Woodland Protection Ordinance

In our staff meeting and subsequent discussions, Pat Glenn suggested another approach to woodland protection which would eliminate nonconformance as a concern, eliminate the creation of a map and overlay district, eliminate the need to determine existing non-conforming properties and possibly provide for greater clarity in administration.

The approach follows the strategy adopted by the Watershed Development Ordinance where the emphasis is on regulating against increases in impervious area above the existing impervious areas.

In the woodland context, simply stated, no property owner, after the date of the ordinance, would be permitted to reduce existing woodland areas on his or her property by more than thirty percent (30%).

The issue of removing trees already requires a permit and would provide in most instances an early warning of woodland being eliminated.

The great majority of compliance issues would occur when new construction is proposed, site plans are being prepared and inspections by the village forester are already scheduled. The village forester can determine the amount of existing woodlands based on a field inspection (no more indeterminate than the determinations of wetlands that we make routinely) and review the proposed plans to verify that the ordinance is being followed.

Take the following three (3) examples, the first two assuming a 45,000 square foot lot and the third assuming an 80,000 square foot lot:

Example 1. Never been built on lot - This is the most restrictive case because if the lot is 100% covered in woodland, the removal of woodland is limited to 30% of the lot. On a 45,000 square foot lot, this would leave 13,500 square feet for buildings, lawn and driveways. This restriction is similar to the proposed ordinance under discussion that would limit “covered area” to 30%.

Example 2. Small house about to be torn down - If the house is 2,400 square feet and roughly 20% of the lot is planted with grass, that would mean 11,400 square feet is existing non-woodland. With respect to the remaining 33,600 square feet, the ordinance would say no more than 30% of that woodland area can be converted to non-woodland. The ordinance would allow a maximum of 11,400 (previous non-woodland area) plus 10,400 (30% of newly created non-woodland area) for a total of 21,400 square feet of non-woodland area. This is more generous than Example 1 because the total covered area (21,400/45,000) = 47.7%.

Example 3. Addition To Home When Large Areas Have Previously Been Converted to Non-Woodland - In this case, say that 60,000 square feet of 80,000 square feet is already non-woodland. The ordinance would state that no more than 30% of the remaining 20,000 square feet of woodland area could be converted.

What would this type of ordinance accomplish? It targets an ultimate goal – that the Village of Riverwoods should not lose more than 30% of the existing woodland areas – in the aggregate when viewed over the entire eco-system. If the ordinance were followed rigorously and over time all property owners with woodland areas availed themselves of the maximum conversion possible under the ordinance, then at the end of that process the Village would have only 70% as much woodlands as it has today. Whether it is desirable for woodland conversion to proceed at a slower or faster pace (according to the different views of residents), it is helpful at least to imagine the desired-for end result.

Is there unequal or unfair treatment? The solution to this issue that troubled many trustees is possibly answered by the new proposal in this fashion: the ordinance looks forward only and applies the same maximum percentage reduction to every lot uniformly throughout the village. The house in Example 1 has a different starting point than the house in Example 3, but the rule going forward is the same. Rules that look forward at that snapshot in time usually find that properties are differently situated. But, it would be impossible to frame any zoning amendment that did not affect existing properties differently. The point here is that no properties would be deemed nonconforming. Properties that have more existing woodland areas are precisely those that have more woodland areas to preserve. If the maximum conversion figure should be 40%, then the fully vacant lot can be developed more intensely, but at the end of the process, the goal is then to preserve only 60% of the Village’s existing woodland areas.

It may be possible to consider some sort of mitigation fee, but it may be difficult to ensure that the funds would be used to re-introduce woodlands elsewhere in the village.

In thinking about some of Trustee Masterson’s questions, one issue that has come up is why the Tree Preservation Ordinance alone cannot protect woodlands. The answer from Chuck Stewart is that all that is required is the replacement of trees and the mitigation being offered by typical new development is not woodland restoration but simply tree planting. Only part of the woodland eco-system is being maintained and therefore the woodlands as a whole are still lost.

With respect to whether woodland areas are merely an aesthetic choice, I think that we should maybe try to have more expert testimony on the subject. The Department of Natural Resources and other experts can perhaps shed light on whether the woodland areas confer benefits that are substantive and should be weighed in the equation against property rights. Also, experts from the Stormwater Management Commission could be involved to discuss impact on drainage and storm water runoff.