[HISTORY: Adopted by the Town Meeting of the Town of Lynnfield 10-18-2021 ATM by Art. 3. Amendments noted where applicable.]
A.
The intent of this Tree Preservation Bylaw (the "bylaw") is to encourage the preservation and protection of trees during new building activity (meaning only the activities defined in § 225-13 below) by:
B.
In no event may the Town deny a landowner's right to remove
a tree subject to this bylaw; any landowner may remove a tree or trees,
on the condition that they undertake one of the mitigation options
set forth herein.
C.
Trees are recognized for their abilities to mitigate heat island
effects; provide shade cover; reduce energy consumption; improve air
quality; reduce noise pollution; reduce topsoil erosion and stormwater
runoff; provide wildlife habitat; sequester carbon; enhance the quality
of life and the environment of the Town; increase property values;
and enhance the overall appearance of the community. The Town of Lynnfield
(the "Town") deems that the preservation and protection of certain
trees on private property, and the requirement either to replant trees,
to replace those removed or collect financial contributions to support
the Town's tree-planting and maintenance efforts are public purposes
that protect the Town's public health, welfare, environment and
aesthetics. No part of this bylaw shall discourage the removal of
hazardous trees (as defined below), an act which may be important
to public health and safety, nor shall any part of this bylaw discourage
the removal of a tree that, by size or otherwise, is not subject to
the protections set forth herein.
A.
The terms and provisions of this bylaw shall apply to any protected tree located within a tree border during building activity as defined in § 225-13 that is not owned by the commonwealth, with the following exception:
(1)
The terms and provisions of this bylaw shall not apply to parcels
with more than 50% of land permanently conserved as open space pursuant
to Article 97 of the Articles of Amendment to the Constitution of
the Commonwealth of Massachusetts or a perpetual restriction under
MGL c. 184, §§ 31 through 33.
B.
No person shall commence building activity (as defined in § 225-13 below) on any lot without first obtaining a tree permit or a certificate of exemption from the Planning Board or its authorized enforcement agent.
C.
The location of the tree border is defined by Table 1 below. In the
case of a new subdivision, the tree border shall be based on the new
lot lines approved for the subdivision.
|
Table 1: Location of Tree Border in Each Zoning District
| |||
|---|---|---|---|
|
Zoning District
|
Tree Border
(distance in feet from lot lines)
| ||
|
Front
|
Side
|
Rear
| |
|
Residential A
|
30
|
15
|
20
|
|
Residential B
|
40
|
20
|
20
|
|
Residential C
|
40
|
25
|
20
|
|
Residential D
|
40
|
30
|
20
|
|
Elderly Housing
|
50
|
25
|
30
|
|
Limited Business
|
40
|
15
|
20
|
|
General Business
|
40
|
15
|
20
|
|
Commercial
|
40
|
15
|
20
|
|
Limited Industrial
|
100
|
100
|
40
|
|
Office Park
|
50
|
50
|
50
|
|
Note: The tree border is equal to the setbacks in the zoning
district.
|
A.
Exempt building activity:
(1)
Any activity that does not fall within the definition of building activity set forth in § 225-13, below, is exempt from this bylaw.
(2)
A tree permit is not required if a certificate of exemption has been
granted by the Planning Board or its authorized enforcement agent.
(3)
Granting a certificate of exemption is at the discretion of the Planning
Board and its authorized enforcement agent based on whether the building
activity has the potential to harm a protected tree. The Planning
Board or its authorized enforcement agent shall issue a certificate
of exemption if the proposed building activity does not have potential
to harm a protected tree.
B.
Pruning: A tree permit is not required for the pruning of protected
trees. However, excessive pruning may be considered tree removal.
C.
Emergencies: If any protected tree shall be determined to be in a
hazardous condition so as to immediately endanger the public health,
safety or welfare or cause an immediate disruption of public services
and require immediate removal without delay, the landowner shall seek
authorization from the Planning Board if conditions allow and oral
authorization may be given by the Tree Warden, Planning Board or its
authorized enforcement agent to remove such tree, utilizing such professional
criteria and technical assistance as he/she deems necessary. If the
emergency condition does not allow time or opportunity to seek prior
authorization then the emergency work shall proceed without it.
D.
Waiver: The requirements of this bylaw may be waived by the appropriate
Town officials during the period of an emergency such as a tornado,
windstorm, flood, or other act of God.
When a tree permit is granted, tree-preservation measures are
prescribed as follows:
A.
Tree Save Area:
(1)
Each protected tree to be retained on property planned for a building
activity permit shall be protected by the establishment of a Tree
Save Area, which at a minimum must include the critical root zone
of the protected tree(s).
(2)
The Tree Save Area must be adequately marked prior to the commencement
of building activity and maintained in place until work is completed
on the property.
(3)
An applicant may choose to encroach within the CRZ of a protected
tree; however, such proposed action shall require the applicant to
submit a maintenance plan for the tree, to be prepared, stamped, dated
and signed by a certified arborist as part of the tree permit application.
Under these instances, the Tree Save Area may be reduced to protect
only those areas of the CRZ not proposed for encroachment.
B.
Maintenance of protected trees: Should such tree die within a twenty-four-month
period from the later of (A) planting or (B) the date of issuance
of a certificate of occupancy, if applicable, of the building activity,
the owner of the property shall be required to provide mitigation
consistent with the requirements for the removal of a protected tree
as contained herein within nine months from the death of the original
tree.
When protected tree removal is permitted, mitigation through
planting of replacement trees is prescribed as follows:
A.
No mitigation measures are required for the permitted removal of
hazardous trees or for the removal of any tree not within the definition
of protected tree.
B.
For each inch of DBH of the tree(s) removed, at least one inch of
caliper of new tree(s) must be replaced in accordance with the following:
(1)
Each new tree must have a minimum caliper of two inches.
(2)
If the protected tree to be removed is an overstory tree species,
the replacement tree(s) to mitigate the removal shall be an overstory
tree species.
(3)
Replanting shall occur no later than 18 months after tree removal.
(4)
A replacement tree shall be planted on the same lot from which the
tree was removed or on land abutting the said lot with the express
written approval of the owner of such abutting land.
(5)
A replacement tree must not be an invasive species.
C.
Maintenance of replanted trees: All new trees replanted to mitigate
the removal of protected trees shall be maintained in good health
for a period of no less than 24 months from the date of planting.
Should such tree die within this twenty-four-month period, the owner
of the property shall replace it.
When protected tree removal is permitted, mitigation may be
effected through contribution to the Tree-Replacement Fund, as prescribed
as follows:
B.
Payment in lieu of planting replacement tree(s): In lieu of planting a replacement tree as provided in § 225-5, a person who has been granted a tree permit may make a contribution to the Tree-Replacement Fund in an amount equal to the cost to replace the tree, which shall be determined by the Tree Warden based on the Town's current cost to purchase and install trees.
C.
Maintenance of Tree-replacement fund: All sums deposited into the
Tree-Replacement Fund pursuant to this bylaw shall be used solely
for the purposes of buying, planting and maintaining trees on public
property in Lynnfield, and for no other purpose whatsoever. In addition,
at least once each year the Town Accountant shall audit the receipts
and expenses of the Tree-Replacement Fund to ensure the accuracy and
propriety of its transactions.
This bylaw is adopted under authority granted by the Home Rule
Amendment of the Massachusetts Constitution and the Home Rule statutes.
The Planning Board or its authorized enforcement agent shall
administer, implement, and enforce this bylaw, and any rules and regulations
adopted thereunder. Any powers granted to or duties imposed upon the
Planning Board may be delegated to its employees or agents under the
Board's direct supervision.
The Planning Board may promulgate rules and regulations to effectuate
the purposes of this bylaw. Failure by the Planning Board to promulgate
such rules and regulations shall not have the effect of suspending
or invalidating this bylaw. Such rules may prescribe the size, form,
contents, style, and number of copies of plans and specifications,
the procedure for the submission and approval of such plans, and the
procedure for determining final compliance with these regulations.
The adoption or amendment of rules and regulations shall be after
a public hearing to receive comments on the proposed or amended rules
and regulations. The public hearing shall be advertised once in a
newspaper of general local circulation, at least 14 days prior to
the date of the public hearing.
A.
Any person aggrieved by a decision of the authorized enforcement
agent may file an appeal with the Planning Board. Said appeal must
be in writing and must be received by the Planning Board within 10
business days of issuance of the authorized enforcement agent's
written decision. The Planning Board shall conduct a public hearing
on the appeal and shall give the public notice thereof, at the expense
of the applicant. Public notice shall include mailed notice to all
persons owning land within 300 feet of any part of the applicant's
land at least 14 days before said hearing. The Planning Board shall
rule within 20 days of the public hearing. No protected trees shall
be removed while an appeal is pending.
B.
Appeals of final decisions of the Planning Board shall be pursuant
to MGL c. 249, § 4.
A.
Notice of violation: Any person who violates any of the provisions
of this bylaw shall be notified by the Planning Board of the specific
violation by certified mail, return receipt requested, or by hand
delivery. The notice shall set forth the nature of the violation and
the date by which the protected tree(s) is to be mitigated with the
planting of replacement trees or payment to the Tree-Replacement Fund,
for purposes of computing the "per day" violation fine.
B.
A tree permit may be suspended or revoked at any time by the Planning
Board or its authorized enforcement agent upon written notice to the
tree permit holder that the tree permit holder has failed to comply
with either this chapter or the conditions of the tree permit. The
written notice shall be sent by certified or registered mail, return
receipt requested, or by hand delivery, and shall provide an opportunity
for the tree permit holder to correct the noncompliance and apply
for a renewal of the tree permit upon compliance, where practicable.
The suspension or revocation of a tree permit in accordance with this
subsection shall not affect the validity of a building activity permit.
It shall, however, be cause for levying a fine or fines for violation
of the tree permit and, if applicable, violation of the requirement
for replacement of any removed or damaged trees.
C.
Stop-work order:
(1)
Upon notice from the Planning Board that work on any protected tree,
or lot on which a protected tree is located, is being performed contrary
to the provisions of this bylaw, such work shall be immediately stopped.
The stop-work order shall be in writing and shall be given to the
owner of the property involved, or to the owner's agent, or to
the person doing the work; and shall state the conditions under which
work will be permitted to resume.
(2)
The Planning Board is also authorized to request the agency which
has granted a building activity permit, to the extent permissible
by law, to require the owner to cease any activity pursuant to the
building activity permit that might affect such protected tree while
a stop-work order is pending.
(3)
Any person who shall continue any work in or about the protected tree or lot on which a protected tree is located after having been served with a stop-work order, except such work as that person is directed to perform to remove a violation or unsafe condition, shall be liable to a fine(s) per the table in § 225-12A. Each day during which a violation exists shall constitute a separate offense.
D.
Injunctive relief:
(1)
Whenever there exists a set of facts that make it more likely than
not that a person is violating this bylaw or any term, condition or
provision of an approved tree permit, the Town may, either before
or after the institution of any other action or proceeding authorized
by this bylaw, institute a civil action in the name of the Town for
a mandatory or prohibitory injunction and an order of abatement demanding
the defendant to correct the unlawful condition upon or cease the
unlawful use of the property.
(2)
Upon determination of a court that an alleged violation is occurring,
it shall enter such order or judgment as is necessary to abate the
violation. The institution of an action for injunctive relief under
this subsection shall not relieve any party to such proceedings from
any civil penalty prescribed for violation of this bylaw.
A.
Removal without a permit: Each instance in which a protected tree
is removed without a permit shall constitute a violation of this bylaw
which shall be subject to a fine per the table below. This shall be
in addition to the required payment for the replacement of the tree(s).
|
Offense
|
Fine
|
|---|---|
|
1st offense
|
$100
|
|
2nd offense
|
$200
|
|
3rd offense & each subsequent offense
|
$300
|
B.
Failure to replace trees or make payment: Each failure to replace
a tree or make a payment into the Tree-Replacement Fund shall constitute
a separate violation of this bylaw which shall be subject to a fine
per the table above. Each day such violation continues after the compliance
date specified by the Planning Board in its notice of violation shall
constitute a separate offense.
C.
Failure to comply with a condition contained in a tree permit or
stop-work order: Each instance where there is a failure to comply
with a condition contained in a tree permit or stop-work order shall
constitute a violation of this chapter which shall be subject to a
fine in the amount per the table above. Each day such violation continues
shall constitute a separate offense.
The following words, terms, and phrases, when used in this bylaw,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
The combined diameter of a multiple-trunk tree measured at
breast height.
One of the following types of work performed on a lot:
Work performed pursuant to a special permit (as defined in MGL
c. 40A, § 9, and in the Lynnfield Zoning Bylaw);
Work performed pursuant to site plan approval (as defined in
the Lynnfield Zoning Bylaw);
Construction of a new dwelling (including after razing an existing
dwelling);
Construction of a subdivision; or
Clearing, grading or other site preparation work performed within
12 months prior to undertaking any of the above.
Any permit or approval which is required in order to perform
building activity.
Diameter of a tree trunk in inches. For trees up to and including
four inches in diameter, the caliper is measured six inches above
the existing grade at the base of the tree. For trees larger than
four inches in diameter, the caliper is measured 12 inches above the
existing grade at the base of the tree.
Formal permission granted to proceed with building activity
without need for a tree permit.
An arborist certified by the Massachusetts Arborists Association
or International Society of Arboriculture, or any successor organization.
The minimum area beneath the canopy of a tree which must
be left undisturbed in order to preserve a sufficient root mass to
give a tree a reasonable chance of survival. The CRZ is represented
by a circle centering on the tree's trunk and extending outward
towards the tree's dripline. The minimum radius of the CRZ shall
be determined by multiplying the tree's diameter breast height
in inches by 18. For example: A tree with a DBH of 20 inches shall
have a CRZ with a minimum radius of 360 inches or 30 feet (20 inches
x 18 inches = 360 inches or 30 feet).
The diameter of the trunk of a tree 4 1/2 feet above
the existing grade at the base of the tree.
A tree that is interfering with existing structures, utilities,
streets, sidewalks or other existing improvements; or is dead, diseased,
injured, or dangerously close to existing structures; or is causing
disruption of public utility service, drainage or passage problems
upon rights-of-way; or poses a threat to pedestrian or vehicular safety;
and/or that is harming the health or condition of other trees on the
same site.
Any plant listed on the most recent version of the Massachusetts
Prohibited Plant List as published by the Massachusetts Department
of Agriculture.
A tree that will generally reach a mature height of greater
than 40 feet.
Any tree within a tree border having a diameter of six inches
DBH or larger or having an aggregate diameter of 12 inches DBH or
larger.
The cutting down of any protected tree and all other acts
that directly or indirectly result in the death of a protected tree
in the prior 12 months or within two years thereafter, as determined
by a certified arborist based on arboricultural practices recommended
by the International Society of Arboriculture (I.S.A.), including,
but not limited to, damaging, poisoning, excessive pruning or other
direct or indirect actions.
A defined area along the perimeter of a lot.
Formal permission granted to proceed with any building activity
that affects a protected tree.
The area surrounding a protected tree to remain undisturbed
so as to prevent damage to a tree.
The Director of Public Works or his/her designee.
A.
Severability: The provisions of this bylaw are severable. If any
section, provision, or portion of this bylaw is determined to be invalid
by a court of competent jurisdiction, then the remaining provisions
of this bylaw shall continue to be valid.
B.
Conflict of laws: This bylaw shall not apply to any public shade
tree as that term is defined by the General Laws, Chapter 87, or any
amendments thereto. Nothing herein is intended to conflict with the
General Laws, Chapter 87, and to the extent that any provision hereof
conflicts with said Chapter 87, such provision shall not be valid.
Nothing herein is intended to conflict with existing special-permit
procedures and to the extent that any provision hereof conflicts with
said special-permit procedures, such provision shall not be valid.
C.
Complying with the terms of this bylaw shall not relieve the owner
of the subject property from complying with any other pertinent regulation,
including but not limited to all state and local wetlands-protection
regulations.
D.
Nothing herein shall preclude the harvesting of timber or cordwood
from properties under MGL Chapter 61 which are being actively managed
as working forest, if said cutting is part of an approved forest management
plan for the property. No tree permits or mitigation fees shall be
levied against forestry operations on such properties.
