[Ord. No. 4342, 11-21-2016]
This Article shall be known and may be cited as "Tree Preservation
of the City of Berkeley, Missouri."
[Ord. No. 4342 § 1, 11-21-2016]
The following words, terms and phrases, when used in this Article,
shall have the meanings ascribed to them in this Section, except where
the context clearly indicates a different meaning:
A measurement of the size of a tree equal to the diameter
of its trunk measurement at four and one-half (4 1/2) feet above
natural grade. If a tree splits into two (2) or more trunks below
four and one-half (4 1/2) feet, then the trunk is measured at
its most narrow point below the split. For newly planted trees the
caliper measurement will be taken six (6) inches above natural grade.
The Chairman of the Commission.
The Planning and Zoning Commission of the City of Berkeley.
An area drawn for each tree surveyed which represents the
average root system. The average root system follows the crown drip
line extending from the outer surface of a tree's branch tips to the
ground. CRZs vary depending upon tree species, tree size, soils and
moisture level, but shall always be deemed to incorporate a minimum
distance of ten (10) feet beyond the defined boundary of the tree's
root system.
Shall include the intentional or unintentional removal, destruction
or killing of any tree, other than as provided by this Article.
A tree in fair or better condition which equals or exceeds
the following diameter sizes: large hardwoods (e.g., oaks, hickories,
etc.) twenty-four-inch DBH; large softwoods (e.g., pines, spruces,
etc.) twenty-inch DBH; small trees (e.g., dogwood, redbud, etc.) twelve-inch
DBH. A tree in fair or better condition is defined as having a life
expectancy of greater than fifteen (15) years, a relatively sound
and solid trunk with no extensive decay, no more than one (1) major
and several minor dead limbs (hardwoods only), and no major insect
or disease problems.
Any grouping of eight (8) or more trees each having eighteen
(18) inches or greater caliper with no tree trunk farther than thirty
(30) feet from any other tree trunk in the group.
A unique grouping of rare or unusual plants justifying preservation
pursuant to any established Federal, State or local guideline, including
those established in the Tree Manual.
The cutting, removal or other disturbance of trees affecting
seven thousand five hundred (7,500) square feet or more of tree canopy
coverage area for the purpose of selling or harvesting such trees
or maintaining the health of a wooded area.
A woody plant that grows mostly upright as a single or multiple
stem that may eventually attain a height of fifteen (15) feet or more.
The area in square feet of a tree's spread. Existing tree
canopy is determined by measuring the ground's surface area that is
covered by the branch spread of a single tree or clump or grove of
trees.
A document, adopted by this Article and on file in the City
offices, having detailed instructions for preparing and evaluating
tree preservation plans, grading, planting and protection of all types
of vegetation. The Commission may make amendments to the specifications,
standards and procedures in the Tree Manual for application of this
Article, and such amendments shall become effective upon order, resolution
or other approval of the Council.
A site plan prepared by an approved professional that delineates
tree save areas and details measures to be taken to ensure protection
and survivability of trees to be saved, prior to and during construction,
and also complies with guidelines which are listed in the Tree Manual.
A tree preservation plan should include a tree stand delineation.
A detailed description and location of trees and other woody
vegetation on the site prior to any proposed land disturbance, prepared
in map form, as specified in the Tree Manual. The tree stand delineation
is to be prepared using the proposed development plan as a base map
so that decisions can be made with respect to preserving existing
vegetation.
To be used where replanting is required, is determined by
assigning the following values for planted trees: one thousand (1,000)
square feet for a large shade tree or major street tree; seven hundred
(700) square feet for each medium street tree and most conifers and
three hundred (300) square feet for small flowering trees. The Tree
Manual contains a list of approved restoration tree species and their
categories.
[Ord. No. 4342 § 2, 11-21-2016]
A.
No grading permit, excavation permit, subdivision plat or subdivision
sketch plan (if a sketch plan is submitted) shall be granted or approved
by the City until a tree preservation plan has been filed with and
approved by the Commission in connection with the proposed land disturbance.
B.
The tree preservation plan shall be included as part of a proposed
grading plan, excavation plan, subdivision preliminary plat or subdivision
sketch plan (if a sketch plan is submitted) or may be a supplement
to such plan or plat. The tree preservation plan shall ensure the
protection of remaining trees and vegetation on any site subject to
authorized land disturbance and shall include such specifications,
standards and precautionary measures as prescribed by the Commission
pursuant to the guidelines in the Tree Manual.
[Ord. No. 4342 § 3, 11-21-2016]
No grading permit, excavation permit, subdivision plat or subdivision
sketch plan (if a sketch plan is submitted) shall be granted or approved
unless at least thirty percent (30%) of all tree canopy coverage on
land not within any building setback area (required by applicable
zoning or subdivision regulations) shall be retained and undisturbed.
Where land disturbance is requested in conjunction with development
of more than one (1) parcel of land, or where the development will
require subdivision into more than one (1) parcel, the setback areas
shall apply and be determined by lot according to the preliminary
plat or sketch plan (if a sketch plan is submitted) for the proposed
development. Redevelopment, resubdivision or amended platting of land
after the tree preservation plan has been implemented shall not be
permitted to defeat or avoid the tree preservation requirements of
this Article first applied to the site, and approval of such redevelopment
may be conditioned upon restoration of trees to equal the previous
tree preservation plan. Where excavation is requested for an approved
commercial use, the Commission may allow replantings, or existing
trees designated to remain after grading, anywhere on the site to
count towards the required tree canopy coverage.
[Ord. No. 4342 § 4, 11-21-2016]
A.
General Standards: Variances. In addition to all other standards
for land disturbance established by law, all approved land disturbances
on sites containing any trees shall also conform to the specifications
and standards established by the Tree Manual, all requirements established
by an approved tree preservation plan, and any other requirements
or conditions imposed by the Commission consistent with this Article.
The tree preservation standards required by this Article may not be
varied by any City officer or the Commission except as necessary for
construction pursuant to an approved final site plan, planned zoning
development, conditional use permit, approved subdivision plat or
approved final site plan (or section plan where applicable) specifically
authorizing a modification of this standard. Any variance shall be
no more than is necessary to complete the construction or use approved,
and the Commission or approving body may, when feasible, condition
a permit upon the restoration or relocation of trees or vegetation
on the site in an amount or quality sufficient to offset or ameliorate
the variance. A variance shall not be deemed necessary where feasible
changes in design or construction location or technique could reduce
or eliminate the amount of variance.
B.
Timber Sales. Notwithstanding anything in this Article to the contrary,
timber sales shall be permitted as authorized by this Subsection.
Any person desiring to undertake a timber sale shall request a permit
from the Commission. Permit applications shall include a timber management
plan from a professional forester or other approved professional indicating
that the cutting of trees constitutes a thinning or harvesting that
ensures continued health and existence of the woodland. The timber
management plan shall specify an acceptable method of regeneration
for the area to be harvested and shall conform to the standards established
by the Missouri Department of Conservation, or such other designated
agency, for proper management of tree farms and timber sales. Unless
waived by the Commission for good cause, no permit for a timber sale
shall be granted for any area more than once every ten (10) years.
C.
Exceptions. Nothing in this Article shall apply to a disturbance
of trees constituting forest crops regularly harvested (e.g., Christmas
tree farms, nursery stock, etc.).
[Ord. No. 4342 § 5, 11-21-2016]
Grand trees and specimen vegetation shall not be disturbed except
where it is necessary to permit construction or a use specifically
authorized by a planned zoning, conditional use permit, approved subdivision
plat or sketch plan, or approved final site plan (or section plan
where applicable) granted by the Commission, or as may otherwise be
permitted by the Tree Manual.
[Ord. No. 4342 § 6, 11-21-2016]
A.
Restoration Required. Any tree disturbed in violation of this Article
or an approved tree preservation plan shall be replanted and restored
within six (6) months according to the standards set forth in the
Tree Manual. Any tree or tree areas identified to be retained on any
tree preservation plan that do not remain alive for a period of at
least thirty (30) months after the development of the site or stage
ceases shall be rebuttably presumed to be disturbed in violation of
this Article and shall be restored or otherwise mitigated as required
herein.
B.
Supplemental Bond. In determining the amount of any bond to be submitted
to secure a grading permit, excavation permit, subdivision preliminary
plat or subdivision sketch plan, the Commission shall include such
amount as to ensure restoration of trees and to compensate the site
for such other losses, including loss of topsoil, as may occur from
a disturbance of trees in violation of this Article or an approved
tree preservation plan. The additional bond amount established by
the Commission shall include the amounts set forth in the Tree Manual
for the restoration or loss of trees. The Commission may allow a reduction
in the amount of the bond where the land disturbance is subject to
stages, provided that no new stage is commenced until all restoration
of the precedent stage is completed. If the restoration required by
this Section is not completed within the time allowed, the Commission
may cause the bond to be used for such restoration. Upon completion
of all construction and development within the site, any unused portion
of the bond not used for restoration or unrestorable losses shall
be returned to the permittee; provided, however, that not less than
fifteen percent (15%) of the original amount shall continue to be
held by the City of Berkeley, for a period of thirty (30) months to
guarantee survival or restoration for such period of any replanted
trees or trees required to have been preserved. Any net amounts retained
due to violations causing loss of trees in size or character that
cannot be similarly replaced shall be transferred to a trust fund
established for tree preservation and replacement to mitigate improper
tree disturbance, or returned to the permittee if no such appropriate
fund exists or is established within thirty (30) months from the effective
date of this Article. Notwithstanding any expenditure of the bond
by the City of Berkeley, the person obtaining the land disturbance
permit shall remain responsible for remedying any uncured violations
of this Chapter. The Director of Public Works, with the consent of
the chairman, shall have the authority to increase or decrease the
bond amounts and release provisions of this Article where under the
circumstances such alteration would comply with the intent of this
Article.
C.
Authorization For Action By City Attorney. The City Attorney shall
be authorized to take any other action to enforce the provisions of
this Article or to remedy any violation including seeking injunctive
action or damages for such violations.
[Ord. No. 4342 § 7, 11-21-2016]
A.
It shall be unlawful for any person to do any of the following acts
on public property or a public right-of-way:
1.
Attach any sign, advertisement, notice or any other object,
except for normal installation and maintenance devices or objects
installed by the City of Berkeley, or any authorized agent of the
city, to any tree or shrub or in any flower bed in the public right-of-way,
parks or any other public property in the city.
2.
Damage, cut, deface, destroy, top or injure any tree, shrub
or plant by placing salt, brine, petroleum products, weed killers,
concrete washout or any other substance in such an amount as to be
injurious to any tree or shrub growth planted in the public right-of-way
or upon any park or public property. This provision shall not apply
to any ordinary care and maintenance or removal of hazardous trees
by a governmental entity authorized to exercise jurisdiction over
the public right-of-way, parks or other public property.
3.
Place or store cement, asphalt, soil or any other substance
in the public right-of-way or on any public place which impedes access
of air and water to the critical root zone of any tree or shrub planted
in the public right-of-way or any other public place.
4.
Permit any tree, shrub, plant or other item on any person's
property to hang over or branch in such a way as to obstruct or obscure
street lights, traffic signs, traffic signals or pedestrian or vehicular
access on public rights-of-way, or obstruct the view of any street
intersection.
5.
Cause damage to any trees or shrubs in the public right-of-way due to excavation or construction without replacement as prescribed by Section 400.940(A), Restoration Required.
[Ord. No. 4342 § 8, 11-21-2016]
The Director of Public Works may cause to be removed or may
order the property owner to remove any trees, limbs or other items
encroaching on or over any public property or public right-of-way
in violation of any ordinance. Should the property owner fail to remove
the encroaching trees, limbs or other items, the Director shall order
such property owner to so remove such trees, limbs or other items,
within ten (10) days after receipt of written notice. The failure
by such property owner to remove such trees, limbs or other items
within ten (10) days after receipt of the written notice shall be
a violation of this Article. In the event that the Director causes
the encroachment to be removed after notice and failure of the property
owner to voluntarily remove it, the Director shall send the property
owner a bill for the costs of such removal, and the property owner
shall be responsible for payment of such bill. Any person damaging,
cutting, defacing or injuring any tree or shrub on any public property
or public right-of-way shall be responsible to pay for any remedial
costs in addition to such penalties as may be imposed.
[Ord. No. 4342 § 9, 11-21-2016]
The Director of Public Works shall have the authority to order
the removal of trees or vegetation on private property that endanger
the life, health, safety or property of the public and thereby constitute
a nuisance. If such order is not complied with within thirty (30)
days, the Director may cause the nuisance to be removed, and the property
owner shall be responsible to pay the costs of such removal.
[Ord. No. 4342 § 10, 11-21-2016]
To the extent any provision of this Article conflicts with any provision of Section 215.010(D)(7) of the Code, regarding noxious growths, the provisions of Section 215.010(D)(7) shall govern.
[Ord. No. 4342 § 11, 11-21-2016]
Any person violating any of the provisions of this Article or
the code adopted in this Article shall be deemed guilty of a misdemeanor
where the court may impose fines or penalties.
[Ord. No. 4342 § 12, 11-21-2016]
Any appeal from application of this Article shall be made directly
to the Council of the City of Berkeley, unless the appeal is within
the scope of the administrative review procedure of the city, whereby
such procedure shall be followed. Upon compliance with the applicable
review procedure, the Council may modify application of the Code where
such application would be arbitrary or constitute an unconstitutional
taking of property without compensation, or is otherwise determined
to be unlawful.
