Bills that change how localities can conserve trees amid development await Youngkin’s approval

A barred owl finds habitat among the mature oaks, hickories, beeches, and tulip poplars of an urban forest in a York County, Virginia neighborhood. (Photo courtesy Evan Visconti)

Two bills were passed by the Virginia General Assembly this session that would give localities statewide access to more comprehensive laws regarding what happens to trees on land zoned for development. Gov. Glenn Youngkin must make a final decision on the fate of the measures by March 24. 

All localities statewide were given the ability to adopt optional tree ordinances when a section was added to the code in 2022. This session, legislators worked to give the entire state access to slightly more robust, but still optional, regulations, in a style similar to those currently limited to certain localities. 

The current law allows only some localities within planning district eight in Northern Virginia to adopt slightly higher tree canopy replacement percentages after a piece of land is developed compared to the rest of the state. Tree canopy replacement requires that a certain percentage of each lot must contain trees 20 years after it is developed or redeveloped. 

These select few localities can also create what’s called a “tree canopy fund” to collect and disburse fees from developers who cannot meet the tree canopy requirements of the ordinance. 

“I think that a good thing here is we’re not making up something from scratch,” said Del. Rodney Willett, D-Henrico, chief patron of the bill that would allow localities statewide to establish a tree canopy fund. “The funds have been successful in that limited area.”

In Arlington and Fairfax Counties, fees that are collected from developers who cannot meet the tree canopy requirements are placed into designated tree canopy funds. The counties are then able use that money to plant and maintain trees or donate to nonprofits that plant trees.

Documenting and preserving Virginia’s largest, most revered trees

“It’s sort of a win-win,” said Ann Jurczyk, the Chesapeake Bay Foundation’s Virginia manager of urban restoration. “The development community likes it because it does give them more flexibility.” 

Instead of having their hands tied when tree replacement requirements on a site cannot be met, developers can pay into the tree fund as an alternative.

The fund also provides localities “a way to get more trees into the ground,” Jurczyk said.

Del. Patrick Hope, D-Arlington, chief patron of the bill to increase tree canopy replacement percentages available to localities statewide, said his bill was also written with Northern Virginia in mind as a template for the rest of the state.

“You know what’s good for Arlington is good for everyone, and we do have a very high bar because we do love our trees in my locality,” Hope said. “Other localities love their trees too, and this will give them an extra tool to make sure that we can preserve our trees for the long term across the whole commonwealth.”

Hope emphasized that the tree ordinance would be entirely optional for localites and clarified that the bill “may not work for everybody, but in those localities that this is a really important thing to do, then you know I don’t see how the opposition could argue with everyone coming together to adopt this.”

Youngkin vetoed an identical bill from Hope last session despite the bill’s consensus support from land developers and environmental advocates alike. 

“Maybe [Youngkin] didn’t quite understand that this bill is fully supported by all stakeholders,” said Hope. 

Representatives from the Chesapeake Bay Foundation as well as lobbyists for the Home Builders Association of Virginia and the Virginia Association for Commercial Real Estate all stood up to voice their support for Hope’s bill during a Senate Committee meeting this session. 

According to Jurczyk, the fact the developers stood up to support the bill demonstrates how “watered down” it is. 

Jurczyk voiced her concerns about what she called the “poison pill” that’s written into Virginia’s tree ordinances.

“No locality can ask for additional canopy than written in the code, and we’ve fought against that pretty much every year,” said Jurczyk. 

For example, Hope’s bill would boost the maximum tree canopy that a locality can require to be conserved from 20% to 30% for certain residential sites zoned for development. The Chesapeake Bay Foundation would like that percentage to be the minimum that a locality can choose to require under the ordinance, not the maximum.

Setting a maximum tree canopy that localities can choose to require clashes head on with tree canopy goals being agreed to in parts of the state, said Jurczyk.

The Metropolitan Washington Council of Governments, which includes localities in northern Virginia, set a goal to maintain a minimum tree canopy coverage of 50% across the metropolitan Washington region.

Jurczyk wonders how a 50% goal can be met if localities are allowed to “remove acres upon acres of canopy” and “not replace it on a one-to-one basis or better.” 

Hope said he would have liked the bill to be “a little bit stronger,” but added that “part of the deal is that when you work together with people you don’t always get what you want but you certainly do move the ball forward, and I think this is a good compromise where we landed, and I hope the governor signs it.”

Hope also urged developers “to please contact the governor’s office to make very clear to him that this is a really good proposal, and it’s a compromise piece which they’re very happy with.”

Andrew Clark, Vice President of Government Affairs at the Home Builders Association of Virginia, said he has not had any conversations with the governor’s office regarding the bill. 

“Continuing to add to these statutes will, I think, create some administrative challenges for localities,” said Clark, adding that other states have written tree laws with “more streamlined, consolidated, almost user friendly approaches that create some predictability.”

“Virginia has really complex tree statutes, like really complex, and often it’s localities that are then adopting the ordinances and those ordinances are complex,” said Sarah Thomas, a contract lobbyist for the Virginia Association for Commercial Real Estate. “So Virginia is definitely a special place when it comes to tree law.”

“There probably is a simpler way to achieve the goal of preserving existing trees where possible and if not possible, mitigate the loss with the end goal of no net loss,” Jurczyk said.

Del. Marty Martinez, D-Loudoun, was chief patron of a third local-option tree bill that would have required developers to survey for the critical root zones of existing trees on sites and submit their findings to the locality. 

The Virginia Department of Forestry defines the critical root zone of a tree as the area encompassing all of the roots extending to the dripline of the tree, or the overall circumference of its canopy. 

The bill failed in the Senate Agriculture Conservation and Natural Resources committee this session.

Clark and Thomas both stood up to oppose the bill during the Senate Committee meeting, their main reason being that the surveys would be too costly and time-consuming for developers. 

Sen. Richard Stuart went a step further and said the bill makes it impossible to get affordable housing in Virginia, which is his “biggest priority.”

The Committee included a letter with their rejection of the bill requiring the stakeholders to get together and “try to hammer out something that’s going to be protective of the critical root zone,” said Jurczyk. “So we’ll come back next year with something we hope everybody can live with.”