Chapter 12.12
URBAN FOREST
Sections:
12.12.010 Legislative findings and purpose.
12.12.030 Tree impact assessment required.
12.12.040 Tree protection plan permit required.
12.12.050 Tree removal permit required.
12.12.070 Tree removal and tree protection plan permit applications.
12.12.080 Tree removal permit standards and process.
12.12.085 Tree protection plan permit standards and process.
12.12.087 Tree removal and tree protection plan permit appeal hearings and decisions.
12.12.090 Application and permit validity time period.
12.12.100 Tree replacement required.
12.12.125 Notification of tree protection laws required prior to sale of real property.
12.12.130 Violations and penalties—Enforcement.
12.12.010 Legislative findings and purpose.
The Council of the City of Takoma Park hereby finds that:
A. It is in the interest of the residents of the City to protect, preserve, promote, and to the extent feasible expand Takoma Park’s urban forest;
B. The purpose of this chapter is to promote a diverse, resilient, sustainable urban forest through shared community and individual stewardship of existing trees and the planting of new trees with a focus on native trees and desirable trees that are adaptable to the impacts of climate change;
C. Stewardship of the City’s urban forest is a shared community effort requiring the involvement of the entire community, and the regulation of actions affecting the urban forest provides benefits to residents and property and business owners;
D. A healthy, biodiverse, and demographically balanced urban forest provides valuable services, including:
1. Preserving wildlife habitat,
2. Reducing air, noise, and visual pollution,
3. Improving water quality,
4. Mitigating the City’s contribution to climate change,
5. Assisting in climate change mitigation, adaptation and resilience,
6. Lowering summer temperatures and moderating climatic extremes, and
7. Reducing energy use in buildings;
E. The City’s urban forest is part of the watershed of Long Branch, Takoma Branch, and Sligo Creeks and, as such, plays an important role in controlling stormwater run-off and supports the biologic and hydrologic integrity of downstream watersheds;
F. The City’s urban forest contributes to the beauty of our neighborhoods, which enhances property values and improves the quality of life in the community and the health of residents; and
G. The City’s urban forest policies and tree canopy goals shall be pursued in a racially equitable manner to address inequities that exist in tree canopy coverage across City neighborhoods and that seeks to protect and plant trees with a focus on the health and sustainability of the urban forest as a whole to help ensure that the benefits of tree canopy are distributed equitably and that racial equity is prioritized in the development and implementation of regulations and procedures. (Ord. 2020-22, 2020/Ord. 2003-40 (part), 2004)
12.12.020 Urban forest trees.
An urban forest tree is a tree in the City that:
A. Measures 24 inches or more in circumference at four-and-one-half feet above ground level or measures seven and five-eighths inches or more DBH; or
B. Is required to be planted or maintained, pursuant to governmental order, agreement, stipulation, covenant, easement, or a tree protection plan, or as a condition of issuance of a tree removal permit; or
C. Is planted with government funding or under a government program. (Ord. 2020-22, 2020/Ord. 2003-40 (part), 2004)
12.12.030 Tree impact assessment required.
A. A tree impact assessment is conducted by the Urban Forest Manager for the purpose of assessing the potential adverse impact of proposed activity in the vicinity of an urban forest tree on said urban forest tree and determining whether a tree removal permit or tree protection plan permit will be required for the proposed activity. Except as provided in subsection (B) of this section, a tree impact assessment shall be required prior to conducting any of the following:
1. Land disturbing activities, such as raising or lowering existing grade or excavating more than three inches in depth over an area in excess of 25 square feet, within 50 feet of an urban forest tree;
2. Any activity within 50 feet of an urban forest tree that may destroy a significant portion of the roots, compact the soil, or impede water uptake, including, but not limited to, the operation or parking of vehicles or heavy equipment, storage of materials, and trenching;
3. Construction or placement of a structure other than a fence within 50 feet of an urban forest tree;
4. Paving in excess of 25 square feet with an impervious surface within 50 feet of an urban forest tree; or
5. Removing, relocating, destroying, or topping an urban forest tree or pruning more than 10% of the live canopy of an urban forest tree, or pruning live limbs with significant diameter in relation to the size of the tree, or other action which would significantly and permanently detract from an urban forest tree’s health or growth.
B. The requirements set forth in subsection (A) of this section shall be modified as follows:
1. When an emergency action, as defined under this title, is taken pursuant to this subsection, the person engaging in the activity shall:
a. Document the existence of an emergency,
b. Cease activity when the risk of harm to life or significant harm to property is eliminated,
c. Notify the Urban Forest Manager, provide documentation of the emergency, and request a tree impact assessment immediately or no later than the first business day following the commencement of the emergency action, and
d. Resume activity only after the determination is made that a tree protection plan permit is not required in connection with the activity or a tree protection plan permit is issued.
2. A tree impact assessment shall not be required for the following:
a. Actions performed at the written request of a utility company such as PEPCO, Verizon, WSSC, or Washington Gas; or
b. Actions performed by a utility company in accordance with a memorandum of understanding between the utility company and the City.
C. The Urban Forest Manager shall conduct a tree impact assessment upon submission of an application by any person intending to conduct an activity described in subsection (A) of this section. Following the tree impact assessment, which requires a site visit, the Urban Forest Manager will advise the person requesting the assessment in writing of the permits required under this chapter to proceed with the proposed activity and any suggestions to reduce the adverse impact of the proposed activity on the trees in the area. The Urban Forest Manager does not serve as the arborist for property owners and does not prepare tree protection plans on behalf of property owners.
D. The fee for a tree impact assessment shall be established via regulation.
E. Failure to obtain a tree impact assessment before conducting any of the activities described in this section shall constitute a Class AA municipal infraction. (Ord. 2020-22, 2020/Ord. 2010-27 § 1 (part), 2010/Ord. 2003-40 (part), 2004)
12.12.040 Tree protection plan permit required.
A. Except as provided in subsection (B) of this section or unless the City determines pursuant to Section 12.12.030 that a tree protection plan permit is not required, a tree protection plan permit shall be required for the following:
1. Land disturbing activities, such as raising or lowering existing grade, or excavating more than three inches in depth over an area in excess of 25 square feet within 50 feet of an urban forest tree;
2. Activity within 50 feet of an urban forest tree that may destroy a significant portion of the roots of a tree or endanger the water supply to the roots, compact the soil, or impede water uptake, including, but not limited to, the operation or parking of vehicles or heavy equipment, storage of materials, and trenching;
3. Construction or placement of a structure other than a fence within 50 feet of an urban forest tree; or
4. Paving in excess of 25 square feet with an impervious surface within 50 feet of an urban forest tree.
B. The requirements set forth in subsection (A) of this section shall be modified as follows:
1. When an emergency action, as defined under this title, is taken pursuant to this subsection, the person engaging in the activity shall:
a. Document the existence of an emergency,
b. Cease activity when the risk of harm to life or significant harm to property is eliminated,
c. Notify the Urban Forest Manager, provide documentation of the emergency, and request a tree impact assessment immediately or no later than the first business day following the commencement of the emergency action, and
d. Resume activity only after the determination is made that a tree protection plan permit is not required in connection with the activity or a tree protection plan permit is issued.
2. A tree protection plan permit shall not be required for the following:
a. Actions performed at the written request of a utility company such as PEPCO, Verizon, WSSC, or Washington Gas; or
b. Actions performed by a utility company in accordance with a memorandum of understanding between the utility company and the City.
C. Upon notification of emergency action described in subsection (B)(1) of this section, the City Manager shall determine whether a tree protection plan permit is required for future activity related to the emergency action undertaken and direct the person accordingly.
D. If, at any time after receiving a tree protection plan permit application, the City Manager determines it is substantively inadequate, the City Manager may require that the tree protection plan be prepared by a licensed or certified professional who has demonstrable expertise in the preparation of tree protection plans. Factors the City Manager may consider in making this determination include:
1. The scope of the proposed activity;
2. The proximity of the proposed activity to or potential impact upon one or more urban forest trees;
3. The size or species of the potentially impacted urban forest tree or trees;
4. Whether the activity presents a significant risk to one or more urban forest trees and that the measures necessary to protect one or more urban forest trees that may be impacted by the activity are complex; or
5. Other reasonable factors that may be unique to the circumstances. (Ord. 2020-22, 2020/Ord. 2010-27 § 1 (part), 2010/Ord. 2003-40 (part), 2004)
12.12.050 Tree removal permit required.*
A. Except as provided in subsection (B) of this section, a tree removal permit shall be required for removal, relocation, or destruction of an urban forest tree.
B. The requirements set forth in subsection (A) of this section shall be modified as follows:
1. When an emergency action, as defined under this title, is taken pursuant to this subsection, the person engaging in the activity shall:
a. Document the existence of an emergency, the condition of the tree, and diameter at breast height of the tree,
b. Cease activity when the risk of harm to life or significant harm to property is eliminated,
c. Notify the Department and provide to the Department documentation of the emergency, condition of the tree, and diameter at breast height of the tree no later than the first business day following the commencement of the emergency action, and
d. Except as stated in Sections 12.12.080(C)(2) through (4), comply with the tree replacement requirements in Section 12.12.100.
2. A tree removal permit shall not be required for the following:
a. Actions performed at the written request of a utility company such as PEPCO, Verizon, WSSC, or Washington Gas; or
b. Actions performed by a utility company in accordance with a memorandum of understanding between the utility company and the City.
C. In addition to the permits required under this chapter, property owners in the Takoma Park historic district may also have to obtain a historic area work permit from the Historic Preservation Commission before removing or destroying a tree. In such cases, the City shall not issue a tree removal permit until a copy of the historic area work permit is provided to the City. (Ord. 2020-22, 2020/Ord. 2010-27 § 1 (part), 2010/Ord. 2003-40 (part), 2004)
* Editorial note: This Section is based upon Prior Code Section 12-29 which became Section 12.12.040 during re-codification.
Editorial note: Sections 12.12.060, 12.12.070 and 12.12.080 were adopted, with substantive changes, from Prior Code Section 12-29, which became Section 12.12.040 during re-codification.
12.12.060 Permit waivers.
Repealed by Ord. 2020-22. (Ord. 2010-27 § 1 (part), 2010/Ord. 2003-40 (part), 2004)
12.12.070 Tree removal and tree protection plan permit applications.
A. A property owner may apply for a tree removal permit or tree protection plan permit covering action relating to an urban forest tree or trees on or near the owner’s property. The application is made under procedures specified in this code and by the City Manager.
B. A property owner may not reapply for a tree removal permit or tree protection plan permit for the removal of the same tree or the same construction activity within two years of the denial of a permit application without first demonstrating a substantial change in circumstances that warrants consideration of the new permit application.
C. An applicant for a tree removal or tree protection plan permit shall pay a processing fee or processing fees established by regulation with the application.
D. The City Manager shall:
1. Make a copy of each application for a tree removal permit or tree protection plan permit available for public inspection; and
2. Provide an at-cost copy of an application to any person requesting one. (Ord. 2020-22, 2020/Ord. 2010-27 § 1 (part), 2010/Ord. 2003-40 (part), 2004)
12.12.080 Tree removal permit standards and process.
A. Except as otherwise provided in this section, if the City Manager determines that the criteria set forth in subsection (A)(1) of this section have been met and that the conditions for issuance of a tree removal permit set forth in subsection (A)(2) of this section have been met, and, if applicable, the requirements for removal of more than 10 trees set forth in subsection (A)(3) of this section are met, then the City Manager shall notify the applicant that the City has granted preliminary approval of the application. The preliminary approval of the application does not authorize the applicant to take any action regarding an urban forest tree unless and until a tree removal permit is issued.
1. The City Manager or, upon appeal, the Tree Commission shall issue a tree removal permit if so indicated only after taking into consideration the tree removal permit factors set forth in subsections (A)(1)(a) through (g) of this section. The tree removal permit factors are as follows:
a. The general health and condition of the tree;
b. The desirability of preserving the tree by reason of its age, size, species, or other outstanding quality;
c. The impact of the reduction in tree cover on the property where the tree is located, adjacent properties and the surrounding neighborhood and the extent to which said areas would be subject to environmental degradation;
d. The location of the tree in relation to targets (people or property that may be subject to injury or damage due to a tree’s failure);
e. A utility or permanent structure above ground or below ground upon which the tree may have an adverse impact at present or in the future;
f. Any compelling reasons for the removal that the applicant has demonstrated, including hardship, and whether a reasonable alternative to removal of the tree exists; or
g. The extent to which tree clearing is necessary to achieve the proposed development or land use.
2. The following conditions shall be considered and applied in accordance with this code and other applicable law prior to the issuance of a tree removal permit:
a. Compliance with the tree replacement requirements of Section 12.12.100;
b. Approval of a tree protection plan and/or inspection of the property by the City to verify that all required tree protection devices for trees other than the tree to be removed are in place;
c. Submission to the City of all necessary county and other permits, licenses, and approvals that are required for the construction or development of the property;
d. Submission of a historic area work permit if required for the removal of the tree;
e. Posting of a bond or other security for tree replacement; and
f. Other applicable conditions.
3. The City Manager shall not process an application for the removal of more than 10 trees unless the potential applicant complies with the following provisions:
a. Prior to submitting an application for removal of more than 10 trees, the potential applicant shall conduct a community meeting for the purposes of presenting information regarding the proposed tree removal and allowing residents to seek additional information;
b. At least 15 days prior to the community meeting, the potential applicant must, at a minimum, send written notice with information regarding the community meeting to adjoining properties, the City Manager, the applicable City Councilmember, and the Mayor. The potential applicant shall cause public notice of the community meeting to be posted on the property in plain view from the public right-of-way. The written notice and the posting shall be of a size and in a format, including appropriate languages, prescribed by the City Manager. The City shall utilize the best available means of communicating notice of the meeting through its various platforms;
c. After the completion of the community meeting, the potential applicant shall certify in writing to the City Manager that the mailing, posting, and community meeting were conducted in accordance with this section, and the applicant shall provide to the City Manager a fair summary of the topics discussed at the community meeting. The City shall utilize the best available means of communicating the certification and fair summary of the meeting through its various platforms; and
d. Only after compliance with the provisions of this subsection may a potential applicant submit an application for removal of 10 or more trees.
4. Except as to tree removal permits issued pursuant to subsection (C) of this section, the Department shall post notice of the preliminary approval of the application on the property in question in plain view from the public right-of-way and on the City’s website for a concurrent period within two working days of the notification of approval described in subsection (A) of this section. The notice must describe the procedure and time limit for filing an appeal from the preliminary approval of the application. If no appeal is filed within 15 days after the notice has been posted, the City Manager shall issue a tree removal permit upon satisfaction of any conditions on the issuance of the permit. If an appeal from the preliminary approval of an application is filed, then no permit is issued until the appeal has been decided and any conditions satisfied. The applicant is responsible for maintaining the notice for the entire posting period. The City Manager may extend the posting period up to an additional 15 days if they determine that the applicant failed to maintain the notice for the entire posting period.
5. If the City Manager determines that the applicant is not entitled to a tree removal permit, the City Manager shall cause the applicant to be notified that the City has preliminarily denied the application and shall provide a written explanation of the reasons for the decision.
B. A notice of appeal of a determination made by the City Manager pursuant to subsection (A) of this section must be in writing, state the reasons for the appeal, the name, address, and email address of the appellant and the nature of the interest of the appellant. Appeal notices shall be filed with the City Manager, who shall forward the notice to the Department.
1. All appeals shall be heard by the City of Takoma Park Tree Commission and in accordance with Section 12.12.087 unless otherwise noted herein.
2. Appeals from Preliminary Tree Removal Permit Approvals. Except for tree removal permits issued pursuant to subsection (C) of this section, any resident of the City or owner of property in the City may appeal the preliminary approval of an application for a tree removal permit. Any such appeal shall be made within 15 days after the date notice is posted on the property. If a notice of appeal is filed during such 15-day notice period, then no permit is issued until the Tree Commission has conducted a fact-finding hearing and issued its final decision on the appeal and all conditions on the issuance of the permit have been satisfied.
3. Appeals from Preliminary Tree Removal Permit Denials. Only the permit applicant may appeal the preliminary denial of a tree removal permit. Any such appeal shall be made within 15 days after the date that the City Manager notifies the applicant of the preliminary denial of an application for a tree removal permit.
4. The City Manager’s tree rating evaluation and tree replacement requirement calculation may not be appealed.
5. For hearings on appeals from preliminary tree removal permit decisions, the Department shall provide written notice of the time, date, and location of the hearing to the permit applicant and all persons who timely file a written notice of appeal and shall post notice of the hearing on the property in question in plain view from the public right-of-way and on the City’s website for at least 15 consecutive days prior to the hearing date. The applicant shall maintain the notice on their property for the entire posting period. The City Manager may continue the hearing until a later date and immediately post notice of the continuation if they determine that the applicant failed to make good faith efforts to maintain the notice for the entire posting period.
6. If the appealing party unreasonably fails to cooperate with the scheduling of a hearing within 45 days of the filing of the notice of appeal, the appeal shall be dismissed.
C. Applicants who receive tree removal permits for the reasons identified in subsections (C)(1) through (4) of this section are not subject to the preliminary approval process set forth in subsection (A) of this section and shall post notice of the issuance of the tree removal permit on the property before the tree removal commences and continuing until seven days after the completion of the removal. The notice shall state that residents with comments or questions regarding the activity may contact the City Manager and shall provide the City Manager’s address, email address, and telephone number, but there shall be no appeals from the City Manager’s decision under this subsection.
1. Where an owner proposes removing one or more urban forest trees of a species identified as an undesirable species by City regulation and the owner agrees to replace the tree or trees in accordance with Section 12.12.100.
2. Where an owner proposes removing an urban forest tree that the City Manager has determined to be dead. Replacement is not required pursuant to Section 12.12.100.
3. Where an owner proposes, or is required, to remove a tree that the City Manager has determined is hazardous and the hazard only can be eliminated by removing the tree. Replacement is not required pursuant to Section 12.12.100.
4. Where an owner proposes removing a tree when the City Manager has determined a part of the tree is damaging a permanent structure and further damage cannot be prevented via pruning or other reasonable tree maintenance measures. Replacement is not required pursuant to Section 12.12.100. (Ord. 2020-22, 2020/Ord. 2003-40 (part), 2004)
12.12.085 Tree protection plan permit standards and process.
A. The City Manager shall approve tree protection plans on a case-by-case basis. Tree protection plans may include, but shall not be limited to, the following elements:
1. Protection of roots from heavy equipment;
2. Prevention of soil compaction;
3. Prevention of silt runoff onto roots;
4. Prevention of grade changes;
5. Prevention of root damage by requiring proper root pruning or tunneling under roots;
6. Creation of a tree protection zone;
7. Fertilization, watering and treatment requirements; and
8. Protection of tree trunks.
B. The purpose of a tree protection plan is to prescribe all reasonable measures to protect any tree required to be preserved under this chapter. The City Manager shall not approve a tree protection plan unless it meets the stated purpose set forth in this section. If the City Manager rejects a proposed tree protection plan, the City Manager shall advise the applicant in writing of additional tree protection measures necessary for approval of the plan and, when reasonably feasible, explain why such measures are necessary, after which the applicant may submit a revised application.
C. Conditions for issuance of a tree protection plan permit may include, but are not limited to:
1. Inspection of the property by the City to verify that all required tree protection devices are in place;
2. Submission to the City of all necessary County and other permits, licenses, and approvals that are required for the construction and development of the property;
3. Posting of a bond or other security for tree removal, replacement and/or preservation; and
4. Use of equipment or techniques, such as pneumatic excavation, to determine the location of roots.
D. Preliminary Tree Protection Plan Permit Decisions. When an applicant submits a tree protection plan permit application as required by Section 12.12.040, the City Manager, after communicating regarding the process and the requirements, shall issue a preliminary decision on the application.
1. Preliminary Tree Protection Plan Permit Approval.
a. If the City Manager determines that a tree protection plan permit application is complete and that the applicant has agreed to abide by a tree protection plan approved by the City Manager, then the City Manager shall notify the applicant that the City has granted preliminary approval of the application. The preliminary approval of the application does not authorize the applicant to take any action regarding an urban forest tree unless and until a tree protection plan permit has been issued.
b. Within two working days of this notification, the Urban Forest Manager shall send notice of the preliminary approval of the application to the addresses of the properties adjoining the applicant’s property. If no appeal is filed within 15 days after the notice has been mailed, the City Manager shall issue a tree protection plan permit. If an appeal from the preliminary approval of an application is filed in accordance with subsection (E) of this section, then no permit is issued until the appeal has been decided.
2. Preliminary Tree Protection Plan Permit Denial.
a. If the City Manager determines that a tree protection plan permit application is incomplete or that the applicant has not agreed to abide by a tree protection plan approved by the City Manager, then the City Manager promptly shall notify the applicant that the City has preliminarily denied the application, advise the applicant in writing of additional tree protection measures necessary for approval of the plan, and, when reasonably feasible, explain why such measures are necessary.
b. The notice must describe the procedure and time limit for filing an appeal from the preliminary denial of the application. If no appeal is filed within 15 days after the notice has been mailed, no tree protection plan permit shall issue.
E. Tree Protection Plan Permit Appeals.
1. All appeals shall be heard by the City of Takoma Park Tree Commission and in accordance with Section 12.12.087 unless otherwise noted herein.
2. A notice of appeal must be in writing, state the reasons for the appeal, the name, address, and email address of the appellant, the nature of the interest of the appellant, and satisfy the requirements of subsection (E)(3) of this section. Appeal notices shall be filed with the City Manager, who shall forward the notice to the Department.
3. The permit applicant or the owner(s) of record of all properties on which an urban forest tree that is likely to be substantially impacted by the applicant’s proposed activity is located, as determined by the City Manager, may appeal the preliminary decision on an application for a tree protection plan permit within the 15-day notice period. Persons filing an appeal must authorize the City Manager to enter their property for the purpose of determining their standing to appeal or their appeal will not be accepted. A notice of appeal from the preliminary approval of an application for a tree protection plan permit must allege with particularity facts upon which the Tree Commission could determine that the tree protection plan is insufficient to protect the trees to be protected under the plan. If a notice of appeal containing the requisite factual allegations is timely filed by a person who has standing to appeal, then no permit is issued until the Tree Commission has conducted a fact-finding hearing and has issued its final decision on the appeal.
4. Hearing Notices. For hearings on appeals from preliminary tree protection plan permit decisions, the Department shall send written notice of the time, date, and location of the hearing to the permit applicant and to the address of the owner(s) of record of all properties on which an urban forest tree that is likely to be substantially impacted by the applicant’s proposed activity is located, as determined by the City Manager. Such notice shall be sent at least 15 days before the scheduled hearing date. (Ord. 2020-22, 2020)
12.12.087 Tree removal and tree protection plan permit appeal hearings and decisions.
A. There is a rebuttable presumption that the decision of the City Manager with respect to a tree removal or tree protection plan permit application is correct. Any decision by the Tree Commission to impose conditions upon an applicant or reverse or modify a decision of the City Manager with respect to a permit application must be based upon substantial evidence in the record. “Substantial evidence” means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
B. The Tree Commission may dismiss any appeal for good cause, approve the permit, disapprove the permit, or approve the permit with modifications and/or conditions. If the appealing party unreasonably fails to cooperate with the scheduling of a hearing within 45 days of the filing of the notice of appeal, the appeal shall be dismissed.
C. The Tree Commission shall conduct a fact-finding hearing on an appeal from a preliminary permit decision. At the hearing, any interested party may present testimony and evidence to substantiate any material point. All testimony shall be given under oath or by affirmation. The burden of proof shall be on the party filing the appeal and shall be met by a preponderance of the evidence. The parties may also cross-examine opposing witnesses presenting testimony at the hearing. A verbatim record of the hearing shall be made. The record shall be open to inspection by any person. Upon request, the Department shall furnish such person with an at-cost copy of the hearing record.
D. On appeal from the preliminary decision on a tree removal permit application, after due consideration of the evidence and testimony and the criteria for tree removal permit decisions set forth in Section 12.12.080(A)(1), the Tree Commission shall issue its decision on the appeal and shall give notice to all interested parties.
E. On appeal from a preliminary decision on a tree protection plan permit application, after due consideration of the evidence and testimony and application of the standard for approval of tree protection plans set forth in Section 12.12.085, the Tree Commission shall issue a decision on the appeal affirming or modifying the City Manager’s decision and shall give notice of the Tree Commission’s decision to all interested parties.
F. Within 30 days of the date of the issuance of a decision of the Tree Commission, a person who was a party to the proceedings before the Tree Commission and who is aggrieved by the decision may seek judicial review of the decision by filing a petition for judicial review in accordance with Title 7, Chapter 200, Judicial Review of Administrative Agency Decisions, of the Maryland Rules of Procedure, or any subsequent amendments thereto. (Ord. 2020-22, 2020)
12.12.090 Application and permit validity time period.
A. When tree replacement or the posting of security is required by the City Manager, permit applicants must sign a tree replacement agreement or post security approved by the City Manager within six months of submitting their application, or their application will be denied or their preliminary approval revoked.
1. Applicants who execute a tree replacement agreement must file a certification of compliance with the tree replacement agreement on a form prepared by the City Manager and photographic evidence that each tree has been planted pursuant to the agreement within six months of the issuance of the tree removal permit.
2. Failure to timely submit the certification will result in the issuance of a municipal infraction citation for failure to comply with the tree replacement requirements of this chapter.
B. Permits are valid for one year from the date of issuance unless extended by the City Manager for good cause when an extension is consistent with the purposes of this chapter. (Ord. 2020-22, 2020/Ord. 2003-40 (part), 2004)
12.12.100 Tree replacement required.
A. Tree replacement as specified in this section is required in the following cases:
1. The applicant’s agreement to replace removed urban forest trees shall be required as a condition of issuance of a tree removal permit, except as stated in Section 12.12.080(C)(2) through (4), and may be required as a condition of issuance of a tree protection plan permit for activity that is likely to lead to destruction of a tree.
2. In accordance with subsection (D)(3) of this section, applicants are required to replace trees originally indicated and intended to be saved in a tree protection plan when such trees are excessively damaged or removed, including such trees that are on property adjacent to the applicant’s property.
3. Any person who removes or excessively damages a tree in violation of this chapter is required to replace the tree within six months.
B. Replacement trees must be equal to or superior to the removed trees in terms of species quality, shade potential, and other characteristics identified in the species list prepared by the Urban Forest Manager, unless the City Manager authorizes deviation from this requirement to facilitate planting replacement trees on site. Replacement trees are nursery stock trees with a size of one-and-one-half to three inches in caliper for deciduous trees, or six to 10 feet in height for evergreen trees and guaranteed for one year.
C. The basal area of the replacement trees, measured at caliper height, must be no less than the appropriate determined percentage of the total basal area of the tree to be removed, measured at four-and-one-half feet above the ground. The percentage is determined using the health quality analysis rating scale, which shall be applied in accordance with International Society of Arboriculture standards.
|
CRITERION |
VALUE |
RATING |
||
|---|---|---|---|---|
|
|
5 or 4 |
3 or 2 |
1 |
|
|
Roots and Root Collar |
Roots are healthy. Root collar clearly visible and healthy. |
Some root damage/decay. Root collar is somewhat buried and/or some root collar damage/decay. |
Significant root damage/decay. Root collar is buried and/or significant root collar damage/decay. |
|
|
Trunk |
Sound and solid. |
Sections of bark missing. Some trunk/codominant stem damage/decay. |
Extensive bark loss. Significant trunk/codominant stem damage/decay. |
|
|
Crown/Branches |
Healthy, full and balanced crown. |
Crown has some health issues, is not entirely full, and/or is somewhat unbalanced. One major/structural limb is dead/dying and/or several smaller limbs are dead/dying. |
Crown has significant health issues, is very sparse and/or is very unbalanced. Two or more major/structural limbs are dead/dying and/or many smaller limbs are dead/dying. |
|
|
Tree Health and Species Profile |
Tree vigor is high. Foliage is healthy. |
Tree vigor is normal. Foliage shows some signs of biotic/abiotic damage. Species is somewhat prone to failure. |
Tree vigor is low. Foliage shows significant signs of biotic/abiotic damage. Species is very prone to failure. |
|
|
|
|
|
Total Rating |
|
D. Replacement Calculation.
1. For trees rated 4 using the above scale, no replacement tree is required, but is strongly encouraged on or off site.
2. For trees rated 5 to 20 using the above scale, trees are to be replaced according to the following formula, with the actual number of replacement trees required rounded up to the next whole number:
|
Total Rating of Tree to Be Removed |
Tree Replacement Formula |
|
|---|---|---|
|
|
Trees permitted for removal under Section 12.12.080(C)(1) (undesirable species) |
All Other Trees |
|
4 |
0% |
0% |
|
5 to 9 |
1 for 1 |
1 for 1 |
|
10 to 16 |
1% |
2% |
|
17 to 20 |
1.5% |
3% |
3. For trees removed or excessively damaged in violation of this chapter or an approved tree protection plan, the total basal area of the replacement tree or trees at caliper height must be no less than 10% of the basal area at four-and-one-half feet above the ground of the tree removed or damaged.
E. Where it is not feasible or desirable to replace trees on site, the replacement requirement may be satisfied by planting trees at another location approved by the City Manager within the City or by paying a fee in lieu of planting replacement trees, to be established by regulation, which shall be equivalent to the installed market value of the required replacement trees plus two years of maintenance, paid to the City’s tree fund. The City Manager shall establish the fee amount via regulation. Maintenance expenses shall include, but not be limited to, watering, protection from infestation, and protection from deer. In cases where replacement or fee in lieu is not required, the City annually shall make plantings within the City that replace the trees removed, to the extent feasible.
F. As a condition precedent to the issuance of a tree removal permit or approval of a tree protection plan, the City may require the applicant to post a bond, letter of credit, or other security acceptable to the City or to deposit a sum of money with the City (hereafter referred to as “security”). The amount of the security required to be posted or deposited with the City is equal to the tree replacement costs of trees for which a tree removal permit has been issued and the cost of removing and replacing any tree or trees covered by a tree protection plan that die or become hazardous, including such trees that are on properties adjacent to the applicant’s property.
1. The security may be retained by the City until the later of the date that the tree replacement requirements of this section are satisfied or, in the case of construction or development activities, until two years following the completion of the construction or development on the property as evidenced by final inspection approval by the County or other applicable governmental agency or entity.
2. The security may be forfeited to the City, in whole or in part, if the tree replacement requirements are not timely met or if any tree or trees on the property or adjacent properties die, become hazardous, are excessively damaged, or are removed in violation of the terms of a tree removal permit or an approved tree protection plan for the property.
3. With respect to any tree or trees covered by a tree protection plan and within two years of the completion of construction or development activity that necessitated the creation of the protection plan for said tree or trees, there is a presumption that the death, hazardous condition, or significant decline in the health of said tree or trees was caused by the same construction or development activity that caused the issuance of the protection plan in the first instance. The applicant has the burden of rebutting this presumption by a preponderance of the evidence.
4. The amount of the security that is forfeited to the City is equal to the tree replacement costs of the tree or trees on the property or adjacent properties that die, become hazardous, are excessively damaged, or are removed in violation of the terms of a tree removal permit or an approved tree protection plan for the property. In the case of construction or development activities on the property, the amount of the security that is forfeited to the City also may include the cost of removing any tree or trees covered by a tree protection plan that die or become hazardous. The forfeited security is added to the City’s tree fund or, with the agreement of the property owner and the City, may be used to remove or replace the dead, damaged or hazardous tree or trees on the property.
G. Permissible Uses of Tree Fund. The tree fund may be used to:
1. Plant trees on public and private property, with a focus on planting native species and, where appropriate, climate adapted species, except when no native or climate adapted species is well suited and available;
2. Maintain trees planted with funds from the tree fund; or
3. For any other purpose that promotes the urban forest. (Ord. 2020-22, 2020/Ord. 2011-28 § 1 (part), 2011/Ord. 2003-40 (part), 2004)
12.12.105 Preplanting of replacement trees.
Repealed by Ord. 2020-22. (Ord. 2011-28 § 1, 2011)
12.12.110 Appeals from permit decisions.
Repealed by Ord. 2020-22. (Ord. 2007-59 § 1, 2007/Ord. 2003-40 (part), 2004)
12.12.120 Criteria for tree permit decisions.
Repealed by Ord. 2020-22. (Ord. 2003-40 (part), 2004)
12.12.125 Notification of tree protection laws required prior to sale of real property.
A. On or before entering into a contract for the sale of real property in the City, the owner or agent of the property must provide the prospective buyer with a Notice of Tree Preservation and Replacement Requirements – City of Takoma Park (“notice”) in accordance with subsection (D) of this section.
B. At the time the notice in subsection (D) of this section is delivered, each buyer must sign and date a written acknowledgment of receipt of the notice. The notice shall be included in or attached to the contract of sale for the property.
C. The notice requirements established by this section do not apply to:
1. A sheriff’s sale, tax sale, deed in lieu of foreclosure, or sale by foreclosure, partition, or court-appointed trustee;
2. A transfer of the property by a fiduciary in the course of the administration of a decedent’s estate, guardianship, conservatorship or trust;
3. A transfer of the property, or any interest therein, to a spouse, former spouse, domestic partner, former domestic partner, parent, sibling, child or grandchild; or
4. A transfer of property solely to provide a security or leasehold interest in real property.
D. Except as provided in subsection (C) of this section, the notice shall be included in or attached to all real property contracts of sale and shall be in substantially the form set forth below:
NOTICE OF TREE PRESERVATION AND REPLACEMENT REQUIREMENTS – CITY OF TAKOMA PARK:
1. The Buyer is notified that Chapter 12.12, Urban Forest, of the Takoma Park Code imposes restrictions and procedural requirements relating to activity on properties located in the City of Takoma Park (“City”) that may affect urban forest trees on the property or on neighboring properties. An “urban forest tree” is a tree which: a) measures 24 inches or more in circumference at 4-1/2 feet above ground level or measures 7-5/8 inches or more in diameter at breast height (“DBH”) (note: additional requirements may apply if the property is located in the Takoma Park Historic District); b) is required to be planted or maintained pursuant to governmental order, agreement, covenant, easement or a tree protection plan, or as a condition of the issuance of a City tree removal permit; or c) is planted with government funding or under a government program. See Takoma Park Code §12.12.020.
2. The activities within 50 feet of an urban forest tree that may be regulated by Chapter 12.12, Urban Forest, of the Takoma Park Code include, but are not limited to, the construction or expansion of a structure, the operation of heavy equipment, land disturbing activities such as regrading or excavation, installation of paving or other hardscape, and the removal or pruning of roots or branches of trees.
3. A tree removal permit is required before a property owner may remove, relocate, or destroy an urban forest tree. The City may deny the tree removal permit and require that the tree remain in place, or may require the owner to plant multiple replacement trees or pay a tree replacement fee to the City as a condition of the issuance of a permit.
4. Before engaging in construction or other activities that may impact urban forest trees on or near the property, the property owner must contact the City Department of Public Works to request a tree impact assessment. Following a tree impact assessment, the Department will advise the property owner whether a tree protection plan permit is required before the activity may proceed. The owner and the owner’s contractors may be required to take measures to reduce the impact of the activity upon the trees on or near the property. Such measures may add to the cost of the activity, delay the completion of the activity, or require modifications to the planned activity, including, but not limited to, the use of alternative hardscape materials and construction methods, and reductions or modifications to the footprint of additions or new construction.
5. Violation of Chapter 12.12 of the Takoma Park Code may subject property owners and their agents to civil and criminal penalties, including fines and imprisonment.
6. Additional information is available from the City of Takoma Park Department of Public Works at (301) 891-7612 or at www.takomaparkmd.gov.
Buyer acknowledges receipt of this Notice of Tree Preservation and Replacement Requirements – City of Takoma Park.
______________________________ Buyer Date
______________________________ Buyer Date
E. A violation of this section is a Class B municipal infraction.
F. A buyer’s failure to receive the notice required by this section does not excuse or waive compliance with the requirements of this chapter. (Ord. 2020-22, 2020/Ord. 2011-28 § 1, 2011)
12.12.130 Violations and penalties—Enforcement.
A. Municipal Infractions.
1. Any of the following is a Class AA municipal infraction:
a. Doing any of the acts for which a permit is required under Sections 12.12.040 or 12.12.050, or performing any such act in relation to a dead or hazardous urban forest tree, without applying for a permit, after an application for a permit has been denied, or after applying for a permit but before a permit has been issued, unless the act is described in Section 12.12.040(B) or 12.12.050(B).
b. Failure to fulfill the tree replacement requirements of this chapter.
c. Any violation of a decision or order of the Tree Commission, including, but not limited to, the violation or nonperformance of conditions imposed in connection with the issuance of a permit.
d. Any violation of a requirement of a tree removal permit or tree protection plan.
e. Any violation of a condition imposed in connection with the issuance of a tree removal permit or tree protection plan permit.
f. Pruning more than 10% of the live canopy of an urban forest tree, or pruning live limbs with significant diameter in relation to the size of the tree, or other action that would significantly and permanently detract from an urban forest tree’s health or growth, unless such activity is authorized under a tree protection plan or tree removal permit.
B. Misdemeanors.
1. It is a Class A misdemeanor to do any of the following:
a. To do any of the acts specified in subsection (A) of this section in relation to three or more urban forest trees, whether or not such urban forest trees are located on the same property, within a three-month period.
b. To do any of the acts specified in subsection (A) of this section in relation to any urban forest tree that has been designated by the Tree Commission or the City as having special botanical, ecological or historical significance or as a landmark.
c. To do any of the acts specified in subsection (A) of this section in relation to any tree that is more than 33 inches in circumference at four-and-one-half feet above ground level.
d. To willfully or repeatedly violate this chapter or an order of the Tree Commission.
e. To violate a stop work order issued pursuant to Section 12.04.050(C).
C. Each urban forest tree that is damaged or destroyed as a result of act(s) taken in violation of any provision of this chapter is considered a separate violation of the appropriate section(s).
D. In cases where a person has hired an individual or organization to perform tree work that is in violation of any provision of this chapter, both the hired and the hirer may be subject to the penalties set forth in this chapter.
E. Any person or organization that performs tree trimming or tree removal for hire within the City of Takoma Park and who violates any provision of this chapter may be barred from contracting with or performing work for the City of Takoma Park.
F. Fines collected for violations of this chapter are deposited in the City’s tree fund. (Ord. 2020-22, 2020/Ord. 2004-6 (part), 2004/Ord. 2003-40 (part), 2004)
12.12.140 Reports to Council.
The City of Takoma Park, through the Urban Forest Manager and other designees as defined by the City Manager, shall:
A. Administer the provisions of this title and develop regulations for administering this title.
B. Prepare and submit an annual report to the Council that consists of the following information for the preceding year:
1. A description of the condition of the urban forest, including a record of the location and species of trees planted by the City or by permittees pursuant to this title;
2. The number of applications received, tree removal permits, and tree protection plan permits issued by the City Manager, and a summary of each decision of the Tree Commission;
3. A description of the City’s progress in meeting the Council’s tree canopy goals as set forth from time to time by resolution of the Council, including actions to address differences and inequities that exist in tree canopy coverage across City neighborhoods and participatory planning processes;
4. Recommending, as needed, changes in law or other action the Council may wish to take to protect and promote the urban forest in Takoma Park or to help meet tree canopy goals;
5. The status of the City’s education and outreach strategy, along with any recommended changes;
6. The amount of funds the City has received from fines and forfeited security bonds under this title; and
7. The number and percentage of native trees and climate adapted trees relative to the total number of trees purchased with City funds.
C. No later than every six years, prepare and update the City’s master tree plan. The master tree plan shall provide an assessment of the City’s implementation of the most recent master tree plan along with an assessment of the implementation of goals for a healthy urban forest and urban forest policies established by Council from time to time. The master tree plan shall include specific recommendations for improving each part of the urban forest, protecting and maintaining the existing urban tree canopy, increasing biodiversity, increasing tree canopy coverage in areas that have less coverage, and improving community involvement and public outreach and education. In preparing and updating the City’s master tree plan, the Urban Forest Manager shall utilize best urban forestry management practices and the best available technology that is reasonably affordable to assess the City’s existing tree canopy and health of the urban forest.
D. Maintain and publicize a species list for selection of trees to be planted on private and public property pursuant to the requirements of this title, with a focus on native species and climate adapted species. Such list shall be periodically reviewed and modified with input from urban forest experts from the State and County governments, area universities, other organizations, and the community.
E. Notify the Council of significant events related to the urban forest on an as-needed basis. (Ord. 2020-22, 2020/Ord. 2003-40 (part), 2004)