TREE PROTECTION ORDINANCE

This tree ordinance was researched and written by the Carteret County Tree Awareness Group in 2005-06. Reviews of the ordinance by many professionals in the fields of forestry, community planning, landscape architecture and law were followed by multiple revisions. The ordinance is offered to governments in our coastal region as a model to use in developing and/or strengthening tree ordinances that will be effective in protecting existing trees and encouraging the planting of new trees.  An effective tree ordinance is the best means available to communities to protect and preserve trees for present and future generations.

Model Tree Preservation and Planting Ordinance for North Carolina Coastal Communities
 

Prepared by the

Carteret County Tree Awareness Group, 2006

1.     TITLE

This ordinance shall be known, and may be cited, as the Tree Preservation and Tree Planting Ordinance of Carteret County, North Carolina.

2.     PURPOSE AND INTENT

The purpose of this ordinance is to promote the preservation and planting of trees in order to:

•  Safeguard and enhance residential and commercial real estate values;

•  Reduce noise, glare and heat,

•  Conserve energy;

•  Buffer noise and wind;

•  Mitigate storm-water runoff;

•  Protect properties from erosion; and

•  Provide habitats for living creatures.

The intent of this ordinance is to enhance the community of Carteret County and protect its citizenry by:

•  Regulating the planting and removal of trees

•  Regulating the preservation of specimen and heritage trees by applying protection measures.

3.     AUTHORITY

The Planning and Inspections Department of Carteret County shall have the authority to administer the provisions of this ordinance by Statute #_______ (to be provided by County).

3a.     Duty to Review Plans

The Planning Director shall be responsible for reviewing all Tree Preservation and Planting Plans in accordance with this ordinance in Section 6.

3b.     Duty to Issue Permits

The Planning and Inspections Department shall issue such permits as are required by this ordinance.

3c.   Duty to Set Policy

The Planning and Inspections Department shall be authorized to formulate such rules and regulations as it may deem necessary for the administration of the program authorized herein .

3d.   Duty to Enforce

The Director of the Planning and Inspections Department, or his or her designee, shall provide overall enforcement of this ordinance.

3e.   Duty to Hear Appeals

The Zoning Board of Adjustment, a component of the Planning and Inspections Department, shall hear and decide appeals that:

•  Request a variance from the standards of this ordinance;

•  Seek to reverse a decision by the Director;

•  Seek to change an assessment penalty.

The Zoning Board may approve, modify, or deny the request, based upon a case-by-case consideration of:

•  Protection of the public interest as reflected within the scope of this ordinance;

•  Any unreasonable hardships claimed by the individual requesting a variance or relief from any proposed mitigation measures.

Proposed mitigation measures should be considered in the light of their potential to encourage furtherance of this ordinance's purpose and intent.

3e(1)    The Appeals Process Shall Include:

•  The assessment of a penalty or other notice of violation shall entitle the violator (petitioner) of this ordinance to a hearing by the Zoning Board of Adjustment if the request is submitted within 10 days of receipt of the notice of violation or penalty assessment.

•  Petitioner shall pay to Carteret County appropriate fees with the application for an appeal.

•  The Zoning Board shall fix a reasonable time for the hearing of the appeal, provide written notice to the violator, and give public notice of the hearing.

•  Appeals to the decision of the Zoning Board shall be to the Carteret County Superior Court or any other court of competent jurisdiction.

4.   DEFINITIONS

Buffer plants —Plants required by the zoning ordinance to serve as buffers.

Drip line —A vertical line that runs from the outermost portions of a tree crown and extends to the ground.

Forestry Activity —Any activity associated with the growing, managing, harvesting, and related transportation, reforestation, or protection of trees and timber, provided that such activity complies with existing State regulations pertaining to forestry. This definition does not include activity associated with development.

Forestry Management Plan —A document defining the landowner's forest management objectives and the measures to be taken to achieve those objectives. The plan shall include (1) silvicultural practices for the purpose of growing commercial timber through the establishment of forest stands, (2) insuring the proper regeneration of forest stands to commercial production levels following the harvest of mature timber, (3) insuring both optimal forest productivity and environmental protection of the land.

Heritage Tree —(a) Any tree listed in the North Carolina Big Trees List, (b) any tree that would measure 80% of the points of a tree on the North Carolina Big Trees List, (c) any tree listed on the American Forest Association's Champion Tree list, (d) individual trees of any size or species that are designated as a heritage tree by the Carteret County Board of Commissioners. A suggested method of measuring a tree is described on the American Forest website, www.americanforest.org. Upon nomination by any person, and with the written consent of the property owner(s), the Carteret County Board of Commissioners may designate a tree as a heritage tree.

A tree may be designated as a heritage tree upon a finding that it is unique and of importance to the community due to any of the following factors:

•  it is an outstanding specimen of a desirable species;

•  it is one of the largest or oldest trees in Carteret County or in the state of North Carolina ;

•  it possesses distinctive form, size, age, location, and/or historical significance.

After commissioners' approval of a heritage tree designation, the county clerk shall notify the property owner(s) in writing.

Planting Plan --a sketch of the property that is to be developed or upgraded, showing the location of the trees described in Section 6 of this ordinance, and any buildings or proposed buildings.

Protection Plan —a description of the methods used to protect trees during the development and construction processes.

Present Use (or Farm Value) --the value of a tract based on its ability to produce agriculture, forestry, or horticulture products. The yearly taxes are based on the use of the property versus its highest and best use.

Protected Root Zone —an undisturbed, protected area where tree roots are required to be protected. This zone is at least one foot in diameter for each one inch of trunk diameter,

measured at 4.5 feet above grade.

Public property --property owned by a government

Redevelopment --the redesign or rehabilitation of existing properties; the process of developing land which is, or has been, developed

Renovation --the process of restoring or improving a structure.

Specimen Tree --A tree or group of trees considered to be important community assets due to their unique or noteworthy characteristics or values. A tree may be considered a Specimen Tree based on its size, age, rarity or special historical or ecological significance, as determined by a professional arborist or urban forestry s pecialist . Examples of specimen trees are--

•  large hardwoods (oaks, poplars, maples, etc.) and softwoods (pine species) in good or better condition with a diameter of 24 inches or greater,

•  smaller under story trees (such as dogwoods, redbuds, sourwoods, persimmons) in good or better condition with a diameter of 10 inches or greater.

5.   APPLICABILITY

The provisions of this ordinance shall apply to:

•  new and redeveloped commercial and industrial development

•  new and redeveloped residential subdivisions

•  new residential construction

•  renovations or upgrades with an estimated cost of 50% or more of the tax value

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 private property in accordance with the applicability of this Section .

6.   TREE PRESERVATION AND PLANTING PLANS

Preliminary and final plats for all applicable properties shall include a Tree Preservation and Planting Plan that specifies the following:

•  an inventory of all existing trees with a trunk diameter of five inches or greater, measured 4.5 feet above grade;

•  the proposed location of all new trees to be planted;

•  the location of existing and proposed buffer plantings, street trees and any other landscaping required by the Zoning Ordinance or Subdivision Ordinance;

•  the location of existing trees to be removed.   

•  a tree protection plan as described in Section 7a.

Note:

In this ordinance, reference to trunk diameter shall always mean

trunk diameter measured 4.5 feet above ground .

If a property has been timbered or clear-cut, it cannot be subdivided or developed for three years after removal of the trees to prevent subversion of the intent of this ordinance.

 6a.   Standard for Minimum Tree Density

On each property for which a tree plan is required by this ordinance, the Tree Plan must allow for a minimum tree-density standard, as follows:

•  for each 4,000 square feet, one tree, two inches in diameter or greater,

•  for each one acre, a minimum of 10 trees, two inches in diameter or greater.

This standard may be met by:

•  retaining existing trees at least six feet high and one inch in diameter

•  planting new trees.

New and/or existing trees that do not survive the development process must be replaced by new trees of two inches (or greater) in diameter, so that the minimum standard tree density is maintained for one year after completion of projects covered by this ordinance.

6b.   Removal of Existing Trees

For properties subject to this ordinance, the Tree Plan shall show which existing trees will be removed in order to develop the property. No existing tree greater than five inches in diameter shall be destroyed unless written approval has been granted by the county during the process of approving the Tree Plan and the final plat. Tree removal shall take place before development or construction begins.

6c.   Tree Species for Planting

This ordinance strongly encourages the planting of trees native to Eastern Carolina and/or adaptable to the coastal conditions and climate of Carteret County . As a resource for developing tree plans, the Planning Director's office shall maintain and make available to the public a list of desirable trees based on mature height. A list of trees not recommended for planting shall also be maintained and provided. Trees on the not recommended list will not be considered as fulfilling the minimum standard tree density requirements of this ordinance.

6d.   Location of New Trees

No street trees shall be planted nearer than 35 feet from any street corner, which distance shall be measured from the nearest curb line of the street intersecting the street right-of-way within which the street tree is being planted. No street tree shall be planted nearer than ten feet from any fireplug or street light, nor within five feet of curb cuts.

No street trees, other than those species listed as small trees on the desirable trees list, may be planted under or within ten lateral feet of any overhead utility line, or over or within five lateral feet of any underground water line, sewer line, transmission line, or other underground utility.

6e.   Heritage and Specimen Trees   

Property owners shall preserve all existing heritage and specimen trees unless doing so presents an economic hardship that denies them reasonable use of their property which cannot be relieved by incentives or a variance. The existence of possible applicable incentives or variances cannot be considered as a relief from hardship if serious application for the incentive or variance is, in fact, denied. (See Section 4 for definitions of heritage and specimen trees.)

6f.   Bond for Delayed Performance

Requests for a delay in complying with this section due to poor weather conditions for planting, for delay in obtaining plant material, or other circumstances beyond the control of the owner or developer will be considered following a written request directed to the county's planning and inspections department.

Certificate of occupancy will be issued upon approval of a request for planting delay with either the posting of a bond, producing a certified check or an irrevocable letter of credit, any of which to be one and one-half times the estimated cost of the materials and planting. In any case planting is to be finished within twelve months .

7.   PROTECTION OF TREES DURING DEVELOPMENT   AND CONSTRUCTION

7a.   Tree Protection Plans

A tree protection plan shall be incorporated into the tree planting plan described in Section 6 and submitted to the Department of Planning and Inspections.

Protection plans shall be required for:

•  All applications for grading, building, demolition, change of land use, or rezoning;

•  All applications for development of property that contain:

•  heritage trees,

•  specimen trees,

•  existing trees being protected for credit toward the required number of trees.

A tree protection plan shall describe:

•  existing trees having all or any portion of their trunks in or upon public property

•  existing trees that are

  --trees with a trunk diameter five inches or greater,

  --trees with a trunk diameter two inches or greater being saved for credit       towards the minimum standard tree density requirements (see Section 6a).

7b.     Protections to Follow during Construction

7b(1)   Protective Barriers

Before construction begins, all trees to be preserved and all newly planted trees shall be surrounded by protective barriers to safeguard tree roots. Protective barriers shall encompass the space around a tree (or group of trees) that extends from the ground, up to the tree's drip line.

The minimum standard for barriers shall be fencing 3 feet high, clearly marked with tape.

All construction activities shall be prohibited within these protected root zones. This prohibition includes:

•  all excavating, trenching, construction storage and dumping;

•  driving or parking of any vehicles and equipment;

•  any change in grade due to excavation, soil placement, or construction materials;

•  placement of any debris on tree roots.

Barriers shall remain in place until all work is completed.

7b(2)   Trenching

Trenching shall not be done within the protected root zones of any tree covered by this ordinance. Trenching shall be conducted outside protected zones and done in the least amount of time possible under existing weather conditions. The soil within the zone shall not be compacted.

7b(3)   Tunneling

Tunneling shall be the preferred method of installing utilities, if utilities cannot be routed around the tree and outside the drip line. Tunneling shall be offset to one side of the trunk and at a depth of greater than one foot.

Guidelines for the beginning and ending distance of the tunnel from the trunk are based on the principle that a tree requires a root ball of at least one foot for each one inch of trunk diameter. Thus, for a tree with a 16-inch diameter trunk, the area protected from tunneling would begin at least eight feet from the trunk and continue for eight feet on every side of the tree for a total of 16 feet.

7c.   Maintenance After Construction

If any of the trees specified in the Tree Preservation and Planting Plan (see Sect. 6) are severely damaged during construction or should die within 24 months after project completion, the developer or property owner shall replace the trees. Replacement must happen within six months at a ratio of one-to-one. The size of the replacement trees shall be based on the trunk diameter of the tree to be replaced, and shall be replaced by an approved tree of at least the same size up to 2 inches in diameter.

8.   ENFORCEMENT

8a.   Inspection of Sites

Agents or other qualified persons from the Department of Planning and Inspections are authorized to inspect the sites subject to this ordinance to determine compliance.

Agents may conduct such investigations deemed reasonably necessary to carry out the duties prescribed herein. Agents may enter, at reasonable times, public or private property to inspect trees subject to the provisions of this ordinance.

No person shall refuse entry or access to any authorized county agent who requests entry for the purposes of inspection and who presents the proper credentials; nor shall any person obstruct, hamper or interfere with such agent while the agent is carrying out official inspection duties.

8b.   Notice of Compliance

If inspection agents determine that a person has failed to comply, or is no longer in compliance with this ordinance, a Notice to Comply shall be served on that person by registered mail, return-receipt requested, or by facsimile or hand delivery from the agent.

The compliance notice shall:

•  state the violation

•  describe the violation

•  describe what will be necessary to comply with this ordinance

•  advise the person that failure to correct violation(s) within the time period will subject him or her to the civil penalties provided in Section 8c and 8d.

8 c.   Notice of Violation and Stop-Work Order

Failure to respond to the notice of compliance shall result in a Notice of Violation issued by the inspection agent. The notice of violation shall contain a stop-work order.

8 d.   Civil Penalties

Penalties assessed under this ordinance are in addition to, and not in lieu of, compliance with the requirements of this ordinance.

Any person who violates any of the provisions of this ordinance shall be subject to one, all, or a combination of the civil penalties described herein.

The person performing the work and the person contracting for the performance of the work shall be jointly and severally liable for any penalty or other enforcement action imposed pursuant to this ordinance or other provisions of law on account of failure to comply with the terms of this ordinance.

No civil penalty shall be assessed until the person alleged to be in violation has been issued a notice of the violation as provided in Section 8d(7). If the site of any redevelopment, renovation, upgrade, construction or development is not brought into compliance within the time specified in the Notice of Violation, a civil penalty may be assessed from the date the Notice is issued.

The Zoning Board of Adjustment shall determine and assess the civil penalty, if any, at the time of the appeals hearing, if one is requested and the appeal is denied. In the absence of an appeal, the county public works director shall assess the civil penalty.

Civil penalties for violations of this ordinance shall be assessed as follows:

8d(1)   Failure to Plant Original or Replacement Trees

Failure to plant original or replacement trees in accordance with Section 6 shall be $50.00 for each tree not planted and this shall constitute a separate, daily and continuing violation for each tree. No notice of violation is needed prior to the assessment of a civil penalty issued pursuant to this subsection.

8d(2)   Failure to Plant Trees of Specified Size

As stated in Section 7c, this ordinance directs that all replacement trees shall have a trunk diameter two inches or greater. Failure to comply may incur a penalty of not more than $500 per violation.

8d(3)   Injury or Destruction of Trees   

Injury or destruction of trees and shrubs protected by Section 7 that result in the total loss of a tree shall require replacement within 60 days of the Notice of Compliance or Notice of Violation. Injuries shall be assessed by a professional arborist to determine if the tree can be treated. If it can be treated that must be done; if not the tree shall be replaced as determined under Section 7c.

Penalties for injured trees protected by Section 7 that do not result in total loss shall be assessed based on replacement cost for each tree. However, the maximum amount of the penalty shall not exceed $1,000.00. Replacement cost is to be determined by getting the average of estimates from at least three local nurseries for a tree as similar as possible to the injured tree.

The maximum civil penalty for each tree injured or destroyed shall not exceed $20,000.00.

8d(4)   Failure to Maintain Tree Protection Measures

The penalty for failing to install or maintain the required tree protection measures in accordance with Section 7 shall be $1,000.00 per tree to be protected. The failure to install the required tree protection measures shall constitute a separate, daily and continuing violation .

Injury, damage to, or destruction of, trees in the tree-protection zone resulting from inadequate or omitted tree protection measures constitutes a separate violation, which may subject the violator to any other applicable penalty set forth in Section d, paragraphs (1)-(7).

8d(5)   Other Violations

Any other action that constitutes a violation of this ordinance may subject the violator to a civil penalty of $50.00, and each day of continuing violation shall constitute a separate violation. However, the maximum amount of the penalty for a violation not otherwise specifically identified in section d shall not exceed $1,000.00 per tree.

8d(6)    Non-monetary Penalty

A non-monetary penalty in the form of increased or additional planting requirements may be assessed at the discretion of the Director of Planning and Inspections in addition to, or in lieu of, any monetary penalties prescribed under this section.

8d(7)    Notice of Assessment Penalty

The county shall determine the amount of the civil penalty and shall notify the person who is assessed of the amount of the penalty and the reason for assessing the penalty. The Notice of Assessment shall be served by any means authorized under General Statute ________ and shall direct the violator to either pay the assessment or appeal it, as specified in Section 3e(1) of this ordinance.

If the Planning and Inspections Department does not receive the payment of assessed penalties within 30 days after it is due, or if no request for a hearing has been made as provided in Section 3e(1), the assessment shall be considered a debt due and owing to the county, and the matter shall be referred to the county attorney for institution of a civil action to recover the amount of the debt. The civil action may be brought in the county superior court or in any other court of competent jurisdiction.

9.   EXEMPTIONS

The provisions of this ordinance shall have the following exemptions:

•  All lots dedicated as a school site or a playing field or similar non-wooded recreational areas.

•  Any public utility or cable television company that clears, moves, cuts or destroys any trees for the purpose of erecting, installing, moving, removing, altering or maintaining any structures or fixtures necessary for the supply of electric light, heat, or power, communication, or cable television services upon any lands in which it has acquired an easement or right-of-way.

•  Any development, subdivision or re-subdivision for which a final plat has been recorded by (applicable date) if the final plat is not subsequently revised.

•  L and clearing and grubbing activities for agricultural purposes in the rural zoning district.

9a.   Exemption for Treatment of Disease or Infestation

Upon the advice of the Carteret County Public Works or Planning and Zoning Departments, and in accordance with commonly accepted forestry practices, the Zoning Enforcement Officer may authorize the removal of trees to prevent the transmission of disease or infestation, to prevent danger from falling trees, or to prevent potential injury to life and property.

9b.   Exemption for Emergencies

In an emergency such as a hurricane, ice storm, fire or other disaster, the requirements of this ordinance may be waived by the county during the emergency period so that the requirements of this ordinance will in no way hamper private or public work needed to restore order. This shall not be interpreted as a general waiver of the intent of this ordinance.

9c.   Exemption for Economic Hardship

Where practical difficulties or unnecessary hardships inconsistent with the purposes of this ordinance resulting from its literal interpretation or enforcement, the Board of Adjustment may waive, modify or delay the enforcement of these provisions, upon written request by the developer or the property owner. At no time shall the owner be denied reasonable, economically beneficial use of his or her property.

To qualify for an exemption due to economic hardship, a property owner must provide all of the following in order to establish a denial of all reasonable economic use:

•  Feasibility of alternative development plans

•  Current value of the property in relation to the original cost

•  Current property taxes

•  Offers to purchase

9d.   Exemption for Agriculture

All property being managed in accordance with a forest management plan written by a North Carolina Registered Forester and/or any property currently enrolled in the Present Use Value Program is exempted from this ordinance. If not enrolled in the Present Use Value Program, a copy of the forest management plan under which the property is being managed must be presented to the County Planning and Inspections Department as documentation.

If a timber harvest is conducted under this forest management exemption in a manner that does not comply with the development provisions of this ordinance, the county planning department may deny a building permit for the area for up to three years.

10.    SEVERABILITY CLAUSE

Should any part or provision of this ordinance be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of the ordinance as a whole or any part thereof other than the part held to be invalid.