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The public works director may prohibit the removal of a regulated tree or a tree that has been designated by the Asheville City Council as historic. The following factor(s) may be a basis upon which the public works director may deny a permit to remove a regulated tree: (1) there exist no current plan to develop the property; (2) the planned development can be constructed without removing the regulating tree; (3) the purpose for removal can be accomplished with less drastic results; (4) the health of the tree; (5) the proposal for replacement of the regulated tree; and (6) any other factors reasonably related to the tree. The public works director may attach reasonable conditions to the removal. The owner may appeal the director's decision in accordance with section 20-53 of this chapter.
(Ord. No. 2378, § 1, 6-1-97)
Public and private utility companies which install overhead and underground utilities (including CATV) shall be required to accomplish all work affecting trees and shrubbery located on such private property in accordance with the applicability of this chapter.
(Ord. No. 2378, § 1, 6-1-97)
(a) The public works director may cause or order to be removed any tree or part thereof on private property which is unsafe, injurious to the public welfare or which, by reason of its nature, is injurious to sewers or other public improvements or is infested with an injurious fungus, insect or other pest.
(b) The public works director may enter upon private property in the city to spray, or otherwise treat or cause or order to be sprayed or otherwise treated, any tree infected or infested by any parasite, insect or pest when it shall be necessary to do so to prevent the breeding or scattering of any parasite or animal pest and to prevent danger there from to persons or property or to trees planted on city property.
(c) Whenever, in the opinion of the public works director, the removal of a tree or shrubbery on private property shall be necessary, under the provisions of this section, the public works director shall have the power to remove such tree or shrubbery or cause or order the same to be done upon notice and an opportunity to be heard to the property owner.
(d) Prior to exercising the authority conferred by this section, the public works director shall give the owner notice and an opportunity to correct the condition by requesting that corrective action be taken. The request shall be in writing to the owner of the property in question and shall be acted upon within 30 days (or a lesser period of time if an imminent threat to life or property exists, from the date of the receipt of the request.) If, after 30 days or such less time period, the owner has not corrected the condition or undertaken action that would lead to a timely correction of the condition, the public works director may enter upon the property, perform the work necessary to correct the condition and bill the owner for the actual costs incurred. In situations involving an imminent threat to the public health, safety or welfare, the city may act without prior notification to the property owner but notice shall be given within a reasonable period thereafter.
(Ord. No. 2378, § 1, 6-1-97)
Secs. 20-45—20-51. Reserved.
ARTICLE IV. INSPECTION, ENFORCEMENT AND APPEAL
(a) The public works director and the director of planning and development may periodically inspect areas subject to the provisions of this chapter.
(b) If through inspection it is determined that a person has failed to comply or is no longer in compliance with the provisions of this chapter, a notice to comply shall be served upon that person by registered mail, returned receipt requested or by hand delivery from the public works director. The notice shall state the violation and describe that which will be necessary to comply with this chapter.
(c) The public works director may conduct such investigations as deemed reasonably necessary to carry out the duties as prescribed in this chapter and may enter at reasonable times upon private property as defined herein, for the purpose of inspecting trees and shrubbery subject to the provisions of this chapter. No person shall refuse entry or access to any authorized representative or agent of the city who request entry for the purposes of inspection and who presents appropriate credentials, nor shall any person obstruct, hamper or interfere with such representative while in the process of carrying out official duties.
(Ord. No. 2378, § 1, 6-1-97)
(a) Notice and appeal.
(1) Any person who violates any provision of this chapter shall be notified by the public works director of the specific violation by certified or registered mail, return receipt requested, or by hand delivery. The notice shall set forth the nature of the violation, the measures required to comply with this chapter, if compliance is at all practicable, and a reasonable time period within which compliance must be had.
(2) If any aggrieved person disagrees with a decision of the public works director, such person may request a hearing within ten working days of receipt of the violation. The request must be in writing and directed to the tree commission's secretary. The secretary shall immediately assemble an appeals board from among the membership of the tree commission. The chairperson of the Asheville Tree Commission shall always serve on the appeals board as the chairperson and shall not vote except to cast the deciding vote in case of a tie. The members to sit on the board shall be selected on a rotating basis. The owner shall have the right to be represented by counsel, examine and cross examine witnesses at said hearing. The city attorney shall serve as the appeals board's legal advisor during said hearing. The appeals board shall render its written decision within 30 days after the hearing.
(3) The appeals board may modify, amend or revise the decision appealed from. The decision of the appeals board shall be served upon the appealing party by registered or certified mail, return receipt requested, or by hand delivery.
(4) If any aggrieved party is dissatisfied with the decision of the appeals board, an appeal may be taken to the Buncombe County Superior Court. Notice of the appeal must be filed within ten working days of receipt of the appeals board's decision. The parties may stipulate that the appeal to the Buncombe County Superior Court shall be a review of the record only. In the absence of a mutual stipulation, the review shall be de novo.
(5) Any aggrieved party may request an injunction to preserve the status quo during the pendency of any appeal in accordance with applicable North Carolina law.
(b) Civil penalty. Any person who violates any of the provisions of this chapter shall be subject to a civil penalty. The amount of the civil penalty shall be $100.00 except as hereinafter provided. Each day of a continuing violation shall constitute a separate violation. The appeals board shall determine and assess the civil penalty, if any, at the time of the appeals hearing, if one is requested. In the absence of an appeal, the public works director shall submit a request to the chairperson of the appeals board who shall assemble the appeals board and assess the civil penalty with supporting documentation upon prior notice to the violating party of the date and time of the appeals board hearing. At least ten days notice shall be given to the violating party of the date, time and location whereby the appeals board will consider the request to assess a civil penalty. In determining the amount of the civil penalty, the appeals board shall take into consideration the amount of money that the violator would be required to spend in order to be in compliance with the provisions of this chapter, the amount of money saved by the violator in violating the ordinance, the cost of replacement of any removed tree, shrubbery or regulated tree. In determining the specific amount of the civil penalty for damage or destruction to regulated trees, the appeals board shall use the standard tree evaluation formula provided by the International Society of Arboriculture, as it may be amended from time to time. The standard tree evaluation formula is made a part of this chapter and adopted herein by reference. The appeals board shall have no discretion to vary the cost figures set forth in the formula. The appeals board may however, recommend that the amount of the civil penalty be modified as part of a negotiated settlement with the city. Upon failure of the violator to pay the assessed penalty or reach an equitable settlement within 30 days, an action in the nature of debt in the name of the city in the appropriate division of the general courts of j stice may be instituted by the city attorney for recovery of a debt.
(c) Criminal penalty. A violation of this Chapter subjects the offender to a civil penalty, pursuant to the authority granted by N.C. Gen. Stat. sec. 160A-175, and does not subject the offender to the criminal penalty provisions of N.C. Gen. Stat. sec. 14-4.
(d) Injunctive relief. Whenever there exists reasonable cause to believe that any person is violating this chapter or any standards adopted pursuant to this chapter or any term, condition or provision of an approved permit, the city may, either before or after the institution of any other action or proceeding authorized by this chapter, institute a civil action in the name of the city for a mandatory or prohibitory injunction and an order of abatement demanding the violator to correct the unlawful condition upon or cease the unlawful use of the property.
(Ord. No. 2378, § 1, 6-1-97)