                                 CODE OF VIRGINIA

CONSERVATION OF TREES DURING LAND DEVELOPMENT PROCESS IN LOCALITIES BELONGING TO
A NONATTAINMENT AREA FOR AIR QUALITY STANDARDS (§ 15.2-961.1)

A. For purposes of this section, &#8220;tree canopy&#8221; or &#8220;tree
cover&#8221; includes all areas of canopy coverage by self-supporting and
healthy woody plant material exceeding five feet in height, and the extent of
planted tree canopy at 20-years maturity.

B. Any locality within Planning District 8 that meets the population density
criteria of subsection A of &#xA7; 15.2-961 and is classified as an eight-hour
nonattainment area for ozone under the federal Clean Air Act and Amendments of
1990, in effect as of July 1, 2008, may adopt an ordinance providing for the
conservation of trees during the land development process pursuant to the
provisions of this section. In no event shall any local tree conservation
ordinance adopted pursuant to this section also impose the tree replacement
provisions of &#xA7; 15.2-961.

C. The ordinance shall require that the site plan for any subdivision or
development provide for the preservation or replacement of trees on the
development site such that the minimum tree canopy or tree cover percentage 20
years after development is projected to be as follows:

   1. Ten percent tree canopy for a site zoned business, commercial, or
   industrial;

   2. Ten percent tree canopy for a residential site zoned 20 or more units per
   acre;

   3. Fifteen percent tree canopy for a residential site zoned more than eight
   but less than 20 units per acre;

   4. Twenty percent tree canopy for a residential site zoned more than four but
   not more than eight units per acre;

   5. Twenty-five percent tree canopy for a residential site zoned more than two
   but not more than four units per acre; and

   6. Thirty percent tree canopy for a residential site zoned two or fewer units
   per acre.
   				In meeting these percentages, (i) the ordinance shall first emphasize the
   preservation of existing tree canopy where that canopy meets local standards
   for health and structural condition, and where it is feasible to do so within
   the framework of design standards and densities allowed by the local zoning
   and other development ordinances; and (ii) second, where it is not feasible in
   whole or in part for any of the justifications listed in subsection E to
   preserve existing canopy in the required percentages listed above, the
   ordinance shall provide for the planting of new trees to meet the required
   percentages.

D. Except as provided in subsection E, the percentage of the site covered by
tree canopy at the time of plan submission shall equate to the minimum portion
of the requirements identified in subsection C that shall be provided through
tree preservation. This portion of the canopy requirements shall be identified
as the &#8220;tree preservation target&#8221; and shall be included in site plan
calculations or narratives demonstrating how the overall requirements of
subsection C have been met.

E. The ordinance shall provide deviations, in whole or in part, from the tree
preservation target defined in subsection D under the following conditions:

   1. Meeting the preservation target would prevent the development of uses and
   densities otherwise allowed by the locality&#8217;s zoning or development
   ordinance.

   2. The predevelopment condition of vegetation does not meet the
   locality&#8217;s standards for health and structural condition.

   3. Construction activities could be reasonably expected to impact existing
   trees to the extent that they would not likely survive in a healthy and
   structurally sound manner. This includes activities that would cause direct
   physical damage to the trees, including root systems, or cause environmental
   changes that could result in or predispose the trees to structural and health
   problems.
   				If, in the opinion of the developer, the project cannot meet the tree
   preservation target due to the conditions described in subdivision 1, 2, or 3,
   the developer may request a deviation from the preservation requirement in
   subsection D. In the request for deviation, the developer shall provide a
   letter to the locality that provides justification for the deviation,
   describes how the deviation is the minimum necessary to afford relief, and
   describes how the requirements of subsection C will be met through tree
   planting or a tree canopy bank or fund established by the locality. Proposed
   deviations shall be reviewed by the locality&#8217;s urban forester, arborist,
   or equivalent in consultation with the locality&#8217;s land development or
   licensed professional civil engineering review staff. The locality may propose
   an alternative site design based upon adopted land development practices and
   sound vegetation management practices that take into account the relationship
   between the cost of conservation and the benefits of the trees to be preserved
   as described in ANSI A300 (Part 5) &#x2014; 2005 Management: Tree, Shrub, and
   Other Woody Plant Maintenance &#x2014; Standard Practices, Management of Trees
   and Shrubs During Site Planning, Site Development, and Construction, Annex A,
   A-1.5, Cost Benefits Analysis (or the latest version of this standard). The
   developer shall consider the alternative and redesign the plan accordingly, or
   elect to satisfy the unmet portion of the preservation threshold through
   on-site tree planting or through the off-site planting mechanisms identified
   in subsection G, so long as the developer provides the locality with an
   explanation of why the alternative design recommendations were rejected.
   Letters of explanation from the developer shall be prepared and certified by a
   licensed professional engineer as defined in &#xA7; 54.1-400. If
   arboricultural issues are part of explanation then the letter shall be signed
   by a Certified Arborist who has taken and passed the certification examination
   sponsored by the International Society of Arboriculture and who maintains a
   valid certification status or by a Registered Consulting Arborist as
   designated by the American Society of Consulting Arborists. If arboricultural
   issues are the sole subject of the letter of explanation then certification by
   a licensed professional engineer shall not be required.

F. The ordinance shall provide for deviations of the overall canopy requirements
set forth in subsection C to allow for the preservation of wetlands, the
development of farm land or other areas previously devoid of healthy and/or
suitable tree canopy, or where the strict application of the requirements would
result in unnecessary or unreasonable hardship to the developer.

G. The ordinance shall provide for the establishment of a tree canopy bank or
fund whereby any portion of the tree canopy requirement that cannot be met
on-site may be met through off-site tree preservation or tree planting efforts.
Such provisions may be offered where it can be demonstrated that application of
the requirements of subsection C would cause irresolvable conflicts with other
local site development requirements, standards, or comprehensive planning goals,
where sites or portions of sites lack sufficient space for future tree growth,
where planting spaces will not provide adequate space for healthy root
development, where trees will cause unavoidable conflicts with underground or
overhead utilities, or where it can be demonstrated that trees are likely to
cause damage to public infrastructure. The ordinance may utilize any of the
following off-site canopy establishment mechanisms:

   1. A tree canopy bank may be established in order for the locality to
   facilitate off-site tree preservation, tree planting, stream bank, and
   riparian restoration projects. Banking efforts shall provide tree canopy that
   is preserved in perpetuity through conservation easements, deed restrictions,
   or similar protective mechanisms acceptable to the locality. Projects used in
   off-site banking will meet the same ordinance standards established for
   on-site tree canopy; however, the locality may also require the submission of
   five-year management plans and funds to ensure the execution of maintenance
   and management obligations identified in those plans. Any such bank shall
   occur within the same nonattainment area in which the locality approving the
   tree banking is situated.

   2. A tree canopy fund may be established to act as a fiscal mechanism to
   collect, manage, and disburse fees collected from developers that cannot
   provide full canopy requirements on-site. The locality may use this fund
   directly to plant and maintain trees on public or private property, or the
   locality may elect to disburse this fund to community-based organizations
   exempt from taxation under &#xA7; 501(c)(3) of the Internal Revenue Code with
   tree planting, stewardship, or community beautification missions that benefit
   the community at large. For purposes of establishing consistent and
   predictable fees, the ordinance shall establish cost units that are based on
   average costs of two-inch caliper nursery stock trees. Any funds collected by
   localities for these purposes shall be spent within a five-year period
   established by the collection date.

H. The following uses shall be exempt from the requirements of any ordinance
promulgated under this section: bona fide silvicultural activity as defined by
&#xA7; 10.1-1181.1 and the areas of sites included in lakes, ponds, and the
normal water elevation area of stormwater retention facilities. The ordinance
shall modify the canopy requirements of dedicated school sites, playing fields,
and other nonwooded active recreation areas by allowing these and other
facilities and uses of a similar nature to provide 10 percent tree canopy 20
years after development.

I. 1. In recognition of the added benefits of tree preservation, the ordinance
shall provide for an additional tree canopy credit of up to one and one-quarter
times the canopy area at the time of plan submission for individual trees or the
coalesced canopy of forested areas preserved from the predevelopment tree
canopy.

   2. The following additional credits may be provided in the ordinance in
   connection with tree preservation:
   				a. The ordinance may provide canopy credits of up to (i) one and one-half
   times the actual canopy area for the preservation of forest communities that
   achieve environmental, ecological, and wildlife conservation objectives set by
   the locality and (ii) two times the actual canopy credits if a site developer
   provides a stand assessment before development plans are created, for review
   by the local jurisdiction, and protects identified trees for conservation on
   the submitted site plans. The ordinance may establish minimal area,
   dimensional and viability standards as prerequisites for the application of
   credits. Forest communities shall be identified using the nomenclature of
   either the federal National Vegetation Classification System (FGDC-STD-005, or
   latest version) or the Natural Communities of Virginia Classification of
   Ecological Community Groups, Second Approximation (Version 2.2, or latest
   version).
   				b. The ordinance may provide canopy credits of up to three times the
   actual canopy area of trees that are officially designated for preservation in
   conjunction with local tree conservation ordinances based on the authority
   granted by &#xA7; 10.1-1127.1.

J. The following additional credits shall be provided in the ordinance in
connection with tree planting:

   1. The ordinance shall provide canopy credits of one and one-half the area
   normally projected for trees planted to absorb or intercept air pollutants,
   tree species that produce lower levels of reactive volatile organic compounds,
   or trees that act to reduce air pollution or greenhouse gas emissions by
   conserving the energy used to cool and heat buildings.

   2. The ordinance shall provide canopy credits of one and one-quarter the area
   normally projected for trees planted for water quality-related reforestation
   or afforestation projects, and for trees planted in low-impact development and
   bioretention water quality facilities. The low-impact development practices
   and designs shall conform to local standards in order for these supplemental
   credits to apply.

   3. The ordinance shall provide canopy credits of one and one-half the area
   normally projected for native tree species planted to provide food, nesting,
   habitat, and migration opportunities for wildlife. These canopy credits may
   also apply to cultivars of native species if the locality determines that such
   a cultivar is capable of providing the same type and extent of wildlife
   benefit as the species it is derived from.

   4. The ordinance shall provide canopy credits of one and one-half the area
   normally projected for use of native tree species that are propagated from
   seed or tissue collected within the mid-Atlantic region.

   5. The ordinance shall provide canopy credits of one and one-quarter the area
   normally projected for the use of cultivars or varieties that develop
   desirable growth and structural patterns, resist decay organisms and the
   development of cavities, show high levels of resistance to disease or insect
   infestations, or exhibit high survival rates in harsh urban environments.

K. Tree preservation areas and individual trees may not receive more than one
application of additional canopy credits provided in subsection I. Individual
trees planted to meet these requirements may not receive more than two
categories of additional canopy credits provided in subsection J. Canopy credits
will only be given to trees with trunks that are fully located on the
development site, or in the case of tree banking projects only to trees with
trunks located fully within easements or other areas protected by deed
restrictions listed in subsection G.

L. All trees planted for tree cover credits shall meet the specifications of the
American Association of Nurserymen and shall be planted in accordance with the
publication entitled &#8220;Tree and Shrub Planting Guidelines,&#8221; published
by the Virginia Cooperative Extension.

M. In order to provide higher levels of biodiversity and to minimize the spread
of pests and diseases, or to limit the use of species that cause negative
impacts to native plant communities, cause damage to nearby structures, or
possess inherent physiological traits that prone trees to structural failure,
the ordinance may designate species that cannot be used to meet tree canopy
requirements or designate species that will only receive partial 20-year tree
canopy credits.

N. The locality may allow the use of tree seedlings for meeting tree canopy
requirements in large open spaces, low-density residential settings, or in
low-impact development reforestation/afforestation projects. In these cases, the
ordinance shall allow the ground surface area of seedling planting areas to
equate to a 20-year canopy credit area. Tree seedling plantings will be
comprised of native species and will be planted in densities that equate to 400
seedlings per acre, or in densities specified by low-impact development designs
approved by the locality. The locality may set standards for seedling mortality
rates and replacement procedures if unacceptable rates of mortality occur. The
locality may elect to allow native woody shrubs or native woody seed mix to
substitute for tree species as long as these treatments do not exceed 33 percent
of the overall seedling planting area. The number of a single species may not
exceed 10 percent of the overall number of trees or shrubs planted to meet the
provisions of this subsection.

O. The following process shall be used to demonstrate achievement of the
required percentage of tree canopy listed in subsection C:

   1. The site plan shall graphically delineate the edges of predevelopment tree
   canopy, the proposed limits of disturbance on grading or erosion and
   sedimentation control plans, and the location of tree protective fencing or
   other tree protective devices allowed in the Virginia Erosion and Sediment
   Control Handbook.

   2. Site plans proposing modification to tree canopy requirements or claiming
   supplemental tree canopy credits will require a text narrative.

   3. The site plan shall include the 20-year tree canopy calculations on a
   worksheet provided by the locality.

   4. Site plans requiring tree planting shall provide a planting schedule that
   provides botanical and common names of trees, the number of trees being
   planted, the total of tree canopy area given to each species, variety or
   cultivars planted, total of tree canopy area that will be provided by all
   trees, planting sizes, and associated planting specifications. The site plan
   will also provide a landscape plan that delineates where the trees shall be
   planted.

P. The ordinance shall provide a list of commercially available tree species,
varieties, and cultivars that are capable of thriving in the locality&#8217;s
climate and ranges of planting environments. The ordinance will also provide a
20-year tree canopy area credit for each tree. The amount of tree canopy area
credited to individual tree species, varieties, and cultivars 20 years after
they are planted shall be based on references published or endorsed by Virginia
academic institutions such as the Virginia Polytechnic Institute and State
University and accepted by urban foresters, arborists, and horticulturalists as
being accurate for the growing conditions and climate of the locality.

Q. The ordinance shall establish standards of health and structural condition of
existing trees and associated plant communities to be preserved. The ordinance
may also identify standards for removal of trees or portions of trees that are
dead, dying, or hazardous due to construction impacts. Such removal standards
may allow for the retention of trunk snags where the locality determines that
these may provide habitat or other wildlife benefits and do not represent a
hazardous condition. In the event that existing tree canopy proposed to be
preserved for tree canopy credits dies or must be removed because it represents
a hazard, the locality may require the developer to remove the tree, or a
portion of the tree and to replace the missing canopy area by the planting of
nursery stock trees, or if a viable alternative, by tree seedlings. Existing
trees that have been granted credits will be replaced with canopy area
determined using the same supplemental credit multipliers as originally granted
for that canopy area.

R. Penalties for violation of ordinances adopted pursuant to this section shall
be the same as those applicable to violations of zoning ordinances of the
locality.

S. In no event shall any local tree conservation ordinance adopted pursuant to
this section exceed the requirements set forth herein; however, any local
ordinance adopted pursuant to the provisions of &#xA7; 15.2-961 prior to July 1,
1990, may adopt the tree conservation provisions of this section based on
10-year minimum tree canopy requirements.

T. Nothing in this section shall invalidate any local ordinance adopted pursuant
to &#xA7; 15.2-961.

U. Nothing in this section shall prohibit or unreasonably limit silvicultural
practices in accordance with &#xA7; 10.1-1126.1.

HISTORY: 2008, cc. 333, 711; 2022, c. 620; 2024, cc. 691, 702.