The city of Bend’s code to protect trees from development is on the line as an affordable housing developer mounts a legal argument that the new regulations infringe on state law.

The public has a two-week period to submit new testimony — followed by two rebuttal periods — on a city of Bend land use case in which an affordable housing developer has refused to submit a plan for preserving trees on a 2-acre property in southwest Bend, where 30 affordable homes are planned.

“I will review every single piece of information submitted into the record,” said James Dole, a hearings officer who is under contract with the city as a third party to decide the case.

During a two-hour public hearing on Tuesday, Dole heard arguments from the developer’s attorney, city officials and residents who pleaded with the city to stand its ground against the challenge to the code that requires developers to save a certain proportion of trees on their properties or pay a fee if they cut them down.

State law gives Dole 21 days to make a decision on the case once the record is closed. The decision can then be appealed to the Oregon Land Use Board of Appeals.

Lawyers for Larry Kine, co-founder of Thistle & Nest, a nonprofit affordable housing developer, told the city in December they would not be submitting a tree preservation plan for the 30-unit development just south of Murphy Road known as Murphy Crossing. The tree code issue was one of several areas where city staff said Kine’s application did not comply with the Bend Development Code, including vehicle standards, pedestrian pathways, architectural standards, landscaping, EV standards and others.

Because Kine said he would not be submitting any further materials with his affordable housing application, city staff haven’t been able to move the planning process forward. The city moved the case to a hearings officer and recommended the application be denied.

According to Renee Brooke, planning manager with the city of Bend, the city offers an alternative path to approval in which staff can use discretion on decisions about development sites with certain constraints, but the developer hasn’t pursued that route.

Kine doubled down on his position on the tree code in early March, providing the city with a similar statement that he would not comply with the tree code at either of a pair of 19-unit affordable developments in east Bend.

Kine’s lawyer, Chris Koback, urged the hearings officer to make a decision on whether or not the city’s standards — including the tree code — violate state law.

“My client, as an affordable housing developer, has some pretty strong views on some of these standards and how they impact the program,” said Chris Koback, a land use lawyer representing Kine. “We want those heard, we want those decided.”

Residents clamor for compliance

The challenge marks the second time development interests have challenged Bend’s tree code, but could be the first time a third party will weigh in on the issue. A group of developers led by Pahlisch Homes appealed the code to the Land Use Board of Appeals shortly after it went into effect last August, but dropped the challenge after several meetings with the city.

The code was born from fears that too many of Bend’s mature trees were being cut down to make way for homes. It was passed by the Bend City Council in June after a lengthy public process that included officials, developers and environmentalists.

Kine’s challenge has been met with an outcry from tree code supporters who fear it could be dismantled.

“There is a law. They need to comply,” said Roberta Silverman, vice-chair of the Southern Crossing Neighborhood Association.

“They are trying to set a precedent with this to allow other developers to come up and say, ‘we don’t want to comply,’” Silverman said.

Bob Gressens, a member of the Bend Planning Commission, said the code crafters considered a carve out for affordable developments, but decided against it. The benefits of trees, like providing shade and aesthetics, were important enough to justify the cost, they determined.

Thistle & Nest’s application is part of a larger 104-unit affordable development at Murphy Crossing that has received $15 million in state loans to help draw down costs and sell homes below market rate. The plans come as home ownership becomes increasingly difficult with Bend’s median home price above $700,000. To keep up with growth, Bend needs to add more than 30,000 housing units in the next 20 years, according to a state analysis.

State law requires regulations on the development of “needed housing” to be only “clear and objective,” and must not “discourage needed housing through unreasonable cost or delay.”

“We’re not saying we’re above the law, we’re just saying we think this law is above the local law,” Koback said.

Two trees are on the line

Under the code, developers of sites larger than 1 acre have four options: save 20% of large trees more than 20 inches in diameter, 25% of smaller trees 6 inches in diameter or larger, replant trees or pay into the city’s tree growing fund in lieu of preservation. Or developers can save 5% of smaller trees and mitigate the rest through payment.

Though Kine has not submitted a tree preservation plan, he did submit an existing conditions plan that shows all but one 10-inch ponderosa pine would be removed under current development plans. The city estimates there are 112 regulated trees on the site. Of those, six or seven are larger than 20 inches in diameter. That means Kine could comply with the tree code by saving two of the larger trees, said Brooke, the planning manager.

Koback argued the code forces Thistle & Nest into a position of either limiting housing density or paying substantial amounts through mitigation. In order to keep costs down, affordable housing developers don’t have much flexibility in their designs, he said.

“When you apply all these standards, it’s really a challenge, and it’s costly to keep putting these buildings where they really shouldn’t be,” he said.

The city has approved several tree preservation plans since the code was passed, but none have been for developments with substantial housing density or supply. Some tree code proponents speculated Tuesday that other developers are waiting on the results of Kine’s appeal before submitting preservation plans.

Some tree code proponents speculated Tuesday that other developers are waiting on the results of Kine’s appeal before submitting preservation plans. The most significant upcoming development in that stage of the application process is the 371-home Ponderosa development, slated for a 40-acre wooded lot in southwest Bend.
Joey Shearer, the project’s lead consultant, said he expects to submit tree preservation plans in the next few weeks.
“We intend to comply with the City’s new tree code and are not waiting on any other projects or decisions to determine our approach,” he said.