With Portland’s population increasing and the cost to live in the Rose City soaring, the city’s trees have become caught in the middle. The comprehensive law the city council passed to protect them, Title 11, has upset neighbors and tree boosters, some of whom have come to council to represent of old giants felled since the law went into effect on Jan. 1, 2015.

“There’s nothing that can be done in arrears about those trees that were killed, wrongly,” tree advocate Sara Long told council last week, describing two trees her landlord had cut down.

Less publicized but no less sincere have been the complaints of private-side interests who say the city’s new tree code is confusing and ineffective.

“Most professionals I have spoken to have said it is one of the more difficult codes ever implemented,” said Joseph Petrina, a member of the Oregon Remodelers Association and owner of Petrina Construction.

Critics from the business and development communities shared anecdotes of absurd unintended outcomes of Title 11, like a contractor needing to fence off a tree in the backyard for a small remodeling job in the front. They say, more gravely, that Title 11 has led to more trees being cut down, and might be making housing in Portland less affordable.

The spirit of the code

Vic Remmers knows preserving the city’s urban forest is an emotional issue in Portland. The owner of Everett Custom Homes became the object of protest this past fall when three 150-year old sequoias were scheduled to come down as part of an Everett project. Protestors carrying signs like “Remmers lies, Trees die” took to the neighborhood, and the story made national news. A neighborhood group eventually came up with a crowd-funded $800,000 to save the trees in a deal brokered in part by Mayor Charlie Hales.

Remmers said a better way to save trees is to change the code.

Everett develops new single-family houses, up to eight per lot. Remmers said outcry from pro-tree Portland has gotten louder and more severe since he started the company six years ago.

“It’s getting worse because I think people see that if they make a big stink about something it leads to more changes, which makes it more and more difficult to build homes in the city of Portland,” he said. “We’re building in established neighborhoods, and folks get upset about change. They get fearful because they don’t know what’s going to happen. We deal with that all the time.”

The city passed the comprehensive tree code in 2011, but due to the recession, it wasn’t implemented until four years later. Before Title 11, rules relating to trees were scattered across various bureaus.

Title 11 of the Portland City Code sought to combine tree-related laws for full-site development and smaller, homeowner-led remodeling work, under one heading. One goal was to get developers to consider saving trees earlier in the project planning process.

Under Title 11, developers of projects involving ground-disturbing construction on properties 5,000 square feet or larger must submit a tree plan accounting for all trees 12 inches in diameter or larger. Developers must preserve at least one-third of those trees, or pay the city $1,200.

But the law hasn’t worked as intended, and numerous residents upset with what they see as a shrinking urban forest have told council to strengthen or add disincentives. According to the city, 18 trees of at least 45 inches in diameter were cut down during the first nine months the law was effective.

The council will take to devising amendments to the tree code this summer. For now, though, a smaller package of targeted, “stop-gap” measures – called “Fritz-Saltzman” for city commissioners Amanda Fritz and Dan Saltzman, the amendment’s two backers  – is being considered. The stop-gaps would impose in development situations a tiered fee in-lieu schedule for trees up to 50 inches in diameter, and an inch-by-inch fee for trees 50 inches in diameter or larger.

The Oregon Remodelers Association submitted several proposed changes to Title 11, including allowing use of 4-foot orange fencing to mark off trees. The code currently requires 6-foot chain link fencing, which costs more. Most contractors have been renting the fencing and passing the cost along to homeowners, Petrina said.

Petrina also suggests exempting from the full force of the code hand-dug footings and foundations as well as other smaller work. He thinks small contractors will avoid obtaining permits if the rules stay the same.

“These changes would save the homeowner unnecessary expenses, but still live by the spirit of the code,” Petrina said.

Eating the costs

For some of landscape architect Brian Bainnson‘s clients, it’s a shock to learn what they can and can’t do with their property.

Bainnson said clients of his company, Quatrefoil Inc., are often surprised to learn that in addition to hiring a landscape architect, they’ll have to spend between $800 and $1,500 to hire an arborist to help write their project’s tree preservation plan. Follow-up arborist services can run up to $1,700, plus a few hundred more in billable hours for Bainnson.

“We’ve seen projects put on hold because there’s one more layer of cost that they hadn’t anticipated,” he said. “Escalating building fees are really limiting what people can do on their property in Portland.”

Bainnson cited one project he’s working on – a retaining wall that’s costing the owners $5,000 for materials and labor, as well about $5,000 in permit costs and arborist fees. He suspects rising costs will lead more homeowners to break the law and build out of permit.

“All you have to do is spend some time at the permit center with people who’ve gotten caught for building without a permit to know that if there are people getting caught, there’s a whole more people out there who aren’t getting caught,” Bainnson said.

Deconstruction/demolition firms also are affected by the new tree preservation law.

“It’s gotten so ridiculous with the tree protection,” said John LaBarge, owner of Oregon Demolition. “It can add significant cost to taking down a house, and it’s most likely a house that needs to come down. There’s no way it can be affordable anymore.”

One of LaBarge’s project owners last year opted to pay $1,200 to remove a tree rather than fence it off and preserve it, because the area to be fenced off was so large it would have inhibited the use of an excavator. He said he’s seen that happen a lot.

He said even if there were no tree protection rules in Portland, developers would still favor them, because “curb appeal” sells houses. He rejects the argument made by affordable housing advocates who say projects can be affordable if developers try harder.

Passing along the new costs to owners is inevitable, he says.

“You start adding costs and the margins aren’t there to eat it,” LaBarge said. “I would be running a nonprofit or a company losing money if we started eating all these costs.”

To address this, Commissioner Dan Saltzman added a provision exempting certain affordable housing projects.

“I don’t want people to think of this as trees versus affordable housing,” said Paul Bello, chairman of the city’s Urban Forestry Commission.

Remmers is in favor of decreasing the “root protection zone” for trees with narrow root systems as one way of loosening. As the law is now written, an area equal to foot for every in diameter of a tree must be protected against development. Remmers and others say that many trees endemic to the Pacific Northwest don’t have such wide-ranging root systems. Many developers have been opting to cut down a tree and pay the “tree tax,” because they’re committed to developing the property, and no other option exists, Remmers said.

“A lot of the time we have to put up these crazy fences around a tree way in the back, nowhere near anything that we’re going to be doing,” he said. “Or they’ll be right up against what we’re doing, making it harder for the contractor to excavate, and things like that.”

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