2017-091 Tree Code and Tree Fund UpdateDate: December 22, 2017 Report No. 2017-091
INFORMAL STAFF REPORT
TO MAYOR AND CITY COUNCIL
SUBJECT:
Status update of the Tree Code Revisions and Use of Tree Mitigation Fund (Tree Fund) for Purchasing
Treed Property.
BACKGROUND:
The existing Tree Preservation and Landscape Requirements (Tree Code) were adopted in 2004 to
promote tree preservation and to facilitate site design and construction that would allow for the long-
term viability of trees. While it has served to protect some of the existing tree canopy, more is needed to
further maintain essential tree cover and to provide clear guidance for tree preservation and mitigation
during site development.
In the fall of 2014, following discussions regarding the history and status of the Tree Code and related
programs, Council directed staff to proceed with an update to the Tree Code and to begin planting trees
with the Tree Fund. Proposed revisions to the Tree Code aim to accomplish the following objectives:
1. Streamlining the code to make it more user-friendly;
2. Aligning City standards with best management practices of the American National Standards
Institute (ANSI) and the International Society of Arboriculture (ISA); and
3. Providing a more robust code that will expand and protect tree canopy including planting of trees
on private property and expenditures from the Tree Fund.
Tree Code Update
Outlined below is a chronology of what has occurred since then:
March 3, 2015 City Council Work Session – Staff presented and sought formal approval on the
proposed percentages to be allocated from the Tree Fund as follows:
Tree Planting and Maintenance 75%
Purchase of Tree Property 15%
City Wide Tree Inventory 5%
Education of citizens and developers 5%
August 18, 2015 City Council Work Session & Public Hearing – As a component of the
update to the tree preservation code, Council adopted ordinance No.2015-252, modifying Section
35.13.7.e.i of the Denton Development Code (DDC) to allow use of the Tree Mitigation funds
for the planting of trees on private property (see exhibit 1).
December 2015 – May 2016 Stakeholder Meetings. - Several meetings were held with
representatives of the Denton Community Developer’s Alliance (DCDA), the Native Plant Society
of Texas, the University of North Texas, Texas Woman’s University, Committee on the
Environment, and the Keep Denton Beautiful (KDB) Board of Directors to gather feedback. In
those meetings, staff reviewed the proposed ordinance with the group and received input related
Date: December 22, 2017 Report No. 2017-091
to the major components of the ordinance and the City’s overall goal of tree preservation and
canopy coverage.
March 23, 2016, July 27, 2016 and February 8 & 15, 2017 Planning and Zoning Commission
Draft revisions presented to the Planning and Zoning Commission on four separate occasions has
resulted in no formal action primarily due to concerns from the DCDA. Most recently, c oncerns
expressed were over the use of the term developer vs. applicant, the possible effect of requiring a
tree removal permit for residents occupying a single family dwelling, and the financial burden on
developers for preserving trees.
April 4, 2017 Council Work Session and Closed Session– In response to a Council request,
Keep Denton Beautiful, in conjunction with City Staff, presented to Council five (5) properties to
consider purchasing for the preservation of trees. Also included were the following evaluation
criteria that were used in selecting these properties:
o Property located in Cross Timbers region or ESA Upland Habitat.
o Property has 50% or higher tree canopy cover.
o Property currently for sale.
o Property is developable as a park.
o Property is threatened by development.
o Property is not currently protected by a conservation easement.
o Property is not currently protected by an ESA Flood Plan.
o Present or future utility impact on the property is minimal or none.
o Present or future mobility/transportation impact on the property is minimal or none.
o City loss of potentially taxable land is minimal or none.
As part of the closed session discussion, staff presented the following cost comparison:
Cost Comparison Land Purchase to Preserve Trees Versus Planting Trees
Property Number
of Acres Cost
Percent
Canopy
Cover
Acres of
Tree
Canopy
Preserved
New
Trees
Planted*
Acres of
Future
Trees
Canopy
A 40 $2.2
Million 100% 40 4,400 126.86
B 33.6 $2.56
Million 48% 16.12 5,120 147.63
C 7.5 $1 Million 100% 7.5 2,000 57.67
D 82.2 $2.6
Million 75% 61.65 5,200 149.94
E 3.3 $715,690 86% 2.83 1,431 41.27
* based on $500 per tree which is $50 above the current average cost per
tree.
Date: December 22, 2017 Report No. 2017-091
Council discussed the advantages and disadvantages of purchasing property and alternatively the
possibly of establishing conservation easements; none of the properties identified were
recommended for purchase.
January 10, 2017 – May 29, 2017 Texas Legislature Special Session During the 85th Texas
Legislature regular session, multiple bills were debated in the House and Senate that would restrict
local government’s ability to regulate the removal of trees. The various bills ranged from
completely removing tree preservation requirements, to requiring credits for trees planted to offset
the tree mitigation fee. The session ended with House Bill number 744 passing, however the
Governor did not sign it into law. Subsequently, the Governor called a special session to consider
this and other issues that did not pass during the regular.
June 18 – July 18, 2017 Texas Legislature Special Session - During the special session, again
multiple bills were debated in the House and Senate concluding with the passage of House Bill
number 7, (see exhibit 2) which the Governor signed into law. Upon analysis of the new law staff
has determined that the existing and proposed revisions to the Tree Code are compliant with the
new law (see exhibit 3). Staff will also had the Legal Department review the bill to verify the
City’s compliance.
January 24, 2018 Planning and Zoning Commission Work Session – Staff is currently updating
the attached draft, which was last presented to the Planning and Zoning Commission on February
15, 2017. The updates will be presented in a work session and will address:
o Concerns expressed were over the use of the term developer vs. applicant,
o The possible effect of requiring a tree removal permit for residents occupying a single family
dwelling; and
o The financial burden on developers for preserving trees.
February – March 2018 – Clarion, as part of the DDC update, will provide a Point System versus
current system for new landscaping.
Tree Fund Expenditure Update
Total deposits into the Tree Fund has been $3,174,644.52. Since council directive in 2015 to begin planting
trees, 90% of the Tree Fund expenditures has been to plant trees (see exhibit 4). During that same time,
$834,167.71 was collected and $935,878.33 was expended on planting trees and the canopy assessment.
Date: December 22, 2017 Report No. 2017-091
Since 2015 annual deposits and expenditures were:
The current balance of the Tree Fund is approximately $2.2 million. Approximately $833,877 has been
spent on providing 1,162 rebates or trees for planting on private property through the Denton Tree
Initiative and 1,158 trees planted along trails in 12 parks and several medians including 12 fruit trees in
Bowling Green Park. This will result in an approximate increase in tree canopy of 77 acres. Approximately
$137,390.00 has been spent on assessing the tree canopy in Denton.
Current and future planned expenditures include:
Parks and Recreation Department continues to plant trees along trails in parks and within center
medians.
Reconstruction of Fort Worth Drive and Teasley Lane, the planting of trees in the medians will be
completed using tree mitigation funds.
o Similarly, staff is working to include the same, as FM 2499 is complete.
Preserving existing trees helps to slow the loss of tree canopy; however, the only way to increase tree
canopy is by planting new trees. Planting new trees allows for the dispersed benefits throughout the City
verses a few designated areas. The current strategy of planting trees in parks and on private properties
allows an equal opportunity for all residents to receive and enjoy the benefits of trees.
CONCLUSION/RECOMMENDATION
To date, no properties have been purchased out of the Tree Fund. As land costs continue to increase, any
purchase of property would result in a substantial reduction in available funds for future tree planting
projects. Future payments into the tree fund are unpredictable; the fund is a mitigation tool designed as
the last option in lieu of tree preservation or planting. Ideally, a reduced fund balance would mean more
trees are preserved or planted.
It is staff’s recommendation, utilizing funds for the planting of trees instead of the investment of property
provides for the broadest benefits in terms of expanding tree canopy, beautifying the area, and not having
$-
$100,000.00
$200,000.00
$300,000.00
$400,000.00
$500,000.00
-17
Deposits $317,996.99 $393,402.02 $122,768.70
Expenditures $174,210.89 $467,259.61 $294,407.83
Tree Fund Deposits vs. Expenditures
Deposits Expenditures
Date: December 22, 2017 Report No. 2017-091
the loss of ad valorem. As a result, the most economical approach to expanding tree canopy is to continue
to plant trees.
Staff will be presenting a revised draft Tree Code update to the Planning and Zoning Commission at their
January 24, 2018 work session. It is our goal to present a final draft tree code in ordinance form to the
City Council in the second quarter of 2018. Attached is the most recent draft of the proposed revisions.
ATTACHMENT:
1. Ordinance 2015-252
2. House Bill 7
3. Impact Analysis of House Bill 7
4. Tree Fund Deposits and Expenditures
5. Draft Ordinance
STAFF CONTACT:
Haywood Morgan
Urban Forester
940-349-8337
haywood.morgan@cityofdenton.com
ORDINANCE NO. 2015 -252
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING SECTION
35.13.7.A.7.e OF THE DENTON DEVELOPMENT CODE, PERTAINING TO USE OF
THE TREE FUND; PROVIDING FOR A PENALTY CLAUSE WITH A MAXIMUM
FINE AMOUNT OF $2,000.00 FOR EACH VIOLATION THEREOF; PROVIDING FOR
SEVERABILITY; PROVIDING AN EFFECTIVE DATE.
WHEREAS, pursuant to Ordinance No. 2002 -040, the City Council of the City of
Denton, Texas adopted the Denton Development Code (the "Development Code "); and
WHEREAS, Subchapter 35.13 of the Development Code provides for the use of Tree
Fund deposits for tree mitigation, and the City desires also to use such deposits for the public
purpose of increasing the tree canopy within the City; and
WHEREAS, after providing notice and after conducting a public hearing on the
day of , 2015, as required by law, the Planning and Zoning Commission recommended
approval ol`' ehatiges to Subchapter 35.13 of the Development Code as described herein; and
WHEREAS, after providing notice and after conducting a public hearing as required by
law, the City Council finds that the subject changes to the Development Code are consistent with
the Denton Plan; and
WHEREAS, the City Council has determined that the proposed amendment for the use of
the Tree Fund is in the best interest of the health, safety, morals, and general welfare of the City
of Denton, and accordingly is of the opinion and finds that said amendment is in the public
interest and should be granted as set forth herein; NOW THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTIwON 1. The findings and recitations contained in the preamble of this ordinance are
incorporated herein by reference as true.
SECTION 2. Subchapter 35.13.7.A.7.e of the Denton Development Code is amended as
underlined to read as follows:
Section 35.13.7.A.7.e:
e. Tree Fund.
The City shall administer the Tree Fund. Tree Funds shall be used to purchase, plant,
and maintain trees ei4y, to preserve wooded property that remainsing in
a naturalistic state in perpetuity, to perform and maintain a City -wide tree inventory,
and to educate citizens and developers on the benefits and value of trees, all within
the City o Dcntoji. ThewwwTree Fund may also be used to sup,Port programs for the
Public I)(i......._._ l y it[iiri tli'its° of T ei toii. as Mli- )ve tra o c a m .ws,.. ...t., t e c r tl. -.__
by Ci1v Council.
Exhibit 1
ii. Proceeds from the Tree Fund not be used to meet any requirements for
rescry t ar3 1 at`;Ci at% 1< ¢ic c tpmn btiff"efirm. streetscap : hnilar
requirements in the Denton Development Code and the Denton Code of Ordinances.
iii. The applicant shall pay the fees established by City Council and published in the
Development Review Fee Schedule in the Application Criteria Manual. The fee shall
be based on the fair market value of materials and labor at the time of planting and
the reasonable estimated cost for maintenance and irrigation for a period of three (3)
years.
iv. Fees contributed to the Tree Fund shall be paid prior to the issuance of a Clearing and
Grading Permit on all Commercial, Industrial, or Multi- Family Residential
developments, prior to final approval of a Gas Well Development Plat and prior to
filing a Final Plat in the Denton County Clerk's Office for all Single - family
Residential Subdivisions.
v. Voluntary contributions for tree preservation shall be placed in the Tree Fund.
SECTION 3. Any person, firm, partnership, corporation or other entity violating any
provision of this ordinance shall, upon conviction, be deemed guilty of a misdemeanor and shall
be punished by a fine in a sum not exceeding $2,000.00 for each offense. Each day that a
provision of this ordinance is violated shall constitute a separate and distinct offense.
SECTION 4. If any provision of this ordinance or the application thereof to any person
or circumstance is held invalid by any court, such invalidity shall not affect the validity of other
provisions or applications, and to this end the provisions of this ordinance are severable.
SECTION 5. In compliance with Section 2.09(c) of the Denton Charter, this ordinance
shall become effective fourteen (14) days from the date of its passage, and the City Secretary is
hereby directed to cause the caption of this ordinance to be published twice in the Denton
Record - Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10)
days of the date of its passage.
PASSED AND APPROVED this the y f '2015. da o
HI iS WATT -S„ MAYOR
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY:
Exhibit 1
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
Exhibit 1
Texas-2017-HB7-Enrolled
An Act
relating to municipal regulation of the removal of trees on private property.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1.
Subchapter Z, Chapter 212, Local Government
Code, is amended by adding Section 212.905 to read as follows: Sec. 212.905.
REGULATION OF TREE REMOVAL. (a) In this
section:
(1) "Residential structure" means:
(A) a manufactured home as that term is defined by Section 1201.003, Occupations Code;
(B) a detached one-family or two-family dwelling, including the accessory structures
of the dwelling;
(C) a multiple single-family dwelling that is not more than three stories in height with a
separate means of entry for each dwelling, including the accessory structures of the
dwelling; or
(D) any other multifamily structure.
(2) "Tree mitigation fee" means:
(A) a fee or charge imposed by a municipality in connection with the removal of a tree
from private property.
(B) A municipality may not require a person to pay a tree mitigation fee for the removed
tree if the tree:
(1) is located on a property that is an existing one-family or two-family dwelling
that is the person's residence; and
(2) is less than 10 inches in diameter at the point on the trunk 4.5 feet above the
ground.
(C) A municipality that imposes a tree mitigation fee for tree removal on a person's
property must allow that person to apply for a credit for tree planting under this
section to offset the amount of the fee.
(D) An application for a credit under Subsection (c) must be in the form and manner
prescribed by the municipality. To qualify for a credit under this section, a tree must
be:
(1) planted on property:
(a) for which the tree mitigation fee was assessed; or
(b) mutually agreed upon by the municipality and the person; and
(2) at least two inches in diameter at the point on the trunk 4.5 feet above ground.
(E) For purposes of Subsection (d)(1)(B), the municipality and the person may consult with
an academic organization, state agency, or nonprofit organization to identify an area
for which tree planting will best address the science-based benefits of trees and
other reforestation needs of the municipality.
(F) The amount of a credit provided to a person under this section must be applied in the
same manner as the tree mitigation fee assessed against the person and:
(1) equal to the amount of the tree mitigation fee assessed against the
person if the property is an existing one-family or two-family dwelling
that is the person's residence;
(2) at least 50 percent of the amount of the tree mitigation fee assessed
against the person if:
(a) the property is a residential structure or pertains to the development,
construction, or renovation of a residential structure; and
(b) the person is developing, constructing, or renovating the property not
for use as the person's residence; or
(3) at least 40 percent of the amount of the tree mitigation fee assessed
against the person if:
(a) the property is not a residential structure;or
(b) the person is constructing or intends to
construct a structure on the property that is not a residential
structure.
Exhibit 2
Texas-2017-HB7-Enrolled
(G) As long as the municipality meets the requirement to provide a person a credit under
Subsection (c), this section does not affect the ability of or require a municipality to
determine:
(1) the type of trees that must be planted to receive a credit under this section,
except as provided by Subsection (d);
(2) the requirements for tree removal and corresponding tree
mitigation fees, if applicable;
(3) the requirements for tree-planting methods and best management
practices to ensure that the tree grows to the anticipated height at
maturity; or
(4) the amount of a tree mitigation fee.
(H) A municipality may not prohibit the removal of or impose a tree mitigation fee for the
removal of a tree that:
(1) is diseased or dead; or
(2) poses an imminent or immediate threat to persons
or property.
(I) This section does not apply to property within five miles of a federal military base in
active use as of December 1,2017
SECTION 2. The changes in law made by this Act apply only to a tree mitigation fee assessed by
a municipality on or after the effective date of this Act.
SECTION 3. This Act takes effect December 1, 2017.
President of the Senate Speaker of the House
I certify that H.B. No. 7 was passed by the House on July 28,
2017, by the following vote: Yeas 130, Nays 9, 1 present, not voting; and
that the House concurred in Senate amendments to H.B.
No. 7 on August 15, 2017, by the following vote: Yeas 119,
Nays 23,1 present, not voting.
Chief Clerk of the House
I certify that H.B. No. 7 was passed by the Senate, with amendments, on
August 15, 2017, by the following vote: Yeas 17, Nays 14.
APPROVED: Date
Secretary of the Senate
Governor
Exhibit 2
Exhibit 3
House Bill 7
Enrolled
Current Tree
Code
Proposed Tree
Code
Residential (owner occupied)
Mitigation Fee for removal of a <10” DBH Tree No No No
Mitigation Fee for removal of a >10” DBH Tree Yes No No
Percent of Fee that can be offset through
Planting 100 N/A N/A
Mitigation required for Hazard/Diseased or
Dead Removal No N/A N/A
Replacement Tree Size 2" diameter at 4.5'
above ground N/A N/A
Residential and Multi-Family Development
Percent of Fee that can be offset through
Planting 50 100 100
Mitigation required for Hazard/Diseased or
Dead Removal No No No
Replacement Tree Size 2" diameter at 4.5'
above ground
2” diameter at 6”
above ground
3” diameter at 6”
above ground
Non-Residential Development
Percent of Fee that can be offset through
Planting 40 100 100
Mitigation required for Hazard/Diseased or
Dead Removal No No No
Replacement Tree Size 2" diameter at 4.5'
above ground
2” diameter at 6”
above ground
3” diameter at 6”
above ground
The impact of House Bill 7 on Denton's Current and Proposed Tree Code
No Impact on Tree Code
Neutral Impact on Tree Code
Exhibit 4
Tree Fund Deposits and Expenditures
Year Tree Fund Deposits Expenditures
2004-05 $ 13,000.00
2005-06 $ 136,125.00
2006-07 $ 194,890.00
2007-08 $ 214,842.20
2008-09 $ 102,877.29
2009-10 $ 92,651.48 $ 32,494.32
2010-11 $ 112,769.72 $ 2,896.11
2011-12 $ 260,663.72
2012-13 $ 39,149.65
2013-14 $ 1,173,507.75
2014-15 $ 317,996.99 $ 174,210.89
2015-16 $ 393,402.02 $ 467,259.61
2016-17 $ 122,768.70 $ 294,407.83
Average Annual Deposits $ 244,203.42
Total Expenditures $ 971,268.76
Total Deposits $ 3,174,644.52
Current Balance $ 2,203,375.76
Page 1 of 12
ORDINANCE NO. ____________________
AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AMENDING SUBSECTIONS
35.23 AND 35.13 OF THE DENTON DEVELOPMENT CODE, PERTAINING TO TREE
PRESERVATION AND LANDSCAPE REQUIREMENTS AND RELATED
DEFINITIONS; PROVIDING FOR A PENALTY CLAUSE WITH A MAXIMUM
AMOUNT OF $500.00 FOR VIOLATIONS THEREOF; PROVIDING A SEVERABILITY
DATE AND AN EFFECTIVE DATE.
WHEREAS, pursuant to Ordinance No. 2002-040, the City Council of the City of Denton,
Texas adopted the Denton Development Code (the “Development Code”); and
WHEREAS, Section 35.13.7.A of the Development Code provides for requirements for
the preservation of Trees in the City of Denton, and the City desires to amend this section within
Subchapter 35.13 in order to make a more understandable and efficient tree preservation code for
the citizens of the City of Denton (the “amendment”); and
WHEREAS, Subchapter 35.23 of the Development Code provides definitions for use in
the Development Code, and the amendment contemplates a change in some of the pre-existing
definitions which will remain in Section 35.23.2, as well as new definitions which will be added
to Section 35.13.7.A; and
WHEREAS, after providing notice and after conducting a public hearing as required by
law, the Planning and Zoning Commission recommended approval of changes to Subchapters
35.23 and 35.13 of the Development Code as described herein; and
WHEREAS, after providing notice and after conducting a public hearing as required by
law, the City Council finds that the subject changes to the Development Code are consistent with
the Denton Plan; and
WHEREAS, the City Council has determined that the proposed amendment to the
requirements for the preservation of trees in the City of Denton is in the best interest of the health,
safety, morals, and general welfare of the City of Denton, and accordingly is of the opinion and
finds that said amendment is in the public interest and should be granted as set forth herein; NOW
THEREFORE,
THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS:
SECTION 1. The findings and recitations contained in the preamble of this ordinance are
incorporated herein by reference as true.
SECTION 2. Subchapter 35.23, Section 35.23.2 of the Denton Development Code is
amended as underlined, to read as follows:
Section 35.23.2:
Exhibit 5
Page 2 of 12
Clearing: An intentional act to cut down or to damage a tree and/or understory vegetation,
to the extent that the tree and/or understory vegetation will decline or die. Clearing
includes, but is not limited to: the use of herbicide or similar chemical treatment to destroy
trees and/or understory vegetation; physical removal; damage from soil compaction; or
damage due to grading.
Critical Root Zone (CRZ): The area of undisturbed natural soil around a tree defined by a
concentric circle with a radius equal to the distance from the trunk to the outermost portion
of the drip line but not less than one (1) foot radius for each one (1) inch dbh. The area of
soil around a tree where the minimum amount of roots considered critical to the structural
stability or health of the tree are located, as identified in the Tree Preservation Plan.
Diameter Breast Height (DBH): The outside diameter of the trunk of a tree, measured four
and one-half (4½) feet above ground level. If a tree splits into multiple trunks below the
four and one-half (4½) feet level, DBH will be defined as the sum of each individual trunk
measured at four and one-half (4½) feet above ground level, or the single trunk at its most
narrow dimension, whichever is greater.The tree trunk diameter measured in inches at a
height of 4.5 feet above ground level. For multi-trunk trees, combine the diameter of the
largest stem or trunk with one-half (0.5) of the diameter of each additional stem or trunk,
all measured at four and one-half 4.5 feet above ground level.
Grubbing: The mechanical or physical act of removing stumps, underbrush, and rocks,
prior to clearing and grading. Grubbing does not allow for any grade changes, only
vegetation removal down to bare soil. A Tree Removal Permit is required for all trees with
a three (3)-inch or greater diameter, measured at four and a half (4.5) feet above natural
grade.
Landscape Area: See "Landscaping." Refers to the pervious portion of a site that contains
plantings.
Public Utilities: For the purposes of tree preservation provisions of the Denton
Development Code, the term Public Utilities means:
A. Entities franchised by the City to use public rights-of-way for the conduct of their
business;
B. Entities that are "public utilities" under pertinent provisions of the Texas Utilities
Code or Texas Water Code but are specifically exempted by state law from the
requirement that they receive a franchise from the City for the use of public rights-
of-way;
C. Public sanitary sewers;
D. Public water mains;
E. Public streets;
F. Public storm sewers;
G. Public detention ponds;
H. Municipally-owned electric utilities; and
Exhibit 5
Page 3 of 12
I. Any contractor hired by these entities.
Qualified Professional: For the purposes of tree preservation provisions of the Denton
Development Code, a qualified professional is a person with a minimum of a Bachelor of
Science Degree in any of the following disciplines: Forestry, Horticulture, Botany and/or
Plant/Soil Science or, an Arborist that has been certified by the International Society for
Arboriculture, a Texas Certified Nursery Professional, a Texas Master Certified Nursery
Professional certified by the Texas Nursery and Landscape Association or a Licensed
Landscape Architect.
Tree Topping: The severe cutting back of limbs to stubs larger than three (3) inches in
diameter within the tree's crown to such a degree that removal of the top canopy disfigures
and invites probable disease or death to the tree. Tree topping is prohibited. An
inappropriate pruning technique that damages the health of the Tree, to reduce tree size
that involves cutting a tree to a predetermined crown limit, often at internodes.
Tree Protection, Permanent. Structural measures, such as retaining walls/wells or
aeration devices, that are designed to protect the tree and its root systems throughout its
lifetime.
Tree Protection Barrier, Temporary: Physical barriers installed prior to any clearing and
grading activity and/or construction for the purpose of preventing damage to existing trees
and understory vegetation. These barriers are that is set outside of the critical root zone of
such vegetation during site for the life of the development and construction.
Tree Protection Sign: A sign furnished by the developer upon approval of a tree survey or
Tree Permit Tree Preservation Plan that describes prohibited conduct detrimental to trees
on site.
SECTION 3. Subchapter 35.13, Section 35.13.7.A of the Denton Development Code is
amended by removing and replacing the entire language as follows:
35.13.7. - Tree Preservation and Landscape Requirements.
A. Tree Preservation.
1. Definitions.
Cross Timbers Forest: An ecosystem that consists of a swath of trees and
prairie stretching from Kansas to Central Texas that is rich with an understory
of shrubs, vines, brambles, prairie grasses, and wildflowers.
Developer. A person who owns property subject to this Section or a
representative of the owner.
Exempt Trees: Any Trees on the City’s Exempt Tree List, as set forth in the
Site Design Criteria Manual.
Heritage Trees: All healthy trees with a dbh of 18 inches or greater.
Exhibit 5
Page 4 of 12
International Society of Arboriculture (ISA): A non-profit organization that
through research, technology, and education promotes the professional
practice of arboriculture and fosters a greater worldwide awareness of the
benefits of trees.
ISA Certified Arborist: An individual who has achieved a level of knowledge
in the art and science of tree care through experience and by passing a
comprehensive examination developed by some of the nation’s leading experts
on tree care. Certified Arborists must also continue their education to maintain
their certification and adhere to a Code of Ethics.
Landscape architect: a professional who applies artistic and scientific
principles to the research, planning, design and management of both natural
and built environments and whose qualifications are acceptable to the City’s
Urban Forester. Such qualifications shall be based on a combination of college
degree, licensure and experience.
Protected Trees: All healthy trees with a dbh less than 18 inches.
Pruning: Removing branches or occasionally roots from a tree or other
vegetation using approved practices, to achieve a specified objective, such as
reducing the risk of failure, providing clearance, or maintaining the health of
the tree.
Structural Value, Urban Forest: A value based on the tree itself that includes
compensatory value and carbon storage value.
Tree: A woody perennial usually having one dominant trunk and a mature
height greater than 16 feet.
Tree Canopy: Refers to the collective branches and foliage of a tree crown or
a group of tree crowns.
Tree Preservation Plan: A submission made by the developer of land to the
City, which lists the retention, protection, management, and mitigation of trees
on a construction or development site.
Tree Protection Zone: An area defined by the City’s Urban Forester within
which certain activities are prohibited or restricted to prevent or minimize
potential injury to designated trees, especially during construction or
development, based on features unique to each individual site.
Tree Survey: A map or plan that includes a list and description of trees located
within all or a portion of the project area and/or adjacent areas. The tree survey
is based on criteria, such as location, species, or tree size, defined in the Site
Design Criteria Manual.
Urban Forester. An individual who is trained in or is practicing urban forestry
and whose qualifications are acceptable to the City’s Urban Forester. Such
qualifications shall be based on a combination of college degree, licensure and
experience.
Urban Forestry: The management of naturally occurring and planted trees and
associated plants in urban areas.
Exhibit 5
Page 5 of 12
2. Purpose and Intent.
The City’s Comprehensive Plan identifies the importance of environmental
management, while allowing reasonable and responsible development of land
within the City. Towards this end, the purpose of these regulations is to
promote the preservation and expansion of tree canopy, facilitate site design
and construction that contributes to the long term viability of existing trees,
and to establish a process to manage the removal of tree canopy. Further, it is
the purpose of this Subchapter to achieve the following broader objectives:
a. Protect trees and promote the ecological, environmental and aesthetic
values of the City;
b. Maintain and enhance a positive image of the City through the
preservation, mitigation and planting of trees;
c. Promote the preservation of the remnants of the Cross Timbers Forest;
d. Prevent the untimely and indiscriminate removal or destruction of trees;
e. Provide for a permitting and enforcement procedure; and
f. Preserve the public health, safety, and general welfare of citizens.
3. Applicability
a. This Subchapter shall apply to all of the following property:
i. Non-governmental property that is located within the City limits unless
it is considered an agricultural operation under Tex. Agric. Code Sec.
251.002(1), as amended, and has continued agricultural operations for
a period of one year or more prior to development and has not been
actively marketed for a nonagricultural use within two years prior to
development;
ii. Governmental property that is located within the City limits unless the
property is as follows:
a. City Airport;
b. Municipal Solid Waste Facilities;
c. Any development or Capital Improvement Project awarded prior
to November 2004; or
d. Public utilities and infrastructure constructed during new
development but not reconstruction must comply with street tree
requirements only.
b. Exempt Trees are not subject to these requirements.
Exhibit 5
Page 6 of 12
c. To the extent that there is a conflict between this Subchapter and any other
City Code of Ordinances or approved plans or regulations, the more
restrictive requirement shall apply that preserves the largest square footage
of tree canopy.
4. Preservation Requirements and Incentives
a. Preservation Requirements.
i. A developer must preserve a minimum of thirty percent (30%) of the
square footage of the pre-development tree canopy on all property
regulated by this Subchapter. This square footage shall be the
“preserved tree canopy.”
ii. A developer must preserve a minimum of twenty percent (20%) of the
square footage of the pre-development tree canopy on all property used
for new agricultural activity. This square footage shall be the
“preserved tree canopy” for that limited purpose.
iii. On property currently used for agricultural activity but has an
application for development filed, the tree canopy amount will be
determined by using aerial images from the last twenty-four (24)
months prior to the application.
iv. A developer must submit a Tree Survey and a Tree Preservation Plan
to the City prior to development of a lot or parcel regulated by this
Subchapter. The percentage relating to preservation stated within this
section must be based on the initial Tree Survey. Any subsequent
redevelopment of property must preserve the minimum percentage of
square footage of the predevelopment tree canopy as indicated by the
initial tree survey.
v. A notation must be placed on the Final Plat, Site Plan and Building
Permit identifying the square footage of the predevelopment tree
canopy and the minimum square footage of tree canopy to preserve
based on the percentage stated within this section. The notation shall
limit any future unauthorized land disturbing activity or construction
that would impact and/or damage the tree(s) to be preserved.
b. Preservation Incentives:
i. Credit for Preserved Tree Canopy.
The preserved tree canopy may be counted towards the total landscape
canopy requirement outlined in Sec. 35.13.7.B. A developer may
receive credits for preserved Tree Canopy. For Heritage Trees, two
square feet of credits will be given for every square foot of Tree
Canopy preserved (1:2). For Protected Trees, one square foot of credit
will be given for every square foot of Tree Canopy preserved (1:1).
ii. Parking Lot Design.
The Director of Development Services or designee may allow parking
lot design and parking lot landscaping requirements to vary from
adopted design standards to preserve existing trees.
Exhibit 5
Page 7 of 12
5. Mitigation.
If preservation cannot be reasonably achieved, then mitigation may be
provided through replanting or payment into the Tree Fund. The
following mitigation standards shall apply:
i. Up to ten percent (10%) of the pre-development Tree Canopy square
footage of Heritage or Protected trees required to be preserved may be
removed if the removal is mitigated by the replanting of new trees at a
1:6 ratio or by payment into the Tree Fund. The ratio will require six
new Trees to be planted for every one Tree’s worth of canopy removed
at a square footage rate, determined by the City’s Site Design Criteria
Manual. The required Tree Fund payment shall be based on the square
footage of canopy removed.
ii. Mitigation of Tree Canopy square footage may be counted towards the
total landscape canopy requirement at a 1:1 ratio..
iii. Each mitigation tree must be a minimum of 3 caliper inches measured
6 inches above grade and meet the standards of the City’s Tree Care
criteria as set forth in the Site Design Criteria Manual. Any Tree that
does not meet these standards may be rejected by the City’s Urban
Forester.
iv. Exception: Removal of trees to facilitate installation of gas wells
(including roads, pad sites, and gathering lines), gas transmission lines,
or to facilitate installation of communications infrastructure or utilities
which do not otherwise meet this code’s definition of a Public Utility,
the following mitigation standard shall apply instead, without regard to
tree designation. The applicant shall mitigate the removal by paying
the established tree mitigation fee for thirty-five percent (35%) of the
total square footage of canopy removed. Fees must be paid prior to
Tree removal, pursuant to the procedures established by Subsection
35.13.7.A.6.c.v.
v. Tree Fund.
a. The City shall administer the Tree Fund. Funds shall be used
to purchase, plant, and maintain trees; to preserve wooded
property remaining in a naturalistic state in perpetuity; to
perform and maintain a City-wide tree inventory; and to
educate citizens and developers on the preservation, care,
maintenance, benefits and value of trees within the City of
Denton. The Tree Fund may also be used to support programs
for the public purpose of increasing the tree canopy within
the City of Denton as approved by City Council.
b. Proceeds from the Tree Fund shall not be used to meet any
requirements for preservation, mitigation, landscaping,
Exhibit 5
Page 8 of 12
buffering, street-scaping, or similar requirements in the
Denton Development Code and the Denton Code of
Ordinances.
c. The applicant shall pay the fees established by City Council
and published in the Development Review Fee Schedule in
the Application Criteria Manual, which may from time to
time be amended.
d. The applicant must pay the fees contributed to the Tree Fund
prior to the issuance of a Gas Well Development Plat or Gas
Well Site Plan or the filing of a Final Plat in the Denton
County Clerk’s Office for all single-family residential
subdivisions. Clearing and Grading permit, Clearing and
Grubbing permit or Building permit on all commercial,
industrial, or Multi-Family residential developments will not
be issued prior to this payment..
e. Voluntary contributions for tree planting may be placed in the
Tree Fund.
6. Removal of Trees.
a. Tree Removal Permit Required
i. Any person must obtain a Tree Removal Permit from the City prior to
the removal of any Tree in the City.
ii. A Tree Removal Permit is not required for Exempt Trees listed on the
exempt tree list in the Site Design Criteria Manual.
iii. A Tree Removal Permit is not required for Trees less than five (5)
inches DBH, that are located on lots or parcels 2 acres or less where an
occupied single-family or two-family dwelling exists.
b. Tree Removal Permit Review and Approval Process.
i. A developer must submit a complete application along with the
applicable fees as determined by the most recent fee ordinance.
ii. A developer must submit a Tree Survey and Tree Preservation Plan, if
required as stated herein, with the Tree Removal Permit application,
and the Tree Survey or Tree Preservation Plan must be prepared or
certified by a Qualified Tree Professional.
iii. A Tree Removal Permit is valid for one hundred eighty (180) days, or
for the duration of a Building Permit, Site Plan, Clearing and Grading
Permit, Clear and Grubbing Permit, or Gas Well Development Plat or
Gas Well Site Plan issued in conjunction with the Tree Removal
Permit, whichever is longer.
iv. After the Tree Removal Permit is issued, the developer must obtain a
Tree Protection Sign from the City and post it, at any location, on the
lot or parcel subject to this Subchapter, which is designated in the Tree
Removal Permit. The sign shall be in the form approved by the City’s
Urban Forester and as described in the Site Design Criteria Manual.
Exhibit 5
Page 9 of 12
c. Administrative Remedy
i. Any person who removes or intentionally destroys a Tree preserved or
planted under Subchapter 35.13.7., while the Tree is alive, shall
mitigate each Tree at two (2) times the rate stated in Subchapter
35.13.7. Each replacement Tree shall meet the standards as stated in
this Section and as approved by the City’s Urban Forester.
ii. Each tree preserved under Subchapter 35.13.7 that dies within three (3)
years of approval shall be mitigated by the property owner as stated in
Subchapter 35.13.7.
iii. Each tree planted under Subchapter 35.13.7 that dies shall be replanted
with an approved tree in the appropriate planting season by the property
owner.
iv. These mitigation remedies are in addition to the enforcement
provisions of Sec. 9 of this Subchapter.
v. Each replacement Tree must be a minimum of 3 caliper inches
measured 6 inches above grade and meet the standards as set forth in
the Site Design Criteria Manual. Any Tree that does not meet these
standards may be rejected by the City’s Urban Forester or designee.
7. Tree Preservation Plan and Amendments.
a. The Tree Preservation Plan Criteria.
i. The Tree Preservation Plan shall consist of a tree survey and such
information required by the items on the Tree Preservation Plan
Checklist, as maintained for inspection in the Department of
Development Services during regular business hours.
ii. The City’s Urban Forester, under the direction of the Director of
Development Services, must review the Tree Preservation Plan or any
amendments thereto in order to determine whether it complies with the
standards of this Subchapter, the Denton Development Code, and other
applicable laws.
b. Administrative Modification.
The City’s Urban Forester, with approval of the Director of
Development Services, has the authority to approve amendments to a
Tree Preservation Plan so long as it meets the purpose and intent of this
Ordinance and applicant has made a good faith effort to comply with
this Ordinance.
c. Appeal.
The approval or denial of a Tree Preservation Plan by the City’s Urban
Forester, under the Director of Development Services, is an official
determination that may be appealed by the applicant to the Zoning
Board of Adjustment pursuant to Subsection 35.3.6 of the Denton
Development Code as contemplated by Sec. 211.009 of the Texas Local
Government Code, or subsequent amendments thereto.
Exhibit 5
Page 10 of 12
8. Tree Protection Requirements during Construction.
i. A Tree Protection Plan must be submitted with the Preliminary Plat,
Final Plat, Site Plan or Building Permit application, and must be prepared
or certified by a Qualified Tree Professional.
ii. Tree protection standards shall be in accordance with the standards in the
City’s Tree Care Criteria Manual, as amended from time to time and as
required by the City’s Urban Forester and with the Site Design Criteria
Manual.
iii. The developer must place a Tree Protection Barrier around the entire
Tree Protection Zone (TPZ) as stated in the Site Design Criteria Manual
and as approved by the City’s Urban Forester.
iv. The developer must not engage in construction activities until the City’s
Urban Forester verifies the installation of a Tree Protection Barrier
around the Tree Protection Zone (TPZ) for all trees designated for
preservation.
9. Enforcement
i. The City’s Urban Forester and the Building Official shall have the
authority to place a stop work order on any activity involving the removal
of any Heritage or Protected Tree, or on any activity that may otherwise
endanger any Tree contrary to the provisions of Subchapter 35.13.7 and
applicable criteria manuals. The Building Official may deny all permits
and Certificates of Occupancy for any site which is not in compliance
with Subchapter 35.13.7 and applicable Criteria Manuals. For the
purposes of enforcement, Section 35.1.10 of the Denton Development
Code is incorporated by reference herein, and as amended in the future.
ii. If a person removes, cuts down, tops, destroys or moves, or assists in the
removal, cutting down, topping, destroying or moving, or causes the
removal, cutting down, topping, destroying, or moving of a Tree without
complying with the requirements of this subsection, or owns part or all
of the land where the violation occurs, this person shall be guilty, upon
conviction, of a misdemeanor.
iii. If a person performs grading on, or moves any heavy-duty vehicles
specially designed for executing construction tasks on, any undeveloped
property that contains Trees subject to this Subchapter without first
obtaining a Tree Removal Permit, this person shall be guilty, upon
conviction, of a misdemeanor.
Exhibit 5
Page 11 of 12
iv. If a person causes the death of a Tree that is preserved or planted in
compliance with this Subchapter through neglect of the Tree, this person
shall be guilty, upon conviction, of a misdemeanor.
v. The City’s Urban Forester and the Building Official may go on any
property subject to this Section, with or without notice to the owner, for
the purposes of verifying compliance with this Section or with any open
building permit.
vi. Each tree damaged, removed, cut down, topped, destroyed, or moved in
violation of Subchapter 35.13.7 shall constitute a distinct and separate
offense.
vii. It shall be an affirmative defense to prosecution under this Section that
the injury or destruction of a Tree was caused by natural disasters or
other acts of God, including but not limited to tornadoes, straight-line
winds, ice storms, fire, floods, hail, or lightning strikes.
viii. It shall be an affirmative defense to prosecution under this Section that
the injury or destruction of a Tree was caused by the independent
unauthorized actions of third parties who are not a developer of the
property subject to this Section.
SECTION 3. Any person, firm, partnership or corporation violating any provision of this
ordinance shall, upon conviction, be deemed guilty of a misdemeanor and shall be punished by a
fine in a sum not exceeding $500.00 for each offense. Each day that a provision of this ordinance
is violated shall constitute a separate and distinct offense.
SECTION 4. If any provision of this ordinance or the application thereof to any person or
circumstance is held invalid by any court, such invalidity shall not affect the validity of other
provisions or applications, and to this end the provisions of this ordinance are severable.
SECTION 5. In compliance with Section 2.09(c) of the Denton Charter, this ordinance
shall become effective fourteen (14) days from the date of its passage, and the City Secretary is
hereby directed to cause the caption of this ordinance to be published twice in the Denton Record-
Chronicle, a daily newspaper published in the City of Denton, Texas, within ten (10) days of the
date of its passage.
PASSED AND APPROVED this the _______ day of _______________________, 2016.
______________________________
CHRIS WATTS, MAYOR
Exhibit 5
Page 12 of 12
ATTEST:
JENNIFER WALTERS, CITY SECRETARY
BY: __________________________________
APPROVED AS TO LEGAL FORM:
ANITA BURGESS, CITY ATTORNEY
BY: __________________________________
Exhibit 5