Town of Clarkstown, NY Tree Preservation

DBH (DIAMETER AT BREAST HEIGHT)

Editor's Note: This local law also repealed former Ch. 270, Tree Preservation, adopted 10-23-2007 by L.L. No. 17-2007, as amended.

§ 270-1 Title.

This chapter shall be known and may be cited as the "Tree Preservation Local Law of the Town of Clarkstown."

§ 270-2 Legislative intent.

The Town of Clarkstown has a vital interest in the planting and preservation of trees within its territorial boundaries. Trees stabilize the soil on slopes, thereby preventing erosion, siltation and flooding. They control water pollution, purify the air by generating oxygen, mitigate noise and reduce energy consumption by providing shade. In performing these functions, they increase the value of all properties in the Town of Clarkstown. The destruction and removal of trees causes increased costs to the Town for remediating drainage control, impairing the value of both improved and unimproved property, and has a deleterious effect on the health and general welfare of the citizens of Clarkstown. It is therefore the intent of this chapter to establish standards for the protection of these valuable resources and to provide a workable method of determining under what circumstances a tree may reasonably be removed. Toward that end, the Town Board of the Town of Clarkstown has implemented these regulations for the following purposes:

To preserve the semirural appearance of the Town by encouraging owners of existing homes, vacant lands and commercial parcels to save or replace mature tree species when developing their parcels;

To control and regulate the indiscriminate removal, cutting and destruction of trees in order to regulate and prevent soil erosion, surface runoff and aesthetic blight;

To preserve existing woodlands and maintain tree buffers;

To promote air pollution mitigation;

To preserve wildlife habitat and ecosystem protection;

To serve as noise buffers, climate moderation, and foster energy conservation.

§ 270-3 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

AHRB

Architectural Historic Review Board.

[Amended 6-28-2016 by L.L. No. 8-2016; 9-8-2020 by L.L. No. 2-2020]

APPLICANT

The owner of land proposed to be developed or subdivided, or the owner's duly authorized representative, or individual receiving a tree removal permit under § 270-6 of this chapter.

CALIPER

The diameter of a tree measured at 12 inches above grade.

CERTIFIED ARBORIST

As defined by the International Society of Arboriculture (ISA). It shall include a "consulting arborist" who satisfied the requirements of the American Arborists (ASCA) and who is determined by the ASCA to meet the standards of certified or consulting arborist as defined above.

CUTTING

The detaching or separating from a tree any live limb or branch over one inch in diameter, any pruning which changes the shape or natural character of the tree or any branch removal that removes more of the tree canopy than recommended under ISA standards.

The diameter of a tree measured at a point of 4 1/2 feet above ground level at the base of the tree on the uphill side.

DEFM

Department of Engineering and Facilities Management.

[Added 9-8-2020 by L.L. No. 2-2020[1]]

DRIP LINE

An imaginary, roughly circular line extending from the maximum spread of the limbs of a tree perpendicular to the ground.

INJURY

Any act that may cause a tree to die within a three-year period from the date of the act, including but not limited to girdling, stripping of bark, setting fires on or near a tree, severe pruning, applying chemicals, or changing the ground level within the drip line.

PROTECTED TREE

A tree of a specific species or size that may not be reshaped, altered, damaged, relocated or removed without first obtaining a tree removal and cutting permit from the Town of Clarkstown. Protected trees shall not include trees planted and growing in a licensed nursery for sale or planted and grown as part of an active commercial orchard.

REMOVAL

The physical removal of a tree or causing the death or untimely decline of a tree through actions including but not limited to damage, destruction, unnecessary disfigurement, withholding water, poisoning, or other deliberate or willful action or inaction.

SPECIMEN TREE

A tree that is representative of a particular species in form and size. It is a tree that may also represent the character of an area or neighborhood.

STEEP SLOPES

See § 290-3 for definition.

TREE

Any woody perennial plant characterized by having a single trunk or multitrunk structure at least 10 feet high and having a major trunk with a caliper of at least four inches measured 54 inches above the ground level. It shall also include those species of plants generally designated as trees and any required tree shown on Town-approved landscape plans.

TREE PRESERVATION PLAN

A map of the property in question that shows site boundaries, all existing and proposed structures, easements, etc., and the location, species, DBH and condition of all existing trees with a DBH of eight inches or greater and all trees proposed to be removed with a DBH of eight inches and greater. Additionally, all trees proposed to be removed with a DBH of three inches and greater, or eight feet in height or greater for evergreens, must be shown if included on a previously approved landscape plan. The tree preservation plan shall detail the methods and practices to be used to provide protection from injury during construction for all trees to be preserved. See § 270-5 for further details on the requirements of the tree preservation plan.

[Amended 9-8-2020 by L.L. No. 2-2020]

TREE REMOVAL PERMIT

A written authorization to remove a tree(s) pursuant to this chapter.

Editor's Note: This local law also repealed the former definition of "DEC," which immediately preceded this definition.

§ 270-4 Applicability.

This chapter shall apply to all property owners, including owners of existing residential dwellings within the Town of Clarkstown. This law shall apply to but not be limited to the owner of the property wishing to cut or remove a tree as defined above, all persons or corporations who will be applying for building permits, all persons or corporations applying for site plan approval, land disturbance permits, applications for minor and major subdivisions, and any persons or corporations who wish to remove trees for any other purpose not stated herein. This chapter shall not apply to site plan or subdivision applicants who have been granted preliminary approval prior to the effective date of this chapter or to site plan or subdivision applications which do not propose cutting or removal of existing trees. This chapter shall not apply to utilities performing safety and reliability maintenance work relating to transmission and distribution lines.

§ 270-5 Tree preservation plan required.

A tree preservation plan shall be filed, except where excluded in § 270-4, with every application for a subdivision or site plan review. The tree preservation plan shall be prepared by a registered landscape architect, professional land surveyor or engineer. The Planning Board shall approve, disapprove or approve with modifications the tree preservation plan pursuant to the regulations and provisions of this chapter. A tree preservation plan shall show site boundaries, all existing and proposed structures, easements, etc., and the location, species, DBH and condition of all existing trees with a DBH of eight inches or greater and all trees proposed to be removed with a DBH of eight inches and greater. Additionally, all trees proposed to be removed with a DBH of three inches and greater, or eight feet in height or greater for evergreens, must be shown if included on a previously approved landscape plan. The inventory shall include specimen and protected trees. The plan shall provide tree wells or walls at the dripline of all trees to be preserved. No disturbance or storage of materials or equipment shall occur within the dripline of trees to be preserved, including but not limited to regrading and installing structures or impervious surfaces. Methods for protecting trees during construction shall be specified on the plan. In no instance shall the density of trees fall below 17 trees per acre on a given site or any lot in a subdivision without the applicant providing replacement trees as per § 270-14. Tree density calculations, as per § 270-5C(2), must be shown on the tree preservation plan. The plan must demonstrate and detail the steps to be taken to protect and preserve the trees to remain for a period of two years after the issuance of a certificate of occupancy for each building. Where the owner of the property having an approved tree preservation plan wishes to remove a tree as defined within, and is not otherwise required to file an application with the Planning Board as outlined above, said property owner shall apply for a tree removal permit from the Director of Engineering and Facilities Management, or his designee, as provided in § 270-6 below.

[Amended 12-13-2018 by L.L. No. 9-2018; 9-8-2020 by L.L. No. 2-2020]

The Planning Board, along with the concurrent review of the Architectural Historic Review Board, shall apply the following standards in reviewing and approving tree preservation plans and shall attach such conditions and safeguards as are, in its opinion, deemed necessary to accomplish the purposes of this chapter.

[Amended 6-28-2016 by L.L. No. 8-2016]

Healthy specimen and protected trees and other trees deemed significant by the Planning Board located in a public place shall be preserved where feasible.

Healthy specimen and protected trees and other trees deemed significant by the Town Department of Engineering and Facilities Management or Planning Board may be required to be preserved at the discretion of the Planning Board.

[Amended 12-13-2018 by L.L. No. 9-2018]

Concurrent with a tree preservation plan, a separate landscape plan shall be submitted and shall conform to the following minimum standards:

Resulting minimum tree density for the total site or for each lot in a subdivision shall be no less than 17 trees per acre of lot area or major fraction thereof. The minimum size of trees to be planted to meet the minimum tree density requirement shall be in accordance with Table 1 (attached),[1] and shall be based on the descending order of the sizes of trees removed. In any disturbed portion of the site, as shown by the clearing limit line shown on the grading plan and tree preservation plan, or as determined by the Department of Engineering and Facilities Management, tree density shall be no less than 17 trees per acre. In no case shall the minimum tree density be based solely on undisturbed portions of the site.

[Amended 9-8-2020 by L.L. No. 2-2020]

Editor's Note: Table 1 is included as an attachment to this chapter.

In calculating the number of trees per acre, the following may be counted toward the minimum tree density required:

(a)

Existing trees having a DBH of eight inches or greater and located and shown on the tree preservation plan.

(b)

All trees in accordance with the minimum size requirements of Table 1 shown on an approved landscape plan for the site which were planted and maintained in accordance with that landscape plan.

[Amended 9-8-2020 by L.L. No. 2-2020[2]]

[2]

Editor's Note: This local law also repealed former Subsection C(2)(c), regarding trees shown on a previously approved landscape plan, which immediately followed.

(3)

In selecting locations to plant trees, priority should be given to that section of the lot within a buffer, lot line or places visible to the public.

(4)

The Planning Board shall require the applicant to post cash security in the form of escrow or letter of credit sufficient to ensure the care and health of all newly planted trees for a period of two years from the issuance of a certificate of occupancy in an amount to be determined by the Director of Engineering and Facilities Management. Such letters of credit shall be in a form acceptable to the Town Attorney.

[Amended 12-13-2018 by L.L. No. 9-2018]

(5)

When plans require replanting in proximity to electric facilities, species that are compatible with the safe operation of those facilities as designated by the respective utility shall be selected.

Prior to the commencement of any development activity on any part of a site, the Town Department of Engineering and Facilities Management shall meet with the developer and his/her construction manager to ensure that:

[Amended 12-13-2018 by L.L. No. 9-2018]

Those trees designated to be preserved are physically identified on the site so as to be easily recognizable as trees to be protected.

The identified measures to protect trees before, during and for a period of two years after construction are implemented.

The applicant shall be required to pay the cost necessary for the Town to retain an arborist to review compliance with the requirements of the tree preservation plan and landscaping plan should the Planning Board or the Architectural Historic Review Board require same.

[Amended 6-28-2016 by L.L. No. 8-2016]

Enforcement; penalties for offenses. Upon any violation of the tree preservation plan, the Building Inspector shall issue a stop-work order immediately, and the applicant shall be required to take such remedial action as the Planning Board deems appropriate before a certificate of occupancy may be issued. Any violation of an approved tree preservation plan shall also constitute a violation punishable as provided in § 270-16 of this chapter, for purposes of which the removal of each tree which was to have been preserved shall constitute a separate and distinct violation.

§ 270-6 Tree removal permit required; exceptions.

[Amended 12-13-2018 by L.L. No. 9-2018; 9-8-2020 by L.L. No. 2-2020]

A tree removal permit shall be required from the Town Department of Engineering and Facilities Management before the removal of the following:

(Reserved)

Any tree or plant designated by the New York State Department of Environmental Conservation (NYSDEC) as a protected native plant.

(3)

Any tree within the Town of Clarkstown Historic District, or historically designated property, with a DBH of eight inches or greater.

(4)

Any tree with a DBH of eight inches or greater related to new single-family residential construction with the following conditions:

(a)

Trees within the proposed building septic field, driveway and to a distance of 30 feet around the proposed building footprint shall not be included in the count of trees to be removed.

(b)

Prior to any tree removal related to new single-family construction, the applicant shall submit the proposed plot plan for review.

(5)

More than one tree with a DBH of eight inches or greater per 5,000 square feet of area on a single property within a period of three calendar years.

(6)

Any tree or plant within a state or federal wetland or within 25 feet of the top of the bank of any drainageway.

(7)

Any tree on steep slopes as described in § 290-3.

Exceptions. Notwithstanding the foregoing, no permit shall be required for the removal of:

Any dead tree, as verified by the Town DEFM or a certified arborist.

Any tree posing an imminent danger to a structure, vehicle or pedestrian traffic. (Property owner must provide documentary evidence of the dangerous condition which led to the removal of the tree within seven days of the removal of the tree, which shall be reviewed for sufficiency by the Town DEFM. In the event that the Town DEFM determines that a dangerous condition did not exist, the provisions of § 270-14 of this chapter shall be applicable against property owner verified, in writing, by either the DEFM or a licensed arborist within seven days after the tree's removal.)

(3)

Any tree which is designated by the NYSDEC and verified by Town DEFM or certified arborist as an invasive species.

(4)

Any tree shown to be removed on an approved tree preservation plan pursuant to § 270-5 above.

For any single property which exceeds the number of trees to be cut beyond those provided in § 270-6A(5), the applicant shall provide a tree preservation plan and landscape plan that provides for the planting of a replacement tree in accordance with Table 1,[1] and shall be based on the descending order of the sizes of trees removed, for each tree to be removed beyond that provided in the corresponding section in § 270-6A(5) that pertains to the subject property.

Editor's Note: Table 1 is included as an attachment to this chapter.

§ 270-7 Protected trees.

Sycamore at Village Square, West Nyack – Tax Lot: 64.08-3-28.

Oak at Promenade, New City – Tax Lot: 34.18-1-22.

§ 270-8 Issuance of tree removal or building permit.

No tree removal permit or building permit shall be issued for the construction of any principal building, accessory building or addition, unless and until such person or corporation shows on an approved plan all existing trees and proposed tree removals in relation to the survey stakes marking out a building, foundation, dwelling, garage, swimming pool, driveway, recreation area or any site that warrants tree removal.

§ 270-9 Display of permit.

[Amended 12-13-2018 by L.L. No. 9-2018]

A tree removal permit must be adequately displayed so that it is visible from the nearest public street until such time as the authorized cutting has ended and a final inspection has been conducted by the Town Department of Engineering and Facilities Management.

§ 270-10 Data required.

Every tree removal permit application submitted for approval shall include a map and exhibits showing:

Boundary survey prepared by licensed land surveyor, including existing features and the general location of wooded areas and trees to be removed.

The map is to show the estimated number of existing trees presently located on the property and those trees to be cut down.

The area of the tract.

The location of streams and wetlands.

Identify the street, block and lot number of the land upon which the tree(s) eight inches or greater are located.

Provide the name and address and telephone number of the owner or duly authorized agent of said owner, where applicable.

Identify and place on the plan application the location of tree(s) sought to be cut, removed or destroyed.

Mark the trees to be removed on the site with red tape that is visible, weatherproof and reasonably tamper-proof. No tree shall be sprayed with paint, chemicals or otherwise permanently marked, damaged or defaced.

§ 270-11 Review of site.

[Amended 12-13-2018 by L.L. No. 9-2018]

The Town's Director of the Department of Engineering and Facilities Management, or designee, shall review the site to determine whether the cutting, removal or destruction of said trees shall impair the drainage conditions, create soil erosion or otherwise affect the physical, environmental and/or the aesthetic value of the land.

§ 270-12 Inspection in conjunction with permit application.

[Amended 12-13-2018 by L.L. No. 9-2018]

Where an application is made in conjunction with an application for a building permit, the Town's Director of the Department of Engineering and Facilities Management or designee shall make an on-site inspection of the lot where all trees to be cut or destroyed are to be clearly identified by tagging as described by § 270-10H above. This site inspection must be made and the tree removal permit issued before any building permit shall be approved.

§ 270-13 Fee.

[Amended 12-13-2018 by L.L. No. 9-2018]

At the time of filing an application for a tree removal permit or an application in conjunction with one of the enumerated applications set forth in this chapter, the applicant shall deposit with the Town Department of Engineering and Facilities Management a nonrefundable fee to cover the cost of reviewing the application, making on-site inspections and the issuance of the permit in accordance with the Town Consolidated Fee Schedule as adopted by and which may be amended from time to time by resolution of the Town Board.

§ 270-14 Replacement; treatment of removed or damaged tree.

Any tree destroyed or removed in violation of this chapter shall be replaced by a species which is identical to that removed or is otherwise referred to in the U.S. Soil Conservation Service as compatible with the soil type and shall be sized in accordance with Table 1,[1] with a minimum size of three-inch caliper if deciduous or eight feet in height if coniferous, regardless of the size of the tree removed. Notwithstanding the foregoing, if the tree or trees removed is/are invasive species as defined by Cornell Cooperative Extension, for example, the Norway maple, the replacement tree shall be a noninvasive tree.

[Amended 9-8-2020 by L.L. No. 2-2020]