[HISTORY: Adopted by the Town Board of the
Town of Clarkstown 8-20-2013 by L.L. No. 6-2013.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Building construction administration — See Ch. 109.
Flood damage prevention — See Ch. 146.
Quarrying and blasting — See Ch. 220.
Site plan review — See Ch. 246.
Stormwater management — See
249A.
Subdivision of land — See Ch. 254.
Zoning — See Ch. 290.
[1]
Editor's Note: This local law also repealed former Ch. 270,
Tree Preservation, adopted 10-23-2007 by L.L. No. 17-2007, as amended.
This chapter shall be known and may be cited as the "Tree Preservation
Local Law of the Town of Clarkstown."
The Town of Clarkstown has a vital interest in the planting
and preservation of trees within its territorial boundaries. Trees
stabilize the soil on slopes, thereby preventing erosion, siltation
and flooding. They control water pollution, purify the air by generating
oxygen, mitigate noise and reduce energy consumption by providing
shade. In performing these functions, they increase the value of all
properties in the Town of Clarkstown. The destruction and removal
of trees causes increased costs to the Town for remediating drainage
control, impairing the value of both improved and unimproved property,
and has a deleterious effect on the health and general welfare of
the citizens of Clarkstown. It is therefore the intent of this chapter
to establish standards for the protection of these valuable resources
and to provide a workable method of determining under what circumstances
a tree may reasonably be removed. Toward that end, the Town Board
of the Town of Clarkstown has implemented these regulations for the
following purposes:
A.
To preserve the semirural appearance of the Town by encouraging owners
of existing homes, vacant lands and commercial parcels to save or
replace mature tree species when developing their parcels;
B.
To control and regulate the indiscriminate removal, cutting and destruction
of trees in order to regulate and prevent soil erosion, surface runoff
and aesthetic blight;
C.
To preserve existing woodlands and maintain tree buffers;
D.
To promote air pollution mitigation;
E.
To preserve wildlife habitat and ecosystem protection;
F.
To serve as noise buffers, climate moderation, and foster energy
conservation.
As used in this chapter, the following terms shall have the
meanings indicated:
Architectural Historic Review Board.
[Amended 6-28-2016 by L.L. No. 8-2016; 9-8-2020 by L.L. No. 2-2020]
The owner of land proposed to be developed or subdivided, or the owner's duly authorized representative, or individual receiving a tree removal permit under § 270-6 of this chapter.
The diameter of a tree measured at 12 inches above grade.
As defined by the International Society of Arboriculture
(ISA). It shall include a "consulting arborist" who satisfied the
requirements of the American Arborists (ASCA) and who is determined
by the ASCA to meet the standards of certified or consulting arborist
as defined above.
The detaching or separating from a tree any live limb or
branch over one inch in diameter, any pruning which changes the shape
or natural character of the tree or any branch removal that removes
more of the tree canopy than recommended under ISA standards.
The diameter of a tree measured at a point of 4 1/2
feet above ground level at the base of the tree on the uphill side.
Department of Engineering and Facilities Management.
[Added 9-8-2020 by L.L. No. 2-2020[1]]
An imaginary, roughly circular line extending from the maximum
spread of the limbs of a tree perpendicular to the ground.
Any act that may cause a tree to die within a three-year
period from the date of the act, including but not limited to girdling,
stripping of bark, setting fires on or near a tree, severe pruning,
applying chemicals, or changing the ground level within the drip line.
A tree of a specific species or size that may not be reshaped,
altered, damaged, relocated or removed without first obtaining a tree
removal and cutting permit from the Town of Clarkstown. Protected
trees shall not include trees planted and growing in a licensed nursery
for sale or planted and grown as part of an active commercial orchard.
The physical removal of a tree or causing the death or untimely
decline of a tree through actions including but not limited to damage,
destruction, unnecessary disfigurement, withholding water, poisoning,
or other deliberate or willful action or inaction.
A tree that is representative of a particular species in
form and size. It is a tree that may also represent the character
of an area or neighborhood.
See § 290-3 for definition.
Any woody perennial plant characterized by having a single
trunk or multitrunk structure at least 10 feet high and having a major
trunk with a caliper of at least four inches measured 54 inches above
the ground level. It shall also include those species of plants generally
designated as trees and any required tree shown on Town-approved landscape
plans.
A map of the property in question that shows site boundaries, all existing and proposed structures, easements, etc., and the location, species, DBH and condition of all existing trees with a DBH of eight inches or greater and all trees proposed to be removed with a DBH of eight inches and greater. Additionally, all trees proposed to be removed with a DBH of three inches and greater, or eight feet in height or greater for evergreens, must be shown if included on a previously approved landscape plan. The tree preservation plan shall detail the methods and practices to be used to provide protection from injury during construction for all trees to be preserved. See § 270-5 for further details on the requirements of the tree preservation plan.
[Amended 9-8-2020 by L.L. No. 2-2020]
A written authorization to remove a tree(s) pursuant to this
chapter.
[1]
Editor's Note: This local law also repealed the former definition
of "DEC," which immediately preceded this definition.
This chapter shall apply to all property owners, including owners
of existing residential dwellings within the Town of Clarkstown. This
law shall apply to but not be limited to the owner of the property
wishing to cut or remove a tree as defined above, all persons or corporations
who will be applying for building permits, all persons or corporations
applying for site plan approval, land disturbance permits, applications
for minor and major subdivisions, and any persons or corporations
who wish to remove trees for any other purpose not stated herein.
This chapter shall not apply to site plan or subdivision applicants
who have been granted preliminary approval prior to the effective
date of this chapter or to site plan or subdivision applications which
do not propose cutting or removal of existing trees. This chapter
shall not apply to utilities performing safety and reliability maintenance
work relating to transmission and distribution lines.
A.
A tree preservation plan shall be filed, except where excluded in § 270-4, with every application for a subdivision or site plan review. The tree preservation plan shall be prepared by a registered landscape architect, professional land surveyor or engineer. The Planning Board shall approve, disapprove or approve with modifications the tree preservation plan pursuant to the regulations and provisions of this chapter. A tree preservation plan shall show site boundaries, all existing and proposed structures, easements, etc., and the location, species, DBH and condition of all existing trees with a DBH of eight inches or greater and all trees proposed to be removed with a DBH of eight inches and greater. Additionally, all trees proposed to be removed with a DBH of three inches and greater, or eight feet in height or greater for evergreens, must be shown if included on a previously approved landscape plan. The inventory shall include specimen and protected trees. The plan shall provide tree wells or walls at the dripline of all trees to be preserved. No disturbance or storage of materials or equipment shall occur within the dripline of trees to be preserved, including but not limited to regrading and installing structures or impervious surfaces. Methods for protecting trees during construction shall be specified on the plan. In no instance shall the density of trees fall below 17 trees per acre on a given site or any lot in a subdivision without the applicant providing replacement trees as per § 270-14. Tree density calculations, as per § 270-5C(2), must be shown on the tree preservation plan. The plan must demonstrate and detail the steps to be taken to protect and preserve the trees to remain for a period of two years after the issuance of a certificate of occupancy for each building. Where the owner of the property having an approved tree preservation plan wishes to remove a tree as defined within, and is not otherwise required to file an application with the Planning Board as outlined above, said property owner shall apply for a tree removal permit from the Director of Engineering and Facilities Management, or his designee, as provided in § 270-6 below.
[Amended 12-13-2018 by L.L. No. 9-2018; 9-8-2020 by L.L. No. 2-2020]
B.
The Planning Board, along with the concurrent review of the Architectural
Historic Review Board, shall apply the following standards in reviewing
and approving tree preservation plans and shall attach such conditions
and safeguards as are, in its opinion, deemed necessary to accomplish
the purposes of this chapter.
[Amended 6-28-2016 by L.L. No. 8-2016]
(1)
Healthy specimen and protected trees and other trees deemed significant
by the Planning Board located in a public place shall be preserved
where feasible.
(2)
Healthy specimen and protected trees and other trees deemed significant
by the Town Department of Engineering and Facilities Management or
Planning Board may be required to be preserved at the discretion of
the Planning Board.
[Amended 12-13-2018 by L.L. No. 9-2018]
C.
Concurrent with a tree preservation plan, a separate landscape plan
shall be submitted and shall conform to the following minimum standards:
(1)
Resulting minimum tree density for the total site or for each lot
in a subdivision shall be no less than 17 trees per acre of lot area
or major fraction thereof. The minimum size of trees to be planted
to meet the minimum tree density requirement shall be in accordance
with Table 1 (attached),[1] and shall be based on the descending order of the sizes
of trees removed. In any disturbed portion of the site, as shown by
the clearing limit line shown on the grading plan and tree preservation
plan, or as determined by the Department of Engineering and Facilities
Management, tree density shall be no less than 17 trees per acre.
In no case shall the minimum tree density be based solely on undisturbed
portions of the site.
[Amended 9-8-2020 by L.L. No. 2-2020]
[1]
Editor's Note: Table 1 is included as an attachment to this chapter.
(2)
In calculating the number of trees per acre, the following may be
counted toward the minimum tree density required:
(a)
Existing trees having a DBH of eight inches or greater and located
and shown on the tree preservation plan.
(b)
All trees in accordance with the minimum size requirements of
Table 1 shown on an approved landscape plan for the site which were
planted and maintained in accordance with that landscape plan.
[Amended 9-8-2020 by L.L. No. 2-2020[2]]
[2]
Editor's Note: This local law also repealed former Subsection
C(2)(c), regarding trees shown on a previously approved landscape
plan, which immediately followed.
(3)
In selecting locations to plant trees, priority should be given to
that section of the lot within a buffer, lot line or places visible
to the public.
(4)
The Planning Board shall require the applicant to post cash security
in the form of escrow or letter of credit sufficient to ensure the
care and health of all newly planted trees for a period of two years
from the issuance of a certificate of occupancy in an amount to be
determined by the Director of Engineering and Facilities Management.
Such letters of credit shall be in a form acceptable to the Town Attorney.
[Amended 12-13-2018 by L.L. No. 9-2018]
(5)
When plans require replanting in proximity to electric facilities,
species that are compatible with the safe operation of those facilities
as designated by the respective utility shall be selected.
D.
Prior to the commencement of any development activity on any part
of a site, the Town Department of Engineering and Facilities Management
shall meet with the developer and his/her construction manager to
ensure that:
[Amended 12-13-2018 by L.L. No. 9-2018]
E.
The applicant shall be required to pay the cost necessary for the
Town to retain an arborist to review compliance with the requirements
of the tree preservation plan and landscaping plan should the Planning
Board or the Architectural Historic Review Board require same.
[Amended 6-28-2016 by L.L. No. 8-2016]
F.
Enforcement; penalties for offenses. Upon any violation of the tree preservation plan, the Building Inspector shall issue a stop-work order immediately, and the applicant shall be required to take such remedial action as the Planning Board deems appropriate before a certificate of occupancy may be issued. Any violation of an approved tree preservation plan shall also constitute a violation punishable as provided in § 270-16 of this chapter, for purposes of which the removal of each tree which was to have been preserved shall constitute a separate and distinct violation.
[Amended 12-13-2018 by L.L. No. 9-2018; 9-8-2020 by L.L. No. 2-2020]
A.
A tree removal permit shall be required from the Town Department
of Engineering and Facilities Management before the removal of the
following:
(1)
(Reserved)
(2)
Any tree or plant designated by the New York State Department of
Environmental Conservation (NYSDEC) as a protected native plant.
(3)
Any tree within the Town of Clarkstown Historic District, or historically
designated property, with a DBH of eight inches or greater.
(4)
Any tree with a DBH of eight inches or greater related to new single-family
residential construction with the following conditions:
(a)
Trees within the proposed building septic field, driveway and
to a distance of 30 feet around the proposed building footprint shall
not be included in the count of trees to be removed.
(b)
Prior to any tree removal related to new single-family construction,
the applicant shall submit the proposed plot plan for review.
(5)
More than one tree with a DBH of eight inches or greater per 5,000
square feet of area on a single property within a period of three
calendar years.
(6)
Any tree or plant within a state or federal wetland or within 25
feet of the top of the bank of any drainageway.
B.
Exceptions. Notwithstanding the foregoing, no permit shall be required
for the removal of:
(1)
Any dead tree, as verified by the Town DEFM or a certified arborist.
(2)
Any tree posing an imminent danger to a structure, vehicle or pedestrian traffic. (Property owner must provide documentary evidence of the dangerous condition which led to the removal of the tree within seven days of the removal of the tree, which shall be reviewed for sufficiency by the Town DEFM. In the event that the Town DEFM determines that a dangerous condition did not exist, the provisions of § 270-14 of this chapter shall be applicable against property owner verified, in writing, by either the DEFM or a licensed arborist within seven days after the tree's removal.)
(3)
Any tree which is designated by the NYSDEC and verified by Town DEFM
or certified arborist as an invasive species.
C.
For any single property which exceeds the number of trees to be cut beyond those provided in § 270-6A(5), the applicant shall provide a tree preservation plan and landscape plan that provides for the planting of a replacement tree in accordance with Table 1,[1] and shall be based on the descending order of the sizes of trees removed, for each tree to be removed beyond that provided in the corresponding section in § 270-6A(5) that pertains to the subject property.
[1]
Editor's Note: Table 1 is included as an attachment to this chapter.
No tree removal permit or building permit shall be issued for
the construction of any principal building, accessory building or
addition, unless and until such person or corporation shows on an
approved plan all existing trees and proposed tree removals in relation
to the survey stakes marking out a building, foundation, dwelling,
garage, swimming pool, driveway, recreation area or any site that
warrants tree removal.
[Amended 12-13-2018 by L.L. No. 9-2018]
A tree removal permit must be adequately displayed so that it
is visible from the nearest public street until such time as the authorized
cutting has ended and a final inspection has been conducted by the
Town Department of Engineering and Facilities Management.
Every tree removal permit application submitted for approval
shall include a map and exhibits showing:
A.
Boundary survey prepared by licensed land surveyor, including existing
features and the general location of wooded areas and trees to be
removed.
B.
The map is to show the estimated number of existing trees presently
located on the property and those trees to be cut down.
C.
The area of the tract.
D.
The location of streams and wetlands.
E.
Identify the street, block and lot number of the land upon which
the tree(s) eight inches or greater are located.
F.
Provide the name and address and telephone number of the owner or
duly authorized agent of said owner, where applicable.
G.
Identify and place on the plan application the location of tree(s)
sought to be cut, removed or destroyed.
H.
Mark the trees to be removed on the site with red tape that is visible,
weatherproof and reasonably tamper-proof. No tree shall be sprayed
with paint, chemicals or otherwise permanently marked, damaged or
defaced.
[Amended 12-13-2018 by L.L. No. 9-2018]
The Town's Director of the Department of Engineering and Facilities
Management, or designee, shall review the site to determine whether
the cutting, removal or destruction of said trees shall impair the
drainage conditions, create soil erosion or otherwise affect the physical,
environmental and/or the aesthetic value of the land.
[Amended 12-13-2018 by L.L. No. 9-2018]
Where an application is made in conjunction with an application for a building permit, the Town's Director of the Department of Engineering and Facilities Management or designee shall make an on-site inspection of the lot where all trees to be cut or destroyed are to be clearly identified by tagging as described by § 270-10H above. This site inspection must be made and the tree removal permit issued before any building permit shall be approved.
[Amended 12-13-2018 by L.L. No. 9-2018]
At the time of filing an application for a tree removal permit
or an application in conjunction with one of the enumerated applications
set forth in this chapter, the applicant shall deposit with the Town
Department of Engineering and Facilities Management a nonrefundable
fee to cover the cost of reviewing the application, making on-site
inspections and the issuance of the permit in accordance with the
Town Consolidated Fee Schedule as adopted by and which may be amended
from time to time by resolution of the Town Board.
A.
Any tree destroyed or removed in violation of this chapter shall
be replaced by a species which is identical to that removed or is
otherwise referred to in the U.S. Soil Conservation Service as compatible
with the soil type and shall be sized in accordance with Table 1,[1] with a minimum size of three-inch caliper if deciduous
or eight feet in height if coniferous, regardless of the size of the
tree removed. Notwithstanding the foregoing, if the tree or trees
removed is/are invasive species as defined by Cornell Cooperative
Extension, for example, the Norway maple, the replacement tree shall
be a noninvasive tree.
[Amended 9-8-2020 by L.L. No. 2-2020]
[1]
Editor's Note: Table 1 is included as an attachment to this chapter.
B.
The Town's Director of the Department of Engineering and Facilities
Management, or designee, may order the replacement of any tree removed
or stop any other activity which is carried on in violation of this
chapter. The order shall be issued in writing and a copy served upon
any person engaged in the tree work upon the subject lot. If no such
person is present upon the lot, then the order shall be served upon
the applicant, but if no permit has been issued as to such lot, then
the order shall be served upon the owner of the lot.
[Amended 12-13-2018 by L.L. No. 9-2018]
C.
If, in the opinion of the Town's Director of the Department of Engineering
and Facilities Management or Planning Board, sufficient space is not
available on the lot on which the development is proposed, the Town
official or board may require the applicant to plant the replacement
trees on other lands owned by the applicant within the Town, on Town
park lands, within public street rights-of-way, or any combination
thereof. In lieu of off-site replacement, the applicant may contribute
to a municipal tree bank, which is to provide trees to public property
based upon a replacement cost estimate prepared by the Town Department
of Engineering and Facilities Management. The Town Board, pursuant
to the Municipal Home Rule Law, hereby creates a municipal tree bank
fund to be maintained in a separate account strictly linked to the
purposes set forth above.
[Amended 12-13-2018 by L.L. No. 9-2018]
D.
Thereafter, except for such work as is necessary to remedy the violation,
any further work shall comply with the terms and conditions of any
permit and the provisions of this chapter.
A.
Any applicant aggrieved or affected by the determination of the Town's
Director of Engineering and Facilities Management with respect to
an application for a tree removal permit may, within 10 business days
of such determination, appeal to the Zoning Board of Appeals, stating
the reason for such appeal. The Zoning Board of Appeals shall conduct
a hearing on the appeal within 60 calendar days of receipt of a completed
application and shall, based upon the standards contained herein and
the facts of the matter, deny, grant or grant with conditions the
permit being sought.
[Amended 12-13-2018 by L.L. No. 9-2018]
B.
Any person or persons jointly or severally aggrieved by the decision
of the Zoning Board of Appeals pursuant to this chapter may apply
to the Supreme Court for review by a proceeding under Article 78 of
the Civil Practice Law and Rules. Such proceeding shall be instituted
within 30 days after the filing of a decision of the Zoning Board
of Appeals in the office of the Town Clerk.
[Amended 12-13-2018 by L.L. No. 9-2018]
Any person violating a provision of this chapter shall be subject to the provisions of § 270-14 and additionally shall be subject to a minimum fine of $500 and a maximum fine of $1,500 and/or community service in the amount of 30 days, at the discretion of the Justice Court. Any such fines levied, less any mandated state fees, shall be deposited into the municipal tree bank fund provided in § 270-14C of this chapter. If the violator is a person in possession of a permit for tree removal, said permit shall be immediately revoked. Every tree which has been cut or removed in violation of the provisions of this chapter shall constitute a separate offense. Enforcement authority of this chapter is vested in the Town's Director of the Department of Engineering and Facilities Management, or designee, and officials of the Town of Clarkstown who are authorized to issue appearance tickets to violators.
