[Ord. 1071, 7/5/2005, § 2]
In the interpretation of this Part 1, the present tense includes
the future; the singular number includes the plural, and the plural
includes the singular; and the word "person" includes a natural person,
property owner, company, trust, individual, partnership, firm, association,
corporation, or entity of any kind. The following terms shall have
the definitions assigned:
The Borough of Mechanicsburg.
The Borough Council of the Borough of Mechanicsburg.
The duly elected Chairperson of the Commission.
The Shade Tree Commission of the Borough of Mechanicsburg.
The legal and beneficial owner of land. Where the legal and
beneficial ownership of land is severed, the term shall include all
persons holding legal and beneficial interests.
An individual, partnership, corporation, unincorporated association,
civic organization or other similar entity.
Any public street, alley, park, recreation area, open space,
easement, right-of-way, way or other public area within the corporate
limits of the Borough and under its control.
The area of any public street, alley, road, highway, way
or other publicly held thoroughfare within the corporate limits of
the Borough.
The duly elected Secretary of the Commission.
Any tree, shrub or other woody plant which is planted in
any right-of-way or public area or has a portion of its trunk, branches
or roots extending into any right-of-way.
The public streets, highways, roads, avenues, alleys, ways
and similar areas, including public walkways appurtenant thereto,
to the extent of the public right-of-way in such areas. A shade tree
shall be deemed to be in such area when a portion of its trunk, branches
or roots extend therein.
That part of a public street not covered by a sidewalk or
other paving lying between the property line and that portion of the
street or highway usually used for vehicular traffic, typically known
as the "grassy" strip located between the curb and the sidewalk.
[Ord. 1071, 7/5/2005, § 2]
The Borough recognizes that properly planted, maintained and
protected shade trees add to the aesthetics and health and welfare
of the citizens of the Borough. Therefore, it is the intent of this
Part 1 to establish rules and regulations to encourage the planting
of appropriate shade trees, provide for the proper maintenance of
the trees, protect shade trees and provide guidelines for the removal
and replacement of shade trees.
[Ord. 1071, 7/5/2005, § 2]
1.
Excepting such powers as are reserved to the Borough Council under
applicable law, or as herein reserved, the Commission shall have exclusive
custody and control of the shade trees in the Borough and is authorized
to plant, transplant, remove, maintain and protect shade trees in
the streets and public areas in the Borough.
2.
The Borough Council hereby reserves the following powers unto itself,
its officers, employees, agents and contractors:
A.
Such power and authority as is reserved to it in the Pennsylvania
Motor Vehicle Code to require owners of real property to remove any
tree, plant, shrub or other similar obstruction or part thereof which,
by obstructing the view of any driver, constitutes a traffic hazard.[1]
[1]
Editor's Note: See 75 Pa.C.S.A. § 6112.
C.
Such power and authority as is reserved to it in the Pennsylvania
Borough Code and this Part to assess liens.
D.
Such power and authority as is reserved to it in the Pennsylvania
Borough Code to accept the petition of a majority of the property
owners upon any public street and, after receiving the counsel of
the Commission, thereupon ordain the planting and replanting of suitable
shade trees along and upon the sides of such streets by the owners
of property abutting the points designated in such ordinance.[3]
[3]
Editor's Note: See 8 Pa.C.S.A. § 2720(b).
E.
All powers and authority reserved to it under any other applicable
law.
[Ord. 1071, 7/5/2005, § 2]
In addition to all other powers provided by law, the Shade Tree
Commission shall have the following specific powers:
A.
To issue permits required by this Part 1 and to enforce its provisions.
B.
When so requested, to act as an advisory panel to the Borough Council
on matters having an environmental impact on the Borough, including,
but not limited to, subdivision and land development, park development
or improvements, and Borough revitalization and beautification projects.
C.
Upon notice, to require the owners of any tree located in the Borough
to trim or cut and remove such tree if the same is afflicted with
the Dutch Elm or other disease which threatens to injure or destroy
other shade trees in the Borough or if the same is obstructing public
streets or rights-of-way or is about to fall and is dangerous. Such
trees are hereby declared to be public nuisances.
D.
To make such rules and regulations and to impose such penalties for
the violations of same as it may deem necessary and proper, provided
that such rules, regulations and penalties are approved by the Borough
Council and are not in conflict with any other ordinances of the Borough
or statutes of the Commonwealth of Pennsylvania. Penalties shall be
assessed against the owner for violations as set forth in this Part.
E.
To prohibit any activity which injures shade trees in and upon any
public area.
F.
To educate the public relative to the care and control of trees and
planting of the same.
G.
To work closely with owners to encourage the additional planting
of trees when street reconstruction occurs and curbs and/or sidewalks
will be replaced.
H.
To provide its counsel to the Borough Council on the merits of any
petition presented by a majority of the property owners upon any public
street for the planting and replanting of shade trees along and upon
the sides of such streets.
[Ord. 1071, 7/5/2005, § 2; as amended by Ord. 1124,
8/16/2011]
1.
The planting, transplanting, maintenance, care or removal of any
shade tree, as defined herein, and full compliance with any provision
herein shall be the responsibility of the owner on whose property
the tree is located or to be planted or whose property abuts the right-of-way
in which the shade tree is located. In addition to all of the provisions
of this Part 1 and any regulations promulgated hereunder, all trees
must be planted and maintained in strict compliance with all federal,
state and local highway laws and regulations, as the same are amended
from time to time.
2.
No person shall affix any foreign object to, or in any way cause
injury to, any shade tree within any public area.
3.
No person shall plant, transplant, trim, prune or remove, or cause
to be planted, transplanted, trimmed, pruned or removed, any shade
tree in or overhanging a public area until a permit therefor is granted
by or under the authority of the Commission. The application for such
permit, which shall be provided by the Borough and which shall be
signed by the owner of the abutting premises containing such tree
or wherein such tree is proposed to be planted, shall include the
details of such planting, trimming or removal, whether by sketch or
otherwise, and the same shall be brought to the attention of the Commission,
or under proper circumstance to its administrative designee, for approval.
Such work shall not be commenced until a permit shall have been secured.
A reasonable fee for obtaining such permit may be set by the Commission,
subject to the approval of the Borough Council. The Commission or,
under proper circumstance, its administrative designee may refuse
a permit for noncompliance with the provisions of this Part.
4.
Whenever a shade tree is removed under authority of a permit issued
under this Part, it shall be replaced within one year with a new shade
tree and shall include a root barrier (a type approved by the Commission)
unless a waiver is granted by the Commission.
5.
Property owners shall trim or prune branches from any shade trees
overhanging public streets and highways of the Borough so that they
will not obstruct the light from any streetlight and so that there
shall be a clear height of 14 feet above the surface of the street
and eight feet over the sidewalk. If, upon notice in writing from
the Borough, any property owner shall neglect or refuse to trim or
prune any shade tree within the time limits specified in such notice,
the Borough may cause such trimming or pruning to be done at the expense
of the owner.
6.
Whenever, in the opinion of the Commission, a health or safety hazard
is caused by a shade tree, the Commission may issue a notice to the
owner to take action to correct the condition within 35 days of the
date of the order, unless exigent circumstances require a shorter
time for action, in which event the time for correction shall be so
specified. If, after notice and expiration of the time for corrective
action, the owner fails to take such action, the Borough shall have
the required work accomplished to correct the health or safety condition
and shall bill the owner for the cost thereof. Upon a failure of the
owner to remit the cost, the amount shall be certified by the Commission
to the Borough Council and to the Borough Treasurer.
7.
In the case of a shade tree in or overhanging a public street or
highway which poses a serious threat of imminent harm to public health
or safety in the nature of an emergency, necessitating the tree's
removal in whole or overhanging part, the Commission, or the Borough,
as the case may be, may effect its immediate complete or partial removal
with only such notification to the owner of the abutting or containing
property as required by the Pennsylvania Motor Vehicle Code, 75 Pa.C.S.A.
§ 101 et seq., or other applicable law. In such event, the
costs shall be borne by the owner, and the amount owed for such work
shall be ascertained and certified by the Commission to the Borough
Council and the Borough Treasurer.
8.
Whenever, in the opinion of the Commission, the planting, transplanting
or removing of any shade tree in a public area, of the necessary and
suitable guards, curbing or grading for the protection thereof, and
of the replacing of any pavement or sidewalk necessarily disturbed
in the execution of such work shall be necessary, it may issue a notice
to the owner to take such action within 35 days of the date of the
notice, unless exigent circumstances require a shorter time for action,
in which event the time for correction shall be so specified. If,
after notice and expiration of the time for corrective action, the
owner fails to take such action, the Borough shall have the required
work accomplished and shall bill the owner for the cost thereof. Upon
a failure of the owner to remit the cost, the amount shall be certified
by the Commission to the Borough Council and to the Borough Treasurer.
9.
Any permit issued by the Commission shall be effective for such length
of time as it shall designate therein. Any permit may be revoked at
any time upon proof satisfactory to the Commission that any of the
terms or conditions of the permit have been violated.
10.
The Commission shall have the authority, upon notice and hearing,
to grant waivers from the provisions of this Part 1, provided that
the applicant has demonstrated peculiar circumstances where strict
enforcement would result in undue hardship and the public interest
will not be adversely affected thereby.
11.
Every property owner who intends to plant, transplant, remove or
otherwise excavate his or her property for the addition or removal
of shade trees shall notify the proper public utility facility owners
via the One Call system before beginning excavation on the site. The
owner must delay excavation of the site until notified by the utility
facilities that the area is clear of public utility lines.[1]
[1]
Editor's Note: See 73 P.S. § 176 et seq.
[Ord. 1071, 7/5/2005, § 2]
The Commission shall determine, from time to time, regulations
for the administration of this Part, for the manner of planting, pruning,
trimming, removal and transplanting of trees, for the establishment
of an approved shade tree list, for the establishment of permit fees
and for the establishment of fines and penalties, all of which, upon
approval by resolution of the Borough Council, shall take effect as
if set forth herein.
[Ord. 1071, 7/5/2005, § 2]
[Ord. 1071, 7/5/2005, § 2]
1.
Enforcement. The Commission, or the Borough, as the case may be and
as authorized by law, may institute actions for violations of this
Part. All penalties or assessments shall be paid to the Borough.
2.
Notice Requirements.
A.
Upon the failure or neglect of any owner to plant, transplant, protect,
trim, prune or remove any shade tree, new tree or replacement tree
in and along public areas or perform or refrain from performing any
other act required or prohibited under the provisions of this Part
1, the Commission shall provide notice of such fact to such owner
of the violation by certified mail, restricted delivery. If the owner
cannot be so served, service shall be effected by posting the written
notice at a conspicuous location upon the premises. In the case of
an exigent circumstance where a shade tree is damaged, felled or severely
injured as a result of a storm or other cause, an owner shall comply
with the provisions of any form of notice actually delivered to such
owner within 24 hours.
B.
Upon the failure or neglect of the owner to comply with the provisions
of any notice within 30 days after receiving notice of such violation,
or the posting of such notice, whichever the case may be, the Borough
may cause the planting, transplanting, protection, trimming, pruning
or removal of any shade tree to be done, and collect the cost thereof,
plus 10% additional together with all charges and expenses, from such
owner in accordance with the Acts of Assembly and in accordance with
the law relating to the filing and collection of municipal claims,
or by action of assumpsit.
3.
Collection of Attorney Fees. Where attorney fees are sought to be
collected or are incurred in the collection of a delinquent account(s)
or for costs associated with violations of any provision of this Part
1, the Borough shall first comply with the Acts of Assembly related
thereto.
4.
Amount of Fees. Where attorney fees are sought to be collected or
are incurred in the collection of a delinquent account(s) or costs
associated with violations of these Shade Tree Commission rules and
regulations, said fees shall be calculated at prevailing rates being
charged to the Borough by the Borough Solicitor from time to time.
5.
Liens. Upon the failure of any owner to pay any cost, expense, fee,
attorneys' fees or penalty established under the authority of
this Part, the Commission shall file a certificate to such effect
with the Borough Secretary for transmittal to the Borough Council
and Borough Treasurer. Upon the filing of the certificate, the Borough
Secretary shall cause 30 days' written notice to be given to
every owner against whose property such claim has been made. The notice
shall state the amount of assessment and the time, place, and manner
of payment and shall be accompanied by a copy of the certificate.
The amount assessed against the real estate shall be a lien from the
time of the filing of the certificate with the Council; and if not
paid within the time designated in the notice, a claim may be filed
and collected by the Borough Solicitor in the manner provided by law.
The collection of assessments, the filing of liens, the levying of
taxes and the collection of penalties, whether by the Commission or
on behalf of the Borough, are hereby expressly authorized as provided
for in said Article XXVII(b) of the Borough of Code of 1966, P.L.
(1965) 1656, as amended.[1]
[1]
Editor's Note: See now 8 Pa.C.S.A. § 101 et seq.
6.
Penalty for Violation. Any person who shall violate any of these
provisions shall, upon a finding thereof in a summary proceeding before
a Magisterial District Judge, be directed to pay a fine or civil judgment
of not less than $500 nor more than $1,500, together with the costs
of prosecution or enforcement, to be collected as other fines, judgments
and costs are now recovered by law, together with the replacement
cost of all work not meeting specifications, or to imprisonment for
a term not to exceed 30 days.
[Amended by Ord. 1170, 3/16/2021]
7.
Other Remedies Preserved. Nothing herein shall prevent the Borough
from seeking available remedies at law or in equity, to include injunctive
or equitable relief, to ensure compliance with this Part.
8.
Remedies Several, Collective and Cumulative. All enforcement remedies
provided herein may be exercised severally or collectively, as the
Borough Council shall determine. The exercise of one remedy shall
not preclude other enforcement proceedings.
9.
Voluntary Compliance. Nothing in this Part shall be construed to
prevent any owner or owners of property within the Borough from voluntarily
complying with the terms and conditions of this Part prior to action
by the Commission or the Borough of Mechanicsburg.
[Ord. 1071, 7/5/2005, § 2]
If any sentence, clause, section or part of this Part 1 is found to be unconstitutional, illegal or invalid, such unconstitutionality, illegality or invalidity shall not affect or impair any of the remaining provisions, sentences, clauses, section or parts of this Part 1. It is hereby declared as the intent of the Borough that these provisions would have been adopted had such unconstitutional, illegal or invalid sentence, clause, section or part thereof had not included herein.
[Ord. 1071, 7/5/2005, § 2]
Any person aggrieved by a notice, determination, refusal, act
or failure to act issued, taken or omitted under this Part shall have
the right to a hearing to be held by the Commission, which hearing
shall be held pursuant to the administrative law for local agencies.[1] Notice of the time and place of the meeting at which said
hearing shall occur shall be given according to law.[2] In all cases, the aggrieved party shall be given personal
notice by regular mail of the date, time and place of the meeting,
which notice shall generally specify the rights granted to the party
under law. Any person aggrieved by a decision of the Commission shall
have the right to appeal said decision to the Court of Common Pleas
of Cumberland County within 30 days of the date of said decision.
Should no appeal be filed, the cost of the work and any penalty imposed
by the Commission shall be certified by the Commission to the Borough
Council and Borough Treasurer as provided in this Part.
