Private tree bylaw gets approval at Standing Committee level - will go to Council on the 16th for approval.

News 100 greenBy Pepper Parr

December 4th, 2019

BURLINGTON, ON

 

Unless there is a massive shift in the thinking of this council, Burlington is going to have a private tree bylaw – which is going to take some time to get used to.

City council has been at this issue for more than nine years: there was a pilot program in the Roseland community that was iffy in term of results.

Everyone will say they love trees – but when they become a nuisance, they want to be able to cut t hem down. This city council is saying that the Climate Change issues are such that we have to save every tree we can.

Belvenia trees-1024x768

This is the Burlington everyone wants; keeping this canopy means we stop cutting down trees unless absolutely necessary.

In comments she made just before the vote to recommend the bylaw was passed Ward 2 Councillor Lisa Kearns said:

Either were a Climate forward Council, or we’re not;
either we commit to our business plan, or we don’t;
either we look to the priorities of the next generation or we don’t;
either we empower the best staff doing their best work or we don’t;
either we invest or we don’t;
either you’re on the right side of history. Or you’re not;
I am, and I am supporting Burlington’s city wide private tree bylaw.

Her views reflected the mood and determination of this council.

There were delegations that believed the city did not have the right to do what they were setting out to do. Some impressive arguments were put forward telling us more than we ever wanted to know about the British North America Act and “letters patent”.

Shawana Stolte 1

Ward 4 Councillor Shawna Stolte

Ward 4 Councillor Shawna Stolte, who moved the motion said:

This debate has been going on before Burlington City Council for almost a decade now…

We’ve all heard the arguments from one extreme to the other…including delegates last evening who presented legal arguments cautioning Council against supporting what they claimed to be an illegal bylaw.

Following Committee last night I did some research and would like to take a moment and share the following in regard to the legislation behind Tree By-laws:

In 1946, the Trees Conservation Act was passed in an attempt to protect woodlands from clearing and overcutting.

Under the Municipal Act in 1994, all local municipalities with a population of greater than 10,000 could regulate tree cutting.

To simplify the process and authority for Tree By-Laws, provisions were consolidated into the new Municipal Act (2001) which took effect on January 1, 2003. Upper tier, single tier and lower tier municipalities could now all pass Tree By-laws under the new Municipal Act, 2001.

Consolidation of the tree cutting provisions into the new Municipal Act, 2001 enabled:

All local municipalities and upper/single tier municipalities to pass and enforce by-laws. They may also delegate these powers up or down.

Upper tier municipalities can regulate or prohibit the cutting of trees in woodlands designated in the by-law that are 1 ha or greater.

Lower tier municipalities can regulate or prohibit the cutting of individual trees in areas up to 1 ha in size.

The Municipal Act enables municipalities to „prohibit‟ the destruction or injuring of trees where the previous Forestry Act could only „regulate‟ the destruction or injuring of trees.

By-laws enacted under the Municipal Act, 2001 can require a permit for the destruction or injuring of trees.

The permit may impose conditions including how trees are cut and qualifications of persons authorized to cut.

The changes that came with the Municipal Act have empowered municipalities more than ever before.

In the past 10 years almost all upper tier Tree By-laws have been updated incorporating some new considerations for good forestry practices and requiring applications for permits instead of just notices of intent.

The Municipal Act states that:

“A local municipality may prohibit or regulate the destruction or injuring of trees.”
and
“An upper tier municipality may prohibit or regulate the destruction or injuring of trees in woodlands…”.

The Act also states that:

“…a municipality shall have regard to good forestry practices…”
and

“…a municipality may… require a permit …impose conditions to a permit…including… the manner in which destruction occurs and the qualifications of persons authorized to injure or destroy trees.”

Also important to note is that delegation can occur up from the lower tier municipality to the upper tier municipality and also down from the upper tier municipality to the lower tier municipality. Single tier municipalities have jurisdiction over both trees and woodlands.

Currently, there are at least 23 upper tier municipalities (counties and regional governments) with by- laws and 35 lower and single tier municipalities with Tree By-laws in Ontario.

Clearly many other communities have taken the progressive action of creating a Climate Action Plan and protecting their green infrastructure by way of a Private Tree Bylaw, and it is time for Burlington to get off the fence and take concrete steps to doing the same.

We cannot dispute that our Urban Tree Canopy is in a state of crisis…Conservation Halton has rated our downtown forest health as “poor” and its getting worse.

The reality is we are losing thousands of trees and it does not matter whether these losses are from disease or development, we cannot afford to lose anymore.

We need to do everything possible to protect AND enhance our tree canopy.

Is this Private Tree Bylaw the only answer? NO, of course not.

It is but one important tool in our Urban Forest Management Toolbox.

This is not about picking just one tool to use, it’s not a matter of investing in tree protection OR tree planting but exploring and implementing as many tools as we possibly can.

For my colleague who trusts numbers more than words I will offer a simple equation…

25 small trees planted minus 25 mature trees taken down leaves us with just 25 small trees.

Whereas…25 small trees planted plus 25 trees protected leaves us with a healthy forest of 50 trees.

The best way to preserve and grow our canopy is through protection AND planting and I believe that everyone on this Council supports robust tree planting and looks forward to implementing concrete tree planting initiatives throughout the City. The hope is that residents will replace trees on their property as per the program and NOT opt to pay any cash-in-lieu…but giving residents a choice, the funds that are received as cash-in-lieu will continue to help to enhance the canopy.

To supplement a strong tree planting initiative our Forestry Dept. has come up with a fair and reasonable Bylaw that also protects our existing canopy and I hope that this Council, in light of operationalizing our Climate Action Plan, is willing to support this Bylaw that protects and preserves our trees.

Steve Robinson Forestry Manager

Steve Robertson

The proposed bylaw is complex.  The Forestry department is going to add staff whose prime role is to educate and explain the bylaw. Steve Robertson, manager of forestry said the job is to help people work with the bylaw and to be educators and not draconian enforcers.

This is not going to be a smooth process; if the climate change people are right it is a necessary process.

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23 comments to Private tree bylaw gets approval at Standing Committee level – will go to Council on the 16th for approval.

  • Alfred

    David you may also want to ask which species of trees are exempt. Invasive species etc. If not
    why not. The Burlington Fire Dept has concluded having combustible trees within 1.5m straight up along the house is a fire hazard. if the trees are conifers pine, spruce etc. Then that distance should be 10 meters. I have confirmed this with our Fire Dept. Fire Prevention Officer. As well as other knowledgeble Fire Depts. I think this was one of the first things the City should have checked with right at the start to determine safe distances. This should not be my job or responsibility. This should be the Citys. The Mayor claims she wants a 40% to 50% canopy cover. People should not have to pay to remove trees in the Fire danger zone. The City should also advise residence That with an increase of the tree canopy so increases the danger of fire. It then becomes very important for the City to adhere to allowing residence to keep these areas free of combustible material and free of fees.if the residence so choose.

  • Alfred

    David I hope you are right. I would then ask you to provide one case That has been settled over a tree at any tribunal OMB. LPAT. or otherwise. Tree by-laws have been around for years now. I’m sure if this was the case someone would have appealed a decision by now. Probably good idea for the City to include this option in the by-law. One day to go and we are running around to undertand it. The City is keeping everyone in the dark here on an issue that erodes property rights. That is a shameful.

  • Alfred

    David. Let me explain my positiion as best as I can. let’s use 2 scenarios.1 David wants to cut 5 trees. City says no. What options do you have? Answer: None. . David acting like a developer wants to sever a lot (Consent) wants to cut down 5 trees. City says no. The by-law passed under sec 135. does not apply to injuring or destruction of trees as a condition to the approval of a consent. Applying for a severence comes with the option of going too LPAT if denied or If you are not happy with what the City wants in terms of trees or anything else. Dont get tied up with the term developer. In your case you are a 1 time developer. You have the right to go to LPAT. Someone not looking to sever, but rather to just cut a tree can’t. Not fair.Good luck on Mon.

  • Alfred

    Upper hand. Sorry computer skips.

  • Alfred

    Hi David sec. 136 Municipal Act was repealed some time ago. The City foresters can hold on to your application and deny you a permit on any tree for as long as they like . Spoke with Municipal Affairs and Housing a few minutes ago. Nobody is accountable for anything. No one in Canada should have absolute power to do anything without a right to appeal. I hope this makes it quite clear that the large developers have the upper had.

  • Alfred

    David with all due respect I do not concur.

  • Alfred

    David I would have to respectfully disagree and assert the fact that developers are in a class in themselves exempt from the terms of the proposed by-law. Any luck with the current Municipal Act re: sec. 136. I still can’t find it. I don’t want to put my foot in my mouth. Would enjoy continuing this conversation in much greater detail. Good night.

  • Alfred

    David please check which Municipal Act you are reading from. You must use the most recent. If you are makng reference to the OMB. It may not be the most recent. The older versions make reference to sec. 136 the newer version has no sec. 136 or I can’ find it. Your thoughts?

  • Alfred

    Municipal Act of Ontario Sec. 135(1) 12. a. to h. are the excemptions. All friends of the Provincial Government. Soon to be friends of our local council. Cheers.

  • Alfred

    Brian sorry to take this long to reply to some of the issues you and others brought up. On Dec 4th the City met with the Hamilton Halton Home Builders group. These meetings are held quarterly. The purpose is to discuss issues involving building in Burlington. This would include any changes the City proposes, grievances the industry has and others. Most if not all that attended were the large builders or their high priced representatives in our community.The tree cutting by-law was not even on the agenda or mentioned. The large builders are excluded (can’t be touched) under the Municipal act so the City can’t impose a tree tax or replacement policy. That’s why they don’t oppose it. If you need proof take a look on Google at the large subdivisions being built in Oakville and surrounding areas wth tree by-laws. Do you see many trees? Or more importantly do you see room left were you could plant a tree in the future on these tiny lots with huge houses that including the driveways take up the whole lot. This exclusion at the Provincial level is nothing short of absolute CORRUPTION. (Protecting the big builders). Knowing this, the City goes after the small infill builders and renovators? They impose these time wasting hideous fees totalling tens of thousands of dollars and restrictions on them, removing their ability to compete on a level field with the larger builders.Yet create and and approve subdivisions where trees can never be planted. To make themselves look good. Yet doing nothing in reality The way the by-law is written they can hold on to applications and never process them or simply deny them outright as there is no time limit to process or provide good service. Nobody is accountable for anything. Reasons for denial should be spelled out in the by-law. In crystal clear wording so this power can not be abused. Finally the Province is almost 90% Crown land (lots of room to plant trees) owned by the people of Ontario. A small portion is taken up by Cities like Burlington That has 4 million trees. The balance is private land made up of farm land which grow the food we eat and rural forests total number of trees approx. 85 Billion trees in Ontario and growing. Brian, Penny, Philip, James, Paul and Steve. In my honest opinion I think the average citizens see it our way when they are told the whole truth. Thanks to Pepper for allowing us this forum to talk to each other.,

  • Alfred

    Councilor Kearns should have explained how she thinks this By-law saves the world. The total tree canopy that will be saved might total 100 trees City wide in a City that has over 4 million trees. ( see tree plantings below) According to the information provided by staff in a report to council. The City Forestry staff have indicated their concerns that tree By-laws have little affect and are a feel good By-law and serve little purpose. She should explain how many hundreds of permits are applied for in the surrounding Municipalities. Oakville for example. Instead she can’t tell us the truth because the numbers are not there. True facts would simply expose the By-law as a fraud a sham. Does she think these types of By-laws make people want to go plant trees on their own properties and pay these hideous fees if they need to cut them down. She also fails to tell us how many trees are being planted in Burlington by private citizens on their properties. I spoke with nurseries in the Burlington areas. They told me combined there are tens of thousands being planted. She forgot to mention that the large developers are exempt. Plazas, plans of subdivisions that build houses too close to each other on lots so small you can never plant a tree there. Highrise, commercial buildings and townhouses, Hydro and other Govt. works also exempt. The only people this By-law affects is the person looking to put in a pool or do a reno to their house as well as small builders building on infill lots. Number of single family homes built this year City wide 51 and 0 semi-detached. Not something I would describe as ravishing the City. Why are the permit fees 5 times higher than the other Municipalities. Where is Burlington Green in all this? Are we not planting trees and how many? This By-law does nothing worthwhile. If it did the Councilors would have described the benefits a little more clearly. Other than coming up with Councilor Kearns rambling poem. Instead of figuring out a way to plant many more trees. The most dangerous and absurd part of this by-law is the poison pill clause where the City Forester can prevent any tree from being cut or removed without explanation or reason (God like powers) Without recourse or appeal. The erosion of private property rights is a slippery slope that private property owners will never regain. Elan. you do know that most of those Developers projects on your list are exempt from the tree By-law? The Provincial Government made sure of it.

    • Phillip Wooster

      A big thank-you for exposing the flaws and ineffectiveness of this tree by-law. Your analysis also exposes this by-law for what many of us have always known it is–another exercise in virtue signalling. I find it shameful that Councillor Kearns was so willing to misrepresent so many facets of this by-law that clearly need more scrutiny with so many hard questions yet to answer.

  • David Barker

    I am a very ardent and fervent supporter of tree preservation and am a property owner in the final stages of severing a property, where the proposed bylaw, if it was in effect, would have a severe financial impact on me.

    The argument that the bylaw is an over-stepping of government and an unnecessary and unconstitutional interference in the rights of a property owner is unfounded, in my view and ignores the various impositions already put on property owners. The rights of a property owner are already compromised in many ways, and rightly so in order to recognize and protect the rights of others and for the greater benefit of society as a whole. For example property owner cannot build right up to the property line. This protects the neighbour’s enjoyment of his/her own property without facing a wall of a building or losing sunlight. Another example is that a property owner cannot have back yard fires. But you all know this.

    It is my view that whilst we may own a property, we are, in my view, in fact only temporary custodians of it. As custodians we are charged with the duty to take good care of the property so as to allow future generations to enjoy the pleasure and benefits that flow from it. These are the same responsibilities that fall on those who own a heritage building. Trees are just as much a part of our heritage as are buildings and must be protected to the same extent.

    As mentioned, I have a foot in the camp of those on both sides of the discussion. As noted earlier I am in the final stages of severing my property on Lakeshore Road. As a part of that process I was required to commission an arborist report on the trees located on both the lot to be severed and the lot to be retained. The lot to be severed measures 45 feet by 200 feet. So it’s not huge by any means. Even so it has 75 mature trees on it. The trees are predominantly located around the edges of the lot. However, in order to build a home on the lot 11 of the trees would need to be removed; most are Maples. I, myself, am not intending to build but intend to sell to someone that will build. In the absence of a private tree bylaw, my intention is to seek through the purchase and sale agreement the purchaser’s binding agreement and commitment to preserve and protect the other 64 trees. I believe that demonstrates my commitment to tree preservation.

    Of the 11 affected trees 2 are dead (ash), 5 due to their small size fall outside the protection of proposed private tree bylaw (1 mulberry and 4 maples), and the remaining 4 (all maples) fall within the terms of the proposed private tree bylaw.

    Let’s say for the sake of argument that the proposed private tree bylaw (option 4) is in force. Under the terms of the bylaw I would be required to obtain a tree permit (I assume and hope only 1 permit for all 11 trees) at a cost of either $390 and $680 depending on whether it is deemed a development is taking place or not. Then the second part of the fee structure kicks in. The proposed private tree bylaw requires I either replace those 4 trees elsewhere on the property or pay cash in lieu to the City. There is certainly nowhere else on the property to plant replacement trees; so the cash in lieu aspect would come into play. The total cash in lieu compensation would be $20,300 ! That is an absurd and outrageous amount! The permit fees are themselves in my view too high. But the replacement cash in lieu amount is just mind boggling.

    To sever the property I have to date incurred City fees of a few dollars under $50,000; comprised of consent/variance fees (width of frontage) of about $13,000 and cash in lieu of parkland fee of $37,500. $50,000 paid to the City to sever a relatively small piece of land. Other costs I have had to incur to facilitate the severance (planning consultant, surveyor, lawyer, arborist, geotechnical engineer) amount to another $50,000. So that is $100,000 to sever a piece of land which gained complete staff support! Heaven knows what that number would have climbed to should an LPAT appeal have been necessary. Another 21,000 on top of that to allow me to take out just four trees that fall within the proposed private tree bylaw is unthinkable.

    As said, I am a fervent and ardent supporter of the preservation of our trees and so am in favour of a private tree bylaw. But the bylaw in my view should be more focused upon enforcement of the protection by way of severe fines: hitting very hard those that indiscriminately cut down “heritage” trees or “trees of significance’ that the owner considers a “nuisance” or those who clear cut properties to make the building process more simple to undertake. I believe that is achieved via the City’s power to withhold the issuance of a tree permit.

    The proposed private tree by law under Part 8 Offence 8.3 provides a range of penalties for an “offence”. “Offence” is not a defined term. So if one was to cut down four trees; is that one offence or four offences?

    As to the size of any fine contemplated by the proposed private tree bylaw I assume the amount of a fine imposed would fall within the range set by the bylaw but would be determined by a court taking into account the specific circumstances. I also assume the fine would be in addition to the compensation tree replacement/cash in lieu provisions of the bylaw. In my view the size of the proposed fines will in no way deter developers from clear cutting, as infamously happened at the property on New Street where over 30 trees were cut down. If that incident on New Street is a single “offence” a maximum fine of $100,000 might be imposed. That is no deterrent. Nor will they deter someone who wishes to take down a nuisance tree.

    I suggest it would be better to set fixed amount penalties that are reflective of the damage done and do not leave discretion to a court. I suggest for example a scale as set out below:-

    1 tree @ $500
    2 to 4 trees @ $1,000 per tree
    5 to 9 trees @ 10,000 per tree
    10 trees or more @ $20,000 per tree

    At the present suggested levels the combination of permit fees and replacement/cash in lieu costs will surely be seen as a cash grab by the City, and consequently public support will be lost. I would suggest the vast majority of residents, though I have nothing to substantiate this comment, would support a very small additional item to be included in the make up of the City’s property tax so as to fund a substantial tree planting program. Additionally, subdivision developers should be required to plant substantially more trees than the are presently required to do.

    In my view the proposed private tree bylaw should not be looked at in the light of what it will do to enhance the tree canopy. It’s purpose is solely to protect the canopy as it presently exists and to deter people from ravaging it.

    Whilst Council voted to move forward with implementation of the proposed bylaw my understanding is Council is going to take another look at the size of the permit fees, cash in lieu, and fines.

  • Elan

    I applaud the Council for showing the courage to join the majority of regional municipalities in choosing to enact this by-law, which has been held back for the last nine years by previous development-friendly Councils. Recently seeing the massive stump of a previously healthy 85 year old tree taken down in Shore Acres to make room for the latest monster home should suggest there is a need to enforce some sober second thought among developers, and, yes, residents. It is interesting that the most dissenting Councillor on this issue, to an embarassing degree in my opinion, Mr. Sharman, is a Councillor who received almost 70% of his campaign donations from developers:

    Robert Molinaro Molinaro Group $1,000
    Michael Paletta Penta Properties $1,200
    Angelo Paletta Penta Properties $1,200
    Joseph Giacomodonato New Horizon Development $1,200
    Katrick Gantra Sealink Properties LTD $1,200
    Mian Liaquat LJM Developments $1,000
    Jeff Paikin New Horizon Development $1,200
    Michael Shih EMSHIH Developments $1,200
    Steve Stipsis Branthaven Homes $1,200
    John Krpan Krpan Group $ 600
    Domenic Fuda TriAxix Group $ 500
    Panev Pandya Fengate Asset Management $ 250

    Total: $11,750

    No law against it, but it is important to know what master’s these Councillor’s serve, as they argue over these very transformative issues.

    Sharman, based on his stances, reflects a remnant of the previous Council that rejected all stop signs on developers, and contributed to accelerate this declining Tree Canopy mess in the first place.

    No wonder he hates the tree by-law. So do his donars.

  • Steve G

    So stupid. Again the vocal majority asserts itself. No common sense in council as who wants to go against what is “politically correct.” The absurd rules the day, and council. Thought the last election would fix these things to a greater extent.
    Not at all going to make a change to climate. Probably our lawns d more than appreciated. Maybe ban the artificial grass?

  • Paul C

    Burlington’s urban forest includes extensive wooded natural areas, as well as hundreds of thousands of trees along roads, and in parks, yards and other open spaces. Current analysis estimates an average canopy cover of approximately 23%, comprised of 17% in the urban area and 28% in the rural area.
    If this town (or Region) is serious about increasing this Canopy growth to roughly 40% then they would set out a media campaign, each and every spring, for citizens to purchase and plant new trees on their property.
    To meet this challenge the town should provide the limited time offer each year to purchase new trees directly from the Region, “AT COST” (by pre-order only) to each and every citizen of this town (and/or Region). (If they have this program already than they do not promote it very well)
    Other smaller towns across Ontario have this program each and every year and they are always sold out and highly successful.
    Over time this would bring the town (or Region) canopy growth factor up in a “POSITIVE” and encouraging way, instead of negatively imposing sanctions and bylaws for cutting old ones down (which probably need to come down anyway due to trunk split, rotted wood, or insect infestation).
    Love to plant new trees. Just cannot afford them!! Sell them to me at cost, promote the hell out of the program, and then maybe you won’t have to worry about seeing the forest for all the trees that are newly planted!!

  • James

    This ridiculous by-law will “fix” our tree canopy just about as effectively as rainbow painted walkways will “fix” homophobia. We seem to find ourselves living in a politically correct knee jerk reaction world taking action unnecessarily and without sufficient forethought just to say we did, while actually accomplishing nothing at all, yet patting each other on the back nonetheless. I predict a sale on chainsaws at your local hardware store tomorrow and a busy weekend for those holding on to the illusion of property rights.

    • Phillip Wooster

      Speaking of “politically correct”, your evaluation of City Hall is no more apparent than in the latest drivel (propaganda actually) that arrived in my mailbox in a flyer entitled, “2018-2022 Burlington’s Plan” which oozes all the trendy buzz-words so typical of self-aggrandizing politicians who like to talk a good game–“strategic directions, vision, prioritize, focus, proactive, priorities, initiatives, transformation, integrated, responsive, collaborative, living document, engagement”. We better be careful, Big Sister is Watching.

      BTW, the flyer is now going directly into recycling.

  • Gary Scobie

    As the steward to my backyard “woods” for nearly 40 years, I’ll gladly submit to the Private Tree Bylaw, even though it may cost more than my own stewardship. I applaud City Council for taking this small but important step in maintaining and enhancing out tree canopy.

  • Penny Hersh

    Anyone who attended the meeting when the Tree-By-Law came up for discussion, came away knowing that this proposed by-law plays a very small part in saving the Tree Canopy in Burlington. If staff and council don’t take the advice that tree planting and proper management of trees is essential for a healthy city then they just were not paying attention.

    This by-law is a band-aid answer to a much more difficult problem – climate control.

    I would like to see Council designate funds for major tree planting and culling of old and diseased trees, as was suggested by some who delegated against this by-law.

  • Phillip Wooster

    “Not draconian enforcers”–a total misrepresentation. My experience with the Forestry department is that their operating motto is, “our way or the highway”. Compromise is certainly not in their lexicon.

  • Hans Jacobs

    I support any by-law that will increase Burlington’s tree and shrub assets. A tree conservation by-law should cover all of Burlington, including Hydro corridors. Several years ago, Hydro One destroyed all of the trees and shrubs in its corridors, including many that were not in any way a threat to the integrity of the transmission system and others that could have been managed easily with pruning. This was a huge loss that must not be repeated.

    The Winter edition of Burlington’s “City Talk” includes a “performance target” of “Achieve a 2:1 tree removal to tree replacement ratio by 2022”. That is the exact opposite of what is required.

    • Phillip Wooster

      Hans, this bylaw is a solution in search of a problem–it will do NOTHING to increase the total number of trees on private property. Currently, I have seen no data that suggests homeowners cutting trees on their property is a major problem; in fact, the City has violated the trial in Roseland which was to run to 2021–I wonder why???????? My experience in living in Burlington for over 40 years is quite the opposite–most homeowners value the trees on their property and only remove or replace them when there is a good reason for doing so. And this bylaw won’t deter them despite creating a bureaucratic boondoggle that will cost $$$$ for the taxpayer. Here’s how I can see homeowners reacting—1. local hardware stores will be selling more chainsaws 2. trees that might become a problem will get cut down early before they fall under the bylaw 3. trees will not get planted if homeowners foresee a possible problem and 4. large trees will die and need to be removed (I personally prefer a large bag of fertilizer piled around the base although treatment with gasoline also works wonders)

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