Chapter 60 Tree Canopy Conservation Ordinance

Transcription

1 , Georgia Chapter 60 Tree Canopy Conservation Ordinance Adopted April 23, 2018

2 Table of Contents ARTICLE I. IN GENERAL Title Community Forest Vision and Goals Purpose and Intent Administrator Applicability and Exemptions Tree Conservation Manual Definitions Protected Trees Specimen Trees Heritage Trees City of Milton Tree Species List City Tree Management Hazardous Trees on Private Property Variances Appeals Inspections Enforcement Notice of Violation Stop Work Order Fines and Penalties ARTICLE II. TREE CANOPY ON DEVELOPED PROPERTY Tree Canopy Management Tree Canopy Priorities Tree Canopy Cover Requirements Tree Removal Permit Tree Canopy Replacement ARTICLE III. TREE CANOPY ON UNDEVELOPED PROPERTY Tree Canopy Management Tree Canopy Priorities Adopted April 23, 2018 Page i

3 28. Tree Canopy Plan Tree Canopy Cover Requirements Required Tree Locations Topped Trees Minimum Landscape and Maintenance Requirements Landscape Performance Bond Certificate of Occupancy and Final Plat Approval Alternative Compliance Tree Canopy Fund Timber Harvesting Adopted April 23, 2018 Page ii

4 ARTICLE I. IN GENERAL 1. Title 1.1. This chapter shall be known as the Tree Conservation Ordinance of the City of Milton, Georgia or the tree ordinance. 2. Community Forest Vision and Goals 2.1. The City of Milton s natural and extensive tree canopy provides significant benefits and irreplaceable value to our quality of life The city is committed to managing its community forest to continually improve the quantity and quality of its vital green infrastructure It is the goal of the city to maintain no net loss of tree canopy cover below the 57 percent existing as of March 2017, and to further achieve an average of 60 percent tree canopy cover across the city by The city aims to measure average tree canopy cover across the city every 5 years using the latest GIS technology and use the results to evaluate the effectiveness of the tree ordinance and other tree management programs and policies in achieving the city s tree canopy goals. 3. Purpose and Intent 3.1. The purposes of the tree ordinance are to: a. Create a living and working environment for Milton s citizens and visitors that is attractive, healthy and safe; b. Manage and utilize trees for the economic, environmental, and social functions and benefits they provide; and, c. Provide a framework for accomplishing the goals and objectives in the City s comprehensive plan and other community, environmental and conservation ordinances, plans and policies The intent of this ordinance is to: a. Promote human, environmental and economic health within the community; b. Promote shared responsibility by all property owners to contribute to tree canopy cover; and, c. Establish the minimum amount of regulations that will achieve the vision and goals of the city and produce the desired outcomes. Adopted April 23, 2018 Page 1

5 4. Administrator 4.1. The director of the community development department or his/her designated agent(s) shall be the administrator of the tree ordinance The city arborist shall be the primary agent responsible for the administration of the tree ordinance for the administrator The administrator shall have the authority to waive any provision of this tree ordinance where such waiver is consistent with the purpose and intent of this ordinance and is in the best interest of the public health, safety and welfare. The following factors shall be considered in evaluating the waiver request: a. Whether a literal enforcement of the tree ordinance will create an undue hardship or an unreasonable practical difficulty on the applicant; b. Whether the situation causing the undue hardship or practical difficulty is unique to the affected lot and is not self-imposed; c. Whether a reasonable accommodation or alternative solution can be made to accomplish the desired activity without the alteration of the tree; d. Whether the waiver will injure or be wholly compatible with the use and future or existing development of adjacent properties; e. Whether the increased development costs caused by conserving the tree create an undue hardship on the development of the lot; f. Whether there is any identified adverse effect of the alteration or conservation on erosion, soil moisture retention, flow of surface water, and drainage systems; g. Whether there is any substantial impact to the buffering of residential areas from the noise, glare, and visual effects of non-residential uses. h. The costs versus the benefits of relocating required utility service infrastructure and easements based on the conservation or alteration of protected trees; i. Whether the proposed tree replacement procedures adequately mitigate the alteration of the tree; j. Whether the alteration adversely affects public health, safety and welfare; k. Whether the granting of the waiver will be in harmony with the purpose and intent of the tree ordinance to the greatest degree reasonably possible. 5. Applicability and Exemptions Adopted April 23, 2018 Page 2

6 5.1. The terms and provision of the tree ordinance shall apply to: a. All real property within the City of Milton unless otherwise exempted herein; b. Any activity that requires the issuance of a land disturbance permit, building permit, demolition permit, right-of-way encroachment permit or tree removal permit; c. Any activity that requires a certificate of occupancy, minor plat approval, certificate of conceptual plan approval, or final plat approval; and, d. All protected trees The activities, properties and trees that are exempt from the requirements of the tree ordinance are: a. Removal of trees posing an imminent threat or under emergency conditions; b. Commercial tree nursery and tree farm operations; c. Trees directed to be removed by municipal, county, state or federal authorities pursuant to law; and, d. City trees removed or pruned by utility companies as part of routine vegetation management activities, except that all removal and pruning shall be done in accordance with the arboricultural standards set forth in the tree conservation manual A summary of tree ordinance applicability and exemptions is included in the Tree Conservation Manual The applicant may apply the density-based Tree Conservation Ordinance or the canopy-based Tree Conservation Ordinance until August 5, Tree Conservation Manual 6.1. There is hereby adopted a Tree Conservation Manual that sets forth the required standards and procedures for all activities required by the tree ordinance The tree conservation manual may be modified by the administrator as necessary to reduce outcomes contrary to the purpose and intent of the tree ordinance. 7. Definitions 7.1. All words used in the tree ordinance shall have their customary dictionary definitions except as specifically defined herein, or in the zoning regulations if not defined herein. Adopted April 23, 2018 Page 3

7 7.2. The words shall and must are mandatory, and the words may and should are permissive. a. Active tree protection. The active and ongoing planning, installation and monitoring of physical measures undertaken to protect a tree during land disturbance or alteration. b. Administrator. The Director of the City of Milton Community Development Department. c. Agent, designated or authorized. An individual or entity authorized by the administrator to assist in the administration and enforcement of the tree ordinance for the city; or, an individual or other entity authorized by a property owner to conduct development, construction, or arboricultural activities on their property. d. Agricultural land use. Use of a lot zoned AG-1 that is related to active farming, livestock, or ranching, including using land as pasture, an equestrian estate or horse farm, or in the production of crops, horticultural products, the keeping of livestock, including but not limited to poultry and hoofed animals such as cattle, horses, goats and sheep, for commercial purposes and the construction and maintenance of agricultural accessory buildings. e. Applicant. A property owner or his/her authorized agent(s) applying for a tree removal, development, or right-of-way encroachment permit for a tree or property, or seeking approval for a tree canopy, tree protection, or tree planting and maintenance plan, or seeking approval for a minor subdivision plat, certificate of conceptual plan approval, final plat approval or certificate of occupancy. f. Appraised tree value. The dollar value of a tree as determined by a certified arborist using methodology set forth in the latest edition of the Guide for Plant Appraisal developed by the Council of Tree and Landscape Appraisers and published by the International Society of Arboriculture ( g. Buffer, state waters. An area along the course of any state waters required by city, state or federal regulations to be maintained in an undisturbed and natural condition. h. Buffer, zoning. As required by the zoning ordinance, a natural undisturbed portion of a lot, except for approved access and utility crossings, which is set aside to achieve a visual barrier between the use on the lot and adjacent Adopted April 23, 2018 Page 4

8 properties and/or uses with natural vegetation or replanting of trees and shrubs if sparsely vegetated. i. Caliper. The diameter of the trunk of tree nursery stock or a newly planted tree measured at 6 inches above the ground line for trees with calipers 4 inches and smaller, and at 12 inches above the ground line for trees with calipers greater than 4 inches. j. Certified arborist. Professional who possesses the technical competence gained through experience and related training to provide for or supervise the management of trees and other woody plants in residential, commercial and public landscapes and whose level of training is certified by the International Society of Arboriculture. k. City. The City of Milton, Georgia. l. City arborist. The agent of the City of Milton assigned by the director of the community development department with the primary responsibilities of administration and enforcement of the tree ordinance. m. Clearcutting. A method of harvesting timber that results in the removal of all trees from all or a portion of a property. n. Commercial tree nursery or commercial tree farm. A property on which trees are grown and sold as wholesale or retail nursery stock by a business licensed by the City of Milton. o. Construction zone. The first 30 feet of the improved area adjacent to and extending out from buildings and other major structures, and the first 15 feet adjacent to and extending out from driveways, parking lots, other impervious surfaces and sanitary sewer systems (septic tanks and primary drainfields). p. Critical root zone (CRZ). For a conserved tree, the ground and soil area to a depth of 24 inches within the larger of either the dripline or a circular area with a radius extending out from the trunk 1.5 feet for every 1 inch of DBH; for a tree planted within the last 3 years, the ground and soil area to a depth of 24 inches within the larger of the open soil surface area required by the tree, 1.5 feet for every 1 inch in DBH, or the area within the dripline. q. Crown. The entirety of a tree s scaffold limbs, branches and leaves. r. DBH. The diameter at breast height (4.5 feet above the ground line) of the trunk of an existing tree, calculated by dividing the circumference of the trunk by Adopted April 23, 2018 Page 5

9 s. Developed property. A property on which improvements currently exist and for which a certificate of occupancy has been issued. t. Development permit. A land disturbance permit, building permit, demolition permit, minor plat approval, conceptual plan approval or other permit or approval issued by the community development department authorizing the commencement of the disturbance, alteration, improvement or development of a given tract of land. u. Dripline. The vertical line extending from the outermost edges of a tree s branches to the ground, that forms, more or less, a circle on the ground centered on the tree s trunk. v. Establishment period. For a newly planted tree, the time from planting until the beginning of the fourth growing season on-site. w. Existing tree. An established tree growing on-site for at least 3 complete growing seasons. x. Forested area. An area at least 50 feet wide in any one dimension and at least 2,500 square feet in total area consisting of at least 5 trees with 75 percent tree canopy cover. y. Growing season. March 1 to November 30. z. Hazardous tree. A tree that is likely to fail wholly or in part, under normal environmental conditions as determined by a certified arborist. aa. Healthy tree. A tree with a live crown ratio greater than 30 percent, less than 50 percent crown dieback, no major structural defects, a life expectancy of 15 years or greater, and free from signs or symptoms of irreversible decline, severe insect or disease infestation, severe chlorosis, or other lifethreatening conditions. bb. Heritage tree(s). A tree or tree group that is designated by the administrator to be of notable community interest because of its outstanding age or size, landmark recognition or historical association. cc. Improved area. The area within 60 feet of and including the footprint of a building, pool, or other major structure, within 30 feet of and including a road, driveway, parking area, walkway, patio and other allowable impervious surface, and within 15 feet of and including the footprint of the sanitary sewer system (septic lines, tank and primary drainfield) proposed for a lot. Adopted April 23, 2018 Page 6

10 dd. Land disturbing activity. Any activity which may result in soil erosion from water or wind and movement of sediments into state water or onto lands within the state, including, but not limited to clearing, dredging, grading, excavating, transporting, and filling of land, but not including agricultural practices as set forth in the City of Milton Soil Erosion and Sedimentation Control Ordinance. ee. Landscape strip. An area required by the tree ordinance, the City of Milton zoning resolution or any condition of zoning, use permit or variance approval, which is reserved for the installation and/or maintenance of plant materials. ff. Live crown ratio. The percentage of the total height of a tree that is occupied by the tree s live crown. gg. Lot. The basic lawful unit of land, identifiable by a single deed. A group of two or more contiguous lots owned by the same entity and used for a single use shall be considered a single lot. hh. Open soil surface area. The square foot area of the ground surrounding a planted tree that is required to remain permeable and open, covered only by a layer of mulch; the size of the area required varies by the mature height class of the tree being planted. ii. Passive tree protection. The ongoing avoidance of activities harmful to a tree, as further described in the tree ordinance, within the tree protection zone. jj. Planted tree. A tree that has been planted within the last 3 years and has not yet completed 3 growing seasons on-site. kk. Planting season. December 1 to March 1. ll. Priority area. An area on a lot where tree canopy cover is considered a priority over other areas due to the functions and benefits tree cover provides in that location. mm. Priority tree. A specimen or heritage tree. nn. Property. An area of land composed of less than one lot, or of accumulations of one or more lots, or parts thereof. oo. Protected tree. Any tree growing on city property, any tree 6 inches DBH or greater growing on developed property, any tree conserved or planted to Adopted April 23, 2018 Page 7

11 meet tree ordinance requirements, any tree 2 inches DBH or greater growing on undeveloped property, any specimen tree, and any heritage tree. pp. Remediation plan. A plan that may be required by the city arborist from a property owner or his/her authorized agent after a written notice of violation or stop work order has been issued for the property describing how the conditions of violation of the tree ordinance shall be remedied in accordance with the city arborist s requirements and the conditions stated on the notice, order, or other pertinent documentation. qq. Scaffold limbs. The large limbs branching off from the main trunk that form the basic structure of the tree s crown and support the remaining branches and leaves. rr. Soil compaction. A change in soil physical properties which includes an increase in soil weight per unit volume and a decrease in soil pore space caused by repeated vibrations or frequent traffic and weight that can result in physical root damage, reduced root penetration, a decrease in soil oxygen levels and an increase in toxic gases. ss. Specimen tree(s). A tree or contiguous stand of trees of special value to the community due to its quality, size, or species, and meeting general and specific criteria as set forth in the tree ordinance, as determined by the city arborist. tt. Standard tree canopy cover credit. The square feet of tree canopy cover assigned to each of the tree canopy size classes, as set forth herein and in the tree species list. uu. Street tree. A tree located within a road frontage that is conserved or planted for the purpose of providing tree canopy cover over the public street right-of-way. vv. Thinning. Selective cutting of trees for timber products with the remaining trees more or less evenly distributed across a property. ww. Timber harvesting. The felling of trees for timber products (pulpwood, sawtimber, etc.) as part of ongoing forest management practices, by thinning or clearcutting. xx. Topping. The improper practice of the severe cutting back of limbs to stubs larger than 2 inches in diameter within the tree s crown to such a degree that the tree canopy is removed or the crown shape typical of the species is Adopted April 23, 2018 Page 8

12 disfigured, resulting in decay of the scaffold limbs or trunk and/or decline in main branch and sprout production. yy. Tree. A self-supporting woody perennial plant with the potential to reach a minimum DBH of 3 inches and height of 15 feet at maturity under natural conditions. zz. Tree bank. A site registered with the city on city or private property with at least 8,000 square feet of open space where growing conditions are favorable for the establishment of trees, and on which trees may be planted to satisfy tree replacement or minimum tree canopy cover requirements for another property. aaa. Tree canopy cover. The cover provided by tree crowns over the ground surface, either individually or as a group; also, a measure of the percent of a lot covered by all tree canopy, calculated by dividing the total area of tree canopy cover by the total area of the lot, and multiplying by 100. bbb. Tree canopy fund. A revenue account established by the city for receiving payments in lieu of meeting tree canopy cover requirements, donations, fees, and fines, and used by the city for the purchase, planting, and maintenance of trees on city property and community forest management activities. ccc. Tree canopy plan. A site plan showing how tree canopy cover requirements will be met on a lot, which trees will be conserved, how they will be protected, which new trees will be planted and where, and how they will be maintained. ddd. Tree canopy size, tree canopy size class. The amount of tree canopy cover a tree can be expected to provide at maturity under urban conditions, as determined by the species and categorized in the tree species list into four (4) size classes: very wide (1,600 square feet); wide (900 square feet); narrow (400 square feet); and, very narrow (150 square feet). eee. Tree canopy value. The dollar value of 100 square feet of tree canopy cover as set forth in the city s fee schedule, and used for calculating payments into the tree canopy fund. fff. Tree conservation manual. A supplement to the tree ordinance containing standards and procedures required for tree ordinance compliance. ggg. Tree height class. The typical total height of a tree at maturity under urban conditions, as determined by the species and categorized in the tree Adopted April 23, 2018 Page 9

13 8. Protected Trees species list into three (3) classes: large (greater than 50 feet tall); medium (25 to 50 feet tall); and, small (less than 25 feet tall). hhh. Tree ordinance. Chapter 60 Vegetation of the City of Milton municipal code of ordinances. iii. Tree protection zone (TPZ). The tree protection zone includes the critical root zone of a tree, the tree s trunk and the entirety of the tree s crown. jjj. Tree removal permit. A permit required before a protected tree can be removed, destroyed or irreparably damaged. kkk. Tree species list. The City of Milton Tree Species List, which is located in the tree conservation manual and contains the tree species approved, and not approved, for conservation and planting to satisfy tree replacement or tree canopy cover requirements. lll. Undeveloped property. A lot on which no improvements currently exist and for which no certificate of occupancy has been issued. mmm. Unhealthy tree. A tree with major structural defects, a live crown ratio less than 30 percent or 50 percent or more crown dieback, or a tree exhibiting signs or symptoms of irreversible decline, severe mistletoe infection, severe insect or disease infestation that cannot be practically controlled, or severe chlorosis, as determined by a certified arborist There is hereby established a category of trees that shall be known as protected trees as defined herein Protected trees shall only be removed after the issuance of a tree removal permit or approval of a tree canopy plan Protected trees shall be passively protected throughout their lives as set forth in the tree conservation manual. Adopted April 23, 2018 Page 10

14 9. Specimen Trees 9.1. A tree or tree stand shall be considered specimen if, as determined by the city arborist, it meets all the general criteria and at least one of the specific criteria as set forth herein An individual specimen tree must meet all the following general criteria: a. A healthy tree with a life expectancy greater than 15 years as determined by a certified arborist; b. Crown size and shape typical of the species without significant dieback or disfiguration; c. Relatively sound and solid trunk with no more than one-quarter of the trunk circumference affected by wounds, cankers, decay or cavities, and with a column of decay in the center of the trunk encompassing no more than twothirds of the trunk area; d. No major insect or disease problems; and, e. Free from severe mistletoe infestation causing irreversible tree decline An individual specimen tree must also meet, in addition to all the general criteria, at least one of the following specific criteria: a. Hardwood and softwood trees, except for pine species (Pinus spp.) with a minimum DBH of 24 inches for a tree in the large height class, 18 inches for a tree in the medium height class, and a minimum DBH of 8 inches for a tree in the small height class; b. Pine trees (Pinus spp.) with a minimum DBH of 27 inches; c. Rare or unusual species, shape or form; or, d. A tree specifically used by a builder, developer or design professional as a focal point in the landscape A specimen tree stand must be primarily composed of healthy trees, with no major insect or disease problems within the stand and must meet at least one of the following specific criteria: a. A relatively mature, even-aged stand; b. A stand with purity of species composition or of a rare or unusual nature; c. A stand of historical significance; d. A stand with exceptional aesthetic quality; or, Adopted April 23, 2018 Page 11

15 e. A stand on a lot which is otherwise devoid of trees The city arborist shall make the determination of whether a tree or tree stand meets the criteria for specimen tree designation If removal of a specimen tree is approved, replacement requirements shall be as set forth in Section 25 of the tree ordinance When development is proposed for a lot, individual and stands of specimen trees shall be identified during the site survey process and documented on the tree canopy plan Special consideration shall be made to work around specimen trees and protect them Cost effective options for site, building, utility placement and hardscape and landscape designs that successfully conserve specimen trees are strongly encouraged All specimen trees successfully conserved and protected to meet tree canopy cover requirements shall be given 10 percent additional tree canopy cover credit over the actual or standard credit. 10. Heritage Trees A tree or tree group shall be designated as heritage if it meets the criteria set forth herein, as determined by the administrator The administrator shall review heritage tree nominations and shall have the authority to designate trees as heritage Trees may be nominated for heritage tree status by either the tree owner or the city arborist by submitting a heritage tree nomination form to the community development department Within 15 business days after the submittal of a completed nomination form by a property owner to the community development department, the city arborist shall provide the administrator with a recommendation on whether the nominated tree or tree group should be designated as heritage For a tree or tree group to be designated as heritage, it must meet all the general criteria and at least one of the specific criteria set forth herein and as determined by the administrator A heritage tree or tree group must meet all the following general criteria: Adopted April 23, 2018 Page 12

16 a. A healthy tree with a life expectancy greater than 15 years as determined by a certified arborist. b. Crown size and shape typical of the species without significant defects, dieback or disfiguration. c. Relatively sound and solid trunk with no more than one-quarter of the trunk circumference affected by wounds, cankers, decay or cavities, and with a column of decay in the center of the trunk encompassing no more than twothirds of the trunk area. d. No major insect or disease problems. e. Free from severe mistletoe infestation causing irreversible tree decline A heritage tree or tree group must also meet, in addition to all the general criteria, at least one of the following specific criteria: a. State or county champion tree, as determined by the Georgia Forestry Commission ( or a tree that scores within 10 percent of the total score of a state or county champion tree of the same species using the scoring system described by the Georgia Forestry Commission. b. Documented age greater than 75 years old. c. An established and familiar feature or integral part of the community and its heritage and is recognized as such by the administrator. d. Designated by the Georgia Urban Forest Council ( as a Landmark or Historic Tree. e. Documented historical significance When a tree removal permit application is submitted for a potential heritage tree or tree group, the city arborist shall inform the tree owner that the tree or tree group meets the criteria and will be nominated for heritage tree status before the tree removal permit is issued Only those trees listed on a tree removal permit application shall be eligible for heritage tree nomination by the city arborist Prior to the approval of a tree canopy plan for a lot that includes the proposed conservation or removal of a heritage tree or tree group, the city arborist shall inform the applicant that one or more trees on the lot meets heritage tree criteria and will be nominated for heritage tree status before the tree canopy plan is approved. Adopted April 23, 2018 Page 13

17 10.2. Special consideration shall be made to work around heritage trees and protect them When development is proposed for a lot, heritage trees shall be identified during the site survey process and documented on the tree canopy plan Cost effective options for building, site, hardscape and landscape designs and utility placement that successfully conserve heritage trees are strongly encouraged The city arborist shall maintain a current list of designated heritage trees Heritage tree locations shall be recorded on the city s GIS system All heritage trees successfully conserved and protected to meet tree canopy cover requirements shall be given 20 percent additional tree canopy cover credit over the actual or standard credit. 11. City of Milton Tree Species List There is hereby adopted a City of Milton Tree Species List as set forth in the tree conservation manual that shall include species approved for conservation and planting to meet tree canopy cover requirements or replacement tree planting requirements The tree species list shall also include species not approved for tree conservation or planting to meet requirements that are invasive, have brittle or weak wood, poor structure or large thorns, are pest susceptible or are not well-suited to regional growing conditions Trees planted to satisfy tree canopy cover and tree replacement requirements of the tree ordinance shall be selected from the City of Milton Tree Species List A species of tree not on the City of Milton Tree Species List, or not approved for planting in a specific location, may be approved for planting by the city arborist if the species: a. Has a reasonable chance of success in the landscape; b. Is recommended by a certified arborist; c. Is not proposed for planting in large quantities; and, d. Has growth or habit characteristics that fit a specific need for the location Tree species not listed or approved by the city arborist for tree conservation or planting for the purpose of meeting tree canopy cover requirements shall not be eligible for tree canopy cover credit. Adopted April 23, 2018 Page 14

18 12. City Tree Management The city shall have the right to manage city trees, including planting, maintaining, pruning and removing trees within the rights-of-way of all city streets, roads, and highways, in parks, around city facilities, and on other city property as may be deemed necessary or desirable to achieve community forest goals It shall be unlawful and a violation of the tree ordinance to damage, destroy or remove any city tree, or engage in any prohibited activity listed in the tree protection standards within the critical root zone of a city tree, without a tree removal permit, right-of-way encroachment permit, or prior approval of the city arborist A tree protection plan submitted by the applicant and approved by the city arborist and a right-of-way encroachment permit issued by the department of public works shall be required prior to the commencement of any activity that is proposed on city property within the critical root zone of a city trees. 13. Hazardous Trees on Private Property The city shall provide a written notice to the owner of any tree on private property that is in a hazardous condition and threatens public health, safety and welfare The written notice shall state the type of risk, the mitigation required and the time within which the mitigation shall occur Should the property owner fail to mitigate the risk within the stated time, the city may cause to have the risk mitigated and require the property owner to reimburse the city for the cost of such mitigation. 14. Variances A person requesting a variance from the provisions of the tree ordinance shall do so in writing to the director of the community development department All variance requests shall be accompanied by a completed variance request application, a tree canopy plan or other documentation requested by the city arborist and a non-refundable filing fee in the amount set forth in the city s current fee schedule The city arborist shall provide a recommendation on whether to approve the variance request to the board of zoning appeals The board of zoning appeals shall review the city arborist s recommendation and decide on whether to approve the variance request. Adopted April 23, 2018 Page 15

19 14.5. The board of zoning appeals may approve a variance to any provision of the tree ordinance where the unique natural features of the lot are such that application of these regulations would create an undue hardship to the property owner, and in other instances where an undue hardship is created for the property owner The following factors shall be considered in evaluating the variance request: 15. Appeals a. Whether a literal enforcement of the tree ordinance will create an undue hardship or an unreasonable practical difficulty on the applicant; b. Whether the situation causing the undue hardship or practical difficulty is unique to the affected lot and is not self-imposed; c. Whether a reasonable accommodation or alternative solution can be made to accomplish the desired activity without the alteration of the tree; d. Whether the variance will injure or be wholly compatible with the use and future or existing development of adjacent properties; e. Whether the increased development costs caused by conserving the tree create an undue hardship on the development of the lot; f. Whether there is any identified adverse effect of the alteration or conservation on erosion, soil moisture retention, flow of surface water, and drainage systems; g. Whether there is any substantial impact to the buffering of residential areas from the noise, glare, and visual effects of non-residential uses. h. The costs versus the benefits of relocating required utility service infrastructure and easements based on the conservation or alteration of protected trees; i. Whether the proposed tree replacement procedures adequately mitigate the alteration of the tree; j. Whether the alteration adversely affects public health, safety and welfare; k. Whether the granting of the variance will be in harmony with the purpose and intent of the tree ordinance to the greatest degree reasonably possible Any person aggrieved or adversely affected by any decision of the city arborist relating to the application of the tree ordinance may file an appeal within 30 days of the decision with the director of the community development department for relief or reconsideration. Adopted April 23, 2018 Page 16

20 15.2. Any person aggrieved or adversely affected by any decision of the director of the community development department relating to the application of the tree ordinance may file an appeal within 30 days of the decision with the board of zoning appeals through the director of the community development department Appeals shall only be granted for errors of interpretation. 16. Inspections The administrator or his/her agent(s) shall have the authority to conduct inspections as required by the tree ordinance, and periodically or as deemed necessary to monitor land disturbing activities, tree removal activities, or other permitted or non-permitted activities for compliance with the tree ordinance No person shall refuse entry or access to any authorized agent(s) of the city who requests entry for the purpose of inspection and who presents appropriate identification, nor shall any person obstruct, hamper or interfere with any such agent while in the process of carrying out his/her official duties The city arborist shall be the primary individual responsible for conducting site inspections and, at a minimum, shall make the following inspections: a. Prior to approval of a tree removal permit, right-of-way encroachment permit, tree canopy plan, tree protection plan, or tree planting and maintenance plan and prior to making a recommendation to the Planning Commission on a tree ordinance variance request for the purpose of assessing site and tree conditions; b. After permit or plan approval and after installation of tree protection measures required and before any land disturbance or right-of-way encroachment occurs to assess compliance with tree protection requirements; c. Prior to the issuance of a certificate of occupancy or final plat approval to assess compliance with the tree canopy plan and all tree ordinance requirements; and, d. One (1) and three (3) years after project completion and issuance of a certificate of occupancy or final plat approval to assess tree health and survival on properties with an approved tree canopy plan Additional site inspections may take place at any time before, during and/or after project completion to monitor compliance with applicable tree ordinance requirements. Adopted April 23, 2018 Page 17

21 16.5. The city arborist shall document each inspection on a site inspection form The city arborist may also monitor tree canopy cover on a lot using the city s geographic information system and current aerial photography for assessing ongoing compliance with tree canopy cover requirements, and shall maintain a record of such measurements. 17. Enforcement It shall be the duty of the administrator and his/her agent(s) to enforce the tree ordinance The administrator or his/her agent(s) shall have the authority to modify, revoke, suspend, or void any development permit, right-of-way encroachment permit or tree removal permit and suspend all work on a property or any portion thereof if a violation occurs until it is determined that the property is in full compliance with the tree ordinance. 18. Notice of Violation If, through inspection, it is determined that an applicant, his/her authorized agent(s), or other person or company has engaged in land disturbing or other prohibited activities which have resulted in the damage or removal of trees without a required permit or approval, or failed to comply with the terms and conditions of an approved tree removal permit or tree canopy plan, or is otherwise responsible for a violation of the tree ordinance, then a written notice of violation may be served upon the applicant, his/her authorized agent(s), and/or other person or company responsible for the land disturbance or prohibited activity The notice shall set forth the measures necessary to correct the violation and achieve compliance and shall state the time frame within which such measures must be completed If the applicant, his/her authorized agent(s), or the person or company otherwise responsible for the violation fails to correct the violation or comply with tree ordinance requirements within the time frame specified on the notice of violation, he/she shall be subject to a citation and may be subject to a stop work order, fines, and penalties pursuant to sections 19 and 20 of the tree ordinance Reinspection to assess compliance after a violation shall require a separate reinspection fee as set forth in the city s fee schedule. Adopted April 23, 2018 Page 18

22 19. Stop Work Order The administrator may require that work on any project that is in violation of the tree ordinance be immediately stopped to avoid further damage and until such time that the violation has been remedied to the satisfaction of the city arborist The issuance of a written or verbal notice of violation is not required prior to or in conjunction with the stop work order if the city arborist or city inspector determines that work must be stopped immediately to avoid further damage The stop work order shall: a. Be in writing; b. State specific violations; c. Be given to the applicant, property owner, the authorized agent(s) of either, or the person performing or responsible for the activity resulting in the violation; d. State the conditions under which work may be resumed; and, e. Allow only erosion control work to continue while the stop work order is in effect Where an emergency exists, a verbal order to stop work by the administrator or his/her agent(s) shall be given, with issuance of a written order required within 24 hours The city arborist may require that a revised tree canopy plan or separate remediation plan be submitted for approval before remediation or any other work commences on-site The following violations shall result in issuance of an emergency, verbal stop work order: a. Land disturbing or tree removal within state water buffer or zoning buffer; b. Land disturbance within the critical root zone of protected trees or removal of trees designated for conservation on an approved tree canopy plan; c. Non-permitted protected tree removal, land disturbance, or prohibited activities within the critical root zone of a specimen or heritage tree; or, d. Improper installation or maintenance of required tree protection measures. Adopted April 23, 2018 Page 19

23 20. Fines and Penalties Fines and penalties shall be assessed for citations, according to the following criteria: a. Any person who violates any provisions of the tree ordinance may be fined up to $1,000 per tree; b. Each calendar day a violation exists shall be considered a separate offense; c. There are no maximum limitations to the accrual of fines; d. In the event a city tree is damaged or destroyed, the person responsible may be required to reimburse the city for the appraised tree value; e. The replacement of trees and additional tree canopy cover may be required in addition to other fines or penalties imposed; f. Offenses shall be tried in Milton Municipal Court; g. Each owner of property wherein a violation exists, or each owner of a boundary tree, shall be jointly responsible for said violation; and, h. Fines received for violations to the tree ordinance shall be deposited into the tree canopy fund. ARTICLE II. TREE CANOPY ON DEVELOPED PROPERTY 21. Tree Canopy Management On developed properties, tree canopy cover shall be managed through establishing tree canopy priorities, tree canopy cover requirements and tree removal permitting and replacement requirements. 22. Tree Canopy Priorities Priority areas on developed properties for tree conservation and planting shall be: a. Rural viewsheds; b. Road frontages; c. Turf areas; d. Required yards; e. Landscape strips and landscape islands; and, f. Buffers Priority trees for conservation shall be specimen and heritage trees. Adopted April 23, 2018 Page 20

24 23. Tree Canopy Cover Requirements The minimum amount of tree canopy cover required on a developed lot, in the absence of further development, shall be the amount existing as of the date of adoption of the tree ordinance When an application for a land disturbance, building or demolition permit for additional improvements to a developed lot that will affect, in any way, the existing tree canopy cover on the lot, or when an application for minor plat approval or conceptual plan approval is submitted for a lot previously developed, the amount of tree canopy cover required shall be the same as for an undeveloped lot pursuant to Article III of the tree ordinance, and a tree canopy plan shall be required. 24. Tree Removal Permit On a developed lot that is not undergoing further development or improvement, a tree removal permit is required prior to the removal of any protected tree or before any protected tree is irreparably damaged or destroyed, resulting in the need for its removal The removal of a protected tree without a tree removal permit shall constitute a violation of the tree ordinance and may result in a citation and fine for the tree owner and any person involved in cutting, removing or damaging the tree Application for a tree removal permit shall be made by the tree owner or his/her authorized agent, to the community development department A tree removal permit shall not be required for the removal of city trees by the city or its authorized agent(s) A tree removal permit is not required to remove a tree causing imminent threat to people, property or public health, safety and welfare or under emergency conditions A tree removal permit is required for the removal of a dead, unhealthy or invasive tree A tree removal permit application fee shall be required, except for an application for the removal of a dead, unhealthy or invasive tree The city arborist shall make a site visit to inspect the trees proposed for removal within 10 days of the date of application and prior to approving or denying the tree removal permit application to: a. Verify the information contained in the application; Adopted April 23, 2018 Page 21

25 b. Verify the amount of tree canopy cover proposed for removal; c. Determine replacement requirements; and, d. Evaluate other conditions on the lot that may affect the city arborist s decision to approve or deny the tree removal permit application A tree removal permit shall be approved if one or more of the following conditions are met, as determined by the city arborist, or a written report from a certified arborist: a. Tree is dead, unhealthy, or invasive; b. Tree is in irreversible decline or at the end of its normal life span; c. Tree is infested with an insect or disease that has compromised the tree s health and survival, or may harbor an insect or disease organism that threatens surrounding trees; d. Tree is at risk for whole or partial tree failure; e. An unresolvable conflict exists between the tree and overhead utility lines, underground utility lines, utility infrastructure, sidewalks, walkways, other paved surfaces, or an existing structure; f. Removal of the tree is necessary for sight, traffic, pedestrian, vehicle, traffic sign, or other safety-related clearance; g. Trunk wounds with decay exist that cover greater than 25 percent of the circumference of the trunk; h. Trunk cavity or central column of decay exists that is greater than two-thirds the diameter of the trunk at the point of the cavity; i. Structural defects exist in the scaffold limbs, where defect correction through pruning will result in removal of 50 percent or greater of the tree s crown; j. Litter originating from the tree creates an unsafe condition or poses a hazard to public health, safety and welfare; or, k. Tree is located such that a desired use on a lot (construction, installation, or expansion of a building, pool, garden, or other site amenities) is not possible without the removal of the tree, except that every effort shall be made to place such structures or amenities where tree removal will not be required A tree removal permit may be approved under other unique conditions or extenuating circumstances by the city arborist. Adopted April 23, 2018 Page 22

26 Conditions under which protected tree removal is not permitted include but are not limited to: a. Removal of trees in excess of the number of trees necessary for the reasons stated on the permit application; b. Tree health or structural issues have not been confirmed by the city arborist or a certified arborist; c. Tree removal is proposed for the purpose of sign installation, clearance or visibility, excluding traffic, directional, warning or information signs owned by any public or semi-public agency; d. For unwanted production of a normal amount of leaves, fruit, or other organic litter that does not create an unsafe condition or that is not a hazard to public health, safety and welfare; e. To reduce the amount of native tree canopy cover on the lot to install formal, non-native landscaping; f. To substantially increase the amount of turf on the lot without a specific purpose; and, g. To substantially increase the amount of impervious surface on the lot through paving, building construction, or other such impervious feature without an approved tree canopy plan The city arborist will take into consideration the amount of tree canopy cover existing on the lot at the time of application for a tree removal permit, the total square feet of tree canopy cover proposed for removal, and the number of tree removal permits approved for the lot within the last five (5) years When trees are removed on a lot without a tree removal permit under imminent threat or emergency conditions, the owner of such trees shall provide an oral or electronic notice via telephone, text or to the city arborist prior to or immediately after the removal Should the city arborist determine that an imminent threat or emergency removal was not warranted, an after-the-fact permit and fee shall be required in addition to replacement tree planting pursuant to Section 25 of the tree ordinance Replacement of the tree canopy removed, whether permitted or not permitted, shall be required pursuant to Section 25. Adopted April 23, 2018 Page 23

27 25. Tree Canopy Replacement The square feet of tree canopy cover provided by a protected tree that is approved for removal on a lot shall be replaced if, after the removal, the lot has less than the minimum tree canopy cover listed in Table The square feet of tree canopy cover provided by a protected tree that is topped on a developed commercial or non-residential lot shall be replaced on the lot regardless of whether the lot has the minimum tree canopy cover listed in Table Tree canopy replacement shall not be required after the approved removal of a dead, unhealthy, or invasive tree, a tree posing an imminent threat, or a tree removed under emergency conditions Tree canopy replacement shall not be required after the approved removal of trees on a AG-1 zoned lot greater than 3 acres that is intended for agricultural land use or use as an equestrian estate or horse farm as follows: a. A waiver of minimum tree canopy cover requirements shall be assigned to the lot if requested in writing by the property owner. b. If the lot is not used for agricultural use, an equestrian estate, or horse farm within 2 years after the approved removal of trees for such use then the waiver shall become invalid and the minimum tree canopy cover listed in Table 1 shall be required on the lot within 1 year after the issuance of a written notice of non-compliance by the city. c. Upon application for a development permit on a lot with a waiver of minimum tree canopy cover requirements: 25.4.c.1. The waiver shall become invalid; 25.4.c.2. Tree canopy cover requirements shall be the same as for an undeveloped lot pursuant to Article III of the tree ordinance; 25.4.c.3. A tree canopy plan shall be required showing how tree canopy cover requirements will be met on the lot; and, 25.4.c.4. No development permits shall be issued until a tree canopy plan is approved by the city arborist for the lot For specimen tree replacement, the square feet of tree canopy cover approved for removal, plus an additional 20 percent, shall be replaced on the lot if, after the removal, the lot has less than the minimum tree canopy cover listed in Table 1. Adopted April 23, 2018 Page 24