PROPOSAL FOR A REVISED TREE PRESERVATION CODE TO ENSURE A DEVELOPER’S DESIRED DENSITY AND PROTECT LARGER NATIVE TREES

By Karon V Johnson

Bend Planning Commission, 2014-2016
Land use chair, Old Farm District NA, 2017 – Present

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What follows is roughly 40 pages of analysis and code recommendations. You may prefer to review it in a PDF document, rather than on this webpage.

I. Introduction

The Bend tree preservation code, BDC 3.2.200, purports to save healthy “significant” trees: deciduous trees with a 6” or greater dbh (diameter at breast height) and conifers with a 10” or greater dbh. In fact, it allows developers to clear-cut every tree on a proposed development site, significant or not.

Its vague and ambiguous standards violate ORS 197.307(4). A tree preservation code must set mandatory, quantitative standards which are clear and objective. Bend’s clearly does not.

Any Oregon tree preservation code must allow developers to build up to their maximum legal density. Older trees take up valuable space and are difficult to save because they require a large preservation zone with minimal disruption, grading or filling around their trunks. The only way for developers to achieve their desired density and have space to retain some significant trees is to give them more room: more usable land so they can create a site design which allows the preservation of some significant trees.

The best way to give developers more room is to reduce Bend’s right of way (ROW) for local/residential streets from 60’ to 50’. This should have done years ago. Oregon’s Transportation Planning Rule requires local governments to “establish standards for local streets and accessways that minimize pavement width and right-of-way.” OAR 660-012-0045(7). Reduced ROWs for Oregon local streets have already been recommended by a study sponsored by ODOT and LCDC, the Neighborhood Street Design Guidelines (“Guidelines”) published in 2000.

Bend’s ROW for residential streets is 60’; the Guidelines recommend ROWs between 42’ to 56’, depending on parking. Adopting the Guidelines recommendations would give developers the space they need to create designs which save some significant trees while achieving the desired density of their projects.

This report proposes a new tree protection code modeled on Chapter 33.630 of the Portland tree preservation code. It contains the following:

  • Before and after photographs of four developments, illustrating the problems;

  • A legal analysis of how the present code violates Oregon law and a summary of the Oregon land use laws which must inform any new tree protection code; and

  • The current text and proposed amendments to the Bend Development Code and Bend Standards and Specifications.

    The new code will require developers to incorporate the preservation of significant trees into their initial design. It accomplishes the following:

  • Sets a mandatory minimum number of trees to be protected based on the formula used in Portland Tree Preservation Chapter 33.630;

  • Applies to all significant trees, emphasizing preservation of those ≥20” dbh;

  • Ensures the tree preservation goal will not affect the developer’s proposed density;

  • Gives the City authority to require an alternative design, including waivers of Bend’s public improvement standards, if other statutory criteria are met; and

  • Provides for mitigation by planting new trees of the same species if the onsite tree preservation goal cannot be achieved.

II. Bend's Trees Are Being Clear-Cut for Development

A. Leehaven, PZ-15-1005 & 17-0725.

Hayden Homes built 61 single-family residences on 11.4 acres. The property is on Neff Road and zoned RS (4.0-7.3 units/acre). There were 564 significant trees on the property. Each tree was inventoried by assigning it a number and listing its species, size, and health. 408 of the significant trees were healthy. The original development proposed to save 41 trees. It appears that only 20 remain; it is difficult to tell, because some are still dying. Hayden was required to plant 38 pines in mitigation.

B. Luderman’s Crossing, PZ-19-0143.

Pahlisch Homes is building 120 units, most of them single-family residential, on 16.5 acres of land on the corners of 15th and Reed Market Road. The project’s burden of proof lists 223 significant trees; perhaps only 10 remain.

C. Arena Acres, PZ-18-0615.

Hayden Homes is building 82 single family units on 15.35 acres by Brosterhous. There were 122 significant trees on the property. Initially 31 were to be retained, including some old Ponderosas and junipers in the middle of the development.

D. Skyline West, PZ-19-038.

Pahlisch Homes plans to build 50 units on 8.22 acres on McClain Avenue. There were 101 trees on the site. Pahlisch proposed to remove them all.

The Three Pines Home Owners Association hired an attorney and contested the development. The case has settled. Pahlisch will retain 27 of the Ponderosa pines, and plant 89 new Austrian Black pines, 24 Callery Pears and 22 Lindens.

The public should not have to hire a land use attorney to preserve significant trees on a development site.

E. The Developer Should Post a Significant Bond for Each Tree To Be Preserved.

The Arena Acres final site plan showed the trees which had to be preserved as a condition of final approval. Hayden Homes subsequently sought permission to remove two of these “protected” trees, which the City approved. But six others were removed as well.

The present code does not require a developer to post a bond for each tree designated for preservation. The City staff does not have the time to monitor a development site to ensure compliance with the tree protection plan. The code needs to give the developer a stronger incentive to monitor subcontractors by requiring a significant bond for each tree to be retained.

III. Oregon Law Mandates Certain Requirements for Development Approval Standards

Oregon’s unique land use laws dictate certain legal constraints on any code which defines approval standards for the development of needed housing:

  • Land Use Rule 10 requires adequate land for needed housing;
  • The requirement to build within the Urban Growth Boundary (UGB) limits the available acreage for needed housing, thus mandating higher density;
  • ORS 197.307(4) requires “clear and objective” standards for the approval of developments; and
  • Approval standards may not have the effect of discouraging needed housing through unreasonable cost and delay. ORS 197.303; ORS 197.307(4)(b); OAR 660-008-0015.


Thus, to satisfy Oregon law a tree protection code must have four essential components:

  • The development standards must be quantitative–set a mandatory minimum number of trees to be preserved as an initial protection goal;
  • This protection goal must be a hard number, calculated by a numerical formula based on clear and objective standards;
  • The protection goal cannot reduce the developer’s desired density; and
  • The code must provide for mitigation if the protection goal cannot be met by a design which does not cause unnecessary cost and delay.


Furthermore, to provide a workable, practical mechanism to protect older trees, the code must:

  • Provide alternative building space for the land necessarily lost to tree preservation by granting waivers of public improvement standards, such as width of right-of-way for local/residential streets; and
  • Give the City authority to mandate modifications of the developer’s proposed design if an alternative design will save some significant trees and meet the project’s desired density.


A mandatory minimum preservation goal is essential to require both the developer and the City to actually save some trees. The present code already provides for a waiver of public improvement standards, but no one is using it or indeed paying any attention to it.

IV. BDC 3.2.200 Violates Oregon Law

Two developers have challenged the legality of Bend’s tree protection code. They allege that its provisions violate ORS 197.307(4), which provides in pertinent part:

“[A] local government may adopt and apply only clear and objective standards, conditions and procedures regulating the development of housing, including needed housing.”

They are absolutely correct. Bend’s development standards for preservation of significant trees are not clear and objective.

A. Pahlisch Homes has challenged BDC 3.2.200 concerning its application for the Skyline West subdivision, PZ-19-0381.

Pahlisch’s Skyline West is 50 units on 8.22 acres; the approximate density is 6 units/acre, well within the RS 4.0-7.3 units/acre standard. Thirty-two percent of the site is heavily wooded with significant Ponderosa and Juniper. Pahlisch initially proposed to cut down every tree; it argued that BDC 3.2.200 could not protect these trees because it violated ORS 197.307(4).

  • The present tree code “does not have clear and objective standards, conditions, and procedures for regulating the development of needed housing …” Pahlisch Application executive summary, p. 2, Skyline West, PZ-19-0381
  • BDC 3.2.200: “The Applicant asserts that the criteria listed above are neither clear nor objective, therefore conflicting with ORS 197.307(4) and rendering them inapplicable as decision criteria for this needed housing application.” Pahlisch Application for Skyline West, p. 25, PZ-19-0381.
  • The term “impracticable is subjective and may not be applied under ORS197.307(4).” Pahlisch Notice of Appeal to the City Council p. 10, October 28, 2019.
  • BDC 3.2.200.B requires that significant “vegetation” be “inventoried” during the site design process. Pahlisch asserts that “inventoried” is subjective and fails to meet the clear and objective standards required by ORS 197.307(4). Pahlisch Notice of Appeal to the City Council p. 5, October 28, 2019.


The development was opposed by the Three Pines HOA. The matter was contested before a hearings officer, who issued a decision October 16, 2019. Among other rulings, she held that BDC 3.2.200 required Pahlisch to conduct a tree inventory and publish a plan showing the location of significant trees in relation to the building envelopes.

On October 28, 2019, Pahlisch and the HOA filed appeals to the Bend City Council, which were denied. Both filed appeals with LUBA, then worked out a compromise. The compromise saves 27 significant Ponderosa pines and requires the planting of dozens of Austrian Black pines and other trees.

B. JL Ward Co. challenged BDC 3.2.200 in its Community Master Plan application PZ-19- 0517. (795 housing units on 150 acres, 5.3 units/acre.)

  • BDC 3.2.200 “The Applicant asserts that the criteria listed above are neither clear nor objective, thereby conflicting with ORS 197.307(4) and rendering them inapplicable as decision criteria for this needed housing application.” Murphy Road Minor Community Master Plan, p. 33.

C. ORS 197.307(4) requires “clear and objective” approval standards for developments.

Numerous decisions by the Land Use Board of Appeals (LUBA) and the Oregon Court of Appeals define “clear and objective” approval standards.

  • Clear and objective means an “objective determinable fact that does not involve subjective, value-laden analyses.” Rudell v. City of Bandon, 249 Or. App. 309, 318-20 (2012).
  • Standards are not clear and objective if they are ambiguous—that is, “they can be plausibly be interpreted in more than one way.” Madrona Park, LLC v. City of Portland, LUBA 2019 032 (2019).


Many decisions illustrate criteria which fail the clear and objective standard.

  • A city had required that a riparian corridor be enhanced by planting, so that over the course of five years the corridor is “measurably improved.” “Measurably improved” is not a clear and objective standard. Warren v. Washington County, 296 Or. App. 595 (2019).
  • A standard that required that “potential land use conflicts have been mitigated” is not clear and objective. Parkview Terrace Development LLC v. City of Grants Pass, 70 Or LUBA 37 (2014).
  • A standard that “adequate basic urban services are available” is not clear and objective. Parkview Terrace Development LLC, id.
  • A standard that requires “the characteristics of existing adjacent development have been determined and considered in the development of the site plan” is not clear and objective. Parkview, id.
  • A standard requiring a 100-foot setback from any “rare animal population” is not clear and objective. Home Builders Assoc. v. City of Eugene, 41 Or LUBA 370 (2002).

 

The courts favor quantitative standards: hard numbers will always pass muster. Rogue Valley Assoc. of Realtors v. City of Ashland, 35 Or LUBA 139 (1998), noted: “Numerical or absolute standards are almost paradigmatically ‘clear and objective’.” Id. at 154 n. 20. Several cases illustrate the criteria approved by LUBA and the Court of Appeals.

  • A zoning ordinance standard linking the required number of parking spaces to the number of units is clear and objective. Home Builders Association v. City of Eugene, 59 Or LUBA 116 (2009).
  • The requirement that each home in a manufactured home park be within 500 feet of a fire hydrant is clear and objective. Doob v. Josephine County, 39 Or LUBA 276 (2001)
  • The requirement that parking lots with more than a “specified number of spaces include a specified square footage of landscaping per space” is clear and objective. Home Builders Association v. City of Eugene, 59 Or LUBA 116 (2009).

D. BDC 3.2.200.D violates ORS 197.307(4) because its criteria for preserving significant trees are not clear and objective.

BDC 3.2.200.D: PROTECTION STANDARDS provide:

  • Significant trees identified as meeting the criteria in Subsection (B) of this section shall be retained unless approved by the City to be removed for development.

  • Preservation shall be considered impracticable when it would prevent development of public streets, public utilities, needed housing or land uses permitted by the applicable land use district. See criteria per Table 2.1.600
  • The term prevent means that the development “cannot be designed to avoid the significant tree(s).” (Emphasis added.)


Note that the code requires retaining all significant trees if “practicable”. But retaining them all can never be practicable because any development necessarily removes some trees. There is no clear and objective standard to determine how many must be retained.

E. An Example

The following example will illustrate the problems with the present code. A builder has 10 acres zoned RS (4-7.3 units/acre). His site plan proposes a density of 6 units/acre. The property has 15 trees which are unhealthy or of smaller diameter and 20 healthy, significant trees. The developer proposes to remove all 35.

Problem # 1: Whose design?

Trees may be removed if the development “cannot be designed” to avoid significant trees.

Whose design and who decides? The developer or the City?

  • The developer wants to cut down all the trees to build to his desired density and site design.
  • The City says, we think you can re-design this development so that it is “practicable” to save some trees.


Whose design is used to determine whether saving trees is “practicable”?

Pahlisch supports the first interpretation: BC 300.2.200 “allows the removal of the trees because their presence would otherwise prevent the development as proposed.( 9/17/2019 Second Open Record Period Submittal, p. 9. Section F.) (Emphasis added.)

But Bend Standards & Specifications section 12.2.2.2 allows tree removal if the “site cannot be feasibly developed, either by alternative design or construction methods.” (Emphasis added.) Does this mean the City can require an alternative design which saves significant trees? If not the City, then who? What is the standard for feasibly? This language is ambiguous.

These standards can be plausibly interpreted two or more ways, which necessarily violates ORS 197.307(4). Standards are not clear and objective if they are ambiguous—that is, “they can be plausibly be interpreted in more than one way.” Madrona Park, LLC v. City of Portland, LUBA 2019-032.

Problem # 2: If all significant trees cannot be retained, how many may be removed?

The builder says, “Okay, you want me to redesign my development to save some trees?

How many am I supposed to save?”

The code fails to set a mandatory minimum number of trees to be preserved—i.e., a number to start from. As a result, one planner may require 5, another may require 10. The number of trees to be preserved is entirely subjective.

A standard is not clear and objective if it is “subjective and value-laden.” Rudell v. City of Bandon, 249 Or. App. 309 (2012).

F. BDC 3.2.200.D and 3.4.150 are in conflict and their standards are entirely subjective.

Two different code provisions already give developers incentives to preserve significant trees, but their standards conflict.

BDC 3.2.200.D provides in pertinent part:

“In instances where applying exceptions to certain developments would make tree preservation practical, the City may allow one or more of the following exceptions to the development standards when individual trees with a DBH of 24 inch or larger or stands of trees that are in good health as determined by a qualified professional, are preserved by a proposed development with an approved tree preservation plan:

  • Reductions of setbacks up to 25 percent.
  • Reduction of required on-site parking up to 10 percent.
  • Increased lot coverage up to 5 percent;
  • Reduced landscape coverage up to five percent.”


But BDC 3.4.150 allows the City to waive or modify public improvement standards and the Bend Standards and Specifications code if the waiver: “will not harm or will be beneficial to the public in general,” is “not inconsistent with the general purpose of ensuring adequate public facilities,” and at least one of 12 criteria are met:

“1. The modification or waiver is necessary to eliminate or reduce impacts on existing drainage patterns or natural features such as riparian areas, significant trees or vegetation, or steep slopes.” BDC 3.4.150.B.1. (Emphasis added.)

Which section applies? This is an important issue: BDC 3.2.200.D is limited to four minor incentives, while BDC 3.4.150 offers substantial incentives which could significantly affect the design of a development. It allows the City to reduce the 60’ ROW on local streets, reduce the pavement width, the number and design of sidewalks and planter strips, and parking, among other standards. BDC 3.4.150 gives a developer significantly more land to create a design which achieves the desired density and saves some significant trees.

Another problem. Assume the developer in our example could achieve his desired density, and save 10 significant trees, if he could design one of the proposed streets with a 50’ ROW, one planter strip instead of two, and a curb tight sidewalk along one side of the street. He wants to secure these waivers under BDC 3.4.150.

BDC 3.4.150 requires the developer to show that the waivers necessary to retain these 10 significant trees is “beneficial” to the public,” “not inconsistent” with the purpose of ensuring adequate public facilities, and will “reduce impacts” on significant trees. “Adequate public facilities” satisfies ORS 197.307(4) because the exact specifications for water, sewer, power and other utilities are set by code. But “beneficial” and “reduce impacts” are as subjective as “practical” in BDC 3.2.200.D. They are not defined and they are vague: they fail to provide hard numbers on which to base a judgment.

In short, the code offers two waiver options but provides no guidance on what standards dictate the choice of one over the other. And some of the terms are not clear and objective.

G. Bend Standards and Specifications section 12.2.2.2 is not clear and objective.

There are also ambiguities in the Bend Standards and Specifications code. Section 12.2.2.2 allows tree removal if the “site cannot be feasibly developed, either by alternative design or construction methods …”.

What does “feasibly” mean? The density the developer wants or any density within the density zones provided in BDC Table 2.1.600?

And, how does the “alternative design” come about?

V. The Developer's Proposed Density Must Be Retained

Any tree protection code must allow developers to build to their desired density, as long as that density meets the criteria for that zone. In our example, an RS zone allows as few as 4 units/acre but the developer wants 6 units/acre. The City must allow 6 units/acre. Home Builders Association of Lane County et al. v. City of Eugene, 41 Or LUBA 370 (2002).

Land Use Goal 9 requires the city to provide an adequate supply of sites of suitable sizes, types, locations and service levels for residential, industrial and commercial uses. Land Use Goal 10 requires the city to inventory all buildable lands for residential use to ensure the availability of adequate numbers of needed housing units.

Eugene ran afoul of these goals when it passed an expansive ordinance adopting numerous requirements for approval of developments. The new code set clear and objective standards, for example requiring that any development preserve a minimum of 20% to 60% of “significant trees” on site and protect at least 70% of the critical root zone of each preserved tree.

The Home Builders Association argued that the effect of these provisions, individually and cumulatively, was to reduce the amount of land available for industrial, commercial and residential uses. It produced an analysis to support its argument. While the City denied this would occur, it failed to provide any evidence “to quantify how much land, if any, may be rendered unbuildable under the disputed provisions.” Id. at 76.

The court ruled for the Association on this point. If the city imposes tree preservation standards which are “likely” to limit the availability of adequate numbers of needed housing units, it must determine whether these standards affect the amount of buildable land. “[T] city has an obligation to demonstrate that despite any such reductions in development potential for industrial, commercial and residential lands, the city’s inventories continue to comply with Goals 9 and 10.” Id.

Bend’s land inventory is Appendix J of the Bend Comprehensive Plan. If the City adopts a tree preservation plan which appears likely to alter the available acreage for development, it may have to do a new inventory.

We do not want to go there. Thus, any tree preservation code must allow the developer to build to his proposed density as long as it is allowed in that zone.

 

VI. Waive the 60' Right of Way (ROW) to Allow a Design which Achieves the Desired Density and Saves Trees

A. Bend should allow waiver of the local street 60’ ROW if the purpose is to save significant trees.

OAR 660-012-0045(7) requires cities to “establish standards for local streets and accessways that minimize pavement width and right-of-way.” Bend needs to comply with OAR 660-1012-0045(7): allowing a ROW reduction in the tree preservation code is a good place to start.

There is no compelling reason to mandate a 60’ ROW for local/residential streets, particularly when a reduction of the ROW would save some of Bend’s iconic native trees.

  1. The Oregon Neighborhood Street Design Guidelines recommend a reduced ROW.In November, 2000, the Stakeholder Design Team published the Neighborhood Street Design Guidelines. This study was the result of Oregon’s Transportation Planning Rule, adopted in 1991, which requires local governments to minimize street width considering the operational needs of the streets. This study reflected a national movement for narrower streets to build more livable neighborhoods.The Guidelines were the product of members representing Fire/Emergency Response, Service Providers, Developers/Consultants, Transportation Engineers/Planners, Public Works, Non- Profit Groups, City Representatives, and County Representative/Planners.

    Appendix A includes the Guidelines’ three Potential Scenarios for ROW on Oregon residential streets:

    • Parking on both sides of the street: 52-56’
    • Parking on one side of the street: 47-52’
    • No parking on the street: 42-48’

    Bend appears never to have considered these recommendations.

  2. Forty (40) percent of cities across the nation have a local street ROW of 50’.
    Residential Street Standards & Neighborhood Traffic Control: A Survey of Cities’ Practices and Public Officials’ Attitudes, Eran Ben-Joseph, Institute of Urban and Regional Planning, University of California at Berkeley.

  3. Many Oregon and Washington cities have a smaller ROW:

    Eugene: 40’ – 55’ depending on whether a bike lane is added Medford: 50’
    Seattle: 50’
    Portland: 44’ – 56’, depending on what parking is allowed.
    Ontario: 50’ for local streets of more than 2% grade pavement width 32 Burns: 50’
    The Dalles: 54’
    Prineville: 60’ only if parking allowed on both sides of the street
    Hood River: 50-60’ depending on parking

  4. A 50’ ROW gives the City adequate room for snow management. According to the American Planning Association, the local/residential street ROWs for the 10 US cities with the heaviest snowfall are:
    Billings, MT56’Duluth, MN54’
    Boise, ID47’Erie, PA>60’
    Buffalo, NY52’Minneapolis, MN60’
    Cleveland, OH50’Rochester, NY50’
    Denver, CO60’Salt Lake City, UT50’

    Only three out of 10 cities with the highest annual snowfall require a 60’ ROW. Clearly, snow is not a barrier to reducing Bend’s ROW for local/residential streets.

VII. The Portland Code: An Example of How the Formula Works

Back to our example. A builder has 10 acres zoned RS (4-7.3 units/acre). His site plan proposes a density of 6 units/acre. The property has 35 trees: 15 are unhealthy or too small to be significant. The 15 smaller or unhealthy trees meet the exemptions in the proposed code, section 3.2.240, and may be removed.

The remaining 20 healthy, significant trees qualify for preservation. Assume they have the following diameters at dbh:

1 20”and 
1 22”5 of 8” each
1 24’5 of 10” each
1 28”5 of 15” each
1 30” 

The total tree diameter on the site is the total diameter of all trees completely or partially on the site, minus the trees which are exempt from these regulations. Here, the total tree diameter is 289”.

The applicant must choose from one of five options. The formula for the minimum preservation standard is set by the option the developer chooses. Calculations for each option follow.

  1. Option 1: Preserve all of the trees that are 20 or more inches in diameter and such other trees so that the cumulative diameter of the trees to be retained is at least 20 percent of the total tree diameter on the site.

    124 + 40 + 50 + 75 = 289” total tree diameter.
    20% x 289” = 57.8, rounded up to 58” for the minimum preservation standard.

    Ordinarily, the developer need save only such trees that their diameters add up to 58”. But because the code favors preservation of trees ≥20” dbh, the developer must save all five of the ≥20” trees, even though their total tree diameter, 124”, far exceeds 58”.

    If the preservation of these five trees affects the desired density, the City must grant such waivers of the public improvement standards as to allow them to be retained, provided the waivers are “not inconsistent with the general purpose of ensuring adequate public facilities,” a standard which can be quantitatively determined. BDC 3.4.150.B.

    If no possible design and waiver of public improvement standards can achieve the required preservation goal, Section 3.2.270 allows mitigation. For each significant tree not preserved and protected below the minimum tree preservation standard, a mitigation tree of the same species must be planted on the property. If there is insufficient space on the property, the code will be satisfied by replanting on other property owned by the applicant, or on City property.

  2. Option 2: Preserve at least 75 percent of the trees that are 20 or more inches in diameter and such other trees so that the cumulative diameter of the trees to be retained is at least 25 percent of the total tree diameter on the site.

    25% of 289” = 72.25”, rounded down to 72” for the minimum preservation standard. 75% of the ≥20” trees = 3.75 rounded up to 4.

    The developer must save four of the ≥20” trees, even though the minimum preservation standard is only 72”. Any four will satisfy the minimum standard.

    Again, the City must grant such waivers of the public improvement standards as will allow these four trees to be retained, consistent with BDC 3.4.150, or apply mitigation as provided.

  3. Option 3: Preserve at least 50 percent of the trees that are 20 or more inches in diameter and such other trees so that the cumulative diameter of the trees to be retained is at least 30 percent of the total tree diameter on the site.

    30% of 289” = 86.7” rounded up to 87” for the minimum preservation standard. 50% of the ≥20” trees = 2.5 rounded up to 3.

    The developer must save three of the ≥20” trees, such that their cumulative diameters are at least 87”.

  4. Option 4: Where all trees are less than 20 inches in diameter, reserve at least 35 percent of the total tree diameter on the site.

    Assume the property has only the 15 smaller trees. Their total tree diameter is 165”.

    35% x 165” = 101.15 rounded down to 101”.

    The developer must save enough of these trees so that their total diameter equals 101”. For example, the developer could preserve all five of the 10” and four of the 15” (50” + 60” = 110).

  5. Option 5: If one or more tree groves are located completely or partially on the site, preserve all of the grove trees located on the site and such other trees so that the cumulative diameter of the trees to be retained is at least 20 percent of the total tree diameter.

      20% x 289” = 57.8 rounded up to 58” for the minimum preservation standard.

      Assume that there is a grove of trees containing the 24”, the 28”, and four of the 15”. Their cumulative diameter is 24 + 28 + 60 = 112”. All six trees must be preserved because they are in a grove, though their total tree diameter exceeds the minimum preservation standard.

    Two observations. First, the Portland formula gives priority to preservation of trees ≥20”: the larger the trees preserved, the greater the number of lesser trees may be removed. In this example, if the developer selects Option 3 he need preserve only three of the ≥20” trees; the other 17 can be removed. Second, the minimum preservation standard is not tied to the size of the development site.

    VIII. Summary

    Bend’s tree preservation code, BDC 3.2.200, violates Oregon law because it does not have clear and objective standards for the approval of developments.

    The City needs to adopt a code which:

    1. retains the developer’s proposed density;

    2. actually protects some significant trees by setting a mandatory retention goal; and

    3. satisfies Oregon law.

    Bend has failed to minimize the width of local streets, which is required by OAR 660-012- 0045(7). This proposed code encourages the City to do what it should have done in 2001, while also allowing the City to meet its housing density goals and preserve some of Bend’s iconic trees.

    The requirements for preserving significant trees, and waiving public improvement standards to allow space for them, must be mandatory. The present code already allows for such waivers, and neither Bend’s developers nor the City are utilizing this option.

    Unless the City adopts a tree preservation code which satisfies ORS 197.307(4) and mandates the preservation of some significant trees, Bend’s iconic native trees will continue to be destroyed. The code proposed in this report satisfies Oregon law and helps preserve one of the most important qualities that makes Bend such an attractive place to live.

    IX. Proposed Amendments to the Bend Development Code

    [Some definitions need to be refined and others added to implement the Portland code formula.]

    Note:
    Text in underlined typeface is proposed to be added.
    Text in strikethrough typeface is proposed to be deleted.
    *** indicates where text from the existing code has been omitted because it is unchanged.
    Explanatory comments are in green callout boxes like this one.

    Chapter 1

    Amendment to Chapter 1, section 1.2 Definitions

    ***

    Qualified professional/individual means, for the purpose of preparing vegetation restoration or tree protection plans, assessing the health of trees or other similar activities, an individual approved by the City who through related training, or on-the-job experience or both, possesses knowledge in one or more of the following subject areas: (1) arboriculture, (2) natural resources, including water resources and riparian restoration, and (3) urban interface fire protection.

    ***

    Significant trees/significant vegetation means individual trees with a specific trunk diameter (as indicated below) as measured four feet above the ground (known as DBH, for “diameter at breast height”).

    1. Deciduous trees: six inches or greater.

    2. Coniferous trees: 10 inches or greater.

    ***

    Total Tree Diameter means the total diameter of all significant trees which are completely or partially on the site minus the diameter of trees that are exempt from the tree protection standards defined in BDC 3.2.200.

    ***

    Tree means any living, woody plant, that grows to 15 feet or more in height, typically with one main stem called a trunk, which is two inches or more DBH, and possesses an upright arrangement of branches and leaves.

    Tree Grove means a group of six or more native trees at least 12 inches DBH that form a generally continuous canopy, or are spaced as appropriate for that species. A tree grove may be identified by a qualified professional based upon the types, configuration or functions of a grouping of trees.

    Functions include structural support and wind protection for the trees within the grove, microclimate and shade, and habitat such as nesting, foraging, and over for birds and other wildlife.

    Tree Removal Permit means written authorization from the City for a tree removal to proceed as described in an application.

    ***

    Tree Protection Zone means the area reserved around a tree or group of trees in which no grading, access, stockpiling or other construction activity shall occur as determined by the City based on review of the tree and site conditions. To determine the required protection zone, measure the size of the tree to be protected. For each diameter inch of the tree, measure one foot away from the tree to establish he radius of the circle surrounding the tree. Each 1 inch diameter of tree requires 1 foot radius for the protection zone.

    ***

    Vegetation means any plant other than a tree.

    ***

    Chapter 3

    LANDSCAPING LANDSCAPE CONSERVATION, TREE PROTECTION, STREET TREES, FENCES AND WALLS

    Sections:


    3.2.100 Purpose.
    3.2.200 Landscaping Conservation. Preservation of Significant Trees.
    3.2.300 New Landscaping.
    3.2.400 Street Trees.
    3.2.500 Fences and Walls.

    3.2.100 Purpose.

    The purpose of this chapter is to promote community health, safety and welfare by protection natural vegetation, and setting development standards for landscaping, street trees, fences and walls, and significant trees. Together, these elements of the natural and built environment contribute to the visual quality, environmental health and character of the community. Trees provide climate control through shading during summer months and wind screening during winter. Trees reduce stormwater runoff and are a valuable component of the City’s infrastructure. Trees and other plants also buffer pedestrians from traffic. Walls, fences, trees and other landscape materials provide vital screening and buffering between land uses. Landscaped areas help to control surface water drainage by capturing rainwater within their canopies and can improve air and water quality. [Ord. NS-2016, 2006]

    “Vegetation” has been removed because it is defined as significant trees, so the term is unnecessarily duplicative. This section emphasizes the purpose of this code, which is to require that the preservation of significant trees be incorporated into the site design.


    3.2.200 Landscape Conservation of Significant Trees.

    Landscape Conservation prevents the indiscriminate removal of significant trees and other vegetation, including vegetation associated with streams, wetlands and other protected natural resource areas. This section cross-references BDC 2.7.600 and 2.7.700, which regulate development of areas of special interest.

    The purpose of this section is to incorporate significant native vegetation into the landscapes of development. The use of existing mature, native vegetation within developments is a preferred alternative to removal of vegetation and re-planting. Mature landscaping provides summer shade and wind breaks, allows for water conservation due to larger plants having established root systems, and assists with erosion control within disturbed construction sites.

    The purpose of this section is require that the preservation of significant trees be incorporated into the design process, with the goal of retaining and protecting significant trees to the greatest extent possible. The preservation of existing mature, native trees within developments is a preferred alternative to removal of trees and re-planting. Mature trees should be preserved because they provide soil stability, noise buffering, wind protection, temperature mitigation, enhanced wildlife habitat, and esthetics. Mature, distinctive trees are an iconic symbol of the life style and values of Bend’s citizens, and play a vital role in promoting Bend’s special character and sense of place. Accordingly, significant trees are deserving of special status due to their size and age. [Ord. NS-2016, 2006]. This section cross-references BDC 2.7.600 and 2.7.700, which regulate development of areas of special interest.

    Sections B, C and D contain multiple subjects all scrambled together. Each subject should be in its own section so that its provisions are clear and easily understood.

    1. Applicability. The standards in this section shall apply to all development sites containing vegetation significant trees except for residential development on Residential District lots that were created through a subdivision or partition plat filed with Deschutes County prior to the effective date of the ordinance codified in this code.

    2. Significant Vegetation. Significant vegetation means individual trees with a specific trunk diameter as measured four feet above the ground (known as DBH, “diameter at breast height”);shall be inventoried during the site design process and protected during construction unlessotherwise approved for removal through the site plan review process. For the purpose of thissection, deciduous trees measuring six inches or greater and coniferous trees measuring 10 inchesor greater shall be considered significant vegetation.

    3. Mapping and Protection Required. A Tree Protection Plan shall be prepared and submitted with the development application. Significant vegetation shall be inventoried and mapped as required by BDC chapter 4.2, site Plan Review and Design Review, BDC 27.600, Waterway Overlay Zone (WOZ) and 2.7.700, Upland Areas of Special Interest Overlay Zone. Trees shall be mapped individual and identified by species and size (DBH). A protection area shall be defined around the edge of all branches (drip-line) of each tree (drip-lines may overlap between trees) or stand of trees. The City also may require an inventory, survey, or assessment prepared by a qualified professional when necessary to determine tree health, vegetation boundaries, building setbacks, and other protection or mitigation requirements.

    4. Protection Standards. Significant trees identified as meeting the criteria in subsection (B) of this section shall be retained unless approved by the City to be removed for development. Preservation shall be considered impracticable when it would prevent development of public streets, public utilities, needed housing or land uses permitted by the applicable land use district. The term prevent in this standard means that the development cannot be designed to avoid the significant tree(s). An in ability to achieve maximum permitted density by complying with the subsection shall not in itself be considered to prevent development. Building envelopes commensurate with the lot coverage standard of the zone shall be depicted on the Tree Protection Plan. Trees outside the envelope shall be protected unless they prevent development. In instances where applying exceptions to certain development standards would make the tree preservation practical, the City may allow one or more of the following exceptions to the development standards when individual trees with a DBH of 24 inches or larger or stands of trees that are in good health as determined by a qualified professional, are preserved by a proposed development with an approved tree preservation plan:

      *Reductions of setbacks up to 25 percent.

      *Reduction of required on-site parking up to 10 percent.

      *Increased lo coverage up to 15 percent

      *Reduced landscape coverage up to five percent.

      1. Protection of Significant Trees. The applicant must submit a Tree Protection Plan

        on a site plan map, drawn to scale, that includes the following provisions where appropriate:

        1. Inventory of Significant Vegetation. Depict all significant vegetation by DBH and species, showing property lines, two-foot contours and rock outcroppings.

        2. Building Envelopes. The developer shall depict the buildable area of a lot that is consistent with the lot coverage area of the zone.

        3. Barriers. The developer shall depict protection barriers on the site plan and locate and mark with flagging and/or signs all construction roads, parking places for workers, and areas for the storage of building materials, grade and soil; stake out the exact locations of all utility trenches; erect physical barriers around all trees to be retained or groups of trees around the work site. Barriers that extend beyond the drip-line of the tree are preferred.

        4. Soil Compaction. The Tree Protection Plan shall depict typical details of methods or protecting the critical root zone. If barriers are not easily to keep away vehicles and foot traffic, use six to eight inches of wood chips spread over the root zone or bridge root area overlaid by plates of steel or other suitable material.

        5. Grand Changes. If a grade change is unavoidable, retaining walls shall be used to protect the root system.

        6. Severing Roots. Avoid cutting anchoring roots if possible. Tunneling for small household utility lines may be an option for tree preservation. When root cuts are unavoidable, the cuts shall be made with a pruning saw.

        7. Above-Ground Injuries to Trees. Do not use trees for posting signs, electrical wires and pulleys. Keep trees free of nails, screws, ad other fastening devices. Prevent trunk injuries by surrounding trunk with one-inch by for-inch wooden slats and securing in place with gauge wire around slats.

        8. Soil Contamination. Altering the soil chemistry can result in weakened trees, making them more susceptible to insects and disease. Prevent adverse effects on soil contamination by spreading heavy plastic tarping where concrete is to be mixed or sheet rock cut; do not clean paintbrushes and tools over tree roots; dispose of chemical wastes properly and do not drain onto soil.

        9. Altering the Natural Drainage Course. When the natural drainage of a site is altered, watering for existing trees must be augmented by an irrigation system. Prior to site grading, prepare a site draining plan. Sometimes surface water containment can sustain existing standards of trees without artificial irrigation.

      2. The City may approve the provision for substituting the retention of smaller trees in lieu of significant trees if it can be determined by a qualified professional that the small trees have equal or greater measurable benefits as specified in the purpose o this section and/or that the significant trees will not survive.

      3. All existing trees in good health, as determined by a qualified professional, which are located within the font yard setback or within an undeveloped public right-of-way shall be conserved whenever practical.

      4. When the removal of significant trees cannot be avoided, the City may require, as part of the required landscaping plan for the development site, the replacement of trees in size and number equivalent to the square inch measurement at DBH.

    The tree inventory and tree protection plans must be clear and understandable.


    3.2.210 Tree Inventory.

    A. Tree Inventory Required. All significant trees must be inventoried and mapped as required by BDC Chapter 4.2, Site Plan Review and Design Review. The inventory must identify each significant tree by species, size (DBH), and health, and note any physical characteristics and deformities of the tree which might affect its long-term viability.


    3.2.220 Tree Protection Plan.
    1. Tree Protection Plan Required. If there are any significant trees on the property, a Tree Protection Plan must be prepared on a site plan map, drawn to scale, that includes the following provisions:

      1. Inventory of all significant trees by DBH and species, showing property lines and a site topography showing two-foot contours and rock outcroppings;

      2. Identification of all trees proposed for preservation and those designated for removal.

      3. Building envelopes commensurate with the lot coverage standard of the zone.

      4. The location of any existing structures on the site;

      5. The location of all utilities and other improvements;

      6. Required setbacks for the proposed lots or parcels; and

      7. The location of all construction roads, parking places for workers, and areas for the storage of building materials, gravel and soil.

    A new notice requirement has been added which relates to BDC 4.1.215(A), concerning what must be presented at the public meeting required before the developer submits his application. Presently, the developer is not required to show the public which trees will be removed, yet this is commonly one of the public’s first concerns.

    1. Notice at Public Hearing. The Tree Protection Plan must be displayed at the public hearing required by Chapter 4, section 4.1.215(A). The visual description of the project must include an overlay showing all significant trees in relation to the proposed building envelopes.

    This section satisfies ORS 197.307(4) by setting a numerical standard for tree preservation using a formula which is clear and objective.


    3.2.230. Minimum Tree Preservation Standards.

    Significant Trees should be preserved based upon their health, overall condition and potential for long-term viability, considering the anticipated impact of development and tolerance typical for the tree species.

    1. The options listed below represent minimum tree preservation standards. The total tree diameter on the site is the total diameter of all trees completely or partially on the site, minus the trees which are exempt from these regulations. The applicant must choose one of the following options:

      1. Option 1: preserve all of the trees that are 20 or more inches in diameter and such other trees so that the cumulative diameter of the trees to be retained is at least 20 percent of the total tree diameter on the site;

      2. Option 2: Preserve at least 75 percent of the trees that are 20 or more inches in diameter and such other trees so that the cumulative diameter of the trees to be retained is at least 25 percent of the total tree diameter on the site;

      3. Option 3: Preserve at least 50 percent of the trees that are 20 or more inches in diameter and such other trees so that the cumulative diameter of the trees to be

        retained is at least 30 percent of the total tree diameter on the site;

      4. Option 4: Where all trees are less than 20 inches in diameter, reserve at least 35 percent of the total tree diameter on the site; or

      5. Option 5: If one or more tree groves are located completely or partially on the site, preserve all of the grove trees located on the site and such other trees so that the cumulative diameter of the trees to be retained is at least 20 percent of the total tree diameter.

    This section incorporates the waiver of Bend’s Public Improvement Standards and Standards and Specifications code in evaluating whether a development can preserve at least some significant trees. It emphasizes that the developer’s proposed density must be retained, thereby avoiding any problems with Home Builders Association of Lane County v. Eugene.

    1. The City may grant an exception to the minimum tree preservation standards when alternatives to the removal of each significant tree have been considered and no reasonable alternative exists to meet the minimum tree preservation standard while allowing the property to be used according to the proposed density of the applicant’s development.
      1. Reasonable alternative means that there are no design alternatives, including waivers of the Public Improvement Standards and Bend Standards and Specifications, that would meet the minimum tree preservation standard for the development site.

    This section retains and renumbers BDC 3.2.200.D.3.

    1. The preservation of significant trees in good health, as determined by a qualified professional, which are located within the front yard setbacks or within an undeveloped right-of-way may count toward satisfying the minimum tree preservation standard.

    The provisions of 3.2.200.H are revised to be clearer. Sections 3.2.240.A.4 and 5 are from Bend Standards & Specifications section 12.2.2.2.

    3.2.240. Exemptions
    1. Exemptions. In determining the number of trees which must be retained to meet the minimum tree preservation standard, the following shall not be counted:

      1. Dead, Dying, Diseased, Unhealthy and/or Hazardous Trees. Trees that are dead, dying, diseased, or which pose a hazard to personal safety, property or the health of other trees, based on a recommendation from a certified arborist or other qualified professional;

      2. Deciduous trees less than 6” DBH and coniferous trees less than 10” DBH;

      3. Emergencies. Significant trees removed in the event of an emergency without land use approval pursuant to BDC Title 4, when the tree poses an immediate threat to life or safety, or an immediate threat to property, as determined by any public health, safety, or law enforcement agency otherwise authorized to issue orders for immediate action to abate an imminent threat to public health or safety;

      4. Trees left in their present location will be so undermined by construction that their viability is threatened to the extent they become a danger in the future; or

      5. The existing location is determined to interfere with the clear vision standards, intersection triangles, and intersection sight distances for traffic, bicycles, and/or pedestrian and causes safety concern that cannot be resolved by appropriate pruning or thinning.

    2. Exemptions. The mitigation standards in BDC 1.3.300.C shall not apply in the following situations:

      1. Dead, Diseased, and/or Hazardous Trees. Trees that are dead or diseased, or pose a hazard to personal safety, property or the health of other trees, may be removed if the Planning Director approves a report and recommendation from a certified arborist or other qualified professional. Prior to tree removal, the applicant shall provide a report from a certified arborist or other qualified professional to determine whether the subject tree is diseased or poses a hazard, and any possible treatment to avoid removal, except as provided by subsection (H)(2) of this section.

      2. Emergencies. Significant vegetation may be removed in the event of an emergency without land use approval pursuant to BDC Title 4 when the vegetation poses an immediate threat to life or safety, as determined by the Planning Director based on a certified arborist’s report submitted to the City. [Ord. NS-206, 2006].

    This section requires the city to allow waivers of the BDC because BDC 3.4.150 presently gives the city the discretion to waive these standards and no one is using it. IIn addition, it emphasizes that the developer’s density must be retained.


    3.2.250. Waiver of Certain Provisions of the Bend Development Code and Bend Standards and Specifications.
    1. Modification of site plans. In order to meet the minimum tree preservation standard, the City may require an alternative site design, including modifications in the location, or design of a development or activities on a site, design of streets, sidewalks, planter strips, utilities, reductions of proposed site grading, changes of the locations of buildings or building lots, and other provisions of the Public Improvement Standards and Bend Standards and Specifications.

      1. Modifications shall not reduce the density of the proposed residential development.

    2. In order to facilitate the minimum tree preservation standard, if the proposed development otherwise satisfies 3.4.150.B, the City must allow waivers of Bend Development Code and Bend

      Standards and Specifications Code. Such waivers include, but are not limited to, the minimum standards as they apply to:

      1. The right of way width for local streets;

      2. The width of pavement;

      3. The existence and width of planter strips;

      4. The width of sidewalks and requirements for sidewalks on both sides of a street;

      5. The placement of street trees; and

      6. On-street parking.

    This section incorporates parts of the present 3.2.200.C, D and E, but with clearer language and a precise definition of the tree protection zone.

    3.2.260. Protection of Trees To Be Preserved.
    1. The applicant must protect every tree which is to be preserved prior to, during, and after construction.

      1. A Tree Protection Zone is required for every tree which is to be preserved. The Tree Protection Zone shall be a circular area equal to one foot in radius for each diameter inch of the tree.

      2. The applicant must submit a Tree Protection Plan on a site plan map, drawn to scale that includes the following provisions where appropriate:

        1. The location and design of the barriers to be placed around each protected tree;

        2. The proposed method to ensure protection from soil compaction;

        3. The placement of retaining walls and tree wells to protect against grade changes;

        4. Provisions for natural or artificial irrigation to ensure the trees will receive sufficient water;

        5. Techniques to prevent severing roots or above-ground injuries;

        6. Protection against soil contamination; and

        7. Protection against the operation of vehicles and heavy equipment, and the storage of supplies and construction materials.

      3. Protective fencing shall be established at the edge of the root protection zone prior to the commencement of any construction.

    2. The applicant may propose alternative measures to modify the prescriptive root protection zone, providing the following standards are met:

      1. encroachments shall be no closer than one half of the required root protection zone radius; and

      2. the alternative root protection plan must be prepared by a qualified professional. The plan must demonstrate that the alternative method provides an adequate level of protection based on the specific tree’s size, location, extent of root cover and toleranceto construction impact.

    1. Construction. All areas of significant vegetation shall be protected prior to, during, and after construction. Grading, operation of vehicles and heavy equipment, and storage of supplies and construction material are prohibited within significant vegetation areas, except as approved in writing by the City for installation of utilities or streets. Such approval shall only be granted after the City concludes in writing that there is no other reasonable alternative to avoid the protected area, and any required mitigation is provided in conformance with BD 1.3.300(C), Mitigation for the Removal of Vegetation. The written approval shall include the specific facts that support the conclusion.

    This section defines the mitigation required when the minimum tree protection goal cannot be met on site.

    3.2.270 Mitigation.
    1. The mitigation standards of BDC 1.3.300(C) shall not apply to this section.

    2. If no reasonable alternative exists for the proposed development to meet the minimum tree preservation standard in section 3.2.220, the City may allow one of the following mitigation procedures for each significant tree removed.

      1. Replanting. For each significant tree not preserved and protected below the minimum tree preservation standard, a mitigation tree must be planted on the property. The mitigation tree must be of the same species as the protected tree which was removed, and must have a minimum caliper size of two and one-half inches DBH, based on the American Association of Nurserymen Standards.

      2. If in the City’s determination there is insufficient available space on the subject property,

        the replanting must occur on other property in the applicant’s ownership or control withinthe City, in an open space tract that is part of the same subdivision, or in a City owned ordedicated open space or park. An approved mitigation plan must be fully implementedwithin one year of a tree being removed unless otherwise set forth in a tree removalapplication and approved in the tree removal permit.

    3. All significant trees or trees for which mitigation occurs must be protected prior to, during and after construction. Any tree which dies within three years of planting must be replaced with a tree of the same species and a minimum caliper size of two-and-one-half inches DBH.

    This section increases the bond amount and mandates posting of a bond for each tree to be preserved. The Arena Acres project, where the developer had permission to take down two of the trees to be preserved, but instead took down eight, illustrates why this is essential.

    3.2.280. Performance Bond.

    F. Performance Bond. A. To ensure that the significant trees identified through the development review process will be retained and protected, or that trees will be planted in mitigation, the Review Authority may must require the developer to post a performance bond for each tree, in the amount to be determined by the size of the trees being preserved as shown below:

    Tree Size Bond Amount
    6-20 inches DBH $3,000
    Greater than 20 inches DBH $5,000

    The amount of the required performance bond shall be determined by totaling the number of trees being preserved based on size and bonding value in the above table. The developer may utilize one of the following methods to assure full and faithful performance:

    1. A separate surety bond or letter of credit executed by a surety company authorized to transact business in the State of Oregon in a form approved by the City Attorney.

    2. A cash deposit in a City account at an approved lending institution.

    3. A general performance bond which incorporates specific provision of coverage for performance, or default thereunder, of provisions of this code with respect to the tree preservation in the amount set forth in Section A above.

    4. 3. An irrevocable standby letter of credit from a federal insured banking institution or savings and loan operating in Oregon that unconditionally promises to pay the funds pledged upon demand by the City. Such obligation must be unaffected by the financial status of the person who has obtained the letter of credit.

    5. 4. An “assurance provider” arrangement between the developer, the City and a federally insured financial institution which assures the City that funds to mitigate the loss or damage of significant trees identified through the development review process for preservation and protection will be provided by the federally insured financial institution to the City in the event the developer does not perform in conformance with the Land Use Development Agreement, and the federally insured financial institution must be satisfactory to the City.

    6. The City may place a second position lien on the subject property. The lien shall accrue interest at the rate of six percent until such time the lien amount has been collected. The lien amount shall be paid to the City in full prior to the final occupancy of a building or final plat recordation of a subdivision or partition plat.

    F. Performance Bond. To ensure that the significant trees identified through the development review process will be retained and protected, the Review Authority may require the developer to post a performance bond in an amount determined by the size of the trees being preserved as shown below:

    Tree Size Bond Amount
    4 – 6 inches DBH $1,000
    6 – 10 inches DBH $1,500
    10 – 16 inches DBH $3,000
    Greater than 16 inches DBH $5,000

    G. B. Termination of Bond. If a developer fails to carry out the provisions of the agreement Tree Protection Plan, the City shall call upon the bond, letter of credit, or cash deposit or assurance arrangement, to finance any cost or expenses resulting from said failure. If the amount of the bond, letter of credit bond, cash deposit or assurance agreement exceeds the cost and expense incurred by mitigating the loss or damage of the significant trees, the City shall deposit the remainder into a City account for the purpose of tree preservation education, tree planting and maintenance. If the amount of the bond, letter of credit, cash deposit or assurance arrangement is less than the cost and expense incurred by the City for the improvements and repairs, the developer shall be liable to the City for the difference.

    Chapter 3.2.300 New Landscaping

    This section sets standards for and requires landscaping of all development sites that require Site Development Review. This section also requires landscape buffering for parking and maneuvering areas, and buffering between different land use districts. Note: Other landscaping standards are provided within the individual land use districts and in BDC Chapter 3.6 Special Standards for Certain Uses, for specific types of development. The use of existing mature, native vegetation within developments is a preferred alternative to removal of vegetation and re-planting.

    1. Applicability. This section shall apply to all new development in all zones requiring Site Development Review.

    2. Landscaping Plan Required. A landscape plan is required. All landscape plans shall conform to the requirements in BDC 4.2.200(A)(7) Landscape Plan.

    NOTE: “ 4.2.200(A)(7)” is a typo. There is no 4.2.200(A)(7). This probably references 4.2.300(A)(7) Landscape Plan.]

    1. Landscape Area Standards. A minimum percentage landscape covered is required.

      Coverage is measured based on the size of plants at maturity or after two years of growth, whichever comes sooner. The minimum required landscaping shall equal 15 percent of the gross lot area for the following uses:

    ***

    These sections eliminate references to vegetation because 3.2.200 only concerns trees.

    1. Landscape Materials. Landscape materials include live trees, shrubs, ground cover plants, non- plant ground covers and outdoor hardscape features, as described below:

      ***

      7. Significant Trees and Vegetation. Significant vegetation trees preserved in accordance with BDC 3.2.200 may be credited toward meeting the minimum landscape area standards in subsection I of this section. Credit shall be granted based on the total square footage of the preserved significant tree canopy. The street tree standards of BDC

      3.2.400 may be waived when significant trees are preserved within the front yard setbacks. Preserved within the front yard setbacks provide the same or better shading

      and visual quality as would otherwise be provided by street trees between the street and sidewalk.

      ***

    2. Landscape Design Standards. All yards, parking lots and required street tree planter strips shall be landscaped at the time of site development in accordance with the provisions of this chapter. All required landscaping and related improvements shall be completed prior to the issuance of a Certificate of Occupancy. Only during winter months when the ground is frozen shall the required landscape improvements be eligible for financial guarantee prior to occupancy. Landscaping shall provide erosion control, visual interest, buffering, privacy, open space and pathway identification, shading and wind buffering, based on the following standards:

      1. Yard Setback Landscaping. Landscaping in yard setback shall satisfy the following criteria:

        1. Based on the proposed use of the site, provide visual screening and privacy within side and rear yards, while leaving front yards and building entrances mostly visible for security purposes; and observing the clear vision requirements of BDC Chapter 3.1;

          ***

        2. Provide focal points within a development, such as signature significant trees, (i.e., large or unique trees, hedges and flowering plants.

    Chapter 3.4

    PUBLIC IMPROVEMENT STANDARDS

    3.4.100 Purpose and Authority

    ***

    This amendment to 3.4.150.B.1 is necessary to satisfy the clear and objective standards of ORS 197.307(4) because the terms “will be beneficial to the public in general” and “necessary to eliminate or reduce impacts” on significant trees are entirely subjective. Requiring a minimum tree preservation standard makes these criteria clear and objective.

    3.4.150 Waiver and Modification of Public Improvement Standards
    1. Authority to Grant Waiver or Modification. Waivers and/or modifications of the standards of this chapter and/or the City of Bend Standards and Specifications may be granted as part of a development approval only if the criteria of subsection (B) of this section are met.

    2. Criteria. The Review Authority, after considering the recommendation of the City Engineer, may waive or modify the standards of this title and the City of Bend Standards and Specifications based on a determination that (1) the waiver or modification will not harm or will be beneficial to the public in general; (2) the waiver and modification are not inconsistent with the general purpose of ensuring adequate public facilities; and (3) one or more of the following conditions are met:

      1. The modification or waiver is necessary to eliminate or reduce impacts on existing drainage patterns or natural features such as riparian areas, significant trees or vegetation or steep slopes, or will facilitate the retention of the minimum tree preservation standard on the proposed development.

        1. In the context of tree preservation, beneficial to the public in general means that the minimum tree preservation standard will be achieved.

        ***

    3.4.200 Transportation Improvement Standards.

    A. Development Requirements. No development shall occur unless the development has frontage or approved access to public or private street in conformance with the provisions of BDC Chapter 3.1, Lot, Parcel and Block Design, Access and Circulation, and the following standards are met:

    ***

    This section specifies that pavement widths may be reduced to satisfy the minimum tree preservation standard of 3.2.200.

    F. Minimum Rights-of-Way and Street Sections. Street rights-of-way and improvements shall be the widths defined in Street Improvement Standards Tables A through E. Additional right- of-way may be required at intersections to accommodate intersection widening and roundabouts.

    1. Pavement Widths. The required pavement width shall be determined based upon the factors listed below:

      1. Street classification in the Transportation System Plan;

      2. Anticipated traffic volume for the City’s planning horizon year;

      3. On-street parking needs;

      4. Sidewalk and bikeway requirements based on anticipated level of use;

      5. Requirements for placement of utilities;

      6. Street lighting;

      7. Minimizing drainage, slope, and sensitive lands impacts, as identified by the Bend Comprehensive Plan;

      8. Street tree location, as provided for in BDC Chapter 3.2;

      9. Protection of significant vegetation, as provided for in BDC Chapter 3.2 3.3;

      10. Satisfying the minimum tree preservation standard on the property, as provided for in BDC Chapter 3.2.200;

      11. Safety and comfort for motorists, bicyclists, and pedestrians;

      12. Street furnishings (e.g., benches, lighting, bus shelters, etc.) when provided;

      13. Access needs for emergency vehicles; and

      14. Consistent extension of existing street section.

    2. Future Street Widths and Special Building Lines. To ensure that adequate transportation corridors will be preserved for the future, the special setbacks established in subsection (j) of this section shall apply.

    3. Exceptions to Minimum Rights-of-way Standards.

      1. Where opposite sides of the street are designated on the Bend Comprehensive Plan with different land use zones, the zone with the greater requirement for right-of-way dedication and pavement width will govern both sides.

    ***

    Title 4 is amended to require the presentation of a tree plan at the public hearing so that the public can accurately assess the impact of the development on existing trees.


    TITLE 4

    APPLICATIONS AND REVIEW PROCEDURES

    4.2.200 General Provisions
    4.1.210 Pre-application Conference.
    4.1.215 Public Meeting.

    A. The applicant for a Bend Comprehensive Plan Map amendment, Zoning Map amendment, Conditional Use Permit, Subdivision or site Plan Review for new development or an alternation/addition to one or more buildings containing a total of 10,000 square feet or more shall present the proposal at a public meeting prior to submitting the respective application to the City Planning Division. The presentation shall be made at either a regular or special meeting with a neighborhood association recognized by the city of Bend whose boundaries the subject property lies within or a public meeting arranged and conducted by the applicant. The presentation at the public meeting shall include the following:

    1. A map depicting the location of the subject property proposed for development;

    2. A visual description of the project including a site plan, tentative subdivision plan and elevation drawings of any structure if applicable. The visual description of the project must include an overlay showing the significant trees proposed to be removed and the significant trees to be retained in relation to the building envelopes on the site.

    3. A description of the nature of the use including, but not limited to, sizes and heights of structures, proposed lot sizes, density, etc.

    ***

    This amendment is necessary to conform to the new title for BDC 3.2.200.

    Chapter 4.2

    MINIMUM DEVELOPMENT STANDARDS REVIEW, SITE PLAN REVIEW AND DESIGN REVIEW

    4.2.100 Purpose.

    ***

    4.2.200 Review Processes

    ***

    4.2.300 Submittal Requirements
    1. An application for review under this chapter shall include the following information as deemed applicable by the Development Services Director based on the size, scale and complexity of the development.

      1. Existing Site Conditions Map. At a minimum the existing site conditions map shall contain the following:

        1. The applicant’s entire property and the surrounding property to a distance of 150 feet from the subject property. Existing aerial photos may be used. The property boundaries, dimensions and gross area shall be identified;

        ***

      2. Landscape Plan. A landscape plan shall be required, and at the direction of the Development Services Director, shall show the following:

        1. A planting schedule containing the location, size, and species of the existing and proposed plant materials (at time of planting);

          ***

        2. Other information as deemed appropriate by the Development Services Director. An arborist’s report may shall be required for sites with mature trees that are protected under Chapter 3.2, Landscaping Landscape Conservation, Tree Protection, Street Trees, Fences and Walls.

    X. Proposed Amendments to the Bend Standards & Specifications Code

    3.6 OTHER RIGHT OF WAY DESIGN ELEMENTS

    ***

    3.6.2.6 Planter Strip

    The Planter strip is that portion of the roadside that is located between the curb and the sidewalk. Planter strips are required to conform to roadside safety requirements in terms of their slope, landscaping, appurtenances, utilities, etc.

    The landscaped portion of the planter strip must be a minimum of 5 feet wide, except where the sidewalk meander returns to be adjacent to the curb. In order to prevent sharp re-entrant angles in the landscaped portion of the planter strip, an edge not less than 8 inches long and squared to the curb must be constructed at the juncture of the sidewalk to the curb.

    Planter strips must contain street trees, when required by BDC, and the street trees shall conform to the City’s landscaping requirements found in Chapter 12 and sight distance requirements in Chapter 3.3 of this document. Planter strips may be utilized for swales or landscaping and shall conform to the applicable Bend Development Code provision. When used for landscaping, the

    landscaping shall conform to the City’s xeriscape and landscape provision found in Chapter 12 of this document. The requirement for planter strips may be waived if the designer substitutes a significant tree or trees within this same space.

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    12.2.2.2 Tree Removal and Relocation

    Trees shall not be removed or relocated within the public ROW without approval from the City engineer. The applicant shall submit a Tree Removal and Planting Permit application to the City of Bend that identifies number and type of trees to be removed, location of tree to be removed, reason for removal, and proposed planting mitigations. Approval for removal/relocation of a tree shall require approval from the City Engineer based on the criteria and standards of BDC 3.2.230 and 3.2.240. based on the following criteria: (1) the site cannot feasibly be developed, either by alternative site design or construction methods without removing or relocating existing trees; (2) trees left in their present location will be so undermined by construction that their viability is threatened to the extent they become a danger in the future; or (3) the existing location is determined to interfere with the clear vision standards, intersection triangles, and intersection sight distances (for traffic, bicycles, and/or pedestrian and causes safety concern that cannot be resolved by appropriate pruning or thinning.)

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    12.2.3 Street Trees and Plants

    Street trees shall be required to be located and planted with all public-ROW projects. They may be located within the ROW as indicated in 14.3.9, or location in the front yard setback or buffer area immediately adjacent to the ROW, as stated in the BDC Chapter 3.2.400, Street Trees. The requirement for street trees may be waived if the designer substitutes a significant tree or trees within this same space.

    XI. Appendix A: Excerpts from the Neighborhood Street Design Guidelines

    Attached please find excerpts from the Neighborhood Street Design Guidelines, a study funded by the Public Policy Dispute Resolution Program and the Transportation and Growth Management (TGM) Program and published November, 2000.

    The full report is available at the National Association of City Transportation Officials website.