ORDINANCE
NO. 562
AN ORDINANCE OF THE CITY OF HUNTERS CREEK VILLAGE, TEXAS,
REQUIRING A TREE SURVEY, A TREE DISPOSITION PLAN,
* * * * *
WHEREAS, the City of Hunters Creek Village (the
“City”) is a residential community desirous of
maintaining the City’s rural, forested character; and
WHEREAS, the City Council hereby finds that the
preservation of Trees within the City is necessary to maintain such rural,
forested character; and
WHEREAS, Trees act to reduce noise pollution, provide
shade, cool the air, restore oxygen to the air, reduce glare, and provide an
ecological habitat for birds and other plants and animals; and
WHEREAS, the urban forest of the City can aid in the
conservation of vital energy and natural resources and should be maintained and
enhanced to the fullest extent possible for the enjoyment and benefit of present
and future generations
and to maintain and improve property values within the City; and
WHEREAS, the City Council finds that unnecessary damage
and destruction of significant Trees within the City affects public safety,
health, and general welfare, and should be addressed; now, therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HUNTERS CREEK VILLAGE,
TEXAS:
Section 1. The facts and matters set forth in the preamble of this Ordinance are hereby
found to be true and correct.
Section
2. Definitions. As used in this Ordinance,
the following terms shall have the respective meanings given below:
Caliper shall mean the diameter of a Tree as measured at a point on the tree which is
six inches (6”) above the ambient grade.
Circumference shall mean the circumference of the trunk of a Tree measured at a height of four
and one-half feet (4-1/2’) above the ground using an ordinary tape measure or
diameter tape. Tree diameter in inches x 3.14 equals the circumference of a Tree
in inches. If the tree has unusual swells in the trunk at measurement height,
measurement shall be taken either below or above the swell at the smallest trunk
diameter as close to four and one-half (4-1/2) feet as possible.
Critical
Root Zone means
the area within the Dripline of a Tree. As a practical matter, this is the acute
portion of the tree’s root system. Approximately ninety percent (90%) of the
tree’s root mass occurs within the top three feet of the soil and most of the
fine feeder roots which collect moisture and nutrients are located in the top
six inches (6”) of the soil. Typically, a Tree’s root system extends as much
as two to three times the distance from the trunk to the Dripline.
Damage or Damaged shall mean to take any action which
will, in reasonable probability, result in the death of a Tree, either
immediately, or after a reasonable period of time. Some example of Damage
include (without limitation) severing a main trunk or large branches or large
roots, girdling, poisoning, carving, mutilating, touching with live wires,
piercing with nails or spikes, crushing or exposing the roots, digging or
drilling any hole or trench larger than three (3) cubic feet within the Critical
Root Zone, covering over a substantial portion of the Critical Root Zone with
two inches (2”) or more of soil or other nonporous material or compacting a
substantial part of the soil in the Critical Root zone (e.g. driving or parking
a vehicle in the Critical Root Zone, or otherwise placing heavy objects within
the Critical Root Zone).
Development
Activity means
for any Subject Site, demolition or moving of any Structure, site clearing or
grubbing, grading and any other activity which disturbs the surface of land and
is actually undertaken or customarily undertaken, as preparation for
development, and also includes the actual development, including the
construction, alteration, remodeling, or destruction of any Structure or any
subdivision improvement.
Dripline shall means an imaginary circle drawn around a Tree extending to the outer tips
of the largest branches.
Impervious
Material shall
mean concrete, tar, asphalt, brick pavers, or similar paving materials.
New
Tree or Replacement
Tree shall mean any tree with a Caliper of at least one and one-half inches
(1-1/2”), which is listed in the Approved Tree Appendix (Appendix A) and which
is planted under the requirements of Section 3 .F. hereof
Person shall mean any individual, entity, corporation, trust, unincorporated
organization, partnership, or any other form of entity.
Professional shall means a Person with a professional working knowledge of Trees, including
an architect, engineer, landscape or Tree professional, arborist, surveyor, or
any City official approved by the City Council.
Protective
Fence shall have
the meaning set forth in Section 3.G.2.a. hereof and shall effectively prevent
persons, machinery, trash, material, and other items from occupying the area
within the protective fence.
Root
Pruning shall
mean a clean cut between the undisturbed and disturbed root zones within the
Dripline of a Tree, commonly done with a rock saw or similar equipment to minimize root damage.
Structure shall mean that which is built or constructed, an edifice or building of any
kind, or any piece of work artificially built up or composed or parts joined
together in some definite manner.
Subject
Site shall mean
any lot, tract, or parcel of land upon which a Tree subject to this Ordinance is
located, or any site for which a construction or building permit has been issued
by or requested from the City.
Tree or Protected Tree shall mean any existing tree or trees on a Subject
Site, which has a circumference of twenty inches (20”) or more.
Tree
Disposition Plan shall mean a written plan prepared by a Professional which shall indicate how
all Trees and Critical Root Zones on a Subject Site, and all Protected Trees
located elsewhere, which have thirty percent (30%) or
more of its Critical Root Zone in a Subject Site, are to be protected pursuant
to Section 3 hereof, and how Replacement Trees and/or New Trees are to be
maintained to encourage survival and sustained growth.
Tree
Removal Permit shall mean a permit issued by the City pursuant to the conditions and
requirements of this Ordinance granting
permission and authority to remove Trees on a Subject Site.
Tree Survey shall mean a survey of all Trees on a Subject Site, prepared by a Professional, and shall include (i) the actual trunk location, size, and species of all existing Protected Trees on the Subject Site prior to any Development Activity, (ii) a
designation of all Protected Trees (by species, size and
location) proposed..to be removed or destroyed as a result of any Development
Activity, (iii) a designation of all proposed New and/or Replacement Trees (by species, size and
location), (iv) outlines of all existing and proposed Structures, paved
surfaces, swimming pools, fences, sprinkler systems, utilities and other
improvements and structural features on the Subject Site, (v) a scale, north
arrow, name, address, phone number, and profession or occupation of the Person
who prepared the Tree Survey, and (vi) the name of the owner of the Subject Site
and/or the builder or developer of the Subject Site.
Urban
Forester means a
Professional so designated from time to time by the City Council of the City
under this Ordinance.
Section 3. Preservation And Protection of Trees.
A. Intent. The intent of this
Section is to encourage site planning which furthers the preservation of Trees
and natural areas by these methods; to protect Trees during construction; to
facilitate site design and construction which contribute to the long term
viability of existing Trees; to control the unnecessary removal of Trees; and to
require on-site replacement of Trees that must be removed during Development
Activities. It is the further intent of this
Ordinance to achieve the following broader objectives:
1. protect healthy Trees and preserve the natural ecological environmental
and aesthetic qualities of the City;
2. protect and increase the value of properties within the City;
3. prohibit the indiscriminate clearing or clear cutting of property;
4. maintain and enhance a positive image toward the City;
5. prevent
removal/damage of Protected Trees.
B. Tree Removal. It is
unlawful for any Person to remove or to intentionally or with criminal
negligence damage any Tree within the City, without having first obtained from
the City a Tree Removal Permit, unless otherwise exempted by the provisions of
this Section.
C. Application
for Tree Removal Permit.
1. Except as provided in paragraph 2 below, if Development Activity is
planned for a Subject Site, an application for a Tree Removal Permit must be
filed with the City, together with (i) the Tree Survey, (ii) the Tree
Disposition Plan, and (iii) an application for building permit.
2. An application for building permit may be processed and approved without
a Tree Removal Permit if (i) the
application for building permit involves minor or small scale Development
Activity and the Owner of the Subject Site certifies in writing that no Tree
will be removed, damaged, or destroyed in connection with such Development
Activity; or (ii) the Owner certifies in writing that there are at least five (5) Trees on the Subject Site with at least two (2) Trees in the front yard,
which are unaffected by the proposed Development Activity.
D. Issuance of Tree Removal Permit: Development Activity. A Tree Removal
Permit shall be issued by the City under this Ordinance in
connection with Development Activity on the Subject Site if the following
conditions have been met:
1. the Tree Survey has been approved in writing by the Urban Forester;
2. the Tree Disposition Plan has been approved in writing by the Urban
Forester; and
3. the Building Permit has been issued by the City in connection with the
Development Activity.
E. Exceptions. No Tree Removal
Permit or Replacement Tree shall be required in the following circumstances:
1. If no Development Activity on the Subject Site is planned for the
foreseeable future, the Owner may remove, or cause to be removed, a Tree or
Trees on the Subject Site if:
a. the Tree in question is severely
damaged, diseased, or dead, including a Tree diseased under the provisions of
paragraph H of this Section;
or
b. the subject Tree constitutes an
unreasonable impediment to the use and enjoyment of the Subject Site (which does
not amount to lot clearing prior to Development Activity), for example, the Tree
blocks sunlight from a yard, home or garden, or is otherwise aesthetically
unappealing to the Owner; or
c. the removal of the Tree is
necessary for safety reasons, including, but not limited to, branches
overhanging a Structure, severely leaning Trees, or Trees with a seriously
damaged root system which pose a reasonable threat of falling.
2. An employee of a public utility or an authorized contractor working in a
dedicated public right-of-way, drainage, or utility easement may, in the course
of business, prune that portion of a Tree which prohibits the safe construction, operation,
repair, or maintenance of a service line or facility. Trees must be pruned no
more than is reasonably necessary for the construction, operation, repair, or
maintenance of the service line or facility, and shall be in accordance with
specifications set forth by the National Association of Arborists.
3. Any Person
may remove all or a portion of a Tree that has disrupted a public utility
service due to tornado, storm, flood, or other act of God, but only that portion
of the tree which is necessary to safely restore normal utility service.
F. Tree
Replacement: New Trees.
1. Subject to paragraph F.4 below, each Tree that is required to be removed
in connection with Development Activity is to be replaced with a Replacement
Tree. The maximum number of Protected Trees that must be replaced on any Subject
Site under this Ordinance
is five (5).
2. New Home Construction. The Owner and/or builder of any Subject
Site where the Development Activity consists of constructing a new home, shall
be required to have a minimum of five (5) viable
Trees on the Subject Site, whether such Trees are Replacement Trees, New Trees,
or Trees already existing on the Subject Site. At least two (2) of such Trees
shall be planted or growing in the front yard or in a location which is
considered to be the front of the principal residence.
3. Timing of Planting. Each Tree planted under this paragraph F,
shall be completed within thirty (30) days of the issuance by the City of the
Certificate of Occupancy (if weather and time appropriate), or no later than the
following January after completion of the Structure, as reflected in the
application for building permit. In the instance of postponed planting, a
refundable deposit of $200.00 per Tree shall be paid to the City in order to
ensure performance of such planting.
4. Notwithstanding the provisions of paragraph F.1. hereof, no Replacement
Tree shall be required to be planted:
a. nearer than thirty feet (30’)
from the trunk of another Tree on the Subject Site; or
b. within the Critical Root Zone of
another Tree on the Subject Site; or
c. within areas covered by Structures
or swimming pools.
5. If there
is no area on the Subject Site outside of the areas described in subparagraphs
4.a., b., or c. above, no Replacement Tree Shall be required.
G. Tree Protection: Unique Circumstances.
A major purpose of this paragraph G is to
protect all Trees which are not required to be removed and to allow approved
construction to occur. The following procedures shall apply to all Development
Activity which involves development around a Tree(s) within a Subject Site, and
until a Certificate of Occupancy has been issued by the City. However, the Urban
Forester may allow modification of the provisions of this paragraph upon a
determination that unique circumstances exist and that strict application of the
provisions of this paragraph would result in undue hardship to the owner of the
Subject Site.
1. Prohibited activities. The following activities shall be
prohibited within the limits of the Dripline of any Protected Tree.
a. Material Storage. No
materials intended for use in construction or waste materials accumulated due to
excavation or demolition shall be placed within the limits of the Dripline of
any Protected Tree;
b. Equipment Cleaning/Liquid
Disposal. No equipment shall be cleaned or other liquids deposited within
the limits of
the Dripline of any Protected Tree. This includes, but is not limited to, paint,
oil, solvents, asphalt, concrete, mortar, or other materials;
c. Tree Attachments. No signs,
wires, or other attachments, other than those of a protective nature, which have
been approved in the Tree Disposition Plan, shall be attached to any Protected
Tree;
d. Vehicular Traffic. No
vehicle, construction equipment or parking is allowed within the limits of the
Dripline of any Protected Tree; and
e. Trash. Trespassing or
throwing trash into a Protective Fence area is prohibited.
2. Required Activities. The following procedures shall be followed
prior to and during any Development Activity until a Certificate of Occupancy
has been issued by the City.
a. Protective Fencing: Root
Protection. Unless otherwise approved in the Tree Disposition Plan, each
Tree or group of Trees to be preserved must be enclosed by a Protective Fence
during all Development Activity and until a Certificate of Occupancy has been
issued by the City. The Protective Fence shall be made of chain link or equivalent, and
completely enclose the Critical Root Zone of a Tree or group of Trees. The
protective fence shall be at least four feet (4’) high with lateral metal
supports spaced no wider than eight feet (8’) apart (“Protective Fence”).
b. Mulch. If Development
Activity is to take place within the Critical Root Zone of any Tree, the
Protective Fence described above shall cover the area on which no Development
Activity is to take place,
and the balance of the Critical Root Zone for such Tree or group of Trees must
be covered with at least six inches (6”) of organic or wood chip mulch and
covered with three-fourths inch (3/4”) plywood or roadboards in order to
protect the roots from soil compaction.
c. Removal. It shall be
unlawful for any Person to remove any portion of any Protective Fence or mulch
and roadboards for any period of time during any Development Activity, unless
otherwise specified in the Tree Disposition Plan.
d. Tree Flagging. All Trees to
be removed from the Subject Site shall be flagged with orange vinyl tape
(flagging) wrapped around the main trunk at a height of four feet (4’) or
more. After receipt of the Tree Removal Permit, the Owner of the Subject Site,
or his agent, shall paint with orange paint, an “X” on the Tree(s) approved
for removal, at a height of four feet (4’) or more, so that the paint is
visible to workers on foot or operating heavy equipment.
e. Trunk Protection. In
situations where a Tree remains in the immediate area of intended Development
Activity, the Tree shall be protected by enclosing the entire circumference of
the Tree’s trunk with lumber at least eight feet (8’) high banded by wire or
other means that does not damage the Tree.
f. Construction Pruning. If a
Tree has a low canopy or limbs that may be broken during the course of
construction, and if specified and approved by the Urban Forester in the Tree
Disposition Plan, the obtrusive limb(s) may be cut. Pruning should be done
according to the National Association of Arborists Standards.
g. Watering During and After
Construction. Protected Trees should receive supplemental water during times
of drought or low rainfall. Plans for feeding and watering must be prepared by a
Professional, who is retained by the Owner or his agent, and must be included in the Tree
Disposition Plan.
3. Design Constraints. Design constraints dictate that in certain circumstances some Protected Trees will have some encroachment of their Critical Root Zone. The following is the minimum design criteria which is allowed within the Critical Root Zone of a Protected Tree:
a. Change of Grade. In the
event that grade changes must be made around a Protected Tree(s), the .following
procedures shall be followed, unless otherwise approved in the Tree Disposition
Plan:
(1) No cut or fill of the ambient
grade greater than two inches (2”) shall be located close to the trunk of a
Protected Tree if the cut or fill covers more than one-half of the radius of the
Critical Root Zone. If this provisions cannot be complied with, the following
provisions shall apply:
(a) Increase in Grade. The
Owner shall construct tree wells around the Dripline of a Tree(s), which shall
be of a design that provides for proper aeration and drainage of the Critical
Root Zone; or
(b) Decrease in Grade: The
owner shall construct retaining walls around the Dripline of a Tree(s) to
mitigate cuts.
(2) If Development Activity causes
standing water or wet soil conditions which are detrimental to a species of
Tree(s) on a Subject Site or adjacent property, adequate drainage shall be
provided in the Tree Disposition Plan in order to prevent suffocation and/or
root rot of affected Tree(s).
b. Underground Utilities. Boring for
the installation of underground utilities is permitted under Protected Trees in
certain circumstances. The minimum depth of the bore shall be thirty inches
(30”). In special circumstances approved by the Urban Forester, trenching for
underground utilities may be permitted with respect to all such Protected Trees.
If utility trenching is approved, the following procedures must be adhered to:
(1) Root Pruning shall take place at lease two (2) weeks prior to any
trenching;
(2) Root Pruning shall be supervised
by a Professional;
(3) The utility trench must be back
filled less than twenty-four (24) hours after it is dug; and
(4) A root remediation schedule must
be addressed in the Tree Disposition Plan.
c. Irrigation systems shall be
designed to avoid trenching across the Critical Root Zone of any Protected Tree.
d. Paving and Impervious Material.
A maximum of twenty-five
If
the design plan of Subject Site calls for any Impervious Material over any part
of the Critical Root Zone, with respect to all such Protected Trees, then the
following procedures shall be adhered to:
(1) With respect to all such
Protected Trees, Root Pruning shall be done six inches (6”) to one foot (1’)
behind the proposed curb line and shall take place at least two (2) weeks prior to any fill or cut;
(2) Root Pruning and necessary limb
pruning shall be supervised by a Professional;
(3)
A plastic vapor barrier of construction grade shall be installed between the
roots of a Protected Tree and the Impervious Material so as to inhibit leaching
of lime into the soil; and
(4) A root remediation schedule must
be addressed in the Tree Disposition Plan.
H. Removal
of Diseased Trees.
1. Any pine
Tree within the City limits of the City, which is infested with the insect known as the Southern
Pine Beetle, as determined by a representative of the City, a representative of
the Texas Forest Service, or an entomologist, is declared to be a public
nuisance.
2. It shall be unlawful for the owner of any lot or parcel of
land within the City to permit or maintain on any such lot or parcel of land any pine Tree infested
with Southern Pine Beetles; and it shall be the duty of the owner of any such lot or parcel
of land upon which is situated a pine Tree infested with Southern Pine Beetles
to abate such infestation and public nuisance either by chemical treatment of
the bark of such Tree or by the felling of such Tree and subsequent chemical
treatment of its bark, whichever shall be required.
3. If, from an examination of a pine Tree or a bark sample, the City
Building Official or any other person with
entomological competence designated by the City Council, determines that the
Tree is infested with Southern Pine Beetles, the City Building Official shall
serve or cause to be served, upon the owner of record of the lot or parcel of
land upon which such Tree is situated, a written notice
requiring such owner to comply with the provisions of this subsection. Such
notice may be served in person or by certified mail, return receipt
of such notice.
Section 4. Urban Forester.
A. Appointment. The City Council of the City has the authority to hire a
Professional as the Urban Forester for the City. The Professional designated as
the Urban Forester must hold at least a Bachelor’s degree from an accredited
college or university in urban forestry or horticulture or must have equivalent
aboricultural skills and experience.
B. Duties. The permit secretary or the building official of the City shall
deliver to the Urban Forester all Tree Disposition Plans, Tree Surveys,
Applications for Tree Removal Permits, and other documents reasonably requested
in connection with any or all of the requirements of this Ordinance. The Urban Forester shall work with each Owner and/or builder on
the Subject Site, and appropriate officials of the City in order to administer
and enforce the provisions of this Ordinance, as the same may be amended from
time to time. The Urban Forester shall establish categories of simple and
routine or low-risk Development Activity, the applications for which may be
handled summarily without submission to the Urban Forester.
Section 5. Violations. It shall be unlawful for any Person to fail or refuse to comply with the
requirements of this Ordinance or any permit issued pursuant hereto.
The
City’s building official or Urban Forester may withhold or withdraw (redflag)
any permit issued or to be issued pursuant to this Ordinance if any condition or
requirement of this Ordinance or such permit is not fulfilled.
Section
6. Penalty. Any Person who violates any provision of this Ordinance, shall be deemed guilty
of a misdemeanor and, upon conviction thereof, shall be fined in an amount not
to exceed $500.00 per day.
Each day such violation exists shall constitute a separate offense. The owner(s)
of a Subject Site where any violation of this Ordinance shall occur, and any
agent, contractor, builder, architect or other Person who shall assist in
the commission of
such offense, shall be guilty of a separate offense and upon conviction thereof,
shall be fined in an amount not to exceed $500.00 per day.
Section
7. Affirmative
Defenses. It shall be an affirmative defense to prosecution under
this Ordinance that immediate action to remove, damage, or kill the Tree in question was necessary to prevent harm to
Persons or property.
Section 8. Repealer. Ordinance No. 298, adopted
on May 17, 1977, is
hereby repealed. All other ordinances or parts of ordinances
inconsistent or in conflict herewith are, to the extent of such inconsistency or
conflict, hereby repealed.
Section 9. Severability. In the event
any clause phrase, provision, sentence, or part of this Ordinance or the
application of the same
to any person or circumstances shall for any
reason be adjudged invalid or held unconstitutional by a
court of competent jurisdiction, it shall not affect, impair, or invalidate this Ordinance as a whole
or any part or provision hereof other than the part declared to be invalid or unconstitutional; and the City Council of the
City of Hunters Creek, Texas, declares that it would have passed each and every part of the same notwithstanding the
omission of any such part thus declared to be invalid or unconstitutional,
whether there be one or more parts.
PASSED,
APPROVED, AND ADOPTED this 16th day
of November, 1999.
_________________________
Jack
W. Howeth
Mayor
ATTEST:
_____________________
Nancy
J. Parks
City Secretary