Portland committee grants herbicide waiver for Peaks Island knotweed

[0:00] Troy (Staff): Committee today to convene to hear a waiver of an applicant at 690 Seashore Avenue for a waiver. It's actually one request and there's three documents in the package that talk about the issue. So this is actually a real, my camera's back, this is actually a re-application of from a previous, the applicant previously applied for a waiver and denied due to the finding that the application lacked specific detail to move forward, particularly in the landscape management piece. So this re-application has addressed those deficiencies and I think maybe let's walk through the findings as required by the ordinance. Under the current version of the ordinance, the sustainability director is tasked with reviewing application materials and making a recommendation to the committee on whether or not the waiver should be granted. So the applicant is seeking a waiver pursuant to Chapter 34 from the requirements of the city's Lanker Ordinance. They would like to apply some herbicides to control a very well-established monoculture of Japanese knotweed that covers a substantial part of the property. The applicant is asserting that the situation warrants a waiver because the knotweed has compromised the integrity of the septic system and the leach field on the property, and that root intrusion from the knotweed and from another plant is threatening the structural integrity of his home's foundation. They've contracted with a landscaping professional to evaluate the site and document the conditions. They've also hired plumbing and septic contractors directors to investigate the septic system and they've identified and documented root intrusions caused by the knotweed roots that are compromising the function of the septic system. And the applicant additionally seeks to address the honeysuckle that's on the edge of the home's foundation, as well as some multiflora rose and Asiak bittersweet on the property. So in order to recommend a waiver four criteria need to be met according to the ordinance. So the first one is that the situation exists that's an emergency, it threatens the public health safety or welfare, or involves a species that poses a threat to the environment, or requires non-permitted pest management activity or building, you know, or building material to protect buildings and structures from damage. So I reviewed the materials that are included in the package, and I believe that the applicant has provided evidence that the invasive species Japanese knotweed is growing on this property, and that the knotweed is disrupting the function of the septic system. As you know, a properly functioning septic system is essential to protect the health of the public and water quality, you know, so we're not having untreated sewage, you know, going where it doesn't belong. The applicant has documented the threats posed by the root intrusion. There's photographs in the in the package that the contractor took while they were trying to investigate the situation with the septic system, and also documented the large mature honeysuckles that are abutting the property and they further the document the presence of the Asiatic bittersweet and the multiflora rose, which all of these plants are identified as invasive by the state of Maine. So I found that criteria to be a bet. The second criteria that the ordinance requires is that the applicant has carefully evaluated all alternative methods and materials, including but not limited to non-pesticide management tactics, minimum risk pesticides, non-synthetic pesticides, and is choosing the minimum amount and the least toxic, a most effective pesticide necessary. And so my findings in this case were, again, that the applicant is contracted with a qualified ecological landscaping company and has created a very thoughtful management plan to remediate the site using a very limited quantity of pesticide. It's calling for an emergency application of herbicide to quickly remediate the knotweed that's disrupting the septic system and threatening the home, and that's followed by a transition to non-pesticide management techniques, including hand removal of respouting plants. For the other invasives identified, the plan calls for mechanical or hand removal of small plants with cut stem application of a herbicide for the larger, well-rooted plants to prevent their regrowth. So as with the knotweed, the plan calls for a transition to non-herbicide management after the limit application of pesticide. And I think one of the key points that made this submission superior to the previous submission was that the plan now calls for a border of mulch around the edge of the property that will prevent the, because there's such a large growth of knotweed on the border of the property extending beyond the property line that, you know, it's going to be under a lot of pressure moving forward. The knotweed is going to want to come re-intrude. So they're proposing to create a large barrier of 20 inches of mulch around the edge of their property as a border that will suppress future encroachment of the knotweed. And I think that's a key piece of this proposal. So this approach that the applicant has submitted is based on recommendations from the sewer and septic professionals who emphasize that the knotweed must be addressed quickly to protect the septic and leach field. And with guidance from the ecological restoration consultant and also they have hired a landscape designer who's come up with a very good planting plan that incorporates lots of native plants on the property to replace the knotweed and other and other plants and these new plants will provide superior habitat and food sources for native birds and insects and that will also be compatible with the septic system where the current invasive plants are not. So I found that application, that criteria to be met. The third criteria that the ordinance requires is that the applicant will, to the greatest extent practical, minimize the application on a, you know, the impact on neighboring properties. And in this case, the applicant's contracted with a licensed applicator. They're proposing a cut stem or direct foliar application to the plants in question so they're not proposing any sort of broadcast or spraying it's limited specifically to the actual cut stems of the plants so they'll be literally would be going around and applying the pesticide directly to that plant individually so that's a very limited approach and they're also using non-pesticide alternatives for the smaller examples that are not well rooted. So in that case, I found the criteria to be met as well. The fourth criteria the ordinance requires is that to the maximum extent possible, the grant of the waiver will not be detrimental to the public's health, safety, and welfare. In this case, continued root intrusion on the septic system on the property poses a significant threat to the environment and public health in and of itself. So I think some, you know, moving, taking some measures to end that pressure from the knotweed onto the septic system is absolutely warranted. The applicant has proposed to use a small amount of herbicide as possible to address the immediate threat from the invasive plants and quickly proposes to return to non-pesticide management strategies. So in that case, I also found that criteria to be met. And so with finding that all four of the waiver criteria are met, I'm recommending that the committee grant the waiver for 690 Island Avenue on Peaks Island for applicant Mr. Lansman. So that's my presentation. Happy to have questions. [8:19] Mark Dion: Thank you, Troy. Is there any comment from Corporation Counselor? Are you here for another matter? [8:29] Benjamin Grant: I have no comments. Amy? [8:36] Danielle West: I'm here for the second matter, Mayor. [8:39] Mark Dion: All right, that's fine, thanks. Questions from the council? Just [8:46] Speaker E (unidentified): a couple for me. You said that this was denied previously. Was that at the staff level or the committee level? So we had the [8:55] Troy (Staff): previous version of the ordinance, we had a waiver committee, and so we reviewed the waiver committee reviewed the application, and we both voted, the both there were two members on the committee at the time, and so we both voted to deny the application at the time, you know, based on the previous application did not provide the detail and documentation of a threat to the property and lacked that control that border mulch border control that would alleviate future [9:27] Speaker E (unidentified): pressure i was getting to that point so that 's one of the significant changes is the [9:32] Troy (Staff): the long-term plan, okay, and then and also the doc, the very extensive documentation of the threat [9:37] Speaker E (unidentified): to the property. Sure, and then are we aware of any opposition from the abutting landowners? I [9:44] Troy (Staff): know they had to be notified, so they were, they were notified, and I asked Mr. Landsman to follow up again to make sure that they received, and I have received no comment from any of [9:54] Kate Sykes: of others. Okay, all right, thanks. Kate, go ahead. Thank you. Thanks, Troy, for providing this information. It's a, it's a lot of, a lot of professionals have been engaged to give us this information, and I think it's clear that this landowner is really in a tough spot with the leach field and septic system with the root intrusion, and so that's really well documented. It is clearly an emergency situation. I think a lot of times with these ordinances, we have to weigh, you know, what is a public health emergency from the foliar spray itself versus what is a public health emergency from a failed septic system that could dump into the ocean. So I think that's really well documented. Some of the things that I have other questions about, however, are it is really unclear to me what organic or mechanical mitigation methods have been tried. I see that they have been explored or investigated, but I'm just curious, what has the landowner actually done to try to cut the knotweed, to cover it with tarp, or whatever it is that we can do to mitigate this organically? Troy, can you tell me about that? I know Mr. Lanz mentioned [11:09] Troy (Staff): some efforts on parts of the property to do some of that mitigation, but I think I think in terms of the tarping on the, because I think with a stand of knotweed this significant on the leach field, you know, the need to not, you know, one leach field, the septic system in leach fields should be accessible for service. So, you know, typically we don't cover those with barriers that would be difficult to access. So, and, you know, suppressing the knotweed with a barrier of that sort will take, you know, many years for the knotweed to reduce in vigor. And it could still remain, could still threaten the septic system even during that period of time. So I think in this case, the pesticide application, while we don't want to have pesticide applications, the threat to the septic system is very significant. And in this case, the pesticide application fixes that problem much more quickly than a tarp over the septic system would, which I think we'd certainly want to hear more feedback from the septic companies but my understanding is having you know having it covered in a thick layer of mulch and a tarp reduces would limit their ability to provide service if that were required and you know on the leach field you [12:28] Kate Sykes: know a tarp well the ability for someone to get your leach field I'm sorry I don't buy that [12:35] Troy (Staff): they would have to I mean they would have to disrupt the tarp you know they certainly could [12:38] Kate Sykes: could do that. Okay. So I just want to say very clearly, one of the concerns of the previous committee was that the demonstration of organic interventions is lacking on a lot of these applications. And so because the council now has taken over the role of doing that, I think we have to be really careful about what it says in our ordinance and what we're actually providing here for the council around decision-making information. So for me, I don't see that here. I think it should have been provided. I think we should have been provided with a schedule of the number of mowings that have been tried over the past year or past several years or whatever. I think that what we wanna avoid is having staff make policy decisions, things like this isn't going to work for this particular instance. Instance, I think we want to follow our ordinance as much as possible. Okay. So that said, I think that we're in an emergency situation here. So I am inclined to grant the waiver for this case, but I want to make it really clear that I don't like the way that this has been presented to us because we are not actually given the information about what organic methods have been tried. Furthermore, I'm concerned that we as a city are not supporting landowners in that attempt to try to mitigate these problems organically. We can't just throw people to the wind and say, you got to figure this out. We have elderly people who aren't able to mow. We have people who are unable to hire a landscaping company to help them do that every year. This is hard work. We need to be looking, if we want this policy to work, we need to be looking at a way to support landowners in doing this the right way. So, and I think one of the reasons that we brought this into committee is to have those kinds of discussions to inform future policy amendments. So I'm inclined to grant the waiver for the knotweed. But the other issue that I have with this application is that there is scope creep. I do not see a clear indication that there is an emergency need for treatment of the bittersweet. I do not see that there is an emergency need for the treatment of the honeysuckle. I also have not been given any information about how those particular species have been mitigated or why it would be impossible to mitigate them. I think the case is clear for the knotweed, inclined to grant that, but I would like to limit this waiver to just that species, because what we've done is we're now going to apply three chemical profiles of pesticide to this property, only one of which is required for the knotweed. So that's my position on this, and so I'd like to see what my fellow councilors think about that. [15:24] Mark Dion: Any comments, Ben? [15:28] Speaker E (unidentified): Well, we have Troy and we have the landowner around, right? [15:31] Mark Dion: So can we ask them? I'm gonna ask the way I'm gonna ask landowner and to comment, okay, in just a moment. I didn't know if he had any reaction. I mean, my position is to grant your waiver as stated, period. So with that, I'll invite Mr. Landsman into the conversation. May [16:01] Kate Sykes: just take a moment, he has to rejoin and [16:08] Mark Dion: hello, can you hear Mr. Landsman? I like if it's possible for you to address concerns expressed by council sites in terms of any efforts you've made to date to manage these [16:21] Public commenter: intrusive plans. Sure. Thanks, Mr. Mayor, and thank you all for hearing this out and for allowing us to present. I've put a lot of work into this and trying to do this the right way. We care deeply about this property and about the area, and it's really important that our family grows up in this space that you know is safe for them and for our neighbors. We so you know we've relied a lot on these professionals to give us a lot of advice, you know, they continue to tell me that, you know, there's no way to really sort of treat this mechanically and sort of the larger issue of it, you know, getting into the septic and also into the foundation and to be clear, you know, our house is it's not technically a historic property, but it's it's on top of an old World War II bunker. If you know Peaks Island, it's commonly known as Big Daddy was the bunker that was the mine control. And so, you know, these species are in the cracks of the foundation, even though they're very wide. It's it's causing an issue. And obviously we want to preserve and protect the property. property. So we've mowed it a few times. We haven't tarped the knotweed because we've been told that the roots just will continue to grow down and into the septic and into the leach field despite what's happening up above. But we have mowed it several times. We've had a company come out to jet clean and they're only able to try and get the roots out on some level. They've proposed just, they're like, we can dig up the system and put something else but it's just going to happen again and obviously there's a lot of ledge and rock in the space that it's already sort of difficult as it is so you know that 's what we've done we haven't tarped you know our property also sort of is close to the water so there's an issue of obviously things getting into the water and then you know the property to the north of us is portland's property and you know there's sort of a spring water that is there that is, you know, you know, always sort of running, and people are drinking water in that space. So it's really important to us that we try to make sure that we're, the dogs are drinking water from that space, that we're keeping this as clean and protected as possible. And we want to plant native species that I think will, you know, I think Troy did a better job at explaining this than I possibly could, but you know we want to plant native species, so it's, it's a really beautiful place, and it goes back to really being what it, what it should be. So I understand that we haven't, you know, fully mowed, which is, you know, a pretty huge task, as you've noted, to mow these. It's not like you can just take a lawn mower, like it's, it's, you know, very specific equipment, and it takes a long time. You have to mow it down, you have to let it lay so that it sort of dies before you transport it, and then you know getting it off the island, like each time you do that is, you know, an incredibly expensive and difficult process. And even just when we tried to do it one time, you know, the difficulty in getting that scheduled and finding somebody that would do that work on the island was very limited, and you know was like a year out for me to get somebody to come and do it, and it can only really be done in a two-month window in order for it to be sort of effective. I don't know if that answers your questions. And they were very thoughtful points. [20:01] Mark Dion: That's helpful, Mr. Lansman. Any questions of the gentleman from the council? [20:09] Speaker E (unidentified): I mean, I'm interested in- No, wait a minute. [20:12] Mark Dion: Ben, Kate had her hand up first. Go ahead. Yep. Sorry. [20:15] Kate Sykes: Sorry, Kate. Mr. Lansman, thank you. I appreciate you being here today, and I think it's a little bit unfair for us to ask you to defend this. I think that we have some policy problems in our ordinance. And so I don't want to put you on the spot around those things because we need to solve those ourselves. But I do appreciate your future thinking around this property. I think that it is going to be a much better situation for everyone once these species are gone. And as I said, despite the fact that it sounds like you haven't done the full mitigation around the knotweed with the multi-year cutting and tarping and all of that. Again, I'm inclined to grant that waiver. I think that you're in a tough situation with your leach field and septic, and so that is great. But I just want to ask you just to address the rose and the honeysuckle. Have you cut and tried to remove [21:12] Public commenter: those yourself? We've done some cutting. We haven't done the full removal of everything because it's also very intertwined with the knotweed itself, too. So I don't know if you saw in the photos of the space, you kind of have to do everything all at once. You can't just do, you know, bits and pieces there. [21:30] Kate Sykes: Thank you. Go ahead, Ben. [21:34] Speaker E (unidentified): That addressed my question. I mean, I'm inclined to grant this hearing that answer that it's not, I'm sympathetic to what you're saying, Kate, around kind of mission creep, but it doesn't sound like this is on the property itself. It's something you can just sort of, it's not like one thing's over here and the other thing's over there. It sounds to me like it's kind of an all, they're all just mashed together. So to say we're gonna get rid of one but not the others probably isn't practical. [22:05] Kate Sykes: I appreciate that, Counselor. I think that the practicality of it is a separate question from what our ordinance actually says. And I don't think that the two species and the chemicals that are being used to address those have actually met the criteria of the ordinance. So for me, that's just what I'm focusing on. I understand it's not practical, but to actually add extra chemicals without having met the criteria for that feels to me like we're not within the confines of our policy. [22:34] Mark Dion: So, Kate, are you making an amendment, or is this just a common waiver generally? [22:38] Kate Sykes: Yeah, I mean, I guess if that's how we'll do it, I would move to amend this waiver to include only the chemicals needed to address the knotweed. [22:48] Mark Dion: All right. Is anyone going to second that? Yeah, [22:56] Speaker E (unidentified): Hold on. I mean, I want to interrogate this a little bit further, because I hear what Kate's saying, and I want to respect the statute, the ordinance as well. But I just want to know what this means in practice from either Mr. Lansman or for Troy. You know, is it something, what happens if, you know, what is the practical, I mean, Kate said that's not her concern, but I am going to remain focused on the practical aspect of this. So I just want to know what it means to have one but not the others. [23:26] Troy (Staff): Is that a question for me, Counselor? Yes. Yes again as far as I can tell from what I've seen from the photographs that the situation is kind of what you're talking about Counselor Grant that they are and certainly looked for Mr Landsman confirmed that but does seem that as the species are all mixed together but you know as you saw the photographs that showed the knotweed and the and the honeysuckle close together and the bittersweet I assume is you know mixed amongst the property as well probably climbing some of than our wheat stocks, because I didn't see any real trees around there in the photographs. So I guess I would defer to Mr. Lansman to confirm those things. [24:08] Public commenter: That's correct. Honestly, I'm not an expert at this. I'm just going based on what I can see, and it looks like, and what I've been told by the experts that we've brought in to try and help us. But that's exactly what it looks like. Troy, can I ask you just another question? [24:25] Kate Sykes: So if we addressed the knotweed with the methods that are outlined in the waiver and did not apply pesticide to the other species, that extra pesticide that we're asking for here, what would be the mitigation strategy after that? [24:43] Troy (Staff): For the, I guess they would continue to, for the larger rooted ones, you know, they'll just have to keep cutting them every, for, you know, very, long time. The large the well-rooted and particularly the honeysuckle one the honeysuckles and the multifluorose stems this right you know regular cutting and some of the bittersweet sauce can get very substantial too so it'd just be repeated cutting and probably wouldn't actually it probably wouldn't actually remove the bittersweet not by the cutting because it'll just re-sprout and it'll continue to recap them the smaller ones you can you can pull up by the roots again the proposal in the in the plan That was presented was to do manual removal for the smaller, less well-rooted multiflora rose and honeysuckle and business wheat, and only do the application on the well-established, deeply rooted examples of the those species. So those are the ones that would be, you know, take, you know, many, years to suppress with just, [25:52] Kate Sykes: you know, cutting the regrowth. Are those deeply rooted plants posing an emergency hazard on this [26:00] Troy (Staff): property? If they're on the septic field, yes, because we don't want any woody, we don't want any woody plants on the septic or leach field. Okay, that is the information that I needed in [26:11] Kate Sykes: this waiver in order to make sure that those were covered. So just note to future, I'm going to withdraw my emotion, but I need to have, I need to make sure that we're meeting the criteria for every species and for every chemical that is being applied. All [26:29] Mark Dion: right, Ben, do you have any follow-up? No, I'm good, thank you. I just want to say I don't necessarily agree with what you brought up, Kate. I guess having any kind of situations described, I'm getting services to an island, and it's just a task beyond an understanding by someone who lives on the mainland all the time. So that is a mitigating factor in my consideration of the waiver. Is there a motion to approve the waiver? So moved. Is there a second? All right, all those in favor please signify. Waivers approved unanimously. Mr. Landsman, thank you for taking the time to join us today. I wish you any kind of success possible in dealing with this [27:33] Public commenter: Thank you so much, and thank you for the thoughtful consideration and for the hard work you guys do. I know it often goes unnoticed, so thank you all very much, I really appreciate it. [27:42] Mark Dion: And it's really important work. Thank you. Thank you, Troy. Thanks for your presentation and outlining [27:49] Public commenter: the issue. Okay, thank you, have a great day everybody. Really thoughtful, thank you, Troy. [27:53] Troy (Staff): All right. [27:57] Mark Dion: We'll go on to a rule change process reference bathrooms. Dina, you want to set it up for us. [28:09] Benjamin Grant: Yes, thank you, Mayor. This item came about after several years of requests and interest from businesses who hope to take advantage of the city's regulations that came into effect during and right after the COVID-19 pandemic to expand outdoor seating, which in many cases required that these businesses also provide additional restrooms, and that's in accordance with plumbing code, which is enforced by the City of Portland's Permitting and Inspections Department. As a result of those regulations, staff more semi-often would be required to either the square footage that was being requested by restaurants, or they would need to deny the application outright. And the mayor recently asked staff to research how this code may be changed. It's not something that can be amended on the local level. But after working with Amy McNally and Corporation Council's office, we found that the city could petition the plumbing board at the state level, to open the rulemaking process essentially and consider a change at the state level to the relevant code. And so I believe there's a memo in the backup that describes that process in a little bit more detail, but also Amy is here and will know much more than I about the process and any legal implications. [29:53] Mark Dion: Amy, if you want to add, [29:54] Danielle West: Anne, please. I don't have much to add, Mayor. I mean, the memo kind of points to a couple important links that are the authority that we're looking at. First, there is the Nationwide Plumbing Code, which the state has adopted through the examination board. The board also has adopted rules, which is within their rulemaking capacity. And in those rules, they do have some exceptions and they have the authority to create certain exceptions to the national code at the local level. And so we've kind of pointed to the authority that creates this restriction in those rules and in the code. And really, I think what we'd be asking the board to consider is a limited exception for the purpose of seasonal or temporary outdoor dining. Essentially, if occupancy is on a temporary or seasonal basis expanded for something like outdoor dining, then it doesn't necessarily trigger that increased number of toilets or water closets or whatever the case may be. So that would be the gist of the petition that we think would get the results that we've kind of are looking for. As far as the actual redlining of the code, I certainly would leave that up to the experts on the board to do, but I think we would just essentially make a suggestion for the policy change thanks to members of the committee [31:19] Mark Dion: As I said, I brought to staff because once again I had another restaurant come forward looking to have outdoor dining. I think that's a condition that many restaurants enjoy, but others would as well. And I look back with a smile since I've become a member of the council, never mind as mayor. I can't tell you how many times I've had to engage in the toilet conversation, and it just seemed like, why can't we solve toilets? So this is an opportunity for it to go to where it needs to go to the state. If they grant exception, then that gives the council some latitude about whether or not such an amenity should exist for any one of the applicants that might come forward. So that's the goal. I brought it to committee here because we've got to get material ready for the end of July, and they have a hearing sometime in August, and if I understood, it could be six months or more before they make any recommendation on our proposal for the rule. So at that time, we'll come back and take a look at it. So I'm hoping to get your support so that we can file such an application. Comments? [32:41] Speaker E (unidentified): Sounds good to me, yeah. [32:46] Kate Sykes: I mean, I think that we should be doing this on a lot of levels, just advocating at the state for things that are affecting Portland. So yeah, I see no reason to object to this at all. Sounds like a good idea. [33:04] Mark Dion: So I'll take a motion from the floor to author staff to submit an application, moved by Council Sykes, seconded by Council Grant. All those in favor, please signify. Hi, you have your authority to move forward, you know, with staff. Thank you. And I, we're going to conclude. There's no other business. I just want to make a comment, Kate, I think all the things you said about the waiver process have legitimacy. In my opinion, I heard from the Sustainability and Transportation Committee on the question of whether to prepare an institution or a society committee so they can do this kind of work. So I will follow up with Councilor Phillips. Unless someone here on staff has some information, I have a perfect thing on that. Are you leveled in here? [34:22] Benjamin Grant: Mr. Mayor, I don't know. Either you're breaking up for me or... [34:28] Speaker E (unidentified): I think it's him. Okay. [34:29] Troy (Staff): I was like, well, I have a bad connection. I can't believe it. [34:32] Benjamin Grant: All right. I cut half of what you said. [34:36] Mark Dion: That might be the safest way to deal. All right. I've got to follow up with Councilor Phillips to see where they're at on the question, so that we can return it. You still can't hear me? [34:51] Benjamin Grant: I know. I think you said you have to follow up with Councilor Phillips, but I'm still not sure of the issue. [34:58] Mark Dion: I wish Troy was here, because I'd ask to get an update, but he's left us. [35:02] Kate Sykes: I think the mayor is saying that we need to send this to S&T for the changes to the ordinance so it can come back to the council. I think that's what I heard. Okay, yeah. [35:13] Mark Dion: Okay, I think can someone move, can you hear me now? All right, take a motion to adjourn. So moved. Second. Moved by Councilor Sykes, seconded by Councilor Grant. All those in favor? Yes. Unanimous. Thanks for taking up this time this morning. I'll talk to you all later.