Proposed ordinance would require permit to remove trees from property

Planning commission meets Thursday night.
Posted at 5:47 AM, Aug 20, 2020
and last updated 2020-08-20 05:47:46-04

PORTAGE, Mich. — Portage homeowner Vaughn Gerber has concerns surround a proposed tree preservation and replacement ordinance in Portage.

"It is essentially an infringement on the rights of the property owner to do what they want with the property," Gerber says.

Essentially the ordinance, if approved, will require property owners to get a permit to remove a tree from their own property if they own more than one acre.

"The property owners own the trees, right? We should have sole dominion over those trees as was provided to us by the framework of our country," says Gerber.

The city says it's proposing the ordinance after feedback from residents who say there has been a significant amount of clear-cutting throughout the community.

"The city is going one step too far with us," Gerber retorts. "If they want to make it to where it's harder for developers to clear a lot, or they push developers to replant ... rewrite the ordinance for that. Leave the residents out of it."

The City of Portage argues the ordinance would not require a permit to remove a dead, dying, or damaged tree.

However, Gerber says he's still worried about money when the permit is required. "The financial impacts to individual homeowners are huge."

Per the ordinance, residents would be expected to pay to remove the tree and pay to replace it. If they don't replace the tree, then they would need to contribute to a city tree fund.

"So, if they're going to take out a tree, you've got a tree that's 24 to 36 inches in diameter, it's going to cost a couple thousand dollars just to take the tree out," remarks Gerber, "let alone paying in a couple thousand dollars, or to the city to pay a couple thousand dollars, to replant trees on top of it. The financial impact on homeowners is huge."

Gerber also tells us he's concerned his neighbors aren't aware of this, but the City of Portage says they've done their part in making the public aware. "We have published an article advertising the date of the public hearing in the August 2020 Portager newsletter," the city told FOX17 in a statement. The newsletter is sent to every Portage resident. "We utilized our social media outlets, the city website, as well as publishing a legal notice in the local newspaper and at City Hall."

Gerber encourages his fellow Portage residents to show up at Thursday evening's planning commission meeting. "Show up, show up, and voice your concerns with it," he urges.

Gerber's hope is that the ordinance will be revised to hold developers accountable for trees on their land but not private property owners.

The City of Portage points out that this is a draft of the ordinance, and what the planning commission hears Thursday night may change the ordinance content.

It's also important to note this ordinance applies to property owners with more than one acre, and The City of Portage says nearly 90 percent of all properties would not be impacted.

The City of Portage's full statement to FOX17, in response to Vaughn Gerber's concerns, is posted below.

Statement to FOX 17 WXMI-TV Regarding Proposed City of Portage Tree Preservation and Replacement Ordinance August 19, 2020

The city is proposing the Tree Preservation and Replacement Ordinance because over the last several years, there has been a significant amount of clearcutting throughout the community. The city was encouraged to bring forward this ordinance by Portage residents voicing their concerns about the removal of so many trees in the city. The purpose of the proposed ordinance is to preserve the natural landscape of the community and prevent clearcutting of important trees, while still encouraging growth and development.

The proposed ordinance would never require a permit to remove dead, dying or damaged trees, or trees of an invasive species. A permit would also not be required to remove trees on a property less than one acre in size, unless the tree is a Heritage tree – a tree unique due to its size, form, species or historic significance.

The ordinance would require a permit to remove a protected tree - a tree six inches or more in diameter and located outside of a construction envelope. A construction envelope is the area that is proposed to contain building(s), utilities, sidewalks, roads, etc. for a new home, a residential subdivision, office, retail or industrial building and associated site improvements. The construction envelope might also include a pool, deck, shed, etc. on a residential property. In either case, a plan would need to be submitted to the city prior to construction. This plan would show the building location (building envelope) or if a new residential subdivision, all proposed public utility improvements such as the road, water and sanitary sewer mains, and sidewalks (public infrastructure envelope).

“If the resident cannot replace the tree on their own property, they must pay into a tree fund for the amount the replacement trees would cost.” The option of contributing to a tree fund is an alternative for a property owner if they do not wish to or cannot replant trees on-site. Contributing to the tree fund wouldn’t cost any more than planting a replacement tree themselves. The money deposited into the tree fund would only be used to plant trees on publically owned land, resulting in an enhanced community landscape.

“… it also applies to any property owner that owns 1 acre or more and depending how the draft ordinance is read it may apply to property owners with less than 1 acre if the tree is deemed a 'Heritage Tree'.” Property less than one acre and occupied by a habitable building would be exempt from the proposed ordinance, unless the tree removal involves a heritage tree (see Section 24-164(K) of the proposed ordinance). Dead or dying trees, emergency situations (threat to life and property), tree management plans, among others, would be exempt from the proposed ordinance. Nearly 90% of all properties in Portage would not be impacted by this ordinance and 82% of those properties are residential properties.

“If the city passes this ordinance, they are effectively tying up the equity a property owner has in their trees and holding it hostage.” Unless the property owner runs a business, this statement is not true. On the contrary the proposed ordinance preserves the value of the land. The draft ordinance is modeled after a Michigan community’s ordinance, on which the Michigan Court of Appeals has ruled. The ruling stated that such an ordinance “will achieve a preservation of important physical, aesthetic, recreational, and economic assets for both present and future generations” and concludes that preserving woodlands and regulating tree removal is beneficial to the health, safety, and general welfare of the Township residents by preventing erosion and flooding, reducing noise and pollution, and increasing economic value in the land.” The court continued, “These are both reasonable and legitimate concerns for the Township’s ordinance, and the regulations contained in the ordinance are specifically related to those interests.”

“…we suspect the city is trying to fly this under the radar and make it effective without property input.” While this matter is being brought up now, the city has been developing this ordinance since before the COVID-19 Pandemic hit. Due to the Governor’s Executive Order, only ten individuals may be in the Council Chambers at a time; however, every person who attends in person and wishes to have their comments heard will have that opportunity. City staff will stage people in excess of the 10-person limit in other rooms where they can view the meeting broadcast, and cycle them into the Council Chambers as space becomes available. Individuals may also take advantage of the phone-in feature by calling 844-854-2222, access code 529853#. Questions or comments may be voiced during the public hearing by pressing *6 to enter the queue. The City of Portage has successfully held public meetings during the COVID-19 pandemic with significant input from residents. We anticipate that we will continue to have the same success with this meeting.

“We’d like to bring this proposed ordinance to the forefront and make sure the residents truly know what their city government is trying to do.” The City of Portage has gone above and beyond our normal notification process. We have published an article advertising the date of the public hearing in the August 2020 Portager newsletter (which is delivered to every Portage mailbox). We utilized our social media outlets, the city website, as well as publishing a legal notice in the local newspaper and at City Hall. It’s important to note that the proposed ordinance is in draft form. Based on feedback that we hear during the public hearings, the ordinance content may change. This is the first of several opportunities for the public to voice their opinion prior to final consideration of the ordinance by City Council.