Banner Elk City Zoning Code

TREE PRESERVATION

§ 152.150 PURPOSE AND DEFINITIONS.

(A) Purpose. The purpose of this subchapter is to promote and protect the natural beauty of the town and to encourage better care of trees and vegetation within the town on both public and private property. It is also of utmost importance to identify and protect trees deemed historic and of great value. The value placed on these trees should be based upon the following criteria: age; size; species; historic significance; ecological value; aesthetics; and location. A list of identified trees can be found with the Zoning Administrator and this list may be updated on a regular basis. This chapter will establish a viable tree management program to be administered by the Planning Board, who will act as a Tree Board until the town deems it necessary to adopt a separate Tree Board. Support and participation in the Tree City USA Program will help guide and support the Tree Board. Lastly, and of utmost importance, this program will educate the public to the importance of protecting trees; along with the benefits they provide to our environment.

(B) Definitions. For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ANSI (AMERICAN NATIONAL STANDARDS INSTITUTE). A guide used in setting standards for tree work.

CALIPER. Diameter measurement of the trunk taken six inches above ground level for trees up to and including four-inch-caliper size. Measurements shall be taken 12 inches above the ground for larger trees.

CANOPY. The uppermost layer in a forest, formed by the crowns of the trees.

CLEANING. Selective pruning to remove one or more of the following parts: dead, diseased, and/or broken branches.

CLEAR CUTTING. The cutting or removal of all trees within an area of 400 square feet or larger.

DBH (DIAMETER BREAST HEIGHT). The diameter of a tree four and one-half feet above the average ground level.

DRIP LINE. A vertical line running through the outermost portions of the tree crown extending to the ground.

FRONTAGE STRIP. A continuous access strip, exclusive of access driveways, abutting a public street.

GENERAL MAINTENANCE. The removal of small branches under one-half diameter shall not generally be considered injurious to the tree, providing that such an act does not remove a substantial portion of the canopy of said tree or otherwise result in a threat to the life or health of said tree.

GUIDELINES. Guidelines and Specifications of Tree Planting on Public and Private Property, published by the Planning and Inspections Department.

HISTORIC TREE. A tree that has been specifically designated by the Town Council as historic.

IMPERVIOUS COVER. Building and structure footprints, areas of pavement, compacted gravel or other compacted areas that, by their dense nature do not allow the passage of sufficient oxygen and moisture to support and sustain healthy root growth.

INJURING A TREE. Any cutting, trimming, pruning or other method of removing any live part of a live tree shall be considered injurious to the tree.

LARGE MATURING TREE. Any tree whose height exceeds 35 feet at maturity.

LION’S TAILING. The removal of an excessive number of inner, lateral branches from parent branches; which can injure trees and are not considered normal pruning practices.

MAINTENANCE. Proper cultural practices including pruning, fertilization, pest management and root system protection. The standards of maintenance are those published by the National Arborists Association.

PAVED AREA. Any ground surface covered with concrete, asphalt, stone, compacted gravel, brick or other paving material.

PERSON. A public or private individual, corporation, company, firm, association, trust, estate, commission, board, public or private institution, utility cooperative or other legal entity.

PLANNING AND INSPECTIONS DIRECTOR. The head of the town’s Planning and Inspections Department or his or her designee.

PRESERVATION. Maintaining a stable environment among mature trees that is critical in delaying the transition from maturity to decline and death (prevention of construction damage, root system care, proper tree care maintenance and the like). TREE CARE PRESERVATION should be proactive and then reactive.

PRIVATE PROPERTY. Property that is not owned by a federal, state or local government.

REDUCTION. Selective pruning to decrease height and/or spread of a tree.

REGULATED TREE. Trees that are located on private property and are listed as the champion or co-champion of the species, either on the “National Big Tree List”, as compiled by the American Forestry Association or the Champion Big Trees of North Carolina, as compiled by the state’s Division of Forestry Resources.

REPLACEMENT. Replacement of dead, dying, diseased or removed trees with trees of equal or comparable size, species, vigor and health.

REMOVAL. The cutting down of any tree and all other acts which cause the actual removal or the effective removal through damaging, poisoning or other direct or indirect actions resulting in the death of a tree.

ROOT PROTECTION ZONE. Generally, 18 to 24 inches deep and a radius distance from the trunk of the tree equal to one foot for each one inch of trunk diameter or the outermost drip line of the tree, whichever is greater.

SMALL MATURING TREE. Any tree whose height is less than 35 feet at maturity.

TEMPORARY SERVICE ROUTE. A route, other than a planned permanent driveway or access route to a structure, which is created and used during the construction process.

THINNING. Selective pruning to reduce density of live branches or smaller trees.

TOPPING. Any pruning practice that results in pruning back the main leader stem of the tree or causes disfigurement of the normal shape of the tree. The reduction of a tree’s size using heading cuts that shorten limbs or branches back to a predetermined crown limit.

TOWN. The Town of Banner Elk, North Carolina.

TOWN ATTORNEY. The Town Attorney for the Town of Banner Elk, North Carolina, or his or her designee.

TOWN PROPERTY (PUBLIC PROPERTY). All real property which is owned or leased by the town or which is maintained by it or any part of town right-of-way.

TREE BOARD. A board appointed by the Town Council, made up of citizen volunteers, to review specific tree issues within the town. The Planning Board shall act as the Tree Board until such time as it deems it necessary to adopt a separate board.

TREE EVALUATION FORMULA. A formula for determining the value of ornamental trees and shrubs as published by the International Society of Arboriculture.

TREE CITY USA PROGRAM. A program sponsored by the Arbor Day Foundation in cooperation with the USDA Forest Service and the National Association of State Foresters, providing direction, technical assistance, public attention and national recognition for urban and community forestry programs. The many benefits of being a tree city include a framework for action, education, a positive public image and citizen pride.

TREE CROWN. The leaves and branches of a tree measured from the lowest branch on the trunk to the top of the tree.

UNSAFE TREE. For a tree to be considered unsafe, one of the following criteria must apply:

(a) A combination of a structural defect and a target:

1. A structural defect which predisposes the tree to failure (i.e., dead tree, trunk decay, dead branches, V-crotches); and

2. A target such as a structure, road, walkway, campsite or other area where property exists or people reside.

(b) A tree that is otherwise structurally sound, but which tree routinely interferes with the routine activities of people. Interferences include obstructions, sight distance problems for motorists, buckling of sidewalks, attracting lightning or interference with utilities.

UTILITY SPACE. The physical area occupied by a utility’s facilities and the additional space required and to ensure its operation.

WHITEWASHING, PAINTING. Painting or in any way discoloring any portion of a tree.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.151 ADMINISTRATION.

(A) Zoning Administrator. For the purpose of carrying out the provisions of this subchapter, the Zoning Administrator shall have responsibility and control over all trees and shrubbery planted or growing in or upon city property. The Zoning Administrator shall also have responsibility and control over all regulated trees, unsafe and diseased trees, located upon private property.

(B) Planning Director. The Planning Director shall ensure that the guidelines set out by the ANSI for tree planting, care, maintenance, removal and landscape design will be followed.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.152 CREATION OF TOWN’S TREE BOARD.

(A) The Town Council may establish a tree board, made up of citizen volunteers. The Volunteer Board shall have the following duties:

(1) Assist the Town Manager and/or his or her designee with the creation, updating, monitoring and management of the town’s tree regulations;

(2) Work with the Town Manager and/or his or her designee to prepare an annual tree replacement, planting and maintenance program; and

(3) Work with the Town Manager and/or his or her designee on all other issues relating to the management and care of the town’s forests.

(B) The Board may request information on trees located on town property and shall receive, in a timely fashion, reports from the Zoning Administrator. The Board shall receive regular reports on landscaping and buffering plans for new developments and alterations to existing developments.

(C) The Board shall consist of five members appointed by the Town Council to staggered three-year terms. In addition to the five members appointed by the Town Council, shall serve as ex-officio voting members of the commission. Additionally, the Zoning Administrator may appoint ex-officio non-voting members.

(D) (1) The Board shall select annually from among its members a Chair and Vice Chair. The Zoning Administrator shall serve as Secretary to the Commission.

(2) All appointed members shall serve a term of three years. Town Council shall fill vacancies resulting from resignation or from a member’s failure to attend the required number of meetings for the unexpired term upon request by the Chairperson. The Board shall formulate and adopt rules of procedure under which it will operate.

(E) The Board shall meet on a regular schedule to be determined at its first meeting. The first meeting of the Board shall be at the call of the Planning Director. The Chairperson and Vice Chairperson of the Tree Board shall serve at the pleasure of the Board. A member may be removed for improper conduct. This shall include missing more than three consecutive meetings or a criminal conviction involving an act of moral turpitude.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.153 REGISTRATION OF PRIVATE PROPERTY TREE CUTTERS.

All persons paid compensation to cut or trim trees on private property in the town and it must be registered in the office of the Zoning Administrator. The registration shall consist of obtaining a copy of this subchapter, and by signature, affirm that they will abide by the rules prescribed by this subchapter. No person shall be allowed to register unless all civil penalties owed to the town have been paid in full. A property owner shall only hire persons to cut or trim trees that are registered with the town.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.154 PERMITTING.

(A) General.

(1) Permits shall be obtained from the Zoning Administrator for all activity involving the planting, grading, removal and replacement of trees on city property, except as noted herein. Permits are also hereby required for all removal and replacement of regulated trees and historic trees.

(2) The Zoning Administrator shall review all requests for permits for the planting, grading, removal and replacement of trees and shrubbery on city property and the removal and replacement of regulated and historic trees. If the planting, grading, removal or replacement complies with the guidelines, the Zoning Administrator shall issue a permit and may attach reasonable conditions to the permit. If the plans do not comply with the guidelines, the permit shall be denied.

(a) Permits shall be valid for 60 calendar days.

(b) The town may require the replacement of trees in accordance with § 152.158 of this chapter as a condition of any permit.

(B) Permit procedure. The application for a permit shall be on a form provided by the town and signed by the property owner.

(1) Public property trees. In determining whether a permit should be issued for the cutting of trees on public property, the Zoning Administrator shall consider the following criteria:

(a) The condition of the tree with respect to disease, danger of falling, proximity to existing or proposed structures and interference with utility services;

(b) The necessity to remove trees in order to construct proposed improvements to allow economic development of property adjacent to public property;

(c) The topography of land and the effect of tree removal on erosion, soil retention and the diversion or increased flow of surface waters and coordination with the town’s drainage patterns; and

(d) The number of trees existing in the neighborhood on improved property. The Zoning Administrator shall be guided by the standards established in the neighborhood and the effect of tree removal upon property values in the area.

(e) The town may require the relocation or replacement of trees as a condition of issuing the permit, on a one-on-one basis, with replacement trees having a caliper of one and one-half inch dbh.

(2) Private property trees. The Zoning Administrator may issue a permit for the cutting of live trees or portions of live trees (i.e., limbs or branches) on private property when such trees are in excess of six inches when:

(a) The trees or portions of trees are within 15 feet of the existing main structure or main structure being constructed on the building site;

(b) The trees or portions of trees are within five feet of an approved septic tank or septic drain field;

(c) The trees or portions of trees are within five feet of a driveway or parking area, the location of which has been approved by the Zoning Administrator;

(d) The trees or portions of trees pose a hazard to the property owner and/or other residents;

(e) The cutting of the trees or portions of trees promotes the growth and development of other trees on the lot;

(f) The trees or portions of trees are diseased or damaged;

(g) The trees or portions of trees are within a temporary service route, as defined in this subchapter. Approval under these criteria shall require the replacement of trees on a one-for-one basis in accordance with § 152.158 of this chapter;

(h) The removal of trees or portions of trees not meeting the criteria set forth in divisions (C)(2)(a) through (C)(2)(g) above may be permitted pursuant to a landscaping plan that improves the property and is acceptable to the town. Such a plan shall be designed to minimize the injury, disturbance or removal of trees not necessary to achieve the specific objectives of the plan; and

(i) With regard to divisions (C)(2)(a), (C)(2)(b) and (C)(2)(c) above, for new construction no trees or portions of trees shall be cut pursuant to these criteria until the owner is ready to begin construction as evidenced by the issuance of a building permit.

(3) Detriment minimization. Permits may be granted for trees to be pruned or limbed for view enhancement. To attempt to minimize the detriment to the tree of these practices, the standards provided in American National Standards Institute (ANSI) A300 (Trees, Shrubs and Other Woody Plant Management, Part 1 - Pruning) shall be followed.

(4) Flag and photo required. All trees to be cut or trimmed must be clearly flagged and photo(s) taken.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.155 INSPECTION OF SITES.

(A) The Zoning Administrator may periodically inspect areas subject to the provisions of this subchapter.

(B) If through inspection it is determined that a person has failed to comply or is no longer in compliance with the provisions of this subchapter, a notice to comply shall be served upon that person by registered mail, returned receipt requested or by hand delivery from the Zoning Administrator. The notice shall state the violation and describe that which will be necessary to comply with this subchapter.

(C) The Zoning Administrator may conduct such investigations as deemed reasonably necessary to carry out the duties as prescribed in this subchapter and may enter at reasonable times upon private property, as defined herein, for the purpose of inspecting trees and shrubbery subject to the provisions of this chapter. No person shall refuse entry or access to any authorized representative or agent of the city who requests entry for the purposes of inspection and who presents appropriate credentials, nor shall any person obstruct, hamper or interfere with such representative while in the process of carrying out official duties.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.156 ENFORCEMENT.

(A) Any person who violates any provision of this subchapter shall be notified by the Zoning Administrator of the specific violation by certified or regular mail, return receipt requested, or by hand delivery. The notice shall set forth the nature of the violation, the measures required to comply with the chapter, if compliance is at all practicable, and a reasonable time period within which compliance must be had.

(B) If any aggrieved person disagrees with a decision of the Zoning Administrator, such person may request a hearing within ten business days of the receipt of the violation. The request must be in writing and directed to the Zoning Administrator. The Board of Adjustment (BOA) shall serve as the appeals board for all tree issues. The owner shall have the right to be represented by counsel, examine and cross-examine witnesses at said hearing. The Town Attorney shall serve as the Appeals Board’s legal advisor during said hearing. The Appeals Board shall render its written decision within 30 days after the hearing.

(C) If any aggrieved party is dissatisfied with the decision of the Appeals Board, an appeal may be taken to the county’s Superior Court. Notice of the appeal must be filed within ten business days of receipt of the Appeals Board’s decision.

(D) Any aggrieved party may request an injunction to preserve the status quo during the pendency of any appeal in accordance with applicable state law.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.157 EXEMPTIONS.

(A) Modifications to the requirements of this subchapter may be granted in writing by the Tree Board or Board of Adjustment in advance of any work being done due to extenuating circumstances.

(B) A review is required if the Administrator finds any of the following circumstances exist on the site, or surrounding properties such as:

(1) Natural land characteristics such as topography or existing vegetation on the proposed building site would achieve the same intent of this section;

(2) Innovative landscaping or architectural design is employed on the building site to achieve an equivalent effect;

(3) The required screening and landscaping would be ineffective at maturity due to the proposed topography of the site and or the location of improvements of the site;

(4) The topography of adjacent and surrounding sites is such as to render required screening ineffective at maturity;

(5) Due to the location of utility and transmission lines, the landscaping requirements would be in conflict with the requirements of the utility company and verification of such conflict can be provided by the applicant;

(6) If, in the opinion of the Town Manager, the landscaping or screening required will interfere with traffic safety;

(7) Trimming of trees by the town or an approved agent as normal maintenance; provided, the trimming does not result in the mutilation, death or destruction of the tress;

(8) Any tree, which during a period of emergency or act of God must be removed so that it will in no way hinder public work to restore order in the town. Removal shall be by the town or its authorized agent(s);

(9) The removal of dead trees or dead portions of a tree. The owner of the property on which the trees are located bears the burden of proving that such trees or parts of trees were dead at the time of removal; and

(10) The removal or cutting of live trees or portions of live trees (i.e., limbs or branches) on private property under six inches in diameter and measuring four feet above ground (at its highest point) with the exception that provisions regulating clear-cutting as found in § 152.160 of this chapter must be followed.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.158 DISEASED OR DAMAGED TREES.

The owner of a tree(s) within the town’s zoning jurisdiction, deemed to be a potential public hazard by the town, will be notified by certified mail that they must remove said public hazard within 30 days or pay the town the costs of such remedy as the town sees fit or incurred to have the tree(s) removed. If the removal of such hazard can be accomplished by pruning, the remedy may be postponed until said tree(s) is in a dormant state.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.159 DAMAGE TO TREES WITHOUT A PERMIT PROHIBITED.

(A) The following actions shall constitute a violation of this subchapter and shall be subject to the penalties prescribed herein. For trees located on public property, the following restrictions shall apply to any and all trees, regardless of size.

(B) For trees located on private property, the following restrictions apply to trees in excess of six inches in diameter, measured four feet above the ground.

(1) Injuring, removal, relocation, general. No person shall, without a written permit from the town, perform or cause to be performed the following acts: mutilate, injure, remove and/or relocate any live trees within the town, or injure or misuse any structure or device placed to protect any such trees.

(2) Whitewashing, painting. No person shall, without a written permit from the town, whitewash, paint or in any way discolor the stem base, bole or root of any tree in the town, except as authorized by G.S. § 14-159(7).

(3) Attaching sings or other devices; obstructing roots. No person shall, without a written permit from the town, fasten or attach any sign, wire or electrical attachment or other device in any manner to the trees in the town, or to guard about the tree, or close or obstruct any open space provided about the base or root of the tree within three feet in any direction, or in any way prevent access of air, water or fertilizer to roots of the tree. Attachment of birdhouses or other small ornamental attachments that do not substantially threaten the life of a tree is permissible.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.160 CLEAR CUTTING PROHIBITED.

(A) On lots having a majority of trees less than six inches in dbh, clear-cutting is not allowed without the approval of the Zoning Administrator. Under no circumstances can more than 50% of the natural vegetation, equally balanced across the entire lot, be cut regardless of the size or diameter of the vegetation, without approval of the Zoning Administrator. The above criteria for permitting in § 152.154(C)(2)(a) through (C)(2)(j) of this chapter will again be followed.

(B) On properties with stream bank access, any healthy trees within 50 feet of the stream bank shall be considered protected and will remain as part of stream bank preservation. This is to ensure a healthy environment should the risk of flooding occur. Evident dead and diseased trees within the 50-foot protected stream bank area may be cut but the root system shall remain if determined not to be a hazard to the waterway.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.161 REPLACEMENT.

Unless specified otherwise, when any provision of this subchapter creates the need for trees to be replaced, the replacement shall be accomplished in accordance with this subchapter.

(A) Trees shall be of an appropriate species and type for the location and elevation in which they will be planted. A list of replacement tree types and the locations in which they are appropriate are listed below under new plant material.

(B) Tree caliper at the time of replanting shall be a minimum of one and one-half inches at dbh.

(C) Tree replacement shall be accomplished at the next growing season in accordance with American National Standards Institute ANSI A300 (Part 6 - Transplanting).

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.162 NEW PLANT MATERIAL.

(A) Regionally grown and native species of plants are preferred. Any plant not listed here can be approved if listed with the Agricultural Extension Office as a native plant. New plant material shall complement existing site vegetation, should be mixed with it and should be integrated with all other natural site features. Plantings should be grouped together or clustered as opposed to thin linear patterns.

(B) Preferred plant materials include the following, but not limited to:

(1) Large or medium hardwood canopy trees, including:

(a) American sycamore;

(b) Beech;

(d) Black cherry;

(e) Black gum;

(f) Black locust;

(g) Black walnut;

(h) Chestnut;

(i) Chinquapin;

(j) Eastern redbud;

(k) Golden rain tree;

(l) Hickory;

(m) Magnolia;

(n) Maple;

(o) May tree;

(p) Oak;

(q) Smoke tree;

(r) Sourwood;

(s) White ash;

(t) White fringed tree; and

(u) Yellow poplar.

(2) Large or medium evergreen canopy trees, including:

(a) American Holly;

(b) Hemlock**;

(d) Larch;

(e) Fir;

(f) Leyland;

(g) Hawthorn; and

(h) Spruce.

(3) Small flowering understory trees, including:

(a) American mountain ash;

(b) American yellow wood;

(d) Crab apple;

(e) Flowering dogwood;

(f) Forsythia;

(g) Fringe tree;

(h) Fruit trees;

(i) Gray-stemmed dogwood;

(j) Hawthorn;

(k) Holly (mountain, American);

(l) Hydrangea;

(m) Lilac;

(n) Red-twigged dogwood;

(o) Serviceberry;

(p) Sourwood; and

(q) Witch hazel.

(4) Shrubs, including:

(a) Arborvitaes;

(b) Azalea;

(d) Golden elder;

(e) Juniper family;

(f) Yews;

(g) Laurel;

(h) Rhododendron;

(i) Scottish heather;

(j) Viburnum; and

(k) Burning bush.

**Hemlocks may not be the best choice because they are prone to disease.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.163 TRIMMING, PRUNING, PLANTING AND REMOVAL OF TREES AND SHRUBBERY.

(A) No person shall remove, destroy, cut prune or otherwise treat any tree or shrubbery having its trunk upon any town property or right-of-way or contract with another person to perform such acts without first obtaining a written permit from the Zoning Administrator, except as herein set forth.

(B) No person shall plant of contract with another to plant any tree or shrubbery on any town property, except as herein noted, without a permit from the Zoning Administrator.

(C) Private utilities shall submit written specifications for pruning, trenching or grading around trees and shrubbery on city property to the Zoning Administrator for approval. A utility company shall not be required to obtain a permit for routine maintenance operations affecting trees and shrubbery having their trunks upon town property so long as such work is done in strict accordance with the specifications as approved by the Zoning Administrator. A utility company is required to obtain prior written approval to remove any tree or shrubbery on town property. Approved written specifications shall be valid for two years. The utility company must make new specifications or a request for an additional two-year extension of the previously approved specifications.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.164 INJURING TREES AND SHRUBBERY.

(A) No person shall place or maintain upon the ground upon any town property any compacted stone, cement or other impervious matter or substance in such a manner as may obstruct the free access of air and water to the roots of any tree or shrubbery. This provision shall not apply to paving, repairing or altering of town streets, sidewalks and other town property performed by the town.

(B) No person shall perform or contract with another to perform construction work (including the operation or storage of equipment or materials) within the drip line of any tree or shrubbery having its trunk on any town property without first obtaining a permit from the Zoning Administrator.

(C) No person shall attach any object, including, but not limited to, rope, wire, chain or sign, to any tree or shrubbery in or upon any town property or to the guard or stake intended for the protection of such tree or shrubbery, except for the purpose of protecting it or the public.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.165 PLANTING PLAN REQUIRED.

(A) Any person desiring to plant trees and shrubbery in or upon town property or town right-of-way shall, in addition to applying for a permit, submit a planting plan or written statement in triplicate to the Zoning Administrator who shall return one copy to the applicant and keep two copies on file. All planting plans upon town property shall accurately show the following:

(1) The proposed street width, together with its subdivision of pavement, curb and gutter, parking strip and sidewalk areas, to a definite indicated scale.

(2) The location of underground and overhead utilities, all poles and posts, to a definite indicated scale;

(3) The proposed location of each and every proposed tree and shrubbery, together with the location of each existing tree, shrubbery, plant or vine within the proposed street right-of-way in scaled relation to the other features to the plan;

(4) The variety, height and caliper, where applicable, of each any every tree and shrubbery proposed to be planted and those already existing within the proposed street lines, either indicated on the plan or referenced with a number to a key list;

(5) The distance in feet between the tree and shrubbery in any one row; and

(6) The nature of the soil in the planting space to a depth of three feet and all existing and proposed surface and subsurface drainage system.

(B) All written statements filed in lieu of a planting plan shall contain the same information required on the planting plan, except in the case of persons not involved in planned development and desires to perform small-scale landscape plantings on town property. In such a case, a simple letter of intent outlining the location, method and materials, may be substituted.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.166 TREES AND SHRUBBERY TO BE KEPT TRIMMED; RESPONSIBILITY OF OWNER.

(A) Trees, shrubbery, flowers, bushes or vines standing in or upon any lot or land abutting town property and having branches, limbs, trunks or other parts projecting onto town property shall be maintained by the owner of the property on which such tress, shrubbery, flowers, bushes or vines are growing so as not to interfere with the free and safe passage along the town right-of-way by pedestrians and vehicular traffic.

(B) If the owner of such property does not keep this growth from projecting onto town property, the Town Manager may order its removal. The order shall be in writing to the owner and shall be acted upon within 30 days from the time of the receipt of the order. If, after 30 days, the owner has not responded or acted to remove the project growth from such trees or plants, then the Town Manager may request town personnel enter upon the private property to perform the work necessary to correct the condition and bill the owner for the actual costs incurred. In situations deemed by the Town Manager to constitute an imminent threat to the public health, safety or welfare, the Town Manager may act without prior notification to the property owner.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.167 REMOVAL OF REGULATED OR HISTORIC TREES.

(A) The Zoning Administrator may prohibit the removal of a regulated tree or a tree that has been designated by the Tree Board as historic or significant.

(B) The following factor(s) may be a basis upon which the Zoning Administrator may deny a permit to remove a regulated tree:

(1) There exist no current plan to develop the property;

(2) The planned development can be constructed without removed the regulating tree;

(3) The purpose for removal can be accomplished with less drastic results;

(4) The health of the tree;

(5) The proposal for replacement of the regulated tree; and

(6) Any other factors reasonable conditions to removal. The owner may appeal the Zoning Administrator’s decision in accordance with § 152.156(A) of this chapter.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.168 UTILITY RESPONSIBILITY.

Public and private utility companies which install overhead and underground utilities (including CATV) shall be required to accomplish all work affecting trees and shrubbery located on such private property in accordance with the applicability of this subchapter in its entirety.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.169 UNSAFE TREES.

(A) The Zoning Administrator may cause or order to be removed any tree or part thereof on private property which is unsafe, injurious to the public welfare or which, by reason of its nature, is injurious to sewers or other public improvements or is infested with an injurious fungus, insect or other pest.

(B) The Zoning Administrator may enter upon private property in the city to spray, or otherwise treat or cause or order to be sprayed or otherwise treated, any tree infected or infested by any parasite, insect or pest when it shall be necessary to do so to prevent the breeding or scattering of any parasite or animal pest and to prevent danger there from to persons or property or to trees planted on town property.

(C) When, in the opinion of the Zoning Administrator, the removal of a tree or shrubbery on private property shall be necessary, under the provisions of this section, the Zoning Administrator shall have the power to remove such tree or shrubbery or cause or order the same to be done upon notice and an opportunity to be heard to the property owner.

(D) (1) Prior to exercising the authority conferred by this section, the Zoning Administrator shall give the owner notice and an opportunity to correct the condition by requesting that corrective action be taken. The request shall be in writing to the owner of the property in question and shall be acted upon within 30 days (or a lesser period of time if an imminent threat to life or property exists, from the date of the receipt of the request).

(2) If, after 30 days or such less time period, the owner has not corrected the condition or undertaken action that would lead to a timely correction of the condition, the Zoning Administrator may enter upon the property, to direct the town’s Maintenance Department to perform the work necessary to correct the condition and bill the owner for the actual costs incurred.

(3) In situations involving an imminent threat to the public health, safety or welfare, the town may act without prior notification to the property owner, but notice shall be given within a reasonable period thereafter.

(Ord. passed 3-14-2005; Ord. passed 5-1-2013; Ord. passed 2-13-2013; Ord. passed 10-10-2016; Ord. passed 3-14-2019, § 705)

§ 152.170 TREE PRESERVATION OVERLAY MAP.