[Ord. No. 494-2015 § 1; Ord. No. 515-2016; Ord.
No. 529-2017]
The intent and purpose of this section is to establish standards
for the Borough for the protection and preservation of certain trees
defined herein growing in a natural state within this municipality.
For purposes of Section 30-1, and Section 27-36, a "tree" shall mean any woody perennial plant with a main stem or trunk exceeding three (3") inches in diameter measured at a point four and one-half (4.5') feet above the ground level on the downhill side of such tree.
A "replacement tree" shall be of at least two (2") inches in
diameter at four and one-half (4.5') feet above the ground.
[Ord. No. 494-2015 § 1; Ord. No. 515-2016; Ord.
No. 529-2017; amended 5-10-2023 by Ord. No. 627-23]
A Significant Specimen Tree is any tree that has been deemed
so by the Shade Tree Commission in conjunction with the Borough arborist.
Criteria include species, age, size based on species, historical significance
and its benefit to wildlife. The Commission shall maintain a current
list of Significant Specimen Trees that shall be kept on file with
the Borough Clerk and that can be reviewed by any member of the public.
[Ord. No. 515-2016; Ord. No. 529-2017]
The Borough Commissioners shall appoint a Tree Specialist. This
individual shall be responsible for the inspection of sites for which
application(s) are filed under this Chapter.
A Tree Specialist is either of the following:
[Ord. No. 494-2015 § 1; Ord. No. 515-2016; Ord.
No. 529-2017; Ord. No. 566-19; amended 11-24-2021 by Ord. No. 606-21; 1-24-2024 by Ord. No. 635-24]
The restrictions in this section shall apply to the removal of all trees as defined in Section 30-1.1 that grow on any land in the Borough, or Significant Specimen Trees, unless such trees are 1) permitted to be removed under the provisions of this section, or 2) are otherwise regulated as part of the Borough's site plan, subdivision or zoning regulations, as set forth in subsection 30-1.6 below.
In the case of an emergency where, for example, trees are blown
over and/or uprooted, damaged beyond repair, or in such condition
that the tree poses a risk of serious damage to person, property or
public safety, a tree may be removed immediately per the following
process:
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a. The Tree Operator or property owner must contact
either the Code Enforcement Officer, the Deputy Code Enforcement Officer,
or any member of the Executive Committee of the West Cape May Shade
Tree Commission.
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b. The responding individual shall inspect the tree
and determine if the tree is considered dangerous. The term “dangerous”
is defined as in such condition that the tree risks immediate and
serious damage to a person, property or public safety.
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c. If the responding individual determines the tree is not dangerous, the requesting party must submit an application for tree removal pursuant to Subsection 30-1.5
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d. If the responding individual determines the tree
is dangerous:
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1. The tree may be removed upon verbal approval
to the Tree Operator or property owner by the responding individual.
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2. The responding individual must notify the Code
Enforcement Office and Shade Tree Commission, in writing, of the determination
within 24 hours.
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e. Within five business days following an emergency requiring the removal of the tree, the Tree Operator or property owner must submit an application pursuant to Subsection 30-1.5. The applicant shall provide evidence demonstrating the need for the emergency removal, including, but not limited to, photographs. The applicant shall comply with any replacement obligations as determined by the Shade Tree Commission pursuant to Subsection 30-1.6.
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All tree care services within the Borough shall be conducted
by a person or entity licensed pursuant to N.J.S.A. 45:15C-11, et
seq., unless the person, entity, or activities are exempt pursuant
to N.J.S.A. 45:15C-31. Exemptions include the following:
a.
Any public utility or any employee of a public utility while engaged
in the actual performance of his duties as an employee;
b.
Any employer under contract with a public utility who is engaged
in tree trimming or any other utility vegetation management practice
for purpose of line clearance, or any employee of the employer while
engaged in the actual performance of duties in regard to tree trimming
or other utility vegetation management practice or for the installation
of underground facilities or associated site construction;
c.
Any forestry activities that are conducted under the forest management
and stewardship programs approved by the State Forester, provided
that tree climbing is not performed, nor are aerial lifts, cranes,
or rope and rigging operations used;
d.
Landscape construction activities, including those performed by,
or under the direction of, a landscape architect, or ground based
landscape maintenance activities such as pruning, fertilization, insect
and disease control, planting, transplanting and all other forms of
ground based landscape maintenance, in compliance with the sections
of the American National Standards Institute practice standards set
forth by the board by regulation, with applicable safety standards
and regulations promulgated by the federal Occupational Safety and
Health Administration, and with any pesticide regulations promulgated
by the Department of Environmental Protection. For the purposes of
this subsection, ground based landscape maintenance means operations
that do not involve climbing, the use of aerial lifts, cranes, rope
and rigging operations, or the removal of trees over 6 inch D.B.H;
e.
Any person or employer that does not offer tree care services for
hire;
f.
Any trees being removed pursuant to an approved site plan or subdivision
approval, provided that the tree removal activities are performed
in compliance with the sections of the American National Standards
Institute practice standards set forth by the board by regulation,
with applicable safety standards and regulations promulgated by the
federal Occupational Safety and Health Administration, and with applicable
safety standards of the American National Standards Institute as designated
by the board by regulation; and
g.
Any employee of a municipality or county while engaged in the actual
performance of his duties as an employee.
h.
The approved removal of a tree may be done by an individual who has
an ownership interest in the property. "Ownership" generally means
the homeowner, but can be a principal in an LLC.
[Ord. No. 494-2015 § 1; Ord. No. 515-2016; Ord.
No. 529-2017; amended 3-10-2021 by Ord. No. 593-21; 3-10-2021 by Ord. No. 593-21; 4-12-2023 by Ord. No. 624-23; 1-24-2024 by Ord. No. 635-24]
a.
No person shall remove or destroy any tree subject to the regulations
contained in this section without first obtaining a tree removal permit
from the Borough.
b.
All applications for tree removal shall be filed with the Zoning
Officer of the Borough of West Cape May. The applicant shall file
an application for a tree removal permit on forms made available in
the office of the Borough Clerk. When the application is filed, the
applicant shall pay a fee of $60 for the first tree to be removed
and $35 for each subsequent tree to be removed.
c.
The application shall be forwarded to the Tree Specialist who shall
assess and provide a report to the Shade Tree Commission within two
weeks of receiving the application. Once the Tree Specialist report
is received, the application should be placed on the next Shade Tree
Commission Meeting Agenda.
d.
Tree removal permits shall be reviewed, approved or denied, and a
decision shall be issued by the Shade Tree Commission to the owner
or his authorized contractor, within five business days of the Shade
Tree Commission meeting where the application was reviewed. Permits
shall contain the name and address of the owner of the lands upon
which the tree or trees sought to be removed are located, and the
type, size and location of tree or trees sought to be removed.
e.
The tree removal permit shall be valid for one year from the date of issuance. If, at the end of the term, the Shade Tree Commission is satisfied that the standards set by this section have been met and that no violations of this section have taken place, it may renew the permit, subject to any conditions in subsection 30-1.5 above.
f.
Applicant shall notify the Zoning Office within three days of a tree
being removed for final inspection by the Zoning Officer.
g.
The following individual(s) are responsible for signing the tree
removal permit:
1.
The homeowner
shall sign the application for a tree removal permit if the tree(s)
to be removed is on their private property;
2.
The contractor
or homeowner shall sign the application for a tree removal permit
if the tree(s) must be removed because of new construction;
3.
The adjacent
homeowner shall sign the application for a tree removal permit if
the tree(s) to be removed is in the Borough right-of-way (street or
alley);
4.
The Director
of Public Works shall sign the application for a tree removal permit
if the tree(s) to be removed is on Borough property.
[Ord. No. 494-2015 § 1; Ord. No. 515-2016; Ord.
No. 529-2017; amended 3-10-2021 by Ord. No. 593-21; 1-24-2024 by Ord. No. 635-24]
The Shade Tree Commission shall grant or deny the permit with
reference to the standards contained in this subsection. In applying
such standards, the Commission may condition the grant of the permit
upon such reasonable conditions as may be deemed necessary to effectuate
the purpose of this section.
a.
The Commission shall be satisfied that the removal of any particular
tree is required for the effective utilization of the lands in question,
and that no alternative to removal is available.
b.
The Commission shall be satisfied that the proposed removal shall
not impair the growth and development of the remaining trees on the
lands where the proposed tree or trees are located, as well as on
adjacent lands.
c.
The Commission shall be satisfied that adequate precautions shall
be taken with respect to the removal of the tree or trees, so that
other trees will not be damaged by removal, and that the roots of
remaining trees will not be cut. Wood may be cut to fireplace size
and stacked at an appropriate location for owner's use.
d.
Should the Commission authorize the removal of any tree, it shall
require the applicant to provide a replacement tree, or trees, of
a size and type, and at a location, in accordance with the following:
1.
All existing trees outside a building footprint having a three (3")
inch diameter trunk measured at a point four and one-half (4.5') feet
above the ground on the downhill side of such tree, shall remain if
said trees are in excess of six (6') feet from the outside of the
exterior wall of the proposed structure. In the event that an applicant
wishes to remove a tree or trees as above described, that applicant
shall then be required to plant two trees for each tree removed, which
replacement trees shall be of at least two (2") inches in diameter
at a point four and one-half (4.5') feet above the ground at a location
on the property to be chosen by applicant.
2.
In addition to the replacement of removed trees above described,
the applicant shall replace at a location of his or her choice on
the property, any trees located within the footprint of the proposed
structure, plus six (6') feet, if said trees have a trunk at least
three (3") inches in diameter measured at a point four and one-half
(4.5') feet above the ground on the downhill side of such tree.
For every tree removed within the footprint of the existing or proposed structure, plus six feet, the applicant shall plant one tree along the side yard and rear yard, which tree shall be of the same size as the replacement tree above described. However, the applicant shall not be required to plant trees closer than 10 feet between the two, said distances measured from center trunk to center trunk. The replacement trees need not be of the same species as the trees removed; however, they shall be of the same height classifications as the trees removed. There may be circumstances in which these general guidelines for replacement are unworkable due to unique conditions affecting land. The Shade Tree Commission may determine the appropriate replacement obligation balancing the purposes of Tree protection stated in the preamble to § 27-36 and with the general guidelines for replacement contained herein, which may include contribution to a tree bank, which are funds dedicated to tree replacement and maintenance initiatives throughout the Borough.
3.
The location of the tree to be removed determines the replacement
obligation. All replacement trees or bushes may be installed in a
location determined by the applicant in accordance with this section.
The example graphic below depicts the areas subject to d,1 and d,2.
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4.
A replacement tree must be planted within one year and must be selected
from the West Cape May Shade Tree Commission List of Approved Trees.
5.
The property owner or contractor must advise the Code Enforcement
Office when the replacement tree has been planted.
6.
The replacement tree(s) must be planted and maintained in such a
manner that the tree can reasonably be expected to live for one year
after it/they have been planted.
e.
The Commission may permit an exemption from the replacement requirements of this section upon a showing of extraordinary circumstances or undue hardship. An example of a circumstance that may qualify for an exemption pursuant to this section includes but is not limited to instances where an applicant demonstrates the property is in excess of the vegetation coverage requirements in Section 27-36.
f.
A Tree Protection Zone (TPZ) shall be delineated around all trees
to be protected during a project to limit root pruning and restrict
traffic and material storage. The TPZ shall specify a distance in
which excavation, storage, and other construction-related activities
shall be prohibited. The TPZ may vary depending on species, factors,
age and health of the plant, soil conditions, and proposed construction.
The TPZ shall be accomplished by physical barriers or soil protection
layers or treatments. TPZ barrier(s) shall be installed prior to any
activities performed on the site that may impact the root zone or
aboveground parts of the tree. The term “construction related
activities” includes the destruction and removal of a current
structure, site preparation and grading, and new structure construction.
The term "construction related activities" includes the destruction
and removal of a current structure, site preparation and grading,
and new structure construction.
1.
Generally,
the area and dimensions of the TPZ shall be calculated by multiplying
the diameter of the tree by 12. Plywood fencing with a height of at
least four feet shall be located at that distance and surround the
tree completely. Nothing should enter or be placed within the TPZ
until the project has been completed.
(a)
Example: A tree with a ten-inch diameter: 12 inches by 10 inches
equals 120 inches or 10 feet. In this example, the wooden fencing
should surround the tree at a distance of 10 feet from the trunk of
the tree.
2.
If site
conditions make compliance with the TPZ impractical, the Borough Arborist
or designated representative of the Shade Tree Commission may approve
alternative mitigation procedures reasonably calculated to advance
the purposes of the TPZ, or, that such activities will not impact
tree health. The Arborist of designated representative may include
such reasonable conditions necessary for the protection of trees as
described herein.
3.
Fencing
or other barriers to the TPZ shall be installed prior to site clearing,
grading, and demolition, and maintained through construction and landscaping.
Activities within the TPZ are prohibited. TPZ fencing may be removed
upon the issuance of a CO, or earlier if approved by the Borough Arborist
or designated representative of the Shade Tree Commission.
4.
If a TPZ is not in place prior to the commencement of construction activity, or if the TPZ is in place but does not adhere to the standards outlined in this section, a Stop Work Order shall be initiated by Code Enforcement. The issuance of the Stop Work Order as outlined in this paragraph is considered a violation of Chapter 30 of the Borough’s Code, and carries the same penalties as outlined in Section 30-2.f of the Code.
[Ord. No. 494-2015 § 1; Ord. No. 515-2016; Ord.
No. 529-2017; amended 3-10-2021 by Ord. No. 593-21; 1-24-2024 by Ord. No. 635-24]
Section 27-36 and this chapter are to be read together for the protection and preservation of trees. No tree as defined herein may be removed unless through compliance with this section, or, through approval of a landscaping and vegetation plan approved by the Zoning Officer and the Shade Tree Commission and the Borough of West Cape May Planning/Zoning Board. The Zoning Officer shall refer any applicant proposing removal or other tree care services as part of a landscaping and vegetation plan pursuant to Section 27-36 to the Shade Tree Commission for review and determination pursuant to this section. The Shade Tree Commission shall consult with the Borough Arborist to effect this review and determination. The Arborist’s fee will be paid by the site’s contractor or, if a contractor is not involved in the approval, the homeowner. Any removal or tree care services approved pursuant to Section 27-36 by the Zoning Officer and the Shade Tree Commission and the Borough of West Cape May Planning/Zoning Board shall be deemed to be permitted by this section.
[Ord. No. 494-2015 § 1; Ord. No. 515-2016; Ord.
No. 529-2017; amended 3-10-2021 by Ord. No. 593-21]
a.
Any person
aggrieved by a decision of the Shade Tree Commission shall be entitled
to a full hearing before the Shade Tree Commission if a written request
is filed within 10 days from the Commission's initial written decision.
b.
Any person
aggrieved by a determination of the Shade Tree Commission made after
a full hearing may apply for a hearing to the Borough of West Cape
May Board of Commissioners, provided a written request is filed within
10 business days from the Shade Tree Commission's decision after full
hearing.
[Ord. No. 494-2015 § 1; Ord. No. 515-2016; Ord.
No. 529-2017]
It shall be a violation of this section, punishable under Section 30-2, for any person, corporation or entity to remove a tree in order to avoid the provisions of this section.
[Ord. No. 494-2015 § 2; Ord. No. 515-2016; Ord.
No. 529-2017]
a.
Any person violating the provisions of this Chapter shall, upon conviction, be subject to a fine of not less than $100 nor more than the maximum penalty set forth in Section 1-5 of the Borough Code.
b.
In addition to the penalties provided for herein, any person who
removes or otherwise destroys a tree in violation of this Chapter
shall, upon conviction, pay a replacement assessment to the Borough.
The replacement assessment of each tree removed or otherwise destroyed
in violation of this Chapter shall be calculated by multiplying the
area of the tree trunk, in square inches, measured 4.5 feet above
the ground, times $27. The area of the tree trunk shall be computed
by multiplying 3.14 times the radius squared (ex. a tree having a
radius of four inches results in 3.14 x 42 = 50.24 square inches).
c.
Any person, corporation, firm or other entity convicted of violating
this Chapter within one year of the date of a previous violation of
this Chapter shall be sentenced by the court to an additional fine
as a repeat offender, in accordance with N.J.S.A. 40:69A-29.
d.
The Code Enforcement Officer shall be responsible for enforcing of
this Chapter.
e.
Nothing herein shall be deemed to limit the remedies available to
the Borough of West Cape May or other person seeking to compel enforcement
of this Chapter, and the remedies of compelling replacement of a tree
or trees by paying money damages shall be considered cumulative.
f.
If construction or development is being undertaken contrary to the
provisions of this section, the Code Enforcement Officer shall issue
a stop-construction order, in writing, which shall state the reasons
for such order and the conditions upon which construction may be resumed
and which shall be given to the owner or the holder of the construction
permit or to the person performing the construction. If the person
doing the construction is not known or cannot be located with reasonable
effort, the notice may be delivered to the person in charge of, or
apparently in charge of, the site.
No person shall continue, or cause or allow to be continued,
the construction of a building or site in violation of a stop-construction
order, except with the permission of the enforcing agency to abate
the condition or remove a violation, or except by court order.
If an order to stop construction is not obeyed, the enforcing
agency may apply to the appropriate court as otherwise established
by law for an order enjoining the violation of the stop-construction
order. The remedy for violation of such an order provided in this
subsection shall be in addition to, and not in limitation of, any
other remedies provided by the Borough Code or other applicable laws
or regulations.
Each day the violation shall continue after a notice and a reasonable
opportunity to correct or remedy the violation shall constitute a
separate violation.
[Added 3-10-2021 by Ord.
No. 593-21]
g.
Any contractor or tree professional who pleads guilty, or has been adjudicated guilty, of violating Section 27-36 or Section 30 three times in a running five-year period shall be barred from conducting work for hire as a contractor or tree professional in the Borough for a period of five years from the adjudication of the third offense. For purposes of this section, any contractor or tree professional who violates a stop-construction order, or who does not appeal a duly issued stop-construction order, shall be deemed to have committed an adjudicated violation of this section.
[Added 3-10-2021 by Ord.
No. 593-21]
h.
Any appeal of a stop construction order issued by the borough Code
Enforcement Officer shall be made to the West Cape May Consolidated
Land Use Board, pursuant to N.J.S.A 40:55D-70(a).
[Added 3-10-2021 by Ord.
No. 593-21]
