
preliminary subdivision plat for Legacy Pointe subdivision, including the
tree preservation plan, has been approved by the Planning Commission.
Currently the developer is required to compensate the city for the removal
of trees at a replacement cost of $175 per tree for 238 1" caliper trees. A
letter of credit in the amount of $41,650 has been deposited with the city
by the developer. Currently the city is required to use this money for
mitigation planting on or in the vicinity of the Legacy Pointe subdivision.
The developer's proposal, the method of compensation, as stated before, is
for the developer to replace the required mitigation trees, establish and
maintain those trees. He is requesting to plant a minimum of 156 5" to 6"
caliper trees, one tree per single family and townhouse lot will be planted.
Each property owner will be given the choice of either planting one 5" to
6" caliper tree or multiple 2" caliper trees. These trees will be planted by
a professional tree company approved by the city's Landscape
Administrator, Legacy Pointe's Property Owner's Association shall be
responsible to the City of Fayetteville to ensure that each tree is planted,
established and maintained for no less than 25 years as per the covenants
of the Legacy Pointe Property Owner's Association. The developer shall
deposit an Irrevocable Letter of Credit with the city in the amount of
$41,650 as guarantee for the establishment of these trees. Upon
Planning Commissio• •
September 8, 2003
Page 37
completion of a three year establishment period the Landscape
Administrator shall inspect the subdivision and determine whether 90% of
the planted trees are healthy and have a reasonable chance of surviving. In
the absence of such a condition the city shall request from the developer
the replacement of any dead or unhealthy trees. Failure from the
developer to take these remedial steps within 60 days of a written request
will result in the city's right to use the guarantee funds to achieve
compliance. The findings for this proposal are that the square footage of
canopy cover for planting 156 4" to 6" caliper trees is greater than
planting 238 1" caliper trees. Currently the city does not have the ability
to plant, establish and maintain mitigation trees. We don't have the
capacity currently. We have requested a proposal for subcontractors to
plant mitigation trees but as of right now the city is not in a position to
plant these trees. The combination of the Letter of Credit the developer
has deposited with the city and the Protective Covenants on file with the
county provides a high level of guarantee to the city that these trees will be
planted, established and maintained. This guarantee provides assurance
equal to the city contracting out of house the planting, establishing and
maintenance of mitigation trees. My recommendation is for the approval
of the variance, specifically regarding the method of planting these
mitigation trees with the following conditions. 1) The trees shall be
planted during the appropriate planting season (between October 151h and
April 151h). The developer shall describe the method he will use to track
development of each individual lot that will ensure the required trees are
planted. The developer shall provide a final date when all required trees
will be planted by and the developer will describe the method used to
ensure that maintenance, establishment, protection, watering, and initial
structural pruning of trees are taken care of. I would also like included in
that the name of an IESA Certified Arborist or the equivalent to be the
contact name of that person to be provided to my office. That is all of the
section of this petition that I have to address. I believe David has some
additional comments.
Hoover: Thank you. Would the applicant come forward?
Sloan: Hello, I'm Charlie Sloan, the developer. When we got into this process of
doing Legacy Pointe we did have to remove some trees. We knew that
there was a tree ordinance that was written. We got to searching the tree
ordinance and there is a provision for commercial to be replanted but there
is nothing for residential. If you take a tree down you pay. That is all
there is. From our other subdivisions we have always required planting of
trees and through the homeowner's association and grounds keeping
committees if the tree were to be damaged- or any kind of disease or
anything like that we require that it is replaced. If you don't replace it the
homeowner's association will replace it. We have got into that situation
before. We immediately file a lien on their property after certain notice
Planning Commissio• •
September 8, 2003
Page 38
and we start foreclosure proceedings if they don't pay to go through, it is
just like collecting dues. We were already in the process, because it is part
of our covenants, to plant trees before we found out that the situation on
the amount of money that we have up here and what was happening with
having to plant trees back with the city. First of all, I didn't think the city
ought to be in the tree planting business for our subdivision. I dislike the
fact that they are going to wait three years after our subdivision is
established to come back in and plant trees. All we were asking was we
require it anyway. 1 will put up the money, which 1 already have, and it
has to stay there during our construction stage until we get enough houses
in there to plant the trees. Then from that point I have a three year period
additionally that the money has to set up until we meet the three year
requirement of the tree ordinance. One of my questions was if you come
in and plant a tree two years or three years from now in somebody's yard,
after the three year period beyond that time, what can they do with that
tree? They can cut it down if they want to. You can't go back on that
home owner on anything. What we are saying is the trees we plant they
can't cut it down. They have to maintain it. I understand it is very
difficult to chase afler a bunch of home owners so I am the guy you chase
after. This whole thing could be handled easily with your tree
administrator, one person, who I will meet with and go out there and I
know 1 am obligated for a period of time with our subdivision. I feel like
this is a good compromise. It makes it feasible, it is something that we
don't have to go in there and add additional cost to. A lot is already going
to have to absorb the cost of building putting those trees in. I think we
will put a better tree in. We use, we don't go out there and allow the home
owner's to put them in. We have someone that has to install, they have to
buy from a certain place, they have to have that person come and install
them, who will then guarantee the tree anyway for two or three years after
they install it. They usually gives instructions and everything to the home
owners of how to maintain the trees and everything. I feel like we have
offered a good compromise. We need a way for subdivisions to replant
trees. I think I'm the test case. We are the first subdivision on this tree
ordinance. We were all shocked at the dollar amount because I am
basically in a cow pastor. It is not flat land but it rolls but they have raised
a lot of cattle on this land and there is not very many trees. The few that
did have to come down there was just no way of going around it. There
are a few trees and we spent a lot of money working utilities around and
getting variances to put water and sewer on the same side of the street so
we didn't have to take down a few trees. There needs to be some avenue
that a developer is allowed to take down trees and then replant and we are
trying to bring that compromise to you. That is where we are today.
Thank you. We are fine with the conditions.
Hoover: Thank
you. I
will ask if
there is
any public
comment on this ADM 03-
18.00.
Seeing
none, 1 will
bring it
back to the
Commissioners.
Planning Commissio. •
September 8, 2003
Page 39
Bunch: A question for the assistant city attorney. 1 know you sat in on the
rewriting of the tree ordinance and who is better qualified to tell us about
this? Are we on good legal grounds to accept this compromise?
Whitaker: What I'm going to do is despite my initial billing this evening, you are
going to know that my habit has always been that 1 am not going to tell
you whether you should or should not grant a variance. 1 will remind you
that that's a fact based determination that you folks are empowered to
make. What I can say is that under the circumstances here where by
staff's own memos and communications to you the city is at this time not
able to provide the service contemplated by the revision committee when
this language in 167.04(J)(4)(a) was adopted. That could be for you what
would be the unique situation you would require to grant such a variance.
Understanding that it is indeed a variance from, and that is why they are
here, that all residential subdivisions would do it. This is not a complete
surprise. We had anticipated that there would be sections of that rather
hard thought document, that when the rubber hit the road there would be
some adjustments made, this is one of the hardest ones we have hit so far.
I think at some point soon we need to look at some modifications so that
every residential subdivision that comes through in the interim before a
mechanism for the city to plant the trees and maintain them. It doesn't
have to come and request a variance but perhaps there could be an option
of the two procedures, either pay into the tree fund, or as I'm not sure it's
clear from what you've seen, but basically what the applicant and his
counsel have done is drop down one subsection and adopted many of the
provisions that apply currently for on site mitigation and off site
forestation for non-residential subdivisions, simply moving them into the
residential setting and then sort of as an overlay of extra protection,
introducing voluntary measures such as strict covenants and pre-existing
property owners association with very specific requirements for trees and
protections for those trees on each lot. I think that together certainly then
moves into the second prong of what 156.03(C)(5) talks about when it
says "Provided that such variance shall not have the affect of nullifying
the intent and purpose of the chapter." I think with the alternative that the
applicant has provided you accompanied by Mr. Camagey's conditions of
approval, I think you certainly are in a position to satisfy that second
prong and indeed there are those, myself included, who think that if this
can work it would actually afford a better out come than the original
language of the ordinance would have as far as canopy cover in that
subdivision.
Bunch: Thank you. One other question, either for staff or the applicant. On the
sixty days to come into compliance, is that 60 days to file an action to be
taken since obviously there could be more than 60 days before a tree could
be planted, since another part of the presentation by the Landscape
Planning Commission• •
September 8, 2003
Page 40
Administrator gave specific planting dates.
Camagey: That would be sixty days for a response.
Bunch: I just wanted to clarify that, thank you.
Hoover: Is there any other discussion?
Estes: I have a question. The Letter of Credit that is issued by Arvest and the
requirement by the P.O.A. that it will ensure that each tree is planted,
established and maintained for no less than 25 years. How will this be
enforced? Is that Letter of Credit going to sit there for 25 years?
Sloan: I believe the intent of the ordinance, let's say 1 start this subdivision this
afternoon and start putting houses in there, let's say it takes a year to get
the houses in there before we get the houses established, then we will plant
trees. Those trees, according to what the city was going to do is they were
going to come in and plant trees and maintain them for three years. Now.
what my proposal intends to be is I will leave the Letter of Credit up until
that three year time frame is left, all I have to do with the ordinance is the
trees have to live three years according to your ordinance, not my
ordinance. My ordinance they have to be maintained for 25 years to go
along with the covenants. I am only leaving the Letter of Credit up for
three years. If he comes along and looks good, from that date on we
document it and I have three years that I have to leave the money up and
he will come back at that three year period and check to make sure they
are healthy. Once 90% of the subdivision is done then my money is
released at that point. Technically that might be a four, five, or six year
period that I have the money up. Granted, 1 would love to take the money
off the table at the time the tree is planted but that doesn't meet the spirit
of the ordinance. The ordinance was to try to maintain some kind of, so
the city would be able to enforce that to make sure we keep a tree there for
a three year period. We are just trying to take the city out of being the
ones to plant the trees, come by and water trees for the next three years. I
think that is undue work on the city that we can take care of has home
owners out there and as developers.
MOTION:
Shackelford: Madam Chair, after reviewing this 1 really like this proposal. One of the
areas of the tree preservation act that I had the most concern with was in
regards to the residential housing development. 1 like this idea. I think
developers and home owners are always going to have a greater vested
interest and reservation for their property than the city will. Based on that,
and the fact that our own city staff is telling us that we cannot provide this
service, I think that this variance meets the intent and purpose of the
Planning Commission• •
September 8, 2003
Page 41
ordinance as it has been written. Based on that and findings of fact by our
city staff and written conditions of approval, I will make a motion that we
approve this ADM 03-22.00.
Bunch: Not only does this meet but it far exceeds what our city requirements are
and I will happily second it and think that it is wonderful that the private
development community is showing that there is value in this and working
to not only meet our city standards, but to exceed them.
Hoover: Thank you. We have a motion by Commissioner Shackelford and a
second by Commissioner Bunch. Is there any more discussion? Seeing
none, Renee?
Roll Call: Upon
the completion of roll
call
the motion to recommend approval of
ADM
03-22.00 was approved
by a
vote of 8-0-0.
Thomas: The motion carries by a vote of eight to zero.
Whitaker: If you would like, and I think it is important based on this process, which
has actually gone on for more than a year now, with your consent we
would like to go ahead and work with the Planning staff on proposed
language with the jest that should they want to bring in protective
covenants and property owner's associations with the kind of assurance
that Mr. Sloan's project did, that would be an option as well. It would still
allow the tree fund to exist for those who didn't feel like they wanted to be
bothered with that level of commitment.
Camagey: I think it is important that what David is saying is explained. City staff,
personnel may not have the capacity to plant mitigation trees but we
should still allow the ability for applicants to pay into the tree fund and the
city can actually contract that work out. Like I said in my report, we have
an RFP submitted right now for landscape contractors to go in and plant
some of these mitigation trees that we are requiring developments to plant.
Hoover: Thank you. Is there any other discussion? Seeing none, I will adjourn the
meeting. Thank you.
Meeting adjourned: 7:26 p.m.
STAFF REVIEW FORM -.NON-FINANCIAL AIGATION
AGENDA REQUEST
For the Fayetteville City Council Meeting of: February 3, 2004
FROM:
Dawn Warrick
Name
Planning CP&E
Division Department
ACTION REQUIRED: Ordinance approval.
SUMMARY EXPLANATION:
ADM 03-29.00: Tree Preservation and Protection Ordinance An ordinance amending Chapter 167 Tree
Preservation and Protection of the Unified Development Code to allow an on site mitigation option for
subdivisions and to clarify the treatment of parkland dedication areas with regard to tree preservation
requirements for development.
STAFF RECOMMENDATION: Approval.
Division Head / Dat`ee
�-� r W -
City At rney to
io-aj
Department Director Date
(�&-X"
mance & Internal Services Dir. Date
Chief ffAministrative Officer Date
Mayor
Date
Received in Mayor's Office / .SI
Date„
Cross Reference:
Previous Ord/Res#:
Orig. Contract Date:
Orig. Contract Number:
New Item: Yes No
FAYETTEVI LLE
THE CITY OF FAYETTEVIEEE. ARKANSAS
DEPARTMENTAL CORRESPONDENCE
To: Dawn Warrick
Planning Division
From: Clarice Buffalohead-Pearman
City Clerk Division
Date: February 9, 2004
Re: Ordinance No. 4539
Attached is an executed copy of the above ordinance passed by the City Council, January 3,
2004, amending Title XV. UDC, regarding trees.
This ordinance
and exhibits will be recorded in the
city clerk's office
and
microfilm. The ordinance
will be updated
in the Code of Fayetteville after the
appropriate time
has
run as well.
Attachment(s)
• •FAr
• • , •
•
AFFIDAVIT OF PUBLICATION
I, AJdo solemnly swear that I am
Leg I Clerk of the Arkansas Democrat-Gazette/Northwest Arkansas
Times newspaper, printed and published in Lowell, Arkansas, and that
from my own personal knowledge and reference to the files of said
publication, that advertisement of:
7Alli ,� was inserted in the regular editions on
V. ej Xi
PO# N- ,
** Publication Charge: $ C 9J tlz
Subscribed and sworn to before me this
day of Fp h lrua rY , 2004.
M'TY/fiLl - P�j�i✓✓v' �+�'V �. 6 v.'%Uri
Notary Public
My Commission Expires: 07101s—/�O/�
** Please do
not
pay
from Affidavit.
An
invoice
will
be
sent.
=SEAN-MICHAEL
al
ARGORECEIVED
rkansasOUNTYMy es I)7-25-2013 FEB 12 2004
CITY OF FAYETTEVILLE
CITY CLERK'S OFFICE
212 NORTH EAST AVENUE • P.O. BOX 1607 • FAYETTEVILLE, ARKANSAS 72702 0 (501) 442-1700
0
