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Ordinance No. 2021-33 Chapter 16.32 BIMC Related to the protection of Landmark TreesPage 1 of 4 ORDINANCE NO. 2021-33 AN ORDINANCE of the City of Bainbridge Island, Washington, adopting a revised version of Chapter 16.32 of the Bainbridge Island Municipal Code related to the protection of Landmark Trees; terminating the related interim official control set forth most recently in Ordinance No. 2021-17; providing for interpretive authority; and providing for severability. WHEREAS, the City Council of the City of Bainbridge Island (“City”) updated the City’s Comprehensive Plan in February of 2017; and WHEREAS, the City Council has significant concerns about development and growth in the City under current regulations in the context of the vision and goals of the City’s Comprehensive Plan, has been discussing how to best accommodate growth and development in both general and specific ways, and finds that there are likely to be adverse impacts on the City and its residents unless the City acts immediately to preserve the character of our community forest; and WHEREAS, land clearing and development activities have resulted in the removal and loss of Landmark Trees on Bainbridge Island and the City has received numerous public comments expressing concern regarding the loss of Landmark Trees on the island; and WHEREAS, Landmark Trees, because of their age, size, and condition, are recognized as having exceptional value in contributing to the character of the community; and WHEREAS, the Planning Commission, Design Review Board, and the (former) Ad Hoc Tree/LID Committee have expressed concern regarding the loss of trees on Bainbridge Island and the preservation of trees is a community value supported by the policies and goals of the City’s Comprehensive Plan; and WHEREAS, on June 26, 2018, the City Council adopted Ordinance No. 2018-25, which imposed an interim official control in the form of Chapter 16.32 of the Bainbridge Island Municipal Code (“BIMC”), Preservation of Landmark Trees, which designates Landmark Trees based on size and species, requires a permit to remove any Landmark Tree, and imposes fines if a Landmark Tree is removed without a permit; and WHEREAS, on October 16, 2018, the City Council authorized the City Manager to contract with a team of arborists to review and make recommendations on City regulations governing tree and vegetation removal, including Chapter 16.32 BIMC; and WHEREAS, in response to comments and input that City staff and the City Council received regarding implementation and application of the Landmark Tree regulations, including comments from many property owners and Puget Sound Energy about difficulty in meeting the requirements of the regulations, City staff proposed amendments to the regulations to add exceptions for the type of Landmark Tree removal that would be approved through permit review; and Page 2 of 4 WHEREAS, the above described team of arborists provided their report and recommendations to City staff, and the City Council discussed that report and those recommendations at a Council study session on May 7, 2019; and WHEREAS, the City Council instructed staff to proceed with action items identified in the May 7, 2019 staff report including drafting a new ordinance to revise the City’s tree and vegetation regulations; and WHEREAS, on February 25, 2020, the City Council endorsed the continuing work by City staff and the City Arborist to draft an ordinance that would include changes to Chapter 16.18 BIMC (Tree Removal, Forest Stewardship, and Vegetation Maintenance), Chapter 16.32 BIMC (Protection of Landmark Trees), and BIMC 18.15.010 (Development Standards and Guidelines); and WHEREAS, at scheduled open meetings, City staff met with the Planning Commission to discuss draft regulations related to Ordinance No. 2020-28 (which was renumbered in 2021 to Ordinance No. 2021-07) on August 13, September 10, October 29, November 11, and December 10, 2020; and WHEREAS, Ordinance No. 2020-28 included revisions to Chapter 16.18 BIMC (formerly Exhibit A), Chapter 16.32 BIMC (formerly Exhibit B), BIMC 18.15.010 (formerly Exhibit C), BIMC 16.20.100 (formerly Exhibit D), and the Community Forest Best Management Practices Manual (formerly Exhibit E); and WHEREAS, on December 17, 2020, the Planning Commission held a public hearing to consider Ordinance No. 2020-28 including exhibits formerly referenced as Exhibits A – E, received public input, and after closing the public hearing, made a recommendation of approval of Ordinance No. 2020-28 to the City Council; and WHEREAS, the City notified the Department of Commerce on January 21, 2021 of its intent to revise its development regulations relating to tree removals and vegetation management practices; and WHEREAS, the City issued a State Environmental Policy Act (“SEPA”) Determination of Non-Significance for Ordinance No. 2021-07 (formerly Ordinance No. 2020-28) on January 29, 2021; and WHEREAS, on April 27, 2021, the City Council considered Ordinance No. 2021-07, took no action on the ordinance, and the Council expressed a collective interest in further considering the ordinance at a future meeting; and WHEREAS, on May 13, 2021, City staff returned to the Planning Commission to discuss additional revisions to Ordinance No. 2021-07 based on City Council input; and Page 3 of 4 WHEREAS, on May 27, 2021, the Planning Commission continued to discuss input from the City Council in relation to Chapter 16.32 BIMC and decided to separate and move Exhibit A (formerly Exhibit B) forward to the City Council and continue their work on what was referenced as Exhibits A (Chapter 16.18 BIMC), C (BIMC 18.15.010), D (BIMC 16.20.100), and E (Community Forest Best Management Practices Manual) at a subsequent meeting; and WHEREAS, Exhibit A (formerly Exhibit B) of Ordinance No. 2021-07 related to amending Chapter 16.32 BIMC to make the interim regulations permanent, simplify and update code language, expand the applicable area of the Landmark Tree regulations, and improve the list of qualifying trees and characteristics; and WHEREAS, Ordinance No. 2021-07 was renumbered to Ordinance No. 2021-33; and WHEREAS, at scheduled open meetings on June 10, June 24, and October 14, 2021, the Planning Commission held additional meetings to continue work on Ordinance No. 2021-33; and WHEREAS, on October 26, 2021, the City Council provided direction for permanent regulations to replace the interim official control set forth most recently in Ordinance No. 2021- 17, and directed staff to bring back the April 27, 2021 draft of the Landmark Tree regulations set forth in Ordinance No. 2021-33 (formerly Ordinance No. 2021-07) which had been approved by the Planning Commission after a public hearing on December 17, 2020; and WHEREAS, on November 9, 2021, the City Council considered this Ordinance No. 2021-33 and forwarded it for consideration of approval with the December 14, 2021 consent agenda; and WHEREAS, on December 14, 2021, the City Council approved this Ordinance No. 2021-33. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAINBRIDGE ISLAND, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Findings of Fact. The recitals set forth above are hereby adopted as findings of fact in support of this ordinance, as well as supplemental findings of fact to the related ordinances that preceded this ordinance regarding the interim official control regulating Landmark Trees as described herein. Section 2. Adoption of Permanent Regulations. This ordinance hereby adopts a version of Chapter 16.32 of the Bainbridge Island Municipal Code (“BIMC”), as set forth in the attached Exhibit A, which is incorporated by reference as if fully set forth herein, that is a revised version of what has been to this point an interim official control. To the extent necessary to convert what has been an interim official control into permanent regulations, this ordinance hereby repeals the current version of Chapter 16.32 BIMC and replaces it with the version as set forth in Exhibit A. Section 3. Termination of Interim Official Control Set Forth Most Recently in Ordinance No. 2021-17. The version of Chapter 16.32 BIMC that is adopted via this ordinance will result in regulations that meet what was identified as the remaining work in the work plan Page 4 of 4 for the current interim official control that has been in place most recently via Ordinance No. 2021-17 and the directly related ordinances that preceded Ordinance No. 2021-17, which effectuated an extension of an existing interim official control. This Ordinance No. 2021-33 hereby terminates the interim official control most recently set forth in Ordinance No. 2021-17 upon the effective date of this Ordinance No. 2021-33. Section 4. Interpretive Authority. The City of Bainbridge Island Director of Planning and Community Development, or designee, is hereby authorized to issue official interpretations arising under or otherwise necessitated by this ordinance. Section 5. Severability. Should any section, paragraph, sentence, clause, or phrase of this ordinance, or its application to any person or circumstance, be declared unconstitutional or otherwise invalid for any reason, or should any portion of this ordinance be preempted by state or federal law or regulation, such decision or preemption shall not affect the validity of the remaining portions of this ordinance or its application to other persons or circumstances. Section 6. This ordinance shall take effect and be in force five (5) days from its passage and publication as required by law. PASSED by the City Council this 14th day of December, 2021. APPROVED by the Mayor this 14th day of December, 2021. Rasham Nassar, Mayor ATTEST/AUTHENTICATE: Christine Brown, MMC, City Clerk FILED WITH THE CITY CLERK: November 5, 2021 PASSED BY THE CITY COUNCIL: December 14, 2021 PUBLISHED: December 24, 2021 EFFECTIVE DATE: December 29, 2021 ORDINANCE NUMBER: 2021-33 ATTACHED EXHIBITS: Exhibit A Page 1 of 9 Exhibit A to Ordinance No. 2021-33 Chapter 16.32 PROTECTION OF LANDMARK TREES 16.32.005 Applicability. 16.32.010 Definitions. 16.32.015 Exemptions. 16.32.020 Landmark tree criteria. 16.32.030 Landmark tree retention. 16.32.040 Emergencies. 16.32.050 Appeals. 16.32.060 Violations and penalties. 16.32.005 Applicability. This chapter applies to all zoning districts except R-0.4, R-1, and R-2.only to those properties located within the Winslow Master Plan Study Area as shown in Figure 2.3 of the Winslow Master Plan, updated November 8, 2006. (Ord. 2019-17 § 7, 2019) 16.32.010 Definitions. A. “City attorney” means the city attorney of the city of Bainbridge Island, or their designee. B. “Dead Tree” means a tree that has no live tissue or is determined to have less than 10% live tissue by a Tree Risk Assessment Qualified (TRAQ), International Society of Arboriculture (ISA) certified Arborist. BC. “Diameter breast height” means the diameter of a tree measured at four and one-half feet above the ground on the uphill side of the tree. CD. “Landmark trees” means trees, located on Bainbridge Island, that are unique because of their age, size, species, historical significance, or aesthetic quality and meet the criteria established by this chapter. DE. “Planning director” means the director of the planning and community development department of the city of Bainbridge Island, or their designee. F. “Removal” means cutting of a tree with the intent to kill it, including the creation of a wildlife snag where all live material is removed from the tree. Page 2 of 9 EG. “Replacement tree” means a tree that is of a species native and indigenous to the site where a landmark tree was removed and is a minimum size of six feet in height measured from top of the root flare, with a minimum trunk diameter of one inch measured at four inches above the top of the root flare for both evergreen and deciduous trees. FH. “Size” means the diameter breast height of a tree. 16.32.015 Exemptions. In the following circumstances, a removal of landmark tree permit shall not be required pursuant to this section: A. The tree(s) at issue is/are dead; B. For routine maintenance activities required to control vegetation on road, access, or utility rights-of-way or easements, including tree removal, pruning, and thinning; or C. For Class II and Class III forest practices regulated by the Washington State Department of Natural Resources under Chapter 76.09 RCW. 16.32.020 Landmark tree criteria. Landmark trees are trees that meet the following criteria for their species or are known to be 100 years old or older: Species Size (Greater than or equal to) Birch (Betula papyrifera spp.)30" Beech (Fagus grandifolia spp.) 36" Catalpa (Catalpa speciosa)36" American Elm (Ulmus americana) 30" Douglas Fir (Pseudotsuga menziesii) 40" Grand Fir (Abies grandis)40" Page 3 of 9 Species Size (Greater than or equal to) Horsechestnut (Aesculus hippocastanum) 40" Western Hemlock (Tsuga heterophylla) 30" Black Locust (Robinia pseudoacacia) 30" Lombardy Poplar (Populus nigra) 38" Pacific Madrone (Arbutus menziesii) 24" Bigleaf Maple (Acer macrophylum) 36" Silver Maple (Acer saccharinum) 36" Monkey Puzzle Tree (Araucaria araucana) 36" Monterey Pine (Pinus radiata)30" Oregon White Oak (Quercus garryana) 30" Pacific Yew (Taxus brevifolia) 20" Pin Oak (Quercus palustris)30" Red Oak (Quercus rubra)38" Ponderosa Pine (Pinus ponderosa) 30" Western White Pine (Pinus monticola) 30" Page 4 of 9 Species Size (Greater than or equal to) Sitka Spruce (Picea sitchensis) 36" Sycamore (Platanus occidentalis) 36" English Walnut (Juglans regia) 30" Western Red Cedar (Thuja plicata) 30" Coast Redwood (Sequoia sempervirens) 30" Japanese Laceleaf Maple 12" Pacific Dogwood (Cornus nautalii) 20” Atlas Cedar (Cedrus atlantica) 36” Deodar Cedar (Cedrus deodara) 36” Black Walnut (Juglans nigra)24” Red Maple (Acer rubrum)36” Giant Sequioa (Sequoiadendron giganteum) 40” Weeping Willow (Salix babylonica) 30” Shore Pine (Pinus contorta)24” Port Orford Cedar (Chamaecyparis lawsoniana) 30” Page 5 of 9 Species Size (Greater than or equal to) Cherry (Prunus spp.)24” 16.32.030 Landmark tree retention. A. Except as otherwise allowed under this chapter, no person, corporation, or other legal entity shall remove a landmark tree without having obtained approval from the planning director. B. Prior to the removal of a landmark tree, any person, corporation, or other legal entity seeking to remove a landmark tree must submit an application for removal of a landmark tree, along with a fee to be established by resolution of the city council, to the department of planning and community development. C. Upon receipt of an application for removal of a landmark tree, the planning director will review the application materials and consider the request based upon the criteria outlined in this chapter and any other city regulations that apply to the tree requested for removal, such as, but not limited to, Chapter 16.12 BIMC, Shoreline Master Program, Chapter 16.20 BIMC, Critical Areas, and BIMC 18.15.010, Landscaping, screening, and tree retention, protection and replacement. D. The planning director shall approve the removal, deny the removal, or request additional information. The planning director shall only approve the removal of a landmark tree if all other applicable city regulations are met and upon a finding that at least one of the following criteria is met: 1. The removal is necessary to enable construction on or reasonable use of the property, and no other alternative is feasible; or 2. The removal is necessary to fulfill the terms of an easement or covenant recorded prior to the adoption of the ordinance codified in this chapter; or 3. The tree is diseased, or otherwise determined to be a hazardous tree as determined by a qualified professional pursuant to BIMC 18.15.010.C.1.c. determined to have a high or extreme Tree Risk Rating by an ISA certified TRAQ Arborist who: Page 6 of 9 a.Identifies the tree part(s) and defect(s) that increase the likelihood of failure; b.Identifies the target(s) and site factors contributing to increased likelihood of impact; c.Utilizes a timeframe of five years or less; and d.Utilizes the matrixes in tables BIMC 16.32.030-1 and BIMC 16.32.030-2 below to determine the Tree Risk Rating. 16.32.030-1: Likelihood Matrix Likelihood of Failure Likelihood of Impact Very Low Low Medium High Imminent Unlikely Somewhat Likely Likely Very Likely Probable Unlikely Unlikely Somewhat Likely Likely Possible Unlikely Unlikely Unlikely Somewhat Likely Improbable Unlikely Unlikely Unlikely Unlikely Page 7 of 9 16.32.030-2: Tree Risk Rating Matrix Likelihood of Failure and Impact Consequences of Failure Negligible Minor Significant Severe Very Likely Low Moderate High Extreme Likely Low Moderate High High Somewhat Likely Low Low Moderate Moderate Unlikely Low Low Low Low In deciding whether the removal of a landmark tree is necessary under subsection D.1., or 2 D.2., or D.3. of this section, the planning director shall consider all land use regulations applied to the subject property, such as: Chapter 15.19 BIMC, Site Assessment Review, Chapter 16.12 BIMC, Shoreline Master Program, Chapter 16.20 BIMC, Critical Areas, or any other tree retention regulations applied through a land use permit. E. If the planning director grants an application for removal of a landmark tree upon a finding that the removal is necessary to enable construction on or reasonable use of the property, and no other alternative is feasible, then the property owner that submitted the application shall be required to provide mitigation through the planting of replacement trees on the property from which the landmark tree was removed in accordance with the following: 1. The quantity of replacement trees is calculated by multiplying the diameter breast height of the subject landmark tree by 50 percent to establish the number of replacement inches; and 2. The total number of replacement trees is determined by the total caliper inches of Replacement Trees equaling or exceeding the required tree replacement inches established in subsection E.1 of this section. Page 8 of 9 F. In lieu of planting the replacement trees prescribed in subsection E of this section, an applicant may satisfy the tree replacement requirements by: 1. Planting at least three replacement trees on the property from which the landmark tree was removed; and 2. Contributing to the Bainbridge Island tree fund at a rate of $500.00 per each replacement inch not accounted for in the planting of replacement trees; and 3. The sum of the tree replacement inches accounted for by contributing to the Bainbridge Island tree fund and the total caliper inches of the replacement trees planted shall not be less than the total replacement inches calculated in subsection E of this section. 16.32.040 Emergencies. A. In emergency situations involving immediate danger to life or real property, removal of a landmark tree is permitted without first obtaining approval from the planning director; provided, that the following conditions are satisfied: 1. The person, corporation, or other legal entity that removed the landmark tree submits an application for removal of a landmark tree under this chapter within 14 days after the emergency situation is stabilized; and 2. The person, corporation, or other legal entity that removed the landmark tree provides, within 14 days after the emergency situation is stabilized, the city with documentation establishing the existence of the emergency situation, with such documentation including at least four high resolution photographs evidencing the existence of the emergency situation; and 3. The planning director subsequently approves the removal pursuant to this chapter. B. If the conditions of subsection A of this section are not satisfied, the person, corporation, or other legal entity that removed the landmark tree without first obtaining approval from the planning director will be in violation of this chapter. 16.32.050 Appeals. A. The planning director’s decision on an application for removal of a landmark tree may be appealed to the hearing examiner as described in BIMC 2.16.020.R.1. Page 9 of 9 B. All appeals must be filed within 14 days following the issuance of the planning director’s decision on the application. 16.32.060 Violations and penalties. A. This chapter shall be enforced, and penalties for violations of this chapter will be imposed, pursuant to Chapter 1.26 BIMC, except that no notice of infraction may be issued under Chapter 1.26 BIMC for a violation of this chapter. In addition to notices of violation issued under BIMC 1.26.050 or 1.26.060, BIMC 1.26.070 will also govern the review and appeal of any notice of violation issued under Chapter 1.26 BIMC for a violation of this chapter. B. In addition to the civil penalties imposed under BIMC 1.26.090, an additional civil penalty will be imposed on any person, corporation, or other legal entity that removes a landmark tree without prior approval of the planning director. This additional civil penalty will be in the amount of $25,000 for each landmark tree removed. The city attorney will take appropriate action to collect this additional civil penalty. C. In the event of a conflict between the requirements of this chapter and any other requirement of the Bainbridge Island Municipal Code, this chapter will govern and control.