Rules made solely as a matter of administrative action may not survive challenges in court. Rules adopted by the city council or board fare better.
An enforceable ordinance is one that stands up in court when/if challenged. It must:
- Be reinforced by explicit purpose statements that establish the community’s dependence on trees and mutual responsibility of all parties to protect and preserve them.
- Be complete and detailed about what constitutes a special tree
- Define as specifically as possible to whom the ordinance applies (not just public vs private, but which private owners)
- Designate exceptions (e.g., DDH, invasives, noxious trees)
- Include clear and specific standards applied to different types of owners, and to specific categories of trees
- Set clear conditions for appeals. Many communities require that permitting decisions can be overturned only when it’s based on “misstatements of material facts, or erroneous application of provisions” of the ordinance.
- Ensure other plans and policy documents reflect importance of tree protection and preservation
- Assign high priority to tree protection and preservation when different city policies may conflict (e.g., affordable housing, solar, etc.) If possible, the ordinance should favor tree protection and preservation.
You must describe a clear and feasible process for enforcing the ordinance and accomplishing its goals. Laws can’t be enforced unless the “who’s” and “how’s” are embedded in municipal code. Plans and policy documents (e.g., landscape manuals) may not be considered legally binding.
- Specify which agency and/or staff person is responsible for enforcement, and the process by which enforcement will take place.
- Describe an appeal process and designate responsible bodies to hear and decide appeals. Explain how appeals will be adjudicated and what grounds might lead to approval or disapproval of the appeal.
- Make applicants aware of requirements before the fact – ideally through education on an ongoing basis
- Consider registration, licensing and/or required training for tree care companies and staff that explain the city’s rules and regulations. Some cities require companies to be registered before working on public/private property. Frequent violators may be expunged from the list.
- Ensure city arborists are involved in any permitting or plan review as early as possible for both public and private projects. Several cities require arborists to approve landscaping after construction, or certificates of occupancy may be withheld.
- Consider whether and how public can be notified of proposed removals, (e.g., posting) and provide an opportunity for appeals by aggrieved residents or business owners.
Assure adequate staff and budget for enforcement. Even the tightest rules won’t work when enforcement is spotty, or worse, nonexistent.