(A) Clear Cutting of Trees
Failure to comply with the provisions of Section 14.5 shall constitute a violation of this Ordinance, and shall subject an offending party to a series of actions, including the payment of fines, delay in development plan approval or building permit issuance, and the requirement to double the amount of required vegetation as would typically be required during the development plan review and approval process. Table 11.5-1 below describes the penalties for non-compliance with this section. An "X" in a particular cell indicates the associated penalty which applies:
Type of Violation | Payment of Fines | Review of All Subsequent Development Plans by Zoning Board of Adjustment | Five Year Delay in Approval of a Building Permit or Development Plan* | Landscaping Requirements Doubled During Development Plan Review |
Type of Violation | Payment of Fines | Review of All Subsequent Development Plans by Zoning Board of Adjustment | Five Year Delay in Approval of a Building Permit or Development Plan* | Landscaping Requirements Doubled During Development Plan Review |
Property is exempt from Tree Clearing Certificate requirements, but all or substantially all** vegetation within required buffers and/or vegetation protection areas is removed | X | X | X | |
Property owner obtains a Tree Clearing Certificate, but removes some of the vegetation within a required buffer and/or tree protection area | X | X | ||
Property is not exempt from Tree Clearing Certificate requirements; but property owner obtains no Certificate, and removes some of the vegetation within a required buffer and/or tree protection area | X | X | X | |
Property is not exempt from Tree Clearing Certificate requirements; but property owner obtains no Certificate, and removes all or substantially all** of the vegetation within a required buffer and/or tree protection area | X | X | X | X |
* In determining penalties for noncompliance of tree removal, the Zoning Board of Adjustment may consider, after conducting a quasi-judicial hearing, reducing the five (5) year delay in permit/plan approval. Consideration should be given to how much vegetation was illegally removed, was the vegetation specimen size or greater, what was the proximity of the disturbed area to existing residential dwellings, was the buffer willfully disturbed, etc. The Zoning Board of Adjustment may uphold the entire five (5) year delay, reduce, or remove this enforcement measure based on the criteria mentioned above. | ||||
** "All or substantially all" shall mean 75 percent or more of the existing trees with a caliper of four inches or greater. | ||||
(B) Removal or Disturbance of or Damage to Existing Vegetation
The property owner and/or any person, including the developer, responsible for the removal or disturbance of or damage to vegetation in any required landscape areas as prohibited in Section 7.2.13(B) shall also be responsible for replacement of vegetation and payment of fines as provided below.
(1) Replacement of Vegetation
(a) The disturbed area shall be revegetated as provided below. For purposes of this Section 11.5.2(B), "disturbed area" shall be defined as land that has been subjected to:
1. the removal of trees, shrubs, or vegetative cover;
2. any action that results in injury or harm to required trees, shrubbery, or other vegetation;
3. any action that reduces the size of a required buffer or degrades or reduces the required level of screening; and/or
4. earthmoving activities, including the addition of fill or installation of impervious surface.
(b) Replacement Planting Plan Required
Prior to replacement of damaged or removed vegetation, a replacement planting plan shall be submitted for review and approval by the Planning Director. The site shall be revegetated in conformance with the approved replacement planting plan.
(c) Maintenance Plan Required
Where existing vegetation is in poor health or has died as a result of neglect or of poor maintenance practices, a landscape maintenance plan shall be submitted and approved in accordance with this Section 11.5.2(B)(1) in order to remedy the violation. In cases where there is an existing landscape maintenance plan, such plan shall be reviewed and modified as necessary to address specific issues that may have created the violation. In addition, the responsible party shall provide such documentation as is available (e.g. invoices, contracts, etc.) to provide proof that the landscape maintenance plan will be implemented as approved.
(d) Baseline Replacement Standards
Where vegetation has been damaged or removed in violation of this Ordinance, replacement vegetation shall be installed in an amount that meets or exceeds the requirements of subsection 1) and/or 2) below. Where both individual trees and area of disturbance can be documented for all or part of the affected area, the calculation of required plant material may include a combination of the two (2) calculation methods, provided that the combination used results in the maximum amount of required plan material.
1) Individual Trees Documented
Where the caliper and quantity of damaged, removed or disturbed vegetation can be documented, an equal amount of new vegetation ("inch for inch") shall be installed to replace the damaged vegetation.
2) Area of Disturbance Documented
The following plantings shall be installed for each two thousand (2,000) square feet of disturbed area:
Plant Type | Number | Minimum Caliper | Container Size | Minimum Height | |
Plant Type | Number | Minimum Caliper | Container Size | Minimum Height | |
Trees | Upperstory | 2 | 2" | -- | 8' |
Understory | 2 | 2" | -- | 8' | |
Evergreen 1 |
6 | 2" | -- | 8' | |
Shrubs | Evergreen | 7 | 2" | -- | 18" |
Deciduous | 8 | -- | -- | 18" | |
Groundcover Plants
(applicable only where slope is 2.5:1 or greater) | 22 | -- | 1 gal. | -- | |
1 Where an opaque performance standard is required, evergreen trees shall provide foliage from ground level up, and shall be planted in staggered double rows. | |||||
(e) Adjustments to Baseline Replacement Standards
1) Intent
Natural forested areas, or certain planted areas that have reached maturity, form a balanced system where screening may be achieved through a variety of tree and shrub types and sizes. Trees and shrubs within such systems naturally compete for sunlight and nutrients. While individual plants do not typically achieve an ideal symmetrical canopy or form, the overall performance standard of the buffer is achieved as available gaps are filled in with plant material suitable for the specific site conditions.
In recognition of challenges encountered in recreating a buffer, streetscape, or other landscape area that has been totally or partially removed or damaged, the intent of this Section 11.5.2(B)(1)(d) is to allow modification, by the Planning Director, of baseline replacement standards and other related standards of this Ordinance where appropriate, taking into account site-specific conditions and other factors affecting plant growth and health, so as to achieve and maintain to the extent possible the greater of the required performance standard of the LDO or the actual performance standard of the buffer area prior to its unauthorized disturbance.
2) Factors for Consideration
The following factors shall be taken into account in making adjustments to baseline replacement standards and related landscape planting requirements to maximize the potential for the re-vegetated buffer, streetscape or other landscape area to achieve the required performance standard and meet the intent expressed in Section 11.5.2(B)(1)(d)(1) above:
(a) type and conditions of significant vegetation remaining within the landscape area or buffer,
(b) availability of sunlight;
(c) dimension of required planting area;
(d) separation between plants;
(e) impact of installation of new plant material on root zones of any remaining material;
(f) topography;
(g) proximity of man-made features such as utilities, buildings, sidewalks and retaining walls; and
(h) other unique site factors or conditions affecting plan growth and long-term health of the buffer, streetscape or landscape area.
Such adjustment may include either reduction or increase in the minimum number or caliper of trees or shrubs and/or the total number of caliper inches of tree replacement otherwise required by this Ordinance.
In the case of a reduction in the number of replacement tree or shrubs, and/or the number of caliper inches of replacement trees, fines and/or off-site installation of plant material shall be required in accordance with Section 11.5.2(B)(2)(d). The applicant or owner must coordinate with Town staff to design and implement a plan to plant the balance of the required vegetation on town properties, town-maintained properties, and/or other public property within the Town's jurisdiction.
Features such as fences and berms may be approved where appropriate to achieve the required performance standard.
(f) Standard Replanting Requirement for Perimeter Buffers on Individual Residential Lots
Perimeter buffers within the boundaries of individual residential lots shall be planted and/or installed to a Type "B" buffer standard.
(2) Fines
Fines shall be imposed concurrently, and in addition to revegetation requirements of Section 11.5.2(B)(1), as provided below:
(a) Applicability
Fines imposed by this Section shall not apply to disturbance of required landscape areas, buffers, and/or streetscapes located on individual residential lots.
(b) Base Fine for Unauthorized Disturbance
A fine of two thousand dollars ($2,000) shall be imposed for any unauthorized disturbance, excluding excessive pruning, within the boundaries of a tree protection area.
(c) Calculated Fine Based on Area Disturbed
A fine of four dollars ($4.00) shall be imposed for every square foot of area disturbed or from which vegetation was removed or damaged within a required landscape area.
(d) Fine for Caliper Inches Not Replaced
Where it is determined in accordance with Section 11.5.2(B)(1)(d) that the required number of caliper inches cannot be accommodated on the site with replacement vegetation, then a fine shall be imposed in the amount of one hundred dollars ($100) per caliper inch that is not replaced. The applicant or owner may coordinate with Town staff to design and implement a plan to plant the balance of the required vegetation on town properties, town-maintained properties, and/or other public property within the Town's jurisdiction in lieu of the fine. If the Town determines that replanting on Town or public properties is not feasible or desirable, then the fine shall not be abated.
(3) Civil Penalties
Civil penalties shall be imposed for failure to comply with requirements of this Section 11.5.2(B).
(C) Severe Pruning
(2) If the planning staff determines that the severe pruning has not compromised the lifespan or structural integrity of the plants, then the severely pruned material shall remain in place and supplemental plant material may be required by the planning staff to compensate for the reduced screening.
(3) In addition, fines shall be assessed as follows:
Violation | Amount of Fines |
1st violation | $50 per shrub; and $50 per caliper inch for trees |
Subsequent violations | $1,000 base fine plus: $100 per shrub; and $100 per caliper inch for trees |
(D) Violation of Historic Preservation Ordinance
Failure to comply with the provisions of Section 3.27 shall constitute a violation of this Ordinance, and shall subject an offending party to the following:
(a) In addition to any other authorized remedies, in case any building, structure, site, area or object designated as a historic landmark or located within a historic district is about to be demolished, materially altered, remodeled, removed or destroyed, except in compliance with this Ordinance, the Town or county, the Historic Preservation Commission, or other party aggrieved by such action may institute any appropriate action or proceedings to prevent such unlawful demolition, destruction, material alteration, remodeling or removal, to restrain, correct or abate such violation, or to prevent any illegal act or conduct with respect to such building, structure, site, area or object.
(b) In addition to any other authorized remedies, in case any building, structure, site, area or object designated as a historic landmark or located within a historic district is demolished, materially altered, remodeled, removed or destroyed, except in compliance with this Ordinance, no redevelopment plans may be submitted for the property for forty-eight (48) months from the date of notice of the violation. The waiting period required by this section may be waived in an individual case, for good cause shown, by the affirmative vote of three-fourths (3/4) of the Town Council. The decision of the Historic Preservation Commission may be appealed by following the procedure set forth in Section 3.21, but the appeal shall be to the Town Council, not the Zoning Board of Adjustment.
(c) The Town Council may consider amending or repealing an ordinance designating a historic landmark.
(Ord. No. 2015-LDO-003, 7-23-15; Ord. No. 2016-LDO-01, 7-25-16; Ord. No. 2019-LDO-01, 9-26-19; Ord. No. 2021-LDO-01, 6-24-21; Ord. No. 2022-LDO-02, 4-28-22; Ord. No. 2022-LDO-03, 10-27-22)