Township of Franklin, NJ
Somerset County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Township Council of the Township of Franklin 4-24-2007 by Ord. No. 3681;[1] amended in its entirety 2-24-2015 by Ord. No. 4100-15. Subsequent amendmentsAmendments noted where applicable.]
GENERAL REFERENCES
Shade Tree Commission — See Ch. 13, Art. XX.
Brush, grass and weeds — See Ch. 88.
Land development — See Ch. 112.
Streets and sidewalks — See Ch. 333.
[1]
Editor's Note: This ordinance superseded former Ch. 222, Trees, which consisted of Art. I, Tree Removal, adopted 8-14-1990 by Ord. No. 1592 (Ch. 222 of the 1990 Code), and Art. II, Trees and Shrubs, adopted 4-25-1968 by Ord. No. 403, as amended.
Article I Tree Removal

§ 222-1 Purpose.

§ 222-2 Definitions and word usage.

§ 222-3 Regulations.

§ 222-4 Exemptions.

§ 222-5 Application for tree removal permit where subdivision and/or site plan approval or building permit is required.

§ 222-5.1 Tree replacement plan.

§ 222-5.2 Shade trees (street and parking area trees).

§ 222-5.3 Tree replacement; contributions to Tree Fund.

§ 222-5.4 Tree Fund.

§ 222-5.5 Historic and significant tree register; removal of historic and significant trees.

§ 222-6 Application for tree removal permit not involving site plan and/or subdivision approval or building permit.

§ 222-7 Criteria for approval or disapproval of permit.

§ 222-8 Review and approval of permits.

§ 222-9 Performance guaranty.

§ 222-10 Inspections.

§ 222-11 Fees for tree removal permit.

§ 222-12 Appeals.

§ 222-13 Violations and penalties; restitution.

§ 222-14 Authorization to enter land.

Article II Trees and Shrubs

§ 222-15 Prohibited acts.

§ 222-16 Planting on public land prohibited.

§ 222-17 Maintenance of trees and shrubs.

§ 222-18 Notice to property owner for the removal of dangerous trees and/or shrubs.

§ 222-19 Failure to remove dangerous trees and/or shrubs abutting the right-of-way of a municipal highway.

§ 222-20 Certified costs.

§ 222-21 Removal of dangerous trees and/or shrubs within the right-of-way of the municipal highway.

§ 222-22 Wire attached to trees; pruning.

§ 222-23 Complaint; violations and penalties.

§ 222-24 Continued violations.

§ 222-1 Purpose.

This article shall apply throughout the entire area of Franklin Township, so as to preserve trees and woodlands from unjustifiable destruction; to preserve soil from erosion and sedimentation; and to protect the use and transfer of topsoil, all for the general well-being of the residents of Franklin Township and neighboring downstream areas.

§ 222-2 Definitions and word usage.

A. 
As used in this article, the following terms shall have the meanings indicated:
APPLICANT
A person, partnership, association, organization, company, firm, corporation, industry, public agency, legal entity, or other party requesting authorization to remove trees or to engage in land-disturbing activities.
APPOINTED OFFICER
The Township Engineer or his/her designee.
CROWN OF A TREE
The upper part of a tree, including the branches and foliage.
FARM
A tract of land being used for the production of agricultural or horticultural produce, as food, fiber, nursery stock, livestock, poultry, or dairy products, or that has been so used and has not since been put to other use, including use as woodland as defined herewith.
FARMER
A person who operates a farm.
MANAGEMENT PLAN
A plan for the management of timbered land, developed by the New Jersey Department of Environmental Protection, Bureau of Forestry, or similar state or federal agency or the Township Forester if the Township names one.
NURSERY, GARDEN CENTER, ORCHARD or CHRISTMAS TREE PLANTATION
Only such land within the municipality actually being used and managed for horticultural purposes under controlled agricultural practices.
PERMIT
A license to remove or destroy trees or to engage in a land-disturbing activity, issued by the officer designated to enforce this article.
TOWNSHIP ENGINEER
The person appointed to that position or one acting for him and under his authority.
TREE SPECIALIST
A professional who understands trees and good cultural practices in their care and management, such as a landscape architect, ornamental horticulturist, forester, arboriculturist, or other.
TREE; TREES
Any and all single- and multi-trunked plants having diameters of four inches or more at heights of three feet above the base of the trunk or of one or multiple trunks, except flowering dogwood (Cornus florida), which is to be considered a tree if the diameter is two inches or more at three feet above the base of the trunk.
WOODED AREA/WOODS
Any area that is 10% or more covered by crowns of trees as trees are defined herein.
B. 
The term "shall" in this article always is mandatory and not discretionary; the word "may" is permissive.

§ 222-3 Regulations.

Except as otherwise provided herein, no tree shall be damaged, removed, or destroyed by cutting, girdling, bulldozing, grading of land, or otherwise by any person, association, corporation, or public agency without a tree removal permit first having been obtained as provided in this article.

§ 222-4 Exemptions.

Exempted from the provisions of § 222-3 shall be the following:
A. 
The clear-cutting of any area of trees in an area of 2,500 square feet or less located on a tract of land on which an existing single-family or two-family dwelling has been erected and constitutes the primary use.
B. 
Any tree located on a tract of land already in use by a church, nonprofit camp, or other public or quasi-public organization, when the removal of said tree will be for a purpose in landscaping or to facilitate the program of said church, camp, or organization.
C. 
Any tree growing on land actually used and managed as a nursery, garden center, Christmas tree plantation or orchard.
D. 
Any tree to be cut for personal use by the owner as firewood or for observance of a holiday and any tree to be cut from a farm woodlot by the farmer for farm use as firewood, posts, fencing or other farm needs.
E. 
Any tree cut or removed in accordance with a management plan developed by the New Jersey Department of Environmental Protection, Bureau of Forestry, or other professional forester, and filed with the appointed officer. Such a management plan could include cutting of trees for sale as firewood or timber.
F. 
Any tree growing on land being used or to be used with Township approval for quarrying or similar operations.
G. 
Any dead, diseased, or other tree with which there is risk to life or property.

§ 222-5 Application for tree removal permit where subdivision and/or site plan approval or building permit is required.

A. 
All applications for development shall be accompanied by a tree conservation plan as required by this section. The tree conservation plan shall be reviewed and approved by the approving boards as part of the development application. That portion of the tree conservation plan dealing with trees located upon Township property or rights-of-way or upon land to be transferred or dedicated to the Township shall further be reviewed and approved by the Shade Tree Commission in accordance with guidelines and best management practices established by the Shade Tree Commission as provided by this article.
B. 
For the removal of trees in conjunction with an application for development of property as either a minor or major subdivision or site plan, or in any other form of development where the approval of the Planning Board or Zoning Board of Adjustment will be required, the applicant shall submit to the Board simultaneously with the application for approval of such development, in a form and manner which complies with Chapter 112, Land Development, a tree conservation and replacement plan consisting of a map having a scale of one inch equals 50 feet or less showing the location of existing wooded areas and clearly marked boundaries of the sample plot(s) used to determine the average wooded acre for the site. The map shall be prepared by a professional licensed in the State of New Jersey and authorized pursuant to state law to submit such plans. The map or site plan shall also show:
(1) 
Location of streams and watercourses;
(2) 
Location of slopes greater than 10% where any tree removal is proposed;
(3) 
Total acreage of the tract and the total acreage of the wooded area(s) of the tract (i.e., area within the dripline of existing trees on site);
(4) 
Locations of the tract where tree removal is to take place;
(5) 
The location of each one-hundred-foot by one-hundred-foot sample plot used to determine the average wooded acre as defined above;
(6) 
For each sample plot inventoried to determine the average wooded acre, the application shall provide a list identifying the species of tree, the number of trees of each species and the location of each individual tree in that plot;
(7) 
The total number by species of existing trees with a diameter at breast height (DBH) of four inches or greater on the tract;
(8) 
The total number by species of trees with a DBH of four inches or greater which are to be removed;
(9) 
The number, species and sizes of trees existing on the site shall be estimated based upon the inventory of one-hundred-foot by one-hundred-foot sample plots as follows: site with wooded area(s) of less than two acres; one sample plot; site with wooded area(s) between two and five acres: two sample plots; and site with wooded area(s) greater than five acres: three sample plots. The sample plot(s) selected shall be representative of the wooded area(s) of the site in terms of tree species, size and density. One or more additional sample plots may be required if the size and/or nature of the wooded area(s) dictate the need for additional sample plots;
(10) 
All trees with a DBH of 16 inches or greater, significant and historic trees shall be specifically identified by location on the map and listed on a separate schedule showing species and common name and size. All efforts shall be made to preserve such trees, including, if necessary, relocation of infrastructure, roadways and buildings;
(11) 
A specific replacement plan for the replanting of removed trees in accordance with § 222-5.1;
(12) 
Methods and locations of tree preservation measures to be employed during construction to ensure the preservation of the wooded areas and individual trees to be preserved on site. Such methods shall be consistent with best management practices and, to the maximum degree practicable, shall exclude disturbance within the dripline of existing trees to remain.
C. 
Where the application only requires a building and zoning permit, an individual plot plan shall be prepared showing the location of trees to be removed and replaced. The plan shall be reviewed for approval by the appointed officer prior to issuance of a tree removal permit. Compliance with the tree removal permit shall be monitored by the Township Engineering Department as part of its site development inspection procedures.
D. 
Tree conservation and replacement plans required under § 222-5B shall be reviewed by the Engineering Department and the Department of Planning and Zoning for review and comment to be submitted to the applicable board. Approval of the tree conservation and replacement plan by the applicable board shall constitute a tree removal permit and shall become a condition of that board's approval unless waived by the board (e.g., in the case of a minor subdivision where review by the appointed officer prior to issuance of a building permit would suffice). Compliance with the approved tree conservation and replacement plan shall be monitored by the Township Engineering Department as part of its site development inspection procedures, and no subsequent tree removal permit shall be required. Any contribution in lieu of planting trees permitted under § 222-5.3C shall be a condition of the board's approval and paid prior to sign-off on the plans.
E. 
The tree removal permit issued by the appointed officer or by the board, as applicable, shall be valid so long as the approved application is valid. The removal or damage to trees not approved for removal shall be considered a violation of this article.
F. 
Any substantial change in a tree removal permit shall necessitate the submission of a revised plan to the board or appointed officer, as applicable, for review and approval.
G. 
Any person may examine, and/or receive copies of, an application made pursuant to this article in accordance with applicable provisions of the Open Public Records Act.[1]
[1]
Editor's Note: See N.J.S.A. 47:1A-1 et seq.
H. 
Prior to the issuance of a building permit, the developer shall designate on all relevant lots the trees to be retained, which designation shall be based upon the tree removal permit.
I. 
Prior to the issuance of the certificate of occupancy, the Construction Official shall receive a release from the appointed officer or his or her designee that all trees to be retained and all trees to be replaced under the tree removal permits are in fact in existence and that all debris (trash) generated as a result of these activities has been removed.

§ 222-5.1 Tree replacement plan.

For all replacement requirements, the following formulas shall apply:
A. 
For trees with a DBH equal to or greater than four inches and less than 16 inches, replacement shall be based upon the percentage of the trees removed as set forth below:
Percentage of Trees Removed from Entire Development
Percentage of Trees to be Replaced with Trees of Minimum Size 2.5 Inch Caliper
80% to 100%
80%
60% to 79%
60%
40% to 59%
40%
20% to 39%
20%
Less than 20%
10%
B. 
For trees with a DBH equal to or greater than 16 inches, the removed tree shall be replaced:
Existing Tree to be Removed
(inch caliper)
Number of Replacement Trees
(minimum size 2.5 inch caliper)
Less than 18
3
Less than 21
4
Less than 24
5
Less than 27
6
Less than 29
7
Less than 31
8
Less than 33
9
Less than 35
10
Less than 37
11
Less than 39
12
Less than 40
13
Less than 41
14
41 inches or greater
15
C. 
The species or type of replacement tree, the mix of replacement tree types and the manner of planting shall be in accordance with the best practices guidelines established by the Shade Tree Commission and as approved by the Planning and Zoning Board.
D. 
Any trees proposed in the landscaping plan may be credited toward the number of replacement trees, provided such trees are at least 2.5 inches in caliper in the case of deciduous trees or at least six feet or greater in height in the case of evergreen or coniferous trees.

§ 222-5.2 Shade trees (street and parking area trees).

A. 
The Shade Tree Commission shall, as part of its best practices guidelines, establish the minimum requirement for trees to be planted along proposed Township rights-of-way.
B. 
There shall be planted that number and type of shade tree required as specified in the best practices guidelines prepared by the Shade Tree Commission on proposed rights-of-way.
C. 
The types and locations of shade trees to be planted shall be shown in the plans submitted to the Planning Board and Zoning Board of Adjustment in conjunction with the application for development or on the plot plan where the application only requires a building and zoning permit.

§ 222-5.3 Tree replacement; contributions to Tree Fund.

A. 
Consistent with the intent of this chapter, applicants shall make all reasonable attempts to maximize tree preservation. To the extent that tree replacement is necessary, the applicant shall make all reasonable attempts to provide all required replacement trees on the site from which trees were removed.
B. 
If placement of all replacement trees on the removal site proves to be impractical, in lieu of replanting trees on the removal site, the applicant shall have the option of planting replacement trees of types selected by the Shade Tree Commission from the approved list of trees as established by it at an off-site location chosen by the Township in consultation with the Shade Tree Commission. Such off-site locations shall be public property and rights-of-way, including but not limited to public parks, public schools and public buildings.
C. 
In the alternative, if placement of all replacement trees on the removal site proves to be impractical, the applicant may make a contribution to be deposited in the Township Tree Fund as established by this article. The contribution in lieu of planting of trees shall be based on a fixed rate of material and installation costs for those trees. This rate shall be adjusted annually and based on estimates by the Township Engineer.

§ 222-5.4 Tree Fund.

A. 
There shall be established by this article a Township Tree Fund for the purposes set forth in this article.
B. 
All funds collected as contributions in lieu of replanting shall be deposited in a dedicated account clearly designated as the Township Tree Fund. All funds so deposited shall be used solely for the planting of trees and/or shrubbery in public parks, property surrounding public buildings and within rights-of-way within the jurisdiction of Franklin Township or for other such purposes that advance the purpose and authority of the Township Shade Tree Commission per Township ordinance and N.J.S.A. 40:64-1 et seq., including but not limited to training, public education, awareness and outreach outlined in the Township's Community Forestry Management Plan.
C. 
The Tree Fund shall be administered by the Township Manager, who shall report to the Township Council and the Shade Tree Commission on a quarterly basis detailing the use of the fund.

§ 222-5.5 Historic and significant tree register; removal of historic and significant trees.

A. 
The Shade Tree Commission shall establish and maintain an official register of historic and significant trees in Franklin Township. "Historic trees" are defined as trees linked to an historic time or event. "Significant trees" are trees which, because of size, species or age, contribute to the beauty of the Township. Historic and significant trees are suitable for Township register nomination if they are located on either public or private land. The property owner upon which the historic or significant tree is located shall be formally notified by the Shade Tree Commission of any such designation.
B. 
Before any tree designated in accordance with this article as historic or significant can be removed, the property owners shall obtain a permit from the Township. At the time of the issuance of the permit, the issuing authority, as designated by the Township Manager, shall advise the property owner of any alternatives available to the removal of the tree. There shall be no fee associated with the issuance of this permit.

§ 222-6 Application for tree removal permit not involving site plan and/or subdivision approval or building permit.

An application for a permit for removal of trees where site plan and/or subdivision approval or a building permit is not involved shall be made directly to the appointed officer and shall contain the name of the applicant, location of the property, a plot plan as aforesaid, including a statement of what trees would be removed, and the purpose for which the application is being made, including but not limited to the following: clearing for agricultural use, harvesting of timber, fire protection, private parks, scenic improvement, hardship or danger to adjacent property, removal of trees for growth in other locations, and installation of utilities or sewer lines after, and only after, permits for the same have otherwise been obtained.

§ 222-7 Criteria for approval or disapproval of permit.

In determining whether to approve or disapprove an application pursuant to this article, the following criteria shall be considered by the appointed officer or board, as applicable:
A. 
The appointed officer or board shall inspect or otherwise learn about the trees which are under consideration and shall similarly check the soil, drainage, and other pertinent conditions. Said officer or board shall consider protection of trees to remain on the property during and after construction and grading and shall consider also whether the destruction or removal of trees would result in soil erosion, would impair existing drainage patterns, would adversely affect adjacent properties by removal of screening or in other ways, or would impair substantially the aesthetic values of the area. Consideration shall be given also to preservation of trees of special interest because of size, species, or historic connection.
B. 
In addition, for preservation of trees in the land grading operation, including lowering, raising, and filling land areas, the following standards shall be met unless modified in specific cases or in general by the appointed officer or board, as applicable, with consideration for tree species and conditions of soil, drainage, slope and other factors:
(1) 
Roots beneath the crown of a tree shall not be bared.
(2) 
Root areas of a tree shall not be reduced nearer to the base of the tree than the area of the crown of the tree.
(3) 
The surface beneath a tree shall not be raised with soil or other material, permanently or temporarily, for more than six inches unless the tree is welled in and provision is made for the well to drain to the outer reaches of the crown of the tree or to the natural ground surface if that is nearer. Design of wells must have approval of the appointed officer or board. The appointed officer or board, as applicable, shall have authority to affix reasonable conditions to the grant of a permit concerning trees.

§ 222-8 Review and approval of permits.

A. 
Applications for tree removal permits involving the issuance of a subdivision, site plan and/or a building permit shall be processed during and by the regular procedures for review of said subdivision, site plan and/or building permit applications in accordance with § 222-5. No building permit shall be issued without the issuance of any permits required under this article.
B. 
Applications for tree removal permits not involving the issuance of subdivision, site plan approval and/or building permits shall be reviewed by the appointed officer in accordance with this article.
C. 
All approved tree removal permits not issued in conjunction with subdivision, site plan approval and/or building permits shall expire at the end of six months from the date of issuance unless extended upon application for an additional six-month period.

§ 222-9 Performance guaranty.

The appointed officer may require performance bonds according to the size and nature of projects to be administered by the Township according to this article for preservation of trees, control of erosion and sedimentation, and disposal of topsoil.

§ 222-10 Inspections.

A. 
The Township shall provide for inspection of projects involving preservation of trees and control of soil erosion, sedimentation, and disposal of topsoil. To this end, the Township may enter into working agreements with the Soil Conservation District for sharing in the inspections of projects certified by the District. All other projects for which conservation permits are required according to this article shall be made subject to inspections by the Township at any time. The inspector shall certify that installation and practices are or are not in compliance with performance principles and standards prescribed by this article and with any specific requirements that have been stated as conditions of approval of the application. With projects for which performance guaranties have been posted, the applicant shall be required to have a certified plan and permit on site during construction or other operations and to show the same to any agency or agent of the Township or the Soil Conservation District whenever requested to do so.
B. 
The appointed officer may issue a stop-operations order if a project is not being executed in accordance with the certified plan, whether that plan is one certified and administered by the Soil Conservation District or one administered wholly by the Township. This provision is in accordance with Section 9 in the State Soil Erosion and Sediment Control Act, Chapter 251, P.L. 1975.[1]
[1]
Editor's Note: See N.J.S.A. 4:24-47.
C. 
As stated in Section 11 of the State Soil Erosion and Sediment Control Act,[2] no certificate of occupancy for a building shall be issued by the Township unless there has been compliance with the provisions of a certified plan for permanent measures to control soil erosion and sedimentation in accordance with this article. A formal report of such compliance must be filed with the municipal agent authorized to issue certificates of occupancy, and a copy of the report shall be sent to the Soil Conservation District.
[2]
Editor's Note: See N.J.S.A. 4:24-49.
D. 
The Township may, within 30 days after the date of a report of such compliance, release in whole or in part any performance bond it is holding, depending upon the Township's assessment of need to withhold all or a portion of the bond to assure full compliance with requirements and adequate maintenance of the facilities.

§ 222-11 Fees for tree removal permit.

When filing an application for tree removal, the applicant shall pay a fee according to the following schedule:
A. 
For transplanting a tree in a living condition: no fee.
B. 
With a building permit, subdivision or site plan approval: no fee over and above the fee required for the building permit, subdivision or site plan approval.
C. 
Without a building permit, subdivision or site plan approval: $25.
D. 
For clearing land of trees: $500 per acre and part thereof.

§ 222-12 Appeals.

Whenever any application for a tree removal permit shall be denied by the appointed officer, the applicant may appeal the denial to the Franklin Township Manager, who may modify, affirm or reverse the decision of the appointed officer.

§ 222-13 Violations and penalties; restitution.

A. 
Any person, partnership, association, organization, company, firm, corporation, industry, public agency or utility, legal entity or other party who violates or causes to be violated any of the provisions of this article shall be subject to the penalties contained in Chapter 1, Article II, General Penalty. Each and every day such violation continues shall be considered a separate and distinct violation.
B. 
In addition to the penalties prescribed above, the court shall require that restitution be made to the Township by any person who removes a tree in violation of this article in an amount equal to the cost of each tree removed as established in accordance with § 222-5.3C of this article, which shall be deposited in the Township Tree Fund.

§ 222-14 Authorization to enter land.

Each application for tree removal or land disturbance permit shall be deemed to be authorization by the applicant for the appointed officer, the Department of Engineering and Public Works, the Shade Tree Commission, the Department of Planning and Zoning, the Soil Conservation District, and the Bureau of Forestry of the state, or a representative of any one of them, to enter upon the land referred to in the application for inspections contemplated by this article, for both consideration of approval and review of operations if approval is granted. If the applicant is not the owner of the land, said applicant shall furnish with the application a sworn authorization from the owner for such entry.

§ 222-15 Prohibited acts.

No person shall do or cause to be done by others, either purposely, carelessly or negligently, any of the following acts to a tree, shrub or plant on a public right-of-way or park:
A. 
Spray with any chemical any such tree, shrub or plant;
B. 
Fasten any rope, wire, sign or other device to any such tree or shrub or to any guard about such tree or shrub;
C. 
Remove or injure any guard or device placed to protect any such tree or shrub.

§ 222-16 Planting on public land prohibited.

No shade or ornamental tree or shrub shall be planted in any public highway or park without written permission from the Director of Public Works.

§ 222-17 Maintenance of trees and shrubs.

The owner or tenant of any lands lying within the Township shall keep all trees, bushes and/or shrubs maintained in a safe manner so they shall not create a hazard to the general public and shall keep trees, shrubs and/or bushes in compliance with § 112-24, Brush and hedges near roadways and intersections.

§ 222-18 Notice to property owner for the removal of dangerous trees and/or shrubs.

In case any tree or shrub, or any part thereof, along the municipal roadway shall become dangerous to the public safety, the owner of the property in front of which such tree or shrub shall be located shall remove the same or the required part thereof forthwith upon service of written directive to the effect from the Department of Public Works. The notice shall be sent certified mail, return receipt requested, to the owner of such property.

§ 222-19 Failure to remove dangerous trees and/or shrubs abutting the right-of-way of a municipal highway.

If the owner fails to remove the tree or shrub, or portion thereof, within two weeks after service of written notice to do so, the work shall be performed by the Township under the supervision of the Director of Public Works, who shall certify the cost thereof to the Tax Collector.

§ 222-20 Certified costs.

Upon receipt of the certified costs, the Tax Collector shall charge the foregoing as a lien upon the lands, and such amount shall be added to and become and form a part of the taxes next to be assessed and levied upon the lands, the same to bear interest at the same rate as other taxes, and shall be collected and enforced by the same officer and in the same manner as taxes.

§ 222-21 Removal of dangerous trees and/or shrubs within the right-of-way of the municipal highway.

The Township shall be empowered to prune or remove trees and/or shrubs deemed to be a danger to the public by the Director of Public Works within the right-of-way of any municipal roadway.

§ 222-22 Wire attached to trees; pruning.

Whenever it becomes necessary for the Township to prune or remove any tree within the right-of-way of a municipal highway, any person having a wire running through such public highway shall temporarily remove such wire or wires within 24 hours after the service upon the owner of the wire or wires, or his agent, of a written notice from the Department of Public Works. Any utility company, instead of temporarily removing such service wire, shall have the option of pruning or removing such tree.

§ 222-23 Complaint; violations and penalties.

Any person who violates the provisions of this article may be served with a complaint to appear in Franklin Township Municipal Court for such violation and, upon such violation and upon conviction, shall be subject to the penalties included in Chapter 1, Article II, General Penalty, for each and every day in which such violation shall continue.

§ 222-24 Continued violations.

If any person shall continue to violate any of the provisions of this article after being duly notified of such violation or shall neglect or refuse to comply with any lawful order of the Department of Public Works, the failure to comply with a second or each of any subsequent notifications or orders shall be construed as an additional violation of this article, and each such additional offense shall subject the offending party, upon conviction, to the same penalty as provided for the first offense.