Sec. 46-26. - Purpose.

This article comprises Wilmington's tree ordinance and is designed to protect the urban forest, which is recognized as a necessary and vital part of the city's infrastructure. The urban forest is green infrastructure that provides crucial benefits to the community including: environmental (carbon storage, reduction of air pollution, climate control, energy savings, storm water management and increased biodiversity); social (improved human health and increased quality of life); and economic (increased property values, increased visitation of businesses and decreased energy use). This article provides for the planning, policy, management and enforcement necessary for a healthy urban forest. It states trees and greenspace should be considered on par with other city infrastructure and services as important components of the health, safety and welfare of residents and visitors. As the city improves the health and coverage of the urban forest, consequently human health, quality of life and the community as a whole are also improved. Thus, the purposes of this article are:

To protect public health, safety and welfare by providing for efficient and effective administration of urban forest maintenance, management and expansion;

To optimize costs and benefits of the urban forest by achieving American Forests' recommended urban forest canopy coverage and goals of the city's community tree plan;

To protect and sustain existing and future urban forest canopy coverage;

To dispose of, or recycle, wood waste in an environmentally sound manner;

To protect and enhance the city's plant, air, soil, water and other ecosystem components; and

To promote use of the appropriate tree in the appropriate space with the goal of creating a healthy and diverse urban forest.

(Ord. No. 10-073, § 2, 1-6-11)

Sec. 46-27. - Definitions.

For the purpose of this article, the following definitions shall have the following meanings:

Borderline tree: A tree whose trunk straddles a boundary line and is considered common property of both landowners.

City: The City of Wilmington.

Commission: The tree commission of the City of Wilmington.

Council: The council of the City of Wilmington.

Dangerous tree condition: The determination by an ISA certified arborist that the condition of a tree is such that it constitutes a significant threat to the health and/or structure of other trees and/or a risk to property or person. Trees are assessed using the USDA Forest Service Community Tree Risk Rating System or other city-accepted risk rating system.

FOIA: Freedom of Information Act, sets parameters for disseminating information to the public regarding public meetings.

ISA certified arborist: A tree care professional that has three or more years of full-time, eligible, practical work experience in arboriculture and/or a degree in the field of arboriculture, horticulture, landscape architecture, or forestry from a regionally accredited educational institute and has passed the certified arborist exam administered by the International Society of Arboriculture, or succeeding organization.

Native tree: A population of plants within a defined geographic area that exist in that location without direct or indirect human introduction.

Notice: Notice shall mean publication in a newspaper of general circulation and/or written notification sent by first class mail or hand delivery, according to FOIA regulations.

Park tree: Any tree located in a park within the city limits or any park property owned or managed by the city.

Person: Any individual, firm, partnership, association, corporation, company or organization of any kind and includes the plural of each.

Public area: Any public right-of-way, park, easement or other area to which the city has control or title.

Public tree: Any tree located in a public right-of-way, park, or other area to which the city has control or title.

Private tree: A tree whose trunk is entirely on private property.

Recommended urban trees: A list of tree species that have been determined to grow well in the urban environment. List is included in the rules and regulations for arbor work.

Replacement tree: A tree planted in a location formerly occupied by a previously existing tree, or, at another appropriate location at the discretion of the commissioner of public works.

Shrub: A low, woody perennial typically having several major stems.

Street tree: A tree located within a public right-of-way, same as right-of-way tree.

Tree: A woody perennial plant, typically having one dominant vertical trunk and a height greater than 15 feet at maturity.

Tree condition: A measure of tree health and structural stability.

Tree protection plan: Development plans that identify existing trees drawn to scale and tree protection measures.

Tree drip line: The width of a tree's canopy as measured by a circle extending perpendicularly from the outermost tips of branches to the ground.

Tree protection zone: The three-dimensional area within the drip line, including from the crown to the root system.

Tree risk rating: A method ranking the relative degree of risk of tree failure by considering failure potential of tree or part of tree, the size of the tree part prone to failure, and value of the target that may be struck. Trees are assessed using the USDA Forest Service Community Tree Risk Rating System or other city-accepted risk rating system.

Urban forest: All trees within the city limits including street trees, park trees and private trees.

Urban forest administrator: An ISA certified arborist of the city, or its contract designee, whose primary responsibilities include implementing street tree planning, regulation, and management.

(Ord. No. 10-073, § 2, 1-6-11)

Sec. 46-28. - Authorized activities of city.

This article specifically authorizes, but does not limit, the city to perform activities in regard to public trees including: Adopt policies, rules and regulations for tree management and maintenance; select and plant trees in public areas; order the removal of dangerous trees on private and public property; oversee tree maintenance operations; oversee tree planting and maintenance operations undertaken by contractors; review land development plans including zoning and building permit applications; complete and update inventories of public trees; complete and update management plans; complete annual work plans and budgets; implement a community tree plan and develop and implement programs of public participation and education.

(1)

Department of public works. The provisions of this article shall be administered and enforced by the department of public works, unless another department is specifically noted, and except as the department of licenses and inspections is specifically authorized to administer and enforce certain provisions of this article, particularly those trees that are located on private property but are subject to certain provisions hereof. The department of public works shall be responsible for enforcing the provisions of the chapter that address right-of-way trees, shall advise on all other subsections, and is authorized to manage trees in the right-of-way. Other responsibilities may include, but are not limited to, developing and implementing the community tree plan, providing technical arboriculture consultations on behalf of the city, reviewing construction plans, reviewing and issuing tree permits, maintaining the street tree database and handling resident concerns regarding street trees.

(2)

Department of parks and recreation. The department of parks and recreation shall be responsible for the management of trees in parks and in rights-of-way adjacent to parks and for enforcing the provisions of this chapter that address said trees. The department of parks and recreation will provide support for post storm clean up, for emergency clean up that blocks rights-of-way, and for administering the firewood program. The department of parks and recreation will be available to respond to emergencies during normal business hours and on nights and weekends, if necessary.

(3)

Department of licenses and inspections. The department of licenses and inspections shall work with the department of public works to enforce the provisions of this article, specifically trees on private property.

(4)

Department of planning. The department of planning shall review private development plans, consulting with the urban forest administrator as necessary to make appropriate tree recommendations.

(Ord. No. 10-073, § 2, 1-6-11)

Sec. 46-29. - Tree commission.

(a)

Creation and membership. A City of Wilmington tree commission is hereby created which shall consist of five members, three of whom shall be appointed by the mayor and two of whom shall be appointed by the president of city council and shall serve at the pleasure of the appointing authority. Members shall serve for two-year terms, which may be renewable no more than five consecutive times. Commissioners shall be selected on the basis of education, experience or demonstrated interest in the fields of arboriculture, forestry, horticulture, landscape architecture or urban design. Pursuant to Wilmington City code section 3-304(b) and Wilmington City Charter 3-100(g), the commissioners do not need to be city residents.

The tree commission shall meet at least quarterly and shall adopt appropriate by-laws to conduct meetings and business. The commissioner of public works shall coordinate staff support for the tree commission and solicit help as needed from the director of the department of parks and recreation, the director of planning, and the commissioner of licenses and inspections. The tree commission's role is primarily advisory.

The tree commission is considered a public body and must comply with the relevant provisions of the Freedom of Information Act including public notice of meetings.

Commissioners may be terminated at will by the authority that appointed the commissioner. Such termination must be in writing and is effective immediately. Replacements for terminated commissioners will be selected by the appointing authority and effective immediately.

(b)

Organization, records, and meetings.

(1)

The mayor shall appoint a chairperson from among the commissioners. The commissioners shall elect such other officers as they may determine necessary.

(2)

The tree commission shall keep a written record of its meetings. For the purpose of taking action, a quorum of three members must be present.

(c)

Responsibilities. The tree commission shall have the following responsibilities:

(1)

Advise on matters relating to trees. The tree commission shall advise the urban forest administrator, commissioner of public works, and other city departments involved in the planting, design, maintenance, management and removal of public trees. Such advice may include:

a.

Recommendations of tree species for planting public areas;

b.

Recommendations for controlling diseases and pests damaging trees;

c.

Recommendations for tree maintenance standards;

d.

Recommendations for public education/information programs concerning the importance and care of trees;

e.

Recommendations on departmental standards and city ordinances regarding tree planting, maintenance and removals;

f.

The preparation and review of a community tree plan;

g.

The preparation of an annual report of urban forestry activities;

h.

The preparation of an annual urban forestry work plan and budget; and

i.

The preparation and acceptance of grants and contributions.

(2)

Appeals.

a.

Permit appeals: The tree commission shall hear appeals of tree permits approved or denied by the department of public works. Public notice for permit appeals will follow FOIA guidelines. Appeals to the tree commission shall be recorded and decisions shall be written and shall include findings of fact. The tree commission shall provide information to the relevant city departments regarding the determination within 60 days of the receipt of the appeal. Any further appeal shall be properly heard in Justice of the Peace Court #20.

b.

Citation appeals: In accord with sections 46-30 of this City Code, the department of licenses and inspections shall hear appeals by property owners as described in City Code section 5-706, board of license and inspection review, whereby any person aggrieved by the issuance, transfer renewal, refusal, suspension, revocation or cancellation of a tree related notice or order shall be afforded a hearing. The urban forest administrator in the department of public works shall provide relevant tree related information and professional assessments to the board of licenses and inspection review and may seek advice from the tree commission. Any further appeal shall be properly heard in the Justice of the Peace Court #20.

(3)

Community tree plan. The tree commission shall provide review and advice on the preparation and/or amendment of a community tree plan developed by the urban forest administrator and the department of public works for street, park and other public trees in the city. Other applicable city departments shall have the opportunity to provide written comments on the community tree plan. The community tree plan shall be available for public comment before adoption by the tree commission.

The community tree plan should recognize the benefits and ecosystem services provided by a public tree program and include a list or inventory of existing public trees (including species, condition and location). The community tree plan should also include suggested policies, strategies, and standards for: 1) the planting of trees (including suitable species for various environments, tree planting standards, and spacing of trees); 2) the management of tree risk; 3) programs of public participation and education; 4) tree management and maintenance; 5) landscape design; 6) funding and fund raising; and 7) other elements of a public tree program. 8) The community tree plan may also identify specific locations for new plantings and suggest desirable species for urban landscapes.

The tree commission shall review the community tree plan every five years and at other times at the request of the commissioner of public works, director of parks and recreation, or director of planning.

(4)

The tree commission may, with the approval of the mayor and resolution of city council pursuant to City Code section 2-363, solicit and accept grants and contributions on behalf of the city.

(5)

The tree commission, at the request of the urban forest administrator or commissioner of public works, shall review private and public land development plans including zoning and building permit applications to determine the impact of such plans on public trees and to make recommendations on steps needed to mitigate said impacts. The commission may review proposed plans of public improvements to city parks, plazas, streetscapes and other public places, and shall have the authority to propose changes.

(6)

The tree commission shall educate the public about the environmental, aesthetic, human health and economic benefits to the city and its citizens, including both publicly and privately owned trees and green spaces.

(7)

The tree commission shall encourage partnerships with corporations, local business and neighborhood associations in the city to improve the health, and condition of the urban forest.

(Ord. No. 10-073, § 2, 1-6-11)

Sec. 46-30. - Duty of property owner to maintain, prune, treat or remove trees.

(a)

Public right-of-way. Any person owning property shall be responsible for the maintenance, pruning, and treatment of any tree which is on, or adjoining or abutting their property and in the public right-of-way for a street, highway, lane or alley, etc, as may be necessary to alleviate any risk to the property owner or the public in the event that the tree or any part thereof is in a dangerous condition. If removal of the tree is necessary to alleviate the risk, the property owner is responsible for removal of the tree, specifically including grinding and removal of the stump and removal of the wood, and replacement of the tree. The department of public works urban forest administrator and the department of licenses and inspections, under the advice of the urban forest administrator, shall be authorized to enforce the provisions of this subsection and may issue an order to the property owner directing them to take specific action if the property owner is not in compliance with this provision. The penalties for violations for this section are provided in section 46-36

(b)

Private property. The owner of any property shall be responsible for the maintenance, pruning and treatment of any tree and shall not permit and shall be solely responsible for any damage that may result to any person or property from any dangerous tree condition. If any dangerous tree condition exists, the property owner shall cause the same to be entirely removed, pruned, or treated as may be necessary to alleviate any risk to the public. The department of licenses and inspections shall administer this provision with the advice of the urban forest administrator in the department of public works, and shall be authorized to enforce the provisions of this subsection and may issue an order to the property owner directing them to take specific action if the property owner is not in compliance with this provision. The penalties for violations of which shall be those provided in section 46-36

(Ord. No. 10-073, § 2, 1-6-11)

Sec. 46-31. - Dangerous trees and nuisance trees.

(a)

Emergency measures. Whether in the public right-of-way or on private property, if the condition and/or risk rating of any tree, or any part thereof, is such that it constitutes a danger to life or property, whether such condition is a result of disease, injury, structure, poor condition, act of God or any other cause, and is such that there is imminent or likely danger of the tree or any part thereof failing, falling, dropping or collapsing upon, or is such that it in any other way is imminently or likely to cause injury to any person or property, then the department of public works or the department of license and inspections shall, with the advice and assistance of the urban forest administrator, be authorized to enforce the provisions of this subsection and may issue an order to the property owner directing them to take specific action. If the property owner is not in compliance with this provision, the department of licenses and inspection can authorize an arborist to remove, prune, treat or otherwise abate the condition. In any such emergency, notice to the owner shall not be required, but may be given, if reasonably possible, to the owner. Any and all costs incurred by the city in any such instance shall be reimbursed by the property owner as a debt due and owing to the city and shall constitute a lien upon the property for so long as remaining unpaid by the property owner. Any emergency action taken by the city can be appealed after the fact to the board of license and inspection review. The only recourse for a property owner for an emergency action taken by the city but deemed unjustifiable by the board of license and inspection review is for non-payment of the city's costs to address the condition. The penalties for violations of this subsection shall be those provided in section 46-36

(b)

Tree of high or severe risk on public and private property. Trees on public or private property which are sufficiently damaged, diseased or in such condition as to be of high or severe risk as categorized by a city accepted risk rating system, may be ordered removed, pruned, treated or otherwise abate the condition by the urban forest administrator in the department of public works, or by the department of licenses and inspections with the advice and assistance of the urban forest administrator. If the property owner shall fail or refuse to remove or treat said public or private property tree, the property owner shall be subject to the penalty specified in section 46-36. In addition, the department of public works or the department of licenses and inspections can authorize an arborist to remove, prune, treat or otherwise abate the condition and may enter upon such lands and remove, prune, treat or otherwise abate the condition of the trees in question at the expense of such owner. Any and all costs incurred by the city in any such instance shall be reimbursed by the subject property owner as a debt due and owing to the city and shall constitute a lien upon the property for so long as remaining unpaid by the property owner.

(c)

Public and private tree citations. Property owners ordered to remove, prune, treat or otherwise abate the condition on public or private property shall have ten days following receipt of the order to appeal, through the commissioner of licenses and inspection, to the board of license and inspection review. Following a determination by the board of license and inspection review that said tree should be removed, partially removed, pruned or treated, the property owner shall comply within five days or provisions for city enforcement, removal and entry provided in section 46-31 shall be enforced.

(d)

Encroachment. The owner of any parcel of property in or upon which there are trees shall maintain such trees in a manner so that the branches or limbs of any such trees which extend over a neighboring property, whether immediately contiguous or separated by a sidewalk, or by only a street, lane, alley or other public way, shall not create an immediate risk of, damage to the roof, walls, doors, or windows of any structure situated on such neighboring property. The provisions of this section shall apply to and include all parcels of real property, and any part thereof, whether publicly or privately owned. If the property owner shall fail or refuse to remove or maintain said tree within timeframe specified on citation, the property owner shall be subject to the penalty specified in section 46-36. In addition, the department of public works or the department of licenses and inspections may authorize an arborist to remove, prune, treat or otherwise abate the condition and can enter upon such lands and remove, prune or treat the trees in question at the expense of such owner. Any and all costs incurred by the city in any such instance shall be reimbursed by the subject property owner as a debt due and owing to the city and shall constitute a lien upon the property for so long as remaining unpaid by the property owner.

(e)

Nuisance by disease and or pests; abatement measures. In any instance, in the professional judgment of the urban forest administrator, a tree located on public or private property has the appearance of being infested by pests (such as box elder bugs, emerald ash borer or other nuisance-type pests or has the appearance of being infected by Dutch elm disease, elm yellows disease, oak wilt, pine wilt, or any other infectious disease, as such terms are known and used by and among certified arborists), the urban forest administrator, acting by and with the authorized officers of the department of licenses and inspections, shall inspect the condition of such tree. If upon such inspection, any of the same is found to harbor any such pest or an infectious disease as referenced above, but emergency measures are not necessary, the urban forest administrator shall be authorized to declare the tree, or any part thereof, to be a nuisance. If on private property the urban forest administrator, through the department of licenses and inspections shall order the removal, pruning or abatement by the owner of the tree, or part thereof, within such period of time deemed appropriate by the urban forest administrator. Neglect or refusal of the owner or agent for the owner to take such action within the time specified on the citation shall be cause for the department of public works or the department of licenses and inspections to enter the property to abate or cause to be abated the nuisance. In addition, such violations shall be punishable as provided in section 46-36. Any and all costs incurred by the city in any such instance shall be reimbursed by the subject property owner as a debt due and owing to the city and shall constitute a lien upon the property for so long as remaining unpaid by the property owner.

(Ord. No. 10-073, § 2, 1-6-11)

Sec. 46-32. - Protection of public trees.

(a)

Duty to protect. In any public park, public area, on any city-owned property or in any public right-of-way, no person shall without the written permission, as outlined in section 46-33, of this ordinance cut, prune, break, destroy, overthrow, injure, scrape, paint, deface or remove any public tree; or cut, disturb or interfere in any way with the roots of any shrub or tree; or remove leaves, flowers or fruit from any shrub or tree; or spray with any chemicals or insecticides any shrub or tree; or place any rope, sign, poster or other fixture on a shrub or tree or tree guard or other device erected to protect such shrub or tree; or injure, misuse or remove any guard or device placed to protect such shrub or tree; or attach anything to any shrub or tree or make use of any shrub or tree for any purpose contrary to and inconsistent with the purpose in planting a shrub or tree planted for shade or ornament. Further, in any public park, on any other public property, city-owned property or in any public right-of-way, no person shall authorize, cause, direct, permit, or in any way allow another person, without the written permission as outlined in section 46-33, to do or commit any of the acts as provided in this subsection. The penalties for violations of this section which shall be those provided in sections 46-36

(b)

General protection. The penalties for violations of this section shall be those provided in section 46-36

(1)

Hitching animals, bikes, etc., to trees. No person shall fasten a dog or other animal or bike in any manner to a public tree or tree guard or other device erected to protect such shrub or tree, nor cause a dog or other animal to stand so that such dog or animal can injure a public shrub or public tree.

(2)

Pouring injurious substances to injure trees. No person shall pour salt, salt water, acid, oil, or any injurious substance in such a way as to injure any public tree.

(3)

Attaching wires, etc., to trees. No person shall, without written permission from the department of public works or department of parks and recreation, attach any wire, insulator or any device for the holding of a wire to any public shrub or public tree growing or planted in or upon any public property, in any park, or in or upon any public right-of-way in the city.

(4)

Attaching signs, etc., to trees. No person shall, without written permission from the departments of public works or licenses and inspections, attach any sign, or any device for the attachment of a sign to any public shrub or public tree growing or planted in or upon any public property, in any park, or in or upon any public right-of-way in the city. Temporary parking and construction signage is approved by the department of public works. Signage shall not be attached using nails, staples, or other device that will injure the tree.

(5)

Free passage of water and air to tree roots. No person shall impede the free passage of water and air to the roots by placing stone, cement or other substance upon the ground within the dripline of any public tree as may be designated in the city's rules and regulations for arbor work.

(6)

Electric wires not to contact trees. Every person or utility having any electric wires running through, on or over a public highway in the city shall have a licensed electrical technician securely fasten such wires so that they shall not come in contact with any shrub or tree.

(7)

Removal of electrical wires in order to prune, etc. Whenever it shall be necessary in order to prune or take down any public tree every person or utility having any wires charged with electricity running in, through, on or over any types of such public property in the city shall have a licensed electrical technician temporarily remove any such wires or the electricity therefrom within 24 hours of a written notice from the department of public works.

(8)

Rules and regulations for arbor work. The planting, removal, pruning, treatment or maintenance of any public tree will be done in accordance with the city's rules and regulations for arbor work to be drafted by the department of public works and the department of parks and recreation such that it meets the standards of ISA and is reviewed and approved by the city's administrative board and the tree commission.

(c)

Protection during construction.

(1)

Tree protection plans generally. Tree protection plans are plans developed in the design phase and submitted for review to the department of public works. Tree information shall be added to construction drawings including identifying all existing trees drawn to scale. Drawings shall include genus, species and common name, exact canopy and diameter (DBH) of all trees. Drawings shall clearly indicate trees to be removed and tree protections for the remaining trees, such as fencing in the dripline.

All work must be performed according to the city's rules and regulations for arbor work and contractors must be licensed to perform work in the city. Trenching and soil compaction within the tree protection zone is prohibited and shall be clearly indicated on the tree protection plan. If trenching or compaction is unavoidable, an ISA certified arborist must assess the proposed damage and determine if the tree is structurally sound or removal is necessary. If the removal of a public tree is required, the stump must be ground and removed, the dead wood removed and a replacement tree(s) planted as part of the project.

(2)

Protection of private trees during grading, building construction, or repair work on private property. In the grading for, destruction, erection or repair of any building or structure, it is recommended that the owner thereof shall place chain link fencing or guards around the drip lines of all trees and shrubs to be saved to prevent injury to such shrubs and trees.

(3)

Protection of public trees during grading, building construction or repair work on adjacent private property. In the grading for, destruction, erection or repair of any building or structure on private property, the owner thereof shall place chain link fencing or guards around the drip lines of all nearby public shrubs and trees as shall effectually prevent injury to such shrubs and trees. Any trenching, excavating, pruning of limbs or roots within the dripline of any public tree shall be done with written permission of the department of public works as outlined in section 46-33. All root pruning and other work shall be done in accordance with the city's rules and regulations for arbor work.

(4)

Protection of public trees during grading, building, construction, repair or utility work in the public right-of-way, park, or other area to which the city has control or title.

For any project that affects public trees in parks, rights-of-way, or other city owned or managed property, the department of public works requires the development of a tree protection plan submitted to the department of public works. The department of public works shall issue tree permits as outlined in section 46-33.

(Ord. No. 10-073, § 2, 1-6-11)

Sec. 46-33. - Permits.

(a)

Permit required for planting, removal, and pruning of street trees.

(1)

No street tree shall be planted, removed, pruned, or root pruned without obtaining a written permit from the department of public works. Any street tree to be planted shall have first been approved and the place where it is to be planted designated by the department of public works and a written permit granted by the department. No person shall plant any tree of a different species or variety or of a different size or contrary to the specifications as given on the permit. All work must be performed in accordance with the city's rules and regulations for arbor work and contractors must be licensed to perform tree work in the city. If a permit is granted for removal of a street tree the stump must also be ground and removed, the dead wood removed and a replacement tree planted.

(2)

Regular park maintenance on park trees by the department of parks and recreation does not require a permit, but the department of parks and recreation shall report yearly plantings and removals to the department of public works for inventory purposes.

(b)

Tree work permit required for protection of public trees during construction.

(1)

The urban forest administrator in the department of public works and/or the department of licenses and inspections is authorized to conduct inspections to ensure compliance with the permitting and have the authority to place a stop work order on any activity involving the unauthorized removal of, or damage to any public tree within the city's jurisdiction.

(2)

Construction in the right-of-way that involves excavation or vehicular traffic within the tree protection zone of street trees requires that a tree protection plan be included as part of the contract documents submitted prior to construction to be reviewed by the department of public works. A written tree permit to perform work within the tree protection zone shall be issued by the department of public works.

(3)

Construction in a park or other area to which the city has control or title that involves construction or vehicular traffic within the tree protection zone of a public tree requires that a tree protection plan be included as part of the contract documents submitted prior to construction to be reviewed by the department of public works. Written approval for all removals are required by the by the department of parks and recreation for park trees, and the department of public works for all other public trees.

(4)

Any construction project on private property that requires trenching, excavating, pruning of limbs or roots, or soil compaction within the tree protection zone of any public tree shall require a written permit from department of public works.

(c)

Permits—Appeal to tree commission. The applicant or affected property owners shall have ten days following the approval or denial of a tree planting, removal or pruning permit to appeal, through the commissioner of public works, to the tree commission.

(Ord. No. 10-073, § 2, 1-6-11)

Sec. 46-34. - Replacement of public trees.

(a)

Generally. All replacement trees shall have a minimum caliper of two inches, be branched high, suitable for street tree use. A list of recommended urban trees is included in the rules and regulations of arbor work. Park trees species and locations are approved by department of parks and recreation and street trees and trees on areas to which the city has control or title are approved by the department of public works. Species must be appropriate for the space and location in which each tree is to be planted. Native species are recommended when appropriate.

(b)

Replacement following lawful removal by city. Whenever the city removes or causes to be removed a public tree, the city shall plant or cause to be planted no fewer than two trees each having a minimum caliper of two inches. Replanting location shall be approved by the urban forest administrator.

(c)

Replacement following lawful removal of a street tree by an adjoining or abutting owner with an appropriate city street tree permit. Whenever a street tree is lawfully removed by the owner as evidenced by an approved street tree permit, the stump must be ground and removed, the dead wood removed and a replacement tree having a minimum caliper of two inches planted within six months of removal.

(d)

Replacement following lawful removal by a utility with the appropriate city street tree permit. For each tree removed, one new tree having a minimum caliper of two inches shall be replaced in a location mutually agreeable to the city and the utility.

(e)

Replacement following unlawful removal, damage or destruction of a tree. For any public tree that is removed without a permit, replacement is required. Replacement trees shall be sufficient to replace the total diameter of the tree removed to the extent and so that the total cross-section of the tree so removed is replaced and maintained by the planting of such number of new trees as to total at the time of planting the diameter of the tree removed.

(Ord. No. 10-073, § 2, 1-6-11)

Sec. 46-35. - Interference with city departments.

No person shall prevent, delay, harass or interfere with the department of public works, department of parks and recreation or with the department of licenses and inspections or any other city department, or any of their agents or employees, planting, pruning, spraying or removing of a shrub or tree, or in the removal of any stone, cement or other substance about the trunk or roots of a shrub or tree, or in any other aspect of the administration and enforcement of the provisions of this article. Any person who violates the provisions of this section shall upon conviction thereof be guilty of a misdemeanor and be subject to a fine of not less than $100.00.

(Ord. No. 10-073, § 2, 1-6-11)

Sec. 46-36. - Violations and penalties.

(a)

Failure to comply with order or notice. If any person who shall fail to remove, prune, replace or treat a dangerous or diseased tree or in any other way violates any provision of this article, after receiving written order or notice from the department of licenses and inspections, the department of public works or the department of parks and recreation, such person shall be guilty of a misdemeanor and shall be subject to a fine of not less than $100.00 for each period of one to seven days of any violation up to a maximum fine of $1,000.00 for each such violation.

(b)

Unlawful destruction, removal, etc. Any person who, without the written permission of the department of public works or department of parks and recreation, cuts, breaks, destroys or removes any public tree, or permits or allows any other person, without the written permission of the department of public works or department of parks and recreation, to cut, break, destroy or remove any public tree shall, at the direction of the commissioner of public works and director of parks and recreation be subject to either subsection (b)(1) or subsection (b)(2):

(1)

Plant or cause to be planted, or, if there is a written agreement signed by such person and accepted by the city by which such person agrees to reimburse the city for costs incurred by it, permit the city to plant replacement trees to replace the total diameter of the tree which was unlawfully cut, broken, destroyed or removed. In all instances of replacement pursuant to this subsection, such replacement trees shall be sufficient to replace the total diameter of the tree removed to the extent and so that the total cross-section of the tree so removed is replaced and maintained by the planting of such number of new trees as to total at the time of planting the diameter of the tree removed; for example, for every six-inch diameter tree removed, it shall be replaced with one six-inch tree, or two three-inch trees, or three two-inch trees, all in a manner satisfactory to and in locations approved by the urban forest administrator in the department of public works. It shall be a violation of this article for any person to fail to replant any tree when, as, and if directed by the department of public works to do so, particularly when so directed as a condition for approval of the removal of any tree.

(2)

For any violation in which the owner claims that such damage or destruction was not intentionally or willfully inflicted, the cost of repairing or replacing the damaged tree shall be levied at the discretion of the commissioner of public works or director of parks and recreation. The value of the tree(s) to be replaced shall be determined by a certified arborist using a valuation method approved by the council of tree and landscape appraisers.

(c)

Willfully injuring or killing a public tree. For willfully injuring or killing a living tree in any public area by cutting, debarking, breaking, pruning of roots over two inches, excessive pruning for cameras or lights, by the use of herbicides, use of a vehicle, or in any other manner wherein it is determined by the justice of the peace that such damage or destruction was intentionally inflicted, a fine of not less than $100.00 nor more than $1,000.00. In addition, the cost of repairing or replacing each damaged tree shall be levied. The value of tree(s) to be replaced shall be determined by an ISA certified arborist using a valuation method approved by the council of tree and landscape appraisers.

(Ord. No. 10-073, § 2, 1-6-11)

Sec. 46-37. - Easements for tree planting.

The city is authorized to accept easements from property owners to plant and maintain trees on private property. Such easements shall be in writing, executed, and acknowledged by such property owners, and shall be recorded in the office of the recorder of deeds.

(Ord. No. 10-073, § 2, 1-6-11)

Sec. 46-38. - City assistance for tree removal and maintenance.

(a)

Elderly or disabled property owner program.

(1)

If funding is available, upon application to the department of public works, on such form adopted by the department, the property owner shall demonstrate as of the date of application eligibility for the city's elderly property tax exemption program in chapter 44, article II of the City Code. Upon verification by the department of finance that such property owner is indeed so eligible for the property tax exemption program, the relevant department may thereafter approve the pruning or removal of the subject tree in the public right-of-way adjoining such property owner's property and the department itself or its authorized agent may so prune or remove such tree. This provision is entirely dependent on the availability of funding. Nothing in this section shall be construed as an action that would render the city liable for care or the continued care, maintenance or upkeep of any such tree nor render the city liable in damages for any injury or death sustained by reason of the condition of any tree subject to the provisions of this section.

(b)

City street tree assistance policy and program. If funding is available, the department of public works is hereby authorized and empowered to administer a street tree assistance policy and program in order to assist the owners of property adjoining or abutting upon any street, highway, lane or alley in the city, in the maintenance of the health, removal of dangerous trees and replacement of trees that are located in the public right-of-way. Nothing in this section shall be construed as an action that would render the city liable for care or the continued care, maintenance or upkeep of any such tree nor render the city liable in damages for any injury or death sustained by reason of the condition of any tree subject to the provisions of this section.

(Ord. No. 10-073, § 2, 1-6-11)

Sec. 46-39. - Utilities.

The provisions of this article specifically apply to utilities, whether electric, communications, or any other entity regulated by the public service commission. In particular:

(1)

Utilities must obtain a permit to prune, treat or remove and replace any public tree as part of the utility's routine tree maintenance program. During an emergency event the utility will notify the city no longer than five business days after the emergency event regarding all work affecting public trees. This includes paying for the cost of the felling the tree, the stump removal, removal of the dead wood and replacement with a new tree. In the event that the utility is performing routine maintenance, the utility shall simultaneously submit plans for the entire maintenance program in the city limits and the department of public works shall review within 15 business days of submission and determine which trees are acceptable to remove and replace. The utility must provide written notice to the affected property owner(s) of the maintenance work and in particular, any tree intended for removal and replacement. The utility may not attempt to recover the cost of any tree work from the adjoining property owner.

(2)

Further, the city may require that department of public works be present during the tree work, and therefore non emergency tree work must be performed by the utility during normal city business hours.

(3)

Utilities shall follow the city's rules and regulations for arbor work.

(4)

Penalties in section 46-36 properly asserted against a utility may be doubled at the discretion of the city.

(5)

New and replacement utility lines. The city strongly encourages that new utility lines be placed underground, rather than being strung overhead, at the expense of the utility. This policy helps to preserve the urban forest and has aesthetic benefits to city residents.

(Ord. No. 10-073, § 2, 1-6-11)