6185707 Transportation, District Department of - Notice of Proposed Rulemaking - Special Trees and Tree Spaces  

  • DISTRICT DEPARTMENT OF TRANSPORTATION

     

    NOTICE OF PROPOSED RULEMAKING

     

    The Director of the District Department of Transportation (“Department”), pursuant to the authority set forth in Section 103 of the Urban Forest Preservation Act of 2002, effective June 12, 2003 (D.C. Law 14-309; D.C. Official Code § 8-651.03 (2013 Repl.)), Sections 4(5)(A) (assigning authority to coordinate and manage public space permits and records to the Department Director), 5(a)(4)(A) (assigning duty to review and approve public space permit requests to the Department Director), 6(b) (transferring the public right-of-way maintenance function previously delegated to the Department of Public Works (DPW) under Section III (F) of Reorganization Plan No. 4 of 1983 to the Department), and 9j (rulemaking authority) of the Department of Transportation Establishment Act of 2002 (“DDOT Establishment Act”), effective May 21, 2002 (D.C. Law 14-137; D.C. Official Code §§ 50-921.03(5)(A), 50-921.04(a)(4)(A), 50-921.05(b), and 50-921.18 (2014 Repl. & 2016 Supp.)), Section 604 of the Fiscal Year 1997 Budget Support Act of 1996, effective April 9, 1997 (D.C. Law 11-198; D.C. Official Code § 10-1141.04 (2013 Repl. & 2016 Supp.)) (authorizing rules concerning rental of public space), and Mayor’s Order 2016-5, dated January 12, 2016, hereby gives notice of the intent to adopt amendments to Chapter 1 (Occupation and Use of Public Space) and Chapter 37 (Special Trees) of Title 24 (Public Space and Safety) of the District of Columbia Municipal Regulations (DCMR).

     

    These proposed rules will amend the regulations in Title 24 DCMR, Chapter 1, governing the beautification of tree spaces.  The existing regulations became effective on July 7, 1989, and field inspections have found that many of the practices allowed by the original regulations have resulted in tree damage and the loss of numerous street trees.  The proposed amendments would: require a permit to plant a tree in a tree space, install any structure in a tree space, or install or modify a tree fence in a tree space; make explicit the District of Columbia’s authority to remove either permitted or unpermitted trees planted in tree spaces; make explicit in this chapter the requirement that an owner or occupant keep the tree space adjacent to his or her property free of refuse; prohibit plantings from being placed too close to the base of a tree; expand the list of prohibited plant types and ground cover types; prohibit solid barriers and certain types of borders around tree spaces; specify the type of fencing that qualifies for a tree fence permit; incorporate by reference Subsection 608.06 of the District of Columbia Department of Transportation Standard Specifications for Highways and Structures (2013) and drawing number 608.13 of the District of Columbia Department of Transportation Standard Drawings (August 2015) with respect to the standards specified in both documents for tree fences; and make explicit the authority of District of Columbia (“District”) employees or contractors authorized by the District government to remove a non-compliant or hazardous tree space beautification.

     

    The proposed rules will also amend the regulations in Title 24, Chapter 37, to eliminate two mitigation procedures a property owner can follow to obtain a permit to remove a tree on the property that has a minimum circumference of fifty-five inches (Special Tree).  The property owner may no longer plant a quantity of saplings whose aggregated circumference at the time of planting will equal or exceed the circumference of the Special Tree(s) to be removed.  Furthermore, the proposed rulemaking will eliminate the ability for a property owner to plant any saplings to offset the amount of money that must be paid into the Tree Fund to remove a Special Tree. This rulemaking is necessitated by the need to address the threat to the public welfare posed by an abrupt and substantial change in the process for removing Special Trees.  Property owners in the District, including single family homes and large commercial properties have relied on the ability to plant saplings to partially or completely eliminate the need to pay into the Tree Fund when removing a Special Tree.  Title IV, Subtitle C of the Sustainable DC Omnibus Act of 2013, effective December 17, 2014 (D.C. Law 20-0142; 61 DCR 8045 (August 8, 2014)) ends that practice.  In order to transition to payment only, this rulemaking is required to clarify how it will affect those individuals that already have a permit and those that have not yet received a permit from the District Department of Transportation (“DDOT”).  The rulemaking will enable DDOT to coordinate safely and efficiently the transition to the new Special Tree requirements in the least disruptive manner possible, avoiding unnecessary impositions placed on the public.

     

    The proposed rules will be transmitted to the D.C. Council for a forty-five (45)-day review period and shall be deemed disapproved in the absence of Council action within the 45-day review period.  Final rulemaking action to adopt these amendments shall be taken after the Council’s review period and at least thirty (30) days from the date of publication of this notice in the D.C. Register.

     

    Chapter 1, OCCUPATION AND USE OF PUBLIC SPACE, of Title 24 DCMR, PUBLIC SPACE AND SAFETY, is amended as follows:

     

     

     

    Section 109, BEAUTIFICATION OF TREE SPACES, is amended to read as follows:

     

    109                  BEAUTIFICATION OF TREE SPACES

     

    109.1               The regulations contained in this section apply to the unpaved area of the sidewalk, which is reserved by the District government for planting trees and is referred to in this section as “tree space”.

     

    109.2               The owner or occupant of property adjacent to a tree space is responsible for keeping the tree space clean and free of refuse pursuant to 21 DCMR § 702.

     

    109.3               The beautification of a tree space shall not require a public space permit unless the beautification includes the planting of a tree, the installation of any structure, or the installation or modification of a tree fence.  Tree Space beautification activities that do not require a permit must comply with the requirements of this section and any other applicable law or regulation.

     

    109.4               The beautification of a tree space may only be undertaken by the owner or occupant of the property that abuts the tree space, provided:

     

    (a)        The tree space beautification shall be undertaken solely at the personal risk and expense of that owner or occupant; and

     

    (b)        Such care and keeping of the tree space beautification shall remain the responsibility of that owner or occupant.

     

    109.5               The beautification of a tree space shall not extend:

     

    (a)          Over the curb or the sidewalk;

     

    (b)          Within three feet (3 ft.) of a crosswalk or paved bus stop landing;

     

    (c)          Within six feet (6 ft.) of an entrance to an alley;

     

    (d)          Within six feet (6 ft.) of a street corner;

     

    (e)          Within two feet (2 ft.) from the base of an existing street tree; or

     

    (f)          Within four feet (4 ft.) of a parking meter or a fire hydrant. 

     

    109.6               In a continuous tree space, tree space beautification areas shall be not more than nine feet (9 ft.) long, and at least six feet (6 ft.) shall separate each beautified area.

     

    109.7               The grade of a tree space shall not be altered in conjunction with a tree space beautification effort, except with mulch spread to a depth of two to three inches (2 – 3 in.), but not placed directly against or mounded at the base of the tree.

     

    109.8               The use of the following as ground cover is prohibited:

     

    (a)        Gravel, rocks, bricks, stone, or concrete pavers or any other paving material, except as authorized by a public space permit; or

     

    (b)        Any type of landscape fabric or plastic sheeting.

     

    109.9               To protect the health of the tree and the environment, no person shall plant or maintain any of the following plant types in a tree space:

     

    (a)        Plants having a deep root system;

     

    (b)        Any plant whose mature height is over eighteen inches (18 in.); 

     

    (c)        Any vegetables;

     

    (d)       Any plants which spread by way of subsurface shoots or runners; or

     

    (e)        Any plants which climb or intertwine.

     

    (f)        Any invasive plant species.

     

    109.10             To protect the safety of the public and the health of the tree, the use of wickets; hoop-style fencing; fencing having sharp points; or raised wooden, brick, stone or masonry borders, edging, or walls of any kind to border a tree space is prohibited. 

     

    109.11             Notwithstanding § 109.10, a tree fence, border, or edging existing on June 1, 2016, that was consistent with the version of these rules in effect on May 30, 2016 may remain until such time as it is removed by the owner or occupant of the property which abuts the tree space or by District government employees or contractors authorized by the District government.

     

    109.12             A tree space may be bordered by a tree fence which shall:

     

    (a)        Only be installed as authorized by a valid public space permit issued by the Director of the District Department of Transportation;

     

    (b)        Meet or exceed the District’s specifications for an ornamental tree fence found in § 608.06 of the District of Columbia Department of Transportation Standard Specifications for Highways and Structures (2013), as such specifications are amended from time to time (DDOT Standard Specifications) available at http://ddot.dc.gov/page/standard-specifications-highways-and-structures;

     

    (c)        Be assembled and installed as shown on the ornamental tree fence drawing number 608.13 found in the District of Columbia Department of Transportation Standard Drawings (August 2015) as such standard drawings are revised from time to time (DDOT Standard Drawings) available at http://ddot.dc.gov/page/standard-drawings-2015; and

     

    (d)       Not restrict the flow of rainwater runoff from the sidewalk into the tree space.

     

    109.13             Notwithstanding § 109.12, a tree space may be bordered by a tree fence of an alternate design if it meets all of the following:

     

    (a)        The design allows the unrestricted flow of rainwater runoff from the sidewalk into the tree space;

     

    (b)        The material, fabrication and installation specifications are reasonably consistent with those required by the DDOT Standard Specifications, for an ornamental tree fence;

     

    (c)        The tree fence is designed to only border the tree space on the three (3) sides that do not abut the curb line;

     

    (d)       The tree fence is designed to have side panels which are set back at least fourteen inches (14 in.) from the vertical face of the roadway curb as shown on the drawings in Subsection 608.13 for an ornamental tree fence as found in the DDOT Standard Drawings; and  

     

    (e)        The height of the tree fence shall be approximately eighteen inches (18 in.) tall as measured from the sidewalk or curb elevation.

     

    109.14             The District government may enter a tree space without the permission of the owner or occupant of the property that abuts the tree space. 

     

    109.15             A tree space beautification may be destroyed or removed and disposed of by the District government or its agents, if destruction or removal and disposal is necessary for the following construction, repair, or maintenance activities:

     

    (a)        Street construction or reconstruction;

     

    (b)        Curb and gutter construction, reconstruction or repair;

     

    (c)        Sidewalk construction or reconstruction;

     

    (d)       Tree removal or planting; or

     

    (e)        Modification to the tree space, including, but not limited to the following:

     

    (i)         Expanding the tree space; and

     

    (ii)        Altering the grade and soil condition prior to a tree planting.

     

    109.16             A tree space beautification that is not in compliance with this section, and that is hazardous to the public or the health of the tree, as determined by the Director of the District Department of Transportation, may be removed and disposed of by District government employees or contractors.

     

    109.17             This section shall not be construed to supersede the provisions of Chapter 11 (Downtown Streetscape) of Title 24 of the District of Columbia Municipal Regulations.

     

    Section 199, DEFINITIONS, is amended as follows:

     

    New definitions are added, prior to the definition of “Person”, to read as follows:

     

    Invasive Plant Species – one of the following plants:

    Grasses and Sedges

    Bamboos (Bambusa vulgaris, Phyllostachys aurea and Pseudosasa japonica)

    Bog Bulrush (Schoenoplectus mucronatus)

    Common Reed (Phragmites australis)

    Japanese Stiltgrass (Microstegium vimineum)

    Wavyleaf Basketgrass (Oplismenus hirtellus ssp. undulatifolius)

     

    Herbaceous Forbs

    Beefsteak Plant (Perilla frustescens)

    Canada Thistle (Cirsium arvense)

    Chinese Lespedeza (Lespedeza cuneata)

    Common Daylily (Hemerocallis fulva)

    Dame’s Rocket (Hesperis matronalis)

    European Stinging Nettle (Urtica dioica)

    Fig Buttercup (Ficaria verna)

    Garlic Mustard (Alliaria petiolata)

    Ground Ivy (Glechoma hederacea)

    Japanese Knotweed (Fallopia japonica)

    Nodding Star of Bethlehem (Ornithogalum nutans) and Sleepydick (Ornithogalum umbellatum)

    Purple Loosestrife (Lythrum salicaria)

    Spotted Knapweed (Centaurea stoebe ssp. micranthos)

     

    Shrubs and Subshrubs

    Amur Honeysuckle (Lonicera maackii)

    Autumn Olive (Elaeagnus umbellata)

    Japanese Barberry (Berberis thunbergii)

    Japanese Meadowsweet (Spiraea japonica)

    Linden Viburnum (Viburnum dilatatum)

    Morrow’s Honeysuckle (Lonicera morrowii)

    Multiflora Rose (Rosa multiflora)

    Privets (Ligustrum obtusifolium, L. ovalifolium, L. sinense and L. vulgare)

    Wineberry (Rubus phoenicolasius)

    Winged Burning Bush (Euonymus alatus)

     

    Vines

    Black Swallow-Wort (Cynanchum louiseae)

    Chinese Wisteria (Wisteria sinensis)

    Chocolate Vine (Akebia quinata)

    Common Periwinkle (Vinca minor)

    English Ivy (Hedera helix)

    Japanese Honeysuckle (Lonicera japonica)

    Japanese Hop (Humulus japonicus)

    Japanese Wisteria (Wisteria floribunda)

    Kudzu (Pueraria montana var. lobata)

    Mile-a-Minute (Persicaria perfoliata)

    Oriental Bittersweet (Celastrus orbiculatus)

    Pale Swallow-Wort (Cynanchum rossicum)

    Porcelainberry (Ampelopsis brevipedunculata)

    Sweet Autumn Virginsbower (Clematis terniflora)

    Winter Creeper (Euonymus fortunei)

     

     

    A new definition is added, prior to the definition of “Downtown Streetscape Area”, to read as follows:

     

    Sidewalk – the portion of the surface space located between the curb line and the building line intended for the use of pedestrians.

     

    New definitions are added, after the definition of “Downtown Streetscape Area”, to read as follows:

     

    Tree fence – a low enclosure of an open design that separates the sidewalk from the tree space and is designed and constructed in accordance with DDOT guidelines.   

     

    Tree space – an unpaved portion of the sidewalk that is reserved by the District government for the planting of a tree.

     

    Tree space beautification – a visual improvement made to a tree space using live plant materials other than trees, such as grass, tropical flowers, or other shallow rooted plants having decorative flowers or foliage.

     

    Chapter 37, SPECIAL TREES, is amended as follows:

     

    Section 3701, PERMIT APPLICATION PROCEDURES FOR A SPECIAL TREE REMOVAL PERMIT, is amended as follows:

     

    Subsection 3701.3 is repealed.

     

    Subsection 3701.7 is amended to read as follows:

     

    3701.7             If an International Society of Arboriculture certified arborist or an Urban Forestry Administration arborist determines that the tree to be removed is not a Hazardous Tree and is not a tree that has been identified in § 3701.9, or if the applicant stipulates as to both on the permit application, no Special Tree Removal Permit shall be issued until the applicant pays into the Tree Fund a tree replacement fee equivalent to thirty-five dollars ($35) per inch of circumference of each Special Tree that is to be removed.

     

    Section 3702, PERMIT CONDITIONS FOR REPLACEMENT TREES, is amended to read as follows:

     

    3702                PERMIT CONDITIONS FOR REPLACEMENT TREES

     

    3702.1             Notwithstanding Section 3701 of this title, any Special Tree Removal Permit issued prior to December 17, 2014, with a permit condition allowing the applicant for the Special Tree Removal Permit to plant replacement trees to partially or completely offset the tree replacement fee shall remain valid; provided the special tree was removed prior to June 15, 2015. 

     

     

    All persons interested in commenting on the subject matter in this proposed rulemaking may file comments in writing, not later than thirty (30) days after the publication of this notice in the D.C. Register, with Alice Kelly, Manager, Policy and Governmental Affairs, District Department of Transportation, 55 M Street, S.E., 7th Floor, Washington, D.C. 20003.  An interested person may also send comments electronically to publicspace.policy@dc.gov.  Copies of this proposed rulemaking are available, at cost, by writing to the above address, and are also available electronically, at no cost, on the District Department of Transportation’s website at www.ddot.dc.gov.