(Ordinance 18-11, adopted 1/23/2018)
The purpose of this division is to promote site planning which furthers the preservation of mature trees and natural areas; to protect trees during construction; to facilitate site design and construction which contribute to the long-term viability of existing trees; and to control the removal of trees when necessary. It is the further purpose of this division to achieve the following broader objectives:
A. 
Prohibit the indiscriminate clearing of property.
B. 
Protect and increase the value of residential and commercial properties within the town.
C. 
Maintain and enhance a positive image for the attraction of new residences and business enterprises to the town.
D. 
Protect healthy quality trees and promote the natural ecological environmental and aesthetic qualities of the town.
E. 
To reduce the erosive effects of rainfall.
The scope of this division includes the removal and/or transplanting of any tree and mitigation for the removal of protected trees. A permit approved by the Director of Development Services or his/her designee is required before removing and/or transplanting any tree and mitigation for the removal of protected trees.
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this division, except where the context clearly indicates a different meaning:
Protected tree
means a tree that is determined to be healthy by the Director of Development Services, or his/her designee, and meets one of the following requirements:
Any tree, regardless of species, within a 100-year floodplain, six inches or larger in diameter when measured at a point four and one-half feet above the ground level and which normally attains a height of at least 12 feet at maturity.
Any tree outside of the floodplain, except those listed below, six inches or larger in diameter when measured at a point four and one-half feet above the ground level and which normally attains a height of at least 12 feet at maturity.
Historic tree
means any protected tree 40 inches or larger in diameter when measured at a point four and one-half feet above the ground level and which normally attains a height of at least 12 feet at maturity; or any tree deemed to be of historical significance.
Unprotected trees
means the following trees shall not be included in the above definition of protected trees:
Silver Leaf Maple
Acer saccharinum
Hackberry, Texas Sugarberry
Celtis laevigata (Celtis occidentalis)
Honey locust
Gleditsia triacanthos
Bois d'Arc
Maclura pomifera
Mimosa
Mimosa sp.
Red Mulberry
Morus rubra
White Poplar
Poplus alba
Cottonwood
Populus deltoids
Mesquite
Prosopis glandulosa
Willow
Willow sp.
A tree permit shall be required for the transplanting and/or removal of all trees within the Town of Prosper, regardless of size or species, except for trees located on a single-family or two-family lot contained within a plat of record, and as otherwise described in article 4, § 4.3.5 below.
A. 
Application for tree permit.
An application for a tree permit may be submitted at any time and is not required to be submitted in conjunction with development plans, final plat or a building permit. Tree permits shall be obtained by making application to the Director of Development Services, or his/her designee. The application must include a letter signed by the property owner allowing the town access to the property for verification of all survey information. The application shall also be accompanied by a written document indicating the reasons for transplanting and/or removal of protected trees and two copies of a legible site or planting plan, and a detailed tree survey and preservation plan if required in article 4, § 4.3.10.
B. 
Review of application for tree permit.
Upon receipt of a proper application for a tree permit, the Director of Development Services or his/her designee shall review the application and may conduct field inspections of the site or development and/or refer the permit application to other departments for review and recommendations as deemed necessary and appropriate by the town. Protected trees may not be removed or transplanted unless the Director of Development Services or his/her designee approves the tree permit. The Director of Development Services or his/her designee shall act on a tree permit application within ten business days of its submittal. If action has not been taken within this specified time frame, the application shall be deemed approved.
C. 
Historic tree preservation.
No tree removal permit may be issued for a historic tree unless the owner establishes that preserving the historic tree constitutes an unreasonable financial hardship on the owner. Appeals from this determination shall be to the Town Council.
A. 
A tree permit shall be required to remove and/or transplant a protected tree, except for a protected tree located on a single-family or two-family lot contained within a plat of record and having a certificate of occupancy. The Director of Development Services or his/her designee may authorize, in writing, removal of a protected tree provided that the protected tree:
1. 
Is determined to be in a hazardous or dangerous condition so as to endanger the public health, welfare or safety;
2. 
Hinders or obstructs the construction, maintenance, repair, and/or replacement of Town streets, water and sewer lines, and drainage and storm sewer;
3. 
Is located in any major thoroughfare right-of-way dedicated to and accepted by the town. This does not include trees being removed for proposed neighborhood streets, driveways, right and left turn lanes, and/or median openings. Removal of these trees shall require a permit and mitigation at a rate of 50 percent of the mitigation requirements contained in article 4, § 4.3.7(A) of this Ordinance;
4. 
Hinders or obstructs the construction, repair, maintenance, and/or replacement of public improvement projects including, but not limited to, major collection lines for sanitary sewer, distribution lines for water, collection and management of storm water runoff and thoroughfares pursuant to the town's Capital Improvement Project, Water and Sanitary Distribution Line Maps and/or Thoroughfare Plan;
5. 
Is damaged or killed by a tornado, ice or wind storms, flooding or other acts of nature; or
6. 
A tree that is determined to be diseased or dead by a certified arborist or landscape architect, regardless of species or size.
B. 
All retail, commercial, and wholesale nurseries are exempt from the terms and provisions of this division 3 in relation to those trees planted and growing on the premises of said business and that are planted and growing for the sale or intended sale in the ordinary course of business only.
C. 
Utility companies franchised by the town in easements or rights-of-way accepted by the town or otherwise authorized to provide utility service may remove protected tree(s) that endanger public safety and welfare by interfering with utility service. Any trimming and/or removal of protected tree(s) by a utility company requires prior written approval from the Director of Development Services or his/her designee, except in the case of emergency repairs. A utility company shall notify the Director of Development Services or his/her designee of any trimming and/or removal of protected trees done while making emergency repairs on the first business day following the emergency.
D. 
The mowing and clearing of brush located within or under the drip lines of protected trees is allowed, provided such mowing or clearing is accomplished by hand or by mechanical mowers with turf tires.
E. 
Developments that have submitted a preliminary plat for residential development or a final plat for non-residential development prior to the effective date of this ordinance shall be exempt from this ordinance.
F. 
The removal of trees for the development or redevelopment of golf courses and pedestrian trails shall require a permit and mitigation at a rate of 50 percent of the mitigation requirements contained in article 4, § 4.3.7(A) of this ordinance.
G. 
Agricultural users can remove protected tree(s) for agricultural production with prior written permission from the Director of Development Services or his/her designee. A protected tree inventory summary is required to list tree(s) removed and preserved. Replacement requirements of protected tree(s) being removed for agricultural production will be prorated equally over a period of ten years. Should the property be developed prior to the full ten years the remainder of required trees shall be planted on the property in addition to the required trees.
H. 
A tree located on a common property line may not be removed without first obtaining a tree permit. Each of the affected property owners must request the tree permit. A single request may be submitted if it is signed by each of the affected property owners.
A. 
It shall be the responsibility of any person obtaining a tree permit for the removal of protected trees to provide replacement tree(s) having a total diameter of inches equivalent to the percentage rates set forth in article 4, § 4.3.7(A). The diameter for replacement trees shall be measured as follows:
1. 
For single-trunk trees, the width shall be measured at four and one-half feet above ground level.
2. 
For multi-trunk trees, combine the diameter of largest stem or trunk with one-half of the diameter of each additional stem or trunk, all measured at four and one-half feet above ground level.
An example: If an eight-inch protected tree in the flood plain is removed that tree must be replaced at 150 percent by trees with a total caliper width of 12 inches. This total caliper width could be satisfied by one 12-inch caliper replacement tree, or two six inch caliper width replacement trees, or any other combination providing a total caliper width of 12 inches using a minimum width of three inches.
B. 
Should a transplanted tree die, it shall be removed and replacement trees shall be planted at a rate of 100 percent of the caliper inches of the transplanted tree(s).
C. 
If any tree, which was preserved and used as a credit toward mitigation requirements is later removed for any reason, it shall be replaced by the number of trees for which it was originally credited. Replacement trees shall have a minimum trunk diameter of three inches measured six inches above the ground.
D. 
If any replacement tree cannot be properly located on the property being developed or redeveloped, the applicant may plant these replacement tree(s) on property owned by the town and/or common open space and/or pay a fee, as approved by the Director of Development Services, or his/her designee. The cash value of replacement trees will be set by the Director of Development Services, or his/her designee, annually.
E. 
The person(s) or entity responsible for the developing and or redeveloping property that causes or results in the removal of existing Tree(s) in proposed driveways, right turn lanes, and/or in proposed median openings, shall plant replacement tree(s) at a rate of 100 percent of the total diameter of the tree(s) being removed. The replacement tree(s) will be planted on public property according to a written plan approved by the Director of Development Services or his/her designee.
A. 
Removal of protected trees.
Protected trees shall be replaced by planting trees on the property equal to the total caliper inches as calculated using the following replacement rate:
 
Size of Tree
Percentage of Replacement (caliper inches)
Within 100-year flood plain
Less than 6" (unprotected)
0
 
6"—12"
150
 
Greater than 12"—24"
200
 
Greater than 24"—40"
300
 
Greater than 40" (Historic)
Town Council approval and 400
Outside of 100-year flood plain
Less than 6" (unprotected)
0
 
6"—12"
100
 
Greater than 12"—24"
150
 
Greater than 24"—40"
300
 
Greater than 40" (Historic)
Town Council approval and 400
*
All existing tree measurements are in caliper inches as measured four and one-half feet above the natural ground level.
**
All replacement tree measurements are in caliper inches as measured twelve inches above natural ground level.
B. 
Transplanted trees.
Protected trees on a property may be transplanted to another location on the same property without being subject to the above replacement rates.
C. 
Tree credits.
If any protected tree is preserved within an area that would otherwise be considered a buildable area, credit for preservation shall be given that will be counted toward the mitigation requirements for the removal of protected trees within the buildable area on a site or project. Such mitigation credits shall be given only for those trees whose critical root zones are left predominately in their natural state. No cutting, filling, or other construction related activities are allowed within the critical root zones of trees eligible for mitigation credit unless otherwise approved in writing and in advance by the town. Following is a list of credits available for the preservation of protected trees on a site or project. Tree credits will be awarded using the following table:
Caliper Size Tree
Positive Credits*
6"—12"
1
>12"—18"
3
>18"—24"
4
>24"
5
*(One credit is equal to one three-inch caliper tree. Healthy, protected trees only.)
D. 
Any tree that is preserved and receives positive credit towards mitigation is exempt from being used to fulfil required landscaping as described in article 4, division 2 of this ordinance.
E. 
Any tree preserved within a floodplain is exempt from receiving positive credit towards mitigation.
No person(s) or entity, directly or indirectly, shall replant, relocate, transfer or move from one location to another any protected tree within the town without first obtaining a tree permit as provided in article 4, § 4.3.4. All transplanting shall be in accordance with the applicable Texas Association of Nurserymen Grades and Standards shall satisfy the tree replanting requirements of this division.
Prior to construction, the contractor or subcontractor shall construct and maintain, for each protected tree on a construction site, a protective fence and where necessary, bark protection (See Diagram A). All protective measures shall be in place prior to commencement of any site work and remain in place until all exterior work has been completed.
During any construction or land development, the developer shall clearly mark all trees to be maintained. The developer shall not allow the movement of heavy equipment or the storage of equipment, materials, debris, or fill to be placed within the drip line of any trees. This is not intended to prohibit the normal construction required within parking lots. All protected tree(s) shall be protected by the owner as follows, unless otherwise directed by the Director of Development Services or his/her designee:
A. 
Before development or redevelopment, the owner shall install a minimum three foot tall protective barricade made of wood, fencing or solid material. These barricades will be installed a minimum of ten feet from protected trees or a minimum of two feet outside the designated protective root zone, whichever is the greater distance.
B. 
Vertical posts no less than three feet in height and no more than six feet apart. Horizontal members consisting of wood no less than three feet above existing grade and securely attached to the vertical posts.
C. 
Before development or redevelopment, the owner shall establish and maintain a construction entrance that avoids protected trees.
D. 
During the construction stage of development, the developer shall not allow cleaning of equipment or material under the canopy of any tree or group of trees to remain, nor shall the developer allow the disposal of any waste material such as, but not limited to, paint, oil, solvents, asphalt, concrete, mortar, etc., under the canopy of any tree or groups of trees to remain. No attachment or wires of any kind, other than those of a protective nature, shall be attached to any tree.
E. 
No parking or storing of vehicles, equipment or materials allowed within the protective root zone.
F. 
Attachments or wires are prohibited from being attached to any protected tree. Cables, tree rods, and similar hardware installation that aid structural integrity of a protected tree are exempt from this division as approved in writing by the Director of Development Services or his/her designee.
G. 
Fill or excavation may not occur within the canopy or drip line of a protected tree. Major changes of grade (i.e., three inches or greater) within the canopy or drip line will require additional measures to maintain proper oxygen and water exchange with the roots.
H. 
Unless otherwise approved in writing by the town, construction or construction-related activity is prohibited under the canopy or drip line of protected trees.
I. 
Any trees removed shall be chipped and used for mulch on site or hauled off-site. Burning of removed trees, stumps, or foliage requires written approval by the Fire Department.
J. 
Root pruning will be required when disturbance will occur under the drip line of protected trees. This root pruning shall be completed a minimum of two weeks prior to any construction activity within the drip line.
K. 
All tree maintenance techniques shall be in conformance with industry identified standards. Alternative maintenance techniques may be approved by the town.
L. 
No person(s) or entity may use improper or malicious maintenance or pruning techniques which would likely lead to the death of the tree. Improper or malicious techniques include, but are not limited to, topping or other unsymmetrical trimming of trees, trimming trees with a backhoe, or use of fire or poison to cause the death of a tree.
A. 
Preliminary plat and preliminary site plans.
A general survey identifying natural vegetation, trees, and anticipated tree losses shall be submitted with all preliminary plats for residential developments and all preliminary site plans for non-residential and multi-family developments within the protected area. The general tree survey can be included on the preliminary plat or preliminary site plan. The general survey shall include:
1. 
Existing topography at five foot intervals;
2. 
Vegetation groups;
3. 
Development plans;
4. 
Specific trees that are 20 inches and larger; and
5. 
Photographic information is to accompany submission with sufficient data to convey which trees are to remain as they correspond to the general survey.
B. 
Final site plans and final plats.
A detailed tree survey and tree preservation plan shall be submitted with all site plans and final plats. The detailed tree survey and tree preservation plan shall include the following:
1. 
The location, diameter, height, and common name of all single-trunk trees of six inches diameter or greater, measured at four and one-half feet above natural grade level, and at least 12 feet high; and all multi-trunk trees having a total caliper width of six inches, measured by combining the diameter of the largest stem or branch with one-half the diameter of each additional stem or branch, all measured at four and one-half feet above natural grade level, and at least 12 feet high.
2. 
The location of the trunk and drip line, diameter, height, estimated age (not to be determined using invasive measures which might damage the tree), a reproducible color photograph, and common name of the protected trees proposed to be removed or transplanted.
3. 
Provide existing natural grade elevation and proposed final grade elevation at each location for each protected tree for which a tree permit is requested.
4. 
The location and dimensions of all existing or proposed public streets, alleys, rights-of-way, and utility easements.
5. 
The location of all existing or proposed property lines, lot lines, building lines, setback and yard requirements, any proposed building footprint or floor plan, and other special relationships or significant features on the proposed development plans, final plat and site plan of the development.
6. 
Existing and proposed site elevations, grades and major contours including a table listing all protected trees and their respective locations.
7. 
The information required herein shall be summarized in legend or table form on the tree survey and note the reason for removal or transplanting of the protected tree(s).
8. 
The survey shall bear the stamp or seal of a registered surveyor relative to the location of any protected trees and shall bear the stamp, seal, or signature of a registered landscape architect, certified arborist, or arboriculturist relative to the specie(s) of any protected tree.
9. 
A detail tree survey shall be prepared by or under the supervision of a landscape architect, certified arborist, or certified forester. The following shall be on the tree survey:
"I ___________________ being a landscape architect or arborist attest that the identification and size of trees identified on this survey are correct and that all Protected Trees have been shown.
Signature: ____________________________________ Date: __________
10. 
A detailed survey is only required for areas that are intended to be disturbed by the proposed development/redevelopment. A boundary of the area to be included in a detailed survey will be established with the approval of the general survey that is submitted with the preliminary plat or preliminary site plan.
C. 
Field verification.
Prior to written approval of the detailed tree survey and tree preservation plan, the applicant shall mark all trees to be preserved and notify (in writing) the Director of Development Services or his/her designee of the marking. The Director of Development Services or his/her designee shall inspect and verify the markings within seven working days of his/her receipt of applicants' notification. If the Director of Development Services, or his/her designee, has not contacted the land owner within ten working days from the date of notification, the detailed tree survey and tree preservation plan submitted by the applicant is deemed approved.
D. 
Preparation.
Prior to the preconstruction meeting or obtaining a grading permit, all tree markings and protective fencing and standard erosion control measures (i.e. silt fence) must be installed by the owner and be inspected by the Director of Development Services or his/her designee. Approved silt fence may serve as protective fencing and must remain in place until the town accepts the project. A stop work order will be issued at any time if Tree preservation requirements are not being met.
E. 
Final Inspections.
The owner shall notify the Director of Development Services or his/her designee for an inspection ten working days prior to receiving a certificate of occupancy. Any deficiencies or dead trees shall be replaced prior to receiving the certificate of occupancy.
The town Landscape Architect shall be authorized to approve tree loss mitigation plans. The provisions of this division shall be enforced by the Landscape Architect and Code Compliance Officer. The Landscape Architect shall be an employee of the town and certified as an arborist by the International Society of Arboriculture (ISA) or registered as a landscape architect by the Texas Board of Architectural Examine.
A. 
Any person(s) or entity causing the transplanting or removing of a tree without first obtaining an approved tree permit is in violation of this ordinance.
B. 
Each tree removed or transplanted without a permit shall constitute a separate offence. Violation of this ordinance shall not constitute an exemption to the replacement requirements contained herein.
C. 
A person commits an offense if the person critically alters a protected tree not meeting an exception listed in this division without first obtaining a tree permit from the town.
D. 
A person commits an offense if the person critically alters a tree in violation of a tree permit.
E. 
Any person who violates this division by critically altering a protected tree without first obtaining a tree permit from the town, or by critically altering a tree in violation of the permit, or by failing to follow the tree replacement procedures, shall be guilty of a misdemeanor and upon conviction shall be fined $100.00 per caliper inch of the tree critically altered, not to exceed $500.00 per incident. The unlawful critical alteration of each protected tree shall be considered a separate incident and each incident shall subject the violator to the maximum penalty set forth herein for each tree.
F. 
Any person, firm, corporation, agent or employee thereof who violates any provisions of this division other than those listed in above, shall be guilty of a misdemeanor and upon conviction hereof shall be fined not to exceed $500.00 for each incident. The unlawful critical alteration of each protected tree shall be considered a separate incident and each incident subjects the violator to the maximum penalty set forth herein for each tree.
G. 
Allegation and evidence of a culpable mental state is not required for the proof of an offense defined by this division.
H. 
Acceptance of improvements. The town may refuse to accept any public improvements until the person pays all penalties for violations of this division; provided, however, that acceptance of public improvements shall be authorized before all trees shall be replaced if, with the Director of Development Services' approval, the person furnishes the town with a cash deposit or surety bond in the approximate amount of the cost to replace the tree.
I. 
Certificate of occupancy. No certificate of occupancy (CO) shall be issued until any and all penalties for violations of this division have been paid to the town. No CO shall be issued until all required replacement trees have been planted or appropriate payments have been made to the reforestation fund; provided, however, that a CO may be granted before all trees have been replaced if, with the Director of Development Services' approval, the person furnishes the town with a cash deposit or surety bond in the approximate amount of the cost to replace the tree.