Whose tree is it? Eminent domain in the Canadian landscape

By Colin Beckingham

Copyright Colin Beckingham 2006

There is a hickory tree racetrack not far from my front door. The chipmunk and the ermine hold high-speed races up and down its trunk. There is nothing friendly about these races; the ermine wants the chipmunk for dinner, and the chipmunk knows that thirty centimetres in the rear of his rear is a set of teeth that wants a piece of him. Hot breath on the backside is jet fuel for the prey; the chipmunk flees for his life, running desperately towards the top of the tree, from trunk to large branch to smaller branch to even smaller branch to twig and leap! into the void between the hickory and the white pine. The ermine is not as comfortable on the smaller twigs and decides not to jump, so the chipmunk, scrabbling successfully to grab the pine needles, escapes, at least this time. If only I could predict when the races were to happen then I could rent the tree to Disney and my hickory would become even more valuable.

Good tree, bad tree

This hickory tree also supports one end of a hammock, gives light shade for summer picnic lunches and provides a few months heating of my house at the end of its life. Along with the white pine, and the accompanying maples, ash, beech, birch and ironwood, it serves to bind the soil against erosion, brings nutrients up from the soil, humidifies the air, and as they lock up carbon in building their structure they contribute to a healthy environment. In addition they provide other goodies such as maple syrup, fresh sap, bean poles, pea sticks and construction materials. The value of the trees grows as they do. Visually the trees are appealing and contribute to the value of a property, a fact recognized from the earliest days of landscape design; this value is appreciated not only by myself but also by my guests, neighbours, and even the passer-by in the road.

Can there be a negative side to trees? Well, yes, there can. Falling branches can interfere with power transmission. Roots can break foundations. Dangerous limbs need to be attended to as the tree ages, and it is no fun to have tree caterpillars fall on the picnic table as you are eating lunch. Now scientists have discovered that trees are giving off methane, a potent greenhouse gas. I thought when I congratulated myself that the trees were breaking wind, little did I think that they were also breaking wind. And the more trees we have and the warmer things get the more serious the greenhouse gas problem becomes. I am contributing, it appears, to global warming by allowing trees to grow on my property.

Whose tree?

Current general consensus is that trees are, on balance, a valuable asset and are worth maintaining for the individual property owner. But what interest do others have in privately owned trees? Until fairly recently we had assumed that there were so many trees nationally or globally that removal of a tree was no more serious than weeding a flowerbed. Vegetation gave way, passively, to urban expansion. Now there is greater sensitivity to local effects.

In rural areas where trees are numerous there are many trees in need of attention, but they are left to manage as best they can, which they do, repairing themselves over time and regaining some dignity. Well-forested municipalities that do not contain large urban areas or extensive prime farmland such as the Township of South Frontenac in Ontario see little immediate need for controls on tree cutting.

But we notice trees much more in the urban context, where there are more eyes to see, and there is the opportunity to see the same tree from different angles. These trees are our immediate neighbours, and we feel an emotional attachment to them even though we don’t own the property on which they sit. We notice their absence or their decline in vigour and attractiveness, and yearn for a greener city. The tree may be privately owned, but some would go further: Ian Bruce, ASCA Certified Consulting Arborist and President of Bruce Tree Expert Company of Toronto suggests "... my perspective after 35 years as a consultant and teacher is this: trees no longer can be considered solely private property because they are part of our global environment and they are part of an environmental solution. And ultimately if individuals don’t respect the need for trees ... then somebody has to take over. Ultimately it will be an international concern."

Public and private interest

Pressure to protect trees has come from a couple of directions. First, there are government agencies that may or may not have the authority to exert influence. This responsibility is most often found at a municipal or city level. And secondly there are non-governmental interest groups that try to influence both government and private decision-making. Examples of these are the Fraser Valley Heritage Tree Society in British Columbia, the Ontario Heritage Tree Alliance and the Ontario Urban Forest Council.

Many local governments, both cities and other municipalities, have long-standing bylaws regulating and protecting trees on municipal land. More recently, with changes to provincial municpal legislation the authority has been extended to protection of trees on private land.

The pressure on trees has nowhere been greater than in Canada’s largest city, Toronto. Richard Ubbens, Registered Professional Forester and Director of Urban Forestry of the City of Toronto notes that the city has a long history of working in cooperation with the Toronto Region Conservation Authority to protect trees and landforms in ravines: "In 1981, the City of Toronto, through the City of Toronto Act put in place ravine protection legislation, and those areas were partially and/or totally private property." From this starting point this legislation has now been extended through the process of municipal amalgamation to cover trees on private land beyond the ravine context to the larger area now covered by the new metropolitan area.

In Ontario, in addition to the City of Toronto, the County of Perth, the Municipality of Powassan, and the City of Kingston have also extended control over trees in one way or another to trees on private land. Toronto now controls all operations related to trees over 30 cm DBH (diameter at breast height) on private property; the County of Perth regulates cutting of all trees with some exemptions; the Municipality of Powassan regulates cutting based on species and size, with a number of exemptions; and Kingston regulates the cutting of trees by developers, with a requirement to submit plans as part of the normal development approval process.

In British Columbia, too, there is legislation allowing municipal control of trees on private land. Here, the approach has been to protect specific trees that have heritage value. In the City of Surrey, B.C. where Greg Ward is Manager of Urban Forestry and Environmental Programs, they use the Fraser Valley Heritage Tree Society list of criteria. As Greg notes: "the evaluation form they use is one I commissioned ... and we modified it for the City of Surrey’s Great Tree Hunt. There is a provision in our bylaw to have a tree declared a Heritage Tree, and only by an Order in Council can this tree be removed."

In other locations such as Halifax, Nova Scotia the provincial Municipal Acts do not allow municipalities to control trees on private property. However, according to John Simmons, Urban Forester for the Halifax Regional Municipality, Nova Scotia, municipal representatives are aware of what has been happening elsewhere and are beginning to wonder if it is time to pressure the provincial authority to change the rules for their jurisdictions too.

Cost recovery and fees

In many cases there is an integral role for the Certified Arborist, who provides a professional report to justify intervention, whether it is pruning or removal. This is then examined and considered for approval by municipal representatives who represent the interests of the larger community. Both property owner and local municipality have incurred costs.

Someone has to bear these costs, and it is fair to ask: "who should pay?" If the intervention is imposed on behalf of the broad community, shall the tree owner be laid with the burden of covering all costs on behalf of his neighbours and himself, or should the cost of the inspection be covered out of general revenues? Or if a compromise is deemed better, how should a municipality divide the costs of administration between fees to individuals and general revenues? The answer is clearly whatever is effective in protecting trees and acceptable politically.

As Gord Burns, Chief Administrative Officer of the Township of South Frontenac notes: "Under the current [Ontario] Municipal Act any fee that is established by a municipality has to be justified in terms of the cost to provide the service...." And given the need for staff and supporting equipment to cover travel and administrative expenses those costs can mount quite quickly.

The County of Perth and the Municipality of Powassan have decided that for the time being there should be no fee to the individual tree owner to encourage compliance. Toronto and Kingston have decided that at least some of the fees should be borne by the individual. In Toronto this will involve private landowners and commercial enterprises, but in Kingston the burden falls on developers only and so becomes another element in the fees associated with developing a residential subdivision.

Viewed as maintenance of a valuable real estate property or as part of the expense of real estate development, fees are generally seen as manageable and part of doing business. In other contexts, fees are not trivial and municipalities and tree professionals are recognizing that there are ways to mitigate fees. Ian Bruce comments: "If the consultant knows the way the system works he can save the homeowner some of the fee by simply emailing pictures to the city, saying this tree is considered hazardous. Provided the contractor is known and they respect their judgement they would allow the operation to go ahead." And Richard Ubbens notes: "People understand more as time goes by that there is room for improvement ... we will be exploring an incentive programme with city council ... rather pay the arborist to write a decent summary than pay the city money."

Other tools to protect the forest

While the tree preservation bylaws have hit the news, this is only one tool among many to enhance the urban forest and forests in general. Richard Ubbens notes that: "... through the development community and through landowners we have made inroads to protecting trees on private property and/or influenced people and made them aware that they had to protect trees. Along with the education process that goes along with these bylaws ... the bylaw is another tool in the toolbox for keeping the city green, including using planning tools and ensuring that we are always creating conditions for good tree growth."

John Simmons is dealing with the renewal of Point Pleasant Park, where a hurricane destroyed 65,000 trees: "We have something like 43% canopy cover and that’s due in large part to the rural nature of our municipality. We take great care and we have support from Council to foster and improve our urban canopy. We are trying to restrict urban sprawl and in so doing we should be able to keep canopy in those rural areas. Whether you define [the park] as urban forest depends on how you define urban forest and what parameters you put around it. It was a wooded area; since the seventeen hundred’s Europeans have had an impact on that piece of land so there’s a large human footprint. It’s definitely not indigenous; there were ornamentals planted in the park that seeded themselves. The whole philosophy with Point Pleasant park was not impact the put these forests soils any more than the hurricane had done. We were using pieces of equipment that gave six pounds per square inch footprint; sometimes the ground was frozen so our operations were a great success that way - we did not impact the forest floor. The area did not suffer except for the exposure to the UV that’s currently occurring until we get some ground cover. We had success in what we attempted to do - at least we gave it a good start."

Phil Rippin, Gardener, City of Penticton, B.C. says: "our whole philosophy is to protect trees as much as we can, and especially to plant trees. Developers are required to landscape and plant trees in a development not just protect them. Also we’re just working on a plan for heritage trees ... based on the Fraser Valley Heritage Tree Society list of criteria."

It is clear that city and municipal forestry departments are doing their best to promote the health of the urban forest using the widest arrays of tools possible. Another of these tools is ‘structured soil.’ This technology is in use in many parts of Canada with good success; trees are planted in a proprietary medium that is compactable to allow construction of roads and paths in close proximity to trees and yet will allow tree roots to spread freely. Nina Bassuk, Professor of Urban Forestry at Cornell University and developer of the system explains that while tree roots do come in contact with sharp-edged stones they survive such contact well. There are some issues with respect to choice of plant materials and the pH of the stone used for the planting mixture, but generally speaking trees planted in this material are surviving in places where before there had been problems.

The landscape industry and the urban forest

A satellite picture can give scientists a macro view of our forests. For a micro view we go to the people who spend their professional lives dealing with trees, our landscape tree professionals and municipal foresters. These people have a fundamental role in ensuring the ongoing health of all our forests through careful research and conscientious application of their skills.

And if the pressure to extend community control over private trees continues, one of the elements of how the profession is viewed will be the expense of dealing with that profession. It is in the interests of all that the process of assessment of trees be as efficient as possible, and that the allocation of those costs between private and public pockets should reflect the benefit that accrues to each. In that way we have the best chance of ensuring both a healthy and productive urban forest and environment.

After all, I would like the chipmunk to escape the ermine once in a while, and his best chance is if there is a tree to climb and another one nearby to leap into, no doubt sweating profusely.

Colin Beckingham is a freelance writer and database software publisher. He lives near Kingston, Ontario and can be reached through his website at www.it4gh.com

This article first appeared, in edited form, in the Vol. 26, #3, April 2006 edition of Landscape Trades Magazine of Milton, Ontario, Canada.