Fencing surrounds the site of the HarborChase of South Portland, which is being developed by Confluent Senior Living. Brianna Soukup/Staff Photographer

SOUTH PORTLAND — The City Council is considering a proposed tree protection ordinance that would be the most restrictive in Maine and one of the toughest in the nation, and it’s raising concerns that it could threaten economic development and much-needed housing construction.

The council directed the city’s planning staff to draft the ordinance last year, after it rejected a proposed development moratorium meant to preserve trees. The fear was that housing developers in particular planned to clear-cut some of the few treed lots left in South Portland and take advantage of a red-hot real estate market. And some have done just that.

Opponents question whether the ordinance is necessary in Maine, the most forested state, where more than 90 percent of land area is covered by trees, according to a federal forest inventory. But others say South Portland’s trees are a precious front-line defense against climate change and pollution produced by a dense population, heavy road and harbor traffic, and concentrated commercial and industrial operations, including more than 100 petroleum storage tanks.

The ordinance defines and would protect significant, heritage and historic trees greater than 10 inches in diameter. It also would establish a detailed process to review and try to stop their removal as part of major construction projects and for other reasons. The council recently indicated unanimous support for the proposal – which appears to be on track for approval later this year – with many calling the ordinance “reasonable” despite the likelihood that it will raise costs for some property owners and the city.

“Overall, I think it is pretty reasonable,” said Mayor Misha Pride, who heads the council. “Mostly it stops people from clear-cutting trees. Under the ordinance, if you take down a tree, you have to be ready to replace it. And if you’re a homeowner, it’s pretty permissive.”

The ordinance would leave most single-family homeowners largely unscathed. They would be allowed to cut down as many as three protected trees within five years without seeking a permit or undergoing municipal review, whether to build a deck or to maximize sun exposure for solar panels. And if they needed to remove additional protected trees during a five-year period because of an emergency, such as root damage to a foundation or a pest infestation, the ordinance provides exceptions.

But the ordinance would require detailed and comprehensive assessments of protected trees targeted for removal for wholly new construction and site development. It outlines specific steps to reduce or mitigate tree removal by shrinking or adjusting building or road footprints.

Property owners who aim to develop 75 percent or more of allowed lot coverage, impervious surface area or overall residential density, for instance, would be asked to make 10 to 20 percent reductions to avoid taking protected trees. Maybe they could construct a slightly smaller building or move a road or driveway a few feet.

“If you’re maximizing the use of your land, you have to reduce (the project’s footprint),” said Planning Director Milan Nevajda, who drafted the ordinance. “The question is, can you reduce the coverage of your building if it will save a tree?”

The ordinance also would impose penalties requiring developers to replace protected trees on building sites that can’t be saved or pay as much as $500 per tree to plant trees elsewhere in the city. And it would apply across the city, including municipal properties and projects.

In contrast, Portland’s heritage tree protection ordinance applies only in historic districts and to private property, and a handful of other municipalities in Maine have tree ordinances that are less strict than South Portland’s proposal.

Housing construction is taking place on Evans Street in South Portland. Brianna Soukup/Staff Photographer

Several South Portland residents spoke in favor of the proposed ordinance at a recent council workshop, including members of the local land trust and the city’s Conservation Commission. They referred to examples of recent tree losses, such as a 12-unit multifamily project under construction on a 1.2-acre lot at Evans and Hill streets, where a small house and wooded area were removed.

“It is time to enforce tree conservation in the strictest manner. Let’s continue to lead the way,” said Barbara Dee, commission chairman, referring to South Portland’s recent efforts to protect the environment, including air quality, solar, climate change, recycling, waste reduction and other sustainability initiatives.

Dee pressed city officials for an even tougher tree ordinance, calling a proposed six-month delay in implementing the regulations “dangerous” because it would give landowners time to clear-cut wooded properties. She also said the ordinance would give homeowners too much leeway in removing trees and allow many small but desirable trees to be cut down.

But some say the 12-page ordinance would be too restrictive, complicated and costly to follow or administer. They point out that the city would have to hire an additional planner to oversee the ordinance, at a cost of $88,000 in salary and benefits. The planning department already has three vacancies, including a planner position that’s been filled by a person who starts in August.

Critics of the ordinance include Peter Connell, a self-described tree enthusiast who lives in the city and represents the owners of the former Sable Oaks Golf Course, a 111-acre property near the Maine Mall that is being developed into as many as 12 housing projects, most of them market-rate apartments.

One project, HarborChase of South Portland, is a 120-unit assisted living and memory care residence being built by Confluent Senior Living, a Colorado company. It’s set to open this summer. Connell said he couldn’t quantify how the tree protection ordinance might affect the development of additional housing on the property, which is a mix of wooded and open space.

“It’s certainly going to have an impact on the density and cost of projects, and one of the concerns is that it will discourage development,” Connell said after the council workshop. “Some sites will be more adversely affected than others.”

Fencing surrounds the site of the HarborChase of South Portland, which is being developed by Confluent Senior Living, on Friday. Brianna Soukup/Staff Photographer

Redevelopment of Sable Oaks is an opportunity to provide housing “that will allow people to live and work in our community without having to drive great distances and create more greenhouse gas emissions,” Connell told the council.

Connell questioned whether making it more difficult to build housing will push development to outlying communities, destroy even more trees and increase greenhouse gases generated by commuters. And he questioned whether the ordinance would trigger significant legal issues related to infringing on property rights, which the city’s attorney is sorting out as well.

The city’s Economic Development Committee also opposes the ordinance. The committee agreed that trees are a critical part of the ecosystem, beautifying as well as removing climate-warming carbon dioxide from the atmosphere.

But it warned that the proposal could stifle economic investment and accelerate the property tax shift from commercial to residential property owners that’s expected with the ongoing citywide property revaluation. The committee recommended finding other ways to reduce tree removal and increase tree planting by modernizing, streamlining and adding flexibility to existing ordinances.

“More regulations will unnecessarily slow our post-COVID-19 recovery,” the committee said in a written statement to the council. “It is time to stimulate activity in the commercial sector with enhanced incentives that support investment and further our community’s sustainability goals; not dampen it with more regulations.”

Other city officials don’t deny some of the criticism. City Manager Scott Morelli described the proposed ordinance as “dense, complicated and very restrictive” in his memo to the council. But they also say it’s necessarily detailed so it can be clearly understood and objectively applied to various projects across every zoning district.

“It’s not vague,” said Nevajda, who developed the ordinance specifically for South Portland after reviewing tree protection laws across the country. The goal, he said, was to address the council’s desire to stop unjustified and unreasonable tree removal.

The proposed ordinance would define four categories of protected trees:

• Significant Tree – Non-invasive species that’s at least 10 inches in diameter when measured at the standard height of 4.5 feet from the ground for single-stemmed trees or 30 inches in diameter for multi-stemmed trees.

• Heritage Tree – Any tree that’s at least 60 inches in diameter, at least 90 years old or listed on Maine’s Register of Big Trees.

• Historic/Cultural Tree – Any tree designated for protection by the City Council.

• Program Tree – Any tree planted to replace protected trees and other trees planted by obligation of the city.

The ordinance also would divide favored native tree species, including various oaks, maples, birches and evergreens, into three groups to reflect their relative value in contributing to the tree canopy, preventing storm water runoff, providing animal habitat and other benefits. And it would establish a permitting process for certain types of tree removals, with two tiers of permits, basic and advanced, depending on the reasons for removal and other factors.

It also would create a structure for tree replacement and a Tree Mitigation Fund for fees paid to offset protected tree removals. And it would require property owners to hire a licensed arborist or other tree expert to assess trees and substantiate removal plans.

Nevajda said it will be several months before a polished version of the proposed ordinance is ready for a final council vote.

He disputes that the ordinance would make tree removal more expensive for homeowners, noting that most people must hire an arborist to take down large trees. He also believes the tree ordinance will prove to be less costly and cumbersome to developers than either wetlands protection or stormwater management regulations.

As for the cost of hiring an additional planner, Mayor Pride figures it’s worth it. The city has been wrestling with air quality issues for the last several years, including a multimillion-dollar fight against a federal lawsuit challenging its Clean Air ordinance, which prevents the Portland Pipe Line Corp. from bringing crude oil from Canada to Maine.

Most recently the city pushed state environmental officials to measure toxic emissions from petroleum storage tanks and other sources in the city. The results prompted a bill now making its way through the Legislature that would require petroleum tank farms in Maine to continuously monitor emissions and take other steps to reduce off-gassing.

“Trees clean our air,” Pride said, “and we have very polluted air.”

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