RD281 - A Study of Tree Conservation and Preservation in Development – October 1, 2021

Executive Summary:

During the 2020-2021 Virginia General Assembly (GA) session, the GA reviewed two different pieces of legislation and a budget proposal related to the preservation of trees and tree canopy during the land development process. The two bills are HB 2042 and SB 1393 and budget proposal HB 1800 Item 107 #1c. A consensus path forward for these activities could not be reached during the previous years’ GA session. A legislative study was subsequently requested and passed by the GA with the intent that key stakeholders would be convened to evaluate the Commonwealth’s “existing enabling statutes and their use related to the preservation, planting, and replacement of trees during the land development process, including § 15.2-961 and § 15.2-961.1…", and “…recommend" and try to achieve consensus “on amendments to those statutes or the adoption of new Code sections that would enhance the preservation, planting, and replacement of trees during the land development process and increase incentives for the preservation, planting, and replacement of trees during the land development process."

A Tree Conservation Workgroup was established with 43 participants representing six key stakeholder sectors, who in their first meeting identified key issues and concerns for their sectors. Also, with facilitation by the University of Virginia’s Institute for Engagement & Negotiation (IEN), each sector of the Tree Conservation Workgroup identified two representatives who would participate in a smaller Collaborative Decision Group (CDG) that would use a consensus-based process to develop specific recommendations within the established time frame. Through two consensus-building surveys, two in-person meetings, and drafting teams of two for each topic, the CDG members developed specific proposals for eight core topics. During this process, CDG members consulted stakeholder members of their sector groups and continued to address the questions and interests of other CDG members. The eight topics include: cluster development; requirements for tree canopy cover; tree preservation; tree banking; natural resources (forest and trees) inventory prior to development; penalties, local capacity for urban forestry; and trees as best management practices.

Significantly, none of the CDG member proposals were identified as non-starters or too difficult for consensus to be achieved. For all proposals where consensus could not be achieved in the time given, the CDG agreed to continue discussions to strive for addressing each other’s concerns in a way that consensus recommendations could be achieved, and with the hope of developing consensus recommendations in time for submission to the 2022 General Assembly.

Through an intensive process, including work between meetings, the CDG adopted seven consensus recommendations covering five of the final six topics (which had been whittled down from the original eight topics). Additional recommendations were discussed but time constraints in the schedule and consensus building process did not allow for the research and discussion time that would have been needed for the CDG to achieve consensus; these are identified in the report as topics for continuing discussion. Below is the overview of consensus recommendations as well as those where discussion will be continued.

Consensus Recommendations and Areas for Continued Discussion

1. Natural Resources Assessment: Allow credits for natural resources inventory (stand assessment) prior to development.

2. Tree Banking: Explore allowing localities across the Commonwealth to use tree banking as a method of mitigation for development that is unable to achieve the locality’s required tree preservation and canopy goals. Tree mitigation plantings should be allowed to be conducted by nonprofits, and be allowed on private property as well as public property.

3. Building Capacity: Consider creating a 10-year statewide urban and community forest management plan through the VDOF with tree canopy goals.

4. Building Capacity: Consider developing an urban and community forest management framework that provides Best Management Practices and local program guidelines.

5. Building Capacity: Assess and develop adequate funding, staffing, and technical resources for urban and community forestry.

6. Penalties: No change in Virginia Code is recommended, as Virginia Code already provides that pursuant to § 10.1-1127.1 penalties for violations of ordinances adopted shall be the same as those applicable to violations of the locality’s zoning ordinances.

7. Cluster Development: The current Cluster Development mandate should be retained, as well as expanded as an optional tool to a broader category of counties and cities, but not indiscriminately especially in areas zoned for agriculture.

8. Cluster Development (continuing discussion): The current cluster development statute should be amended to allow for the clustering of multifamily, mixed-use, and commercial developments.

9. Cluster Development (continuing discussion): Clarify current locality authorities to eliminate misunderstandings and articulate how localities are enabled to require identification of sensitive spaces and critical resources to protect them from impacts of cluster development.

10. Tree Canopy (continuing discussion): The framework outlined further below will serve as the basis for continuing stakeholder discussions, that will also include representatives of housing justice and consulting arborists.