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HomeMy WebLinkAbout17. 17-106 FEBRUARY 28, 2017 MARCH 14, 2017 17-83 17-106 ORDINANCE FIRST READING SECOND READING (CARRIED 7-0 LOST LAID OVER WITHDRAWN ) PURPOSE: REPEAL AND RECREATE CHAPTER 26 TREES AND VEGETATION OF THE CITY OF OSHKOSH MUNICIPAL CODE (ADVISORY PARKS BOARD RECOMMENDS APPROVAL) INITIATED BY: PARKS DEPARTMENT A GENERAL ORDINANCE OF THE CITY OF OSHKOSH REPEALING AND RECREATING CHAPTER 26 OF THE OSHKOSH MUNICIPAL CODE PERTAINING TO TREES AND VEGETATION TO REGULATE, FINANCE AND CONTROL THE PLANTING, REMOVAL, MAINTENANCE, AND PROTECTION OF TREES AND SHRUBS UPON OR IN ALL PUBLIC AREAS OF THE CITY IN ORDER TO PROMOTE AND ENHANCE THE AESTHETICS AND GENERAL WELFARE OF THE CITY; PREVENT DAMAGE TO PUBLIC PROPERTY AND ASSETS; PROTECT TREES AND SHRUBS IN PUBLIC AREAS FROM UNSAFE PLANTNG, REMOVAL, MAINTENANCE AND PROTECTION PRACTICES; PROTECT TREES AND SHRUBS FROM THE DAMAGING EFFECTS OF CONSTRUCTION AND GUARD ALL TREES AND SHRUBS WITHIN THE CITY AGAINST THE SPREAD OF DISEASE, INSECTS OR PESTS THAT MAY THREATEN THE HEALTH AND VITALITY OF THE URBAN FOREST. The Common Council of the City of Oshkosh do ordain as follows: SECTION 1. That Chapter 26 of the Oshkosh Municipal Code pertaining to Trees and Vegetation is hereby revised to read as follows: See Attachment "A" SECTION 2. This ordinance shall be in full force and effect from and after its passage and publication. FEBRUARY 28, 2017 MARCH 14, 2017 17-83 17-106 ORDINANCE FIRST READING SECOND READING CONT'D SECTION 3. Publication Notice. Please take notice that the City of Oshkosh enacted ordinance #17-106 REPEAL AND RECREATE CHAPTER 26 TREES AND VEGETATION OF THE CITY OF OSHKOSH MUNICIPAL CODE (A GENERAL ORDINANCE OF THE CITY OF OSHKOSH REPEALING AND RECREATING CHAPTER 26 OF THE OSHKOSH MUNICIPAL CODE PERTAINING TO TREES AND VEGETATION TO REGULATE, FINANCE AND CONTROL THE PLANTING, REMOVAL, MAINTENANCE, AND PROTECTION OF TREES AND SHRUBS UPON OR IN ALL PUBLIC AREAS OF THE CITY IN ORDER TO PROMOTE AND ENHANCE THE AESTHETICS AND GENERAL WELFARE OF THE CITY; PREVENT DAMAGE TO PUBLIC PROPERTY AND ASSETS; PROTECT TREES AND SHRUBS IN PUBLIC AREAS FROM UNSAFE PLANTING, REMOVAL, MAINTENANCE AND PROTECTION PRACTICES; PROTECT TREES AND SHRUBS FROM THE DAMAGING EFFECTS OF CONSTRUCTION AND GUARD ALL TREES AND SHRUBS WITHIN THE CITY AGAINST THE SPREAD OF DISEASE, INSECTS OR PESTS THAT MAY THREATEN THE HEALTH AND VITALITY OF THE URBAN FOREST on March 14, 2017. The ordinance repeals and recreates Chapter 26 of the Municipal Code pertaining to trees and vegetation. The ordinance updates the Municipal Code to reflect current and future issues that may arise and affect the management of forestry and vegetation issues within the community. The full text of the ordinance may be obtained at the Office of the City Clerk, 215 Church Avenue and through the City's website at www.ci.oshkosh.wi.us. Clerk's phone: 920-236-5011. TO: Honorable Mayor and Members of the Common Council FROM: Bill Sturm, Landscape Operations Manager/City Forester DATE: February 22, 2017 RE: Approve Revisions to Chapter 26, Trees and Vegetation, of the City of Oshkosh Municipal Code BACKGROUND A revision of the City of Oshkosh Municipal Code Chapter 26, Trees and Vegetation, has been provided for Common Council consideration and approval. The current code does not adequately address issues specific to Emerald Ash Borer and/or other similar pests and diseases that may threaten the health and vitality of the urban forest in the future nor does it provide a means for staff to adequately manage other community forestry issues that may influence the safety of the general public. ANALYSIS Research of similar policies and municipal codes has been conducted to develop a document that addresses current and future issues that may arise and affect the management of forestry and vegetation issues within the community. Items from the current municipal code were also incorporated that have proven useful in maintaining a safe and sustainable urban forest environment within the community. FISCAL IMPACT There is no direct fiscal impact related to the Chapter 26 update. RECOMMENDATION Staff and the Advisory Parks Board recommend approval of the revisions to Chapter 26 of the City of Oshkosh Municipal Code. Respectfully Sub itted, Vv !. Bill Sturm Landscape Operations Manager/City Forester Approved: Mark A. Rohloff City Manager City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 920.236.5000 http://www.ci.oshkosh.wi.us Attachment A CHAPTER 26 TREES AND VEGETATION 26-1 Intent and Purpose 26-2 Definitions 26-3 Standards and Specifications 26-4 City Forester 26-5 Public Nuisance, Declaration and Abatement 26-6 Prohibited Acts Regarding Public Trees and Shrubs 26-7 Planting, Removal, Maintenance, and Protection of Public Trees and Shrubs 26-8 Relocation/Shut off of Electrical Service Wires for Tree Work 26-9 Tree Protection during Construction on Public Property 26-10 Home Moving Permits 26-11 Permits to Public Utilities 26-12 Appeal from Order of the City Forester 26-13 Penalties 26-14 Severability 26-1 INTENT AND PURPOSE. Having determined that a well- managed urban forest provides many benefits to the city, its residents and visitors; it is hereby declared to be the policy of the City of Oshkosh. Wisconsin, to regulate, finance and control the planting, removal, maintenance, and protection of trees and shrubs upon or in all public areas of the city in order to: (a) Promote and enhance the aesthetics and general welfare of the city. (b) Minimize dangerous conditions which may result in injury to persons using the public areas of the city. (c) Minimize damage to any public sewer, water main, street, sidewalk or other public property. (d) Promote desirable and safe planting, removal, maintenance and protection practices for trees and shrubs in public areas. (e) Minimize damaging effects of construction, alteration or repair of utility facilities and other improvements in any public area on trees and shrubs. (f) Minimize the spread of disease, insects, or pests to trees and shrubs, both public and private, within the city. 26-2 DEFINITIONS (1) "Clear -vision triangle" shall mean a triangle shaped zone formed by the existing or proposed curb lines of two or more intersecting streets, roads or alleys and a third line connecting said curb lines at a distance of thirty (30) feet in each direction from the point of curb line intersection, in order to provide vehicular traffic an unobstructed view of cross traffic at intersection. Attachment A (2) "Maintenance and protection" shall include all operations of trimming, pruning, spraying, injecting, fertilizing, treating, bracing, cabling and cutting of any tree or shrub above or below ground. (3) "Permit" shall mean written permission from the City Forester to perform maintenance and protection on any public tree or shrub, or do construction (as defined in section 26- 07 in the vicinity of any public tree or shrub. Any permit may include specifications which shall be complied with, and any special provisions applicable to the purposes of the permit. (4) "Right -of -Way" shall include all public streets, roads, boulevards, median strips, roundabouts, alleys, and sidewalks. (5) "Public Property" shall include all rights-of-way, parks, and other lands owned, controlled, or leased by the city. (6) "Public nuisance" shall mean any tree or shrub or part thereof which by reason of its condition and location has been declared to be a public nuisance under Section 26-05 of this Ordinance. (7) "Tree" shall mean a woody plant usually with a single stem un -branched at the base, reaching a height of twelve feet or more. (8) "Shrub" shall mean a woody plant usually with multiple stems branched at or near the base, reaching a height of less than twelve feet. (9) "Public trees and shrubs" shall mean any tree or shrub as herein defined, presently or hereafter planted in or upon any public property. (10) "Street tree" shall mean any public tree presently of hereafter located in the public right-of-way between the curb and public sidewalk, or between the curbs of a median strip, or equivalent location with respect to future curb, sidewalk or median strips where such curbs or sidewalk are not yet installed. (11) "Topping", also known as heading, hat racking, dehorning or rounding over shall mean the cutting of large diameter branches at a point between lateral shoots thereby leaving stubs, and resulting in substantial size reduction and destruction of the natural form and shape of a mature tree. 26-3 STANDARDS AND SPECIFICATIONS The most recent versions of the following documents, each in its entirety and on file in the City Forester's office, are hereby adopted and a made a part of this Ordinance upon passage. Attachment A (a) City of Oshkosh Forestry Specifications for Construction on Public Lands (b) ANSI A300 "American National Standard for Tree Care Operations -Tree, Shrub and Other Woody Plant Maintenance -Standard Practices" (c) ANSI Z60.1 "American Standard for Nursery Stock" 26-4 CITY FORESTER (1) Powers and Duties. The City Forester, subject to the direction and supervision of the Director of Parks, shall have the following general powers and duties: (a) To direct, manage, supervise, and control the planting, removal, trimming, maintenance, and protection of all trees and shrubs in or upon all public areas of the city; to supervise city personnel and private contractors in the planting, removal, trimming, maintenance, and protection of said trees and shrubs. (b) To cause the provisions of this ordinance to be enforced. (c) To guard all trees and shrubs within the city against the spread of plant diseases, insects or pests; to minimize conditions which may endanger the life, health, or safety of persons or property. (d) To use appropriate means of communication to inform the public concerning the forestry program and tree and shrub care. (2) Authority to Preserve and Remove Public Trees and Shrubs. The City Forester shall have the authority to plant, remove, maintain, and protect all public trees and shrubs or cause such work to be done as may be necessary to preserve the beauty of public areas, and to protect life and property. (3) Interference Prohibited. No person shall interfere with the City Forester or his/her authorized representative while engaged in the execution or enforcement of this Ordinance. 26-5 PUBLIC NUISANCE, DECLARATION AND ABATEMENT (1) The Common Council hereby declares any of the following to be a public nuisance and therefore subject to abatement pursuant to subsection (2) of this section: (a) Any tree or shrub or part thereof located upon any public or private property except in any area zoned conservancy, is infected with an infectious plant disease, is infested with injurious insects or pests, is injurious to public improvements, is dead or cannot substantially support foliage, or endangers the life, health or safety of persons or property. (b) Dutch Elm Disease, defined as follows: Attachment A L Any dead elm tree or part thereof infected with Dutch Elm Disease fungus Ceratocystis ulmi (Buisman), or which harbors any of the elm bark beetles Scolytus multistriatus (Eichh) or Hylurgopinus rufipes (Marsh). ii. Any dead elm tree or part thereof, including logs, branches, stumps, firewood, or other elm material not buried, burned, or from which the bark has not been removed. (c) Oak Wilt Disease, defined as follows: i. Any living or standing tree or part thereof in the red oak group such as red oak, pin oak, northern pin oak, scarlet oak and black oak colonized to any degree with the oak wilt fungus, Ceratocystis fagacearum. ii. Any living or standing tree in the white oak group such as white oak, bur oak and bicolor oak colonized to any degree by the oak wilt fungus that poses a threat of transmission of the oak wilt fungus to other trees of the same species through interconnected root systems. iii. Any parts of colonized oaks that do not have bark removed, including logs, branches, stumps and firewood. (d) Ash Borer defined as follows: i. Any living or standing tree or part thereof in the ash group such as white ash, green ash, black ash or blue ash colonized to any degree with the Emerald Ash Borer, Ash Bark Beetle, Flatheaded Appletree Borer, Clearwing Ash Borer or Red-headed Ash Borer. ii. Public nuisances prohibited. No person shall permit any public nuisance as defined in subsection (1) of this section to remain in or upon any premises owned or leased by that person within the city. (2) Abatement of Public Nuisances. (a) Public Areas. Whenever the City Forester shall find on examination that a Public Tree as herein defined exists upon any public area, he/she shall immediately cause such nuisance tree, shrub, or part thereof to be treated, removed, or otherwise abated in such a manner as to destroy or prevent the spread or continuance of the nuisance. The manner in which the nuisance shall be abated shall be determined by the City Forester. (b) Private Premises. If the City Forester shall determine with reasonable certainty upon inspection or examination that any nuisance tree or shrub as herein defined exists upon private premises within the city, he/she shall notify the owner of such premises in writing that said nuisance tree or shrub must be treated, trimmed or removed. Said written notice shall specify the nature and exact location of the nuisance, the manner in which the nuisance shall be abated, and the time limit in Attachment A which the nuisance shall be abated which shall not be less than fifteen (15) days after the issuance of said notice unless the City Forester shall determine that immediate action is necessary for the public safety. (c) Any tree, shrub or parts thereof growing upon private property but overhanging or interfering with the use of any street, park or public space of the City, that is in the opinion of the City Forester endangers the life, health, safety, or property of the public, is hereby declared a public nuisance. Abatement of such public nuisance shall be accomplished according to the provisions of Article IV of Chapter 17. 26-6 PROHIBITED ACTS REGARDING PUBLIC TREES AND SHRUBS (1) Injury to Public Trees and Shrubs Prohibited. No person shall, without written permission from the City Forester, do or cause to be done any of the following: (a) Secure, fasten, or run any rope, wire, sign, electrical installation or other device or material to, around or through any Public Tree or Shrub except in an emergency such as a storm or accident. (b) Break, injure, mutilate, deface, kill, or destroy any Public Tree or Shrub. (c) Top or make topping cuts on any Public Tree. (d) Permit any toxic chemical, gas, smoke, oil, or other injurious substance to seep, drain, or be emptied upon or about any public tree or shrub. This section shall not be construed to prevent any routine winter street maintenance by City Departments. (e) Excavate any ditch, tunnel, or trench, or lay any drive, sidewalk or other impermeable surface within the tree protection zone of any Public Tree or Shrub. (f) Erect, alter, repair, raze, or excavate within the tree protection zone of any Public Tree or Shrub without placing suitable guards approved by the City Forester around such trees and shrubs which may be injured by such operations. (g) Remove any guard, stake, or other device or material intended for the protection or support of any Public Tree or Shrub. (h) Place any earth fill, rock, trash, or other material within the Tree Protection Zone of any public tree or shrub which may compact or prevent the entry of air or water to the root zone. (2) Clear vision triangle. No tree, shrub, hedge or other growth exceeding thirty (30) inches in height above the street grade shall be permitted in any Clear Vision Triangle within the city. (3) Obstruction of Signs, Signals, Travel. All trees and shrubs located within any Public Right -of -Way or upon any private premises adjacent to the Public Right -of -Way shall be kept trimmed so that the lowest projecting branches provide a clearance height of not less than sixteen (16) feet above the travel portion of a public street and not less Attachment A than eight (8) feet above the public sidewalk. The City Forester may waive the provisions of this section for newly planted or naturally low profile trees if he/she determines that they do not interfere with public travel, obstruct the light of any street light, obstruct the view of any traffic sign or signal, or endanger public safety. (4) Any tree or shrub or part thereof found to be in violation of the provisions of subsection (2) and (3) of this section shall be declared a public nuisance and shall be subject to abatement as set forth in section 26-05(2) of this ordinance. 26-7 PLANTING, REMOVAL, MAINTENANCE AND PROTECTION OF PUBLIC TREES AND SHRUBS. (1) Permit Required. No person shall plant, remove, maintain or protect any Public Tree or Shrub, or cause such work to be done without obtaining a written permit from the City Forester. (2) Application and Approval. Any person desiring to plant, remove, maintain or protect any Public Tree or Shrub shall apply in writing to the City Forester for a permit to do such work. Such application shall specify the location and description of the proposed work. If the City Forester determines that the proposed work is necessary and in accord with the purposes of this ordinance, taking into account the safety, health, and welfare of the public, location of utilities, public sidewalks, driveways and street lights, general character and aesthetic quality of the area in which the tree or shrub is located or proposed to be located, and the soil conditions and physiological needs of the tree or shrub, he/she shall issue a permit to the applicant. (3) Permit Form, Expiration, Compliance, Inspection. Permits shall be issued by the City Forester on a standard form for this purpose and shall include a description of the work to be done and shall specify the genus, species, variety, size, grade, and location of trees or shrubs to be planted, if any. Any work done under such permit shall be performed in strict compliance with the terms thereof and with the arboricultural specifications and standards set forth under subsection (5) of this section. The City Forester may inspect all work performed pursuant to this section. Permits issued under this section shall specify an expiration date not to exceed six (6) months after the date of issuance. (4) Permit Exemptions. No permit shall be required to water or fertilize any Public Tree or Shrub or to take the necessary action to guard the public safety or clear the public way in the event of a storm, accident or other emergency. (5) Arboricultural Specifications and Standards. The following specifications and standards are hereby established for the planting, and removal of all public trees and shrubs within the city. Attachment A (a) Planting in Public Property i. No tree shall be planted which is less than one (1) inch in diameter at six (6) inches above the ground. ii. No tree shall be planted closer than two (2) feet from the curb line or the street edge of the sidewalk. iii. No Street Tree shall be planted less than ten (10) feet from any driveway or fire hydrant, or within the designated clear -vision triangle or less than thirty (30) feet from any street corner, whichever is greater. iv. All Street Trees hereafter planted shall be spaced not less than twenty-five (25) feet apart except that a tree planted for the purpose of future replacement of an existing declining tree may be planted less than twenty-five feet from the declining tree. The actual spacing, location and alignment of Street Trees shall be determined by the City Forester based on the mature size of the species to be planted and the specific site limitations. V. The following shall not be planted in the right-of-ways of the city: any conifer, any species of the genus Populus, any Ailanthus, Catalpa, Mountain Ash, Box Elder, Silver Maple, Willow, White Bark Birch, Black Locust or other species that shall be determined to be unsuitable for street planting. (b) Pruning on Public Property. i. All pruning of Public Trees and Shrubs shall conform to the standards set forth in ANSI A300-2013 or the most recent version thereof as adopted in section 26.04 of this ordinance. (c) Removal of Trees and Shrubs from Public Property. i. Trees shall be completely removed from the growing site and disposed of in the proper manner. Any person or firm engaged in the removal of any Public Tree or Shrub shall have the necessary limits of insurance and shall be held liable for any injury or damage to persons or property. ii. Stumps and roots which elevate sidewalks and/or boulevards shall be removed from the growing site by grinding or other means to a depth suitable for the future planting of trees, shrubs, or turf. The hole created by removal of a stump shall be filled to the level of surrounding grade with mineral topsoil, tamped to prevent settling and seeded with mixture of grass species appropriate for the site. (d) Spraying, injecting, fertilizing, bracing, cabling or other arboricultural operations or treatments shall be performed in a neat and professional manner according to Attachment A accepted arboricultural standards and in compliance with all laws governing the use of pesticides. 26-8 RELOCATION/ SHUT OFF OF ELECTRICAL SERVICE WIRES FOR TREE WORK Whenever the City Forester determines it necessary to move, protect or cut off the electricity from service wires so he can safely and properly perform his work, he shall notify the public utility owner of such wires and such owner shall comply within forty-eight (48) hours after said notification. 26-9 TREE PROTECTION DURING CONSTRUCTION ON PUBLIC PROPERTY (1) Definitions (a) In addition to Public Trees as defined in section 26-02 of this ordinance, the provisions of this section shall also include any tree located on private property adjacent to a public property, with any part of the Tree Protection Zone of such tree extending into the public property. (b) "Construction" shall mean the installation, alteration, repair, replacement or relocation of any of the following: (i) Any street, curb, sidewalk, pavement, street light, traffic signal or other surface structure. (ii) Any underground utility distribution and service facility including water pipe, sanitary and storm sewer, gas pipeline, electric power and communication wire, cable, conduit, duct and associated vaults, manholes, pull boxes; and any irrigation facilities. (iii) Any overhead wire, cable and associated support structure. 26-10 HOME MOVING PERMITS No person shall move any building or any large object along any street without having first obtained a written permit from the City Forester who, if he deems necessary, may require the mover to trim certain trees and/or furnish a bond or cash deposit in an amount sufficient to cover any damage to, or destruction of, public trees or shrubs as a result of such moving operations. Attachment A 26-11 PERMIT TO PUBLIC UTILITIES When a permit is issued to a public utility pursuant to Section 26-7 hereof to trim public trees, or other operations affecting public trees or shrubs, the work shall be limited to actual necessities of the service of the company and such work shall be done in a neat and workmanlike manner according to the specifications outlined by the City Forester. 26-12 APPEAL FROM ORDER OF THE CITY FORESTER A person who receives an order from the City Forester and objects to all or part thereof may, within ten (10) days of receipt of order, notify the City Forester in writing of the nature of the objection and request a conference with the City Forester and Director of Parks. The Director of Parks shall schedule such a conference within ten (10) days of receiving the request followed by an issuance of determination. If the person objecting to the order wishes to further appeal the results of the conference, that person may, within ten (10) days of the conference, make a written request to the City Clerk to appeal the order by requesting a hearing before the Board of Public Works. The Board of Public Works shall schedule a hearing within thirty (30) days of receiving the appeal. Within ten (10) days of the hearing the Board of Public Works shall notify the appellant of its decision in writing. The Board of Public Works may affirm, cancel, or modify the order, in its discretion, to best conform such order to the intent of this ordinance. 26-13 PENALTIES. (1) Every person convicted of a violation of this section shall suffer forfeiture not to exceed $500.00 together with the costs of prosecution, and in default of payment assessed imprisonment for a period not to exceed thirty (30) days in the county jail. (2) In addition to the forfeiture the city may require restitution for the fair market value of the tree(s) and/ or shrub(s) which were damaged or destroyed as result of violation of this ordinance. 26-14 SEVERABILITY If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by reason of any decision of any court of competent jurisdiction, such decision will not affect the validity of any other section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases or portions thereof may be declared invalid or unconstitutional.