Rochester may stiffen tree ordinance penalties

By: Mary Beth Almond | Rochester Post | Published July 17, 2013

ROCHESTER — New developers, residents and others who cut down trees without the permission from the city could soon face tougher penalties.

The Rochester City Council is considering an amendment to its tree ordinance that sets forth specific consequences for the wrongful removal of any tree.

City Manager Jaymes Vettraino said the city’s tree ordinance is relatively new. Adopted in 1999, the ordinance states that no person shall remove, transplant or destroy any tree having 7-inch or greater diameter at breast height or any conifer greater than 20 feet in height without first obtaining city approval.

“A good rule of thumb is, for any tree 7 inches in diameter, you should contact the city to receive a permit. There is no cost to the permit. The city tree enforcement officer will simply come out and assess the health of the tree, the value of the tree to the community and issue a permit,” Vettraino said.

While residential properties do have the right to remove up to three trees a year that meet that threshold, he said they still need the permit.

The city’s tree ordinance specifically protects “landmark trees,” trees of designated species that meet certain criteria in size, age and health, as well as “historic trees,” trees nominated by a resident or property owner for the designation by the Planning Commission based upon its age, type, size, and historical or cultural association.

“Landmark trees have tremendous value to our tree canopy and urban forest, and those cannot be removed unless an arborist says that they are not healthy,” Vettraino said. “There is an appeal process to that, where someone can make an argument to City Council that they have a valid reason — beyond health — to remove a landmark tree, but those trees, as listed in the ordinance, are protected. The third class of tree that is protected in the city is, if you come in to build a building and we identify a tree on the approved plan, for some reason, to stay, then that tree obviously needs to stay.”

According to the ordinance, any person wishing to remove a landmark or historic tree must submit a written request to the City Council with the reason for seeking its removal and must demonstrate that the reason outweighs the public interest in retaining the tree.

The only problem, according to Vettraino, is the tree ordinance doesn’t currently identify specific penalties for violating the ordinance, other than a ticket for general violation of an ordinance, which City Attorney Jeffrey Kragt said is a misdemeanor punishable by up to 93 days in a jail and/or up to $500 in fines and costs.

“Currently, we don’t have any penalty if anyone breaks those rules — removing a tree without a permit that’s over 7 inches, cutting down a landmark tree, or removing a tree that we call protected by site plan. We could only write them a ticket under our general ordinances — a $500 fine, I believe, is the maximum — but that’s it,” he said.

Vettraino said the draft ordinance amendment, which was proposed at the July 8 City Council meeting, doesn’t change anything in terms of tree regulation, of permits needed, or what kind of tree you can take down under what circumstances. It only prescribes harsher penalties if someone removes a tree they shouldn’t have.

“We can still write the regular city ordinance ticket, but the important thing to us is getting the urban canopy back. If someone violates the ordinance by removing a tree that they shouldn’t, there is a high penalty for that. Also, if they do get permission to remove a landmark tree, then it gives a formula by which they have to replace that tree, based on the size of the tree,” he said.

Under the draft amendment, if a tree is removed because the city allowed it, it must be replaced at 50 percent of the total diameter at breast height. Protected trees, those that require city approval to be removed, must be replaced at 100 percent of the total diameter at breast height, while unpermitted removal of landmark and historical trees must be replaced at 150 percent of the total diameter at breast height. If replacement trees can’t be placed onto the property, or a different location around that same property, the draft amendment allows the city additional flexibility that it may seek — such as requiring money to be paid into the city’s tree fund or allowing the city to pursue court action for the wrongful removal of a tree.

Mayor Pro Tem Jeffrey Cuthbertson said he feels the penalty provision with regard to unpermitted tree removal is “important.”

“We don’t have anything in writing that deals with replacement trees — or protected, approved removals — but certainly with unpermitted removals, there should be a penalty if we’re going to have a meaningful tree ordinance that protects landmark and historic trees,” he said.

Councilmember Ben Giovanelli expressed his concern with penalties outlined in the draft ordinance.

“Basically, we’re telling a developer going in, well, if you happen to knock that tree down, here is what’s going to happen, so they can build it into their budget, and that sort of frustrates me. It negates the need for this,” he said. “One of the true gifts of this community is the nature that surrounds us, and to the extent that none of us up here act like The Lorax and speak for the trees, I think we’re going to have issues, so I want to make sure that we’re protecting the trees.”

City administration was asked to further explore the options for the draft ordinance and present their findings to the City Council at a later date.