TA19-03 Staff Summary PBTA19-03 Staff Summary PB 10.3.2019 Page 1 of 3
STAFF SUMMARY OF TA19-03
TEXT AMENDMENT APPLICATION
APPLICATION SUMMARY
Case Number: TA19-03
Request:
To amend the Zoning Ordinance regulations related to the protection of trees.
Applicant: Subject Ordinance:
New Hanover County Zoning Ordinance
Subject Article(s) and Section(s):
· Article II: Definitions, Section 23
· Article VI: Supplementary District Regulations, Section 62 Landscaping
BACKGROUND
At their September 16th meeting, the Board of Commissioners directed staff to bring forward
amendments to the Zoning Ordinance to protect large Live Oak trees. The proposed code changes
would:
a) define specimen trees and prohibit their removal,
b) clarify that existing exemptions also apply to specimen tree removal,
c) clarify the variance process for specimen tree removal,
d) provide staff flexibility to adjust site development requirements to accommodate saving large
trees (similar to the process utilized by the City of Wilmington), and
e) modify the fee schedule for mitigation and add penalties relating to specimen tree removal
without a permit
The Board of Commissioners also directed staff to address additional regulations to protect trees
as part of the ongoing Unified Development Ordinance process.
Staff Analysis
The proposed code changes will affect two sections of the Zoning Ordinance; 1) Definitions and 2)
Landscaping.
Section 23: Definitions
a) Define “specimen tree” as “any Live Oak tree that is 36” diameter at breast height (DBH) or
larger.”
b) Define “DBH” as “the diameter or width of the main stem of a tree as measured 4.5 feet above
the natural grade at its base. Whenever a branch, limb, defect, or abnormal swelling of the
trunk occurs at this height, the diameter at breast height (DBH) shall be measured at the nearest
point above or below 4.5 feet at which a normal diameter occurs.”
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These definitions could be modified to include additional tree species and sizes as part of the
ongoing Unified Development Ordinance project, but this amendment will only address Live Oak
trees.
Section 62: Landscaping
a) Prohibit removal of specimen trees: The proposed amendment will include language that
prohibits the removal of specimen trees (large Live Oak trees defined above).
b) Exemptions: The proposed amendment clarifies that existing exemptions allowing removal of
trees will also apply to specimen trees. These exemptions include provisions for trees that are
endangering the public health, safety, or welfare; causing a disruption of public services;
diseased or damaged; within utility areas or easements; negatively affecting airport
operations; associated with any Bona-Fide Farming activity; or located on a single-family lot.
c) Variance process: The proposed amendment will also include language clarifying that
applicants may apply for a variance to remove large Live Oak trees if they meet the relevant
criteria. The variance is not a method to avoid the protection requirements but exists to alleviate
genuine hardships, such as a tree obstructing the site’s only access point from a public right of
way or being located in the center of a small lot where a traditional building could not be built
around the tree.
d) Staff flexibility: The primary purpose of this amendment is to preserve existing trees.
Occasionally, site design standards in the Zoning Ordinance make it more difficult to protect
existing trees. Currently, any deviation from these standards requires the applicant to request
a variance before the Board of Adjustment, which has strict criteria for approval including
findings of hardship, circumstances unique to the site, and others. The strict criteria can
discourage an applicant from making site modifications that would save trees such as shifts in
the driveway, parking areas, or building locations.
The proposed amendment will allow staff flexibility to accommodate saving large trees by
permitting administrative modifications to site dimensional, parking, and landscaping standards
during the development review process. These standards include items such as street yards,
landscape islands, foundation plantings, setbacks, etc. The City of Wilmington has utilized this
flexibility since the early 2000s and their staff has expressed that it has been an effective
approach to saving trees.
e) Mitigation Fees and Penalties for removal of specimen trees without a permit: The specific dollar
amount for the mitigation fee and penalty modifications will be part of a companion fee
schedule change that is not part of the Zoning Ordinance requiring a Planning Board
recommendation. However, the proposed changes to the Zoning Code will remove the
language referencing the fee as “set by the Parks Department” and reference the County fee
schedule. The fee is proposed to be changed to $200 per caliper inch required to be mitigated
from the current $295 per 3” caliper formula. The proposed fee is based on typical pricing for
Live Oak trees including installation as found in a survey of multiple local nurseries. The
proposed changes will also add a penalty for removing a specimen tree without a permit that
is double the mitigation fee.
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STAFF RECOMMENDATION
Staff recommends approval of the requested amendment and suggests the following motion:
I move to recommend APPROVAL of the proposed amendment to New Hanover
County’s Zoning Ordinance. I find it to be CONSISTENT with the purposes and intent of
the Comprehensive Plan because the proposal will provide flexibility in site design to
accommodate business success while protecting large Live Oak trees that are important
to the character of the area. I also find recommending APPROVAL of the proposed
amendment is reasonable and in the public interest because it will encourage
conservation and enhance the unique environment, character, and history of the County.