Either publication in a newspaper of general circulation once a week for two consecutive weeks or written notification sent by first-class mail to property owners immediately affected or notification posted on the affected tree. Notice of public hearing shall be published and sent to affected property owners within 30 calendar days of the hearing date.

PARK

Includes all public parks.

PERSON

Includes individuals, partnerships, associations and corporations.

PLANTING

Putting or setting into the ground.

PUBLIC AREA

Any public or right-of-way, park, easement or other area under the control of the Borough.

PUBLIC RIGHT-OF-WAY

The land between property lines set aside for public use or ownership as a street, alley, crosswalk, easement or otherwise.

SHADE TREE

Unless otherwise specified, all trees, shrubs, and woody vegetation in the public right-of-way.

§ 407-2 Shade Tree Commission.

Membership. The Shade Tree Commission is hereby created and shall consist of three Borough residents who are knowledgeable of shade trees and their maintenance. Initially, one commissioner shall be appointed to serve for three years, one commissioner to serve for four years, and one to serve for five years. On the expiration of the term of any commissioner, he shall be reappointed or a successor shall be appointed to serve for a term of five years. Commissioners shall be appointed by Borough Council.

Organization. The Commission shall elect from its own membership a chairman who shall serve an annual term and who may succeed himself. For the conduct of any meeting and the taking of any action, a quorum shall not be less than a majority of the members of the commission. The commission shall keep full records of its business and shall submit a report of its activities to the Borough Council at least once a year.

Removal of members. Any commission member may be removed at the discretion of the Borough Council.

Responsibilities.

(1)

The commission shall act as an advisory body to the Borough Council on all matters concerning shade trees within public parks, public areas and the public right-of-way. Such advice may include:

(a)

Recommendation of tree species for public areas;

(b)

Recommendations for controlling diseases and pest damages;

(c)

Recommendations for tree maintenance;

(d)

Recommendations for a public education/information program concerning the importance and care of trees;

(e)

Rules and regulations regarding tree planting and maintenance and removals.

(2)

The Borough Council shall consider the advice of the Commission on matters concerning the application of this chapter. The Borough Council, hereby retaining exclusive custody and control of all of the shade trees in the public right-of-way and public parks and public areas, may plant, remove, maintain and protect such shade trees. The Commission shall carry out any duties and responsibilities conferred upon it by the Borough Council, including those herein conferred.

(a)

The Commission shall prepare, for Council's approval, a plan for street trees in the Borough. The plan shall include a list of existing trees (including species and location.) The plan should also include suggested policies for the planting of trees (including suitable species for various environments and spacing of trees). The plan may also identify locations for new plantings, desirable species changes, etc. In developing the plan, the Commission should consult with other Borough authorities, Boards and Commissions, including the Planning Commission. The plan should recognize the benefits of a public tree program and the need to control expenses (both in the short- and long-term) of planting, maintenance, removals, cleanup and all other costs associated with a tree program. The Commission shall review the plan annually and/or at other times, at the request of the Borough Council. Once approved by Council, the plan shall be known as the Official Street and Sidewalk Planting Program.

(b)

The Commission may, with the approval of Council, solicit and accept grants and contributions on behalf of the Borough. All funds obtained by the Commission shall be expended for the specific purpose(s) or under the stipulation set by the contributor or the Commission with specific approval of Council.

(c)

The Commission shall give recommendations and advice as to species selection, planting, maintenance, or removal of trees on all public rights-of-way, public areas and in all public parks.

(d)

It shall be the duty of the Commission to encourage and advise proper planting and maintenance of trees by private persons and to advise private persons to plant according to the Official Street and Sidewalk Planting Program when planting shade trees in the public right-of-way. For that purpose, the Commission shall furnish advice on the desirable kinds and types of trees, methods of planting and maintaining trees and other educational information about trees.

(e)

The Commission shall also work with all other concerned agencies in the planning of trimming, planting, transplanting and removal of shade trees in public rights-of-way.

(f)

The Commission shall conduct all public hearings required by this chapter. After hearing testimony, the Commission may make recommendations to the Borough Council concerning the subject of the hearing.

Notice that work is to be performed. Any property owner directly affected by planting, transplanting or removal of shade trees in the public right-of-way shall be given 10 days' advance notice by mail of the time and place of the meeting at which such work is to be considered. Legal notice in accordance with the provisions of the Borough Code shall also be provided.

New subdivisions.

(1)

The Shade Tree Commission shall review the planting plan of street trees within the planting strips of any new subdivision for conformity with the Official Street and Sidewalk Planting Program. All such planting shall be done in accordance with the planting specifications governing trees in planting strips as provided by the Commission.

(2)

A landscape plan of the entire subdivision, including a foundation landscape plan, shall be submitted by the developer for review by the Shade Tree Commission. The Shade Tree Commission shall review and provide recommendations regarding the new subdivision landscape plan and forward the landscape plan to the Planning Commission for approval.

New streets. Any proposed change in width in a public street right-of-way or any proposed street improvement shall, where feasible, include allowance for planting strips. Plans and specifications for planting such areas shall be integrated into a general plan of improvements, and it shall be the duty of the Borough Engineer to coordinate the design of such improvements with the Shade Tree Commission, prior to completion of final overall plans.

§ 407-3 Permits.

No person without first obtaining a permit from the Shade Tree Commission shall:

(1)

Prune, spray, plant, treat, remove, cut or otherwise disturb any shade tree in the public right-of-way or public areas;

(2)

Cut, break bark or otherwise injure or disturb any such tree, tree guard or support thereof;

(3)

Trim, prune, or remove any tree or portions thereof if such tree or portions thereof may reasonably be expected to fall in public areas and may cause damage to person or property or interfere with pedestrian or vehicle traffic using the public right-of-way or public easements'

(4)

Place in public areas, either above or below ground level, a container for tree, shrubs, or other plants;

(5)

Transplant any tree located in public areas;

(6)

Attach any rope, wire, nail, sign, poster or similar man-made objects to any tree located in public areas;

(7)

Damage or cut roots by tunneling, trenching or digging in public areas for the purpose of sidewalk, curb, pipe, conduit, electric wire, etc., installation and repair.

(8)

Fasten or maintain any sign on any such tree or tree guard support thereof;

(9)

Lay any pavement within an area of 12 square feet around the base of the trunk of any tree on public right-of-way or deposit any stone, gravel, cement, lumber or other material in such a way as to obstruct the free access of air and water to the roots of any tree in such public right-of-way;

(10)

Allow a tree on public right-of-way to be injured or removed during the erection, repair, alteration or removal of any building or structure. No person in charge of such erection, repair, alteration or removal shall leave any tree on the public right-of-way in the vicinity of such building or structure without such good and sufficient guards or means of protection as shall prevent injury to the tree, arising out of or by reason of such erection, repair, alteration or removal;

(11)

Cause or allow any boiler, heater, machine or device generating fumes, fires, gas, smoke or vapor to remain under or adjacent to any tree in or on any public highway, street or avenue, or cause or allow it to be done.

All work required to be done under any permit issued hereunder shall be completed within the time period specified but not exceeding 60 days from the date issued, unless the time period had been extended by the Shade Tree Commission. A permit shall be secured not less than five days in advance of the time the work is to be done. The Shade Tree Commission shall also be notified within five days of completion of the work to allow inspection.

A person who is refused a permit may make an appeal to the Shade Tree Commission in writing within 20 days following the denial. If permission is still not granted, an appeal may then be made to the Borough Council.

§ 407-4 Prohibited activities.

No person under any circumstances shall:

Fasten a bicycle, carriage, animal or motor vehicle of any kind to any shade tree, tree guard or support thereof;

Authorize or procure any gas, hot water, steam brine, water, oil, dye or other substance deleterious to tree life to lie, pour, flow, leak or drip on or into the soil about the base of a tree in any public highway, street or avenue;

Build or kindle a fire near to any tree or public right-of-way, as to endanger the trunk, limbs or foliage of such shade tree;

Interfere or cause or authorize or procure an interference with the agents or employees of the Borough while they are engaged in or about the planting, cultivating, mulching, pruning, spraying or removing of trees, or removing stone or cement sidewalk or other material or substance as may be necessary for the protection and care of any tree in accordance with the requirement set forth in the § 407-3A(9) dealing with the area of open ground to be maintained about the base of the trunk of each shade tree in the public right-of-way; or

Attach any advertisements to any tree or shrub in any street, highway, avenue or any public right-of-way.

§ 407-5 Trees in public right-of-way.

Notice to remove tree.

(1)

The owner of a property abutting a public right-of-way and having a shade tree growing in such public right-of-way, which is deemed by the Shade Tree Commission or Borough to be a danger to the life, health, safety or property of the public, or which is afflicted with any contagious disease or insect infestation, will be requested by mail by the Borough to remove such tree within 10 days following receipt of the notice.

(2)

If the property owner neglects or refuses to remove such tree as required by this section within the ten-day time period specified in such notice, the Borough may cause such removal to be done at the expense of the property owner; and the entire cost thereof shall be paid by the property owner within 60 days. If not paid by the property owner within 60 days, a lien upon such premises and a claim therefor shall be filed and collected by the Borough Solicitor in the same manner as municipal claims are filed and collected.

(3)

If the property owner shall fail or refuse to remove or treat said tree, the property owner shall be subject to the penalties specified in § 407-11 of this chapter.

Care provisions.

(1)

The owners of property abutting a public right-of-way and having shade trees growing in such public right-of-way shall trim or cause such trees to be trimmed of all branches interfering with free access on the public right-of-way to a minimum height of at least 10 feet above the street, highway or avenue or higher if deemed necessary for an unobstructed view of the public street, highway or avenue.

(2)

If any property owner neglects or refuses to trim any shade tree as required by this section upon notice by mail from the Borough within 10 days following receipt of the notice, the Borough may cause such trimming to be done at the expense of the owner and the entire cost thereof shall be paid by the property owner within 60 days. If not paid by the property owner within 60 days, a lien upon such premises and a claim therefor shall be filed and collected by the Borough Solicitor in the same manner as municipal claims are filed and collected. If the property owner shall fail or refuse to remove or treat said tree, the property owner shall be subject to the penalties specified in § 407-11 of this chapter.

Liability for damage. Any person who inflicts damage to a tree in a public right-of-way, public area, or public park, either willfully or negligently, shall be liable to the Borough for costs of professional care in the treatment of the tree wounds. If the tree dies within one growing season as a direct result of such damage, or if the damaged tree shall be rendered unsuitable and condemned by the Borough, then the person responsible shall pay all costs and removal of such tree and its stump and costs of replacing it with a young tree of approved specifications. Such work shall be performed by the Borough or contracted by the Borough and the costs assessed to the responsible person. If the damage described above shall be willful, then the responsible person shall also be subject to the penalties hereinafter provided for violations of this chapter.

§ 407-6 Trees on private property.

Any tree or parts thereof growing upon private property but overhanging or interfering with the use of any street, highway, avenue or any public right-of-way in the Borough, and which in the opinion of the Borough, endangers the life, health, safety or property of the public, is hereby declared a public nuisance.

If the owner of any shade tree declared to be a public nuisance neglects or refuses to correct or remove the shade tree upon notice by mail from the Borough within 10 days following receipt of the notice, the Borough may cause such correction or removal to be done at the expense of the owner, and the entire cost thereof shall be paid by the property owner within 60 days. If not paid by the property owner within 60 days, a lien upon such premises and a claim therefor shall be filed and collected by the Borough Solicitor in the same manner as municipal claims are filed and collected. If the property owner shall fail or refuse to remove or treat said tree, the property owner shall be subject to the penalties specified in § 407-11 of this chapter.

§ 407-7 Adoption of policies, rules and regulations.

Policies, rules and regulations may be adopted by the Commission to control tree trimming, cabling, spraying, root cutting and other work on trees by contractors, abutting property owners and/or trees. Such policies, rules and regulations shall not be effective until first approved by Council and enacted by ordinance.

§ 407-8 Payment, assessment, liens.

The cost of new trees and planting in the public areas, together with the cost of necessary guards, curbing, grates, sidewalks or grading shall be paid by the owner of the abutting property. All costs of tree removal, partial removal or treatment ordered by the Borough Council or Tree Commission for trees on private property shall be paid by the owner of the property on which such trees are located.

Owners shall have an opportunity to make written objections to proposed assessments, which objections shall be considered by the Council prior to approval. All costs incurred in repairing or replacing trees shall be assesses.

The amount of each property owner is to pay shall be determined and certified by the Shade Tree Commission and approved by Council. Thereafter, the Secretary of the Borough shall cause 30 days' written notice to be given to each person against whose property an assessment has been made. The notice shall state the nature and amount of the assessment and the time and place for payment thereof.

The amount assessed against the real estate shall be a municipal claim from the time of approval by the Council and, if not paid within the time specified in the notice, the claim may be filed and collected by the Borough Solicitor in the same manner as municipal claims are, by law, recoverable.

§ 407-9 Easements.

The Borough is authorized to accept easements from property owners to plant and maintain trees on private property within 12 feet of the boundary of a public area. Such easements shall be in writing, executed and acknowledged by such property owners and shall be recorded in the office of the Carbon County Recorder of Deeds.

§ 407-10 Compliance with Zoning Ordinance.

All planting of shade trees in public rights-of-way shall be in compliance with Chapter 500, Zoning, or any amendments thereto.

§ 407-11 Violations and penalties. [1]

Any person violating the provisions of this chapter shall, upon conviction before a Magisterial District Judge of appropriate jurisdiction, be liable to pay costs of prosecution and a fine as follows:

For willfully injuring or killing a living tree in any public area by cutting, debarking, breaking, by the use of herbicides, the use of vehicle or in any other manner wherein it is determined by the Magisterial District Judge that such damage or destruction is intentionally inflicted, a fine of not less than $200 but not more than $600 plus the costs of repairing or replacing each damaged tree shall be levied. If the person found guilty of violating this chapter is an abutting property owner, the cost of repair or replacing the damaged tree shall be assessed against the property in accordance with § 407-5 of this chapter.

For all other violations, a fine of not less than $200 nor more than $600 per day plus the cost of repairing or replacing the damaged tree shall be levied. Each day the property owner remains in violations shall constitute a separate offense. If the person found guilty of violating this chapter is an abutting property owner, the cost of repair or replacing the damaged tree shall be assessed against the property in accordance with §§ 407-5 and 407-6 of this chapter.

[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I).