Legal Review of Your Tree Ordinance

After much hard work from your working group, your tree ordinance draft may look perfect to you.  But unless you have involved your community’s attorney in reviewing that draft, you may be missing some of the important elements of a clear, concise tree ordinance.  You need a tree ordinance that is not only effective in achieving your goals, but also uses language that reduces the chance of a legal challenge arising from its implementation.


In the Georgia Forestry Commission’s Tree Ordinance Development Guidebook, it is suggested that you include your community’s attorney in your tree ordinance working group, and involve the attorney early in the draft review process.  You need to leave enough time for several rounds of attorney review, after input is provided and you revise your draft.  This can take several weeks, and up to several months, depending on the work load of all involved.


The attorney will look for and provide input on many aspects of tree regulation, including the following:

  • Legal standing for the regulations that are proposed.
  • Consistency and clarity in language.
  • Terminology that is defined, and clearly defined.
  • Terms that are defined but are not used in the tree ordinance.
  • Duplication of regulations in the tree ordinance, or between the tree ordinance and other parts of the community’s code.
  • Conflicts with other code sections.
  • A well-defined purpose and intent.
  • Well-defined criteria for compliance and enforcement.

EXAMPLES

  • Your draft may refer to a site plan, and later a site map.  Are these the same?  If they are, you should use the same term in all instances.  If they are different, you may want to change the term “site map” to “property map” or other more unique term.  Then, make sure you define each of these terms in your definitions section.
  • Your draft may include a definition of specimen tree in the definitions section, and duplicate the description of a specimen tree in a section on protected trees, specimen trees, or tree protection in another section of the ordinance.  Because you provided a complete definition of specimen tree in the definitions section, it does not need to be redefined.  Those using the tree ordinance can easily reference the definitions to refresh themselves on what constitutes a specimen tree.
  • If your draft refers to wooded areas in one part of the tree ordinance and forested areas in another part of the tree ordinance, the reader would likely think these are two different types of areas if they are not both defined, or if neither is defined.  Decide on a single term for these types of areas, and define and use that term exclusively in the draft.
  • When describing inspections, your tree ordinance draft may say that the administrator, or his/her agent, will make inspections at specific times in the development process, or may make random inspections.  What are they inspecting for?  You should include a purpose for those inspections, which could simply be “to monitor compliance with all tree ordinance regulations”.  It could also be more specific, such as “an inspection shall be made after the issuance of the land disturbance activity permit and before any land disturbance activity begins to inspect and approve tree protection measures and ensure compliance with all tree protection regulations.”
  • Your tree ordinance draft may address the types of trees that can be planted in buffers, and how they should be planted, but does not need to duplicate the requirement for buffers if that is included elsewhere in your zoning code.

ADOPTION

After your ordinance has had final working group and attorney review, input, consensus and revision, the final draft of the tree ordinance will have a solid foundation and be ready for presentation to the mayor and city council (or commission chairman and county commission) for formal adoption.


Posted January 2018

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