Loading...
Item 7ECity of Southlake Department of Planning MEMORANDUM March 1, 2006 TO: Shana Yelverton, City Manager FROM: Ken Baker, AICP, Planning Director SUBJECT: Amendment to city's Tree Preservation Ordinance (Proposed Ordinance 585 -C) REQUESTED ACTION: Conduct a Public Hearing on proposed Ordinance 585 -C Conduct a second reading on proposed Ordinance 585 -C BACKGROUND: In an on -going effort to implement several of the recommendations of the Southlake 2025 Plan, city staff has been working on revising the city's Tree Preservation Ordinance to implement the Environmental Resource Protection recommendations of the Plan since August 2005. Specifically, the proposed changes are intended to better link the city's environmental policies as outlined in the Southlake 2025 Plan with its implementation through the Tree Preservation Ordinance. One of the most significant changes proposed with this revision is the requirement of a Tree Conservation Analysis and /or a Tree Conservation Plan to be submitted in conjunction with proposals for development. This would allow the decision makers (Planning and Zoning Commission and City Council) to evaluate the merits of a development proposal based upon the extent to which it accommodates and protects prioritized environmentally sensitive areas. Also included with this Tree Preservation Ordinance is a tree technical manual that is intended clarify, expound on, and illustrate pertinent sections of the ordinance and help users meet the requirements of the ordinance. The technical standards (illustrations and appendices) may be amended by staff periodically to reflect changing practices and arboricultural standards while the ordinance sets up the Council's overarching policies on Tree Preservation. Another significant change proposed with this ordinance is an increase in penalties for violation from $100 per diameter inch to $200 per diameter inch and from a maximum of $500 per incident to a maximum of $2,000 per incident. This increase in penalties is based upon a survey of penalties levied by adjoining communities in the Metroplex. A summary of this survey is also attached with this memo. Two meetings were held to gather feedback from developers and neighborhood groups alike. The first meeting was on November 16, 2005 with area developers and builders and the second meeting was a SPIN Open House and Public Forum on November 21, 2005. Many of the recommendations from the two public input meetings have been incorporated into this final draft of the ordinance. The attached final draft ordinance incorporates comments received from the City Attorney's office. The changes made since the first reading are generally limited to clarifications and vested rights. FINANCIAL CONSIDERATIONS: None LEGAL REVIEW: Pending CITY COUNCIL ACTION: January 3, 2006, Approved Ordinance 585 -C on first reading (6 -0) on P &Z ACTION: December 8, 2005; Recommended approval (7 -0) of the proposed Ordinance 585 -C. ATTACHMENTS: 1. Proposed Ordinance 585 -C ORDINANCE NO. 585 -C AN ORDINANCE OF THE CITY OF SOUTHLAKE AMENDING ORDINANCE 585 -B, WHICH ESTABLISHES THE REGULATIONS FOR THE PRESERVATION OF TREES; PROVIDING FOR THE PURPOSE AND INTENT; PROVIDING FOR DEFINITIONS; PROVIDING TREE PRESERVATION CRITERIA; PROVIDING REVIEW PROCESSES THAT INCLUDE TREE CONSERVATION ANALYSES, TREE CONSERVATION PLANS, AND TREE PERMITS; PROVIDING FOR A TREE TECHNICAL MANUAL TO ILLUSTRATE AND ASSIST PERSONS IN APPLYING THE ORDINANCE REQUIREMENTS; AMENDING THE TREE PROTECTION AND REPLACEMENT REQUIREMENTS; PROVIDING TREE PRUNING, TREE PLANTING, AND TREE REMOVAL STANDARDS; PROVIDING FOR ENFORCEMENT PROCEDURES AND CIVIL AND CRIMINAL PENALTIES FOR VIOLATIONS; PROVIDING A PROCESS FOR APPEALS AND VARIANCES; PROVIDING A SAVINGS CLAUSE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING A CUMULATIVE CLAUSE; PROVIDING FOR PUBLICATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, the City of Southlake, Texas, is a home rule City acting under its charter adopted by the electorate pursuant to Article XI, Section 5 of the Texas Constitution and Chapter 9 of the Texas Local Government Code; and WHEREAS, the Southlake City Council first adopted Ordinance 585 on June 15, 1993 with the goal of preserving trees and subsequently amended Ordinance 585 on December 16, 1997 and January 4, 2000, revising regulations relating to the protection of trees; and WHEREAS, the Southlake City Council has determined that it is appropriate and in the best interest of the City to promote the public health, safety, and general welfare of its residents by amending Ordinance No. 585 -B as provided herein; WHEREAS, the Southlake City Council has determined that amending Ordinance 585 -B is required to implement the Tree Protection recommendations of the City's Comprehensive Master Plan, the Southlake 2025 Plan; and WHEREAS, the City council has given published notice and held public hearings with respect to the amendment of Ordinance 585 -C as required by law. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SOUTHLAKE, TEXAS: FINAL DRAFT 1 March 1, 2006 SECTION 1 Ordinance 585 -B, Tree Preservation Ordinance of the City of Southlake is hereby amended to read as follows: 1.0 TITLE This Ordinance shall be known as the City of Southlake Tree Preservation Ordinance. 2.0 FINDINGS The Southlake City Council finds that: 2.1 Trees transpire considerable amounts of water, produce oxygen, and absorb carbon - dioxide, thus reducing air pollution; 2.2 Trees have an important role in improving water quality by neutralizing pollutants in ground water run -off, 2.3 Trees, through their root systems, stabilize the ground water tables, and play an important and effective part in soil conservation, erosion control, and flood control; 2.4 Trees are an invaluable physical and aesthetic asset to development and make cities more comfortable by providing shade, cooling the air and land, and reducing noise levels and glare; 2.5 Trees provide critically needed habitat and food source for wildlife; and 2.6 For the reasons stated above, preservation of mature tree stands and environmentally sensitive areas in conjunction with development have a significant impact on the desirability of land and therefore adds value to the individual development and the increases the livability of the City. 3.0 PURPOSE AND INTENT The purpose of this Ordinance is to ensure environmentally sensitive site planning which furthers the preservation of mature trees and natural areas; to protect trees during construction; to facilitate site design and construction which contribute to the long term viability of existing trees; and to control the removal of trees when necessary. It is the further purpose of this Ordinance to achieve the following broader objectives: 3.1 Prohibit the clear- cutting of property; 3.2 Protect and increase the value of residential and commercial properties within the City; FINAL DRAFT 2 _larch 1. 2000 3.3 Maintain and enhance a positive image for the attraction of new residences and business enterprises to the City; 3.4 Protect healthy quality trees and promote the natural, ecological, environmental, and aesthetic qualities of the City; 3.5 Implement the Environmental Resource Protection recommendations of the Southlake 2025 Plan; and 3.6 Maintain and enhance Southlake's identity as a Tree City USA. 4.0 APPLICABILITY A person commits an offense if the person alters a protected tree without a permit, except to the extent a permit is not required under Section 6.12 or Section 15 or 18 of this Ordinance. Any person filing an application for development shall submit a Tree Conservation Analysis and /or Tree Conservation Plan as required by this Ordinance before a tree permit is issued. 5.0 DEFINITIONS GENERAL RULES: The following rules shall be applied in constructing, interpreting or otherwise defining the terms hereof: a. Words used in the present tense shall include the future, words used in the singular number shall include the plural number and words used in the plural shall include the singular. b. The word "shall" is mandatory and the word "may" is permissive. C. The word "person" shall include any individual, firm, corporation, partnership, joint venture, organization, or any other entity. DEFINITIONS: Certain words or terms applicable to this Ordinance are defined as hereinafter provided. Words and terms used in this Ordinance, but not defined in this Ordinance shall have the meanings contained in the Zoning Ordinance, Landscape Ordinance or other ordinances of the City. Words and terms defined in two ordinances shall be read in harmony unless there is an irreconcilable conflict, in which case the definition contained in this Ordinance shall control. ADMINISTRATIVE OFFICIAL The department director appointed by the City Manager to administer this Ordinance, or the department director's designee. AGRICULTURAL USE Any use on property zoned "AG- Agricultural" that is related to active farming, livestock, or ranching, including using land as pasture or in the production of crops, or horticultural products, the keeping of livestock, including but is not limited to FINAL DRAFT 3 March 1, 2006 poultry and hoofed animals such as cattle, horses, goats, and sheep, for commercial or noncommercial purposes, and the construction and maintenance of agricultural accessory buildings. ALTER; ALTERS; ALTERATION Any act which causes or may reasonably be expected to cause a tree to die, including but not limited to, any of the following: Uprooting any portion of the tree's root system; severing the main trunk of the tree; inflicting damage upon the tree's root system by machinery, storage of materials, or the compaction of soil above the root system of a tree; changing in the natural grade of the critical root zone of a tree or uphill from the critical root zone of the tree so as to divert the flow of water to or away from the critical root zone; applying herbicidal or other lethal chemicals to the tree or any portion of the critical root zone of the tree; pruning of more than ten percent (10 %) of the canopy or branches; placement of impermeable material over any portion of the critical root system of a tree; and trenching within the critical root zone. A protected tree shall be considered to be altered if one or more of the following occurs: more than twenty -five percent (25 %) of the critical root zone is adversely affected, more than twenty -five (25 %) of its canopy is removed, or the tree is disfigured to the extent a reasonable person would conclude the tree will not survive. BUILDING PAD The actual foundation area of a building and a reasonable area not to exceed six (6) feet around the foundation necessary for construction and grade transitions. CALIPER American Association of Nurserymen standard for trunk measurement of nursery stock. Caliper of the trunk shall be taken six (6) inches above the ground for up to four (4) inch caliper size and twelve (12) inches above the ground for larger caliper sizes. CERTIFICATE OF OCCUPANCY (CO) An official City acknowledgement that indicates conformance with all applicable City regulations and authorizes the legal use and occupancy of the premises for which it is issued. CERTIFIED ARBORIST A specialist in the care of individual trees, knowledgeable about the needs of trees, and trained and equipped to provide proper care of trees, and certified by the International Society of Arboriculture as a Certified Arborist. CLEAR - CUTTING The removal of more than ninety percent (90 %) of the trees within an area of land. CRITICAL ROOT ZONE: The area of undisturbed natural soil around a tree defined by a horizontal circle drawn at grade with the center being the center of the trunk of the tree and a radius equal to the distance from the trunk to the outermost point of the tree's canopy or the drip line. CUT/FILL Areas where the natural ground level has been modified either through excavation (cut) or fill. FINAL DRAFT 4 March 1, 2006 DBH DIAMETER AT BREAST HEIGHT) The diameter of a tree trunk, or, in the case of a multi -trunk tree, the total of the diameter of the largest trunk and one half ('/2) of the diameter of each additional trunk, measured at a height of 4 '/z feet above the ground. DRAINAGE FLOW The area uphill from a tree from which water drains or flows into the critical root zone of that tree. DEVELOPMENT Any construction activity for which a building permit or earth disturbance permit is required under the ordinances of the City. DEVELOPMENT REVIEW COMMITTEE (DRC) A committee comprised of City staff, including the Landscape Administrator, charged with reviewing all development applications to ensure compliance with all of the City's ordinances and regulations. DRIP LINE The greater of the following: (1) a vertical line run through the outermost portion of the canopy of a tree and extending to the ground, or (2) a circular area with a radius of one -half ('/2) the height of the tree extending outward from the centerpoint of the tree. EARTH DISTURBANCE PERMIT An official authorization by the City to allow any person(s) to re- grade, excavate, disturb, or store spoils on any property in the City as required by the City's adopted Building Code. EASEMENT The authorization by a property owner for the use by another, and for specified purpose, of any designated part of such property. Easements may be temporary or permanent. EASEMENT, CONSERVATION A permanent deed restriction that limits development of property or a transfer of an interest in property to a public or non - profit entity approved by the City, duly recorded in the deed records of the County and binding on all subsequent owners, for the purpose of protecting and preserving environmentally sensitive natural resources, in which the landowner retains fee title to the property. EASEMENT, PERMANENT The permanent transfer by plat or written instrument of an interest in property or authorization by a property owner for the use by another, for a specified limited purpose. EASEMENT, TEMPORARY ACCESS An easement granting a right of access to property that is adjacent to a property being developed to provide temporary access for construction activities on the property being developed. The easement is granted only for the period of the construction activity. EASEMENT, TEMPORARY CONSTRUCTION An easement granting a right of use of property that is adjacent to a property being developed to provide temporary access required for the installation of required and approved utility lines and other infrastructure to FINAL DRAFT 5 March 1, 2006 serve the property being developed. The easement is granted only for the period of the construction activity. EASEMENT, UTILITY OR DRAINAGE An area designated on any plat or other instrument approved by the City for the location of utility lines or facilities for the flow of stormwater. ENVIRONMENTAL PRESERVE A natural open space reserved for land that is under permanent conservation, such as areas in the flood plain, woodlands to be preserved, creeks, water bodies, steep grades, and other environmentally sensitive lands, and including land protected through conservation easements. ENVIRONMENTAL RESOURCE PROTECTION (ERP) RECOMMENDATIONS AND MAP Sections of the City's Parks, Recreation, and Open Space Plan, a component element of the Southlake 2025 Plan that provides the policy guidance for the protection of key environmentally sensitive resources in the City, and identify priority areas for the protection of significant environmentally sensitive areas in the City. FOOTPRINT An area not to exceed six feet (6') in all directions around impervious surfaces as designated on an approved Site Plan. GRADING PERMIT Same as Earth Disturbance Permit. LAND DISTURBANCE PERMIT Same as Earth Disturbance Permit. LANDSCAPE ADMINISTRATOR The person appointed by the City Manager or Administrative Official to serve as the person to administer plans and City ordinances related to tree preservation and landscape and /or the person's designated representative. LANDSCAPE ARCHITECT A person licensed to use the title of "landscape architect" in the State of Texas in accordance with state law. MUNICIPAL/PUBLIC DOMAIN PROPERTY Property owned by a governmental entity such as the City, county, state, federal government, school district or other such entity, such as City Hall, public parks, Corps of Engineers property, public rights of way ( "R.O.W. "), libraries, fire stations, and water tower, water treatment and other public works facilities. OWNER Any person holding a legal or equitable interest in land, or a lessee, agent, employee, or other person acting on behalf of such person. PARKS, RECREATION, & OPEN SPACE MASTER PLAN The component element of the Southlake 2025 Plan, the City's Comprehensive Master Plan which serves as the community's blue print for the City's future parks and open space facilities. FINAL DRAFT 6 March 1, 2006 PLANNING AND ZONING COMMISSION A volunteer citizen body appointed by the City Council which is authorized to make recommendations on the physical development of the City including land use, zoning, and transportation issues. PROTECTIVE FENCING A physical and visual barrier installed around the critical root zone of a protected tree as required by Section 8.8 of this Ordinance in order to prevent damage to the tree and its root system. REFORESTATION FUND The fund established by the City for the purposes of implementing the environmental resource protection goals of the Southlake 2025 Plan including: a. educating the public on the aesthetic and health benefits of conservation and environmental preservation; b. planting, maintaining, and managing trees and landscaping on public property in the City; C. creating and expanding wooded property within the City; d. purchase of conservation easements and /or environmental preserves; and e. other similar purposes indicated in this Ordinance and as approved by City Council REFORESTATION FUND ADMINISTRATOR The person appointed by the City Manager to administer the Reforestation Fund. SOUTHLAKE 2025 PLAN The City of Southlake's Comprehensive Master Plan, as amended, as adopted by the City Council. STREET TYPOLOGY MAP The component of the City's adopted Mobility & Master Thoroughfare Plan, a component element of the Southlake 2025 Plan, showing street typologies, which are overlay designations to the functional classification system of the City's roadway network linking street functionality with design priorities for all street types. TREE Any self - supporting woody perennial plant which will normally attain a trunk diameter of two inches or more when measured at a point four and one -half feet above ground level and an overall height of at least fifteen (15) feet at maturity. TREE BOARD A board appointed by the City Council to carry out specific duties and responsibilities as set forth in Article 13 of this Ordinance. The Zoning Board of Adjustment shall constitute the Tree Board unless the City Council appoints a different tree board. FINAL DRAFT 7 March 1, 2006 TREE. CANOPY OR SHADE An evergreen or deciduous tree which when mature is large (typically more than twenty -five (25) feet and has a significant tree canopy that provides shade and other benefits. TREE CONSERVATION ANALYSIS A preliminary analysis that shows the general site design direction of the development including general placement of building pads, parking areas, and infrastructure based on the natural features of the property. TREE CONSERVATION PLAN A plan that illustrates, in detail, the impact of all proposed development including the impact of buildings, parking areas, streets and all other infrastructure on all natural features of the site such as protected trees, natural creeks, ponds, steep grades, and other critical resources. TREE. DISEASED, INFECTED OR DAMAGED A tree found by the Landscape Administrator to be any of the following: a. infected with a disease or a parasite making it reasonably likely that the tree will either die within three (3) years or pose a significant threat of infecting other trees of the same or similar species; or b. damaged, in whole or part, to such an extent that either the tree is reasonably likely to die within three (3) years; or C. hazardous, in whole or part, to such an extent that it presents a significant danger to the general public. TREE, PARK Trees in public parks and all areas owned by the City to which the public has access as a park. TREE PERMIT The official authorization by the City required to alter any protected tree not exempted by this Ordinance. TREE PRESERVATION AREA An area identified on any plan approved by the City Council denoting a significant tree stand(s) which is to be preserved during and after development of that property. TREE, PROTECTED Any tree which the City has determined typically has significant positive characteristics worthy of preservation. TREE PROTECTION SIGN A sign furnished by the City's building official which sign describes prohibited conduct detrimental to trees. TREE, STREET A tree on property located within a public and private right -of -way or access easement, or adjacent to such right -of -way or easement and in front of the front building or setback line. FINAL DRAFT 8 Harch 1, 2006 TREE SURVEY A plan drawing that provides legend details about the location and details of trees and contains the information set forth in the Appendix, including but not limited to drawings by a licensed surveyor, a licensed architect, or, if less than twenty (20) trees are involved, a person approved by the Landscape Administrator. TREE TECHNICAL MANUAL The manual (including all Appendices) that contains the text of this Ordinance and any graphic depictions, tables, or other illustrative material created and approved by the Administrative Official to illustrate the requirements of this Ordinance. TREE TOPPING The cutting back of limbs to stubs larger than three inches in diameter within the tree's crown to such a degree as to remove the normal canopy and disfigure the tree. TREE, UNDERSTORY OR ACCENT A tree which the City has determined has significant positive characteristics worthy of preservation and that does not typically attain great size. UTILITY The service or product provided by a utility provider, including but not limited to, the provision of gas, electric, water, waste water, drainage, storm water, telecommunications, cable, or telephone service for users within the City. UTILITY, CITY The City of Southlake public works department or City employee or entity employed on the behalf of the City providing a utility service. UTILITY LINE A conduit, channel, ditch, tube, duct, hose, wire, box, pipe, or similar conveyance device through which a utility is transported, provided, or conveyed, excluding utility service lines. Channels, ditches, creeks, detention/retention ponds, and other drainage improvements shall constitute a utility line for purposes of this Ordinance only to the extent that such improvement is required by the City or other public entity as an integral and necessary part of an approved drainage plan, is located so as to avoid, to the greatest extent practical, altering protected trees, and is approved by the Administrative Official. Ponds, channels, creeks, or other bodies of water intended or created primarily for decorative, scenic, or recreational purposes shall not constitute a "utility line" for purposes of this Ordinance, unless such improvement is required by the City engineer or by ordinance, even if such areas may serve some drainage purposes. UTILITY SERVICE LINE A conduit, channel, ditch, tube, duct, hose, wire, box, pipe, or similar conveyance device through which a utility is transported, provided, or conveyed to a single lot or tract. UTILITY PROVIDER A company or entity, or agent for a company or entity, including a municipality that provides a utility service within the City. FINAL DRAFT 9 March 1, 2006 6.0 TREE CONSERVATION ANALYSIS (TCA) AND TREE CONSERVATION PLAN TCP 6.1 REQUIREMENT: A Tree Conservation Analysis (TCA) and subsequently, a Tree Conservation Plan (TCP) shall be required for any application for development described in Table 1.0 subject to the following exceptions: a. The Administrative Official may waive any requirement if the scope of the development makes the requirement either impractical or inapplicable to the development. b. The Administrative Official may approve an alternative to the tree survey for heavily wooded areas, but may require a tree survey for smaller, specific areas based upon the environmental sensitivity of the property being developed. C. All proposed improvements shall be required to be shown only at the site plan stage for all development. Preliminary plats shall show building setbacks and general location of buildings and infrastructure. d. Status of the protected trees shall be based upon trees that are to be preserved, trees to be altered due to proposed improvements, and trees that could potentially be saved based on site specific conditions. e. A Tree Conservation Plan may be used to satisfy the requirements of a Tree Conservation Analysis. 6.2 STANDARDS FOR APPROVAL: a. The City of Southlake places a high priority on tree preservation while providing flexibility in site design on environmentally sensitive properties. Aside from their aesthetic value, trees improve air quality, protect water, reduce energy consumption, reduce surface temperatures, and increase property values. b. The following criteria shall form the basis to evaluate all Tree Conservation Analyses and Plans proposed in conjunction with development as well as applications for tree permits: i. The extent to which the placement of building pads, parking areas, driveways, streets, and utility easements is sensitive to the natural features of the property including mature tree stands, natural creeks and ponds, and significant grades; ii. The extent to which priority areas for tree cover preservation have been accommodated based on the Environmental Resource Protection Map; FINAL DRAFT 10 March 1, 2006 iii. The extent to which existing tree stands have the potential to buffer residential areas from the noise, glare, and visual effects of nonresidential uses; iv. The extent to which existing trees, if any, adjoining a natural or man -made drainage creek are going to be impacted based on the proposed development; V. The extent to which existing quality trees are to be preserved along rural roadways and other streets as identified and prioritized in the Street Typology designation; and vi. The extent to which proposed tree replacement procedures pursuant to this Ordinance adequately mitigate the alteration of any trees. C. A Tree Conservation Analysis and Tree Conservation Plan shall adequately demonstrate a proposed development's adaptation to the natural environment by illustrating, to the extent reasonably possible, the extent to which it meets the criteria specified in subsection b. Table 1.0 — Tree Conservation Analysis and Tree Conservation Plan by Activity Type Type of Development Requirement for Criteria for Review Application Analysis or Conservation Plan Concept or Development Tree Conservation Analysis Section 6.2 Plan Site Plan Tree Conservation Plan Based on the approved Tree Conservation Analysis or, if none, on Section 6.2 Preliminary Plat* Tree Conservation Analysis and, Based on the approved Concept, if application is not sought in Development, or Site Plan, or, if none, conjunction with a concept, on Tree Conservation Analysis, or, if development or site plan, a Tree none, on Section 6.2 Conservation Plan is also required Final Plat Tree Conservation Plan Based on conformity with the approved Preliminary Plat Plat Showing /Plat Tree Conservation Plan Section 6.2 Revision Earth disturbance Tree Permit Application Based on the conformity with the permit/Building permit approved site plan (non - residential) or preliminary plat (residential) or, if none, on Section 6.2 * TCA is acceptable for all Preliminary Plats that require a City Council approved Site Plan for development. TCP shall be required at Preliminary Plat for all development that does not require City Council approval of a Site Plan. FINAL DRAFT 11 March 1, 2006 6.3 INFORMATION REQUIRED: A Tree Conservation Analysis and Tree Conservation Plan and an application for a Tree Permit shall include all information listed in below: a. Information required for Tree Conservation Analysis: i. Identification of Critical Environmental Features of the site: • All protected tree stands • All grades over 5% • Existing streams, drainage creeks, ponds, and other water bodies (if any) ii. Alternative to a Tree Survey iii. Critical Root Zones of groups of trees iv. Boundaries of any tree preservation areas as identified in the ERP Map V. Identification of areas of environmental constraints not suitable for development vi. Identification of areas of minimal environmental constraints that are suitable for development vii. Areas of encroachment into environmentally sensitive areas identified on the site viii. Stream/Creek buffers, if any b. Information required for Tree Conservation Plan: i. Identification of Critical Environmental Features of the site: • All protected tree stands • All individually protected trees • Existing streams, drainage creeks, ponds, and other water bodies (if any) ii. Tree Survey or alternative to a tree survey iii. 2 -foot contour map of the site iv. Protected trees within the tree preservation area including tree size and type V. Critical Root Zones of groups of trees vi. Critical Root Zones for individual trees required for site plans only vii. Boundaries of any tree preservation areas as identified in the ERP Map viii. Identification of areas of environmental constraints not suitable for development ix. Identification of areas of minimal environmental constraints that are suitable for development X. Areas of encroachment into environmentally sensitive areas identified on the site xi. Stream/Creek buffers, if any xii. Detailed site plan of all proposed improvements. (All proposed improvements shall be required to be shown only at the site plan stage for a An alternative to a tree survey may be used in heavily wooded areas, however, a detailed tree survey may be required for smaller, specific areas based upon the environmental sensitivity of the property being developed FINAL DRAFT 12 March 1, 2006 all development. Preliminary plats shall, however, show building setbacks and general location of buildings and infrastructure.) xiii. Setbacks, building lines, and buffer yards 6.4 ACTION ON TREE CONSERVATION ANALYSIS AND TREE CONSERVATION PLAN: a. An application that requires the submittal of either a Tree Conservation Analysis or a Tree Conservation Plan shall first be reviewed by the Development Review Committee in conjunction with the accompanying development application. b. The Landscape Administrator shall prepare a report that evaluates the extent to which the proposed development is responsive to the Tree Preservation criteria outlined in Section 6.2 to the Planning and Zoning Commission. C. The Planning and Zoning Commission shall make a recommendation on the proposed Tree Conservation Analysis or Tree Conservation Plan to the City Council. The City Council shall approve the proposed Tree Conservation Analysis and Tree Conservation Plan if they find that it meets, to the extent reasonably possible, the criteria outlined in Section 6.2. 6.5 REQUIREMENT FOR TREE PERMIT: A tree permit shall be required to alter or prune any protected tree that is not otherwise exempted under this Ordinance. A Tree Permit Application shall include the following documentation in addition to the information contained in Section 6.3: a. City approved Tree Conservation Plan (when required by this Ordinance); b. A tree survey clearly identifying the status of all trees after the proposed improvements are made (protected trees, trees to be altered, and trees that can be preserved based upon site specific conditions); C. Identification of Critical Environmental Features of the site: xiv. All protected tree stands xv. All individually protected trees xvi. Existing streams, drainage creeks, ponds, and other water bodies (if any) C. Detailed site plan of all proposed improvements with extent and location of proposed improvements, including building pads, parking areas, driveways, streets, and utilities (including storm water drainage facilities); d. A tree protection plan identifying the required tree protection measures including fencing and signage; FINAL DRAFT 13 l arch 1, 2006 e. Clear delineation of construction related parking, storage, staging, and access areas f. Limits of clearing, grading, and trenching; g. Approved grading and drainage plans; h. Proposed landscaping, bufferyards, and /or replacement areas; Any information required by Section 6.3 for a Tree Conservation Plan; and j. Any conditions placed on the approval of the Tree Conservation Plan. 6.6 FEES: Person shall submit, with the an application for a tree permit, payment of a fee to the City of Southlake in the amount specified by City Council in a fee schedule, with the following exceptions: a. When altering any protected tree, the City is exempt from the tree permit fee, but must obtain a permit and comply with all tree replacement and tree protection procedures. Protected trees proposed to be altered must be shown on construction plans approved by the Landscape Administrator. b. When altering any protected tree, a public utility is exempt from the tree permit fee, but must obtain a permit and comply with all tree replacement and tree protection procedures. Protected trees proposed to be altered must be shown on construction plans approved by the Landscape Administrator. 6.7 PERMIT EXPIRATION: A tree permit issued in connection with any other permit or plan shall be valid for the period of that permit's or plan's validity. A tree permit not issued in connection with any other permit or plan shall become void 180 days after the issue date on the tree permit. 6.8 POSTING TREE PROTECTION SIGN: After the tree permit is issued, the permit holder shall post a "tree protection sign" at each entrance to the property upon which one or more trees is situated, and at any other location designated by the Landscape Administrator. 6.9 AUTHORITY FOR REVIEW: The Administrative Official shall be responsible for reviewing all requests for tree permits submitted in accordance with the requirements specified herein. 6.10 ACTION ON PERMIT APPLICATION: The Administrative Official or the Tree Board shall grant a tree permit based on the Tree Conservation Plan approved by the City Council, when applicable, or based on the criteria established under Section 6.2. FINAL DRAFT 14 March 1, 2006 6.11 DEFERRAL TO CITY COUNCIL: If the application for a tree permit is not in conjunction with a development application, the Administrative Official may defer the approval of a tree permit to the City Council after a recommendation from the Planning and Zoning Commission for any reason. 6.12 EXEMPTIONS: Alteration of the following tree(s) shall be exempt from the provisions of this Ordinance: a. Any tree that endangers the public health, welfare, or safety such that immediate alteration is required; b. Any tree that has disrupted a public utility service due to a tornado, storm, accident, flood, or other act of nature, provided that alteration of such a tree shall be limited to the portion of the tree reasonably necessary to reestablish and maintain reliable utility service; C. A tree located on the property of a licensed plant or tree nursery which has trees planted and growing on the premises for the sale or intended sale to the general public in the ordinary course of the nursery's business; d. Any tree located on a lot or tract in any residentially zoned district, including but not limited to SF20, SF30, SF1, R -PUD, RCS, TZD, DT, or RE, except as follows: i. a lot which continues to be subject to Ordinance 685 -13, pursuant to Section 15 hereof, shall comply with all applicable provisions of said Ordinance; ii. a lot in a plat application submitted on or after September 1, 2005 shall be subject to the provisions of Ordinance 685 -B unless the application or plat expires or the project is abandoned or significantly altered, in which event the lot shall be subject to the provisions of Article 8 of this Ordinance; and iii. any lot or tract designated as a tree preservation area in a residentially zoned property and approved as a part of a Tree Conservation Plan adopted after the effective date of this Ordinance shall not be exempt from the provisions of this Ordinance; e. A tree located on property which is zoned AG (Agricultural) and being actively used for agricultural purposes or as a homestead, as long as the tree is located within a radius of 150 feet from the principal structure on the property or the owner's residence that is used as a homestead. FINAL DRAFT 15 March 1, 2006 7.0 TREE REPLACEMENT AND TREE PROTECTION PROCEDURES 7.1 GENERALLY: For all trees that are authorized to be altered based on a duly approved Tree Conservation Plan, tree protection and tree replacement procedures set forth in this Ordinance shall be followed before a Tree Permit is granted, except as set forth below: a. Tree Alteration for Public Utility Projects: All protected trees that the Administrative Official determines must be altered in order to install utility lines within public rights -of -way (R.O.W.) or within approved utility easements, including required drainage easements, shall be exempt from the tree replacement and tree protection requirements. Any protected trees within public R.O.W. or utility easements that the Administrative Official determines do not have to be altered shall be subject to the tree protection requirements but not to the tree replacement requirements. b. Selective Thinning and Removal of Underbrush: i. The Administrative Official may issue a single tree permit authorizing the alteration of certain protected trees from a densely forested area if the Administrative Official determines that selective thinning is being done in a professionally accepted manner that will enhance the environment and the likelihood of survival of the remaining trees. If the Administrative Official issues a permit for selective thinning, the protected trees covered by the permit shall be exempt from the tree replacement and tree protection requirements. ii. The Administrative Official may issue a permit allowing the clearing and grubbing of brush located within or under the drip lines of protected trees subject to reasonable conditions to insure the maximum protection of the trees. The permit holder shall clear or grub by hand or with push -type mowers within such drip lines, unless the use of dozers, loaders, or other moving equipment to clear or grub is expressly permitted in writing by the Administrative Official prior to performance of the work. C. Clear- Cutting of Trees on AG Zoned Property: i. An owner wishing to clear -cut any protected trees from property zoned Agricultural "AG" shall submit a request in writing to the Administrative Official, along with a survey, map or diagram showing the area to be clear -cut and the number, size and the location of protected trees in such area, a written statement from the applicant describing the purpose and reason for the clear- cutting, such other information or documents as may be requested by the Administrative Official, and the appropriate fee as provided in the fee schedule. FINAL DRAFT 16 March 1, 2006 ii. The Administrative Official shall refer such application to the Landscape Administrator and then to the Planning and Zoning Commission for recommendations. The Landscape Administrator may make an on -site inspection of the property to be cleared. After the Landscape Administrator and the Planning and Zoning Commission complete their recommendations, the application shall be submitted to the City Council for determination. iii. The City Council shall grant the application and issue a permit if the Council determines that the clear- cutting is for a legitimate, agricultural reason, provided that if the land ceases to be used for agricultural purposes at any time within five (5) years after the permit is obtained to remove the trees, the owner of the land must comply with the tree replacement requirements. If the City Council authorizes the issuance of such a permit, the protected trees covered by the permit shall be exempt from the tree replacement and tree protection requirements. The requirement to replace trees shall be binding upon the person subject to such permit even if such person sells, assigns, or transfers the property. If the City grants the application to clear -cut, the permit shall be executed by the applicant and shall provide that in the event of a sale, assignment or transfer of the subject property, the owner may either obtain the consent of the person to whom the property was sold, assigned or transferred to permit the replacement on such property, or may make payment to the Reforestation Fund as provided in this Ordinance. d. Limited Tree Alteration on "AG" Zoned Property: The Administrative Official shall, upon request of the owner of property zoned Agricultural "AG" and being actively used for agricultural purposes issue a tree permit for the alteration of not more than seven (7) protected trees per calendar year on such property. If the Administrative Official issues such a permit, the protected trees covered by the permit shall be exempt from the tree replacement and tree protection requirements. However, protected trees altered in excess of seven (7) per calendar year are not exempted from the tree replacement and tree protection requirements. An owner wishing to remove more than seven protected trees in any calendar year shall apply for and obtain a tree permit and comply with this Ordinance. e. Alteration of Diseased, Damaged, or Hazardous Trees: i. An owner of property wishing to alter a diseased, damaged or hazardous protected tree shall apply for a tree permit prior to the alteration of the tree, unless such alteration is otherwise authorized without a permit. The applicant shall submit such request in writing to the Administrative Official, along with a survey, map or diagram showing the location of the trees to be altered, a written statement from the applicant describing the purpose and reason for the alteration, such other information or documents FINAL DRAFT 17 March 1, 2006 as may be requested by the Administrative Official, and the appropriate fee as provided in the fee schedule. ii. The Administrative Official shall issue such a permit for alteration of any tree that the Administrative Official determines is diseased, infected, or damaged beyond the point of recovery, or in danger of falling. If the Administrative Official issues such a permit, the protected trees covered by the permit, the owner shall be exempt from the tree replacement and tree protection requirements. If such a diseased, infected or hazardous tree is not altered by the owner, the City may alter such a tree to reduce the chance of spreading the disease or infection to nearby healthy trees or to protect the healthy, safety, and welfare of the general public. f. Pruning: i. An owner of property wishing to prune a protected tree shall apply for and obtain a tree permit prior to the alteration of the tree, unless such alteration is otherwise authorized without a permit. The applicant shall submit such request in writing to the Administrative Official, along with a survey, map or diagram showing the location of the trees to be pruned, a written statement from the applicant describing the purpose and reason for the alteration, such other information or documents as may be requested by the Administrative Official, and the appropriate fee as provided in the fee schedule. ii. The Administrative Official shall issue a tree permit to allow pruning of a protected tree if such pruning will not unreasonably endanger or harm the tree, if such pruning is necessary to allow demolition of an existing structure, or to allow construction of a structure as permitted on an approved site plan, or is necessary for other development purposes. iii. If the Administrative Official issues such a permit, the owner shall be exempted from the tree replacement and tree protection requirements in Articles 7 and 8 of this Ordinance. For all other pruning for which a tree permit is required, the permit holder is required to comply with Articles 7 and 8 hereof. 7.2 APPLICABILITY: a. All protected trees that must be altered to construct the required and permitted improvements based on the City Council approved Tree Conservation Plan are exempted from the tree replacement and protection requirements of this section. Such improvements may include building pads, required parking areas, driveways, fire lanes, streets, and required utility and drainage infrastructure that are required by City ordinances and have been approved by the appropriate boards or officers of the City. FINAL DRAFT 18 March 1, 2006 b. Any protected trees within areas identified for improvements that the Tree Conservation Plan or the Landscape Administrator determines do not have to be altered shall be subject to the tree protection requirements contained in Section 8.8 of this Ordinance. C. All other areas of the proposed development, including areas in utility easements and areas designated for cut /fill for any purpose other than required drainage and infrastructure improvements, shall be subject to both the tree protection and tree replacement requirements of this Ordinance. d. For residential development, the building pad may be constructed at the same time as the installation of the infrastructure if it provides a greater benefit to the environment if the grading plans have been approved for both the installation of the infrastructure and the building pad. If the building pad or footprint of the building is modified from the original plan, the owner shall be required to mitigate any trees previously removed if the Landscape Administrator determines that the removal of the trees would not have been required but for the modification. e. Prior to the issuance of an earth disturbance permit for a single lot residential development, the Landscape Administrator shall ensure that: i. the proposed building and site plans meet the conditions of the City Council approved Tree Conservation Plan; and ii. given the limitations of required setbacks, proposed building footprints, and improvements, the applicant has limited the impact on all protected trees on the site to the greatest extent possible. 7.3 TEMPORARY ACCESS AND CONSTRUCTION EASEMENTS: a. A person commits an offense if the person owns real property and permits access across the person's property or grants a temporary access or construction easement across the owner's property if such right of access or easement intersects or comes within ten (10) feet of the critical root zone of a protected tree. b. It is a defense to prosecution for this offense that the Landscape Administrator determines that an easement is the only reasonable means of access to the property being developed. If so, the Landscape Administrator shall ensure that such an easement is of minimal size and situated within a location designed to minimize tree damage and impact on the natural environment while still providing a reasonable avenue of ingress and egress for construction purposes to the adjoining property. FINAL DRAFT 19 March 1, 2006 8.0 TREE REPLACEMENT AND TREE PROTECTION REQUIREMENTS 8.1 GENERALLY: If required by Section 7.1, 7.2, or7.3, the following procedures shall apply to any person who alters a protected tree for which a permit is required. If a person alters a protected tree for which a permit is required, the person shall replace the protected tree with a quality tree as designated in the Landscape Ordinance and approved by the Landscape Administrator. This tree replacement requirement is not meant to supplant good site planning. Tree replacement will be considered only after all design alternatives which could save more existing trees have been evaluated and reasonably rejected. 8.2. SIZE AND NUMBER: A sufficient number of trees shall be planted to equal or exceed, measured in DBH, the diameter of each tree altered. Each replacement tree shall be a minimum of three inch (3") caliper at one foot above ground level, and seven feet in height when planted. 8.3. LOCATION: Each replacement tree should be planted on the same lot or tract as the tree which was altered. However, if the replacement tree cannot be planted on the same lot or tract in accordance with universally accepted arborists' standards, the Landscape Administrator may permit any or a combination of the following: a. approve replacement on other private property within the City of Southlake, with the approval of the owners of both the property on which the protected tree was altered and the property on which the replacement tree is to be planted. In such an instance, the owner of the property on which the replacement tree is to be planted shall agree, in writing, to maintain the replacement tree to the standards established in this Ordinance; b. require replacement on public property, or C. require payment to the Reforestation Fund as provided by Section 8.7, below. 8.4 RESPONSIBILITY FOR REPLACING PROTECTED TREE: The Administrative Official will determine the time of replacement, and the location of the replacement trees and approve the agent responsible for replacing a wrongfully altered protected tree. The requirement to replace trees shall be binding upon the person subject to such order even if such person sells, assigns, or transfers the property. In the event of such a sale, assignment or transfer of property, the person subject to such order may either obtain the consent of the person to whom the property was sold, assigned or transferred to permit the replacement on such property, or may make payment to the Reforestation Fund as provided in this Ordinance. 8.5 TIME OF REPLACEMENT: Any replacement trees required to be planted must be planted not later than ninety (90) days of the order of the Administrative Official, or within (30) thirty days of the date any appeal from such order becomes final, provided, however, that the Landscape Administrator may require the deferral of the FINAL DRAFT 20 March 1, 2006 planting of replacement trees up to an additional one hundred eighty (180) days based on weather and other aboral considerations, and further provided that the Landscape Administrator may, upon request of the person subject to the requirement approve delaying the planting of replacement trees up to an additional one hundred eighty (180) days if the person subject to the order provides the City with a surety bond in an amount equal to the cost of purchasing and planting such trees or pay this amount into the Reforestation Fund within the earlier of the following: (1) within one hundred eighty (180) days of the last date approved for such delayed planting, (2) the date of issuance of the first certificate of occupancy on any portion of the subject property, or (3) other date as agreed by the City Council in an approved Tree Conservation Plan. The surety bond must be issued by a company licensed to do business in the State of Texas and shall be authorized by and approved by the City Attorney. 8.6 LONGEVITY AND DURATION: If a replacement tree dies within three years from the date it was planted, the person subject to the requirement to plant the replacement tree must replace the dead tree with another replacement tree within ninety (90) days of the order of the Administrative Official ordering such replanting. This requirement to replace trees shall be binding upon the person subject to such order even if such person sells, assigns, or transfers the property. In the event of such a sale, assignment or transfer of property, the person subject to such order may either obtain the consent of the person to whom the property was sold, assigned or transferred to permit the replacement on such property, or may make payment to the Reforestation Fund as provided in this Ordinance. 8.7 REFORESTATION FUND: A person required to comply with Section 8.4 may request to make a payment to the Reforestation Fund or other specifically dedicated fund approved by the City Council for such payments in accordance with the following requirements:. a. The amount of the payment required in lieu of each replacement tree shall be the average cost of a quality tree of similar size and type to the replacement tree which would otherwise have been required by this Ordinance, plus the cost of planting such a tree, as determined by the City Council and provided in a fee schedule published by the City. b. The funds shall be used only for purchasing and planting trees on private property approved by the Landscape Administrator and the City Manager, on public property, for acquiring wooded property, including Conservation Easements or Environmental Preserves which shall remain in a naturalistic state in perpetuity, or for establishing a landscape or wildlife preserve or similar nature area as approved by City Council. C. The Reforestation Fund Administrator shall submit quarterly reports to the City Council of the deposits and disbursements from the Reforestation Fund. FINAL DRAFT 21 Harch 1, 2006 8.8 TREE PROTECTION PROCEDURES: a. Unless otherwise exempted by this Ordinance, the following procedures shall apply to protect any protected tree for which a permit is required. b. All persons submitting construction plans shall insure that such plans comply with the requirements of this Ordinance. C. The following activities are prohibited within the limits of the critical root zone of any protected tree subject to the provisions of this Ordinance. i. Material Storage: No storage or placement of materials intended for use in construction or waste materials accumulated due to excavation or demolition shall be placed within the limits of the critical root zone of any protected tree. i. Equipment Cleaning /Liquid Disposal: No equipment shall be cleaned or other liquids, including, without limitation, paint, oil, solvents, asphalt, concrete, mortar or similar materials deposited or allowed to flow into the critical root zone of a protected tree. ii. Tree Attachments: No signs, wires or other attachments, other than those of a protective nature, shall be attached to any protected tree. iii. Vehicular Traffic: No vehicular and /or construction equipment traffic or parking shall take place within the critical root zone of any protected tree other than on existing street pavement. This restriction does not apply to single incident access within the critical root zone for purposes of establishing the building pad and associated lot grading, vehicular traffic necessary for routine utility maintenance, emergency restoration of utility service, or routine mowing operations. iv. Grade Changes: No grade changes shall be allowed within the limits of the critical root zone of any protected tree unless adequate protective construction methods are approved in advance in writing by the Landscape Administrator. V. Impervious Paving: No paving with asphalt, concrete or other impervious materials shall be placed within the limits of the critical root zone of a protected tree except as otherwise allowed in this Ordinance. d. No heavy equipment, including but not limited to trucks, tractors, trailers, bulldozers, bobcat tractors, trenchers, compressors, and hoists, shall be allowed inside the drip -line of any protected tree on any construction site without prior written approval of the Landscape Administrator. FINAL DRAFT 22 March 1, 2006 e. The following procedures shall be followed on all types of construction projects (including residential, commercial, and municipal / public domain projects). i. Protective Fencing: Prior to commencing construction, the contractor or subcontractor shall construct and maintain, for each protected tree on a construction site, a protective fencing which encircles the outer limits of the critical root zone of the tree to protect it from construction activity or in cases of heavily wooded sites, as approved by the Landscape Administrator. ii. All protective fencing shall be in place prior to commencement of any site work and remain in place until all exterior construction activity at the site has been completed. iii. Protective fencing shall be at least four (4) feet high, clearly visible, and shall have a tree protection sign affixed to the fence every twenty (20) feet in such a manner to be clearly visible to workers on the site. iv. The use of orange vinyl construction fencing or other similar fencing is generally permitted only if there is no construction or vehicular activity within ten (10) feet of the fence. If construction activity or vehicular traffic is expected within ten (10) feet of the fence, the fence shall be constructed of chain link or other similar metal, wooden material or semi- rigid vinyl tape fencing supported with a top support wire or equivalent support material affixed to metal or wooden posts, all of which shall be six (6) feet in height. V. All protective fencing shall be supported at a maximum of ten (10) foot intervals by approved methods sufficient enough to keep the fence upright and in place for the duration of the construction. Vi. The owner shall cause the required fencing to be installed and maintained for the duration of the construction. f. In situations where a protected tree remains in the immediate area of intended construction and the Landscape Administrator determines the tree bark to be in danger of damage by construction equipment or other activity, the contractor or subcontractor shall protect the tree by enclosing the entire circumference of the tree trunk with two (2) inches x four (4) inches lumber encircled with wire or other means that do not damage the tree. The intent is to protect the bark of the tree against incidental contact by large construction equipment. The contractors shall comply with the requirements of this Ordinance regarding bark protection. FINAL DRAFT 23 March 1, 2006 g. Construction Methods: i. Boring: Boring of utilities under the critical root zone of a protected tree shall be required in those circumstances where it is not possible to trench around the critical root zone of the protected tree. When required, the bore shall be a minimum depth of forty -eight (48) inches. ii. Grade Change: If the Landscape Administrator approves the grade change within the critical root zone of a protected tree, the procedures noted in the City's standard detail sheet shall be followed. iii. Trenching: No trenching shall cross the critical root zone of any protected tree, unless approved in writing by the Landscape Administrator or exempted from the application of this Ordinance. Trenching within the critical root zone shall require the issuance of a tree permit. The placement of underground utility lines is encouraged to be located outside of the critical root zone of protected trees. Irrigation system lines shall be placed outside of the critical root zone, except the minimum number of single head supply lines required to irrigate within the critical root zone which are allowed within the critical root zone. Any such irrigation line shall be installed along a horizontal line that bisects the tree trunk, in the manner that has the least possible encroachment into the critical root zone, and that extends no further into the critical root zone as is necessary to provide proper irrigation. iv. Root Pruning: All roots two inches or larger in diameter which are exposed as a result of trenching or other excavation shall be cut off square with a sharp medium tooth saw and covered with pruning compound within two hours of initial exposure. 9.0 TREE PRUNING 9.1 OFFENSE: A person commits an offense if the person alters or significantly disfigures a protected tree by pruning without a permit, unless exempted by this Ordinance. 9.2 PERMIT REQUIREMENTS FOR PUBLIC UTILITIES: Unless pruning is requested by the owner of the tree or exempted from the provisions of this Ordinance, a public utility shall obtain a tree permit before beginning any pruning (regardless of whether the pruning will alter or significantly disfigure the tree). 9.3 PRUNING TECHNIQUE: When allowed, all pruning shall be conducted in accordance with universally accepted arborists' standards and the regulations contained in this Ordinance. FINAL DRAFT 24 March 1, 2006 9.4 REQUIRED PRUNING: The owner of all trees which are adjacent to and within all public R.O.W shall be responsible for the maintenance of such street trees. Owners shall maintain a minimum clearance of ten feet (10') above the traveled pavement or curb of a public street. Such owners shall promptly remove all dead, diseased or dangerous trees, or broken or decayed limbs which may constitute a threat or danger to the safety of the public. 9.5 TREE TOPPING: A person commits an offense if the person tops a tree without having a tree permit expressly permitting such activity approved by the Landscape Administrator, unless otherwise exempted by this Ordinance applies. If the Landscape Administrator determines that topping the tree is necessary because the tree has been severely damaged by storms or other causes, or is under utility wires or other obstructions, making other pruning practices impractical, the Landscape Administrator may issue a tree permit allowing topping of the tree. 9.6 GROUND LEVEL CUTS: Where protected tree removal is allowed by this Ordinance, but the root system of the tree to be removed is intertwined with the root system of any protected tree whose removal is prohibited by this Ordinance. In such instances, the tree shall be removed by flush cutting with the natural level of the surrounding ground. Where stump removal is also desired, stump grinding shall be allowed or, upon written approval by the Landscape Administrator, a trench may be cut between the two trees sufficient to cut the roots near the tree to be removed, thereby allowing removal of the remaining stump with minimal damage to the root system of the tree to be saved. 10.0 TREE PLANTING AND REMOVAL STANDARDS 10.1 ACCEPTABLE TREES: The Landscape Administrator shall maintain a list of trees acceptable for planting on public property or on private property to meet tree replacement requirements. Trees other than those listed as acceptable may only be planted as replacement trees only upon written approval of the Landscape Administrator. 10.2 STREET TREE SPACING: Any person planting a street tree shall comply with the requirements contained in this Ordinance and in accordance with recommendations of the Landscape Administrator. The spacing of street trees from the nearest intersecting curb shall be based upon the street typology designation. 10.3 STUMP REMOVALS: All stumps of street and park trees shall be removed below the surface of the ground so that the top of the stump shall not project above the surface of the ground, except that the City may maintain wilderness or naturalistic areas in which naturally occurring stumps may be permitted to extend above ground level. 10.4 PERMIT REQUIRED: A person, other than an agent of the City, must obtain a tree permit before the person may prune, treat, remove, damage, or destroy a street or park FINAL DRAFT 25 March 1, 2006 tree within the City regardless of whether it is a protected tree and regardless of whether such is significant enough to constitute alteration, unless otherwise permitted by the terms of this Ordinance. 10.5 OFFENSE: A person commits an offense if the person: a. plants any required replacement tree within an area such that the mature canopy of the tree will interfere with existing or proposed overhead utility lines; b. plants any required replacement tree or street tree within an area such that the mature critical root zone of the tree will interfere with existing or proposed underground public utility lines (including water lines, sewer lines, transmission lines or other utilities), or such that the installation and /or maintenance of such utility lines will, in reasonable probability, require activity in the mature critical root zone of such tree; C. plants a tree within an area such that the tree, when mature, can reasonably be expected to block or interfere with a designated sight triangle area (either vertically or horizontally), unless approved in writing in advance by the Administrative Official; d. plants a tree within ten feet (10') of an existing or proposed fire hydrant unless approved in writing by the Fire Department. 11.0 PENALTY FOR VIOLATION 11.1 CRIMINAL PENALTIES: a. Any person who: (1) violates Article 6 of this Ordinance by altering a protected tree without first obtaining a tree permit from the City, or by altering trees in violation of the permit, or (2) violates Article 7 of this Ordinance by failing to follow the tree replacement procedures shall be guilty of a misdemeanor and upon conviction shall be fined Two Hundred Dollars ($200.00) per diameter inch of the tree(s)altered, not to exceed Two Thousand Dollars ($2,000.00) per violation. The unlawful alteration of each protected tree shall be considered a separate incident and each incident subjects the violator to the maximum penalty set forth herein for each tree. A person is criminally responsible for a violation of this Ordinance if the person alters, or permits or causes to be altered, a protected tree without complying with the requirements of this Ordinance. b. A person who violates any provision of Article 8 or 9 of this Ordinance shall be guilty of a misdemeanor and upon conviction shall be fined an amount not to exceed $2,000. FINAL DRAFT 26 -11a rch 1, 2006 11.2 CIVIL PENALTIES: Any person who: (1) violates Section 6.5 of this Ordinance by altering a protected tree without first obtaining a tree permit from the City, or by altering a tree in violation of the permit, and (2) violates Article 8 of this Ordinance by failing to follow the tree replacement procedures, shall be assessed a civil penalty equal to Two Hundred Dollars ($200.00) per diameter inch of the tree(s) altered, not to exceed Two Thousand Dollars ($2,000.00) per incident. The alteration of each protected tree shall be considered a separate incident and each incident subjects the violator to the maximum civil penalty set forth herein for each tree. The civil penalties assessed shall not exceed two times the amount of the payment the person would be required to make into the Restoration Fund or other specifically dedicated fund as provided in Section 8.7. 11.3 PROCEDURES FOR ASSESSING CIVIL PENALTIES: a. The Landscape Administrator shall calculate the amount of the civil penalties as provided for in this Article. Before assessing any civil penalties as provided in this section, the Landscape Administrator shall send written notice to the person who violated this Ordinance by personal delivery or certified mail /return receipt requested. The notice shall contain: i. a statement of the violations of this Ordinance for which a civil penalty is being sought; ii. if possible, a statement of the amount of the civil penalties to be assessed; iii. a statement that the person may request an administrative hearing before the City manager to challenge the assessment of the civil penalty; iv. a statement that if an administrative hearing is not timely requested as provided in this section, or the trees replaced or payment made pursuant to Article 8, civil penalties will be assessed. b. A person may request an administrative hearing before the City manager by filing a request for a hearing with the City Manager within 15 days after the notice provided for in subsection (a) is delivered. Within ten (10) days of the receipt of the request, the City manager shall set a time and place for a hearing on the appeal which shall be not later than thirty (30) days from the date of receipt of the request. C. Not less than 10 days prior to the date on which the administrative hearing is set, the property owner shall be sent a notice of the hearing by personal delivery or certified mail /return receipt requested. The notice shall contain the date, time and place of the hearing and the information specified in subsections (a)(i) and (ii). FINAL DRAFT 27 March 1, 2006 d. After giving the property owner an opportunity to be heard, the City manager shall weigh all evidence presented and determine whether to assess civil penalties. If civil penalties are assessed, the City manager shall sign a written order setting forth the amount of the civil penalty. In determining the amount of the civil penalty, the City Manager shall take into consideration the cost of replacement of protected trees. e. A civil penalty under this section is final and binding and constitutes prima facie evidence of the penalty in any suit. The City Secretary shall file with the district clerk of the county in which the property is located, a certified copy of the order assessing the civil penalty stating the amount of the penalty. f. The City Attorney is authorized to file suit to enforce collection of a civil penalty assessed under this Article. 12.0 ENFORCEMENT 12.1 DEVELOPER'S AGREEMENT: The City shall not approve a developer's agreement unless the developer's agreement provides that all construction activities shall meet the requirements of this Ordinance, including any conditions placed by City Council at the time of approval of the Tree Conservation Analysis or Tree Conservation Plan. 12.2 BUILDING PERMIT: No building permit shall be issued unless the applicant signs an application or permit request which states that all construction activities shall meet the requirements of this Ordinance. The Building Official shall make available to the applicant upon request: a. a copy of the Tree Preservation Ordinance or a condensed summary of the relevant aspects pertaining to the type of permit requested; and b. tree protection sign(s) in such quantity as required by this Ordinance. 12.3 ACCEPTANCE OF IMPROVEMENTS AND ISSUANCE OF PERMITS: The City may refuse to accept any public improvements or issue any permits or certificates relating to the subject property until the applicant meets all requirements and pays all civil penalties and other monetary obligations assessed for violations of this Ordinance, provided, however, that acceptance of public improvements and issuance of permits may be authorized if, with the Administrative Official's approval, the person furnishes the City with a cash deposit or surety bond in a sufficient amount to satisfy all civil penalties and monetary obligations assessed and, if any obligation to plant replacement trees applies, to pay to the City the approximate amount of the cost to replace the trees, as provided in the current schedule established by the City. Neither the acceptance of public improvements nor the issuance of any permits or certificates shall constitute a waiver of any violation, a compromise or satisfaction of FINAL DRAFT 28 March 1, 2006 any fines, penalties, or other obligations, or otherwise prevent the City from enforcing the terms of this Ordinance. 12.4 CERTIFICATE OF OCCUPANCY: No Certificate of Occupancy ( "C.O. ") shall be issued until applicant meets all requirements and pays all civil penalties and other monetary obligations assessed for violations of this Ordinance, provided, and until all replacement trees required to be planted due to violations of this Ordinance by the applicant have been planted or appropriate payments have been made to the Reforestation Fund; provided, however, that a Certificate of Occupancy may be granted before all trees have been replaced if, with the Administrative Official's approval, the person furnishes the City with a cash deposit or surety bond in a sufficient amount to satisfy all civil penalties and monetary obligations assessed and, if any obligation to plant replacement trees applies, to pay to the City the approximate amount of the cost to replace the trees, as provided in the current schedule established by the City. 12.5 ILLUSTRATIVE NATURE OF TREE TECHNICAL MANUAL: The illustrative portions of the Tree Technical Manual, including the illustrations and appendices are for illustrative purposes only, and to the extent of any conflict between the terms of this Ordinance and other material in the manual, the terms of this Ordinance shall control, and reliance upon any illustrative material shall not be a defense in any action, whether civil or criminal, to enforce this Ordinance. 13.0 APPEALS AND VARIANCES 13.1 APPEALS: a. A person affected by a decision of the Administrative Official or the Landscape Administrator under this Ordinance may appeal to the Tree Board. Such appeal must be received in writing within ten (10) days after the decision has been rendered or post- marked date if the decision was sent in U.S. Mail to the property owner on record. The person shall file the appeal with the Administrative Official and file a copy with the Landscape Administrator and must describe the both the decision being appealed and the specific grounds on which the appeal is based, including references to relevant provisions in the ordinance on which such appeal is based. b. The Administrative Official shall then schedule a hearing of the appeal at the next available Tree Board meeting and transmit all the documents pertaining to the appeal to the Tree Board at a reasonable time prior to the meeting. The Tree Board shall hear the appeal to determine whether the decision of the Landscape Administrator was in accordance with all the provisions of this Ordinance. The decision of the Tree Board shall be final. No decision of the City Council can be appealed to the Tree Board. FINAL DRAFT 29 March 1, 2006 C. If the Tree Board affirms the decision of the Administrative Official or the Landscape Administrator, the applicant shall conform the application for approval of the concept, development, or site plan or plat to the requirements of this Ordinance within thirty days of the Board's decision. If the Tree Board overturns the decision of the Administrative Official or the Landscape Administrator, the development application or plat shall conform to the Board's decision. 13.2 VARIANCES: a. The City Council may authorize variances to any restriction set forth in this Ordinance following a recommendation from the Planning and Zoning Commission. A request for a variance to any provision in this Ordinance shall be accompanied by a Tree Conservation Analysis or Tree Conservation Plan as outlined in Article 6, or other documentation requested by the Landscape Administrator, and the following factors shall be considered in evaluating the variance request: 1. Whether a literal enforcement of the Ordinance will create an undue hardship or an unreasonable practical difficulty on the applicant; 2. Whether the situation causing the unnecessary hardship or practical difficulty is unique to the affected property and is not self - imposed; 3. Whether a reasonable accommodation or alternative solution can be made to accomplish the desired activity without the alteration of the tree; 4. Whether the variance will injure or be wholly compatible with the use and future or existing development of adjacent properties; 5. Whether the increased development costs caused by preserving the tree create an undue hardship on the development of the site; 6. Whether there is any identified adverse effect of the alteration or preservation on erosion, soil moisture retention, flow of surface water, and drainage systems; 7. Whether there is any substantial impact to the buffering of residential areas from the noise, glare, and visual effects of non - residential uses; 8. The costs versus the benefits of relocating required utility service infrastructure and easements based on preservation or alteration of protected trees; 9. Whether the proposed tree replacement procedures adequately mitigate the alteration of the tree; FINAL DRAFT 30 March 1, 2006 10. Whether the alteration adversely affects the public health, safety or welfare; and 11. Whether the granting of the variance will be in harmony with the spirit and purpose of this Ordinance to the greatest degree reasonably possible. b. A person requesting a variance from the provisions of this Ordinance shall do so in writing to the Administrative Official. All variance requests shall be accompanied by a completed application and non - refundable filing fee in the amount specified in the current fee schedule adopted by City Council. In absence of such a fee schedule, the filing fee shall be $250. C. The Administrative Official shall then schedule a hearing of the variance at the next available Planning and Zoning Commission meeting and transmit all the documents pertaining to the appeal to the Planning and Zoning Commission at a reasonable time prior to the meeting. The Planning and Zoning Commission shall hear the variance to determine whether it should be granted or denied, and make a recommendation to the City Council. After the Planning and Zoning Commission makes its recommendation, the decision was in accordance with all the provisions of this Ordinance. The Administrative Official shall then request that the City Manager schedule a hearing of the variance at the next available City Council meeting and transmit all the documents pertaining to the appeal to the City Council at a reasonable time prior to the meeting. The City Council shall hear the variance to determine whether it should be granted or denied, and the decision of the City Council shall be final 14.0 SEVERABILITY It is hereby declared to be the intention of the City Council that the phrases, clauses, sentences, paragraphs and sections of this Ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this Ordinance, since the same would have been enacted by the City Council without the incorporation in this Ordinance of any such unconstitutional phrase, clause, sentence, paragraph or section. 15.0 CONFLICTING ORDINANCES This Ordinance shall be and is hereby declared to be cumulative of all other ordinances of the City; and this Ordinance shall not operate to repeal or affect any of such other ordinances except insofar as the provisions thereof might be inconsistent or in conflict with the provisions of this Ordinance, in which event such conflicting provisions, if any, in such other ordinance or ordinances are hereby repealed except as follows. Specifically, Section 3.4 of Ordinance No. 585 -A, which provides that all developments which have not submitted final construction plans as of December 17, 1997 shall be subject to the FINAL DRAFT 31 March 1, 2006 requirements for tree protection and replacement specified in said Ordinance, is saved from repeal, so that it will continue to apply to projects in construction. Further, the first sentence in Section 3.5 c. of Ordinance No. 585 -A, which provides that all builders who have not submitted a request for a building permit as of December 17, 1997 are subject to the requirements of the Ordinance, is hereby saved from repeal. Said sections shall continue in full force and effect for such purpose. Further, the provisions of Ordinance No. 585 -B shall continue to be effective and applicable to those developments as described in and set forth in Section 18. Such provisions shall continue in full force and effect for such purpose. 16.0 SAVINGS CLAUSE All rights and remedies of the City of Southlake are expressly saved as to any and all violations of the provisions of any ordinances affecting the regulations for the preservation of trees that have accrued at the time of the effective date of this Ordinance; and, as to such accrued violations and all pending litigation, both civil and criminal, whether pending in court or not, under such ordinances, same shall not be affected by this Ordinance but may be prosecuted until final disposition by the courts. 17.0 PUBLICATION CLAUSE The City Secretary of the City of Southlake is hereby directed to publish the proposed ordinance or its caption and penalty together with a notice setting out the time and place for a public hearing thereon at least ten (10) days before the second reading of this Ordinance, and if this Ordinance provides for the imposition of any penalty, fine or forfeiture for any violation of any of its provisions, then the City Secretary shall additionally publish this Ordinance in the official City newspaper one time within ten (10) days after passage of this Ordinance, as required by section 3.13 of the Charter of the City of Southlake. 18.0 EFFECTIVE DATE This Ordinance shall be in full force and effect from and after its passage and publication as required by law, and it is so ordained. A person who has applied for approval of a preliminary plat, development plan, concept plan or site plan before the effective date of this Ordinance shall be required to comply with the provisions of Ordinance No. 585 -B and shall not be required to comply with the requirements imposed by this Ordinance unless one of the following occurs: 18.1 An application for preliminary plat approval for the project being developed was filed before September 1, 2005 and expires without a final plat being approved on or before the second anniversary of the date of approval of the preliminary plat; or if a final plat is approved on a portion of the property, the remaining property included within the plat expires without a final plat being approved on or before the first anniversary of the date of approval of a portion of the preliminary plat; FINAL DRAFT 32 March 1, 2006 18.2 The project being developed was initiated by a preliminary plat application filed on or after September 1, 2005, but no progress has been made on the project before the second anniversary of the date of the application. For purposes of this section, "progress" shall have the meaning described in Tex. Local Gov't Code Sec. 245.005 (Vernon 2005); or 18.3 the project is abandoned or significantly altered such that it is a new project. For purposes of this Ordinance, a project shall be deemed to be abandoned or altered in the event the applicant files an application for approval of another permit for the property for which a project is pending and the permit sought is for different uses or for a different configuration of the property. 18.4 Should the conditions in any subsection set forth above be met, the provisions of this Ordinance shall be controlling and shall apply to the applicant's project. PASSED AND APPROVED on the 1st reading the day of , 2006. MAYOR ATTEST: CITY SECRETARY PASSED AND APPROVED on the 2nd reading the day of , 2006. MAYOR ATTEST: CITY SECRETARY APPROVED AS TO FORM AND LEGALITY: CITY ATTORNEY FINAL DRAFT 33 March 1, 2006