[HISTORY: Adopted by the Town Board of the Town of Clarkstown 8-20-2013 by L.L. No. 6-2013. Amendments noted where applicable.]
GENERAL REFERENCES270a Tables 1 and 2
Building construction administration — See Ch. 109.
Flood damage prevention — See Ch. 146.
Quarrying and blasting — See Ch. 220.
Site plan review — See Ch. 246.
Stormwater management — See 249A.
Subdivision of land — See Ch. 254.
Zoning — See Ch. 290.
Editor's Note: This local law also repealed former Ch. 270, Tree Preservation, adopted 10-23-2007 by L.L. No. 17-2007, as amended.
This chapter shall be known and may be cited as the "Tree Preservation Local Law of the Town of Clarkstown."
The Town of Clarkstown has a vital interest in the planting and preservation of trees within its territorial boundaries. Trees stabilize the soil on slopes, thereby preventing erosion, siltation and flooding. They control water pollution, purify the air by generating oxygen, mitigate noise and reduce energy consumption by providing shade. In performing these functions, they increase the value of all properties in the Town of Clarkstown. The destruction and removal of trees causes increased costs to the Town for remediating drainage control, impairing the value of both improved and unimproved property, and has a deleterious effect on the health and general welfare of the citizens of Clarkstown. It is therefore the intent of this chapter to establish standards for the protection of these valuable resources and to provide a workable method of determining under what circumstances a tree may reasonably be removed. Toward that end, the Town Board of the Town of Clarkstown has implemented these regulations for the following purposes:
To preserve the semirural appearance of the Town by encouraging owners of existing homes, vacant lands and commercial parcels to save or replace mature tree species when developing their parcels;
To control and regulate the indiscriminate removal, cutting and destruction of trees in order to regulate and prevent soil erosion, surface runoff and aesthetic blight;
To preserve existing woodlands and maintain tree buffers;
To promote air pollution mitigation;
To preserve wildlife habitat and ecosystem protection;
To serve as noise buffers, climate moderation, and foster energy conservation.
As used in this chapter, the following terms shall have the meanings indicated:
- Town Architectural Historic Review Board.[Amended 6-28-2016 by L.L. No. 8-2016]
- The owner of land proposed to be developed or subdivided, or the owner's duly authorized representative, or individual receiving a tree removal permit under § 270-6 of this chapter.
- The diameter of a tree measured at 12 inches above grade.
- CERTIFIED ARBORIST
- As defined by the International Society of Arboriculture (ISA). It shall include a "consulting arborist" who satisfied the requirements of the American Arborists (ASCA) and who is determined by the ASCA to meet the standards of certified or consulting arborist as defined above.
- The detaching or separating from a tree any live limb or branch over one inch in diameter, any pruning which changes the shape or natural character of the tree or any branch removal that removes more of the tree canopy than recommended under ISA standards.
- DBH (DIAMETER AT BREAST HEIGHT)
- The diameter of a tree measured at a point of 4 1/2 feet above ground level at the base of the tree on the uphill side.
- Town Department of Environmental Control.
- DRIP LINE
- An imaginary, roughly circular line extending from the maximum spread of the limbs of a tree perpendicular to the ground.
- Any act that may cause a tree to die within a three-year period from the date of the act, including but not limited to girdling, stripping of bark, setting fires on or near a tree, severe pruning, applying chemicals, or changing the ground level within the drip line.
- PROTECTED TREE
- A tree of a specific species or size that may not be reshaped, altered, damaged, relocated or removed without first obtaining a tree removal and cutting permit from the Town of Clarkstown. Protected trees shall not include trees planted and growing in a licensed nursery for sale or planted and grown as part of an active commercial orchard.
- The physical removal of a tree or causing the death or untimely decline of a tree through actions including but not limited to damage, destruction, unnecessary disfigurement, withholding water, poisoning, or other deliberate or willful action or inaction.
- SPECIMEN TREE
- A tree that is representative of a particular species in form and size. It is a tree that may also represent the character of an area or neighborhood.
- Any woody perennial plant characterized by having a single trunk or multitrunk structure at least 10 feet high and having a major trunk with a caliper of at least four inches measured 54 inches above the ground level. It shall also include those species of plants generally designated as trees and any required tree shown on Town-approved landscape plans.
- TREE PRESERVATION PLAN
- A map of the property in question that shows site boundaries, all existing and proposed structures, easements, etc., and the location, species, DBH and condition of all trees eight or more inches DBH showing whether trees are to be removed or preserved and detailing the methods and practices to be used to provide protection from injury during construction for all trees to be preserved.
- TREE REMOVAL PERMIT
- A written authorization to remove a tree(s) pursuant to this chapter.
This chapter shall apply to all property owners, including owners of existing residential dwellings within the Town of Clarkstown. This law shall apply to but not be limited to the owner of the property wishing to cut or remove a tree as defined above, all persons or corporations who will be applying for building permits, all persons or corporations applying for site plan approval, land disturbance permits, applications for minor and major subdivisions, and any persons or corporations who wish to remove trees for any other purpose not stated herein. This chapter shall not apply to site plan or subdivision applicants who have been granted preliminary approval prior to the effective date of this chapter or to site plan or subdivision applications which do not propose cutting or removal of existing trees. This chapter shall not apply to utilities performing safety and reliability maintenance work relating to transmission and distribution lines.
A tree preservation plan shall be filed, except where excluded in § 270-4, with every application for a subdivision or site plan review. The tree preservation plan shall be prepared by a registered landscape architect or certified arborist, with existing tree locations determined by survey by a professional land surveyor. The Planning Board shall approve, disapprove or approve with modifications the tree preservation plan pursuant to the regulations and provisions of this chapter. A tree preservation plan shall provide an inventory of existing trees. The inventory shall include specimen and protected trees. The plan shall provide tree wells or walls at the drip line of all trees to be preserved. No disturbance or storage of materials or equipment shall occur within the drip line of trees to be preserved, including but not limited to regrading and installing structures or impervious surfaces. Methods for protecting trees during construction shall be specified on the plan. In no instance shall the density of trees fall below 17 trees per acre on a given site without the applicant providing replacement trees as per § 270-14. The plan must demonstrate and detail the steps to be taken to protect and preserve the trees to remain for a period of two years after the issuance of a certificate of occupancy for each building. Where the owner of the property having an approved tree preservation plan wishes to remove a tree as defined within, and is not otherwise required to file an application with the Planning Board as outlined above, said property owner shall apply for a tree removal permit from the Director of Environmental Control, or his designee, as provided in § 270-6 below.
The Planning Board, along with the concurrent review of the Architectural Historic Review Board, shall apply the following standards in reviewing and approving tree preservation plans and shall attach such conditions and safeguards as are, in its opinion, deemed necessary to accomplish the purposes of this chapter.
[Amended 6-28-2016 by L.L. No. 8-2016]
Healthy specimen and protected trees and other trees deemed significant by the Planning Board located in a public place shall be preserved where feasible.
Healthy specimen and protected trees and other trees deemed significant by the Town Department of Environmental Control or Planning Board may be required to be preserved at the discretion of the Planning Board.
Concurrent with a tree preservation plan, a separate landscape plan shall be submitted and shall conform to the following minimum standards:
Resulting tree density for the total site shall be no less than 17 trees per acre of lot area or major fraction thereof. Trees to be planted shall be in accordance with Table 1 (attached). In any disturbed portion of the site, tree density shall be no less than 17 trees per acre. In no case shall the minimum tree density be based solely on undisturbed portions of the site.
Editor's Note: Table 1 is included at the end of this chapter.
In calculating the number of trees per acre, the following may be counted toward the minimum tree density required:
Existing trees having a DBH of eight inches or greater and located and shown on the tree preservation plan.
All trees in accordance with the minimum size requirements of Table 1 shown on an approved landscape plan for the site.
Any tree between the sizes shown in Table 1 and eight inches DBH shown on a previously approved landscape plan for the site, which were planted and maintained in accordance with that landscape plan.
In selecting locations to plant trees, priority should be given to that section of the lot within a buffer, lot line or places visible to the public.
The Planning Board shall require the applicant to post cash security in the form of escrow or letter of credit sufficient to ensure the care and health of all newly planted trees for a period of two years from the issuance of a certificate of occupancy in an amount to be determined by the Director of Environmental Control. Such letters of credit shall be in a form acceptable to the Town Attorney.
When plans require replanting in proximity to electric facilities, species that are compatible with the safe operation of those facilities as designated by the respective utility shall be selected.
Prior to the commencement of any development activity on any part of a site, the Town Department of Environmental Control shall meet with the developer and his/her construction manager to ensure that:
The applicant shall be required to pay the cost necessary for the Town to retain an arborist to review compliance with the requirements of the tree preservation plan and landscaping plan should the Planning Board or the Architectural Historic Review Board require same.
[Amended 6-28-2016 by L.L. No. 8-2016]
Enforcement; penalties for offenses. Upon any violation of the tree preservation plan, the Building Inspector shall issue a stop-work order immediately, and the applicant shall be required to take such remedial action as the Planning Board deems appropriate before a certificate of occupancy may be issued. Any violation of an approved tree preservation plan shall also constitute a violation punishable as provided in § 270-16 of this chapter, for purposes of which the removal of each tree which was to have been preserved shall constitute a separate and distinct violation.
A tree removal permit shall be required from the Town Department of Environmental Control before the removal of the following:
Any tree or plant designated by the New York State Department of Environmental Conservation (NYSDEC) as a protected native plant.
Any tree within the Town of Clarkstown Historic District, or historically designated property, with a DBH of eight inches or greater.
More than the number of trees listed below on a single property with the size indicated within any calendar year:
More than four trees with a DBH of eight inches or greater on a property of 1/2 acre or less.
More than seven trees with a DBH of eight inches or greater on a property over 1/2 acre to one acre.
More than 10 trees with a DBH of eight inches or greater on a property over one acre to two acres.
More than 15 trees with a DBH of eight inches or greater on a property over two acres.
Any tree or plant within a state or federal wetland or within 25 feet of the top of the bank of any drainage way.
Exceptions. Notwithstanding the foregoing, no permit shall be required for the removal of:
Any dead tree, as verified by the Town DEC or a certified arborist.
Any tree posing an imminent danger to a structure, vehicle or pedestrian traffic. (Property owner must provide documentary evidence of the dangerous condition which led to the removal of the tree within seven days of the removal of the tree, which shall be reviewed for sufficiency by the Town DEC. In the event that the Town DEC determines that a dangerous condition did not exist, the provisions of § 270-14 of this chapter shall be applicable against property owner verified, in writing, by either the DEC or a licensed arborist within seven days after the tree's removal.)
Any tree which is designated by the NYSDEC and verified by Town DEC or certified arborist as an invasive species.
For any single property which exceeds the number of trees to be cut beyond those provided in § 270-6A(4)(a) through (d), the applicant shall provide a tree preservation plan and landscape plan that provides for the planting of a replacement tree in accordance with Table 1 and Table 2 (attached) for each tree to be removed beyond that provided in the corresponding section in § 270-6A(4)(a) through (d) that pertains to the subject property.
Editor's Note: Table 1 and Table 2 are included at the end of this chapter.
No tree removal permit or building permit shall be issued for the construction of any principal building, accessory building or addition, unless and until such person or corporation shows on an approved plan all existing trees and proposed tree removals in relation to the survey stakes marking out a building, foundation, dwelling, garage, swimming pool, driveway, recreation area or any site that warrants tree removal.
A tree removal permit must be adequately displayed so that it is visible from the nearest public street until such time as the authorized cutting has ended and a final inspection has been conducted by the Town Department of Environmental Control.
Every tree removal permit application submitted for approval shall include a map and exhibits showing:
Boundary survey prepared by licensed land surveyor, including existing features and the general location of wooded areas and trees to be removed.
The map is to show the estimated number of existing trees presently located on the property and those trees to be cut down.
The area of the tract.
The location of streams and wetlands.
Identify the street, block and lot number of the land upon which the tree(s) eight inches or greater are located.
Provide the name and address and telephone number of the owner or duly authorized agent of said owner, where applicable.
Identify and place on the plan application the location of tree(s) sought to be cut, removed or destroyed.
Mark the trees to be removed on the site with red tape that is visible, weatherproof and reasonably tamper-proof. No tree shall be sprayed with paint, chemicals or otherwise permanently marked, damaged or defaced.
The Town's Director of the Department of Environmental Control, or designee, shall review the site to determine whether the cutting, removal or destruction of said trees shall impair the drainage conditions, create soil erosion or otherwise affect the physical, environmental and/or the aesthetic value of the land.
Where an application is made in conjunction with an application for a building permit, the Town's Director of the Department of Environmental Control or designee shall make an on-site inspection of the lot where all trees to be cut or destroyed are to be clearly identified by tagging as described by § 270-10H above. This site inspection must be made and the tree removal permit issued before any building permit shall be approved.
At the time of filing an application for a tree removal permit or an application in conjunction with one of the enumerated applications set forth in this chapter, the applicant shall deposit with the Town Department of Environmental Control a nonrefundable fee to cover the cost of reviewing the application, making on-site inspections and the issuance of the permit in accordance with the Town Consolidated Fee Schedule as adopted by and which may be amended from time to time by resolution of the Town Board.
Any deciduous tree destroyed or removed in violation of this chapter shall be replaced by a species which is identical to that removed or is otherwise referred to in the U.S. Soils Conservation Service as compatible with the soil type and shall have a minimum size of three-inch caliper. Any coniferous tree which is destroyed or removed in violation of this chapter shall be replaced by a species which is either identical to that removed or is otherwise referred to in the U.S. Soils Conservation Service as compatible with the soil type and shall have a minimum height, excluding root bulk at the time of planting, of eight feet. Notwithstanding the foregoing, if the tree or trees removed is/are invasive species as defined by Cornell Cooperative Extension, for example, the Norway maple, the replacement tree shall be a noninvasive tree.
The Town's Director of the Department of Environmental Control, or designee, may order the replacement of any tree removed or stop any other activity which is carried on in violation of this chapter. The order shall be issued in writing and a copy served upon any person engaged in the tree work upon the subject lot. If no such person is present upon the lot, then the order shall be served upon the applicant, but if no permit has been issued as to such lot, then the order shall be served upon the owner of the lot.
If, in the opinion of the Town's Director of the Department of Environmental Control or Planning Board, sufficient space is not available on the lot on which the development is proposed, the Town official or board may require the applicant to plant the replacement trees on other lands owned by the applicant within the Town, on Town park lands, within public street rights-of-way, or any combination thereof. In lieu of off-site replacement, the applicant may contribute to a municipal tree bank, which is to provide trees to public property based upon a replacement cost estimate prepared by the Town Department of Environmental Control. The Town Board, pursuant to the Municipal Home Rule Law, hereby creates a municipal tree bank fund to be maintained in a separate account strictly linked to the purposes set forth above.
Thereafter, except for such work as is necessary to remedy the violation, any further work shall comply with the terms and conditions of any permit and the provisions of this chapter.
Any applicant aggrieved or affected by the determination of the Town's Director of Environmental Control with respect to an application for a tree removal permit may, within 10 business days of such determination, appeal to the Zoning Board of Appeals, stating the reason for such appeal. The Zoning Board of Appeals shall conduct a hearing on the appeal within 60 calendar days of receipt of a completed application and shall, based upon the standards contained herein and the facts of the matter, deny, grant or grant with conditions the permit being sought.
Any person or persons jointly or severally aggrieved by the decision of the Zoning Board of Appeals pursuant to this chapter may apply to the Supreme Court for review by a proceeding under Article 78 of the Civil Practice Law and Rules. Such proceeding shall be instituted within 30 days after the filing of a decision of the Zoning Board of Appeals in the office of the Town Clerk.
Any person violating a provision of this chapter shall be subject to the provisions of § 270-14 and additionally shall be subject to a minimum fine of $500 and a maximum fine of $1,500 and/or community service in the amount of 30 days, at the discretion of the Justice Court. Any such fines levied, less any mandated state fees, shall be deposited into the municipal tree bank fund provided in § 270-14C of this chapter. If the violator is a person in possession of a permit for tree removal, said permit shall be immediately revoked. Every tree which has been cut or removed in violation of the provisions of this chapter shall constitute a separate offense. Enforcement authority of this chapter is vested in the Town's Director of the Department of Environmental Control, or designee, and officials of the Town of Clarkstown who are authorized to issue appearance tickets to violators.