Tedmund J. Swiecki and Elizabeth Bernhardt
Phytosphere Research, Vacaville, CA
The many benefits that oaks and oak woodlands provide to communities are well-known. They reduce air and noise pollution, provide shade and cooling, furnish habitat for wildlife, stabilize soils and protect against erosion, enhance aesthetics and property values, and are an important contributor to community image and quality of life. It is therefore in the best interest of the local government to protect and enhance these natural resources to promote the health, safety and general welfare of its citizens.
If a local government's objective is to protect and enhance its oak resources, well- planned, careful resource management is necessary. Tree ordinances can provide the legal framework for the management of oak resources by enabling and authorizing management activities. The management of oaks on both public and private properties can be influenced by a tree ordinance.
To avoid the second potential pitfall, policy makers must recognize that their primary goal should be management, not regulation. In many cases, regulation has been the "tail that wags the dog", and management has only been considered as an afterthought. Experience has shown that local tree ordinances are often developed in response to public outcry over specific perceived problems. This "band-aid" approach often leads to ordinances that are not consistent with sound management practices, and which can actually thwart good management. For example, public pressure has led to the development of ordinances designed to protect old "heritage" oaks in many communities. However, most of these same ordinances permit the routine destruction of younger trees. The end result may be an unsustainable woodland, short on young trees and long on old, declining trees. By focusing too narrowly on individual trees, such ordinances can result in the degradation of the entire oak woodland resource.
A better alternative is to focus on the development of a comprehensive resource management plan that addresses the needs and desires of the county's residents to conserve their oak woodlands and other significant resources. The county should then pursue those actions which are necessary to implement its management strategy. The tree ordinance is simply one tool that may be used in the implementation of a comprehensive resource management program for oak woodlands. By following this approach, the local government can develop an ordinance that is uniquely suited to its own particular needs and constraints.
Most of the shortcomings attributed to oak ordinances can usually be traced to the lack of a clearly thought-out management strategy. Poor planning leads to poor ordinances, and even the best-written ordinance is unlikely to be successful in the absence of an overall management plan.
In addition to private land management practices, the impacts of land use planning and other local government regulations on oak resources should be considered. General Plans, development guidelines, fire codes, and other regulations may have profound and possibly unintentional impacts on oak resources. Before attempting to alter oak woodland management, local governments should thoroughly evaluate the consequences of their current and past actions.
It is absolutely critical that local citizens become involved in the process at this point. Like it or not, most tree ordinances rely heavily on voluntary compliance by the public. Such compliance is only likely to be achieved if county residents support the goals which have been set. Management goals reached with public input are more likely to reflect community values and will enjoy greater support. Public participation in the goal-setting process also serves an educational function, providing an opportunity for citizens see how oak management affects them.
Goals are the tangible ends that the management strategy seeks to achieve. It is therefore important to set goals which are quantifiable in some way, so that progress toward the goals can be monitored. If very general and diffuse goals are set, it may not be possible to measured progress toward these goals in any meaningful way. Some specific goals for oak woodland management might include:
Cities and counties have a variety of tools at their disposal to develop a strategy that promotes conservation and good management of their oak resources. Land use planning instruments, including the General Plan and Specific Area Plans, can be used to direct development away from the most sensitive areas, and establish a framework for resource protection during development. Within the planning process, local governments can require or encourage dedication of oak woodlands as public open space as a condition of approval or in exchange for higher density or other bonuses. Other planning tools such as the transfer of development rights (TDR) and cluster zoning can be used to minimize the intrusion of development into oak woodlands. The local government can trigger the review and mitigation requirements of the California Environmental Quality Act (CEQA) when a project will have a significant impact on sensitive and important natural resources including oak woodlands. Public education, assistance, and incentive programs can be implemented to encourage good stewardship of oak resources on private lands. Finally, ordinances may be used to authorize various management activities or prohibit especially destructive practices.
Feasibility, practicality, legality, and economics should be considered in selecting the appropriate management tools. For some goals, several management options may be available, whereas others may require the use of a specific tool or several tools in combination. The methods to be used to attain various goals are integrated into a functional action plan.
Citizen involvement and support continues to be important in this phase of the process. Management approaches and tools that are unacceptable to county residents are unlikely to succeed. If a local government intends to push for more progressive oak management than the citizens are prepared for, it should choose tools that will build citizen awareness and support, including educational and incentive programs.
Because a number of steps are usually involved in implementing the management strategy, it is useful to map out an implementation schedule. This time/action schedule should show the sequence of steps that are involved and the time frame they should be completed within. Progress checks should be built into the schedule to ensure that delays or problems are detected and dealt with. These progress checks could be in the form of required progress reports to the County Board of Supervisors or City Council. It is important to keep a high profile for the management program during implementation to foster public interest and maintain the commitment of the local government. If interest and support dissipate before the plan is implemented, the efforts spent to get to this point may be for naught.
Evaluation requires that oak resources and management practices are reassessed. If evaluation shows a lack of progress toward goals or a deterioration the oak resource, a change in management plan may be required. In turn, these changes will need to be monitored and evaluated. The evaluation and revision step allows the management planning process to cycle repeatedly, so that the management plan can evolve to keep pace with changes in the oak resource.
Despite the variability in form, content, and complexity that exists between tree ordinances, effective ordinances generally share the following basic features. The first two features common to effective ordinances reflect the background in which the ordinance is developed, whereas the remaining five features are key elements of the ordinance itself. Although consideration of these features does not guarantee that an ordinance will be effective, ordinances lacking one or more of these features will definitely be handicapped.
In jurisdictions where citizens strongly support the protection and enhancement of oak resources, highly restrictive ordinances can be effective. However, passing a highly restrictive ordinance in a nonsupportive county would not only be politically difficult, but may be counterproductive. In at least one location, local citizens attempted to thwart an oak protection ordinance by cutting down trees before they reached the size where ordinance restrictions came into play.
Whenever responsibility is assigned, authority must also be granted. It does little good to assign enforcement responsibility to a position that is not empowered to issue citations. Likewise, a person with responsibility to develop educational programs will not go very far without the authority to approve the expenditures for these programs. If the responsibility to conduct various activities exceeds the authority necessary to make them happen, those charged with implementation are likely to become frustrated, and the ordinance is unlikely to fulfill its goals.
It is in this area that many current ordinance provisions are deficient. Very few oak ordinances set basic performance standards that define limits for the depletion or destruction of oak woodlands. For instance, many oak ordinances require an extensive permitting process before oaks can be removed, but few ordinances set a standard for the maximum amount of canopy that can be removed overall. If basic performance standards are not set, it is possible that all individual actions taken will conform with the ordinance, but that the overall goals of the ordinance are never achieved.
Unfortunately, many ordinances tend to take a "cookbook" approach toward oak resource management. Instead of setting basic performance standards, ordinances have often focused on detailed implementation standards. For example, some ordinances specify the size of planting stock to be used in replacement plantings. This decision should be based on plant and site characteristics, and would best be left up to a qualified professional who has reviewed the relevant information. Rather than locking in a specific type of planting material, the ordinance could require that a replacement value be established. The city or county oak specialist would then have the flexibility to decide how to best apply these funds to restock the targeted location.
Implementation standards are subject to change. As new information becomes available, old methods and materials fall out of favor. An ordinance with sufficient flexibility will not become outdated as knowledge and technology change. By leaving the formulation of detailed standards up to qualified specialists, the ordinance can ensure that its oak management practices are kept up to date and are appropriate to each particular site.
Before specifying enforcement methods, ordinance writers would do well to ensure that ordinance provisions are indeed enforceable. Based on common sense alone, one could probably conclude that a provision requiring a permit to cut oaks more than two inches in diameter cannot be enforced on large privately-held properties. However, it might be possible to enforce an even more stringent provision if it applied to oaks in patrolled public lands.
Unfortunately, the tree protection type of ordinance is rather poorly suited to the conservation of oak woodlands for several reasons:
In most cases, protection of oak woodlands would be better served by a woodland protection ordinance. Such an ordinance is concerned with functional oak woodlands, rather than individual oaks. Very few good examples of this type of ordinance are currently in use in California. At minimum, conservation of oak woodlands requires that:
The ordinance should set performance standards to limit the amount of woodland removal or disturbance that will be allowed. Standards for oak retention and reforestation will vary with the types of woodlands involved, but standards could be expressed in terms of percent canopy cover and/or stocking rates (trees per unit area). It is obvious that development of any kind will generally result in more canopy loss in areas with high levels of canopy cover than in areas with low levels of canopy cover. Therefore, it may be desirable to establish different standards for canopy retention based on the baseline level of canopy. An example of a provisions that uses such a system follows:
Canopy retention standard shall be the greater of Column A or Column B:
|Baseline canopy cover||Column A||Column B|
|80-100%||.75 x baseline canopy cover||65% canopy cover|
|60-79%||.80 x baseline canopy cover||51% canopy cover|
|40-59%||.85 x baseline canopy cover||36% canopy cover|
|20-39%||.90 x baseline canopy cover||19% canopy cover|
|19% or less||1.0 x baseline canopy cover||--|
Example: For 50% baseline canopy, the minimum allowable canopy after development would be the greater of Column A, (.85 x 50% = 42.5% canopy) or Column B, (36% canopy). In this case the minimum allowable canopy after development would be 42.5%.
Retention standards shall be applied to retain stands of trees and undisturbed woodlands in priority over individual specimen trees which will be incorporated into the development. No more than 10% of the canopy retention standard may be met by individual trees not included within designated woodlands.
In this example, two standards are used to provide a smooth transition between the required retention levels. For example, the top canopy class (80-100% canopy) allows for 75% retention of existing canopy, the second canopy class (60-79% canopy) has a slightly higher retention standard of 80%. With these ranges, a potential problem arises when the low end of one canopy class is compared to the high end of the adjacent class. The retention standard according to Column A for 80% canopy is 60% residual canopy (.75 x 80%), but the standard for 79% canopy (the next lower class) would be 63% residual canopy (.8 x 79%). When Column B is used, this reversal doesn't occur and the percent residual canopy steps down as you drop in canopy between classes (80% baseline = 65% residual, 79% baseline = 63% residual). Oak specialists and other resource professionals should be consulted to help establish meaningful and appropriate standards for a given area.
Establishing the resource baseline is a potential source of problems for virtually all resource conservation ordinances. As noted earlier, unscrupulous individuals may destroy or alter much of the resource prior to development in an attempt to avoid the ordinance requirements that are invoked when development occurs. To prevent this practice, the provision should provide a strong disincentive for such resource destruction.
To encourage good resource stewardship prior to development, historical aerial photos could be used to establish the resource baseline. This baseline would be used to set both retention and reforestation standards. Parcels showing an increase in tree cover beyond the baseline could be allowed greater flexibility when developed. Parcels showing a loss in tree cover could be required to reforest up to acceptable levels before development could occur. Property owners would protect their future options best by maintaining or increasing tree cover on their lands prior to development. The following provisions provide examples for setting the resource baseline and reforestation standards:
B. Parcels that currently support or historically supported native trees or other woody vegetation but were farmed to agricultural crops at the time of the aforementioned baseline aerial photography.
Reforestation standards. In situations where tree removal, clearing, fire, or any other intentional or accidental canopy reduction has resulted in canopy levels below the baseline level, the standard for reforestation shall be set at 100% of baseline levels, except that no reforestation standard shall exceed 85% nor be less than 15% canopy cover.
All reforestation required as a condition of approval must be initiated at least one year before any permit for clearing, grading, or construction is issued. The approving authority, at its sole discretion, may withhold the issuance of any or all permits for longer periods to ensure that an adequate level of reforestation is attained prior to the start of project construction.
Whenever development occurs around sensitive natural resources such as oak woodlands, the primary goal should be to avoid adverse impacts through a sensitive development plan. To promote woodland conservation, the plan should strive to maintain groups of trees in contiguous areas that function as a cohesive habitat. Development patterns that cluster development on a portion of the overall project area and leave wooded areas as dedicated open space provide one means for maintaining functional woodlands.
Compensatory mitigation should only be considered after all reasonable efforts have been made to minimize loss. Reforestation on- or off-site is one form of compensation, but a newly-planted woodland does not provide the habitat value of a mature stand. While reforestation should be promoted for long-term resource conservation, suitable mitigation of short-term impacts can best be obtained by requiring that equivalent quantities of developable land be reserved from development. Such woodland reserves should remain undeveloped at least until reforested areas attain the habitat value of woodlands which were lost. It may be desirable to target certain areas for acquisition as permanent forest/woodland reserves through this system.
The woodland protection ordinance could encourage the use of such techniques by requiring that a woodland conservation plan be approved as a condition for development. An example of such a provision is shown below:
The WCP shall provide that a project meets the Retention and Reforestation Standards of this provision through any or a combination of the following or other methods.
2. Clustering of development on a portion of the project area to retain continuous stands of trees in the nondeveloped portion. Transfers of development density from nondeveloped portions of the project area may be allowed only if nondeveloped portions meet other criteria for developable land.
3. Providing for reforestation of equivalent sites within or outside of the project area that will not be subject to future development. Where reforestation is used to replace existing woodlands removed for development, estimated canopy cover 20 years after planting shall be used to calculate the equivalent of canopy cover provided.
4. Providing for the acquisition of developable lands with equivalent woodland resources outside of the project area for public open space. Total area, canopy cover, woodland type, and habitat value shall be considered in determining whether off-site resources are equivalent to those of the project site.
An ordinance is not a panacea for poor or inadequate management of oak resources. Properly applied, an ordinance can facilitate good management. Improperly applied, ordinances can legitimize counterproductive practices, provide disincentives for oak conservation, and undermine the long-term sustainability local oak woodlands. By focusing on overall management of local oak resources, local governments can determine whether an ordinance is necessary, and what its role should be. By following the process outlined here, jurisdictions can develop ordinances that are uniquely suited to meet their specific needs. Finally, by providing for regular evaluation and revision, the local government can ensure that management plans and processes are modified and updated as needed to meet changing needs.
Much of the material in this paper is based on Guidelines for Developing and Evaluating Tree Ordinances (1991), which was prepared for the Urban Forestry Program of the California Department of Forestry and Fire Protection. A complete treatment of tree ordiances is available at the Guidelines for Developing and Evaluating Tree Ordinances web site. Material from this article was also incorporated into A Planner's Guide for Oak Woodlands (1993), which is available from the University of California Integrated Hardwood Range Management Program.