[HISTORY: Adopted by the Borough Council
of the Borough of Malvern 1-21-2020 by Ord. No. 2020-1.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 48,
Shade Tree Commission, adopted 9-16-2003 by Ord. No. 2003-13, as amended.
As used in this chapter, the following terms shall have the
meanings indicted:
An assessment performed by an arborist possessing International
Society of Arboriculture (ISA) risk assessment qualification and using
methodology based on the current edition of the ISA Best Management
Practice Manual for Tree Risk Assessment.
An area of land, whether or not paved or otherwise improved
in any way, acquired by reservation, dedication, prescription or condemnation
and intended to be occupied by a street.
A tree situated within the shade tree protection area; all
trees and shrubs originally planted as a requirement of an approved
plan for subdivision or land development; all trees or shrubs required
by order of the Zoning Hearing Board, and any shade trees, shrub or
other woody plant, or part thereof, which extends within the lines
of any street in said Borough.
The right-of-way plus an additional 10 feet on either side
of the right-of-way, as well as any land designated as or constituting
a "buffer area" or "open space" or similar protection area as shown
on an approved subdivision or land development plan.
Any public or private right-of-way that is intended for vehicular
or pedestrian circulation to provide access to one or more lots and
also used to provide space for installation of improvements such as
sewers, other utilities, street trees and sidewalks. The term "street"
includes alley, road, avenue, drive, lane, court, or similar terms.
A line separating a lot from an adjacent street.
A.
The Commission shall have exclusive custody and control of the shade
trees in the Borough and is authorized to plant, remove, maintain
and protect shade trees on public streets and highways in the Borough.
The Commission shall have the authority to prepare and adopt a street
plan for planting trees, removal of trees and maintenance of shade
trees as well as for all trees in or upon the parks or other real
property owned by the Borough. The plan, or amendments to the plan,
shall not become effective until approved by resolution of Borough
Council.
B.
If the Shade Tree Commission proposes to plant, transplant or remove
shade trees on any street, notice of the time and place of the meeting
at which the work is to be considered shall be given in one newspaper
of general circulation once a week for two weeks immediately preceding
the time of the meeting. The notice shall specify in detail the streets
or portions upon which trees are proposed to be planted, transplanted
or removed.
The Shade Tree Commission may, with the approval of the Borough
Council, employ and pay such superintendents, engineers, foresters,
tree wardens or other assistants as needed for the proper performance
of duties imposed upon it shall require, and may make, publish and
enforce regulations for the care and protection of the shade trees
in the Borough; provided, however, that no such regulation shall be
in force until it has been approved by the Borough Council and until
it has been enacted as an ordinance.
A.
Selection. The Shade Tree Commission shall maintain and distribute,
upon request, a listing and other pertinent information regarding
tree varieties appropriate to the Borough's climate zone. Any
tree to be planted under electric or other utility lines must be a
variety whose mature height will not interfere with the line(s).
B.
Planting. Through direct advice and dissemination of educational
materials, the Shade Tree Commission shall guide private owners on
proper planting techniques. Under most circumstances, private owners
shall be responsible for both site preparation and planting, except
when organized volunteer programs are involved.
C.
Maintenance.
(1)
Private owners shall be ultimately responsible for proper maintenance
of shade trees situated on their property. In this regard, the Shade
Tree Commission shall provide guidance, materials and/or recommend
appropriate techniques upon request.
(2)
The Borough Council or Borough Manager, with or without advice from
the Shade Tree Commission, may require removal, pruning or treatment
of Shade Trees on private property or within the shade tree protection
area where public health or safety is determined to be at risk due
to damage or disease of the shade trees, including diseases or infestations
that may pose a risk of contagion to other shade trees. In making
such determination, the Borough Council or Borough Manager may seek
the advice of the Shade Tree Commission, professional foresters, licensed
arborists or other persons experienced in this subject.
(3)
Borough Council or the Borough Manager shall give 30 days' written
notice to an owner who is required to remove, prune or treat a Shade
Tree on private property or within the shade tree protection area.
Upon failure of any owner to comply with such notice, the Borough
may cause the work to be done by the Borough or its contractors and
levy and collect the cost thereof from the owner of the property.
The cost of such work shall be a lien upon the premises from the time
of the commencement of the work, which date shall be fixed by the
Codes Enforcement Officer and shall be filed with the Borough Secretary.
Any such lien may be collected by a civil action or by lien filed
in the manner provided by law for the filing and collection of municipal
claims.
D.
Removal and replacement.
(1)
No person, without permission of Borough Council, shall remove, cut,
break or injure in any manner any shade tree. If any other shade tree
is damaged or removed in violation of this chapter, the violator shall
replace the removed tree within two planting cycles of its removal
with another tree species appropriate to the climate zone and the
specific planting site. The violator shall bear the cost of removal
and replacement, except in unusual circumstances when any free nursery
stock suitable for the planting of the site is available from or through
the Shade Tree Commission or other agency. If a shade tree originally
purchased by the Borough and planted on Borough property is damaged
or removed in violation of this chapter, the violator shall pay a
fine of not less than $500 and shall post a cash escrow of an additional
$500 to guarantee the survival of any replacement tree for a period
of 18 months after replanting.
(2)
The Shade Tree Commission has the authority to enter onto private
property for the purpose of inventory and/or inspection wherever there
is located a tree, shrub or other plant or plant part suspected of
being diseased, damaged or infested with insects such that such disease
or damage or infestation may cause a hazard to other trees or property
in the Borough and to advise the private owner of its recommendation
to remove, prune and/or treat accordingly. However, any steps or actions
to require a private owner to conduct such activity, or to pay for
such work, shall be the exclusive responsibility of the Borough Council
and Borough Manager.
(3)
Trees subject to the provisions of this chapter that are removed
or replaced under the conditions herein stated will be subject to
the following:
(a)
In the event a tree subject to the provisions of this act dies
or is destroyed through no fault of the owner, the Borough, at its
sole discretion, reserves the right to replace it. If the Borough
does so choose to replace it, the costs to replace shall be borne
by the Borough.
(b)
In the event a tree subject to the provisions of this chapter
dies due to the fault of the owner, the Borough, at its sole discretion,
may direct that the owner replace it, with the costs to do so being
borne by the owner. If the owner under this provision does not replace
the tree within period of two planting cycles, then the Borough may
replace the tree with the owner being responsible for reimbursement
to the Borough for the cost of tree replacement. The Borough may elect
to accept a fee in lieu of replanting on the owner's property.
Nonpayment of the cost of replanting or of the fee in lieu will subject
the owner and the owner's property to municipal lien.
(c)
In the event a tree subject to the provisions of this chapter
is removed by utility company or their contractors within two planning
cycles of being planted, the Borough, at its sole discretion and cost
reserves the right to replace it.
(d)
In the event a tree subject to the provisions of this act is
deemed to present a moderate risk or greater as determined by a qualified
tree risk assessment and the Borough directs that the owner remove
the tree or the Borough removes the tree, the Borough, at its sole
discretion reserves the right to replace it. The cost for replacement
under this provision shall be borne by the Borough.
(e)
In the event a tree subject to the provisions of this chapter,
is removed by the owner or owner's agents, and said tree has
not been determined to be a moderate risk or greater by a qualified
tree risk assessment, the owner shall replace it. If the owner does
not replace it, the Borough, at its sole discretion,reserves the right
to replace the tree with the owner being responsible for reimbursement
to the Borough for the cost of tree replacement. The Borough may elect
to accept a fee in lieu of replanting on the owner's property.
Nonpayment of the cost of replanting or of the fee in lieu will subject
the owner and the owner's property to municipal lien.
(f)
In the event a tree subject to the provisions of this chapter
is removed by the owner with permission, and said tree has not been
determined to be a moderate risk or greater by a qualified tree risk
assessment, the Borough may require the owner to replace it. If the
owner does not replace it after being so directed, the Borough, at
its sole discretion, reserves the right to replace the tree with the
owner being responsible for reimbursement to the Borough for the cost
of tree replacement. The Borough may elect to accept a fee in lieu
of replanting on the owner's property. Nonpayment of the cost
of replanting or of the fee in lieu will subject the owner and the
owner's property to municipal lien.
(g)
The Borough is never obligated under this ordinance to replace
a tree either at Borough expense or Owner expense. The Borough, at
its sole discretion, may chose not to require tree replacement, even
if a healthy tree is removed.
The Commission may, upon 30 days' written notice, require
owners of property to cut or remove trees affected with diseases or
any other affliction or condition which the Commission may determine
to have detrimental effect upon the health, safety or welfare of the
public or which threatens to injure or destroy plants, shrubs or shade
trees of the Borough. Upon failure of any such owner to comply with
such notice, the Borough may cause the work to be done by the Borough
or its contractor and levy and collect the cost thereof from the owner
of the property. The cost of such work shall be a lien upon the premises
from the time of the commencement of the work, which date shall be
fixed by the Codes Enforcement Officer and shall be filed with the
Borough Secretary. Any such lien may be collected by a civil action
or by lien filed in the manner provided by law for the filing and
collection of municipal claims.
A.
No person shall plant, prune, trim or remove any shade tree on or
overhanging the right-of-way of public highways, streets or alleys
in the Borough without first making an application to the Code Enforcement
Officer and receiving an approved permit.
B.
It shall be the responsibility of the property owners to maintain shade trees trimmed to a minimum height over streets and highways to provide a clearance of 13 feet, to keep shade trees trimmed overhanging a public sidewalk to provide a minimum height of eight feet, and to maintain shade trees in a manner that does not block any intersection sight distance, obscure pedestrians about to cross a street, or otherwise interfere with the safety of motorists and pedestrians. The Commission reserves the right to designate higher clearance where conditions make it desirable. (See also § 153-3C, grass and weeds, and Chapter 153, Article III, property maintenance, for prohibitions against other encroachments).
C.
No person
shall, without first obtaining a permit therefore, cut, break or injure
in any manner any shade tree; or cut or interfere in any way with
the main roots of any shade tree; or place or secure any rope, guy
wire, cable, sign, poster or any other fixture on any shade tree;
or cause any substance deleterious to the health of a tree to leak
or flow on or into the soil about the base of any shade tree.
A.
Any person who shall violate the terms of this chapter or fail to
comply with any of the regulations or rules of the Shade Tree Commission
of the Borough adopted pursuant to this chapter shall, upon conviction
in a summary proceeding, be sentenced to pay a penalty of not more
than $250, and costs of prosecution, for each offense, to be collected
as other fines and costs are, by law. Further, any person who causes
damage, in any way, to a shade tree, including the removal or destruction
of same, shall be responsible for the costs of replacement or repair
of the shade tree, at the Borough's discretion. Any penalty or
assessment for destruction or damage so assessed shall be a lien upon
the real estate of the offender and may be collected as municipal
claims are collected. Violations on separate days shall be considered
separate violations.
B.
Any person found guilty of or liable for violating any ordinance
of the Borough shall be assessed court costs and reasonable attorney's
fees incurred by the Borough in the enforcement proceedings.
C.
In addition to any other remedies available to the Borough, a person
who shall violate the provisions of this chapter may be contacted
by a member of the Shade Tree Commission to discuss the violation
relative to the intent of the chapter regarding tree removal, replacement
or treatment/maintenance. A written notice shall be sent following
the initial contact outlining the work to be done and a time limit
for completion. Noncompliance with the notice may result in Borough
Council or the Borough Manager authorizing the removal, trimming or
treatment at the owner's expense.
D.
All penalties or assessments imposed under this chapter shall be
paid to the Borough Treasurer, to be kept in a separate fund and utilized
only for the purposes authorized by this chapter.
A.
Annual report. The Shade Tree Commission shall annually report in
full to the Council its transactions and expenses for the last fiscal
year of the Borough.
B.
Certification of amounts required. The Shade Tree Commission shall
each year certify to council an amount needed for the care of shade
trees and for the publication of notices required by this chapter.
The Shade Tree Commission shall use funds appropriated or raised by
taxation in accordance with § 2720.1 (relating to maintenance
by Borough and tax levy) for any purpose authorized by Council.
C.
Certification of assessments. The Shade Tree Commission shall ascertain
and certify to Council and the borough treasurer the amount of any
assessment imposed in accordance with this subchapter for the planting,
transplanting or removal of plants, shrubs and trees.
