[HISTORY: Adopted by the City Council of the City of Cape May as Ch. XIX of the 1997 Revised General Ordinances, as amended; amended in its entirety 2-20-2024 by Ord. No. 525-2024. Subsequent amendments noted where applicable.]
A. 
The intent and purpose of this chapter is to establish standards for the City for the protection and preservation of certain trees defined herein growing in a natural state within this municipality, including the public right-of-way and private property.
B. 
For purposes of Chapter 482 and Chapter 525, a "tree" shall mean any woody perennial plant with a main stem or trunk exceeding three inches in diameter measured at a point 4.5 feet above the ground level on the downhill side of such tree.
C. 
A "replacement tree" shall be of at least two inches in diameter at 4.5 feet above the ground.
A significant specimen tree shall include any tree with a diameter at breast height (DBH) larger than 16 inches or has a trunk diameter exceeding 60% of that of the largest similar tree listed in the Cape May List of Approved Trees and Shrubs that is prepared and annually updated by the Cape May Shade Tree Commission.
The City Council may appoint a Tree Specialist who shall be responsible for the inspection of sites for which application(s) are filed under this chapter as directed by the Shade Tree Commission and who shall meet either of the following qualifications:
A. 
A forester who shall have a bachelor's degree in forestry or arboriculture from a college or university, shall be certified as a certified tree expert by the State of New Jersey; or
B. 
A conservation officer who shall be certified as a certified tree expert by the State of New Jersey.
The restrictions in this section shall apply to the removal of all trees as defined in § 482-1 that grow on any land in the City, and including Significant Specimen Trees, unless such trees are 1) permitted to be removed under the provisions of this section, or 2) are otherwise regulated as part of the City's site plan, subdivision or zoning regulations, as set forth in § 482-7. For the avoidance of any doubt, the regulations herein shall apply to trees growing in any public right-of-way as well as on private property.
In the case of an emergency where, for example, trees are blown over and/or uprooted, damaged beyond repair, or in such condition that the tree poses a risk of serious damage to person, property or public safety, a tree may be removed immediately per the following process:
A. 
The Tree contractor or property owner must contact either the Code Enforcement Officer, the Deputy Code Enforcement Officer, or any member of the Cape May City Shade Tree Commission.
B. 
The responding individual shall inspect the tree and determine if the tree is considered dangerous. The term "dangerous" is defined as in such condition that the tree risks immediate and serious damage to a person, property or public safety.
C. 
If the responding individual determines the tree is not dangerous, the requesting party must submit an application for tree removal pursuant to § 482-5.
D. 
If the responding individual determines the tree is dangerous:
(1) 
The tree may be removed upon verbal approval to the Tree Contractor or property owner by the responding individual.
(2) 
The responding individual must notify the Code Enforcement Office and Shade Tree Commission, in writing, of the determination within 24 hours.
E. 
Within five business days following an emergency requiring the removal of the tree, the Tree Contractor or property owner must submit an application pursuant to § 482-5. The applicant shall provide evidence demonstrating the need for the emergency removal, including, but not limited to, photographs. The applicant shall comply with any replacement obligations as determined by the Shade Tree Commission pursuant to § 482-6.
F. 
All tree care services within the City shall be conducted by a person or entity licensed pursuant to N.J.S.A. 45:15C-11, et seq., unless the person, entity, or activities are exempt pursuant to N.J.S.A. 45:15C-31. Exemptions include the following:
(1) 
Any public utility or any employee of a public utility while engaged in the actual performance of his duties as an employee;
(2) 
Any employer under contract with a public utility who is engaged in tree trimming or any other utility vegetation management practice for purpose of line clearance, or any employee of the employer while engaged in the actual performance of duties in regard to tree trimming or other utility vegetation management practice or for the installation of underground facilities or associated site construction;
(3) 
Any forestry activities that are conducted under the forest management and stewardship programs approved by the State Forester, provided that tree climbing is not performed, nor are aerial lifts, cranes, or rope and rigging operations used;
(4) 
Landscape construction activities, including those performed by, or under the direction of, a landscape architect, or ground based landscape maintenance activities such as pruning, fertilization, insect and disease control, planting, transplanting and all other forms of ground based landscape maintenance, in compliance with the sections of the American National Standards Institute practice standards set forth by the board by regulation, with applicable safety standards and regulations promulgated by the federal Occupational Safety and Health Administration, and with any pesticide regulations promulgated by the Department of Environmental Protection. For the purposes of this subsection, ground based landscape maintenance means operations that do not involve climbing, the use of aerial lifts, cranes, rope and rigging operations, or the removal of trees over six-inch D.B.H;
(5) 
Any person or employer that does not offer tree care services for hire;
(6) 
Any trees being removed pursuant to an approved site plan or subdivision approval, provided that the tree removal activities are performed in compliance with the sections of the American National Standards Institute practice standards set forth by the board by regulation, with applicable safety standards and regulations promulgated by the federal Occupational Safety and Health Administration, and with applicable safety standards of the American National Standards Institute as designated by the board by regulation; and
(7) 
Any employee of a municipality or county while engaged in the actual performance of his duties as an employee.
A. 
No person shall remove or destroy any tree subject to the regulations contained in this section without first obtaining a tree removal permit from the City.
B. 
All applications for tree removal shall be filed with the Cape May City Shade Tree Commission. The applicant shall file an application for a tree removal permit on forms made available in the office of the City Clerk or the Secretary of the Commission. When the application is filed, the applicant shall pay a nonrefundable application fee of $75 (referred to as "the application fee"). The application shall contain the name and address of the owner of the lands upon which the tree or trees sought to be removed are located, and the type, size and location of tree or trees sought to be removed. If the application is approved, the applicant shall pay an additional $75 removal fee per tree to be removed as a condition of issuance of the tree removal permit. (referred to as "the removal fee").
For the avoidance of any doubt, the application fee shall be $75 regardless of the number of trees sought to be removed at a particular property so long as the application pertains to one property. In contrast, the removal fee is tied to the number of trees approved for removal.
C. 
Once a complete application is submitted, the application will be placed on the next available Shade Tree Commission Meeting Agenda. The Shade Tree Commission may direct applications to the Tree Specialist who shall assess and provide a report to the Shade Tree Commission within two weeks of receiving the application.
D. 
Tree removal permits shall be reviewed, approved or denied, and a decision shall be issued by the Shade Tree Commission to the owner or his authorized contractor, within five business days of the Shade Tree Commission meeting where the application was reviewed. Permits shall contain the name and address of the owner of the lands upon which the tree or trees sought to be removed are located, and the type, size and location of tree or trees sought to be removed.
E. 
The tree removal permit shall be valid for one year from the date of issuance and will automatically expire at the conclusion of the one-year term. Any request for renewal or extension thereof shall be subject to the procedures for new applications pursuant to this section.
The Shade Tree Commission shall grant or deny the permit with reference to the standards contained in this section. In applying such standards, the Commission may condition the grant of the permit upon such reasonable conditions as may be deemed necessary to effectuate the purpose of this section.
A. 
The Commission shall be satisfied that the removal of any particular tree is required for the effective utilization of the lands in question, and that no alternative to removal is available.
B. 
The Commission shall be satisfied that the proposed removal shall not impair the growth and development of the remaining trees on the lands where the proposed tree or trees are located, as well as on adjacent lands.
C. 
The Commission shall be satisfied that adequate precautions shall be taken with respect to the removal of the tree or trees, so that other trees will not be damaged by removal, and that the roots of remaining trees will not be cut.
D. 
Should the Commission authorize the removal of any tree, it shall require the applicant to provide a replacement tree, or trees, of a size and type, and at a location, in accordance with the following:
(1) 
All existing trees outside a building footprint having a three-inch diameter trunk measured at a point 4.5 feet above the ground on the downhill side of such tree, shall remain if said trees are in excess of six feet from the outside of the exterior wall of the proposed structure. In the event that an applicant wishes to remove a tree or trees as above described, that applicant shall then be required to plant two trees for each tree removed, which replacement trees shall be of at least two inches in diameter at a point 4.5 feet above the ground at a location on the property to be chosen by applicant.
(2) 
In addition to the replacement of removed trees above described, the applicant shall replace at a location of his or her choice on the property, any trees located within the footprint of the proposed structure, plus six feet, if said trees have a trunk at least three inches in diameter measured at a point 4.5 feet above the ground on the downhill side of such tree.
For every tree removed within the footprint of the existing or proposed structure, plus six feet, the applicant shall plant one tree along the side yard and rear yard, which tree shall be of the same size as the replacement tree above described. However, the applicant shall not be required to plant trees closer than 10 feet between the two, said distances measured from center trunk to center trunk. The replacement trees need not be of the same species as the trees removed; however, they shall be of the same height classifications as the trees removed. There may be circumstances in which these general guidelines for replacement are unworkable due to unique conditions affecting land. The Shade Tree Commission may determine the appropriate replacement obligation balancing the purposes of Tree protection and with the general guidelines for replacement contained herein.
(3) 
The location of the tree to be removed determines the replacement obligation. All replacement trees or shrubs may be installed in a location determined by the applicant in accordance with this section. The example graphic below depicts the areas subject to Subsections D(1) and D(2):
E. 
The Commission may permit an exemption from the replacement requirements of this section upon a showing of extraordinary circumstances or undue hardship.
F. 
A Tree Protection Zone (TPZ) shall be delineated around all trees to be protected during a project to limit root pruning and restrict traffic and material storage. The TPZ shall specify a distance in which excavation, storage, and other construction-related activities shall be prohibited. The TPZ may vary depending on species, factors, age and health of the plant, soil conditions, and proposed construction. The TPZ shall be accomplished by physical barriers or soil protection layers or treatments. TPZ barrier(s) shall be installed prior to any activities performed on the site that may impact the root zone or aboveground parts of the tree.
(1) 
Generally, the area and dimensions of the TPZ shall be calculated by multiplying the diameter of the tree by 12. However, the dimensions of the TPZ shall be subject to the discretion of the Shade Tree Commission after consideration of all relevant site conditions. Post and rail fencing with a height of at least four feet shall be located at that distance and surround the tree completely. Plastic fencing is not appropriate for use in connection with a TPZ. Nothing should enter or be placed within the TPZ until the project has been completed.
Example: A tree with a ten-inch diameter: 12 inches by 10 inches equals 120 inches or 10 feet. In this example, the wooden fencing should surround the tree at a distance of 10 feet from the trunk of the tree.
(2) 
If site conditions make compliance with the TPZ impractical, a designated representative of the Shade Tree Commission may approve alternative mitigation procedures reasonably calculated to advance the purposes of the TPZ, or, that such activities will not impact tree health. The designated representative may include such reasonable conditions necessary for the protection of trees as described herein.
(3) 
Fencing or other barriers to the TPZ shall be installed prior to site clearing, grading, and demolition, and maintained through construction and landscaping. Activities within the TPZ are prohibited. TPZ fencing may be removed upon the issuance of a CO, or earlier if approved by the designated representative of the Shade Tree Commission.
Section 525-60 and this chapter are to be read together for the protection and preservation of trees. No tree as defined herein may be removed unless through compliance with this section, or, through approval of a landscaping and vegetation plan approved by the City of Cape May Planning Board or Zoning Board. The Zoning Officer shall refer any applicant proposing removal, or, other tree care services as part of a landscaping and vegetation plan pursuant to § 525-60, to the Shade Tree Commission for review and determination pursuant to this section. Any removal or tree care services approved pursuant to § 525-60 by the Zoning Officer and/or the Planning or Zoning Board shall be deemed to be permitted by this section. For the avoidance of any doubt, applications to the Historic Preservation Commission that propose removal of any tree shall be required to comply with this section in addition to any other requirements or conditions imposed by the HPC. Decisions by the HPC will not exempt the applicant from compliance with this Chapter.
A. 
Any person aggrieved by a decision of the Shade Tree Commission shall be entitled to a full hearing before the City Manager if a written request is filed with the Shade Tree Commission Secretary within 10 days from the Commission's initial written decision.
B. 
Upon receipt of request for hearing, the City Manager's office will set a date for hearing taking into consideration the availability of the applicant and the Shade Tree Commission. At the time of hearing, the City Manager will hear from the applicant and provide the Shade Tree Commission representative(s) with the opportunity to respond. The City Manager will consider all relevant materials, exhibits, and testimony from the applicant and the Shade Tree Commission. The proceedings will be open to the public.
If no resolution by consent of the parties can be reached during the course of hearing and discussion, the City Manager's Office will issue a written determination. After taking into consideration the purposes and standards set forth herein, the City Manager may affirm, modify (including any conditions), or reverse the initial decision. The City Manager's determination will constitute a final decision.
It shall be a violation of this section, punishable under § 482-10, for any person, corporation or entity to remove a tree in order to avoid the provisions of this section.
A. 
Any person, corporation or entity violating any provision of this section shall be punished as provided in this chapter.
B. 
The Code Enforcement Officer shall be responsible for enforcing of this chapter. The Shade Tree Commission will annually appoint a liaison to the Code Enforcement Office from among the Commission's membership. The Enforcement Liaison will, in coordination with the City Manager's Office, communicate with the Code Enforcement Office and keep the Shade Tree Commission apprised of enforcement issues arising under this section.
C. 
Nothing herein shall be deemed to limit the remedies available to the City of Cape May or other person seeking to compel enforcement of this section, and the remedies of compelling replacement of a tree or trees by paying money damages shall be considered cumulative.
D. 
Should the City choose reimbursement as a penalty for the violation of this section, the rate of reimbursement shall be $27 per basal inch of the tree, in accordance with the state-sanctioned reimbursement value. Should the state modify or amend that value, the reimbursement value to the City shall reflect that modification or amendment.
E. 
In addition to the above, if construction or development is being undertaken contrary to the provisions of this section, the Code Enforcement Officer shall issue a stop-construction order, in writing, which shall state the reasons for such order and the conditions upon which construction may be resumed and which shall be given to the owner or the holder of the construction permit or to the person performing the construction. If the person doing the construction is not known or cannot be located with reasonable effort, the notice may be delivered to the person in charge of, or apparently in charge of, the site.
No person shall continue, or cause or allow to be continued, the construction of a building or site in violation of a stop-construction order, except with the permission of the enforcing agency to abate the condition or remove a violation, or except by court order.
If an order to stop construction is not obeyed, the enforcing agency may apply to the appropriate court as otherwise established by law for an order enjoining the violation of the stop-construction order. The remedy for violation of such an order provided in this subsection shall be in addition to, and not in limitation of, any other remedies provided by the City Code or other applicable laws or regulations.
F. 
Each day the violation shall continue after a notice and a reasonable opportunity to correct or remedy the violation shall constitute a separate violation.
G. 
Any appeal of a stop-construction order issued by the City Code Enforcement Officer for failure to comply with this section shall be made to the Shade Tree Commission and further subject to the right to hearing procedures set forth in § 482-8.
H. 
Any contractor or tree professional who pleads guilty, or has been adjudicated guilty, of violating this section three times in a running five-year period shall be barred from conducting work for hire as a contractor or tree professional in the City for a period of five years from the adjudication of the third offense. For purposes of this section, any contractor or tree professional who violates a stop-construction order, or who does not appeal a duly issued stop-construction order, shall be deemed to have committed an adjudicated violation of this section.
I. 
Any appeal of a stop construction order issued by the City Code Enforcement Officer shall be made to the City Manager pursuant to the appeal procedures set forth herein.
A. 
No person shall do or cause to be done any of the following acts: affix any item, handbill, poster, notice, sign, advertisement, sticker, or other printed material upon any tree in a public right of way by any means, including, but not limited to, stapling, nailing, screwing, or piercing the tree by any method.
B. 
There is a rebuttable presumption that the person whose name, telephone number, or other identifying information appears on any handbill, poster, notice, sign, advertisement, sticker, or other printed material on any item or structure is in violation of this section.
C. 
In addition to the General Penalty provisions set forth in Chapter 1, Article III, anyone found to have violated this provision shall also be responsible for the cost of the removal of the unauthorized postings. Every handbill, poster, notice, sign, advertisement, sticker, or other printed material found to be in violation of this section and of the same source shall be deemed a separate violation.