[HISTORY: Adopted by the Town Board of the Town of Montgomery 10-19-1989 by L.L. No. 5-1989. Amendments noted where applicable.]
A.
The vital environmental function which trees serve within the ecological
structure is well recognized. Trees are recognized to provide various
benefits to the environment, including the stabilization and preservation
of the soil, the absorption of air pollutants and the provision of
oxygen, and further provide natural barriers to noise and habitats
for wildlife, while maintaining and offering an intrinsic aesthetic
quality. The destruction or removal of trees deprives all sectors
of society of these benefits, while disrupting the ecological systems
of which they are an integral part. Moreover, certain trees are especially
significant due to their age, size, location, historical setting and
species, amongst other factors. One such tree known to the Town to
be especially significant is an American sycamore (Platanus occidentalis)
located on Browns Road and which may be designated as the state champion
American sycamore. Thus, it is the intent of the Town Board of the
Town of Montgomery in enacting this chapter to regulate the alteration,
impairment, destruction and removal of certain trees to secure these
various benefits for the present and future inhabitants of the Town
of Montgomery.
For the purpose of this chapter, the following terms and phrases
shall be given the meanings stated herein:
The owner of real property or his duly authorized agent seeking
a permit to alter or remove a tree as defined by this chapter or perform
any substantial physical alteration to the existing terrain within
the dripline of any such tree which is subject to the provisions of
this chapter.
Any individual, firm, partnership, entity, association, corporation,
company, public utility or municipal corporation.
The Town Board of the Town of Montgomery.
A living, perennial, woody plant, including its branches,
its root system and its trunk, which tree shall be within 30 points
of the point score for the state champion tree for the particular
species involved as ascertained by a qualified forester with reference
to the list of Big Trees of New York State as set forth in Section
11 of this chapter[1] or any tree or stand of trees having particular historic
significance as ascertained by resolution or order of any federal,
state or local government board, bureau or agency.
[1]
Editor's Note: Original Section 11 of this chapter lists
big trees in New York State and is on file for public inspection in
the office of the Town Clerk.
No person shall destroy or cause any act which might reasonably
be expected to destroy or impair the health and characteristics or
commit any act which causes the destruction or cessation of life functions
of any tree as defined by this chapter, including, without limitation,
the substantial alteration or any excavation of the terrain within
the dripline of any such tree without first having obtained a permit
issued therefor as prescribed by this chapter.
The Town Board of the Town of Montgomery hereby designates the
aforesaid American sycamore tree located at Browns Road to be the
Official Tree of the Town of Montgomery. Nothing herein contained,
however, should be construed to limit the application of the provisions
of this chapter to this tree only.
This chapter shall be administered by the Town Board, which
shall have the authority to promulgate rules and regulations for the
effective administration of this chapter consistent with the legislative
intent of this chapter. The Town Board also shall have the authority
to delegate, by resolution, the administration of this chapter to
appropriate municipal officials, boards or commissions as now existing
or as may be created in the future.
A.
Every applicant for a permit required by this chapter shall submit
a written application to the Town Board or its duly authorized delegate,
which application shall include but not be limited to the following
information:
(1)
The name and address of the applicant and owner, if not the same,
together with an identification of the tree and a summary of its physical
characteristics.
(2)
The purpose and extent of the proposed tree removal, alteration or
disturbance.
(3)
A sketch of the site of the proposed tree removal, alteration or
disturbance with reference to existing structures, roadways and other
significant features of the area within the vicinity of the tree.
(4)
A certification from a licensed arborist setting forth the basis
for the proposed removal, alteration or disturbance, and, if the application
requests a permit to alter or disturb the tree and/or the ground area
contained within the dripline, the certification shall set forth the
opinion of the arborist as to the effect of such alteration or disturbance
on the overall health of the tree after the requested action has been
completed.
B.
In acting upon the application, the Town Board or its delegate shall
take into account the following considerations:
(1)
The location, size, type, historical setting and age of the tree
to be removed, altered or disturbed.
(2)
The condition of the tree with respect to disease and potential for
creating hazardous conditions.
(3)
The proximity of the tree to existing or proposed structure and utility
appurtenances.
(4)
The necessity of the removal, alteration or disturbance for the proposed
project.
(5)
The environmental effect of the removal, alteration or disturbance.
(6)
Any of the considerations enumerated in the legislative intent of
this chapter.
C.
The Town Board or its duly authorized delegate shall advise the applicant,
in writing, within 45 days of its receipt of a completed application,
of its decision on the application and, upon the favorable determination
of such application, issue a permit therefor. The issuance of any
such permit may be conditioned upon the performance of certain enumerated
conditions and may be subject to the posting by the applicant of a
performance bond for a stated amount and for a stated duration, if
the Town Board deems that the particular facts of the application
warrant the same.
A.
Criminal penalties. Any person who violates the provisions of the
chapter or who destroys, impairs or removes any tree in a manner inconsistent
with any such permit which may have been granted pursuant to this
chapter shall be guilty of a violation punishable by a fine of not
more than $250 or by imprisonment for a period not to exceed 15 days,
or by both such fine and imprisonment.
B.
Civil penalties. In addition to any criminal penalties which may be imposed pursuant to Subsection A, any person who violates any provision of this chapter may be ordered to restore the premises and/or trees damaged by the unlawful destruction, impairment, disturbance or removal of such tree or trees to such suitable conditions as the Town Board may require. In the event that such person refuses or fails to restore the real property to a condition ordered by the Town Board or its delegate, the Town Board may proceed in a court of competent jurisdiction for an order directing such person to restore such real property in conformity with the requirements of the Town Board or its delegate to accomplish the purpose and intent of this chapter. In the event that the Town of Montgomery is compelled to restore such real property, the violator shall be liable for all costs incurred incidental to such remedial efforts and restoration.
Any person with standing who is aggrieved by the final decision
of the Town Board or any duly authorized delegate of the Town Board
with respect to any matter contained in this chapter may commence
a proceeding pursuant to Civil Practice Law and Rules, Article 78,
in a court of competent jurisdiction within 30 days of the date the
final decision is filed with the office of the Town Clerk of the Town
of Montgomery.
