[Adopted 10-15-2004 by Ord. No. 387 (Ch.
223, Art. III, of the 1992 Code)]
The purpose of this article is to establish
standards and requirements for the protection and planting of trees
by developers. It is recognized that trees are desirable and are essential
to health, safety, and welfare of the population. Trees provide oxygen,
reduce carbon dioxide, stabilize soil, cleanse the air, and filter
water passing into the ground. Trees provide protection for wildlife
and their habitat, provide shade, reduce noise and glare, increase
property values, and provide important physical and aesthetic balance
to the developed environment.
As used in this article, the following terms
shall have the meanings indicated:
An outside diameter measurement of the trunk of a tree measured
at a vertical distance of six inches above grade.
Any person or business entity engaging in the development
or redevelopment of real property for purposes of selling or leasing
such improved real property to third parties.
A line on the ground established by a vertical plane ascending
from the tree's outermost branch tips to the ground, i.e., the line
enclosing the area directly beneath the tree's crown from which rainfall
would drip.
Removal of more than 1/4 of the functioning leaf and stem
area of a tree in any twelve-month period, or removal of foliage so
as to cause the demise of the tree.
The two-dimensional configuration of the perimeter boundaries,
as measured on a horizontal plane at ground level, of all improvements
to be constructed or installed on any lot, including all buildings,
outbuildings, decks, patios, steps, driveways, sidewalks or boardwalks,
and other permanently affixed structures or improvements.
Any building lot or parcel of land within a subdivision and/or
planned residential development.
Any of the following: complete removal, such as cutting to
the ground or extraction, of a tree; taking any action foreseeably
leading to the death of a tree or permanent damage to its health,
including but not limited to moving or storing heavy equipment within
the dripline area, excessive pruning, cutting, girdling, poisoning,
over watering, burning, unauthorized relocation, or trenching, excavating,
altering the grade, or paving within the dripline area of a tree.
Removal will not include the removal of trees by individual lot owners
who are not developers.
A tree of suitable species and size, as determined or approved
by the Planning and Zoning Commission,[1] to be planted at the expense of the developer
on the same lot which the removal occurred, unless otherwise provided
under this article, during the species' optimal planting time, but
in all events within three months of the issuance of a certificate
of occupancy, to replace any tree removed during the course of construction
or development on that lot.
Any woody plant which has a trunk eight inches or more in
diameter at 4 1/2 feet above natural grade level.
[1]
Editor's Note: Ordinance No. 527, adopted 11-18-2016, established
the Planning and Zoning Commission. Pursuant to this ordinance, references
throughout the Code to the “Planning Commission” have
been revised to the “Planning and Zoning Commission.”
The terms and provisions of this article shall
apply to any activity on real property by any developer which requires
conditional use, site plan, or subdivision approval of the Planning
and Zoning Commission[1] as set forth in this chapter or any other Town
code. The terms and provisions of this article shall not apply to
the removal of trees by individual lot owners.
[1]
Editor's Note: Ordinance No. 527, adopted 11-18-2016, established
the Planning and Zoning Commission. Pursuant to this ordinance, references
throughout the Code to the “Planning Commission” have
been revised to the “Planning and Zoning Commission.”
Removal, as defined by this article, for any
purpose whatsoever shall be prohibited unless approved by the Planning
and Zoning Commission[1] through the site plan, conditional use, or subdivision
review process.
[1]
Editor's Note: Ordinance No. 527, adopted 11-18-2016, established
the Planning and Zoning Commission. Pursuant to this ordinance, references
throughout the Code to the “Planning Commission” have
been revised to the “Planning and Zoning Commission.”
All reasonable efforts, as reasonably determined
by the Planning and Zoning Commission,[1] shall be used to minimize the removal of trees during
the course of site preparation, construction or development of a lot
by any developer. During the site plan, conditional use, or subdivision
review process, the Planning and Zoning Commission shall determine,
in its reasonable discretion, whether all reasonable efforts have
been exhausted in the development of the lot to minimize the removal
of trees.
[1]
Editor's Note: Ordinance No. 527, adopted 11-18-2016, established
the Planning and Zoning Commission. Pursuant to this ordinance, references
throughout the Code to the “Planning Commission” have
been revised to the “Planning and Zoning Commission.”
A.
Whenever, during the course of construction or development,
on any unimproved lot within a subdivision and/or planned residential
development, any existing trees located outside the proposed structure(s)/footprint(s)
are removed, such trees shall be replaced, except as waived by the Planning
and Zoning Commission,[1] by the developer or his agent, at the developer's
expense, within three months following the issuance of a certificate
of occupancy, unless otherwise provided under this article. Replacement
of trees removed from within the footprint(s) is desirable but not
required.
[1]
Editor's Note: Ordinance No. 527, adopted 11-18-2016, established
the Planning and Zoning Commission. Pursuant to this ordinance, references
throughout the Code to the “Planning Commission” have
been revised to the “Planning and Zoning Commission.”
B.
In the event that any replacement tree dies within
12 months of being planted, the lot owner and/or the Town shall notify
the developer, in writing, of such event and the developer or his
agent, at the developer's expense, shall replace that tree with a
suitable replacement tree (in accordance with this article) within
three months of the date such written notice was given.
A.
All subdivisions and developments requiring approval
of the Planning and Zoning Commission[1] shall submit with their application and plans
the following:
(1)
A scaled drawing of the unimproved lot(s) upon which
is identified the footprint of the proposed structure(s) and the location
and number of all existing trees located outside that/those footprint(s).
Such drawing shall indicate (by "x" or other notation) those existing
trees targeted for removal. All trees outside the footprint are to
be marked with a two-inch band of paint around the tree four feet
from ground level.
(2)
A tree replacement plan, identifying the proposed location, species, and caliper dimension of all replacement trees to be planted on the lot(s) as provided in § 507-11.
(3)
A scaled drawing showing the approximate location
and description of the protective tree fencing, staking, or continuous
ribbon to be installed which, at a minimum, shall follow the dripline
of all trees to be retained outside the footprint, along with adjoining
areas of removal, clearing, grading, or other construction activity.
[1]
Editor's Note: Ordinance No. 527, adopted 11-18-2016, established
the Planning and Zoning Commission. Pursuant to this ordinance, references
throughout the Code to the “Planning Commission” have
been revised to the “Planning and Zoning Commission.”
B.
No building permit shall be issued by the Town for
new construction on any unimproved lot within a subdivision and/or
planned residential development until the applicant has submitted
a tree inventory and replacement plan.
C.
The Planning and Zoning Commission[2] shall review the tree inventory and replacement plan to determine whether all reasonable efforts have been exhausted to minimize tree removal pursuant to § 507-10 of this article, and to ensure the proper location, species, and size (caliper dimension) of the trees identified in the tree replacement plan. The trees identified in the tree replacement plan shall be of a similar or same species of those trees removed (or such other species acceptable to the Planning and Zoning Commission) and shall have a caliper dimension of three inches or more and be at least 10 feet in height. Replacement trees shall be planted during the species' optimal planting cycle but in no event to exceed three months from issuance of certificate of occupancy.
[2]
Editor's Note: Ordinance No. 527, adopted 11-18-2016, established
the Planning and Zoning Commission. Pursuant to this ordinance, references
throughout the Code to the “Planning Commission” have
been revised to the “Planning and Zoning Commission.”
In order to insure compliance with the provisions
of this article, as a condition of obtaining a building permit each
developer shall provide the Town with a performance bond in form acceptable
to the Town, with surety acceptable to the Town, in an amount equal
to $500 times the number of replacement trees required by the Planning
and Zoning Commission[1] for the lot or lots for which such building permit(s)
was/were issued. Such performance bond shall continue in effect for
a period of 12 months following the issuance of the last certificate
of occupancy for such lot or lots. Acceptable surety may consist of
a letter of credit from a banking institution doing business in Delaware;
cash deposited into a bank account in the name of the Town; or a first
lien mortgage on any real property in Sussex County having an appraised
value equal to or exceeding 150% of the amount of the performance
bond. (In the event a developer opts to use a first lien mortgage
as surety, the cost of the title certificate, appraisal, and recording
of the mortgage shall be paid by the developer; the Town will provide
the performance bond and mortgage.)
[1]
Editor's Note: Ordinance No. 527, adopted 11-18-2016, established
the Planning and Zoning Commission. Pursuant to this ordinance, references
throughout the Code to the “Planning Commission” have
been revised to the “Planning and Zoning Commission.”
Any developer violating any provision of this article shall, upon conviction,) pay such fines as set out in Chapter 1, General Provisions, Article I, Penalties, for each tree unlawfully removed or not timely replaced as required by this article. Additionally, the developer or his agent shall replace any tree as required by this article within six months from the issuance of a certificate of occupancy or written notice of a dead replacement tree, as the case may be. In the event replacement trees have not been planted within the identified six months, the amount of the fine as to that developer or his authorized agent shall be doubled for each tree not timely replaced. This per-tree fine shall double again every six months for five years thereafter that replacement trees are not planted. Each failure to have planted replacement trees required by this article within the initial three-month period and each successive six-month period shall constitute a separate offense, punishable as such, but subject to the escalating fines provided herein.
