Agenda - Planning Commission - 09/07/2006

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an injunction to enjoin development within the protected area. The "Whole Parcel !.lule" is alive and well in the context of tree protection plans. Key to the defensibility-of most tree protection ordinances is the so-called .whole-parcel rule," which is sometimes misapplied by the courts. Recent decisions affirm that when evaluating economic loss occasioned by land- use regulation, courts must consider the whole parcel owned by the plaintiff and not just the portion subject to the regulation. In Coast Range Conifers v. State of Oregon . (339 Or. 136 (2005)), a logging company chal- lenged the denial of a permit request to log tim' ber within an area designated by the state asa bald eagle nesting site. In 1996, the plaintiff company acquired a 40-acre tract of timberland. Two years later, state employees observed two adult bald eagles nesting on the property. ' Pursuant to a state law that protected the habitat of species listed as endangered by the U.S. gov- emment, the plaintiffs were required to submit a plan to the state forester before cutting down any trees on the property. The forester rejected the plaintiff's plan, which proposed to log within 330 feet of the nest, and recommended that the plaintiffs resubmit a plan that protected a 400- foot buffer around the site (about nine acres). The plaintiffs did so, and the plan was approved. At the conclusion of the nesting season a few months later, the plaintiffs submitted a new plan to resume logging the remaining nine acres surrounding the eagles' nest. The forester denied the plan, and the board of forestry upheld that decision. The plaintiffs filed suit against the State of Oregon and its forestry board, alleging that the denial of the plan deprived them of all economically beneficial use of the remaining nine acres of timberland and that the denial amounted to a "takingn under the Oregon and United States constitu- tions. The state did not dispute the beneficial use claim as applied to the protected area; instead, it contended that the plaintiffs were able to make beneficial use of the other 30 acres of their parcel, which were unaffected by the state's regulation of the eagle habitat. On appeal, the Oregon Supreme Court held that both constitutions require a plaintiff to show that there is no remaining economi- cally beneficial use of the land as a whole parcel (i.e., all 40 acres owned, and not just the nine acres affected) as a result of the state's habitat protection regulations. Regulations requiring preservation of trees do not give rise to physical occupation oJ property to support a per se takings claim. In recent years, the Court of Appeals for the Federal Circuit has twice heard and rejected per se physical taking claims allegedly aris- ingfrom regulations and government actions that prevented the harvesting of timber on lands designated as spotted owl habitat (Seiber v. United States, 364 F.3d 1356 (Fed. Cir. 2004)) and Boise Cascade Corporation v. United States, (296 F. 3d 1339 (Fed. Cir. 2002)). A claim for a physical occupation tak- ing rests on showing that the government has compelled a complete and permanent physical occupation of private land for a pub- Ii.c purpose. Increasingly rare is the modern development code in a progressive community-urban, suburban, and rural alike-that does n.ot have some form of tree or vegetation conservation regulation. In Boise, the court of appeals affirmed the dismissal of Boise Cascade's takings claims against the U.S. Fish and Wildlife Service. Boise Cascade's complaint included a claim that a federal injunction that enjoined the cutting of old growth timber in a designated spotted owl habitat resulted in a physical occupation of pri. vate property under Loretta v. Teleprompter Manhattan G4TC Corp. (458 U.S. 419 (1982)). The court ruled that the physical occupation claim (that the owls physically invaded the property) was untenable primarily because the govemment did not force and could not control the owls' occupation of the property. REGULATORY APPROACHES While surveys conducted in the 1980s revealed that relatively few jurisdictions had tree protec- tion standards on the books, today, increas- ingly rare is the modern development code in a progressive community-urban, suburban, and rural alike-that does not have some form of tree or vegetation conservation regulation. These new ordinances are increasingly strin- gent and sophisticated, often protecting smaller trees as well as specimen trees and large tracts of woodland. They frequently require mitigation either on- or off-site if trees are destroyed during construction or provide for cash.in-lieu payments into a local tree preservation fund. These ordinances are often part of a more comprehensive effort to protect wildlife habitat or scenic vistas and even to counter the impacts of global warming. Specimen and special tree protection. Many jurisdictions require permits for the removal or alteration of "special" trees on pri. vate property. "Specialn is typically defined as those exceeding a certain diameter, size, or other physical parameter. Terms such as "cham- pion" or "monarch" trees may be the operative nomenclature in the local ordinance. Addition. ally, special trees may be defined to include those with special historical associations (for example, a treaty may have been signed under a tree's boughs). Some communities maintain reg- istries for large trees, much like lists of landmark buildings. Others rely on identification through surveys required during the site planning process as outlined in the previous section. Probably the most common approach to protecting special trees is to require protection of all specimens that exceed certain physical specifications. In Austin; Texas, for example, a "protected tree" means "any tree having a trunk circumference of 60 inches or more, measured four and one-half feet above natural grade level." Other ordinances are similar but use diameter at 4.5 feet above the ground instead of circumference (what is commonly known in the trade as diameter at breast height, or "DBH"). While trunk size specification is a simple and straightforward way of protecting trees, it can be very imprecise and result in protecting unworthy trees or missing critical ones. Thus, while an oak with a DBH of one foot is not particularly unusual, a dogwood of that size is quite remarkable. To deal with this issue; an increasing number of jurisdictions are estab- lishing variable size specifications depending on the species of the tree. Another protection criterion, although far less common than size, is the tree species itself. Some communities, including Thousand Oaks, California, concen- trate their protection efforts on only one species of tree-in this case. oak trees. Tampa, Rorida,,focuses its specimen tree pro- tection efforts o~ 12 species, although others can be protected by the parks department upon adoption of appropriate standards. A variation on this approach, which is gaining more adherents, is to protect all native vege- tation to the maximum extent possible. ZONING PRACTICE 7.06 101 AMERICAN Pu\NNING ASSOCIATION I page 5