[HISTORY: Adopted by the Common Council of the City of Marion 7-22-1993 as Title 6, Ch. 4, of the 1993 Code. Amendments noted where applicable.]
Intent and purpose. It is the policy of the City of Marion to regulate and establish policy for the control of planting, removal, maintenance and protection of trees and shrubs in or upon all public areas and terrace areas of the City to eliminate and guard against dangerous conditions which may result in injury to persons using the streets, alleys, sidewalks or other public areas; to promote and enhance the beauty and general welfare of the City; to prohibit the undesirable and unsafe planting, removal, treatment and maintenance of trees and shrubs located in public areas; and to guard all trees and shrubs, both public and private, within the City against the spread of disease, insects or pests.
Application. The provisions of this chapter shall apply to trees and shrubs growing or hereafter planted in or upon public areas and terrace areas and also to all trees and shrubs growing or to be planted in or upon any private premises which shall threaten the life, health, safety or welfare of the public or of any public areas.
Whenever the following words or terms are used in this chapter, they shall be construed to have the following meanings:
- BOULEVARD OR TERRACE AREA
- The land between the normal location of the street curbing and sidewalk. Where there is no curb and gutter, the area four feet from the curbline shall be deemed to be a boulevard for the purpose of this chapter. "Boulevard" shall have the same meaning as "terrace." Where there are no sidewalks, the area four feet from the curb shall be deemed boulevard areas under this chapter.
- EVERGREEN TREE
- Any woody plant normally having one stem or trunk and bearing foliage in the form of needles and crowns which extend from ground level throughout its entire height.
- A person appointed by the Common Council to serve as City Forester and administrator of this chapter. Unless otherwise provided, the City Forester shall be the Street Superintendent.
- MAJOR ALTERATION
- Trimming a tree beyond necessary trimming to comply with this chapter.
- Person, firm, association or corporation.
- PUBLIC AREA
- Includes all public parks and other lands owned, controlled or leased by the City, except the terrace areas.
- PUBLIC NUISANCE
- Any tree or shrub or part thereof which, by reason of its condition, interferes with the use of any public area, is infected with a plant disease, is infested with injurious insects or pests, is injurious to public improvements or endangers the life, health, safety or welfare of persons or property.
- PUBLIC TREES AND SHRUBS
- All trees and shrubs located or to be planted in or upon public areas.
- Any woody vegetation or a woody plant having multiple stems and bearing foliage from the ground up.
- Any woody plant normally having one stem or trunk bearing its foliage or crown well above ground level to heights of 16 feet or more.
The City Forester or his authorized representative may enter upon private premises at all reasonable time for the purpose of examining any tree or shrub located upon or over such premises and carrying out any of the provisions of this chapter. If a request to inspect such trees or shrubs is denied by the person responsible for the property, an inspection warrant may be obtained pursuant to § 66.0119, Wis. Stats.
No person shall interfere with the City Forester or his authorized representative while he is engaged in carrying out any work or activities authorized by this chapter.
Dutch elm and other tree diseases a public nuisance. The Common Council has determined that there are may trees growing on public and private premises within the City, the loss of which would substantially depreciate the value of public and private property, impair the use and enjoyment of public and private premises and erode the tax base of the City and that the health and life of such trees is threatened by fatal diseases such as Dutch elm disease, which is spread by the elm bark beetles Scolytus multistriatus (Eichb.) or Hylurgopinus rufipes (Marsh.). The Common Council hereby declares its intention to control and prevent the spread of such diseases and the insect pests and vectors which carry such diseases and specifically declares Dutch elm disease and the elm bark beetles which carry such disease to be public nuisances.
Definitions. As used in this section, unless otherwise clearly indicated by the context, the following terms shall have the meanings indicated:
- Person, firm or corporation.
- (1) Dutch elm disease.
- (2) Elm bark beetles Scolytus multistriatus (Eichb.) or Hylurgopinus rufipes (Marsh.).
- (3) Any living or standing elm tree or part thereof infected with the Dutch elm disease fungus or in a weakened condition which harbors any of the elm bark beetles, Scolytus multistriatus (Eichb.) or Hylurgopinus rufipes (Marsh.).
- (4) Any dead elm tree or part thereof, including logs, branches, stumps, firewood or other elm material from which the bark has not been removed and burned or sprayed with an effective elm bark beetle destroying concentrate.
- (5) Any other deleterious or fatal tree disease.
- (6) Any tree or part thereof which by reason of its condition and location is hazardous or dangerous to persons and property using or upon any public street, sidewalk, alley, park or other public place, including the terrace strip between curb and lot line.
- (7) Any tree or part thereof which is infested by the eastern tent caterpillar or other defoliating larvae.
- PUBLIC PROPERTY
- Owned or controlled by the City, including, without limitation because of enumeration, public sites, parks, playgrounds, streets, alleys, sidewalks, boulevards, and the terrace strip between the lot line and the curb or improved portion of any public way.
The City Forester shall inspect or cause to be inspected all premises and places within the City to determine whether any public nuisance exists thereon. He shall also inspect or cause the inspection of any elm tree reported or suspected to be infested with Dutch elm disease or any elm bark bearing materials reported or suspected to be infested with elm bark beetles.
Whenever necessary to determine the existence of Dutch elm disease or elm bark beetles in any tree, the person inspecting such tree shall remove or cut specimens from the tree in such manner as to avoid fatal injury thereto and deliver such specimens to the Forester, who shall forward them to the Wisconsin Department of Agriculture, Trade and Consumer Protection at Madison for analysis to determine the presence of such nuisances.
The Forester and his agents or employees shall have authority to enter upon private premises at reasonable times for the purpose of carrying out any of the provisions of this section.
Abatement of nuisances; duty of Forester.
The Forester shall order, direct, supervise and control the abatement of public nuisances as defined in this section by spraying, removal, burning or by other means which he determines to be necessary to prevent as fully as possible the spread of Dutch elm disease fungus, other deleterious tree diseases or the insect pests or vectors known to carry such diseases.
Whenever the Forester after inspection or examination shall determine that a public nuisance as herein defined exists on public property in the City, he shall immediately abate or cause the abatement of such nuisance in such manner as to destroy or prevent as fully as possible the spread of Dutch elm disease, other deleterious tree diseases or the inspect pests or vectors known to carry such disease fungus.
When the Forester shall determine with reasonable certainty that a public nuisance exists upon private premises, he shall immediately serve or cause to be served personally or by registered mail upon the owner of such property, if he can be found, or upon the occupant thereof a written notice of the existence of such nuisance and of a time and place for a hearing before the Common Council, or committee thereof, not less than 14 days after service of such notice, on the abatement action to be taken. Such notice shall describe the nuisance and recommend procedures for its abatement and shall further state that unless the owner shall abate the nuisance in the manner specified in the notice or shall appear at the hearing to show that such nuisance does not exist or does not endanger the health of trees in the City, the Forester shall cause the abatement thereof at the expense of the property served. If the owner cannot be found, such notice shall be given by publication in a newspaper of general circulation in the City.
If, after hearing held pursuant to this subsection, it shall be determined by the Common Council, or committee thereof, that a public nuisance exists, it shall forthwith order the immediate abatement thereof. Unless the property owner abates the nuisance as directed within five days after such hearing, the Forester shall proceed to abate the nuisance and cause the cost thereof to be assessed against the property in accordance with the procedures provided in this section. The Forester may extend the time allowed the property owner for abatement work but not to exceed 10 additional days.
Whenever the Common Council, upon the recommendation of the City Forester, shall determine that any tree or part thereof is infected with a deleterious or fatal tree disease or is in a weakened condition or harbors elm bark beetles, it may cause all trees within a one-thousand-foot radius thereof to be sprayed with an effective disease-destroying concentrate or other insecticide.
In order to facilitate the work and minimize the inconvenience to the public of any spraying operations conducted under this section, the Forester shall cause to be given advance public notice of such operations by newspaper, radio, television, public service announcements or other effective means and shall also cause the posting of appropriate warning notices in the areas and along the streets where trees are to be sprayed at least 24 hours in advance of spraying.
When appropriate warning notices and temporary "No Parking" notices have been given and posted in accordance with Subsection E(2) of this section, the City shall not allow any claim for damages to any vehicle caused by such spraying operations.
Responsibility. The size and genus, species and variety of trees and shrubs to be planted in terraces, tree banks and boulevards and the manner of planting shall be submitted to the City Forester for approval before commencement of such work. All planting, maintenance and trimming of trees in terraces shall be the responsibility of the individual property owners.
There shall be a distance of 30 to 50 feet between terrace area trees depending upon the size of tree and other factors. Terrace trees shall be planted equal distance between the sidewalk or proposed sidewalk and back of the curb or proposed back of curb. In terrace areas less than three feet wide, planting will not be permitted. Terrace area trees shall be a minimum of 25 feet from an intersection.
Small-sized trees shall be planted at least five feet from driveways and large- or medium-sized trees shall be planted at least 15 feet from driveways. Trees shall also be planted at least 10 feet from the curb box/water shutoff.
Evergreen trees or shrubs shall not be planted in a terrace area.
It shall be unlawful to plant or maintain shrubbery, ground cover or other plants not considered to be a deciduous leaf tree within terrace areas whose growth is in excess of eight inches in height above the top of the nearest curb.
Tree grates shall be provided for terrace trees surrounded by concrete by the adjacent property owner and shall be level with adjacent concrete.
Certain species restricted. No person shall plant within the City of Marion any female tree of the species Populus deltoides, commonly called the "cottonwood," or any tree commonly called the "seed-bearing box elder" or Acer negundo, which may now or hereafter become infested with box elder bugs, and such trees are hereby declared a nuisance. Any person having any such trees on his premises shall cause the same to be removed.
Unlawfully planted trees. Trees, plants or shrubs planted within any terrace or planting easement without the authorization and approval of the Forester may be removed. The Forester shall notify the abutting owner in writing, listing the unlawfully planted trees, plants or shrubs, ordering their removal, and establishing a reasonable time within which such removal shall be accomplished. In the event that removal is not to be accomplished within the time specified, the City may remove such trees, plants or shrubs and assess the costs thereof to the owner.
Trees and shrubs standing in or upon any terrace or public area or upon any private premises adjacent to any public right-of-way or public areas shall be kept trimmed so that the lowest branches projecting over the public street or alley provide a clearance of not less than 14 feet. The City Forester may waive the provisions of this section for newly planted trees if he determines that they do not interfere with public travel, obstruct the light of any streetlight or endanger public safety.
The necessity of the pruning may be determined by the City Forester.
Clearance from sidewalk to lower branches shall not be less than 10 feet. All trees standing upon private property in the City, the branches of which extend over the line of the street, shall be trimmed so that no branch shall grow or hang over the line of the sidewalk lower than 10 feet above the level of the sidewalk. No tree shall be permitted to grow in such a manner as to obstruct the proper diffusion of light from any public lamp.
Trimming or pruning of more than 2/3 of the crown of a public area tree shall be considered to be a major alteration and shall require a permit from the City Forester.
Notwithstanding any other provision of this chapter, no person shall maintain, plant or permit to remain on any private or public premises situated at the intersection of two or more streets or alleys in the City any hedge, tree, shrub or other growth which may obstruct the view of the operator of any motor vehicle or pedestrian approaching such intersection.
It is unlawful for any person to plant, cause to grow, allow to grow or maintain any trees, bushes, shrubbery or vegetation of any kind which is an obstruction to the clear and complete vision of any traffic sign or driveway approach to a street in the City. It shall be the duty of every owner of such tree, bush, shrubbery or vegetation to remove such obstruction.
Any shrub, tree or other plant which obstructs the view at an intersection or the view of a traffic sign shall be deemed to be dangerous to public travel, and the City Forester may order, by written notice, the owner or occupant of any private place or premises on which there stands a tree or shrub which unreasonably interferes with or encroaches upon the street or sidewalk to take such steps as are necessary to remove such interference. If such owner or occupant fails, within 10 days of receipt of notice, to take such necessary steps, the City Forester and/or Common Council shall order City employees to remove the interference. The cost of removing the interference shall be levied and collected as a special tax upon the property upon which or in front of which such tree or shrub stands.
Dangerous, obstructive and infected trees. Any tree or part thereof, whether alive or dead, which the City Forester shall find to be infected, hazardous or a nuisance so as to endanger the general public or other trees, plants or shrubs growing within the City or to be injurious to sewers, sidewalks or other public improvements, whether growing upon public or private premises, shall be removed, trimmed or treated by the owner of the property upon or adjacent to which such tree or part thereof is located. The City Forester shall give written notice to said owner to remedy the situation which shall be served personally or posted upon the affected tree. Such notice shall specifically state the period of time within which the action must be taken, which shall be within not less than 24 hours nor more than 14 days as determined by the City Forester on the basis of the seriousness of the condition of the tree or danger to the public. If the owner shall fail to remove, treat or trim said tree within the time limit, the City Forester shall cause the tree to be removed, treated or trimmed and shall report the full cost thereof to the City Clerk-Treasurer, who shall thereupon enter such cost as a special charge against the property.
Removal standards. In cutting down trees located in public and terrace areas, the tree must be removed with the root stump grubbed out, or ground out to a depth of at least nine inches below grade measured in a straight line with the normal grade of sidewalk to top of curb. All wood and debris must be removed from the street prior to the end of each working day, and all holes shall be filled to normal grade level with topsoil as soon as practicable. The abutting property owner shall have a right of first refusal to keep the wood, provided that such wood is not diseased.
Private removal. No person, firm, organization or corporation shall plant, injure, trim, remove or destroy any tree or shrub located in or upon any public place until a permit shall have been issued by the City Forester. Such permit shall be issued only when the removal, trimming or cutting of the tree or shrub is necessary, as determined by the City Forester, because of disease, damage, hazardous condition, and/or location, or its location is such that substantial detriment is done to the property upon which the tree or shrub stands, or property abutting the same. Such permit shall expressly state the premises upon which the tree stands and the location of the tree thereon.
Damage to public trees. No person shall, without the consent of the owner in the case of a private tree or shrub or without written permit from the City Forester in the case of a terrace area tree, public tree or shrub, perform or cause to be performed by others any of the following acts:
Secure, fasten or run any rope, wire, sign, unprotected electrical installation or other device or material to, around or through a tree or shrub.
Break, injure, mutilate, deface, kill or destroy any tree or shrub or permit any fire to burn where it will injure any tree or shrub.
Permit any toxic chemical, gas, smoke, oil or other injurious substance to seep, drain or be emptied upon or about any tree or shrub or place cement or other solid substance around the base of the same.
Remove any guard, stake or other device or material intended for the protection of a public tree or shrub or close or obstruct any open space about the base of a public tree or shrub designed to permit access of air, water and fertilizer.
Attach any sign, poster, notice or other object on any tree or fasten any guy wire, cable, rope, nails, screws or other device to any tree, except that the City may tie temporary "No Parking" signs to trees when necessary in conjunction with street improvement work, tree maintenance work or parades.
Cause or encourage any fire or burning near or around any tree.
Excavations. All trees on any parkway or other publicly owned property near any excavation or construction of any building, structure or street work shall be sufficiently guarded and protected by those responsible for such work as to prevent any injury to said trees. No person shall excavate any ditches, tunnels or trenches or install pavement within a radius of 10 feet from any public tree without a permit from the City Forester.
Interference with Forester. No person shall:
Interfere with or prevent any acts of the Forester or his agents or employees while they are engaged in the performance of duties imposed by this chapter.
Refuse to permit the Forester or his duly authorized representative to enter upon his premises at reasonable times to exercise the duties imposed by this chapter.
Permit any public nuisance to remain on any premises owned or controlled by him when ordered by the Forester to abate such nuisance.
Any person who receives a determination or order under this chapter from the City Forester and objects to all or any part thereof shall have the right to appeal such determination or order, subject to the provisions of Chapter 9, Administrative Review, of this Code, to the Common Council within seven days of receipt of the order, and the Common Council shall hear such appeal within 30 days of receipt of written notice of the appeal. After such hearing, the Common Council may reverse, affirm or modify the order or determination appealed from, and the grounds for its decision shall be stated in writing. The Common Council shall, by letter, notify the party appealing the order or determination of its decision within 10 days after the hearing has been concluded. The Council shall file its written decision with the City Clerk-Treasurer.
Sections 27.09 and 86.03, Wis. Stats., are hereby adopted and incorporated herein by reference.