[Added 10-10-2000 by Ord. No. 13-2000; amended in its entirety 6-13-2005 by Ord. No. 10-05]
A.Â
The purpose of this article is to ensure the preservation
and protection of street trees and shrubs and protected trees in the
setback area of residential lots.
B.Â
The preservation of trees and their protection from
significant harmful effects caused during development and other activities
serves the public health, safety and welfare of Mountain Lakes. The
benefits to the community include:
C.Â
The protection of trees also serves to reduce risks
to the health and safety of others associated with falling or dropping
limbs from unhealthy or dead trees.
Certain words, phrases and terms are defined
below for purposes of this article, unless the context otherwise requires:
The owner of record of any property adjacent to the affected
property.
The lot or lots for which a tree removal permit, road opening
permit, soil moving permit or construction permit is issued.
As defined in § 40-3 of the Code of the Borough of Mountain Lakes.
As defined in § 40-3 of the Code of the Borough of Mountain Lakes.
As defined in § 40-3 of the Code of the Borough of Mountain Lakes.
As defined in § 40-3 of the Code of the Borough of Mountain Lakes.
Any tree eight or more inches in diameter or 25 inches or
more in circumference measured at a point 4Â 1/2 feet above the
ground whose trunk is wholly in the setback area of the affected property.
If a tree has multiple trunks, then each trunk's diameter shall be
measured and added together to determine the size of the tree.
As defined in § 40-3 of the Code of the Borough of Mountain Lakes.
The permit required by § 204-25 of the Code of the Borough of Mountain Lakes.
The area between the lot lines and the setback lines of a
lot.
As defined in § 40-3 of the Code of the Borough of Mountain Lakes and listed in Schedule I: Bulk Requirements.
A woody plant that does not have a center trunk and does
not typically grow over 10 feet high.
The permit required by § 102-11 of the Code of the Borough of Mountain Lakes.
Any tree or shrub upon any Borough street, right-of-way,
highway, public place or park.
Any living deciduous or coniferous species which reaches
a typical mature height of 12 feet or more and has a typical mature
diameter of four inches or greater measured at a point 4Â 1/2
feet above the ground.
The permit required by § 102-36 of the Code of the Borough of Mountain Lakes.
A.Â
Regulations.
(1)Â
Approval for planting or removing street trees or shrubs. No person shall plant, prune or remove any tree or shrub upon any Borough street, right-of-way, highway, public place or park without written permission from the Shade Tree Commission. Except as required by Subsection A(2) herein, this provision shall not be construed to require a street tree management plan to plant or remove a tree or shrub upon any Borough street, right-of-way, highway, public place or park.
(2)Â
Street tree management plan required. The Construction Official shall not issue a construction permit for erecting or constructing a building or addition or alteration thereof or improvements upon a property, a road opening permit, or a soil moving permit until a street tree management plan has been approved by the Shade Tree Commission and implemented in accordance with the regulations and provisions of § 102-35. Throughout a period of any construction, alteration or repair to any building or structure, or work on a site which is subject to an approved street tree management plan, the owner, tenant, person, firm or corporation causing said construction, improvement or work shall in all respects comply with an approved street tree management plan. The Planning Board or Zoning Board of Adjustment shall require as part of an application for development a street tree management plan approved by the Shade Tree Commission.
(3)Â
Other restrictions. No person shall:
(a)Â
Cut, break, injure or remove a tree or shrub
upon any Borough street, right-of-way, highway, public place or park.
This provision shall not apply to the actions of the Borough or a
duly franchised public utility in the case of an emergency.
(b)Â
Place rope, wire, sign, poster or other fixture
on a tree or shrub upon any Borough street, right-of-way, highway,
public place or park or injure, misuse or remove any device placed
to protect a tree or shrub upon any Borough street, right-of-way,
highway, public place or park. This provision shall not apply to the
actions of the Borough or a duly franchised public utility in the
case of an emergency.
(c)Â
Fasten or attach an animal to or cause or allow
an animal to injure a tree or shrub upon a Borough street, right-of-way,
highway, public place or park.
(d)Â
Place or store, or cause to be placed or stored,
any earth, stone, cement, sidewalk, or other substance, that impedes
the free access of water and air to the roots of a tree or shrub upon
any Borough street, right-of-way, highway, public place or park.
(e)Â
Pour salt water or other chemical, build fires
or station any incinerator, tar kettle, road roller or other engine
on or near a tree or shrub upon any Borough street, right-of-way,
highway, public place or park in any such manner that the vapor or
fumes therefrom may injure the same.
B.Â
Street tree management plan.
(1)Â
Application. Any owner, person, firm or corporation
who shall seek approval of an application for development by the Planning
Board or Zoning Board of Adjustment; apply for a construction permit
to erect or construct or cause to be erected or constructed a building
or addition thereto or alteration thereof or install or cause to be
installed improvements upon any property; seek a road opening permit;
or seek a soil moving permit shall as a condition thereof apply for
and receive approval for and comply with a street tree management
plan on such forms and provide such information as may be reasonably
required to satisfy the intent and purpose hereof by the Shade Tree
Commission in accordance with the following:
(a)Â
Identify, by street, block and lot number, the
site and adjacent Borough streets, rights-of-ways, highways, public
places and parks.
(b)Â
Provide the name, address and telephone number
of the owner or duly authorized agent of said owner, where applicable.
(c)Â
Identify and place on a site plan or survey
the location of any existing and/or proposed tree or shrub on adjacent
Borough streets, rights-of-ways, highways, public places and parks.
(d)Â
Mark any existing tree or shrub and/or the location
of a proposed street tree or shrub, by visible, weatherproof and reasonably
tamperproof means such as colored plastic tape. Existing trees or
shrubs shall not to be sprayed with paint or chemicals or otherwise
permanently marked, damaged or defaced.
(e)Â
Identify and mark a tree protection zone around
trees and shrubs upon Borough streets, rights-of-ways, highways, public
places and parks adjacent to the site to a minimum of one foot from
the tree trunk in all directions where feasible equal to one-inch
diameter of tree trunk (for example, 10 feet from a tree 10 inches
in diameter) and one foot beyond the dripline of a shrub. The diameter
of the tree must be determined as follows: measure the circumference
of the tree 4.5 feet above the ground, then divide that number by
3.14. This is the diameter of the tree.
(f)Â
Construct and maintain barricades made of snow
fencing, or comparable fence material approved by the Shade Tree Commission,
to a height of no less than four feet around the perimeter of the
tree protection zone, as identified above, until all work is completed
and the condition of trees and shrubs within the tree protection zone
is approved by the Shade Tree Commission.
(g)Â
Place signs on barricade denoting a tree protection
zone.
(h)Â
Place all equipment, supplies, stockpiled earth
and stones, ditches, and underground utility lines outside the tree
protection zone. If an underground line must go within a tree protection
zone, it is to be installed by a method approved by the Shade Tree
Commission that minimizes to the extent feasible cutting of or damage
to roots.
(i)Â
At the discretion of the Shade Tree Commission,
fertilize protected trees and shrubs which show evidence of stress
from construction activity to increase vigor and aid in overcoming
stress.
(j)Â
Designate specific corridors for site access,
where the driveways or parking areas or walks will be located, and
provide protection of root zones where necessary.
(k)Â
Where a change of slope may cause harm to any
existing tree or shrub upon a Borough street, right-of-way, highway,
public place or park, a well or other means of protective barrier
shall be erected accordingly, said barrier not to encroach on the
area required to sustain life of the same.
(l)Â
In the event it is proposed to replace an existing
tree or shrub or in the event a tree or shrub is killed, destroyed
or substantially damaged during construction, it must be replaced
by one or more trees or shrubs of equivalent size and of a type approved
by the Shade Tree Commission. If replacing a tree with a trunk diameter
greater than 2.5 to three inches measured 4.5 feet above the ground,
in lieu of planting one tree with equivalent trunk diameter, a larger
number of smaller trees may be planted, according to a formula based
on the diameter of the trunk of the destroyed or damaged tree: For
every two inches of tree diameter damaged or destroyed, plant one
replacement tree acceptable to the Borough with a two-and-one-half
to three-inch diameter measured one foot above planting level. To
the extent such replacement tree or trees cannot reasonably be located
upon the Borough street, right-of-way, highway, public place or park
in place of the original existing tree, the Borough may designate
an alternate location upon any Borough street, right-of-way, highway,
public place or park.
(2)Â
Review. The Shade Tree Commission shall review a street
tree management plan to determine its compliance with the requirements
of this section. In reviewing the aforesaid items, the Shade Tree
Commission may utilize the services of the Borough Manager, Borough
Engineer, Arborist, or other Borough staff or consultants.
(3)Â
Time for decision. The Shade Tree Commission shall,
within 15 days after receipt of a complete application, render its
decision.
C.Â
Maintenance guaranty. In the event the planting of
trees or shrubs or the replacement of existing trees or shrubs is
proposed, an applicant shall post a maintenance guaranty equal to
120% of the estimate of the Shade Tree Commission to plant or replace
the same, which maintenance guaranty shall be subject to acceptance
by the Borough Council. Upon completion of all construction or disturbance,
an applicant may seek approval of planted or replaced trees and shrubs.
All trees or shrubs which fail to survive for a period of three years
following the approval thereof by the Shade Tree Commission shall
be replaced at no cost or expense to the Borough. The replacement
shall be made within 60 days following written demand for such replacement
or within such additional time as the Shade Tree Commission may direct.
In the event the applicant shall fail to comply with the written demand
for such replacement by the Shade Tree Commission, the Council may
default the guaranty upon notice to the applicant and the sum thereof
shall be forfeited to the Borough of Mountain Lakes and applied to
the budget of the Shade Tree Commission or Borough. A guaranty shall
be released by the Council upon completion of all construction or
disturbance, approval of planted or replaced trees and shrubs by the
Shade Tree Commission and survival thereof for a period of three years
following approval.
[Amended 4-12-2021 by Ord. No. 8-21]
A.Â
Regulations.
(1)Â
Tree removal permit required. No person shall remove a protected tree, which does not include dead trees, in the setback area of any lot without first obtaining a tree removal permit. A tree removal permit shall not be required for removal of a protected tree if the work to be done is in accordance with an approved setback tree management plan and the related permits required by Subsection A(2) herein. The tree removal permit shall be automatically approved, with no requirement for neighbor notification, if no more than 50%, up to a maximum of three of the protected trees, which does not include dead trees, in the setback area have been or will be removed in a twelve-month period.
(2)Â
Setback tree management plan required. The Construction Official shall not issue a construction permit for erecting or constructing a building or addition or alteration thereof or improvements upon a property, a road opening permit, or a soil moving permit until a setback tree management plan has been approved by the Borough Manager and implemented in accordance with the regulations and provisions of § 102-36. Throughout a period of any construction, alteration or repair to any building or structure, or work on a site which is subject to an approved setback tree management plan, the owner, tenant, person, firm or corporation causing said construction, improvement or work shall in all respects comply with an approved setback tree management plan. The Planning Board or Zoning Board of Adjustment shall require as part of an application for development a setback tree management plan approved by the Borough Manager.
B.Â
Setback tree management plan and tree removal permit. When required by Subsection A(1) herein, an application for a tree removal permit shall be submitted on forms provided by the Borough Manager. When required by Subsection A(2) herein, a setback tree management plan for protected trees shall be submitted in like manner to § 102-35B. A setback tree management plan must show the location of each protected tree within the setback area of the affected property. The plan must also include any tree or shrub on any Borough right-of-way abutting the affected property. The setback tree management plan must identify each protected tree and whether and how it will be protected. The setback tree management plan or tree removal permit must be approved by the Borough Manager in accordance with the procedures and standards set forth in Subsections D and E below. The Borough Manager may seek the advice of the Shade Tree Commission, the Borough Engineer, the Arborist or other Borough staff or consultants in making any of the decisions entrusted to the Borough Manager by § 102-36. The Borough Manager shall render his decision on a setback tree management plan or tree removal permit within 15 days after receipt of a complete application and the completion of the neighbor notification period in Subsection E.
C.Â
Appeal to Council. The applicant shall have the right
to appeal the decision of the Borough Manager regarding the setback
tree management plan or tree removal permit to the Council of the
Borough within 10 days of receiving written notice of a decision.
Said appeal shall be by written notice of appeal to the Borough Clerk.
Upon receipt of said appeal, the Council shall proceed to hear said
appeal upon notice to the applicant within 30 days after the filing
of said notice of appeal. The Council may, in its discretion and upon
complete review of the application and after hearing such testimony
as may be warranted, reverse, modify or affirm the aforesaid decision.
D.Â
Standards. Upon receipt of a setback tree management
plan or application for a tree removal permit, the Borough Manager
shall review it and inspect the site on which the protected trees
are located. The Borough Manager shall consider the following factors
in deciding whether to approve the setback tree management plan or
the application for a tree removal permit:
(1)Â
Whether the preservation of the protected tree or trees is important to the benefits of § 102-33.
(2)Â
The overall effect of removal of such protected tree
or trees on the physical and aesthetic value of the applicant's property
and adjacent property.
(3)Â
Whether the proposed removal would constitute a significant
change in the screening between existing or proposed buildings on
contiguous lots.
(4)Â
Whether more than 50% up to a maximum of three of
the protected trees (which does not include dead trees) in the setback
area have been or will be removed in a twelve-month period.
(5)Â
Whether the tree management plan is adequate to insure
the safety and health of any protected trees and all street trees.
(6)Â
Whether the proposed cutting or removal would impair
the growth and development of the remaining trees on the applicant's
property or adjacent property.
(7)Â
Whether the proposed cutting or removal would change
existing drainage patterns.
(8)Â
Whether the proposed removal would allow soil erosion
or increase dust.
(9)Â
Whether the proposed removal would constitute a horticulturally
advantageous thinning of an existing overgrown area.
(10)Â
Whether existing conditions or proposed changes
in the topography of the area where such protected tree or trees are
located have depressed land configuration or fill of land which shall
be deemed injurious to the protected trees or other trees located
nearby so as to require welling, construction of an aerification system,
or tree removal or replacement.
(11)Â
Whether the protected tree or trees are dying,
diseased, or severely damaged, or the angle of growth makes them a
hazard to structures, roads, or human life.
(12)Â
Whether the presence of the protected tree or
trees is likely to cause hardship or will endanger the public or an
adjoining property owner by reason of it being diseased or dead or
for some other adequate reason with the intent of this article.
E.Â
Neighbor notification. No permit shall be issued or setback tree management plan approved until 14 calendar days after a copy of the setback tree management plan or application for a tree removal permit has been delivered to each affected neighbor, except as specified in § 102-36A(1), in order to give each such owner an opportunity to consult with the applicant, take other steps on his or her own property to protect potentially affected trees, and provide written comments on the setback tree management plan or tree removal permit to the Borough Manager within 14 calendar days of delivery. Such delivery to each affected neighbor may be made by hand or by certified mail at the address of the property owner as shown on the current tax duplicate. If by certified mail, such delivery shall be deemed complete upon mailing. Prior to permit issuance, the applicant shall provide a signed affidavit of service attesting that such delivery has been completed as required.
A.Â
Fees. The fee for a tree removal permit shall be as set forth in Chapter 111.
[Amended 7-23-2007 by Ord. No. 13-07; 4-12-2021 by Ord. No. 8-21; 6-28-2021 by Ord. No. 13-21]
B.Â
Violations and penalties for § 102-35. Any person violating any provision of § 102-35 shall be subject to penalties up to the amount provided in Article III of Chapter 1 of this Code, as amended and supplemented. Each tree or shrub illegally removed or damaged shall be a separate violation. Notwithstanding, the Borough or court may reduce the penalties and suspend the imprisonment and community service in the event the violator shall agree as follows:
[Amended 4-24-2006 by Ord. No. 05-06]
(1)Â
To abate the violation by replacing at his sole expense
the tree or trees damaged or destroyed, as shall be determined by
the Shade Tree Commission;
(2)Â
To reimburse the Borough for all reasonable charges
of the enforcing authority, Council, Shade Tree Commission and Borough
Attorney;
(3)Â
In exercising the authority established hereby, for
any tree or shrub upon any Borough street, right-of-way, highway,
public place and park, the Shade Tree Commission shall:
(a)Â
Require that, for each tree damaged or destroyed,
the violator plant a replacement tree or trees as specified by the
Shade Tree Commission. The number of replacement trees required shall
be based on the diameter of the damaged or destroyed tree(s) measured
4.5 feet from the ground. If the tree(s) has been cut to a height
of less than 4.5 feet, or to ground level, then the diameter of the
remaining stump(s) shall be used to determine the number of replacement
trees required. If the tree and stump have been removed entirely,
the last recorded diameter entered into the Street Tree Inventory
Database shall be used to determine the number of replacement trees
required. If there is a multiple-trunk tree, then each trunk's diameter
shall be measured and added together to determine the total diameter
of the damaged or destroyed tree. In all cases, the number of replacement
trees shall be determined by this formula: one replacement tree of
no less than 2.5 to three inches in diameter measured one foot above
planting level for every two inches of diameter of damaged or destroyed
tree, unless otherwise approved by the Shade Tree Commission.
(b)Â
Direct that replacement trees be planted near
the location of damaged or destroyed trees and otherwise throughout
the Borough.
C.Â
Violations and penalties for § 102-36. Any person violating any provision of § 102-36 shall be subject to penalties up to the amount provided in Article III of Chapter 1 of this Code, as amended and supplemented. Each protected tree illegally removed or damaged shall be a separate violation. Notwithstanding, the Borough or court may reduce the penalties and suspend the imprisonment and community service in the event the violator shall agree as follows:
[Amended 4-24-2006 by Ord. No. 05-06]
(1)Â
To abate the violation by replacing at his sole expense
the tree or trees damaged or destroyed, as shall be determined by
the Borough Manager;
(2)Â
In exercising the authority established hereby for
any protected tree, the Borough Manager shall:
(3)Â
To reimburse the Borough for all reasonable charges
of the enforcing authority, Council and Borough Attorney.
D.Â
Enforcement. No person shall prevent, delay or interfere
with any lawful work undertaken by the Shade Tree Commission or the
Borough's authorized agent. The Code Enforcement Official of the Borough
of Mountain Lakes and, in his absence, the Borough Manager are designated
as the enforcing agent for this article. The enforcing agent may order
any tree work, or other activity that is carried on in violation of
any decision or any provision of this article, to be stopped forthwith.
The order shall be issued in writing and a copy served upon any person
engaged in tree work or other activity, the applicant and the owner
of the lot. Except for such work as is necessary to remedy the violation,
any further work shall comply with the terms and conditions of the
decision and of this article.
E.Â
Liability. Nothing in this article shall be deemed
to impose any liability upon the Borough or its officers or employees
or agents or upon the Shade Tree Commission or any of its members.
Nothing in this article shall be deemed to relieve the owner and/or
occupant of any private property from the duty to keep trees and shrubs
thereon in a safe condition.