Proposed Tree Preservation Ordinance by TWPC5Ja

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									Sec. 146-136. Tree Preservation.

       (a) Purpose. The purpose of this section is to preserve mature trees and natural
           areas, establish best management practices when trees must be removed,
           and utilize construction techniques to protect and maximize the long-term
           viability of the City of McKinney’s urban canopy by appropriate site planning
           and design. To accomplish this purpose, ten objectives are identified:

               1. Promote trees as an important and unique public resource necessary
                  to ensure a high quality of life and integral to maintaining McKinney’s
                  unique physical, historical, and aesthetic environment;

               2. By protecting and enhancing the urban canopy, attract new business
                  enterprises, entice employees who work remotely and can relocate to
                  any community, and protect and increase the values of residential and
                  commercial properties within the city;

               3. Mitigate air pollution, especially ozone and carbon, by increasing
                  McKinney’s urban forest via a tree planting program (reforestation) and
                  thus reducing temperatures and creating a natural carbon sink and
                  offset;

               4. Utilize passive solar design criteria to maximize the benefits of shade
                  and reduce energy costs by reducing energy demand;

               5. Improve water quality and the effectiveness of floodplains by protecting
                  trees that slow the speed of storm water, absorb water, and filter
                  pollutants from storm water run-off;

               6. Contribute to psychological wellness by providing peaceful, beautiful
                  settings to view and cool, shaded places to walk, bike, and play;

               7. Promote environmental stewardship through a design process that
                  prohibits clear-cutting and respects topography, protects trees, and
                  preserves streams;

               8. Encourage the preservation of trees associated with wildlife corridors
                  and the habitats supporting wildlife crucial to the local ecosystem;

               9. Promote the preservation of rare Heritage Trees;

               10. Maintain and enhance McKinney’s identity as a Tree City USA.

       (b) Definitions. For purposes of this section, the following definitions shall apply.

               1. 100-year fully developed floodplain means the area of inundation



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                from a storm event having a one percent chance of being equaled or
                exceeded in any given year, based upon fully developed watershed
                conditions.

            2. Building pad means the actual base area of a building and an area
               not to exceed six feet (6’) around the foundation necessary for
               construction and grade transitions.

            3. Caliper means the diameter measurement of a tree trunk. Caliper is
               measured either at 4.5 feet from the ground for existing trees or 12”
               from the ground for replacement trees.

            4. Canopy means the above ground portion of a plant community edge
               to edge;

            5. Clear-cutting means the indiscriminate removal of protected trees
               from a site or tract.

            6. Critically alter, critical alteration means uprooting or severing the main
               trunk of a tree or any act that causes or may reasonably be expected
               to cause a tree to die. This includes, but is not limited to: damage
               inflicted upon the root system of a tree by machinery, storage of
               materials, or the compaction of soil above the root system of a tree; a
               change in the natural grade above the root system of a tree; an
               application of herbicidal chemical or the misapplication of beneficial
               chemicals; excessive pruning; placement of non-permeable pavement
               over the root system of a tree; or trenching within the primary root
               zone. Additionally, a tree may be considered critically altered if more
               than 25 percent (25%) of the primary root zone is altered or disturbed
               at natural grade, or more than 25 percent (25%) of the canopy is
               removed.

            7. Cut/fill means areas where the natural ground level has been
               excavated (cut) or where fill material has been brought in.

            8. Determination of exemption means the Landscape Administrator or
               the Landscape Administrator’s designee determines no Tree Permit
               nor any tree preservation is required.

            9. Diameter at breast height (DBH) means tree trunk diameter
               measured in inches at a height of 4.5 feet above the ground. If a tree
               splits into multiple trunks below 4.5 feet, the trunk is measured at its
               most narrow point beneath the split.

            10. Drip line means whichever is greater:




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                a. A vertical line running through the outermost portion of the canopy
                   of a tree and extending to the ground; or

                b. If the tree is damaged or deformed, a circular area with a radius
                   equal to two feet per inch of caliper.

            11. Erosion hazard setback means the area along a drainage channel
                designated as an erosion setback under the City's Stormwater
                Ordinance.

            12. FEMA 100-year floodplain means the area designated as being
                within the 100-year floodplain on the Federal Emergency Management
                Agency Flood Insurance Rate Map (FIRM) as of the effective date of
                the ordinance from which this section is derived. The boundary may be
                verified and established through field surveys based on elevation. Any
                changes made by FEMA to the 100-year floodplain boundary after the
                effective date of the ordinance from which this section is derived due to
                filling of the floodplain, channelization, or other drainage improvements
                shall not reduce the area in which tree preservation, replacement or
                protection requirements apply.

            13. Grubbing means excavating or removing a significant part of the root
                system.

            14. Heritage Tree means any tree twenty-four inches (24”) caliper DBH or
                greater in size.

            15. Landscape administrator means the person appointed by the City
                Manager to administer City ordinances related to tree preservation or
                the Landscape Administrator’s designee.

            16. Municipal and public domain property means property in which title
                is held in the name of a governmental entity. Examples of this include
                City buildings, county property, public parks, U.S. Army Corps of
                Engineers property, state rights-of-way, libraries, fire stations, water
                tower sites or similar properties.

            17. Non-disturbance area means an area which will remain in its natural
                state and will be protected from all development and any activity
                associated with development while the site is under construction.

            18. Ornamental tree means any tree that will generally obtain a height of
                less than twenty feet (20’) as defined by Appendix A: Section A-2
                “Ornamental Tree List”.

            19. Owner means any person with an interest in land, or a lessee, agent,



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                employee, or other person acting on behalf of the owner.

            20. Plat means a plan of a subdivision or land creating building lots or
                tracts and showing all essential dimensions and other information
                essential to comply with the subdivision standards of the City and
                subject to approval by the Planning and Zoning Commission and/or
                City Council, and filed in the plat records of the county.

            21. Primary Root Zone means the area of undisturbed natural soil
                around a tree defined by a concentric circle with a radius equal to the
                distance from the trunk to the outermost portion of the drip line.

            22. Protected tree means an ornamental tree four inches (4”) DBH or
                greater, a Mesquite, Hackberry, Bois De Arc, or Honey Locust with a
                DBH of ten inches (10”) or greater and any other tree six inches (6”)
                DBH or greater. The caliper of a multi-trunk tree shall be determined by
                adding the total caliper of the largest trunk to one half (0.5) the caliper
                of each additional trunk. All heritage trees are protected trees.

            23. Protective fencing means and includes chain link fencing, orange
                vinyl construction fencing or other fencing at least four feet high and
                supported at a maximum of ten foot (10’) intervals by approved
                methods sufficient to keep the fence upright and in place. The fencing
                shall be of a highly visible material.

            24. Root zone, primary means the area of undisturbed natural soil
                around a tree defined by a concentric circle with a radius equal to the
                distance from the trunk to the outermost portion of the drip line plus a
                ten-feet buffer. (See section A-3 of appendix A to this chapter.) If the
                site and construction plan are such that the building envelope cannot fit
                outside the ten-foot buffer, the Landscape Administrator can reduce
                the distance as necessary to accommodate the building envelope but
                may not impact the drip zone itself.

            25. Selective tree trimming means removal of dead, injured or diseased
                limbs or the removal of living branches one inch (1”) caliper or more
                with less than twenty-five percent (25%) of the canopy removed.

            26. Single incident access means access within the primary root zone
                for the purposes of vehicular traffic necessary for routine utility
                maintenance, emergency restoration of utility service, or routine
                mowing operations.

            27. Tree means any self-supporting woody plant, which will attain a DBH
                of two inches or more and is 15 feet or taller with a canopy width of at
                least 15 feet. A tree may have one main stem or trunk or several stems



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                or trunks.

            28. Tree Board means a board appointed by the City Council to carry out
                the duties and responsibilities set forth in this section. The Planning
                and Zoning Commission shall constitute the Tree Board unless the City
                Council appoints a separate Tree Board.

            29. Tree disturbing activity means any activity that physically disturbs
                the tree in any way either at a ground level or above by grading around
                the root zone of the tree or altering the tree above ground level.

            30. Tree permit means a permit for work done to protected trees that
                would cause the critical alteration of one or more trees on a site.

            31. Tree preservation plan means a plan drawing that identifies the
                location, type, and size of all trees four inches (4”) DBH or greater and
                indicates all methods to be used to preserve the trees to remain by
                indicating tree preservation fencing and details and contains the
                information set forth in subsection (g)(1)(c)2 of this section.

            32. Tree Survey means a plan drawing that identifies the location of trees
                and contains the information set forth in subsection (e)(1)a2 of this
                section. The Tree Survey shall be prepared by a certified arborist, a
                licensed surveyor, a licensed landscape architect, or, if the subject
                property is less than one (1) acre in size and less than five (5) trees
                are involved, a person approved by the Landscape Administrator shall
                be permitted to prepare the tree survey.

            33. Tree topping means the severe cutting back of limbs to stubs larger
                than three (3”) inches in caliper within the tree's crown to such a
                degree so as to remove the normal canopy and disfigure the tree.

            34. USDA-NRCS lake tree preservation zone means the area within an
                elevation two feet above the emergency spillway elevation or the 100-
                year flood water surface elevation, whichever is greater, of any Natural
                Resources Conservation Service lake.

            35. Utility company, franchise utility, or public utility means a
                company or entity, or agent for a company or entity, that provides a
                utility service such as the provision of gas, electric, water, wastewater,
                cable, or telephone service within the City.

    (c) Applicability. This chapter shall be effective within the geographical limits of
        the city including any areas subsequently annexed by the city.

    (d) Exemptions. A Tree Permit shall not be required to remove a protected tree



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        nor shall mitigation or preservation be required provided that the protected
        tree:

            1. Endangers the public health, welfare or safety and immediate
               alteration is required; or

            2. Was damaged due to a tornado, storm, flood or other act of God, the
               tree disrupts a public utility service, and selective tree trimming is not
               sufficient to remove the hazard posed by the damaged tree; or

            3. Was temporarily planted for future sale as part of a commercial and/or
               retail nursery operation and is located on the property of a licensed
               plant or tree nursery; or

            4. Is located on a lot of record for an existing single family or duplex
               residential structure and is not a Heritage Tree nor located in a fully-
               developed floodplain, a FEMA 100-year flood plain, a NRCS lake tree
               preservation zone, or an erosion hazard setback zone.

    (e) Tree Protection.

            1. Clear-cutting. Clear-cutting is prohibited unless specifically authorized
               by a Tree Permit.

            2. Protected Trees. The following activities are prohibited within the limits
               of the primary root zone of any protected tree:

                a. Material storage. No materials intended for use in construction or
                   waste materials of any kind shall be placed within the limits of the
                   primary root zone of any protected tree.

                b. Equipment cleaning/liquid disposal. No cleaning or other liquids
                   shall be deposited or allowed to flow over land within the limits of
                   the primary root zone of a protected tree. This includes, but is not
                   limited to paint, oil, solvents, asphalt, concrete, mortar or similar
                   materials.

                c. Tree attachments. No signs, wires, paint, or other attachments
                   shall be attached to any protected tree.

                d. Construction equipment/vehicular traffic. No vehicular and/or
                   construction equipment traffic or parking shall take place within the
                   limits of the primary root zone of any protected tree other than on
                   existing street pavement. This restriction does not apply to single
                   incident access within the primary root zone for the purposes of
                   vehicular traffic necessary for routine utility maintenance,



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                     emergency restoration of utility service, or routine mowing
                     operations. No heavy equipment, including, but not limited to,
                     trucks, tractors, trailers, bulldozers, and bobcat tractors, shall be
                     allowed inside the drip-line of any protected tree on any
                     construction site without the specific approval of the Landscape
                     Administrator.

                e. Grade changes. No grade changes shall be allowed within the
                   limits of the primary root zone of any protected tree unless the
                   topography of the site leaves no alternative and both the
                   Landscape Administrator and the City Engineer approve adequate
                   construction methods to do so.

                f. Impervious paving near protected trees. Unless a health, safety
                   and welfare issue arises due to access and circulation
                   requirements, no paving with asphalt, concrete or other impervious
                   materials may be placed within seventy-five percent (75%) of the
                   limits of the primary root zone of a protected tree except as
                   otherwise allowed in this section.

                g. Selective tree trimming. No trimming of trees may occur within the
                   tree preservation fencing.

                h. Pumping of water.        No water may be pumped within tree
                   preservation areas.

                i.   Ground level cuts. Tree trunks must be cut at ground level where
                     removal of a tree may damage root systems of an adjacent tree.
                     Stump grinding in such situations is allowed with the approval of the
                     Landscape Administrator.

                j.   Removal of underbrush and mowing. Removal of underbrush and
                     mowing, not including grubbing under drip lines of protected trees,
                     shall not require a Tree Permit provided such mowing or clearing is
                     accomplished by hand or by mechanical mowers with turf tires.

            3. Grubbing under drip lines. The Landscape Administrator shall issue a
               Tree Permit allowing the grubbing of brush located within or under the
               drip lines of protected trees only if done by hand with no machinery in
               operation.

            4. Trenching. All trenching shall be designed to avoid trenching across
               the primary root zone of any tree, unless otherwise approved by the
               Landscape Administrator. Mechanical trenching within the primary root
               zone shall not be allowed. Trenching by hand shall not critically alter
               the root system.



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            5. Heritage trees. No tree 24-inches (24”) DBH or greater may be
               removed or critically altered. As part of a Tree Permit application, the
               Landscape Administrator may approve the removal of a Heritage tree
               based on the health of the tree. However, the Landscape Administrator
               shall consider the long-term viability of a tree based on factors
               including, but not limited to, the presence and type of any disease, the
               shape of the tree, and the amount of dead limbs and/or trunks. If the
               Landscape Administrator denies the request to remove a Heritage tree,
               the owner/applicant may appeal the decision to the Director of
               Planning. If the Director of Planning also confirms the Landscape
               Administrator’s denial, the owner/applicant may request a waiver from
               the Tree Board.

            6. Perimeter tree zone. If a protected tree exists on the site to be
               developed within fifteen feet (15’) of the boundary line of an existing
               single family residential development (platted single family lot), a
               perimeter tree zone of fifteen feet (15’) or the drip line of the tree,
               whichever is greater, shall be provided. No protected tree within the
               perimeter tree zone may be critically altered. Proposed lots with a
               perimeter tree zone shall be required to have a minimum setback that
               matches the protected tree zone unless the setback required under the
               zoning of the property is greater.

            7. Floodplain, Erosion Hazard Setback, and NRCS Lakes. Protected
               trees within the 100-year fully-developed floodplain, FEMA 100-year
               floodplain, erosion hazard setback, or USDA-NRCS lakes tree
               preservation zone (Natural Resource Conservation Service lakes, U.S.
               Department of Agriculture), including protected trees within a buffer
               zone of fifteen feet (15’) adjacent to each of these areas, shall not be
               critically altered. If, however, removal of protected trees becomes
               necessary for flood considerations or preservation of valuable habitat
               that would otherwise be lost because of site constrictions, the
               Landscape Administrator and the City Engineer may permit removal of
               up to but not exceeding 20% of the protected trees in these areas.

            8. Streets, Rights-of-way, Utility Easements, Creeks and Streams. The
               construction, routine maintenance, and/or replacement of any streets,
               water and sewer lines, drainage and storm sewer, and other utilities
               shall be subject to tree preservation and mitigation requirements
               specified herein, unless the City Engineer determines no other
               alignment is possible.      Streets and utilities proposed for new
               developments must be located in such a manner so that the largest
               amounts of trees are preserved. Construction and stabilization
               measures to creeks and streams as required by the City Engineer shall
               be subject to tree preservation and mitigation requirements specified



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                herein, unless the City Engineer determines that no other design could
                be used to save protected trees.

            9. Development or redevelopment of golf courses and hike and bike trails
               shall be designed in a manner to minimize tree loss. Alignments for
               trails and golf fairways and greens will be reviewed and approved by
               the Landscape Administrator as well as Engineering and Planning.

    (f) Tree Permit application, submittal, and review. No person, directly or
        indirectly, shall cut down, destroy, remove, move, critically alter any protected
        tree, or conduct any land disturbing activities without first obtaining a tree
        permit, unless otherwise specified in this chapter.

            1. Application. An application for a Tree Permit shall be accompanied by
               a Tree Survey, a Tree Preservation Plan, and an application fee. (At
               the time a Tree Permit application is submitted, an applicant shall pay
               the fee as specified in Appendix A of the Code of Ordinances, which
               may be amended from time to time by Ordinance.)

            2. Term. The Tree Permit shall be valid for the same period as the site
               plan, development permit, building permit, or one year, which ever is
               less.

            3. Permitee. Tree permits are neither transferable nor assignable. The
               permitee may subcontract the work to be performed under a Tree
               Permit provided that the holder of the Tree Permit shall be and remain
               responsible for the performance of the work under the Tree Permit and
               provide all insurance and financial security as required.

            4. Building permit or development permit.          No Building Permit or
               Development Permit shall be issued unless:

                a. A Tree Permit has been issued; or

                b. A determination of exemption has been made by the Landscape
                   Administrator or their designee.

            5. For Purposes of Demolition. The Landscape Administrator may issue
               a Tree Permit to allow removal of a protected tree if necessary to allow
               demolition of a structure. The removal of any protected trees for
               purposes of demolition must be mitigated as required in this chapter.

            6. For Purposes of Removing Diseased trees. Upon issuance of a Tree
               Permit, a diseased tree may be removed to reduce the chances of
               spreading the disease to adjacent healthy trees. If the Landscape
               Administrator issues a Tree Permit for such purpose, the trees covered



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                by the Tree Permit shall be exempt from the tree replacement and
                protection requirements of this Chapter.

            7. Sites Without Protected Trees. The requirements set forth in this
               chapter for sites that do not contain any protected trees, including the
               submittal of a Tree Survey and a Tree Preservation Plan, are not
               applicable once the owner submits a Tree Permit Application and an
               affidavit stating there are no trees on the site and same is confirmed by
               the Landscape Administrator.

(g) Tree Survey. The Tree Survey shall be prepared by a certified arborist, a
    licensed surveyor, a licensed Landscape Architect, or, if the subject property is
    less than one (1) acre in size and contains less than five (5) protected trees, the
    owner or his designee may prepare the Tree Survey. The survey shall contain
    the following information:

            1. The applicant’s name, address, and phone number;

            2. The name and phone number of the certified arborist, licensed
               surveyor, or landscape architect that prepared the survey;

            3. The location map;

            4. The property lines, with dimensions;

            5. The engineering scale (not larger than one inch equals 200 feet or the
               same scale as the site plan or plat);

            6. The location of all rights-of-way, and easements (existing and
               proposed);

            7. The location of all existing built structures and objects on site and all
               proposed improvements;

            8. The adjacent land uses, and zoning of adjacent properties;

            9. The creeks, lakes, and other water features (existing and proposed);

            10. Existing topography on site at two feet (2’) intervals;

            11. The location of a 100-year, fully-developed floodplain, a FEMA 100-
                year floodplain, a USDA-NRCS lake tree preservation zone, and/or an
                erosion hazard setback easement;

            12. Any proposed non-disturbance area;




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            13. The location of all protected trees on site except those trees located in
                a non-disturbance area which do not have canopies overhanging a
                construction zone;

            14. A six-column table indicating, for each tree located in the survey, the
                identity number, the species (Common Name and Latin Name), the
                DBH, the general health of the tree; whether the tree will stay or be
                removed, and whether the tree will be used for credit; and

            15. Trees shall be tagged in the field with identifying numbers that
                correspond to the numbers in the table described above. Tree tags
                shall not use nails or other methods that harm the exterior bark or are
                invasive to the tree itself such as tree paint.

(h) Tree Preservation Plan. The Tree Preservation Plan shall be prepared by a
    certified arborist, a licensed surveyor, or a licensed Landscape Architect, or, if
    the subject property is less than one (1) acre in size and less than five (5)
    protected trees are involved, the owner or his designee may prepare the Tree
    Preservation Plan. The Tree Preservation Plan shall contain all of the information
    required for the Tree Survey (Section (g)(1)-(15) above) in addition to the
    following:

            1. The reason why each protected tree designated for removal must be
               removed;

            2. The tree protection measures, location, and type with a detail of the
               tree protection being used (see Section (i), below); and

            3. Location, species, and size for each proposed replacement tree.

(i) Protection Measures During Construction.           The following tree protection
    measures shall be indicated on all construction plans as well as the Tree
    Preservation Plan, utilized until construction is completed, and inspected by the
    Landscape Administrator prior to commencement of any site work.

            1. Protective Fence. Prior to construction, the contractor or subcontractor
               shall construct and maintain, for each protected tree on a construction
               site, a protective fence around the tree at the drip line and, where
               necessary, bark protection (see section A-3 of appendix A to this
               chapter);

            2. Boring. Boring of utilities under protected trees shall be required in
               those circumstances where it is not possible to trench around the
               primary root zone of the tree. When required, the length of the bore
               shall be the width of the primary root zone at a minimum and shall be a
               minimum depth of 48 inches (48”).



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            3. Irrigation and Utility Lines. The placement of irrigation systems and
               underground utility lines such as electric, phone, gas, etc., shall be
               located outside of the primary root zone of trees. The minimum
               required single head supply line for irrigation systems is allowed to
               extend into the primary root zone perpendicular to the tree trunk and in
               the manner that has the least possible encroachment into the primary
               root zone.

            4. Root Pruning. All roots two (2) inches or larger in caliper, which are
               exposed as a result of trenching or other excavation, shall be cut off
               square.

(j) Tree Replacement. If development under a proposed site plan or plat requires
    the removal of a protected tree or trees, the owner or his designee must meet the
    tree replacement requirements outlined in this section prior to receiving a
    Certificate of Occupancy. Unless specifically exempted, the following tree
    replacement requirements shall also apply to any person who critically alters a
    protected tree. Trees required to meet the landscape section of the Zoning
    Ordinance shall not also be used or counted as replacement trees to meet the
    tree replacement requirements of this section.

            1. Generally. Any protected tree critically altered or removed as part of
               an approved development shall be replaced with a tree(s) as approved
               on the Tree Preservation Plan.

            2. Selection and planting of all replacement trees shall comply with
               section 146-135 of the City Zoning Ordinance.

            3. Size and number. A sufficient number of trees shall be planted to
               equal or exceed the caliper inches measured at DBH of each protected
               tree critically altered unless the protected trees were removed per a
               city-approved trail or golf course. For any protected trees that must be
               removed as indicated by a city-approved alignment for a golf course or
               hike and bike trails, the owner will be responsible for fifty percent
               (50%) of the normal requirements for mitigation and preservation. For
               any Heritage Trees, the owner must replace at a three to one (300%)
               ratio.

            4. Each replacement tree shall be measured in caliper inches twelve
               inches (12”) above the ground and be a minimum of three-inch (3”)
               caliper inches and seven feet (7’) in height when planted, or six inch
               (6”) caliper and fifteen feet (15’) in height when planted, as applicable.
               The following formula shall be used to calculate the number of trees to
               be replaced:




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                                                              Replacement       Minimum
                                                                   ratio        caliper of
                         Caliper of critically altered tree
                                                              (in inches of   replacement
                                                                 caliper)          tree
                      Protected tree(s) within the FEMA
Existing single       100-year floodplain, 100-year fully
 family and           developed floodplain, NRCS lake
    duplex          tree preservation zone, and Erosion           1:1                3"
 residential                  Hazard Setback
development
                              >24" in all locations
                         4” – 12” Ornamental Tree(s)
  All other                                                       1:1                3"
                                6" - 12" Tree(s)
development
                                 12.1" – 23.9”                    2:1                6"
   Heritage
                                       >24”                       3:1                6”
    Tree

            5. Credits. When any tree (other than a Hackberry, Honey Locust, Bois
               D’Arc, or Mesquite less than 10 inches DBH) is preserved that would
               otherwise have been exempt, credits toward the total inches of caliper
               of replacement trees required for the development site will be given at
               a one to one (1:1) ratio. Credits shall not reduce the minimum size of
               any replacement tree planted and only be given for those trees on the
               property of development.

            6. Location. Except for City Parks and Recreation development projects,
               each replacement tree shall be planted on the same property as the
               tree that was critically altered or removed. City Parks and Recreation
               Department projects may plant replacement trees on other city-owned
               property as approved by the Landscape Administrator and the Director
               of the Parks and Recreation Department. For all other construction
               projects, if the Landscape Administrator deems that the replacement
               tree or trees cannot be planted on the same property in accordance
               with accepted arborists' standards, the Landscape Administrator may
               require payment to the Tree Fund. (See Section (k), below.) The
               amount of payment required for each replacement tree shall be
               calculated based on the average cost of the tree to be replaced added
               to the average cost of planting any replacement tree(s).

            7. Responsibility to replace trees. The requirement to replace trees shall
               apply to the owner of the property and/or his designee.

            8. Establishment of Replacement Trees. A replacement tree that does
               not survive for two years after planting must be replaced by the owner
               of the property.


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            9. Scheduling of replacement trees. Replacement trees shall be planted
               within ninety (90) days of critical alteration or removal unless
               replacement is part of an approved Tree Permit with a specified time
               frame for replanting.

(k)     Tree Fund. If an owner cannot replace trees on the same property where
      protected trees were critically altered or removed, the applicant shall make a
      payment into the Tree Fund. Furthermore, the following shall apply:

            1. For an owner who must make a payment to the Tree Fund in lieu of
               planting replacement trees, a Tree Permit shall not be issued until the
               payment into the Tree Fund has occurred.

            2. Tree funds shall be expended only for purchasing, planting, growing
               and/or irrigating trees as per the City's reforestation plan. Tree funds
               shall not be used for routine maintenance.

            3. Funds paid into the Tree Fund shall be spent within five (5) years of
               payment or shall be returned to the payer.

            4. The Landscape Administrator shall submit annual reports to the Tree
               Board and City Council of the deposits and disbursements from the
               Tree Fund.

(l) Review of application.

            1. Tree Permit applications. The Landscape Administrator shall grant a
               Tree Permit provided the requirements of this section are met.

            2. Grievances. An applicant aggrieved by a decision of the Landscape
               Administrator may appeal the decision to the Director of Planning.

            3. Waivers. An application for a waiver to the terms of the tree
               preservation section may be made. The application for a waiver shall
               be reviewed by the Tree Board, and a recommendation for approval or
               denial shall be forwarded to the City Council. The decision of the City
               Council shall be final. A public hearing shall be required for both the
               Tree Board and City Council meetings. The Tree Board and City
               Council shall consider the following factors in determining whether a
               waiver should be granted:

                a. The recommendation of the Landscape Administrator;

                b. The extent to which the application meets other standards of this
                   section;



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                c. The positive or negative impact of the proposed project on
                   surrounding properties; and

                d. The extent to which the waiver would be mitigated by other
                   proposed or existing landscaping.

(m)Scope and administration.

        1. Conflicts with other ordinances. All applicable provisions of the
           comprehensive Zoning Ordinance, Subdivision Ordinance, Stormwater
           Ordinance, building codes and other ordinances, as they exist or as
           amended, shall apply. Notwithstanding the foregoing, nothing herein shall
           confer any vested rights on any property subject to this ordinance. Where
           the provisions of other ordinances conflict with this section, this section
           shall control.

        2. Administrative official. Provisions of this section shall be administered by
           the Landscape Administrator, Planning Director, or designee.


(n) Enforcement.

        1. Acceptance of improvements. The City may refuse to accept any public
           improvements until the owner or his designee pays all penalties for any
           violations of this section; provided, however, that acceptance of public
           improvements shall be authorized before all trees shall be replaced if, with
           the Landscape Administrator's approval, the Person furnishes the City with
           a cash deposit or Surety Bond in the approximate amount of the cost to
           replace the tree.

        2. Certificate of occupancy. No Certificate of Occupancy (CO) shall be
           issued until any and all penalties for violations of this section have been
           paid to the City provided, however, that a CO may be granted before all
           protected trees have been replaced if, with the Landscape Administrator's
           approval, the person furnishes the City with a cash deposit or Surety Bond
           in the approximate amount of the cost to replace the tree.

(o) Violations.

        1. A person commits an offense if the person critically alters a protected tree
           not meeting an exception listed in this section without first obtaining a Tree
           Permit from the City.

        2. A person commits an offense if the person critically alters a tree in
           violation of a Tree Permit.



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        3. Under a Tree Permit for a construction site, the Landscape Administrator
           shall issue a stop work order regarding any activity that is not in
           compliance with this section. Upon compliance with this section, the
           Landscape Administrator shall authorize commencement of the work
           stopped by said work order.

        4. Notwithstanding any other provision in this section, any violation by any
           person of any provision of this section that constitutes an immediate
           danger or threat to any protected tree or the health, safety, and welfare of
           the public may be enjoined in a suit brought by the city for such purpose.

        5. In addition to any other remedies or penalties contained in this section, the
           city may enforce the provisions of this section pursuant to the applicable
           provisions of V.T.C.A. Local Government Code Ch. 54, which chapter
           provides for the enforcement of municipal ordinances.

        6. Any person who violates subsection (n)(1) of this section by critically
           altering a protected tree without first obtaining a tree permit from the City,
           or subsection (n)(2) of this section by critically altering a tree in violation of
           the permit, or subsection (j) of this section by failing to follow the tree
           replacement procedures, shall be guilty of a misdemeanor and upon
           conviction shall be fined $100.00 per caliper inch of the tree critically
           altered, not to exceed $2,000 per offense. The unlawful critical alteration
           of each protected tree or trees shall be considered a separate offense and
           each offense shall subject the violator to the maximum penalty set forth
           herein for each protected tree.

        7. Any person, firm, corporation, agent or employee thereof who violates any
           provisions of this section other than those listed above, shall be guilty of a
           misdemeanor and upon conviction hereof shall be subject to a fine not to
           exceed $2000.00. The unlawful critical alteration of each protected tree or
           trees shall be considered a separate offense and each offense subjects
           the violator to the maximum penalty set forth herein for each protected
           tree.

        8. Allegation and evidence of a culpable mental state is not required for the
           proof of an offense defined by this section.




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