Urban Forest Preservation Act of 2001
Bill 14-307

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A BILL IN THE COUNCIL OF THE DISTRICT OF COLUMBIA

Councilmembers Phil Mendelson, Kevin Chavous, Jack Evans, Jim Graham and Kathy Patterson introduced the following bill, which was referred to the Committee on Public Works and the Environment. 

To establish an urban forest preservation program; to require community notice prior to the removal or replacement of trees on public space; to revise penalties for injuring trees on public space and private property; to establish a Tree Advisory Board; and for other purposes.

BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Urban Forest Preservation Act of 2001 ".

TITLE I. URBAN FOREST PRESERVATION.

Sec. 101. Findings and Purposes. 

(a) The urban forest of the District of Columbia, growing on both public land and private land, is one of the District's great natural resources.

(1) heat island effect mitigation;

(2) better climate and air quality, such as from the cleansing of automobile exhaust and the production of oxygen through photosynthesis;

(3) reduced energy demand, such as from a lesser need for indoor air conditioning;

(4) improved soil permeability, which in turn lessons pollution from storm water runoff and soil erosion;

(5) an improved habitat for a healthy and diverse ecosystem;

(6) an aesthetically pleasing human environment; and

(7) in general, good public health and economic well being.

(c) A robust urban forest will promote mufti-state efforts to improve the quality of the Potomac and Anacostia Rivers and the Chesapeake Bay.

(d) The trees comprising the urban forest have significant aesthetic value, which enhances property values and the quality of life in neighborhoods throughout the District.

(e) The preservation of the District's urban forest is an important trust responsibility shared by both the public and private sectors of the District of Columbia.

(f) To ensure a healthy urban forest for future generations, the Council hereby determines to establish an urban forest preservation program aimed at preserving and increasing the value of the urban forest of the District of Columbia.

Sec. 102. Definitions.

For the purposes of this act, the term: 

(1) "Board" means the Tree Advisory Board established pursuant to title 3.

(2) "Circumference," means the perimeter of a tree measured at a height of 4.5 feet above the ground.

(3) "Concealment inspection" means the building inspection made before permission is given to cover floors and interior walls.

(4) "Construction area" means the area within which construction occurs, and includes any staging area for construction as well as motor vehicle parking for equipment and construction workers.

(5) "Critical root zone" means the area immediately surrounding a tree. The radius of this area, measured from the center of the tree, shall be equal to one foot for each 3.14 inches of circumference, except that for trees with a circumference of at least 94.3 inches the radius shall be equal to 1.5 feet for each 3.14 inches of circumference.

(A) it was removed within 24 months prior to the date when the deforestation statement or reforestation plan is filed;

(B) it is proposed for removal in the deforestation statement; or 

(C) it is an endangered tree.

(8) "Endangered tree" means a tree whose critical root zone, all or in part, is within a construction area or a tree that may be adversely impacted by a change in its surroundings, including demolition, construction, dewatering, and reduction in pervious surfaces. An endangered tree may be on property adjacent to the construction area.

(9) "Fund" means the Tree Fund established pursuant to section 107.

(10) "Maintenance" and related phrases pertaining to tree maintenance mean the upkeep of one or more saplings or trees in a healthy state. Maintenance includes: assuring adequate soil conditions, providing water in times of drought, rendering professional pruning, and feeding as appropriate. A maintenance plan shall require replacement of any sapling that dies or is dying during the pendency of the plan. 

(12) "Program" means the Urban Forest Preservation Program established pursuant to tree preservation measures and the replacement of trees specified in an accompanying deforestation statement.

(13) "Reforestation plan" means a plan, prepared pursuant to section 106, which specifies tree preservation measures and the replacement of trees specified in an accompanying deforestation statement. 

(15) "Sapling" means an immature tree with a circumference of not less than 6.28 inches: provided, that the Mayor may, by rule, establish lesser sizes for saplings to be permitted under specific planting conditions related to a maintenance plan, the clustering of saplings, the use of the area being planted, and similar factors. A sapling shall not include any species that is generally incapable of reaching a circumference of 25 inches.

(16) "Scheduled value" means the value of a tree according to the tree value schedule established pursuant to section 104.

(17) "Tree" means any plant species that is commonly considered to be a tree, that is living, and that has reached a circumference of 25 inches or greater. A tree that is afflicted with a disease from which, in the written opinion of a certified arborist, the tree will not survive shall not be considered a living tree.

(18) "Tree registry" means a computerized registry of all trees registered by private property owners, all trees listed in reforestation plans, and all District-owned trees. The registry shall be maintained by the Mayor on an automated geographic information system (GIS) with individual records formatted so as to enable their integration with the District's real property assessment records.

(19) "Urban forest" means all of the trees standing within the boundaries of the District of Columbia.

There is hereby established an Urban Forest Preservation Program for the District of Columbia which shall be administered by the Mayor. The Mayor shall be responsible for:

(1) preparing an annual program for tree planting and tree care in the public space of the District;

(2) preparing a master tree plan and making changes to the plan from time to time;

(3) ensuring that the tree registry is fully operational and current not more than two years after the effective date of this act; 

(4) developing maintenance standards as they relate to trees in public space;

(6) making determinations of tree removals in public space;

(7) reviewing all landscaping plans as they affect trees in public space;

(9) preparing an annual Urban Forest Management Planning Report, including recommendations for action, to be presented to the Council in February of each year. With input from the Tree Advisory Board, this annual report shall describe the state and condition of the District's urban forest.

Sec. 104. Tree value schedule.

(a) The Mayor shall formulate and maintain a tree value schedule consistent with the basic formula value of trees established in the most recent edition of "Evaluation of Landscape Trees, Shrubs, and Other Plants: A Guide to the Methods and Procedures for Appraising Amenity Plants," published by the International Society of Arborists and adopted by the Council of Tree and Landscape Appraisers, Washington, D.C. In the event this publication is not available or becomes out of date, the Mayor shall by rule select another authority for tree valuation.

Sec. 105. Permit requirements.

(a) With each application to the District government for a permit to alter, build, construct, or demolish, there shall be included a deforestation statement and a reforestation plan. If a deforestation statement certifies that no tree shall be removed or endangered, then no reforestation plan shall be required.

(b) The scheduled value of each tree included in the deforestation statement shall be added to the permit fee required of the applicant, except that in the case of a residence the amount to be added shall be one-half the scheduled value. If the permit is a re-issuance for which the amounts required by this subsection have been collected previously, no scheduled value shall be collected again.

(c)(1) For any endangered tree specified in a deforestation statement, the permit applicant may post with the Mayor a bond, or any other security the Mayor shall prescribe ("security"), in lieu of paying the scheduled value required by subsection (b) of this section.

(2) The security shall be accepted only if the following conditions are met:

(A) The deforestation statement provides that less than 20 percent of the critical root zone of the endangered tree will be within the construction area;

(B) Protective measures such as fencing, pruning, and watering are being taken to aid the tree's health; and 

(C) A written opinion by a certified arborist is submitted which states that the protective measures being taken are adequate to preserve the health and ensure the survival of the tree.

(3) The security shall be an amount equal to the scheduled value of the endangered tree. The security shall be posted or given simultaneously with the payment of the permit fee and shall be held until a written opinion by a certified arborist is submitted which states that the tree is healthy. The opinion shall be dated no earlier than 2 growing seasons after the completion of all endangering construction work. If the opinion is not submitted within 5 years after the completion of all of the endangering construction work, or if the opinion is not verified by the Mayor, then the Mayor shall collect against the security and deposit the proceeds into the Tree Fund established pursuant to section 107.

(4) Upon application by the affected permit applicant, including a successor in interest, the Mayor shall refund the scheduled value, without interest, which had been paid pursuant to this section for an endangered tree: provided, that appropriate documentation is submitted, including the written opinion by a certified arborist, which verifies that the tree is healthy, provided further, that the application shall be filed between 3 and 5 years after the completion of all of the endangering construction work.

(d) The reforestation plan, upon acceptance by the Mayor, shall be a condition of the permit. 

Sec. 106. Reforestation requirements.

(a) A reforestation plan shall specify what measures, if any, will be taken to preserve or aid each existing and endangered tree. The measures may include, but are not limited to, fencing to protect tree trunks and critical root zones, the pre-construction pruning of foliage or roots, and post-construction soil aeration. No right of access is created by this act for an endangered tree located on property adjacent to the construction area.

(b) The reforestation plan shall provide for the replacement of each tree specified on a deforestation statement according to the following ratio:

(1) A tree smaller than 37.7 inches in circumference shall be replaced with a sapling on a one-for-one basis.by a quantity of saplings whose aggregated circumference equals or exceeds the circumference of the endangered or removed tree.

(2) A tree greater than or equal to 37.7 inches in circumference shall be replaced by a quantity of saplines whose aggregated circumference equals or exceeds the circumference of the endangered or removed tree. 

(3) Replacement saplings shall be chosen from a general list of native plant species approved by the Mayor for citywide use.

(c)(1) The reforestation plan shall stipulate where reforestation will occur. Reforestation shall occur either within one mile of the deforestation site and within the District of Columbia, or within the Advisory Neighborhood Commission in which the deforestation occurs. The reforestation may be on either public or private land.

(2) If a reforestation plan stipulates reforestation on private land, the plan shall evidence a commitment of the properly owner showing acceptance of the reforestation plan regarding his or her land and stating agreement to implement a 2 year maintenance plan for each replacement sapling.

(3) If a reforestation plan stipulates reforestation on public land (District or federal), the plan shall include a letter from the appropriate public agency approving and accepting the stipulation. A maintenance plan may be required as part of the reforestation plan for any replacement tree planted on public land.

Sec. 107. Tree Registration

(a) There is established a tree registration program through which trees of significance to their owners or the community may be registered with the Director. The Director shall provide suitable markers for trees registered under this program.

(b) A property owner wishing to register his or her tree or trees may do so on a form to be provided by the Director. The registration form shall include the tree's species, location and circumference. The form shall also include an agreement binding the property owner at his or her expense to maintain the registered tree for ten years, to refrain from removing it unless pursuant to a reforestation plan attached to a permit, and to replace the tree with a sapling if it is destroyed by whatever cause. At the option of the property owner, the agreement may be renewed for additional periods of 10 years.

(c) The Director may register a tree without an application by the property owner if the tree is especially impressive or an unusual example of a species due to its size, shape, age, or any other trait that epitomizes the character of the species, and if the following conditions are met:

(1) The Director has received a request formally adopted by the Historic Preservation Review Board established pursuant to the Historic Landmark and Historic District Protection Act of 1978, effective March 3, 1979 (D.C. Law 2-144; D.C. Code §5-1003); or

(2) The Director has given 30 day written notice of proposed action to register the tree to the property owner and the affected Advisory Neighborhood Commission or Commissions and the affected Commission does not oppose the registration.

Sec. 108. Tree Fund.

(a) There shall be established a fund designated as the Tree Fund, which shall be separate from the general fund of the District of Columbia and shall be used solely for those purposes set forth in subsection (b) of this section. Monies deposited into the Fund shall not revert to the General Fund of the District of Columbia at the end of any fiscal year or at any other time, but shall be continually available for the uses and purposes set forth in subsection (b) of this section. Donations as well as all deforestation fees collected pursuant to section 105 shall be deposited into this fiend. All additional permit fees collected under this act shall be deposited into this fund. All receipts shall be deposited as soon as practicable. The Director shall maintain the Fund in coordination with the Chief Financial Officer of the District of Columbia.

(b) The Fund shall be used to provide markers for registered trees, to replace trees registered pursuant to section 107 and which die, become unhealthy, or are removed, to replace public space trees of any size, including saplings, and to provide assistance for private and public tree replacement necessitated by storm damage and other acts of nature. The fund shall not be used to pay for the removal of any tree or any part of a tree, to replace any tree removed pursuant to a deforestation statement, or to purchase any type of plant other than saplings.

(c) The Director shall submit to the Mayor and to the Council a semi-annual statement of all receipts and disbursements of the fund.

(d) Private donations to the Tree Fund that are not required by this or any other law shall be tax deductible for purposes of District income and franchise taxes.

Sec. 109. Trees on Public Space.

(a) A tree or sapling on public space shall be removed only by a duly authorized representative of the Mayor. Prior to the removal of a tree on public space, unless the tree is dead or dangerous and in need of immediate removal, the Director shall provide not less than seven days' written notice, excluding Saturdays, Sundays, and legal holidays. This notice shall be provided to the affected Advisory Neighborhood Commission, the seven days counted from the date of postmark or hand delivery, shall be posted on the tree to be removed, and shall set forth the reason for the proposed removal. Not more than two years after the effective date of this act, the notice also shall specify the location, species, size, approximate age, and scheduled value of the tree sought to be removed, and shall specify a plan to replace the tree, describing location, species, size, and scheduled value of the replacement tree or trees.

Section 110. Dangerous and Fallen Trees.

Section 111. Enforcement.

(a) The Mayor shall deny approval of a building permit until assured of an applicant's compliance with section 105 of this act.

(b) The Mayor shall deny a certificate of occupancy for a building until assured of an applicant's compliance with the reforestation plan attached to a permit. In cases where a certificate of occupancy is not required, the Mayor shall deny approval to proceed beyond the concealment inspection stage until assured of an applicant's compliance with the reforestation plan attached to the permit.

(c) Civil fines, penalties, and fees may be imposed as additional sanctions for any infraction of the provisions of this title, or any rules or regulations issued under the authority of this title, pursuant to titles I-III of the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, effective October 5, 1985 (D.C. Law 6-42; D.C. Code § 6-2701 et seq.) ("Civil Infractions Act"). If the infraction includes the removal of a tree in violation of any provision of this title, including a deforestation statement, then the fine shall include three times the scheduled value of each such tree. Adjudication of any infraction shall be pursuant to titles IIII of the Civil Infractions Act. 

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TITLE II: PROTECTION OF TREES AS PROPERTY

"Sec. 13. It shall be unlawful for any person or persons willfully and wantonly to girdle, break, wound, destroy, or in any manner injure any of the trees now growing or planted and set, and which may hereafter be planted and set, on any of the public grounds, open spaces, or squares or on any private lot, or on any of the streets, avenues, roads, or highways in the District of Columbia, or any of the boxes, stakes or any other protection thereof, under a penalty of not exceeding $2,500 or imprisonment for not more than 30 days, or both, for each and every such o offense.".

Sec. 202. Article XVI of the Police Regulations of the District of-Columbia, as adopted by order of the Commissioners May 24, 1902 (24 DCMR §§ 107.5, 107.6, 107.7, and 108.2) is amended to read as follows:

"Sec. 1. With regard to any tree located on any street, avenue, or other public space in the District of Columbia, no person shall:

"(a) hitch or fasten an animal to such tree, or to any supporting stake or guy, or to any protective fencing;

"(b) trim, prune, or whitewash any such tree unless with a permit issued by the Mayor;

"(c) unless with a permit issued by the Mayor, pile material about any such tree, or to place or store cement, asphalt, soil or any other substance which impedes the access of air and water to the roots of the tree, or to place salt, brine, petroleum products, weed killer, or any other substance in such an amount to be injurious to the tree;

"(d) attach an advertisement, guy, rope, or wire (unless the guy is to support the tree) except with a permit issued by the Mayor; or

"(e) wound, destroy, or in any manner injure such tree.

"Sec. 2. Civil fines, penalties, and fees may be imposed as additional sanctions for any infraction of these provisions, pursuant to titles I-III of the Department of Consumer and Regulatory Affairs Civil Infractions Act of 1985, effective October 5, 1985 (D.C. Law 6-42; D.C. Code §6-2701 et seq.)."

Section 203. Within 240 days of the effective date of the Urban Forest Preservation Act of 2001 the Mayor shall promulgate rules for the construction of tree boxes that are adjacent to roads and in the public space. These rules shall require adequate aeration, drainage, soil, and space for tree growth.

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TITLE III: TREE ADVISORY BOARD

Sec. 301. There is established a Tree Advisory Board to consist of 7 members appointed by the Mayor with the advice and consent of the Council. At least 3 members of the Board shall have professional experience in landscape architecture or another tree-related field. No member of the Tree Advisory Board shall be a District government employee at the time of his or her nomination or appointment by the Mayor.

Sec. 302. Members of the Board shall be appointed for terms of three years and may hold over until their successors are appointed.

Sec. 304. The Tree Advisory Board shall:

(1) advise the Mayor and the Director on city plans and polices which impact the city's urban forest;

(2) recommend legislation relating to the urban forest;

(3) advise the Mayor and the Director about the annual Urban Forest Management Planning Report required under section 103; and installation of new trees are tax deductible for purposes of District income and franchise taxes, except that expenses incurred while implementing a reforestation plan are not deductible.

(4) serve as a forum for the community to provide input into the city's urban forest policies and practices.

Sec. 306. Members of the Tree Advisory Board shall receive no compensation, but may be reimbursed for out-of-pocket expenses incurred while carrying out the official business of the Board.

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TITLE IV: CANOPY EXPANSION

Sec. 401. Subject to appropriation, actual expenses not to exceed $300 per tree for the installation of new trees are tax deductible for purposes of District income and franchise taxes, except that expenses incurred while implementing a reforestation plan are not deductible. 

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TITLE V: RULES, FISCAL IMPACT, AND EFFECTIVE DATE

Sec. 501. Rules.

The Mayor, pursuant to title 1 of the District of Columbia Administrative Procedure Act, approved October 21, 1968 (82 Stat. 1204; D.C. Code § 1-1501 et seq.), shall issue rules, if necessary, to implement the provisions of this act.

Sec. 502. Fiscal Impact.

The Council adopts the fiscal impact statement in the committee report as the fiscal impact statement required by section 602(c)(3) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Code § 1-233(c)(3)).

Sec. 503. Effective Date.

This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), approval by the Financial Responsibility and Management Assistance Authority as provided in section 203(a) of the District of Columbia Financial Responsibility and Management Assistance Act of 1995, approved April 17, 1995 (109 Stat. 116: D.C. Code § 47-392.3(a)), and a 30-day period of Congressional review as provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813: D.C. Code § 1-233(c)(1)), and publication in the District of Columbia Register.