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Ord. 2000T-40 2024-10-28Ordinance No. 2000T-40 An Ordinance of the City Council of the City of Pearland, Texas, for the purpose of amending Chapter 4, Article 2, Division 3; Tree Mitigation of the Unified Development Code (UDC), Ordinance No. 2000T in accordance with Section 1.1.4.1 of the Unified Development Code; and containing a savings clause, a severability clause, and an effective date and other provisions related to the subject. WHEREAS, on the 7th day of October 2024, Public Hearing was held before the Planning and Zoning Commission of the City of Pearland, Texas, notice being given by publication in the official newspaper of the City, the affidavits of publication being attached hereto and made a part hereof for all purposes as Exhibit "A", said call and notice being in strict conformity with provisions of Section 1.2.2.2 of Ordinance No. 2000T; and WHEREAS, on the 7th day of October 2024, the Planning and Zoning Commission of the City submitted its report and recommendation to the City Council, whereby the Commission recommended approval of the amendment s, said recommendation attached hereto and made a part hereof for all purposes as Exhibit “B”; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain provisions of the Unified Development Code are hereby amended as shown in Exhibit “C” attached hereto and made a part hereof for all purposes. Section 2. Savings. All rights and remedies which have accrued in favor of the City under this Ordinance and amendments thereto shall be and are preserved for the benefit of the City. Docusign Envelope ID: 571F28AE-5105-4619-AD2D-3B1DB1FC9003 Section 3. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid, unconstitutional or otherwise unenforceable by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. Section 4. Repealer. All ordinances and parts of ordinances in conflict herewith are hereby repealed but only to the extent of such conflict. Section 5. Codification. It is the intent of the City Council of the City of Pearland, Texas, that the provisions of this Ordinance shall be codified in the City's official Unified Development Code as provided hereinabove. Section 6. Publication and Effective Date. The City Secretary shall cause this Ordinance, or its caption and penalty, to be published in the official newspaper of the City of Pearland, upon passage of such Ordinance. The Ordinance shall become effective immediately upon final passage. PASSED, APPROVED, and ADOPTED on First Reading this 14th day of October 2024. ________________________ J. KEVIN COLE MAYOR ATTEST: __________________________ FRANCES AGUILAR, TRMC, MMC CITY SECRETARY Docusign Envelope ID: 571F28AE-5105-4619-AD2D-3B1DB1FC9003 PASSED, APPROVED, and ADOPTED on Second and Final Reading this 28th day of October 2024. ________________________ J. KEVIN COLE MAYOR ATTEST: _____________________________ FRANCES AGUILAR, TRMC, MMC CITY SECRETARY APPROVED AS TO FORM: _____________________________ DARRIN M. COKER CITY ATTORNEY Docusign Envelope ID: 571F28AE-5105-4619-AD2D-3B1DB1FC9003 Exhibit A Legal Notice Docusign Envelope ID: 571F28AE-5105-4619-AD2D-3B1DB1FC9003 Exhibit B Planning and Zoning Commission Recommendation Letter Recommendation Letter October 8, 2024 Honorable Mayor and City Council Members 3519 Liberty Drive Re: Recommendation on Amendments to the Unified Development Code – 2000-T-40 Honorable Mayor and City Council Members: Planning and Zoning Commission conducted a public hearing for the proposed amendments to the UDC at their regular meeting on October 7, 2024. Staff presented the draft amendments and opened the discussion for further debate on the tree mitigation fee cap. The commission and staff held a lengthy discussion, and three motions failed before the fourth motion received approval (see below for details). Major topics of discussion focused on items #4 and #6. Concerns were raised regarding the fees placed on developers & the tree mitigation cap. -Motion 1: Recommend items 1-5. Revise #6 - Establish a tree mitigation fee cap utilizing language from Option B: Fee will not exceed 1% of the development’s valuation. This motion failed due to a lack of a 2nd. -Motion 2: Recommend items 1-5. Revise #6 - Establish a tree mitigation fee cap: The lower of either Option A (at 20%) or Option B (at 2%). This motion failed by a vote 2-3 (Commissioners Henrichs and Echols in favor with Vice Chairperson Isenberg, Commissioners Haskins and Ordeneaux in opposition). -Motion 3: Recommend items 1-5, Revise #6 - Establish a tree mitigation fee cap: The lower of either… •Option A: Fee will not exceed 95% of the site’s tax value, based on the latest tax value for the County Appraisal District and other disclosable means of valuation accepted by staff (closing documents, etc.). Docusign Envelope ID: 571F28AE-5105-4619-AD2D-3B1DB1FC9003 •Option B: Fee will not exceed 10% of the development’s valuation. This motion failed by a vote 2-3 (Commissioners Haskins and Ordeneaux in favor and Vice Chairperson Isenberg, Commissioners Henrichs and Echols in opposition). -Motion 4: Recommend items 1-5, Revise #6 - Establish a tree mitigation fee cap: •Option A: Fee will not exceed 95% of the site’s tax value, •Option B: Fee will not exceed 10% of the development’s valuation, •Option C: Establish a tree mitigation fee cap: The lower of either: 1.Fee will not exceed 20% of the site’s tax value. 2.Fee will not exceed 2% of the development’s valuation; OR •Option D: Establish a tree mitigation fee cap: The lower of either: 1.Fee will not exceed 95% of the site’s tax value, based on the latest tax value for the County Appraisal District and other disclosable means of valuation accepted by staff (closing documents, etc.), or 2.Fee will not exceed 10% of the development’s valuation. This motion was approved by a vote 4-1 (Commissioners Echols, Haskins, Henrichs and Ordeneaux in favor and Vice Chairperson Isenberg in opposition). Sincerely, Martin Griggs, AICP, CNU-A Deputy Director – Community Development On behalf of the Planning and Zoning Commission Docusign Envelope ID: 571F28AE-5105-4619-AD2D-3B1DB1FC9003 Division 3 – Tree Mitigation SSeeccttiioonn 44..22..33..11 IInntteenntt (a) The intent of this division is to encourage site planning which furthers the preservation of trees and natural areas by these methods; to protect trees during construction; to facilitate site design and construction which contributes to the long term viability of existing trees; and to control the unnecessary removal of trees; require on-site replacement of trees that must be removed and require off-site replacement of trees that cannot be replaced on-site, either by direct planting or through a "Tree Trust." It is the further intent of this division to achieve the following broader objectives: (1) Protect healthy trees and preserve the natural, ecological, environmental, and aesthetic qualities of the City. (2) Protect and increase the value of residential and commercial properties within the City. (3) Prohibit the indiscriminate clear-cutting of property. (4) Maintain and enhance a positive image for the attraction of new business enterprises to the City. SSeeccttiioonn 44..22..33..22 DDeeffiinniittiioonnss (a) For the purpose of this division, certain words or terms applicable hereto are defined as hereinafter provided. Words and terms used in this division, but not defined in this division shall have the meanings ascribed thereto in Chapter 5 of this UDC, or other ordinances in the City. Words and terms defined in two ordinances shall be read in harmony unless there exists an irreconcilable conflict, in which case the definition contained in this division shall control. (1) Circumference: The distance around the perimeter of the tree trunk as measured four and one-half feet (4.5') above the ground using an ordinary measuring tape. For multiple-trunk trees, the trunk circumference is deemed to be equal to the circumference of the largest trunk plus half the circumference of each additional trunk. Measurements should be accurate to the nearest one-half inch (½"). (For conversion to diameter, the circumference can be divided by 3.142.) (2) Criteria Manual: The manual to be used and interpreted by City personnel in accordance with this division for the City's urban forest preservation and enhancement. (The manual is available at the City Park and Recreation Department and was originally adopted as Attachment A to City Ordinance No. 772, which was the Tree Protection and Preservation Ordinance. The manual is adopted as part of this UDC by reference.) (3) Critical Root Zone: For any given tree, the area within a circle centered on the trunk location that contains the majority of tree roots essential for tree growth and survival. The circle’s diameter is one-half the sum of the broadest and the narrowest of the drip line diameters. (4) Damage or Damaged: To "damage" a tree means to take any action which could result in a tree's death, either immediately or after a period of two (2) years. Some examples of such action, which are not intended to limit this definition, are as follows: severing the main trunk or large branches or roots; girdling; poisoning; carving; mutilating; touching with live wires; piercing with nails or spikes; crushing or exposing the roots; digging or drilling any hole larger than three (3) cubic feet (a trench) within the Critical Root Zone; or covering or compacting twenty-five percent (25%) or more of the Critical Root Zone. (5) DBH (Diameter Breast Height): The distance of the width of the trunk of a tree as measured four and one-half feet (4.5') above the ground. (6) Located: A tree is "located" within an area if any part of its trunk is within the area at ground level. For example, a tree positioned on the property line is considered to be located in an area or on a subject site when a portion of the trunk or root flare that is visible above ground is within the area or subject site. (7) Official: The City Manager or his/her designee. (8) Temporary Fencing: A six foot (6’) high temporary fence shall be installed prior to any site activity. The temporary fencing shall be placed to protect as much of the Critical Root Zone as possible for each tree to effectively protect and prevent persons, machinery, trash, material, and other items from occupying the Critical Root Zones of a tree or group of Protected Trees. The temporary fence may incorporate existing fences or walls as well as temporary fencing. A separate fence permit is not required for construction of a fence under this section, if a building permit for the work is in effect and a Tree Disposition Plan has been approved. (9) Tree: A woody plant having one well-defined stem or trunk, a defined crown and a mature height of at least eight (8) feet. Trees protected and/or regulated by this division of the UDC are listed in the City’s Tree List, a copy of which is available in the City Park and Recreation Department. Trees defined include: (a) PROTECTED TREE: Any Large Tree that is identified on the Protected Tree List (available in the City Parks and Recreation Department) and that is located within the City; (b) LARGE TREE: Any tree with a diameter (DBH) of twelve inches (12") or more. In case a tree is removed, it is presumed to have been a Large Tree if the diameter of the stump is twelve inches (12") or greater, measured in any direction. (c) HERITAGE TREE: Any Protected Tree with a diameter (DBH) of twenty- four inches (24”) or more located anywhere within the City. In case a tree is removed, it is presumed to have been a Heritage Tree if the diameter of the stump is twenty-four inches (24") or greater, measured in any direction. (d) REPLACEMENT TREE/QUALIFIED TREE: Any tree included in the Protected Tree List (available in the City Parks and Recreation Department), with a DBH of at least two inches (2”). (10) Tree Disposition Plan: Must specify how Protected Trees and Critical Root Zones will be protected from development and pre-development activity. The Tree Disposition Plan shall specify trees to be relocated, removed or replaced. The tree survey and disposition plan shall be submitted with the application for any development permit and must be approved before said permit may be issued. (11) Tree Survey: An on-the-ground survey containing the location of Protected Trees, their diameters, types (species), and crown area (critical root zones). The Tree Survey must depict for any given Subject Site: (a) every Protected Tree located on the Subject Site, and (b) identify every Protected Tree located elsewhere which has thirty percent (30%) or more of its Critical Root Zone in such Subject Site. The tree survey and disposition plan shall be submitted with the application for any development permit and must be approved before said permit may be issued. (12) Urban Forester: A resource professional, charged with the responsibility of planning, establishing, protecting, and managing trees and associated plants, individually, in small groups, and under forest conditions within the City, with full authority to enforce this division of the UDC for violations of the same. (13) Tree Trust: A capital project fund created for the purpose of purchasing, growing, and/or maintaining trees and associated plants within the City limits. Said fund is to be expended in conformance with a tree propagation program drafted by the City Manager or his/her designee. Ord. No. 2000T-8, Section 4.2.3.2, August 25, 2008. Ord. No. 2000T-32, Section 4.3.3.2, August 24, 2020. SSeeccttiioonn 44..22..33..33 AApppprroovvaall RReeqquuiirreedd ffoorr TTrreeee RReemmoovvaall No person directly or indirectly shall cut down remove, move, or destroy through damaging the roots, trunk or canopy, any tree situated on property regulated by this division without first submitting a Tree Survey and obtaining approval of a Tree Disposition Plan, unless otherwise exempted by the provisions of Section 4.2.3.4(b) of this division. Ord. No. 2000T-2, Section 4.2.3.3, February 26, 2007. SSeeccttiioonn 44..22..33..44 AApppplliiccaabbiilliittyy (a) Applicability. The terms and provisions of this Ordinance shall apply to all real properties, persons and trees located within the City. (b) Exemptions. Public utilities working in dedicated and accepted easements, right-of- way, or floodways, trees that are located on a lot of record that is ten (10) acres or less and on which a single family home exists, and trees, other than those required to be planted pursuant to City regulations, on properties formerly operated as a tree farm or nursery specifically managed for the propagation of trees. Ord. No. 2000T-26, Section 4.2.3.4, September 25, 2017. SSeeccttiioonn 44..22..33..55 AApppprroovvaall PPrroocceessss aanndd AAddmmiinniissttrraattiivvee PPrroocceedduurreess (a) Responsible Official. The City Manager or his/her designee is responsible for the review and approval or disapproval of all Tree Disposition Plans. The plan shall be submitted in accordance with the requirements specified herein: (b) Residential & Non-Residential Subdivisions. The City Manager or his/her designee must be able to determine from a review of the Tree Disposition Plan, survey, grading and drainage plans the following: (1) Protected Trees which are to be removed. (2) The extent of tree replacement in accordance with Section 4.2.3.7 of this division. (3) After review and approval by the Urban Forester, final approval of the subdivision plat by the Planning and Zoning Commission shall constitute approval of a Tree Disposition Plan for the street and utility construction phase of the subdivision. (c) Building Permits Generally. (1) No building permit shall be issued unless the applicant signs an application or permit request which states that all construction activities shall meet the requirements of this division of the UDC. (2) If the application is made in conjunction with a Site Plan submitted for approval, the application will be considered as part of the Site Plan and no permit shall be issued without Site Plan approval. (d) Building Permits Not Requiring Platting. The City Manager or his/her designee shall review building permits and applications for lots not requiring platting. (e) Appeals. Any decision made by the City Manager or his/her designee with regard to the Tree Disposition Plan may be appealed by the applicant to the Planning and Zoning Commission. All actions of the Commission are final. (f) Permit Validity. Tree Disposition Plans accepted in connection with an application for a building permit, subdivision plat and Site Plan shall be valid for the period of validity of the accompanying application. SSeeccttiioonn 44..22..33..66 SSuubbmmiittttaall RReeqquuiirreemmeennttss (a) The City Manager or his/her designee shall establish administrative procedures necessary to facilitate the implementation and enforcement of this division. These procedures shall include the following: (1) Tree Disposition Plan/Tree Survey: Must be submitted and approved prior to the removal or destruction of any tree. (2) An application involving a limited portion of a site may be based on an exhibit showing only that portion of the site. (3) Aerial photograph interpretation may supplant the ground survey for preliminary analyses of large scale developments, such as subdivisions, utility corridors, and golf courses, at the discretion of the City. Large-scale developments are also required to include impact areas where existing trees are located. (4) The items required on a submitted exhibit include the following: a. Title block including a street address; legal description (lot and block, subdivision name); date or revised date, north arrow, graphic and written scale; name, address, telephone number of owner or person preparing the exhibit. b. Location of all existing or proposed structures, improvements and site uses including pavement and landscaping, setbacks, easements and service connections, all property dimensions with references to property lines. c. Location of all existing Protected Trees, graphically differentiating between the trees to remain and those to be removed. Trees located beyond the Subject Site with thirty percent (30%) or more of the Critical Root Zones located within the Subject Site shall also be included. A plus (+) character shall indicate trunk location and concentric circle shall indicate the size and canopy configuration. d. Proposed general areas or locations of the replacement trees. e. A list of all Protected Trees, including species, trunk diameter and condition. f. A list of all off-site Protected Trees where Critical Root Zones will be impacted. g. Tree information required shall be summarized in legend form on the plan and shall include: 1. Protected Trees to be removed. 2. Total diameter inches of Protected Trees which are to be removed. 3. Replacement trees listed by species name, quantity, size and total diameter required for replacement of trees. (See Section 4.2.3.9 (e).) h. Tree protection notes and details shall be included on Site Plans, subdivision plans or Landscape Plans and always included with the bid documents given to the contractor. Ord. No. 2000T-12, Section 4.2.3.6, June 28, 2010. SSeeccttiioonn 44..22..33..77 TTrreeee RReeppllaacceemmeenntt RReeqquuiirreemmeennttss (a) In the event that it is necessary to remove a Protected Tree, the applicant, as a condition to issuance of a building permit, shall be required to replace the tree(s) being removed with Replacement Trees as defined herein. This mitigative measure is not meant to supplant good site planning. (b) Tree Replacements Required. (1) If a person removes a protected tree for which a permit is required, then the person shall replace the protected tree with an equal number of inches in Replacement Tree(s) and approved by the administrative official. Tree replacement will be considered only after all design alternatives which could save more existing trees have been evaluated and reasonably rejected. (2) A sufficient number of trees shall be planted to equal or exceed, measured in DBH, the diameter of each tree removed. Each Replacement Tree shall be at least two inches (2”) in diameter at DBH when planted. (3) Upon confirmation by the Urban Forester, no mitigation will be required for trees that are found to be damaged, diseased, dead, or those that pose imminent danger. (4) If a residential subdivision requiring a final plat is proposed then tree mitigation may be accommodated through required street tree landscape planting within the residential lots. Any remaining balance of mitigation may be planted within the subdivision’s open space(s) or paid toward the Tree Trust Fund. (c) Tree Trust Fund. (1) The owner or developer of any lot or tract of land required to replace trees in accordance with this section may, as an alternative and, upon approval by the Urban Forester, pay a mitigation fee into the Tree Trust Fund under the following conditions: a. Residential and Non-Residential Plats - Payment to the Tree Trust Fund must be received by the City prior to the submission of the final plat for Planning and Zoning Commission approval. b. Building Permits Not Requiring Platting - Payment to the Tree Trust Fund must be received by the City prior to the issuance of a building permit. (2) The mitigation fee shall be calculated at the rate of three hundred dollars ($300) per caliper inch of trees to be mitigated. The fee paid into the Tree Trust Fund shall be periodically adjusted by the City Council as the market value of replacement trees warrants. (3) A Mitigation fee cap will be warranted at four percent (4%) of a total site development cost. Example - $10,000,000 project that requires tree mitigation would have a cap of $400,000. (4) This mitigation method is not meant to supplant the replacement method and shall only be implemented upon approval of the City Manager or his designee after it has been determined that replacement mitigation is not feasible. (d) Tree Credits. (Removed by Ord. No. 2000T-40) Ord. No. 2000T-2, Section 4.2.3.7, February 26, 2007. Ord. No. 2000T-27, Section 4.2.3.7, April 23, 2018. Ord. No. 2000T-29, Section 4.2.3.7, January 28, 2019.