New Ordinance Notice: Publisher's Note: Section 7.2.7 has been amended by Ord. 2023-LDO-04, approved 11/16/2023, effective 11/16/2023.
(A) Tree Protection and Tree Surveys
(1) Intent and Purpose
It is the intent of the Town Council to preserve trees and other vegetation through buffer (including urban transition buffer), streetscape, and floodplain regulations, and through champion tree preservation requirements, to the extent practical and reasonable. Preserving trees and vegetation on a site should not prevent the reasonable development of a site, given its zoning classification. This section 7.2.5 is designed to recognize unique site conditions and to allow flexibility in meeting the requirements.
The Town Council finds that preserving trees and healthy vegetation on a site during development:
(a) Maintains and enhances the visual character and aesthetic qualities and appearance of the community and preserves community values;
(b) Conserves and enhances the value of buildings and land
(c) Conserves the natural resources and environmental quality of the Town and its environs;
(d) Screens and softens the impact of construction and buildings and balances the scale of buildings;
(e) Preserves wildlife habitat, controls surface water runoff, and moderates temperatures; and
(f) Conserves water due to increased absorption ability and reduced heat effects.
(2) Requirement to Protect Champion Trees
No champion tree may be disturbed or removed except as specifically allowed by this Ordinance. Preserved champion trees and their associated tree protection areas must be shown on development plans and reuse/redevelopment plans as located in a buffer, streetscape, private open space, or other designated permanent tree protection area. In addition, champion trees permitted to be included on a residential lot must be shown on plans for the purpose of designating tree protection fencing during the development and prior to the certificate of occupancy for buildings/structures.
(3) Tree Survey Requirements
A tree survey aids in the protection of trees by locating trees on a site before development plans are fully designed so modifications can be made to the plans to protect trees. A tree survey prepared by a licensed surveyor, engineer, or landscape architect is required with the submission of all development plans. Surveys shall have been reviewed and signed by a certified arborist to confirm tree species, especially understory champion trees. A tree survey is required for development plansand reuse/redevelopment plans that propose to disturb areas that contain or are within the critical root zone of champion trees or specimen and significant trees within required buffers, streetscapes, and floodplains.
The survey shall, at a minimum, provide the following information:
(a) The number, caliper size, and location of either:
(i) All champion and upperstory specimen trees within all areas to be disturbed, all champion trees within one hundred (100) feet of all areas to be disturbed, and all upperstory specimen trees within fifty (50) feet of all areas to be disturbed; or
(ii) All champion trees located throughout the development plan boundaries, all upperstory specimen trees located within any buffer or streetscape, and all upperstory specimen trees located within fifty (50) feet of any buffer or streetscape; and
(b) All significant trees within the interior ten (10) feet of all buffers, streetscapes, and floodplains; and,
(c) A general description of the forest or forest stands on site located outside of buffers, streetscapes, and floodplains, including information on the type of trees and general size ranges.
(4) Incentives and Design Flexibility
Section 7.2.10 provides incentives and design flexibility for preserving existing healthy trees and forest stands and for protecting the critical root zone of specimen trees located outside of buffers, streetscapes, and floodplains. For example, the Planning Directormay permit the exchange of trees otherwise required to be preserved for the preservation of trees within certain non-residential buffers and may grant parking reductions if trees or forest stands that are not otherwise required to be preserved or are located outside of buffers, streetscapes, and floodplains, are preserved.
(5) Definitions
(a) Adversely impacted means that twenty-five percent (25%) or more of the critical root zone of a champion tree will be, or, within the three (3) years prior to the date of application, was disturbed.
(b) Disturbed means any use of land that results in a change in the natural cover or topography. This may include the grading, digging, cutting, scraping, compaction, or excavation of soil, placement of fill materials, paving, construction, substantial removal of vegetation, or any activity which bares soil or rock or involves the diversion or piping of any natural or man-made watercourse. Routine maintenance of landscape areas is not included as "land disturbance."
(c) Grouping means that the critical root zone of two (2) or more champion trees or champion tree(s) and specimen tree(s) overlap.
(d) Open Space means all buffers, streetscapes, or floodplains; open space required through rezoning conditions; permanent tree protection areas; designated community gathering spaces; bonus open space for conservation residential subdivisions; and other non-regulated permanent open space.
(e) Large Champion Tree means any upperstory champion tree forty (40) caliper inches and larger or any understory champion tree fifteen (15) caliper inches and larger.
(f) Small Champion Tree means any upperstory champion tree less than forty (40) caliper inches or any understory champion tree less than fifteen (15) caliper inches.
(g) Prominent Location means areas: along any
thoroughfare
or collector roadway; along a public/private street interior to the site; surrounded by buildings/homes on at least two (2) sides; or immediately adjacent to or within twenty (20) feet of a public greenway easement or public greenway property boundary.
(h) Tree protection area means areas that are required by this ordinance to be encircled and enclosed within a tree protection fence.
(B) Tree Protection During Construction
(1) Owner's Responsibility
During development of the property, the owner, developer, and/or builder shall be responsible for the erection of tree protection fencing to protect existing and/or installed vegetation from damage during development and prior to certificate of occupancy for buildings/structures. Any disturbance within the boundaries of such tree protection areas that is not authorized by the terms of this Ordinance shall result in fines as identified in Section 11.5.2(B)(2)(b), in addition to any other fines and replanting requirements for the removal or damage of vegetation within tree protection areas.
(2) Tree Protection Fencing
(a) Where Required
All existing trees and vegetation that are to be preserved shall be completely encircled and enclosed within a fence that meets the requirements of this Ordinance before grading begins. Additionally, tree protection fencing shall be required around champion trees and shall extend in a circular manner a distance of at least one and one-quarter (1.25) feet from the tree for each inch of caliper (excluding existing and undisturbed non-pervious area on redevelopment/reuse sites). The distance may be reduced if allowed under Section 7.2.10 of this Ordinance. Tree protection fencing of areas adjacent to existing and proposed roadways is also required. Tree protection fencing is required on all Town transportation projects that are adjacent to streetscapes or buffers. Existing site conditions shall be taken into consideration in determining the exact location of any tree protection fencing and staff may authorize field adjustments to the amount of tree protection fencing needed.
(b) Type of Tree Protection Fencing
All tree protection fencing required by this section shall be four (4) feet orange polyethylene laminar fencing a minimum four (4) feet high and of durable construction. Passive forms of tree protection may be utilized to delineate tree save areas that are remote from areas of land disturbance at the discretion of the Planning Director.
(c) Signage
Signs shall be installed on the tree protection fence visible on all sides of the fenced-in area (minimum one (1) on each side and/or every three hundred (300) linear feet). The size of each sign must be a minimum of two (2) feet by two (2) feet and shall contain the following language in English and Spanish: "TREE PROTECTION ZONE, KEEP OUT."
(d) When Required
The tree protection fencing shall be clearly shown on the development plan. No construction, grading, equipment or material storage, or any other activity shall be allowed within the tree protection area. Tree protection fencing shall be maintained until the final site inspection prior to the Certificate of Occupancy is scheduled (including any required perimeter buffer for single-unit dwelling construction). The tree protection fencing shall be removed prior to final site inspection for the Certificate of Occupancy.
(3) Disturbance
Disturbance within the area required to be designated as a tree protection area, shall occur only if approved by staff on the development plan. If such a disturbance is permitted for reasons such as location of minor utility lines, the following preventive measures shall be employed:
(a) Clearing Activities
The disturbance of land, including disturbance caused by the removal of trees adjacent to tree protection areas can cause inadvertent damage to the trees in the tree protection area. If trees are being removed adjacent to tree protection areas, a minimum one and one-half (1 1/2)-foot trenches must be cut along the limits of land disturbance, so as to cut, rather than tear, roots. Trenching shall be required for the protection of specimen and/or champion tree critical root zones immediately adjacent to or within the land disturbance area (see Community Appearance Manual for further guidance).
(b) Soil Compaction
Where compaction might occur due to traffic or the transportation of materials through the tree protection area, the tree protection area must first be mulched with a minimum four (4)-inch layer of processed pine bark or wood chips or a six (6)-inch layer of pine straw (see Community Appearance Manual). Equipment or materials storage shall not be allowed within tree protection areas.
(C) Protection of Champion Trees
(1) Intent/Purpose
One purpose of this subsection is to protect healthy champion trees during the development process. This shall be accomplished through the review and implementation of development plans and reuse/redevelopment plans. Trees, including champion trees located on existing single-unit lots, that are otherwise not subject to regulation under Chapter 7 of this Ordinance, are not subject to these requirements. Flexibility in site design is provided for in Section 7.2.10 which permits area used to preserve champion trees that is not otherwise required to be preserved to be offset by deducting area from other required landscape/buffer areas. No champion tree may be removed during development, unless the approval criteria of Section 7.2.5(D) are met and the removed champion tree is replaced pursuant to Section 7.2.5(E). In support of any application which requests removal of a champion tree, the applicant must submit a report from a certified arborist that addresses the criteria of Sections 7.2.5(C) (2) and (D).
(2) Priority Order For Preserving Champion Trees
When applicants are designing development plans, champion trees and their critical root zone shall be preserved in the following priority order (which order shall be reviewed when the decision-making authority is making a determination as to whether a plan is in compliance with Section 7.2.5):
(a) Tier 1 Champion Tree (excludes pine trees):
(i) Any champion tree grouping located in a prominent location;
(ii) Any single large champion tree located in a prominent location;
(iii) Any single small champion tree located in a prominent location;
(iv) Any champion tree grouping located in a non-prominent location; and
(v) Any single large champion tree located in a non-prominent location.
(b) Tier 2 Champion Tree:
(i) Any single small champion tree, excluding pine, located adjacent to other open space areas;
(ii) Any single small champion tree, excluding pine, located in a non-prominent location;
(iii) Any single champion tree, excluding pine, that is forked (see champion tree definition), located anywhere on site; and
(iv) Any single champion pine tree located anywhere on site.
(D) Administrative Approval of Removal of Champion Trees
(1) The Planning Director shall administratively approve the removal of any champion tree if the criteria of either (a), (b), (c) or (d) below are met.
(a) After exhausting the allowable modifications/reductions in Section 7.2.10, the tree is adversely impacted by one (1) of the following:
(i) Required road connections;
(ii) Required sanitary sewer or storm drain lines;
(iii) Public infrastructure improvements made or to be made by others;
(iv) Required stormwater treatment devices located in geographically and topographically appropriate areas; or
(v) Town design standards or requirements that limit the reasonable location of new structures and expansions to buildings and/or other features such as parking and private streets on the site (e.g. requirements for the buildings to front on streets, access points, and similar).
(b) All the following criteria have been met:
(ii) The tree is included in the Tier 2 champion tree list;
(iii) The total site consists of at least thirty percent (30%) open space or at least fifteen percent (15%) open space if located in the Town Center Zoning District or on a reuse/redevelopment site.
(c) After exhausting the allowable modifications/reductions in Section 7.2.10, and due to the site's topography and/or in order to meet town design standards or requirements (e.g., roadway elevations, sidewalks, etc.), the finish site elevation will result in the champion tree critical root zone area being ten (10) feet or more above or below grade on more than one (1) complete side of the tree.
(d) Based upon a certified arborist's report, a large champion tree has a life expectancy of less than ten (10) years and one (1) or both of the following exist:
(i) Twenty-five (25) percent or more of the tree's canopy is dead/dying; and/or
(ii) Two (2) or more major limbs are dead/dying.
Replacement pursuant to Section 7.2.5 (E) shall be required if the champion tree meets this criteria and is removed.
(2) The Zoning Board of Adjustment shall review and take action on any other request to remove a champion tree as a Minor Modification pursuant to Section 3.19.
(E) Replacement of Champion Trees
(1) When a champion tree is removed during construction, or is dying or dies within one (1) year following completion of construction pursuant to a development plan for a site that is not located in the Town Center District and is not a reuse/ redevelopment site, the applicant or developer shall replace such champion tree as follows:
a. Trees of similar type must be planted at least thirty (30) feet from any other tree such that the total caliper inches of trees planted is no less than the caliper inches of the tree removed;
b. The size of such replacement trees at the time of installation shall be a minimum of two and one-half (2 1/2) inches in caliper;
c. Tree protection areas that are not in required open space may, if placed in private permanent open space, be credited towards this replacement requirement at one hundred fifty percent (150%) of the caliper inches of the trees preserved for healthy hardwood trees a minimum of two (2) caliper inches in size and healthy evergreen trees a minimum of four (4) caliper inches in size; and
d. If sufficient area does not exist on the site to plant replacement trees, the applicant or owner must coordinate with Town staff to design and implement a plan to plant the required replacement trees on town properties, town-maintained properties, and/or other public property within the Town's jurisdiction. If the Town determines this is not feasible, fines shall be assessed in accordance with Section 11.5.2(B)(2)(d).
(2) When a champion tree is removed during construction, or is dying or dies within one (1) year following completion of construction pursuant to a development plan on a site located within the Town Center District or on a reuse/redevelopment site, the applicant or developer shall comply with the requirements of section 7.2.5(E)(1), except that the total caliper inches of trees planted may be less than the diameter of the tree removed if it is not practical to replant the required number and size of trees spaced at least thirty (30) feet from any other tree on the same site or any adjacent property under common ownership. The maximum size of any replacement tree shall be three (3) caliper inches.
(3) In consultation with the Town staff, acceptable replacement trees shall be determined by a person qualified by training or experience to have expert knowledge of the subject. Alternatively, the valuation of trees removed may be established in accordance with standards established by the International Society of Arboriculture and replaced with trees of equal dollar value.
(4) Replacement trees shall be maintained through an establishment period of at least three (3) years, except that replacement trees planted in association with development of detached dwellings on an individual lot shall have an establishment period of only one (1) year. The property owner and developer shall execute a landscape agreement guaranteeing the survival and health of all replacement trees during the establishment period and guaranteeing to replace any replacement tree(s) that does not survive the establishment period in good health as determined by a certified arborist.
(F) Preservation and Removal of Trees on Town Property
(1) Preservation on Town Property
(a) The Town shall have the right to plant, maintain, and remove trees and vegetation on all Town property as may be necessary to ensure public safety or to preserve or enhance the symmetry and beauty of Town property. The Town also may remove any Town-owned tree, shrub, or part thereof that is in an unsafe condition, which by its nature is injurious to sanitary sewers, electrical power lines, gas lines, water lines, or other public improvements, or which is infected with any injurious fungus, insect, or other pest.
(b) This section does not prohibit the planting of upperstory trees or shrubs by adjacent property owners on Town property, provided that the selection and location of said trees or shrubs complies with the planting guidelines developed by the Community Appearance Manual or other documents and is approved by the Town.
(2) Injury or Obstruction to Trees on Town Property Prohibited
No person shall, without prior written permission from the Town, place or maintain upon the ground in any public street right-of-way or Town property any stone, cement, or other impervious matter or any fill material in a manner that may obstruct the free access of air and water to the roots of any tree or shrub in any such street right-of-way or Town property. Any person who is erecting, repairing, altering, or removing any building or structure shall place a guard or protector around any tree or shrub on Town property so as to prevent injury to such tree or shrub.
(G) Removal of Unsafe, Injurious, or Infected Trees on Private Property
(1) The Town may cause to be removed from private property any tree, shrub, or part thereof which is or contributes to a public nuisance.
(2) The Town or its agent may enter upon private property to trim, treat, or remove any tree or shrub infected by any parasite, insect, or pest, when necessary to prevent the breeding or scattering of any parasite or pest and to prevent danger to persons, property, or trees and shrubs planted in public street rights-of-way or other Town property.
(3) Prior to exercising the authority conferred by this section, the Town shall give the owner an opportunity to correct the condition by ordering the corrective action be taken. The order shall be sent by certified or registered mail to the owner of the property in question, and shall be acted upon by the owner or occupant within fourteen (14) days from the date he or she receives the order. If, after fourteen (14) days, the owner or occupant has not corrected the condition or undertaken action that would lead to a timely correction of the condition, then the Town may enter upon the property, perform the work necessary to correct the condition, and bill the owner or occupant for the actual costs incurred in addition to an administrative fee.
(4) For trees located within open space, the determination of whether a tree or trees are unsafe, injurious, dead, or dying shall be made only by the Town or its recognized representative.
(H) Waivers in Emergencies
During emergencies, such as windstorms, ice storms, fire, or other disasters, the Town Manager may waive the requirements of this section in order to avoid hampering private or public work to restore order in the Town. This section shall not be used, however, to otherwise circumvent the requirements of this Section 7.2.
(I) Clear Cutting of Trees and Other Vegetation
(1) The removal or clear cutting of trees and other existing vegetation on undeveloped or under-developed sites within the corporate limits or extra-territorial jurisdiction is prohibited except as otherwise permitted in this Ordinance.
(2) Any clear cutting or vegetation removal on vacant, undeveloped, or underdeveloped sites must be done in accordance with an approved development plan or in accordance with the Tree Clearing Certificate process in Section 3.22.
(3) Trees and other existing vegetation shall be maintained within existing UTBs consistent with the requirements of this Ordinance and state law. Removal of existing trees and vegetation without approval from the Town and/or the State shall be a violation of this Ordinance, and shall be subject to the requirements and penalties of Sections 7.2.9(H), 7.2.13 and Chapter 11 of this Ordinance.
(Ord. No. 2009-LDO-01, 2-12-09)