F.C. Council Advances New Tree Ordinance

The Falls Church City Council gave preliminary approval earlier this month to an ordinance strengthening the City's ability to enforce protection and replacement of trees whenever more than 2,500 square feet of property is redeveloped in residential neighborhoods that cover 80% of the City's 2.2 square miles. A final vote on the measure is scheduled for Sept. 13.

However, some provisions of the new ordinance that exceed state statutes might open up new legal hassles for the City, at least in the view of one dissenting member of the Ad Hoc Tree Ordinance Committee which crafted the measure that the Council tentatively OK'd.

The Ad Hoc committee was appointed by the Council in May after a loud public protest arose in reaction to a ruling this spring by City Manager Dan McKeever against an attempt by the City arborist's to restrain a City resident from removing trees on his Lincoln Avenue property. McKeever insisted the City ordinance in its current form did not permit the action when he reviewed the case after it was protested by the resident.

The resident, former City business owner and Chamber of Commerce activist Mike Curtin, as it turns out, is the same person who subsequently asked to be on the Ad Hoc committee and this month questioned the legal stability of the committee's proposed new ordinance changes.

With state laws revised in recent years to strengthen individual property rights against the ability of local jurisdictions to regulate matters such as tree removal, the Ad Hoc committee was tasked with by-passing changes in the City's existing tree ordinance. That's because the current City ordinance is more restrictive than current state law, but is allowed to continue in force only so long as the ordinance is not modified.

If modified, the ordinance would come under the latest state mandates and would be weakened.

Therefore, the Ad Hoc committee, which included City Attorney Roy Thorpe, looked to modifications in other ordinances to achieve the objective of strengthening the City's role in tree preservation.

It found the means in modifications to the Chesapeake Bay Preservation ordinance and in existing state guidelines calling for a 20% tree canopy coverage of redeveloped residential properties of over 2,500 square feet.

The Chesapeake Bay ordinance calls for tree preservation and replacement policies when possible in modifications to properties above 2,500 square feet, as well as for landscape conservation measures.

The Ad Hoc committee proposed to strengthen the ordinance with specific and stiff requirements that the Council endorsed. Prior to beginning work, developers would required to provide a tree survey of the property, submit a re-vegetation plan, be subject to a City inspection, and place a tree replacement bond. The City would be able to issue a "stop work" order if needed and require a mitigation plan. Violations would be subject to remedial measures such as bonding of existing trees, vertical mulching and required additional replacement trees.

The would-be ordinance also touches on parking lot landscaping, buffers and tree canopy coverage requirements. It calls for the state standard of a 20% canopy coverage achieved within 10 years of the development project approval.

However, in his remarks to the Council, Curtin questioned whether a 20% canopy coverage within 10 years is in compliance with state standards and could be enforced.

He noted that 20% cover in 10 years is required by the state only for developments in communities established prior to 1780 in order to preserve their historic ambiance. He said it was designed to address, specifically, development in Alexandria.

For all other jurisdictions, the standard is 20% cover after 20 years. He noted that Falls Church was not granted "township" status until 1875 and not granted "independent city" status until 1948. "Therefore, this component of the ordinance would be open to challenge," he said.

He also challenged the legality of the proposed bonding requirement for replacement trees. The would involve, he said, upwards of $2,000 to be held in bond and not released until the City arborist certified that the replacement trees were thriving a full year after planting.

All other performance bonds are refunded when the work is completed and permits issued, he noted, and he said "there is no legal reason why the City should be entitled to such an insurance policy." He added that none of Falls Church's neighboring jurisdictions have such policies.

The same goes, he said, for the proposed ordinance's requirement of contributions to a "tree bank" for developers who, for whatever reason, know they will not be able to meet the 20% canopy coverage requirement. They would be required to contribute to the cost of replacing trees elsewhere in the community.

"This is a penalty, or additional tax, against someone for circumstances over which they have no control," he said.

"The effort to squeeze every last drop out of a new code" could open the City up for more legal challenges, Curtin said, "that could once again put us back to square one."

The Ad Hoc Tree Ordinance Committee was chaired by Council member Lindy Hockenberry and met almost weekly for two months. It included Christine Sanders of the Planning Commission, Bruce Culpin of the Tree Commission, Carl Ensign of the Falls Church Environmental Group, Cay Wiant of the Village Preservation and Improvement Society, Melissa Teates of the Environmental Services Council, Curtin, and from the City staff Elizabeth Friel, Jo Ann Spence, Gary Fuller and City Attorney Thorpe.