Borough of Mountain Lakes, NJ Article VII Preservation and Protection of Trees

[Added 10-10-2000 by Ord. No. 13-2000; amended in its entirety 6-13-2005 by Ord. No. 10-05]

§ 102-33 Purpose.

A. 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. 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:

(1) Reducing runoff into the lakes;

(2) Improving air quality;

(3) Conserving water;

(4) Abating noise;

(5) Providing cooling in summer;

(6) Contributing to the pleasant parklike ambience of the community; and

(7) Enhancing property values.

C. 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.

§ 102-34 Definitions.

Certain words, phrases and terms are defined below for purposes of this article, unless the context otherwise requires:

AFFECTED NEIGHBOR

The owner of record of any property adjacent to the affected property.

AFFECTED PROPERTY

The lot or lots for which a tree removal permit, road opening permit, soil moving permit or construction permit is issued.

APPLICATION FOR DEVELOPMENT

As defined in § 40-3 of the Code of the Borough of Mountain Lakes.

CONSTRUCTION PERMIT

The permit required by Chapter 88, Article II of the Code of the Borough of Mountain Lakes.

DEVELOPMENT

As defined in § 40-3 of the Code of the Borough of Mountain Lakes.

LOT LINE

As defined in § 40-3 of the Code of the Borough of Mountain Lakes.

OWNER

As defined in § 40-3 of the Code of the Borough of Mountain Lakes.

PROTECTED TREE

Any tree eight or more inches in diameter or 25 inches or more in circumference measured at a point 4 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.

RIGHT-OF-WAY

As defined in § 40-3 of the Code of the Borough of Mountain Lakes.

ROAD OPENING PERMIT

The permit required by § 204-25 of the Code of the Borough of Mountain Lakes.

SETBACK AREAS

The area between the lot lines and the setback lines of a lot.

SETBACK LINE

As defined in § 40-3 of the Code of the Borough of Mountain Lakes and listed in Schedule I: Bulk Requirements.

SHRUB

A woody plant that does not have a center trunk and does not typically grow over 10 feet high.

SOIL MOVING PERMIT

The permit required by § 102-11 of the Code of the Borough of Mountain Lakes.

STREET TREE OR SHRUB

Any tree or shrub upon any Borough street, right-of-way, highway, public place or park.

TREE

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 4 1/2 feet above the ground.

TREE REMOVAL PERMIT

The permit required by § 102-36 of the Code of the Borough of Mountain Lakes.

§ 102-35 Street trees and shrubs in rights-of-way.

A. Regulations.

(1) 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) 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) Other restrictions. No person shall:

(a) 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) 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) 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) 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) 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. Street tree management plan.

(1) 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) Identify, by street, block and lot number, the site and adjacent Borough streets, rights-of-ways, highways, public places and parks.

(b) Provide the name, address and telephone number of the owner or duly authorized agent of said owner, where applicable.

(c) 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) 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) 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) 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) Place signs on barricade denoting a tree protection zone.

(h) 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) 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) 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) 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) 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) 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) Time for decision. The Shade Tree Commission shall, within 15 days after receipt of a complete application, render its decision.

C. 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.

§ 102-36 Protected trees within setback area.

[Amended 4-12-2021 by Ord. No. 8-21]

A. Regulations.

(1) 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) 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. 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. 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. 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) Whether the preservation of the protected tree or trees is important to the benefits of § 102-33.

(2) 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) Whether the proposed removal would constitute a significant change in the screening between existing or proposed buildings on contiguous lots.

(4) 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) Whether the tree management plan is adequate to insure the safety and health of any protected trees and all street trees.

(6) 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) Whether the proposed cutting or removal would change existing drainage patterns.

(8) Whether the proposed removal would allow soil erosion or increase dust.

(9) Whether the proposed removal would constitute a horticulturally advantageous thinning of an existing overgrown area.

(10) 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) 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) 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. 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.

§ 102-37 Fees, violations and penalties.

A. 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. 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) 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) To reimburse the Borough for all reasonable charges of the enforcing authority, Council, Shade Tree Commission and Borough Attorney;

(3) 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) 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) Direct that replacement trees be planted near the location of damaged or destroyed trees and otherwise throughout the Borough.

(c) Require that the violator provide a maintenance guaranty of the survival and normal healthy development of replacement trees for a period of three years in an amount equal to 120% of the cost of replacement trees in accordance with § 102-35C.

C. 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) 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) In exercising the authority established hereby for any protected tree, the Borough Manager shall:

(a) Require that, for each protected tree damaged or destroyed, the violator plant a replacement tree as specified by the Borough Manager.

(b) Direct that replacement trees be planted near the location of damaged or destroyed trees.

(c) Require that the violator provide a maintenance guaranty of the survival and normal healthy development of replacement trees for a period of three years in an amount equal to 120% of the cost of replacement trees in accordance with § 102-35C.

(3) To reimburse the Borough for all reasonable charges of the enforcing authority, Council and Borough Attorney.

D. 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. 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.