[HISTORY: Adopted by the Board of Supervisors of the Township of Derry as indicated in article histories. Amendments noted where applicable.]
[Adopted 10-8-2019 by Ord. No. 712]
Editor's Note: This ordinance also repealed former Ch. 201, Trees, comprised of Art. I, Administration, adopted 4-25-1960 by Ord. No. 1960-1, as amended, and Art. II, General Rules and Regulations, adopted 11-14-1960 by Ord. No. 1960-4, as amended.
This article shall be known as the "Township of Derry Street and Public Tree Ordinance."
The purpose of this article is to provide for the safety and welfare of the residents of the Township of Derry and to encourage an increase in the tree canopy by providing more comprehensive regulations for the protection, planting, maintenance, and removal of trees in the public rights-of-way and other Township-owned property and public spaces. This article provides for increased tree diversity of species, age, and sizes within the makeup of the urban forest, provides for the organization, duties, and responsibilities of the Shade Tree Commission, establishes permit fees, and provides for the enforcement of the regulations, including the imposition of penalties for violations of public health, safety, and welfare related to this article. This article is coordinated with Chapter 185, Subdivision and Land Development Ordinance, and Chapter 225, Zoning Ordinance of the Code of the Township of Derry. This article is enacted in accordance with the provisions of the Second Class Township Code.
Interpretation. Words and phrases in this section shall be used in their ordinary context unless such word or phrase is specifically defined in this article.
Words in the present tense also apply to the future tense.
The singular includes the plural.
The male (human) gender includes the female and nonbinary genders.
[Amended 3-10-2020 by Ord. No. 2020-01]
The term "shall" or "must" is always mandatory.
The word "used" shall be construed to include the words "or intended, arranged, or designed to be used."
The term "such as" shall be considered as introducing a typical or illustrative designation of items and shall not be interpreted as constituting a complete list.
If a term is defined in this article and is defined differently in other chapters of the Township Code, the definition of the term in this article shall be used as defined in this article.
Definitions. The following words and phrases shall have the particular meanings assigned by this section where used in this article.
- The cultivation, management, and study of individual trees, shrubs, vines, and other perennial woody plants. The science of arboriculture studies how these plants grow and respond to cultural practices and to their environment. The practice of arboriculture includes cultural techniques such as selection, planting, training, fertilization, pest and pathogen control, pruning, shaping, and removal.
- The diameter in inches of the tree trunk 12 inches above the base of the tree at ground level.
- That portion of the street or highway used for vehicular traffic. The cartway includes the shoulders and on-street parking but does not include the tree lawn and sidewalks.
- The Shade Tree Commission of the Township of Derry.
- DBH (DIAMETER AT BREAST HEIGHT)
- The diameter of tree trunks at the height of four feet, six inches from the finish grade at the base of the tree.
- ENFORCEMENT OFFICIAL
- A position assigned to the Township of Derry's Director of Public Works or his designated representative. The Enforcement Official is authorized to carry out enforcement of this article. The Enforcement Official works with the Shade Tree Commission.
- HAZARDOUS TREE
- A tree with structural defects likely to cause failure of all or part of the tree, meaning it could strike a vehicle, building, or place where people gather.
- HEDGE PLANTING
- A hedge or hedgerow that is a line of closely spaced shrubs and tree species, planted and trained in such a manner as to form a barrier to mark the boundary of an area.
- HERITAGE TREE
- A tree having a thirty-inch or greater DBH.
- The International Society of Arboriculture (ISA) who outlines the standard practices for tree care operations that should be adhered to and which can be used to judge and evaluate tree care work.
- LARGE TREES/MEDIUM TREES
- As designated in the Township of Derry Street Tree List (Appendix A). Medium trees range from 30 feet to 70 feet in height at maturity. Large trees are over 70 feet in height at maturity; some species are considerably taller.
- MINOR STREET
- Refers to a street used primarily for access to abutting properties and designed to carry no more than 1,000 vehicular movements per day.
- The written permission given to plant, prune, or remove a public tree according to the standards and specifications that are issued by the Shade Tree Commission and the Enforcement Official.
- Individual, partnership, public or private association or corporation, firm, trust, estate, municipality, governmental unit, public utility or any other legal entity whatsoever, which is recognized by law as the subject of rights and duties.
- PROPERTY OWNER
- Any person, agent, operator, firm, or corporation having a legal or equitable interest in real property or recorded in the official records of the commonwealth, county, or Township as holding title to the property or otherwise having control of the property, including the guardian of the estate of any such person and the trustee, executor, or administrator of the estate of such person, if authorized by law to take possession of real property or if ordered or authorized to take possession of real property by a court. This term shall also apply to any person, legal entity, or agent responsible for the construction, maintenance, or operation of the subject property.
- PUBLIC PLACE
- Includes all parks and other grounds owned, leased, or controlled by the Township of Derry for public purposes.
- PUBLIC RIGHT-OF-WAY
- An area of land encumbered by reservation, dedication, forced dedication, prescription, or condemnation that is occupied or intended to be occupied by a public street, walkway, trail, or other public way.
- PUBLIC TREE
- Includes all shade and ornamental trees now and hereinafter growing on any public right-of-way and any public place. Public trees are also known as "shade trees."
- ROOT CROWN
- That point on a tree where the stem arises from the roots at or just above ground level.
- SHADE TREE
- Any tree subject to this article planted in a public right-of-way or public place. A shade tree is also known as a "public tree."
- A woody plant with several stems, having its growth starting at or just above the ground level. Shrubs are often used for hedges.
- SMALL TREE
- As designated in the Township of Derry Street Tree List (Appendix A). Small trees are less than 30 feet in height at maturity and may be considerably shorter.
- STREET TREE
- Any tree located within the right-of-way of the public streets and highways of the Township and may include a public tree or a shade tree, typically located in the area commonly referred to as the "tree lawn." A street tree is also referred to as a "shade tree" in Chapter 185, Subdivision and Land Development.
- TOP or TOPPING OF THE TREE
- The indiscriminate and drastic cutting back and/or removal of the tree's branches/limbs, leaving large stubs that die back and cause major internal decay and rot. Topping causes a slow decline in the tree health and creates future hazardous trees due to the internal decay and rot that damages the tree.
- The Township of Derry, Dauphin County, Pennsylvania.
- Any woodland plant having one or more erect perennial stems or trunks that at maturity is at least three inches in diameter when measured at four feet above the root crown.
- TREE LAWN
- That part of the street or highway right-of-way adjacent to developed property, not covered by sidewalk or other paving, lying between the property line and curbline, or if no curb exists, the edge of the cartway.
The Township of Derry Street Tree List is attached hereto as Appendix A and is hereby adopted and made a part of this article by reference and is also on file in the Township office. The Street Tree List established in this article may be revised from time to time as deemed necessary by the Board of Supervisors by favorably acting on a resolution revising the Street Tree List.
In addition to Appendix A, the Chocolate Avenue Tree Plan is attached as Appendix B and is hereby adopted and made a part of this article by reference and is also on file in the Township office. The Street Tree List established in this article may be revised from time to time as deemed necessary by the Board of Supervisors by favorably acting on a resolution revising the Street Tree List.
Establishment; terms; membership.
A commission to be known as the "Shade Tree Commission" shall be established, consisting of five members appointed by the Board of Supervisors, all of whom shall be residents of the Township. A majority of the members should have direct experience in forestry, horticulture, landscape architecture, planning, zoning, environmental science, arboriculture, or related fields.
[Amended 3-10-2020 by Ord. No. 2020-01]
Editor's Note: This ordinance also repealed former Subsection A(2), regarding the Township Supervisor's membership, which immediately followed, and redesignated former Subsection A(3) through (6) as Subsection A(2) through (5), respectively.
Initially, one member shall serve for one year, one member for two years, one member for three years, one member for four years, and one member for five years. No member shall receive compensation or salary for service as a member or officer.
On the expiration of the term, or resignation of an unexpired term of any Commissioner, a successor shall be appointed by the Board of Supervisors by a majority vote of the full Board of Supervisors, or the Derry Township Vacancy Board, if the Board of Supervisors cannot agree on an appointment within 30 days of the vacancy to serve a new five-year term or to fill the unexpired portion of a term.
Any member may be removed for malfeasance, misfeasance, or nonfeasance in office or for other just cause by majority vote of the Township Board of Supervisors, taken after the member has received a fifteen-day advance notice of the intent to take such a vote. A hearing shall be held in connection with the vote if the member shall request it in writing.
Within 30 days of the initial appointments, the Commission shall reorganize by electing a president, vice president, and secretary from its membership and such other officers and agents as the Commission may deem necessary.
Powers and duties.
The Commission shall have the exclusive custody and control of the shade trees planted on Township property and within the Township's tree lawns and is authorized to plant, protect, maintain, and remove the shade trees on the public streets and public places within the Township.
Duties of the Commission are as follows:
To study the challenges and determine the needs of the Township regarding shade trees on public streets, along Township trails, and within public places.
To develop a shade tree plan for the scheduled planting of trees within the Township's public places and the priority and species of such trees.
To recommend to the Board of Supervisors the species and sizes of trees to be planted, and those not to be planted, upon the Township streets, along Township trails, and within public places.
To develop and maintain a public shade tree inventory spreadsheet.
To disseminate news and information pertinent to tree issues to the public.
To meet monthly and include the enforcement official in those meetings. This meeting will include review of plans processed under the Township's Subdivision and Land Development Ordinance (Chapter 185) and shall also include Master Plan submissions processed under the Township's Zoning Ordinance (Chapter 225). Any review comments related to the plans shall be forwarded to the Director of Community Development within five days of the meeting.
To identify grants and funding opportunities to plant more shade trees within the Township in tree lawns, along Township trails, and within public places.
To identify heritage trees and maintain an inventory of those trees.
To provide budgetary recommendations to the Department of Public Works.
To review shade tree planting, pruning, and removal requests and to approve or deny such requests based on existing conditions.
To recommend removal of damaged and diseased trees when discovered.
To maintain records of activities associated with the above duties.
The Enforcement Official shall have the authority to enforce standards in regard to planting, maintenance, removal, replacement, fertilization, pruning, and bracing of trees within the rights-of-way on public streets within the Township, and shall direct, regulate, and control the planting, maintenance, and removal of all trees growing now or hereafter in any public places in the Township. He shall cause the provisions of this article to be enforced in accordance with § 201-17. All work shall be performed in accordance with nationally accepted arboricultural standards as set forth by the International Society of Arboriculture (ISA).
No person shall plant, cut, trim, or remove any street tree as defined herein, or fasten any wire, rope, or other material to, around, or through any street tree without first obtaining a permit from the Township. No electrical installations shall be attached to any street tree nor shall excavating of trenches or tunnels be dug within 20 feet of any street tree without first obtaining a permit from the Township.
Requests for permits must be submitted at least 15 days in advance of the time of work to be performed. Applications for permits shall be obtained at the Public Works building or online at derrytownship.org. All permit applications shall state the number and species of trees to be trimmed, removed or planted; the address and location of the tree(s); the exact nature and description of the work to be completed; and any other information that the Commission shall find reasonably necessary.
Utilities or their contractors may apply for and receive blanket permits that will be valid for multiple locations for routine tree maintenance.
The permit fee shall be recommended by the Commission and submitted to the Board of Supervisors for adoption by resolution. The fee amount shall be reviewed and adjusted by the Commission as needed.
Whenever a person obtains a permit to remove a street tree for the purpose of construction or for any other reason, such person shall subsequently replace the tree within one year of the issuance of the tree removal permit, in a location to be determined by the Commission somewhere within the Township, or shall have the Township replace such a tree at the expense of the person who obtained such permit. Permanent replacement trees shall meet the standards of size and species as provided for in the tree removal permit.
It is the duty and responsibility of the property owner of property abutting streets and highways in the Township of Derry for proper maintenance of trees where they are present and adjoining the property. This includes trimming and other maintenance of trees, shrubs, and vegetation in a manner so as to not create a safety or liability issue for motorists, pedestrian traffic, bicyclists, or other activities within the right-of-way.
The owner of the real estate abutting the street where the work is to be done shall be responsible for trimming, transplanting, removal, and replacement of removed street trees in the tree lawns. In areas where tree lawns exist, the setback for tree planting shall be at a point halfway between the curb and the sidewalk whenever feasible. When not feasible, the trees shall be planted as close as practical to the recommended location. Any alternate location must be approved by the Commission.
The owner of the real estate abutting the street in areas without curbs and or sidewalks shall be responsible for trees and shrubs planted or growing from the edge of the cartway to the right-of-way. Trees in these areas shall be trimmed to conform to this article. Shrubs in rural areas shall be trimmed to allow for full use of the cartway so as to not impede vehicular, bicycle or pedestrian traffic. All trees and shrubs within the Township must be trimmed in a manner to allow for full visibility of street signage and minimum required sight distances.
No person shall deposit, store, place or maintain any road salt, brick, sand, concrete or other material which will impede the free passage of fertilizer, water, or air to the root zone of a street tree.
The Township reserves the right but not the responsibility, at the Township's discretion and expense, to trim, transplant, remove, or place street trees located in the public right-of-way of Chocolate Avenue between Hockersville Road and Mansion Road.
Planting of new tree in place of one removed.
As a condition to any permit to remove any street tree, the Township requires that the permittee plant, at the permittee's own expense, another tree in place of the one removed. The permittee shall provide the following information:
The type of replacement tree, as recommended in the Township Street Tree List (Appendix A) to be planted or as may be recommended on the Chocolate Avenue Tree Plan (Appendix B);
The size and location of the tree to be planted; and
The time within which the work shall be done.
Replacement of a street tree must take place within one year of removal. Replacement may not be required if the replacement tree will have a detrimental effect on traffic within the right-of-way or on underground utilities. The Commission may, in certain cases, suggest alternate replacement trees or alternate planting locations if the proposed site will not properly accommodate the replacement tree.
Spacing and location of trees.
Spacing between newly planted street trees shall be a minimum of 25 feet and a maximum of 50 feet apart on center for medium- or large-sized trees. Small trees shall be spaced a minimum of 20 feet apart on center and a maximum of 50 feet apart on center.
No street tree shall be planted within 20 feet of the prolongation of the curbline at an intersection of minor streets. However, no tree shall be planted in a tree lawn within 65 feet of the near edge of a roadway intersection, unless the speed limit of both roadways is 35 miles per hour or less.
In addition to the restrictions established under § 201-8 of this article, no street tree shall be planted less than 12 feet from a fire hydrant, light standard, or utility pole and shall not be planted within three feet of a property line perpendicular to the street or common drive right-of-way.
Size specifications for tree planting and tree replacement.
For commercial property and streets within any new developments subject to Chapter 185 (Subdivision and Land Development), street trees shall be a minimum of two-inch caliper and a maximum of four-inch caliper measured six inches above the root collar. Street trees shall have no branches below a height of six feet measured from the ground level.
Residential property owners may choose to plant trees with a smaller caliper with approval of the Commission.
Planting under existing utility lines. All trees planted under overhead utilities shall be a species which does not obstruct the wires. They shall be small trees, as defined herein, and will be approved by the Enforcement Official or the Commission.
Root zone controls. The Township may require root control devices or material to minimize the effect of root growth on sidewalks, curbs, or underground utilities. This will be determined on an as-needed basis, and the need and type of control will be prescribed by the Enforcement Official or the Commission.
Repair or replacement of damaged trees. In the event a street tree is damaged, the Township may charge for repairs or replacement of the tree or make a charge for the appraised value of the tree, as determined by the Enforcement Official, against the person responsible for the damage to the tree. The only exception to this shall be trees damaged during the emergency repair or maintenance of utilities.
Manner of trimming or pruning. All trimming and pruning of street trees shall be performed in a manner to ensure natural growth of said tree and a natural appearance. Contractors pruning street trees within the Township are required to obtain a permit and notify the Enforcement Official prior to pruning. All work shall be performed in accordance with accepted arboricultural standards as set forth by the International Society of Arboriculture (ISA).
Clearance of trees and hedges over public walks and roadways.
All branches of street trees shall be kept trimmed in a manner to maintain a minimum height of nine feet where they overhang a public walk. Street tree branches shall be kept trimmed to a minimum height of 12 feet where they overhang a minor street. The minimum height for overhanging branches on all other streets shall be 14 feet from the ground to allow for large vehicular traffic.
All street trees, as well as those standing on private property, having branches overhanging streets or public walks shall also be kept trimmed by the owner to the above standards or to such other height as may be specified by the Enforcement Official.
In the case of hedge plantings, they shall be kept trimmed in a manner so as to not encroach over the paved surface of the street or public walk.
Branches will not obstruct streetlights. The property owner shall trim, or cause to be trimmed, any tree branches so that they do not obstruct illumination from streetlights. In the event the property owner neglects or refuses to maintain trees in accordance with this section, within the time specified when notified in writing, the Township may perform such work at the owner's expense and obtain costs thereof as specified in §§ 201-15 and 201-17 of this article.
Hazardous trees and branches. Where hazardous trees or branches overhang the cartway of a street or are growing within the right-of-way, the Township may require the property owner to remove them so as to maintain public safety within the right-of-way. In the event of an emergency or hazardous situation, the Enforcement Official may require them to be removed within 24 hours. In the event the property owner neglects or refuses to remove trees and branches as required in this section, within the time specified when notified in writing, the Township may perform such work at the owner's expense and obtain costs thereof as specified in §§ 201-15 and 201-17 of this article.
Standards for removal of trees.
When, in the judgment of the Commission or the Enforcement Official, sufficient disease, insect damage, decay or other damage exists so as to create a threat to pedestrians or the motoring public, the Enforcement Official may, upon 30 days' written notice, require a property owner to cut and remove such trees within the Township under regulations prescribed by this article. In the event the property owner neglects or refuses to remove trees as required in this section, within the time specified when notified in writing, the Township may perform such work at the owner's expense and obtain costs thereof as specified in §§ 201-15 and 201-17 of this article.
Nondiseased trees or those not infested by damaging insects shall not be removed unless, in the judgment of the Commission, one or more of the following criteria exists:
Where underground utilities are being installed, or repaired, and no other alternative exists such as tunneling, sleeving, or relocation, and the tree will sustain substantial damage so as to not survive.
For traffic safety purposes, to include sight distance and traffic sign visibility, if pruning cannot eliminate the problem.
During repair of damaged sidewalks, consideration shall be given to variations in widths of pavement to allow for tree growth. In those cases where major root damage would be incurred when replacing pavement so as to irreparably damage a tree, relocation of the sidewalk may be considered.
Removal of trees under overhead utilities will be considered if pruning will consist of removal of 2/3 or more of the crown (topping), thereby causing irreparable damage to the tree. A tree removed under such circumstances shall be replaced with a tree from the small tree list.
Removal of fallen trees and parts of trees. In the event a shade tree or its parts are felled by storm or other accident, the tree shall be removed from the right-of-way of a street by the Township without charge. Property owners will be responsible for any removal or cleanup not within the right-of-way, as well as tree replacement if the damaged tree was a street tree within the right-of-way. In the event the property owner neglects or refuses to remove trees and branches as required in this section, within the time specified when notified in writing, the Township may perform such work at the owner's expense and obtain costs thereof as specified in § 201-17 of this article.
Removal of tree stumps. As street trees are removed for various reasons, the stump remaining shall be removed to a point not less than six inches below the grade of the tree lawn from where it is being removed. If the replacement tree is to be planted in the same location, the stump shall be removed to accommodate the replacement tree.
No person shall break, injure, mutilate, kill, destroy, set fire to, or allow fire to burn any shade tree. No person shall allow any toxic chemical, liquid or solid, to empty, drain, or seep into the root system of shade trees.
[Amended 3-10-2020 by Ord. No. 2020-01]
It is recommended that any contractor utilized for tree work in Derry Township is an ISA certified arborist and possesses any licensing required by local, state, or federal regulations.
The Commission may grant a deviation of the requirements of one or more provisions of this article if the literal enforcement will exact undue hardship because of peculiar conditions pertaining to the land in question, provided that such modification will not be contrary to the public interest and that the purpose and intent of this article are observed. All requests for a deviation shall be in writing and shall state in full the grounds and facts of unreasonableness or hardship upon which the request is based, the provision or provisions of the Ordinance involved, and the minimum modification or alternative design necessary to lessen the unreasonableness or hardship. If the Commission denies the request, the applicant has a right of appeal, within 30 days of the denial of the deviation request, to the Board of Supervisors for review and approval, denial, or modification.
Payment of costs for work done by the Township as authorized herein upon the failure of the property owner to comply with a notice issued by the Township Enforcement Official shall be due and payable 30 days after invoice by the Township to the property owner. If the property owner does not pay for the cost within 30 days, the cost shall be considered an assessment against the property and the Township Solicitor may file a lien against the property to ensure payment as may be provided by law or may file an action in assumpsit for the same purpose.
The cost of caring for any shade trees which are planted by the Township shall be paid by the Township unless the maintenance and caring for the tree is the responsibility of the property owner as prescribed herein.
Enforcement as summary offenses. Any person or persons who violate any of the health and public safety provisions of this article shall, upon conviction of a summary offense, be sentenced to pay a fine not to exceed $1,000 and the cost of prosecution, and in default of payment of such fine or cost, to imprisonment for a period of time not to exceed 30 days, in accordance with Section 1601(c.1)(2) of the Second Class Township Code, Act of May 1, 1933, as reenacted and amended November 9, 1995 (P.L. 350, Act No. 60), 53 P.S. § 66601(c.1)(2) et seq.
Civil enforcement. Any person or persons who violate any of the non-health and non-public safety provisions of this article, such as the unwarranted removal of healthy shade trees, shall be subject to civil penalties not to exceed $600 per occurrence. In addition to or in lieu of civil actions before a district justice, the Township may enforce this article in equity. In any case where a penalty for violation of this article has not been timely paid and the person upon whom the penalty was imposed is found to have been liable in civil proceedings, the violator shall be liable for additional daily penalties for continuing violations, plus court costs and attorney's fees incurred by the Township in enforcement proceedings. The foregoing is in accordance with Section 1601(c.1)(1) of the Second Class Township Code, Act of May 1, 1933, as reenacted and amended November 9, 1995 (P.L. 350, Act No. 60), 53 P.S. § 66601(c.1)(1) et seq.
The provisions of this article are severable, and if any section, sentence, clause, part, or provision hereof shall be held to be illegal, invalid, or unconstitutional by any court of competent jurisdiction, such decision of the court shall not affect or impair the remaining sections, sentences, clauses, parts, or provisions of this article. It is hereby declared to be the intent of the Board of Supervisors that this article would have been enacted if such illegal, invalid, or unconstitutional section, sentence, clause, or provision had not been included herein.
This article or any part thereof may be amended from time to time in accordance with the procedures established by law.
In addition to all other immunity which exists at law or in equity, nothing contained in this article shall create an obligation or duty upon the Township. No pedestrian, passenger, driver, owner of property, or any person claiming an interest otherwise affected by provisions of this article shall have any claim against the Township for failure to perform any duty or for performance in a negligent manner.
This article shall not be construed to hold the Township of Derry, the Township Supervisors, the Township Manager, the Shade Tree Commission, or any of their respective officers, employees, or their appointed agents (collectively referred to as "municipal parties") responsible for any damages, injuries, loss or death to person, persons or property by reason of any activity, omission or commission, or act by municipal parties authorized herein or otherwise arising under this article. The approval of any tree or type of tree shall not constitute a representation, guaranty or warranty of any kind or nature by the municipal parties and shall create no liability upon, or a cause of action against, the municipal parties for any damage or loss.
Ordinance No. 1960-1, dated April 25, 1960; Ordinance No. 1960-4, dated November 14, 1960; Ordinance No. 117, dated February 8, 1971; Ordinance No. 137, dated August 13, 1973; Ordinance No. 189, dated November 6, 1978; Ordinance No. 211, dated February 23, 1981; Ordinance No. 218, dated September 14, 1981; Ordinance No. 239, dated June 13, 1983; Ordinance No. 246, dated December 19, 1983 (all of which are codified in the Township of Derry's Code of Ordinances under Chapter XXIV), are hereby repealed in their entirety.