The purpose of this article is to establish
standards and requirements for the protection and planting of trees
by developers. It is recognized that trees are desirable and are essential
to health, safety, and welfare of the population. Trees provide oxygen,
reduce carbon dioxide, stabilize soil, cleanse the air, and filter
water passing into the ground. Trees provide protection for wildlife
and their habitat, provide shade, reduce noise and glare, increase
property values, and provide important physical and aesthetic balance
to the developed environment.
As used in this article, the following terms
shall have the meanings indicated:
CALIPER DIMENSION
An outside diameter measurement of the trunk of a tree measured
at a vertical distance of six inches above grade.
DEVELOPER
Any person or business entity engaging in the development
or redevelopment of real property for purposes of selling or leasing
such improved real property to third parties.
DRIPLINE AREA
A line on the ground established by a vertical plane ascending
from the tree's outermost branch tips to the ground, i.e., the line
enclosing the area directly beneath the tree's crown from which rainfall
would drip.
EXCESSIVE PRUNING
Removal of more than 1/4 of the functioning leaf and stem
area of a tree in any twelve-month period, or removal of foliage so
as to cause the demise of the tree.
FOOTPRINT
The two-dimensional configuration of the perimeter boundaries,
as measured on a horizontal plane at ground level, of all improvements
to be constructed or installed on any lot, including all buildings,
outbuildings, decks, patios, steps, driveways, sidewalks or boardwalks,
and other permanently affixed structures or improvements.
LOT
Any building lot or parcel of land within a subdivision and/or
planned residential development.
REMOVE or REMOVAL
Any of the following: complete removal, such as cutting to
the ground or extraction, of a tree; taking any action foreseeably
leading to the death of a tree or permanent damage to its health,
including but not limited to moving or storing heavy equipment within
the dripline area, excessive pruning, cutting, girdling, poisoning,
over watering, burning, unauthorized relocation, or trenching, excavating,
altering the grade, or paving within the dripline area of a tree.
Removal will not include the removal of trees by individual lot owners
who are not developers.
REPLACEMENT TREE
A tree of suitable species and size, as determined or approved
by the Planning and Zoning Commission, to be planted at the expense of the developer
on the same lot which the removal occurred, unless otherwise provided
under this article, during the species' optimal planting time, but
in all events within three months of the issuance of a certificate
of occupancy, to replace any tree removed during the course of construction
or development on that lot.
TREE
Any woody plant which has a trunk eight inches or more in
diameter at 4 1/2 feet above natural grade level.
The terms and provisions of this article shall
apply to any activity on real property by any developer which requires
conditional use, site plan, or subdivision approval of the Planning
and Zoning Commission as set forth in this chapter or any other Town
code. The terms and provisions of this article shall not apply to
the removal of trees by individual lot owners.
Removal, as defined by this article, for any
purpose whatsoever shall be prohibited unless approved by the Planning
and Zoning Commission through the site plan, conditional use, or subdivision
review process.
All reasonable efforts, as reasonably determined
by the Planning and Zoning Commission, shall be used to minimize the removal of trees during
the course of site preparation, construction or development of a lot
by any developer. During the site plan, conditional use, or subdivision
review process, the Planning and Zoning Commission shall determine,
in its reasonable discretion, whether all reasonable efforts have
been exhausted in the development of the lot to minimize the removal
of trees.
In order to insure compliance with the provisions
of this article, as a condition of obtaining a building permit each
developer shall provide the Town with a performance bond in form acceptable
to the Town, with surety acceptable to the Town, in an amount equal
to $500 times the number of replacement trees required by the Planning
and Zoning Commission for the lot or lots for which such building permit(s)
was/were issued. Such performance bond shall continue in effect for
a period of 12 months following the issuance of the last certificate
of occupancy for such lot or lots. Acceptable surety may consist of
a letter of credit from a banking institution doing business in Delaware;
cash deposited into a bank account in the name of the Town; or a first
lien mortgage on any real property in Sussex County having an appraised
value equal to or exceeding 150% of the amount of the performance
bond. (In the event a developer opts to use a first lien mortgage
as surety, the cost of the title certificate, appraisal, and recording
of the mortgage shall be paid by the developer; the Town will provide
the performance bond and mortgage.)
Any developer violating any provision of this article shall, upon conviction,) pay such fines as set out in Chapter
1, General Provisions, Article
I, Penalties, for each tree unlawfully removed or not timely replaced as required by this article. Additionally, the developer or his agent shall replace any tree as required by this article within six months from the issuance of a certificate of occupancy or written notice of a dead replacement tree, as the case may be. In the event replacement trees have not been planted within the identified six months, the amount of the fine as to that developer or his authorized agent shall be doubled for each tree not timely replaced. This per-tree fine shall double again every six months for five years thereafter that replacement trees are not planted. Each failure to have planted replacement trees required by this article within the initial three-month period and each successive six-month period shall constitute a separate offense, punishable as such, but subject to the escalating fines provided herein.