[HISTORY: Adopted by the Town Board of the
Town of Brookhaven 6-16-1987 by L.L. No. 7-1987. Amendments noted where
applicable.]
The vital environmental function which trees
serve within the ecological structure of the Town of Brookhaven is
well recognized. Trees are recognized to provide various benefits
to the environment, including the stabilization and preservation of
the soil, the absorption of air pollutants and the provision of oxygen
and to further provide natural barriers to noise and habitats for
wildlife, while maintaining and offering an intrinsic aesthetic quality.
The destruction or removal of trees deprives all sectors of society
of these benefits while disrupting the ecological systems of which
they are an integral part. Thus, it is the intent of the Town Board
of the Town of Brookhaven in enacting this chapter to regulate the
destruction and removal of trees to secure these various benefits
for the present and future inhabitants of the Town of Brookhaven.
For the purpose of this chapter, the following
terms and phrases shall be given the meanings stated herein:
The owner of real property, or his duly authorized agent,
seeking a permit to remove trees pursuant to the provisions of this
chapter.
A tree that is dead or has been damaged beyond repair, or
is in an advanced state of decline, as determined by the Commissioner
of Planning, Environment and Land Management, or his/her designee,
or an arborist certified by the International Society of Arboriculture
(ISA).
[Added 11-20-2018 by L.L.
No. 27-2018, effective 12-3-2018]
Any tree which has a special character based on environmental,
social, aesthetic, or historical value, which constitutes a distinct
significance as to warrant its conservation, preservation and protection
from adverse influences, as so designated by the Town Board of the
Town of Brookhaven.
[Added 11-20-2018 by L.L.
No. 27-2018, effective 12-3-2018]
Any firm, partnership, association, corporation, company,
public utility or individual.
The Planning Board of the Town of Brookhaven.
Any living, perennial, woody plant, its branches, its root
system and its trunk, if greater than three inches in diameter measuring
three feet from ground level, and six feet in height measured from
ground level.
[Amended 7-21-2016 by L.L. No. 19-2016, effective 8-15-2016]
No person shall destroy or remove from the soil any tree growing
upon a parcel of real property of any size which is zoned for commercial
or industrial use or which is in excess of two acres in size and is
zoned for residential use or commit any act which causes the destruction
or cessation of life functions of any tree growing upon such real
property without first having obtained a permit issued therefor as
prescribed by this chapter. In determining the area of a parcel of
real property for the purpose of this chapter, whenever any two or
more contiguous parcels of property are subject to common ownership,
such two or more parcels are deemed merged, and the total area thereof
shall be the determinant size for the application of this section.
No such permit shall be issued unless a building permit has been issued.
[Amended 3-7-1989 by L.L. No. 8-1989,
effective 3-13-1989; 3-6-1990 by L.L. No. 10-1990, effective 3-12-1990; 7-21-2016 by L.L. No. 19-2016, effective 8-5-2016]
A.
Surveying
and soil investigation activities.
(1)
Destruction or removal of trees incidental to surveying and soil
investigation activities shall not be undertaken for any parcel of
property of any size which is owned for commercial or industrial use
or which is in excess of two acres in size and is zoned for residential
use, unless such destruction or removal is in conformity with a plan
approved by the Commissioner of the Department of Planning, Environment
and Development pursuant to the provisions contained hereunder.
(2)
Prior to destruction or removal of trees incidental to surveying
and soil investigation activities, the property owner, or designee,
shall apply to the Commissioner of the Department of Planning, Environment
and Development for permission to remove or destroy trees in order
to undertake said activities. No trees may be destroyed or removed
except in conformity with an approved plan.
(3)
Said application shall be accompanied by a one-inch-equals-two-hundred-feet
scale topographical map of the site and a one-inch-equals-two-hundred-feet
scale aerial photograph. In the event that the applicant is applying
for approval to construct test holes for soil analyses and groundwater
monitoring, the applicant shall provide a map from the Suffolk County
Department of Health Services indicating its approved test hole and
well sites. The applicant shall indicate on the topographical map
and on the aerial photograph the boundaries of the site and the extent
of clearing needed for the surveying and soil investigation activities.
(4)
The fee for said application shall be as established by Town Board
resolution.
[Amended 11-20-2018 by L.L. No. 26-2018, effective 12-3-2018]
(5)
The application shall be on such form and contain such information
as may be required by the Commissioner of the Department of Planning,
Environment and Development, and in approving said application, the
Commissioner may limit the amount of tree destruction or removal contemplated
by the applicant.
B.
Any person doing business as a public utility subject to the jurisdiction of the New York State Public Service Commission and any duly constituted public agency authorized to provide utility services shall be permitted to trim, prune or alter any tree which may otherwise be lawfully altered by such person, to the minimum extent necessary to enable such person to repair existing utility services, without having first obtained a permit issued therefor pursuant to § 70-3 of this chapter.
C.
The
provisions of this chapter shall not apply to real property included
in any approved subdivision or approved site plan when such approval
was granted by the Planning Board prior to the effective date of this
chapter. Notwithstanding the foregoing, in the event that building
permits have not been issued for said approved subdivision or approved
site plan, this chapter shall apply, and no building permit shall
issue until all applicable provisions of this chapter have been complied
with.
D.
Any person required by the Code of the Town of Brookhaven to submit an application to the Planning Board for approval of a proposed subdivision or site plan after the effective date of this chapter shall submit with such application the information required for a permit pursuant to § 70-6 of this chapter. No subdivision or site plan shall be approved by the Planning Board without due consideration of such information. Approval of a subdivision or site plan pursuant to this section shall relieve the applicant for such approval of the necessity to obtain a permit required by § 70-3 of this chapter, and the approval of such subdivision or site plan shall constitute adequate compliance with this chapter. However, in the event of a subdivision, tree clearing and removal may commence prior to issuance of building permits restricted to those areas of the subdivision which are to be developed as roads and/or drainage facilities.
E.
Any
person who has filed an application for approval of a subdivision
or site plan prior to the effective date of this chapter and has not
received approval of the same prior to the effective date of this
chapter shall submit to the Planning Board such information relative
to the preservation of trees as the Planning Board may request.
F.
The
New York State Department of Environmental Conservation shall be permitted
to trim, prune or remove trees pursuant to the New York Environmental
Conservation Law without the necessity of obtaining a permit pursuant
to this chapter.
This chapter shall be administered by the Planning
Board which shall have the authority to promulgate rules and regulations
for the effective administration of this chapter consistent with the
legislative intent of this chapter. The Planning Board shall have
the authority to delegate the administration of this chapter to its
departmental personnel.
A.
Every applicant for a permit required by this chapter
shall submit an application to the Planning Board on such form as
may be prescribed by the Planning Board. Such application shall include
the following information:
B.
In acting upon the application, the Planning Board
shall take into account the following considerations:
(1)
The location and size of the tree or trees to be removed.
(2)
The condition of the trees with respect to disease
and potential for creating hazardous conditions.
(3)
The proximity of the trees to existing or proposed
structures and utility appurtenances.
(4)
The necessity of the removal for the proposed project.
(5)
The environmental effect of the removal.
(6)
Any of the considerations enumerated in the legislative
intent of this chapter.
C.
The Planning Board shall evaluate the considerations of Subsection B upon the advice and recommendations of the Town of Brookhaven Division of Environmental Protection.
D.
The Planning Board shall advise the applicant, in
writing, of its decision on the application and, upon the favorable
determination of such application, issue a permit therefor.
E.
The
fee for a tree clearing permit shall be as established by Town Board
resolution.
[Amended 3-6-1990 by L.L.
No. 10-1990, effective 3-12-1990; 11-20-2018 by L.L.
No. 26-2018, effective 12-3-2018]
In the event that an applicant for site plan approval who submits with the application the information required pursuant to §§ 70-4D and 70-6A is required by the Planning Board to preserve trees and such preservation results in a decrease of the number of available parking spaces otherwise required by the applicable provisions of the Code of the Town of Brookhaven, the Planning Board shall have the authority to waive such parking space requirements commensurate with the number of spaces lost, in acting upon the application for site plan approval.
[Added 11-20-2018 by L.L.
No. 27-2018, effective 12-3-2018[1]]
A.
A
landmark tree, located upon Town of Brookhaven owned property, may
be established by Town Board resolution.
B.
A
landmark tree, located upon property not owned by the Town of Brookhaven,
may be established by Town Board resolution after obtaining written
permission from the property owner.
C.
The
Commissioner of Planning, Environment and Land Management shall provide
a written recommendation to the Town Board regarding the designation
of a landmark tree. The Commissioner of Planning, Environment and
Land Management shall obtain the recommendation of the Superintendent
of Highways for all trees proposed as landmark trees within the Town
rights-of-way, recharge areas or any other land that is under the
jurisdiction of the Superintendent of Highways prior to making a recommendation
to the Town Board. The Commissioner of Planning, Environment and Land
Management shall consider the following:
(1)
Whether the tree is rare or endangered pursuant to any local, state
or federal agency having jurisdiction over same; or
(2)
Whether the tree is included in New York State's Big Tree Register
or is on the American Forests National Register of Big Trees; or
(3)
Whether the tree has been designated as an historic landmark by the
Town, state or federal government; or
(4)
Whether the tree has been designated as a New York State Champion
or an American Forests Champion Tree; or
(5)
Whether the tree possesses exceptional value or quality in illustrating
or interpreting the heritage of the Town of Brookhaven, State of New
York or the United States; or
(6)
Whether the tree was alive and present for any key historical events
in Town of Brookhaven, State of New York or the United States; or
(7)
Whether the tree contains special environmental, social, aesthetic,
or historical characteristics which warrant conservation, preservation
or protection from adverse influences; or
(8)
Any other factors which the Commissioner determines to be relevant
to protecting and designating a tree as a landmark.
D.
The Commissioner of Planning, Environment and Land Management shall
maintain a list of all landmark trees.
E.
No landmark tree shall be destroyed or removed from the soil or any
act committed which causes the destruction or cessation of life functions
of any landmark tree located in the Town of Brookhaven without permission
of the Town Board of the Town of Brookhaven and without a permit issued
therefor as prescribed by this chapter.
(1)
Exceptions:
(a)
This section shall not apply to the Superintendent of Highways
when acting in accordance with the authority granted pursuant to Highway
Law § 153.
(b)
This section shall not apply to the removal or substantial alteration
of a hazardous landmark tree or a dead or dying tree that has been
established as a landmark tree in an emergency to protect persons,
wildlife or property from imminent danger, as determined by the Town,
an ISA certified arborist, emergency service worker, or as documented
by photographic evidence.
(c)
This section shall not apply to a public utility subject to
the jurisdiction of the New York State Public Service Commission removing
or trimming trees on lands within its jurisdiction.
[Added 9-13-2022 by L.L.
No. 10-2022, effective 9-23-2022[1]]
A.
Whenever any Building and Zoning Inspector, or any Building Inspector,
or any Town Investigator, or any Town Engineering Inspector, or any
Principal Environmental Analyst or any Senior Environmental Analyst
has reasonable grounds to believe that the destruction or removal
of any tree is being performed: (i) in violation of the provisions
of the applicable codes or regulations; or (ii) not in conformity
with the provisions of an application, plans, specifications or other
documents upon the basis of which a permit was issued; or (iii) in
an unsafe and dangerous manner; s/he shall notify the owner of the
property or the owner's agent or the person performing the work
to suspend all work, and any such persons shall forthwith stop such
work and suspend all activities until the stop-work order has been
rescinded. Such order and notice shall be in writing, shall state
the conditions under which the work may be resumed and may be served
upon a person to whom it is directed either by delivering it personally
to him/her or by posting the same upon a conspicuous portion of the
property where the destruction or removal of trees is occurring, and/or
upon the principal building located on the property where the destruction
or removal of trees is occurring and sending a copy of the same by
certified mail to the property owner.
B.
No person shall continue, allow or cause to be continued the destruction
or removal of any tree in or about the property after the issuance
of a stop-work order pursuant to this chapter.
C.
A stop-work order may be rescinded by any Building and Zoning Inspector,
or any Building Inspector, or any Town Investigator, or any Town Engineering
Inspector, or any Principal Environmental Analyst or any Senior Environmental
Analyst upon evidence of compliance with this chapter.
[Amended 9-1-1992 by L.L.
No. 10-1992, effective 9-8-1992; 4-16-2009 by L.L. No.
7-2009, effective 4-27-2009; 11-20-2018 by L.L.
No. 27-2018, effective 12-3-2018]
A.
Criminal penalties.
(1)
Any person who commits, takes part or assists in the destruction
or removal of any tree without having first obtained a permit issued
therefor pursuant to this chapter or who destroys or removes any tree
in a manner inconsistent with such permit or the requirements of an
approved subdivision or site plan shall be guilty of a violation punishable
by a fine of not less than $500 nor more than $2,000 or by imprisonment
for a period not to exceed 15 days, or by both such fine and imprisonment,
for conviction of a first offense; and by a fine of not less than
$1,000 nor more than $3,000 or by imprisonment for a period not to
exceed 15 days, or by both such fine and imprisonment, for conviction
of a second offense. This subsection shall not apply to landmark trees.
(2)
Any person who commits, takes part or assists in the destruction
or removal of a landmark tree without having first obtained permission
of the Town Board and a permit issued therefor pursuant to this chapter
or who destroys or removes any landmark tree in a manner inconsistent
with such permit shall be guilty of a violation punishable by a fine
of not less than $500 nor more than $2,000. All fines collected pursuant
to this subsection shall be deposited into a dedicated fund for the
planting of trees within the Town of Brookhaven.
(3)
Any person who continues, allows, or causes to be continued the destruction
or removal of any tree in or about property after the issuance of
a stop-work order pursuant to this chapter shall be guilty of a violation
punishable by a fine of not less than $5,000 nor more than $10,000.
Each offense shall be separate and distinct; and in the case of a
continuing offense, each day's continuance shall be deemed a
separate and distinct offense.
[Added 9-13-2022 by L.L.
No. 10-2022, effective 9-23-2022]
B.
Civil penalties. In addition to any criminal penalties which may be imposed pursuant to Subsection A, any person who violates any provision of this chapter may be ordered to restore the premises damaged by the unlawful destruction or removal of trees to such suitable conditions as the Planning Board may require. In the event that such person refuses or fails to restore the real property to a condition ordered by the Planning Board, the Planning Board or the Town Board may proceed in a court of competent jurisdiction for an order directing such person to restore such real property in conformity with the requirements of the Planning Board. In the event that the Town of Brookhaven is compelled to restore such real property all costs incurred incidental to such restoration shall be assessed against the real property in question.
C.
Revocation of approvals. In addition to any civil or criminal penalties which may be imposed pursuant to Subsection A or B, the Commissioner of the Department of Planning, Environment and Land Management is hereby authorized and empowered to revoke any building permit when it appears that unlawful destruction or removal of trees has taken place. The Planning Board is hereby authorized to revoke any site plan or subdivision approval where it appears that the unlawful destruction or removal of trees has taken place. In the event that a building permit, site plan or subdivision approval is to be revoked, a hearing must be held on not less than 48 hours' written notice to the person whose name appears on the building permit application, site plan application or subdivision application. Written notice shall also be given to the last known owner of the subject premises as appears on the current Brookhaven Town assessment roll. The hearing provided for therein shall, in the case of a building permit revocation, be held before the Commissioner of the Department of Planning, Environment and Land Management or his designee. The hearing called for in said notice, in the case of a site plan or subdivision approval revocation, shall be before the Planning Board. In the event that said building permit, site plan or subdivision approval is revoked, the Town Attorney is hereby authorized and empowered to institute a proceeding in a court of competent jurisdiction to restrain any further development on the subject site and to seek sufficient funds for restoration of the site as provided in Subsection B.
[Amended 11-20-2018 by L.L. No. 27-2018, effective 12-3-2018]
