A.
Private property. Except as allowed by § 182-4 below, it shall be unlawful for any person to destroy, mutilate, injure, cut down, girth, uproot, poison, or undertake any action that may significantly and permanently detract from the health or growth of any tree on private property within the Town with a diameter of four (4) inches or more, as measured four and one-half (4 1/2) feet above the average surrounding ground level, or any tree, notwithstanding its size, which has been planted or transplanted as part of a replanting plan undertaken pursuant to a previously issued permit in accordance with this chapter, without first filing a written application with the Clerk-Treasurer and obtaining the required permit therefor.
B.
Town property. Except as allowed by § 182-4 below, it shall be unlawful for any person to destroy, mutilate, injure, cut down, girth, uproot, poison, trim or undertake any action that may significantly and permanently detract from the health or growth of any tree or shrub on real property owned by the Town, or on Town rights-of-way, or on other rights-of-way adjoining Town property, regardless of the size of the tree or shrub affected. Activities prohibited under this Subsection B include the parking or placing of vehicles, construction equipment, debris, or other objects totaling more than 500 pounds on any unpaved surface within the dripline of a tree, and include the cutting or trimming of roadside trees except as excluded by § 182-4C below, or cut down any Town tree without permission from the Town Council if the tree is over four inches in diameter, measured 4 1/2 feet above the ground, or permission from the Mayor in case of emergency. The Council may approve removal of a Town tree in connection with a building or driveway permit only in an extraordinary situation.
(1)
An extraordinary situation is one that would result in extreme hardship
to the permit applicant if the permission to cut down the tree is
not approved due to such factors as:
(a)
Vehicular access to the permit applicant's property would be
precluded as no alternative access is feasible.
(b)
Reasonable and customary improvements to the permit applicant's
property are precluded as no alternative building siting or building
design, including improvements of a lesser size, is feasible.
(2)
If permission is granted to cut down a Town tree, the applicant shall
pay to the Town of Somerset:
(a)
The cost of removing the tree and stump by the Town tree contractor;
(b)
The cost of an appraisal by a tree expert hired by the Town;
(c)
The value of the tree as determined by the Town Council upon
consideration of the appraisal of the Town's tree expert and the appraisal
of any permit applicant's or other tree expert, but not more than
$10,000, with such funds to be used by the Town of Somerset to plant
a replacement tree(s) within the Town.
(3)
A building permit may be denied or a building permit previously issued
revoked if the permit applicant or holder has cut down a Town tree
without approval or has otherwise not complied with the provisions
of this section.
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[Ord. No. 4-88, eff. 4-17-1988; amended by Ord. No. 8-91, eff. 7-15-1991; Ord. No. 8-04, eff. 12-8-2004; Ord. No. 10-05, eff. 1-10-2006; Ord. No. 3-07, eff. 6-13-2007; Ord. No. 1-09, eff. 2-11-2009 (formerly Ch. 8, § 8-201, of the 1989 Code); Res. No. 12-21-2, 3-7-2022, eff. 4-12-2022]
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No permit under this chapter shall be required:
A.
Emergencies. If the Town determines that immediate destruction or
removal of a tree is necessary to abate a substantial, immediate and
imminent danger to life or property.
B.
Maintenance by owner. When the owner or resident of a property, or
a contractor hired by him, performs maintenance on trees located on
said property in accordance with professionally accepted standards.
C.
Pruning by public utility. When a public utility prunes roadside
trees; but only if:
(1)
Said trees are not located on property owned by the Town (including
but not limited to Town parks) or on a public right-of-way adjacent
to or adjoining property owned by the Town; and
(2)
The utility has obtained and fully complies with a permit issued
by the Maryland Department of Natural Resources pursuant to the Natural
Resources Article of the Annotated Code of Maryland, § 5-406;
and
(3)
The utility has given at least two weeks' notice to the Clerk-Treasurer
of its intent to prune specified trees, and included with its notice
a copy of the state-issued permit.
D.
By Town. When tree removal or destruction is performed by employees
and authorized agents of the Town, within the normal course of their
employment and scope of their authority on property owned by the Town
or on a public right-of-way. When the Town Arborist recommends removal
of a tree on a public right-of-way, the Clerk-Treasurer shall send
notice to the abutting property owner. Notice shall be sent by first-class
mail and by e-mail if e-mail addresses are available in the Town directory,
if any, or are otherwise known. Such notice shall not be required
in the event of an emergency, as determined by the Mayor or Clerk-Treasurer.
E.
When approved by Planning Commission. When tree removal is performed
in accordance with a site plan approved by the Maryland-National Capital
Park and Planning Commission and an enforcement agreement has been
entered into pursuant to the provisions of Chapter 59, Zoning Ordinance,
Section 7.3.4, of the Montgomery County Code, and a sediment and erosion
control permit has been issued for such property, and copies of all
such documents have been filed with the Mayor prior to the removal
of any trees.
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[Ord. No. 4-88, eff. 4-17-1988; amended by Ord. No. 6-96, eff. 12-13-1996; Ord. No. 6-02, eff. 6-12-2002; Res. No. 5-19, 10-17-2019, eff. 11-12-2019 (formerly Ch. 8, § 8-202, of the 1989 Code); Res. No. 10-23-3, 12-4-2023, eff. 1-9-2024]
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Application for a permit shall be made by the owner(s) of the
property upon which the proposed action is to be taken, by an agent
of the owner(s), by the licensed engineer or architect employed in
connection with the proposed work, or by the public utility as appropriate.
If the application is made by a person other than the owner(s), it
shall be accompanied by a written certification by the owner(s) or
the qualified person making the application that the proposed work
is authorized by the owner(s) and that the applicant is authorized
to make such application.
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[Ord. No. 4-88, eff. 4-17-1988 (formerly Ch. 8, § 8-203, of the 1989 Code)]
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A written application for a permit shall be submitted to the
Clerk-Treasurer and shall contain the following minimum information:
A.
The street address of the property upon which the proposed action
is to be taken;
B.
The full name(s) and address(es) and daytime and evening telephone
number(s) of the owner(s);
C.
A brief description of the proposed action and the location of the
tree or trees on the property to be affected;
D.
The species of the tree(s) to be affected;
E.
The diameter of the tree(s) to be affected, as measured four and
one-half (4 1/2) feet above the average surrounding ground level;
F.
A brief statement explaining why the proposed action is reasonable
and necessary and consistent with the purposes of this chapter;
G.
A statement whether the applicant intends to perform replanting after
tree removal is completed. If the applicant does so intend, the applicant
shall submit a replanting plan;
H.
A statement describing the tree(s) removed from the subject property
within the prior five-year period;
I.
The names and addresses of all owners of adjoining and confronting
property as shown in Town records maintained by the Clerk-Treasurer
at the time of submission of the application, or of the occupants
of said properties if the owners are not the occupants; and also the
names and addresses of occupants of houses outside of the Town of
Somerset who have a common property line with the applicant;
J.
A certification that, prior to submission of the application, a copy
of the application, including any replanting plan(s), as submitted,
has been shown or provided to all owners of adjacent and confronting
property at their addresses as shown in Town records maintained by
the Clerk-Treasurer at the time of submission of the application,
or to the occupants of said property if the owners are not the occupants
and to occupants of houses outside of the Town of Somerset who have
a common property line with the applicant. This requirement shall
not apply if trees to be affected are dead when the application is
submitted;
K.
The name of the company or individual who will remove the tree or
trees and his Maryland Tree Expert License number; and
L.
A fee in the amount set by the Town Council.
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[Ord. No. 4-88, eff. 4-17-1988; amended by Ord. No. 6-96, eff. 12-13-1996; Ord. No. 5-02, eff. 5-8-2002; Ord. No. 8-03, eff. 12-10-2003; Ord. No. 11-05, eff. 1-10-2006; Ord. No. 9-07, eff. 9-12-2007; Ord. No. 3-10, eff. 7-13-2010; Ord. No. 5-10, eff. 1-30-2011; Res. No. 5-19, 10-17-2019, eff. 11-12-2019 (formerly Ch. 8, § 8-204, of the 1989 Code); Res. No. 12-21-2, 3-7-2022, eff. 4-12-2022]
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The following aggravating and mitigating factors shall be considered
in approving or disapproving an application for a permit:
A.
Aggravating
factor weighing against removal.
(1)
The desirability of preserving any tree because of its age, species,
size or outstanding qualities such as uniqueness, rarity, or status
as a landmark or species specimen;
(2)
The extent to which the immediate area, and the Town in general,
would be subject to environmental degradation due to removal of the
tree(s), including but not limited to stormwater management concerns;
(3)
The number of trees removed from the subject property within the
prior five-year period;
B.
Mitigating
factors weighing in favor of removal.
(1)
Whether the tree is diseased, insect-infested, or injured beyond
restoration;
(2)
Whether the tree is in danger of falling, presents a threat of injury
to life or property;
(3)
The hardship or unusual practical difficulty which the applicant
may suffer if a permit for the requested action is not issued;
(4)
The extent to which the tree or shrub removal is necessary to achieve
proposed development, redevelopment, land use, utility construction
or utility maintenance, and the extent to which there is no reasonable
alternative; and
(5)
The extent to which any replanting plan proposed by the applicant
involves:
A.
Time limit. Any permit issued shall become invalid if the authorized
work is not completed within sixty (60) days of the date of issuance;
provided that the Mayor may, upon good cause shown, extend the permit
for an additional period not exceeding thirty (30) days.
B.
Location of permit and plans. The permit or a true copy thereof and
a copy of any plans submitted with the application for the permit
shall be kept on the site of operations and open to inspection by
officials of the Town in the course of their duties, during the entire
time that the work is in progress and until its completion.
C.
Compliance with permit. All work shall conform to the approved application
and plans for which the permit has been issued.
D.
Compliance with stop-work order. The issuance of a permit shall be
expressly conditioned upon the applicant's agreement to promptly comply
with all stop-work orders issued by the Mayor.
E.
Compliance with applicable laws. Nothing herein contained shall be
construed as exempting a person to whom a permit has been issued in
accordance with this chapter from compliance with all applicable Town,
county, state and federal law. The issuance of a permit is conditioned
upon the applicant's compliance with said laws.
F.
Replanting.
The Mayor or Town Council, as the case may be, may impose replanting
as a condition of permit approval. If replanting is imposed, the additional
following conditions shall apply:
(1)
A performance
bond or check made payable to the Town of Somerset, in an amount set
from time to time by the Town Council, shall be provided by the applicant
to ensure completion of the reforestation;
(2)
The
replanting tree(s) shall be planted at a time and location on the
property in accordance with the approved replanting plan, or as otherwise
approved in advance by the Town Arborist; and
(3)
The
applicant shall, at the applicant's sole expense, be responsible for
the maintenance and replacement of all replanting tree(s) included
in the approved replanting plan for a period of two (2) years from
the time of planting (the "warranty period"). The subsequent warranty
period for any tree that dies shall commence from the date of planting
such replacement tree. Any replacement tree shall be re-planted at
a time and in a location approved in advance by the Town Arborist.
G.
Other conditions.
In granting an application, in whole or in part, the Mayor or Town
Council, as the case may be, may impose such other additional conditions
as are deemed necessary to protect the public health, safety, and
welfare.
H.
Inspections.
The Town shall have the right to on-premises inspection of a lot to
ensure compliance with the Town permit, the Town Code, and the application.
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[Ord. No. 4-88, eff. 4-17-1988; amended by Ord. No. 3-2014, eff. 6-2-2014; Res. No. 8-20, 12-7-2020, eff. 1-21-2021 (formerly Ch. 8, § 8-206, of the 1989 Code); Res. No. 12-21-2, 3-7-2022, eff. 4-12-2022]
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A.
The Mayor shall examine all applications for permits involving the
removal of one (1) or more trees with a combined total diameter of
twenty-four (24) inches, or less, as measured four and one-half (4 1/2)
feet above the average surrounding ground level and where no single
tree proposed for removal has a diameter greater at that height. The
Mayor shall seek the advice of the Town Arborist, State Forester,
county extension agent, or other individuals as the Mayor finds appropriate.
If the application or the plans do not conform to the requirements
of this chapter, or if the work proposed by the application would
be inconsistent with the purposes of this chapter, the Mayor shall
reject such application in writing, stating the reasons therefor;
or in the case of an application submitted with a building permit
application, the Mayor shall recommend that the Council reject the
application, with reasons therefor. If the Mayor is satisfied that
the proposed work conforms to the purpose and requirements of this
chapter, the Mayor shall issue a permit therefor as soon as practicable;
or in the case of an application submitted with a building permit
application, the Mayor shall recommend that the Council approve the
application. Except in the case of an application submitted with a
building permit application, the Mayor may grant a permit immediately
if the applicant provides the Mayor written consents by all owners
or occupants of property which adjoins or confronts the property on
which is located the tree which is the subject of the application.
If the applicant does not provide such written consents, the Mayor
may not grant a permit until the fourth (4th) calendar day after the
day on which the application was submitted. In either event, the Mayor
must take action on the application within fifteen (15) days after
the application was submitted.
B.
The Town Council shall examine all applications for permits involving
the removal of one (1) or more trees with a combined total diameter
of twenty-four (24) inches, or more, as measured four and one-half
(4 1/2) feet above the average surrounding ground level and where
any single tree proposed for removal has a diameter greater than (12)
inches as measured at that height. The Mayor shall seek the advice
of the Town Arborist, State Forester, the county extension agent,
or other individuals as it finds appropriate. Within sixty (60) days,
but not earlier than ten (10) days, following the filing of the application,
the Town Council shall conduct a fact-finding hearing on such application
after giving at least ten (10) days' notice of such hearing to the
applicant and to all owners and occupants of property which adjoins
or confronts the property on which are located the trees which are
the subject of the application. If the Council finds that the application
or the plan does not conform to the requirements of this chapter or
that the actions proposed by the application would be inconsistent
with the purposes of this chapter, the Council shall reject such application
in writing, stating the reasons therefor. If the Council is satisfied
that the proposed work conforms to the purposes and requirements of
this chapter, it shall direct the Mayor to issue a permit therefor
as soon as practicable.
A.
Time and form for appeal. Any person aggrieved by a decision of the
Mayor with regard to an application for a permit filed under the provisions
of this chapter may appeal said decision within thirty (30) days to
the Town Council. An appeal shall be in writing and shall be submitted
to the Clerk-Treasurer for presentation to the Town Council. The notice
of the appeal filed by the appellant shall state the decision of the
Mayor of which review is sought and the manner in which the appellant
is aggrieved by the decision.
B.
Hearing before Town Council. Within sixty (60) days, but not earlier
than ten (10) days, following the filing of the appeal, the Town Council
shall conduct a fact-finding hearing on such appeal, after giving
at least ten (10) days' notice of such hearing to the appellant (and
to the applicant if the applicant is not the appellant) and to all
owners or occupants of property which adjoins or confronts the property
on which is located the tree or shrub which is the subject of the
application.
C.
Decision. The decision of the Town Council, by a majority vote of those members present at the hearing on said appeal, shall be rendered within forty (40) days of the date of the hearing. The decision shall be in writing and shall state the Council's findings of fact and conclusions of law. The decision of the Council shall become final unless a judicial appeal is taken as hereinafter set forth in § 182-11 within thirty (30) days.
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[Ord. No. 4-88, eff. 4-17-1988; amended by Ord. No. 3-05, eff. 5-18-2005; Res. No. 8-20, 12-7-2020, eff. 1-21-2021 (formerly Ch. 8, § 8-208, of the 1989 Code); Res. No. 12-21-2, 3-7-2022, eff. 4-12-2022]
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Any person who is aggrieved by a decision of the Town Council
with regard to an application for a permit filed under the provisions
of this chapter shall have the right to appeal the decision of the
Town Council to the Circuit Court for Montgomery County, Maryland
under the provisions of Title 7, Chapter 200, of the Maryland Rules
of Procedure. In any judicial proceeding under this section, the findings
of the Town Council as to the facts, if supported by evidence and
in the absence of fraud, shall be conclusive, and the jurisdiction
of said Court shall be confined to questions of law.
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[Ord. No. 4-88, eff. 4-17-1988; amended by Ord. No. 8-93, eff. 10-25-1993; Res. No. 8-20, 12-7-2020, eff. 1-21-2021 (formerly Ch. 8, § 8-209, of the 1989 Code); Res. No. 12-21-2, 3-7-2022, eff. 4-12-2022]
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