Wednesday, October 24, 2007

Letter of denial from the City Forester to Drainage District

[ Editorial note - the meeting with the City Forester and some of the neighbors, lawyers, etc. took place on October 12th. At that time the city requested that all parties try to reach consensus. The Drainage District's tree removal request was filed on October 16th - included 124 trees - and there was no intervening attempt to even talk to the neighborhood negotiators - and that was after the city arborist spent an entire day with Dave Hendricks and they concluded that 60 trees would be removed. ]

October 23, 2007

Harlan E. Jones
Jordan Schrader Ramis PC
P.O. Box 230669
Portland, OR 97281

Mr. Jones,

My staff and I have reviewed the information sent regarding the request for tree cutting permits by the Multnomah Drainage District in the Bridgeton Neighborhood. By your estimate a total of 124 trees are requested to be cut under PCC 20.40 and 20.42. This is the number referenced in your letter dated October 16, 2008.

There are 40 trees, included in these applications and part of the 124 total, which are below 12” in diameter and not within the ROW. These are not regulated trees. The City of Portland does not require a permit for their removal.

In a response to you October 16th letter, I said I would expeditiously address your permit request but “In order to do this, however, the Multnomah Drainage District needs to specify the number of trees to be removed under each respective tree cutting Title (either 20:40 or 20:42) and the sections (justification) under which permits are requested” Based upon the information provided, I assume the permit request is as follows:
• 33 trees removed under PCC 20.40.
• 51 trees removed under PCC 20.42.
• The tree removal permits are requested as emergency permits under 20:42, without notification or mitigation.
You state: pg 3 paragraph 4 “While 20.40 deals with trees on public lands, nothing in 20.40 provides that 20.40 overrules 20.42 as to the cutting of trees, and 20.42, as stated, unambiguously applies to all land except certain single-family lots” and pg 3 paragraph 5 “The Forester has, and should immediately exercise, the authority to “order or effect” the removal of the trees creating this hazard to public safety by authorizing the District to cut trees as it proposes”.
Again in your email to me on October 17 you state: “As to the rest of the trees, it does not matter whether they fall under 20.40 or 20.42, and it does not matter whether the District or the Forester is correct as to the respective scope and application of those two chapters. Under either chapter and under both chapters, the Forester has explicitly authority to cause or allow the removal of trees, without any permitting process and without any mitigation requirements, in circumstances which present a public safety risk. We identified those specific provisions in our communication yesterday”.

Your permit to remove 124 trees under the emergency tree provision of 20.42.090 Criteria for Issuance of Permits is denied. The City of Portland does not agree with the Multnomah Drainage District that the trees are an emergency hazard for the following reasons:
• The trees have been growing on the levee for up to 50 years without demonstrated negative consequences.

• Despite the District knowing that the trees should be removed and based upon the request of the District, the regulating agency granted annual exceptions suggesting a lack of urgency.

• The City of Portland can grant an emergency tree cutting permit at any time when the levee becomes imperiled by high waters or seasonal conditions effectively assuring safety to “the traveling pubic or the integrity of a public street and associated improvements”.

• The trees submitted are not solely regulated under 20:42 for the following reasons: PCC 20.42.010 Purpose states " is not the intent of this Chapter to require a permit for tree cutting in situations where the same activity is already regulated and reviewed by other provisions of the City Code". PCC 20:40.010 Purpose states " The purpose of this Chapter is the managing, conserving, and enhancing the existing trees located in the parks and public areas owned by the City of Portland and in public rights-of-way.." As clarified by the above, PCC 20:42 do not regulate trees within areas covered by PCC 20:40.

You may resubmit tree cutting permits at any time under the following conditions:

• A permit to remove the 33 trees regulated under PCC 20.40 needs to be accompanied by appropriate mitigation as stated in my October 16th response to you: “The City of Portland does, in most cases, require mitigation for street tree loss through replanting of the tree removal site. The City understands that to do this on the Levee will require replanting in vaults or planters so that tree roots will not migrate to the critical zone”.

• A permit to remove the 51 trees regulated under PCC 20:42 will require an appropriate mitigation plan depending on specific criteria used to justify the permit request.

David McAllister
City Nature Manager and City Forester
1120 SW 5th Ave, Suite 1302
Portland, OR 97204

No comments: