§ 155.064  TREE PRESERVATION AND PROTECTION.
   (A)   Unimproved land.  Removal of any tree 4 inches or greater in diameter on unimproved land shall be prohibited in the absence of an approved building permit, except as follows:
      (1)   Allowable removals on unimproved land:
         (a)   A diseased tree or a dead tree. The Building Commissioner shall be consulted. If the Building Commissioner is unable to ascertain if a tree is diseased or dead, a certified arborist can be consulted to make that determination;
         (b)   A tree whose species is identified as a nuisance tree (as defined in § 155.003);
         (c)   A tree that presents an imminent danger to humans or potential damage to structures; and
         (d)   A tree for which removal is pursuant to a written naturalization plan, which may be provided annually for a 12-month period, approved by the Building Site Committee, for the removal of nuisance, non-native or invasive species.
      (2)   Removal pursuant to allowable removals in division (A)(1) above shall be subject to the following additional conditions:
         (a)   Prior written applications to the Town Clerk for a tree removal permit, including payment of any required fees. The written application shall include, but not be limited to, the number, approximate location, reason for removal, and diameter of trees to be removed. Each permit may allow for the removal of up to ten (10) trees.
         (b)   Review and approval of the application in (a) above by the Building Commissioner.
         (c)   The permit must be applied for and received before beginning removal work, except in case of imminent threat to humans or structures, under division (A)(1)(c) in which case the permit must be applied for within five (5) business days after the removal.
         (d)   The fee for each permit shall be in accordance with the Town Fee Schedule, § 10.99.
      (3)   Removals pursuant to the allowable unimproved property exceptions above shall require that trees be cut down, never knocked over using heavy equipment. If stumps are to be removed, they shall be removed using stump grinding equipment, axes and saws, never ripped out using heavy equipment.
   (B)   Improved land. Removal of any tree 4 inches or greater in diameter on improved land shall be prohibited, except as follows:
      (1)   The property owner may remove any tree within 15 feet of the dwelling unit.
      (2)   The following are allowable exceptions to the above improved property restrictions on tree removal:
         (a)   A diseased tree or dead tree. The Building Commissioner, or his or her written designee, shall be consulted. If the Building Commissioner, or his or her designee, is unable to ascertain if a tree is diseased or dead, an arborist certified by the Indiana Arborist Association can be consulted to make that determination;
         (b)   A tree that presents an imminent danger to humans or potential damage to structures as determined by the Street Commissioner of the Town of Beverly Shores; and
         (c)   A nuisance tree (as defined in § 155.003).
      (3)   Removal pursuant to division (B)(1) above and the allowable improved property exceptions in division (B)(2) above shall require that trees be cut down, never knocked over using heavy equipment.
      (4)   Excepting stumps located within the footprint of an approved building, if stumps are to be removed, they shall be removed using stump grinding equipment, axes and saws, never ripped out using heavy equipment.
   (C)   Tree topping.
      (1)   This practice of severely cutting back of limbs within a tree's crown of branches so as to alter its natural shape and disfigure the tree shall be prohibited, except as provided in division (C)(2) below.
      (2)   The only allowable exception to this prohibition shall be utility companies in the maintenance of their easements, when other less disfiguring pruning practices are ineffective.
   (D)   Protection of trees during construction.
      (1)   By far the greatest damage to our trees, and the fragile dunes they are critical in stabilizing, occurs during construction activities. Heavy construction equipment activity is largely responsible, including purposeful or inadvertent knocking over of trees that disturbs large areas of fragile topsoil and potentially damages other adjacent trees and vegetation.
      (2)   Heavy equipment traffic over tree root zones (which extend as far as the tree's leaf canopy) compacts soil and suffocates tree roots, resulting in tree die back or death over time. In addition, altering of original grades in tree root zones jeopardizes long-term tree survival. To avoid long-term tree damage, the maintenance and/or restoration of original soil grades is imperative.
      (3)   To reasonably protect existing trees, the following tree protection measures shall be mandatory whenever building activity is undertaken. Items in divisions (3)(a) through (d) below shall be completed and inspected by the Building Commissioner prior to commencing any excavation, site clearing or building activity. Once the site plan is approved no changes can be made.
         (a)   Trees to be removed in accordance with the site plan shall be marked with colored ribbon for easy identification. During the construction process for improved land, the property owner may remove any tree within 15 feet of the dwelling unit being built.
         (b)   In order to protect the trunks of trees, 2 x 4 or similar sturdy lumber 8 feet high shall be lashed to the trunks of trees adjacent to ingress/egress routes on the property and other high risk areas;
         (c)   Trees to be removed in accordance with the site plan shall be cut down, never knocked over using heavy equipment, in a manner so as not to damage adjacent trees. Stumps located within the footprint of an approved building may be removed using heavy equipment. If stumps are to be removed outside the footprint of an approved building, they shall be removed using stump grinding equipment, axes and saws, never ripped out using heavy equipment;
         (d)   Directional drilling for the installation of utilities is preferred over trenching because trenching may involve the cutting of roots. Where trenching is used, trenches must be run around critical root zones to prevent root damage;
   (E)   (1)   Penalty. Any violation of this section shall be subject to the provisions of § 155.999 of this chapter, except that the fines and other penalties for the removal of any tree in whole or in part, including the topping of any tree, in violation of this section shall be as set forth in § 10.98, with each tree representing a separate offense.
      (2)   In addition to the fines and other penalties, trees cut down in violation of this section shall be replaced with that number of 2-inch diameter trees so that the sum total of the diameter of all replacement trees equals the diameter of the removed trees.
      (3)   Diameter means a measurement of the size of tree that is equal to the diameter of its trunk, measured 4 1/2 feet above the adjacent natural grade.
      (4)   The following species of trees may not be planted as replacement trees (See definitions for  TREE and NUISANCE):
         (a)   Tree of Heaven (Ailanthus altissima);
         (b)   Buckthorn (Rhamnus cathartica and Rhamnus frangula);
         (c)   Russian Olive (Elaeagnus angustifolia);
         (d)   Black Locust (Robinia pseudoacacia);
         (e)   Siberian Elm (Ulmus pumila);
         (f)   White Mulberry (Morus alba);
         (g)   Red Mulberry (Morus rubra);
         (h)   Honey Locust (Gleditsia triocanthos);
         (i)   Black Locust (Robinia pseudoacacia); and
         (j)   Sweetgum (Liquidambar styraciflua).
      (5)   If a removal pursuant to division (A)(1) above is done without receiving a permit as required by this section before beginning the removal work, the cost of the permit shall be twice of the amount of the fee. This additional fee is in addition to, and not in lieu of, any fine that may be imposed for violating the town code. This division (E)(5) shall not apply to emergency removal that is done due to imminent threat to humans or structures, but shall apply when a permit for emergency removal is not applied for within five (5) business days after the emergency removal work.
      (6)   (a)   A tree removal fine shall be waived for offending property owners meeting the following criteria:
            1.   It is the offender’s first violation of this section; and
            2.   The offender removed trees that satisfied the requirements of divisions (A)(1), (A)(3), (B)(1), (B)(2), or (B)(3), provided that the offender bears the burden of proof for each removed tree.
         (b)   In the event the above criteria are satisfied and the tree removal fine(s) are waived, the offender shall still be required to pay the cost of the applicable permit fee as set forth in division (E)(5) above.
      (7)   Division (E)(6) above shall only apply to property owners. If a first-time offense for a property owner is committed by a contractor, the applicable tree removal fines shall be assessed and charged to the contractor.
   (F)   A tree removal fine shall be assessed and paid according to § 10.98. The increased incremental fines and higher replacement ratio for larger trees is intended as a deterrent in order to address the fact that these trees are a significant and valuable resource for the entire Beverly Shores community.
   (G)   Tree removal fines shall be paid to the Town Clerk-Treasurer and shall be designated as funds to be used for the planting, care and maintenance of trees on town-owned property and parks, and on the public right-of-way.
   (H)   No building permit shall be issued for a property upon which a tree removal violation has occurred for a period of 1 year from the year of the last violation.
   (I)   No building permit shall be issued for a property upon which a tree removal violation has occurred until all unpaid tree removal fines have been paid.
   (J)   No certificate of occupancy shall be issued for a property upon which a tree removal violation has occurred until all unpaid tree removal fines have been paid.
   (K)   No building contractor registration shall be issued for a contractor which has been assessed with tree removal fines until all unpaid tree removal fines have been paid.
(Ord. 208, passed 12-19-1983; Am. Ord. 09-12, passed 11-16-2009; Am. Ord. 2014-04, passed - -; Am. Ord. 2016-11, passed 12-19-2016; Am. Ord. 2018-01, passed 5-15-2018)  Penalty, see § 155.999