After a year-long collaborative effort from a diverse stakeholder group known as the Tree Regulation Update Advisory Committee (TRUAC), the Bend City Council adopted a new tree code in July that aims to protect more trees — especially large, mature trees — during development, without hindering the production of much-needed housing.
However, less than a month after City of Bend reached this first milestone and a few days before the code went into effect on August 16, local developers challenged the newly adopted code.
Tree Code Update Process: At a Glance
After a year-long process with a broad committee of community stakeholders, the adopted tree code aims to strike a balance between protecting more urban trees — particularly large mature trees — during development, while continuing to build the housing Bend needs.
The only way to know for sure if these outcomes are happening is to monitor implementation, collect the data, and let that inform and guide any potential, future adjustments to the tree code.
To that end, the City’s formal commitment to monitoring and potentially adjusting the code annually to ensure it delivers on both of these community goals is meaningful and absolutely critical.
Some reasonable, additional adjustments to the code would have protected more trees, while continuing to build needed housing. For example, an exemption from the tree code for all residential developments on lots 1 acre or less is one LandWatch will keep a close eye on. We would have preferred to see lots larger than ½ an acre required to preserve trees and mitigate for removed trees.
The creation of an urban forester position at the City was a significant positive outcome allowing for a more effective and holistic approach to the growth and management of Bend’s urban forest.
Local developers have put up legal challenges to the code, arguing the adopted code is not balanced and will impact the cost and production of housing.
Tree Code Update Process: More In-Depth
What the codes does, where it applies, and where it doesn’t
The new regulations spell out four main options for development greater than 1 acre, shown in the flow chart below.
The City’s tree code process was primarily focused on protecting trees during large-scale, large lot development.There is an exemption for large industrial sites with large building footprints. All residential development projects on one acre or less are also exempt from the new tree code rules.
If you’ve ever stood on an acre lot, you know that it’s a sizable piece of land. An acre offers several opportunities for creative site design that could deliver housing options and preserve trees.
LandWatch advocated for a more ‘right-sized’ exemption that would have applied to properties of ½ acre or less. We believe that this would have ensured that more developments would have to follow the new tree code, helping our community strike a better balance between preserving trees and building more housing.
ANTICIPATING OUTCOMES, AVOIDING PERVERSE INCENTIVES
As originally written, development projects with more than five units triggered a Site Plan Review, which in turn triggered compliance with the tree code.
The City Council later carved out an exemption for all residential projects on 1 acre or less with an aim of incentivizing efficient use of land. The City was anticipating and aiming to avoid a situation where a developer might choose to build fewer units on a parcel, even if there was space for more, in order to avoid having to adhere to the tree code.
We appreciated that motivation, as increasing density and providing more housing through efficient land use is one of LandWatch’s key tenets; however, we also want to ensure that higher density areas benefit from a healthy tree canopy.
With the 1 acre or less exemption for all residential developments, even multi-family housing with small footprints have no tree preservation requirements. Example: For a three-story, six-unit residential building covering a small fraction of a one-acre lot with its building footprint, all existing trees could be removed.
Our recommendation for exemptions from the code was to begin at ½ acre to protect more trees in more of the city.
Efficient, smart land use is paramount to growing well and with intention. That means creating more housing on land available in our city. However, areas with more housing (i.e. higher density), also need the benefits trees and a healthy tree canopy provide.
Important steps in the right direction, ongoing monitoring critical
The newly adopted tree code and the changes it enacts are steps in the right direction - and it’s important to recognize they are also narrow in scope and incremental.
While serving as Vice Chair of TRUAC, LandWatch staff were deeply engaged throughout the process to create stronger preservation measures in balance with meeting our community’s housing needs. We also urged the City to take additional, critical actions beyond these narrow code updates to protect and enhance our urban tree canopy now and into the future.
LandWatch and our community advocated for some reasonable adjustments to the code that would have protected even more trees without hindering the development of needed housing - but ultimately, Bend City Council didn’t include these changes. How effective the new code will be in preserving more trees — especially large, mature trees — without hindering housing can’t be known until it’s implemented and monitored over time. This new code should preserve more trees as more housing gets built, but only time will tell.
For that reason, our most critical recommendations to the City were for ongoing monitoring of code implementation and, if need be, adjusting the code to meet the community’s desired outcome to balance tree preservation and housing development.
The Bend City Council committed to doing that.
Similar to their ADU policy tracking, the City will monitor and potentially adjust the new tree code annually. This is a big win for all. Proactive evaluation ensures the code is delivering the intended outcomes the community expects, and allows for more nimble adjustments that deliver better on-the-ground results. Reviewing data on how the preservation options and incentives are actually used by developers is the best way to determine if the preservation and mitigation options available are working. The aim is to have them calibrated in a way that prioritizes preserving larger trees first, and then moves to alternative preservation options if that can’t be achieved. We’ll keep a keen eye on this and provide additional input during the one year review.
New urban forester
One exciting outcome from this process that LandWatch and our community advocated strongly for is the addition of Bend’s very first Urban Forester position (official title still TBD). This will open up the City’s potential for not only monitoring the tree code effectiveness, but prioritizing our urban forest as a whole. This will help ensure new trees are planted in underserved areas, that all members of our community share more equitably in the benefits trees provide, and that Bend’s urban tree canopy is managed and improved over time.
The creation of this position is an excellent move by the City and we look forward to working with the City and this person hired into this position to expand the depth and breadth of urban forestry work in the City.
Where it stands now
Legal challenges to the code
Recent litigation spearheaded by Pahlisch Homes says the tree code, as it is written, will have adverse effects on the development of housing. Backing Pahlisch are Central Oregon Builders Association, Bend YIMBY, Brooks Resources, Central Oregon Association of Realtors, Empire Construction and Development, and Hayden Homes. Many of these organizations were represented on TRUAC and helped to shape the code, but argue their concerns and suggestions were not given enough weight.
However, the main goal for the City — and the primary directive for the Tree Regulation Update Advisory Committee — was to thread the needle between the need for housing and the need to preserve trees. Many agree that this process did just that.
As Mayor Melanie Kebler told The Bulletin, “That committee produced a recommended policy that was a compromise between all sides… At our final hearing, Council then made further changes to the code based on feedback from the development community. We did not ignore requests to compromise, and the code is reasonable and balanced.”
Central Oregon LandWatch will continue to advocate for a tree code that balances the need for streamlined housing production and the need to preserve and enhance our urban forest.
