[HISTORY: Adopted by the Town Board of the
Town of New Castle 4-12-2011 by L.L. No. 7-2011;[1] amended in its entirety 5-29-2018 by L.L. No. 9-2018.
Subsequent amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 60.
Environmental quality review — See Ch. 65.
Streets and sidewalks — See Ch. 111.
Subdivision of land — See Ch. 113.
Wetlands — See Ch. 137.
[1]
Editor’s Note: This local law also repealed former Ch.
121, Tree Preservation, adopted 8-18-1992 by L.L. No. 13-1992, as
amended.
The Town of New Castle finds and declares that the preservation
of trees within the Town is necessary to protect the health, safety
and general welfare of the Town of New Castle because trees provide
shade, impede soil erosion, aid water absorption and retention, inhibit
excess runoff and flooding, enhance air quality, offer a natural barrier
to noise, provide a natural habitat for wildlife, provide screening,
enhance property values and add to the aesthetic quality of the community.
Trees also can reduce air-conditioning costs by providing shade and
can reduce cooling and heating costs by serving as windbreaks, resulting
in energy efficiency for the heating of buildings. Trees reduce levels
of carbon dioxide and return oxygen to the atmosphere, and buffer
views of development. By maintaining the existing character of the
Town, they enhance property values and contribute to the significance
of historic buildings, structures and places in the Town. Trees serve
as an amenity that satisfies residents' psychological and aesthetic
needs.
As used in this chapter, the following terms shall have the
meanings indicated:
A person requesting a tree removal permit from the Town or
a person to whom a tree removal permit has been given.
The Town Environmental Coordinator shall be the approving
authority, except that the Planning Board shall be the approving authority
for any tree removal permit application that is associated with property
subject to a pending site plan, subdivision, special permit or other
environmental permit application in accordance with the zoning requirements
of the Town of New Castle. The Zoning Board shall be the approving
authority for any tree removal permit application that is associated
with property subject to a pending special permit application before
the Zoning Board that is not subject to any Planning Board permit
(e.g., wetland permit, steep slopes permit, stormwater pollution prevention
plan).
An individual who has demonstrated knowledge and competency
as evidenced by a current International Society of Arboriculture arborist
certification.
The standard for trunk measurement of nursery stock. The
caliper of the trunk shall be taken six inches above the ground for
up to and including four-inch caliper size, and 12 inches above the
ground for trees of larger diameters.
Removal of 10 or more trees in a quarter-acre area on any
lot within a calendar year.
The Conservation Board of the Town of New Castle, New York.
The minimum area beneath a tree in a concentric circle centering
on the subject tree's trunk with a radius equal in feet to 1.5 times
the number of inches of the trunk's diameter at breast height (4.5
feet).
A tree that is dead or that has been determined by a certified
arborist to be damaged beyond salvaging or in an advanced state of
decline (where an insufficient amount of live tissue, green leaves,
limbs or branches exist to sustain life).
A standard measurement of trees made at 4 1/2 feet above-ground
level on the uphill side.
The Environmental Coordinator of the Town of New Castle,
New York, or the person acting in that capacity, as designated by
the Town Board.
The Environmental Review Board of the Town of New Castle,
New York.
A tree that possesses a structural defect or one whose location
and/or position poses a foreseeable danger to persons or property,
as determined by the Town Arborist, or certified arborist in consultation
with the Town Arborist.
Damage to a tree foreseeably leading to tree death or permanent
damage to tree health, including a wound resulting from any activity,
including but not limited to excessive pruning, cutting, trenching,
excavating, altering the grade, paving or compaction, bruising, scarring,
tearing or breaking roots, bark, trunk, branches or foliage or application
of herbicide or poisoning. A wound resulting from normal pruning shall
not constitute an "injury" for purposes hereof.
Any individual person, firm, partnership, association, corporation,
company, organization or legal entity of any kind, including public
agencies and municipal corporations.
The Planning Board of the Town of New Castle, New York.
Any activity set forth in § 121-3 hereof.
A natural and/or landscaped area consisting of vegetative
screening measured from each property line of a residentially zoned
property towards the interior of such property as follows:
A tree subject to regulation in this chapter.
Any of the following:
The periodic removal of individual trees or small groups
of trees from a large area so that the age and size classes of trees
within an area are mixed, both in age and diameter, to improve overall
sustainability of the forest.
A tree with a DBH of 18 inches or larger, and small native
or ornamental flowering trees with a DBH of eight inches or larger.
Any tree growing within the street right-of-way, outside
of private property.
Any natural occurring or secondary conditions such as cavities,
poor branch attachment, cracks, or decayed wood in the trunk, crown,
or roots of a tree that may contribute to structural failure.
Any operation in which a landowner or representative of the
landowner removes trees for commercial purposes. "Timber harvest"
shall include only selective cutting of timber.
The Town of New Castle, New York.
The Environmental Coordinator of the Town of New Castle shall
be the Town Arborist provided the Environmental Coordinator is an
arborist as defined in this chapter.
The Town Board of the Town of New Castle, New York.
Any living woody plant with a DBH of four inches or more.
A fund to be established and administered by the Town Board providing for the payment of fees as mitigation for removal of trees where tree replacement requirements cannot be met on-site. Refer to § 121-8 for more details regarding Tree Bank Fund.
A permit granted under this chapter, which allows the removal
of regulated trees as defined herein.
The number of trees to be replaced as part of the permit requirements for securing a tree removal permit as provided in § 121-6.
A plan that identifies areas where existing trees are to
be preserved and where proposed replacement trees are to be planted
on a property to meet minimum requirements, as well as methods of
tree protection to be undertaken on the site and other pertinent information.
The arrangement of food, water, shelter or cover and space
necessary to ensure the existence and survival of wildlife.
The Zoning Board of Appeals of the Town of New Castle, New
York.
Except as provided in § 121-4, Activities permitted by right, or as otherwise described below, it shall be unlawful to conduct, directly or indirectly, any of the following activities within the territory of the Town of New Castle, unless and until a tree removal permit shall have been obtained pursuant to § 121-5:
A.
Any clearing.
B.
Within the regulated landscape buffer zone, any removal of a tree
with a DBH of four inches or more.
C.
Outside of the regulated landscape buffer zone, any removal of a
tree with a DBH of eight inches or more.
D.
Any removal of a specimen tree.
E.
Removal of any street tree within the Town's designated right-of-way.
F.
Work to be conducted on or within the critical root zone of any street
tree.
The following activities are permitted by right without the
requirement of a permit:
A.
Removal of any tree not regulated by this chapter.
B.
Removal of any dead tree, hazardous tree or other tree that creates
an actual or ongoing emergency condition. The Environmental Coordinator
may request verification and/or photograph documentation, which demonstrates
that such tree was dead, hazardous or created an actual or ongoing
emergency.
C.
Forest management activities:
(1)
On property assessed under § 480-a of the Real Property
Tax Law and for which a certificate of approval by the New York State
Department of Environmental Conservation (NYSDEC) is on file with
the Town; or
(2)
On property participating in any other NYSDEC approved forest management
or stewardship program, for which a NYSDEC approved forest management
or stewardship plan is on file with the Town, and which is undertaken
in accordance with best management practices of forestry accepted
by NYSDEC and the provisions of that program or plan.
D.
Any removal of trees to be done by or on behalf of the Town of New
Castle.
E.
Any removal of trees required by public entities, agencies or electrical
utilities that by operation of law are exempt from the permit requirements
of this chapter. All public entities, agencies and electrical utilities
shall provide notification to the Town Arborist and to the property
owner of property where tree removal will be conducted, prior to the
removal of any tree or trees.
A.
Any person seeking to conduct or causing to be conducted any activity listed in § 121-3 shall file an application for a tree removal permit for such removal with the approving authority as hereinafter provided, in hard copy and in an electronic file format. Except when the Planning Board or Zoning Board is the approving authority, the application for a tree removal permit shall not be subject to a public hearing. For all applications for removal of three or more trees, notice of the application shall be mailed by the applicant, on a form provided by the Town, by certified mail, return receipt requested, to all property owners of record within 100 feet of the boundaries of the property on which the proposed regulated activity will be conducted. A list of the names to whom notice of the application was sent and proof of such mailing shall be submitted as part of the application for the tree removal permit. The approving authority shall make its determination based upon its inspection of the property and the description of the proposed removal contained on the application. The application shall, at a minimum, include the following information:
(1)
The name and address of the property owner and applicant, if different.
(2)
The street address and Tax Map designation of the property where
the removal is sought.
(3)
A statement of authority from the owner for any agent making application
for a permit.
(4)
A general description of the proposed removal(s) and purpose.
(5)
A completed tree replacement plan based on the tree replacement requirements in § 121-6. The approving authority may waive this requirement if it is determined that, because of site constraints, it is impracticable or impossible to replace certain trees, or where the approving authority determines that, because of relevant site planning considerations, tree replacement is not warranted. The approving authority may consider payment of a fee to the Tree Bank Fund to satisfy the unmet portion of tree replacement requirements. A tree replacement plan shall include the following:
(6)
Tree removal permit applications involving any clearing shall also
include:
(a)
An inventory of existing trees proposed to be removed as follows:
[1]
All existing trees four inches in DBH, located within the regulated
landscape buffer zone, and all existing trees eight inches in DBH,
located outside of the regulated landscape buffer shall be surveyed
for species (common name), size (DBH) and tree condition rating. Trees
to be removed shall be listed within table that shows species, size
and condition and included with the application form; and
[2]
Each existing tree in the inventory shall be assessed by a certified
arborist as per standards outlined by the International Society of
Arboriculture.
(b)
A tree replacement plan submitted in conjunction with any clearing action shall be certified by a professional forester, landscape architect or arborist, drawn to a scale no less detailed than one inch equals 20 feet. The tree replacement plan, in addition to the requirements in § 121-5 above and § 121-6, shall include the following:
(c)
An explanation as to why a proposed activity prompting the removal
cannot be located on a different portion of the site or on another
lot under the applicant's ownership and control.
(d)
Additional information as needed, such as the study of flood,
erosions or other hazards at the site and the effect of any protective
measures that might be taken to reduce such hazards, and other information
deemed necessary by the approving authority to evaluate the proposed
removal in terms of the goals and standards of this chapter.
B.
An application fee and inspection fee in such amounts as are set
forth by resolution of the Town Board in the Master Fee Schedule,
which may be amended.
C.
All information relating to a tree removal permit application, including
but not limited to the application itself, and additional required
materials or information (if any) shall be maintained on file in the
office of the Town Building and Engineering Department.
D.
The approving authority for all applications shall be the Town's
Environmental Coordinator, except that the Planning Board or Zoning
Board shall be the approving authority for any tree removal permit
application that is associated with property subject to a pending
site plan, subdivision, special permit or other environmental permit
application in accordance with the zoning requirements of the Town
of New Castle.
E.
Applications for tree removal permits under this chapter, except for those submitted to the Planning Board or Zoning Board under § 121-5D, shall be approved, approved with conditions, denied, or returned to the applicant, requesting further action on the application, within 21 business days of the receipt of a complete application.
F.
Application for tree removal permits may relate to multiple activities
regulated under this chapter and may be issued for activity to take
place during the twelve-month period following the issuance of the
tree removal permit, it being the intent of this chapter that no more
than one tree removal permit shall be required per applicant per year,
irrespective of the amount and nature of removal sought.
H.
A stormwater pollution prevention plan ("SWPPP") consistent with the requirements of Chapter 108A, Stormwater Management and Erosion and Sediment Control, shall be required for any tree removal permit approval that qualifies as or authorizes a land development activity as defined in Chapter 108A. The SWPPP shall meet the performance and design criteria and standards in Chapter 108A. The approved tree removal permit shall be consistent with the provisions of that chapter.
A.
All existing trees are subject to replacement.
B.
Tree replacement shall occur on-site, except where the approving
authority determines that, because of site constraints, it is impracticable
or impossible to do so, or where the approving authority determines
that, because of relevant site planning considerations, it is not
warranted. The approving authority may consider payment of a fee to
the Tree Bank Fund to satisfy the unmet portion of tree replacement.
C.
The total aggregate diameter of trees removed shall be replaced with
new trees according to the following percentages:
(1)
Trees with a DBH of four inches to 17 inches, subject to replacement
of 25% of the aggregate diameter of trees removed.
(2)
Specimen trees (18 inches DBH or greater) and specimen ornamental
trees (eight inches DBH or greater), subject to replacement of 50%
of the aggregate diameter of trees removed.
D.
Tree replacement plans that consist of more than 10 new trees shall
incorporate at least three separate tree genera whereby no single
tree genus accounts for more than 33% of all newly planted trees.
Exceptions to this requirement may be authorized by the approving
authority, when site specific conditions may warrant such a change.
E.
Replanted trees shall be ecologically compatible with the site and
neighboring properties. Replanted trees shall be of the same or similar
species as those removed when practical. See Appendix A[1] for a list of recommended tree and shrub species. Invasive
trees shall not be allowed under any circumstances. Deviations from
the Recommended Tree and Shrub List are acceptable with prior approval
from the approving authority. Standards for transplanting of trees
and shrubs shall follow the International Society of Arboriculture
publication "Tree and Shrub Planting Manual."
[1]
Editor's Note: Said appendix is on file in the Town offices.
F.
At a minimum, 50% of the replacement trees shall be canopy (overstory)
trees (mature height greater than 40 feet).
G.
At a minimum, 25% of the replacement trees shall be understory trees
(mature height less than 40 feet).
H.
All replacement trees shall be a minimum of 2 1/2 inch caliper.
For evergreen trees, a minimum size of eight to 10 feet balled and
burlapped is required.
I.
An applicant may substitute a total of eight two-gallon-size shrubs
(minimum of three feet in height) to replace one tree.
J.
The approving authority may reduce the total required tree replacement
DBH where the trees proposed for removal include invasive species,
such as Norway Maples.
A.
In making its determination to grant, deny or grant with conditions
a tree removal permit under this chapter, the approving authority
shall consider the following factors:
(1)
Whether the proposed removal is consistent with the purpose and findings of this chapter as set forth in § 121-1 of this chapter.
(2)
The possible or practicable alternatives to the proposed removal.
(3)
Effect on the critical root zone.
(4)
Whether the removal(s) will have significant negative effects upon:
(5)
Whether the tree or trees to be removed are of species listed on
the New York State list of endangered trees or trees of special concern.
(6)
Whether the tree or trees are located near existing or proposed improvements.
B.
In cases where the Town's Environmental Coordinator is the approving
authority, the applicant will be notified of permit decisions within
21 business days of the application being received by the Town. If
the permit is denied, the applicant will be notified in writing by
the approving authority of the reason or reasons for such denial.
C.
If the approving authority requires payment of a fee to the Tree
Bank Fund to satisfy the unmet portion of the tree replacement requirements,
the applicant shall pay a fee in such amount as set forth by resolution
of the Town Board in the Master Fee Schedule, which may be amended.
A.
Purpose. The Tree Bank Fund shall be a fund to receive in-lieu payments from applicants to satisfy tree replacement requirements as set forth in § 121-6, which cannot be met on-site where the approving authority determines that it is impracticable or impossible to do so, or where the approving authority determines that, because of relevant site planning considerations, it is not warranted as determined by the approving authority. In addition, any public or private entities that wish to donate to the Town of New Castle to provide trees to be planted may donate to the Tree Bank Fund for said purpose.
B.
Applicability. The Tree Bank Fund applies to all properties seeking
tree removal permit approval in the Town of New Castle pursuant to
this chapter.
C.
Use of funds.
(1)
Payments and contributions to the Tree Bank Fund shall be used for
the sole purpose of planting and maintaining trees, including fertilizing
and trimming, and other applicable landscaping projects for public
benefit on public property or private property within a public easement
with the Town of New Castle. Funds should, if feasible, first be applied
to projects within the closest proximity to where the tree removal
has occurred.
(2)
Funds in the Tree Bank Fund shall be administered by the Director
of Planning in consultation with the Environmental Coordinator. Projects
and fund allocation shall be approved by the Town of New Castle Town
Board.
(3)
Proposed landscaping may include trees, shrubs, and other permanent
plant materials. Planting and maintenance includes purchase, transportation,
mulching, watering, fencing and labor associated with replacement
plantings, and other applicable landscaping. The Tree Bank Fund may
be used to fund other associated project tasks including the installation
of irrigation systems to support plantings, design, tree inventory,
tree boxes, and soil amendments that enhance and promote long-term
sustainability of plantings.
(4)
Public lands include parks, preserves, public open spaces, community
and civic facilities, and land within public rights-of-way within
the Town of New Castle.
(5)
The Director of Planning, in consultation with the Environmental
Coordinator, shall provide an annual report of the Tree Bank Fund
to include an itemized list of receipts and expenses, a list of projects
completed, and the current balance remaining in the fund. The Annual
Report shall also include a list of proposed projects and an estimated
budget for the following year. The Annual Report shall be submitted
to the Town Board annually by November 15 for review and approval.
D.
Required contribution. The required contribution shall be $200 per
tree, plus a fifteen-percent contingency. Payment into the Tree Bank
Fund shall be made prior to the issuance of any tree, building or
other applicable permit by the approving authority.
Any permit issued pursuant to this chapter may contain such
conditions as the approving authority deems necessary to ensure compliance
with the legislative intent of this chapter.
A.
The approving authority may require, prior to the commencement of
any clearing authorized under any tree removal permit pursuant to
this chapter, that the applicant post a bond or other security deemed
acceptable to the approving authority in such amount and with surety
and conditions sufficient to secure compliance with the conditions
and limitations set forth in the tree removal permit.
B.
The planting of less than 10 replacement trees may require a monitoring
plan for at least five years, but no more than 10 years, the length
of said monitoring program shall be determined by the approving authority.
The planting of 10 or more trees shall require a monitoring plan for
at least five years, and a maintenance bond of 35% of the cost of
the plants and labor to install replacement trees for at least five
years, the length of said monitoring program and maintenance bond
shall be determined by the approving authority.
A.
The approving authority may suspend or revoke a tree removal permit
in the form of a stop-work order if it finds that the applicant has
not complied with any or all of the terms of such tree removal permit,
has exceeded the authority granted in the permit; or has failed to
undertake the project in the manner set forth in the approved application.
B.
The applicant shall be provided written notice of such stop-work
order as soon as reasonably practicable but no later than three days
after issuance of the same, which notice shall be delivered personally
or by certified mail and addressed to the applicant's address as shown
on the tree removal permit. Immediately upon the receipt of a stop-work
order, applicant and anyone acting on applicant's behalf shall cease
all work being undertaken pursuant to the tree removal permit. Such
applicant shall be entitled to a hearing before the approving authority
after work has been stopped. If such a hearing is requested by the
applicant, in writing, within five days of receipt of notice of the
stop-work order, such hearing shall be scheduled by the approving
authority within 10 days of receipt of request of a hearing. After
the close of the hearing, the approving authority may confirm, modify
or cancel the stop-work order.
C.
The approving authority shall set forth in writing its findings and
reasons for revoking or suspending any tree removal permit pursuant
to this section and keep a copy in the permit application file.
The tree removal permit shall be valid for one year from the
date of its issuance, including approved tree removals and any required
tree replacements, or other permit conditions, unless a different
term is otherwise specified by the approving authority. All tree removal
permits shall expire upon completion of the work specified therein.
The validity of any work duly completed pursuant to an existing tree
removal permit shall not be affected by the expiration of the tree
removal permit, but such work shall not be continued beyond the expiration
date. Tree removal permits may be renewed by the approving authority
upon application submitted at least 21 days before the expiration
of the original tree removal permit. Standards for issuance of renewals
shall be the same for the issuance of tree removal permits.
No tree removal permit granted pursuant to this chapter shall
remove an applicant's obligation to comply in all respects with the
applicable provisions of any other federal, state or local law or
regulation, including but not limited to the securing of any other
required tree removal permit or approval.
A.
In the case of an application decided by an approving authority other
than the Planning Board or Zoning Board of Appeals, the applicant
or any other party aggrieved by such determination may seek review
by appealing to the Environmental Review Board.
(1)
Any party aggrieved or affected by the determination of the Town's
Environmental Coordinator, with respect to a tree removal permit may,
within 10 business days of such determination, appeal to the Environmental
Review Board. The application must set forth the reasons for such
appeal.
(2)
The Environmental Review Board shall conduct a public hearing on
the appeal at its next scheduled meeting and shall, based upon the
standards contained herein and the facts of the matter, deny, grant
or grant with conditions the permit being sought.
(3)
The applicant shall mail, by certified mail, return receipt requested,
at least 10 days before such hearing, notice of the hearing to all
property owners of record within 100 feet of the boundaries of the
property on which the proposed regulated activity will be conducted.
A list of the names to whom notice of the application was sent and
proof of such mailing shall be submitted to the Environmental Review
Board prior to the hearing.
(4)
The tree permit which is the subject of the appeal shall be stayed
pending determination of the appeal; provided, however, that the Environmental
Coordinator may authorize work as may be necessary in order to mitigate
any ongoing environmental impacts or hazardous condition.
B.
A determination by the Environmental Review Board, Planning Board,
or Zoning Board of Appeals to grant or deny a tree removal permit
may be reviewed, by the applicant or any other aggrieved person by
the commencement of an action pursuant to the provisions of Article
78 of the Civil Practice Law and Rules within 30 days of the filing
of such a determination with the Town Clerk.
Any site for which an application has been submitted shall be
subject to inspection upon notice to the property owner and applicant
at any reasonable time, including weekends and holidays, by the approving
authority or its designated representatives. The applicant, by making
application for such tree removal permit, shall be deemed to have
given its consent to such inspection.
A.
Within 30 days after completion of all removals authorized under
a tree removal permit issued in accordance with this chapter, the
applicant shall notify the Environmental Coordinator of such completion.
B.
Within 30 days of such notification of completion of work, the Environmental
Coordinator shall inspect the removal site for compliance with all
conditions of the permit.
(1)
When all removal(s) authorized under a tree removal permit are deemed
to be completed in an acceptable fashion according to conditions of
the tree removal permit, the Environmental Coordinator shall issue
a certificate of completion which shall be accompanied by cancellation
or return of any bond posted for such purpose.
(2)
When removals authorized under a tree removal permit are deemed not
acceptable, the Environmental Coordinator shall so notify the applicant.
The notification of noncompliance shall include a list of all conditions
in violation of the terms of the tree removal permit and shall specify
a time limit for the correction of all items so listed.
A.
Any person who violates any provision of this chapter shall be guilty
of an offense, punishable by a fine of $250 per tree of four inches
to 12 inches DBH; $750 per tree of 12 inches to 18 inches DBH; $1,500
per tree of 18 inches to 24 inches DBH, and $2,500 per tree of 24
inches or more DBH. Each violation of the provision of this chapter
shall be a separate and distinct offense. In addition, any offender
may be ordered by the court to replant trees that were improperly
removed, insofar as that is possible. The court shall specify a reasonable
time for completion of such restoration, which shall be effected under
the supervision of the approving authority. The fines remitted to
the Town shall be deposited into the dedicated Tree Bank Fund.
B.
In addition to the penalties outlined in § 121-17A above, the Town shall not issue a building permit, temporary certificate of occupancy or certificate of occupancy for any property for which a violation of this chapter has been served until said violation is dismissed or resolved to the satisfaction of the approving authority or court, as is appropriate.
C.
The Town Engineer, Deputy Town Engineer, Building Inspectors, Code
Enforcement Officers and the Town Environmental Coordinator are hereby
authorized to issue stop-work orders, appearance tickets and summonses
for violation of this chapter.
If any provision of this chapter shall be held for any reason
to be invalid, such determination shall not invalidate any other provision
hereof, which other provisions shall remain in full force and effect.
