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HomeMy WebLinkAbout211-12 RESOLUTIONRESOLUTION NO. 211-12 A RESOLUTION TO APPROVE A VARIANCE FROM THE TREE PRESERVATION AND PROTECTION CHAPTER OF THE UDC FOR LSD 12-4215 TO ALLOW ON AND OFF-SITE MITIGATION TREE PLANTING AND ELIMINATING ANY FURTHER PENALTY FOR THE REMOVAL OF SOME CANOPY IN 2008 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves a variance from the Tree Preservation and Protection Chapter of the UDC for LSD 12-4215 to allow on and off-site mitigation tree planting and eliminating any further penalty for the removal of some canopy in 2008. PASSED and APPROVED this 8th day of November, 2012. APPROVED: By: ATTEST: By: 6,1444 '/t.ta f SONDRA E. SMITH, City Clerk/Treasurer Megan Dale W Su mined By City of Fayetteville Staff Review Form City Council Agenda Items and Contracts, Leases or Agreements 11/6/2012 City Council Meeting Date Agenda Items Only Park Planning / Urban Forestry Parks and Recreation Division Action Required: Department Staff recommends approving a variance of Chapter 167 that allows off-site preservation and off-site mitigation to satisfy the requirements for prior tree removal. Staff recommends approving LSD 12-4215 with on-site mitigation (20 trees), off-site tree preservation (6,976sf within the general vicinity of the application — location to be determined by City Council), and off-site mitigation (5 trees location 765-15513-011). Off-site tree preservation area shall be reviewed and approved by Urban Forester to confirm trees are desirable and in good condition. Cost of this request Account Number Project Number $ Category / Project Budget Program Category / Project Name Funds Used to Date Program / Project Category Name Remaining Balance Fund Name Budgeted Item 11 Budget Adjustment Attached l _ t timt Jvip'r' Department Director Dat t./tvl.0.t_.S Abet.Y4,;: ) City Attorney Finance and Internal Services Director Date (0.___14..-1 'L-Z Date Previous Ordinance or Resolution # Original Contract Date: Original Contract Number: Received in -City Clerk's Office Comments: Revised January 15, 2009 a'�Itrville THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENT CORRESPONDENCE ARKAN5A5 www.accessfayetteville.ory CITY COUNCIL AGENDA MEMO To: Mayor Lioneld Jordan and City Council Thru: Don Marr, Chief of Staff Connie Edmonston, Parks and Recreation Director Alison Jumper, Park Planning Superintendent ao From: Megan Dale, Urban Forester CtiD Date: 6 November 2012 Subject: LSD 12-4215 Culls II Tree Preservation PROPOSAL Culls II development was originally approved in 2009 as LSD 08-3167 by the Planning Commission but was never built. Staff recommended the original development to plat 27,251 sf of off-site tree preservation to meet requirements for trees that were removed prior to development approval; however, the tree preservation area was never filed at the County Courthouse. Development approval has since expired, and a new application is required. The current applicant must meet the penalty requirements for prior tree removal since the application is still within 5 years of prior tree removal period. Trees were removed without approval sometime in 2008. The City of Fayetteville GIS aerial imagery is taken January 1st each year. Without proof of the removal date, the applicant would be held to the January 1, 2009 imagery. The applicant may wait until January 2014 to submit LSD application to avoid 5 year prior tree removal penalty. The applicant is requesting the date for the penalty to be changed from January 2014 to July 2013. Staff recommends that evidence be provided regarding the tree removal date if the Council approves changing the 5 year time period. The applicant is requesting a variance from the Chapter 167 with regard to penalty for prior tree removal. As noted below, the ordinance specifically states the site must be reforested. §167.04(D)(1) Prior tree removal. If trees have been removed below the required minimum within the five (5) years preceding application for development approval, the site must be forested to meet the Percent Minimum Canopy requirements set forth in Table 1, plus an additional ten percent (10%) of the total area of the property for which the Applicant is seeking approval. The number of trees required to be planted shall be calculated using the Base Density for High Priority trees. Staff recommends approval of a variance to allow the applicant to dedicate off-site areas for tree preservation in addition to planting as many mitigation trees as possible on and off-site. The applicant is requesting to mitigate on-site (20 trees) and off-site (5 trees), and requesting the Council to waive the remaining penalty (6,976 sf or 32 trees). Telecommunications Device for the Deaf TDD (479) 521-1316 113 West Mountain - Fayetteville, AR 72701 THE CITY OF FAYETTEVILLE, ARKANSAS Staff recommends off-site preservation instead of waiving the penalty because preserved trees provide substantial ecological benefits. Waiving the requirement would leave the City with less canopy and eliminate the benefits of established trees. The option of payment into tree escrow places the responsibility of planting and maintaining trees on the City, and only provides 2" caliper trees that will take years to provide the same benefit as mature canopy. The ordinance states the following: § 167.01(B) Principles. This chapter shall be enforced according to the following principles: (1) Preservation shall be the first, best, and standard approach. (2) If preservation cannot be achieved, on-site mitigation shall next be pursued. (3) If on-site mitigation cannot be achieved, off-site preservation shall be pursued. (4) If off-site preservation cannot be achieved, off-site forestation shall be pursued. (5) If none of the above approaches can be achieved, payment shall be made to the tree escrow account. This project is recommended for approval with the following mitigation requirements: On-site mitigation: 20 trees Off-site preservation: 6,976 sf / 0.16 ac within the general vicinity of the application — Location to be determined by City Council Off-site mitigation: 5 trees — Location 765-15513-011, 585 W Willoughby Rd shown on Site Plan Lot 3, owner Joe Maynard and Joe Terminella RECOMMENDATION: Staff recommends approving a variance of Chapter 167 that allows off-site preservation and off-site mitigation to satisfy the requirements for prior tree removal. Staff recommends approving LSD 12-4215 with on-site mitigation (20 trees), off-site tree preservation (6,976sf within the general vicinity of the application — location to be determined by City Council), and off-site mitigation (5 trees location 765-15513-011). Off-site tree preservation area shall be reviewed and approved by Urban Forester to confirm trees are desirable and in good condition. BUDGET IMPACT: There is no impact to the budget. Attachments: Planning Memo Terminella Tree Preservation Variance Request 2007 aerial 2008 aerial 2009 aerial 2012 aerial 12-4215 Tree Preservation Plan Submitted Planning Commission 24 September 2012 12-4215 Landscape Plan Submitted Planning Commission 24 September 2012 Chapter 167 Tree Preservation and Protection Wtvt1e .1. -r , p, tam Departmental Correspondence ARKANSAS www.accessfayetteviile.org LEGAL DEPARTMENT TO: Mayor Jordan Don Marr, Chief of Staff Connie Edmonston, Parks & Recreation Director Alison Jumper, Park Planning Superintendent Megan Dale, Urban Forester � _ r FROM: Kit Williams, City Attorney DATE: October 19, 2012 RE: Prior tree removal penalty Kit Williams City Attorney Jason B. Kelley Assistant City Attorney §167.04(D)(1) Prior tree removal states: "If trees have been removed below the required minimum within five (5) years preceding application for development approval, the site must be forested to meet the percent minimum canopy requirements set forth in Table 1, plus an additional ten percent (10%) ..." This is a penalty provision of the Tree Ordinance to punish persons for removing trees below the minimum canopy requirements before development. As a penalty provision it is not only strictly construed against the City, but the burden is on the City to prove that a violation justifying the punishment has occurred. As Megan's memo stated our January fly -over photos establish some tree canopy is missing on January 1, 2009 that we saw on January 1, 2008. I believe that Megan is correct when she says "Trees were removed without approval sometime in 2008." If the trees were removed on January 2, 2008, the five year penalty period would be January 2, 2008 through January 2, 2013. If the City could prove the trees were improperly removed on December 31, 2008, the penalty period would be December 31, 2008 through December 31, 2013. Unless the City can prove a later date than January 2, 2008 for the removal of the trees, the penalty period must end on January 2, 2013. The City cannot assume the worst and basically extend the penalty period to six years when the ordinance states five years. The applicant should not be informed that the correct penalty period does not expire until January 1, 2014. RESOLUTION NO. A RESOLUTION TO APPROVE A VARIANCE FROM THE TREE PRESERVATION AND PROTECTION CHAPTER OF THE UDC FOR LSD 12-4215 TO ALLOW OFF-SITE TREE PRESERVATION, ON AND OFF- SITE MITIGATION TREE PLANTING AND ELIMINATING ANY FURTHER PENALTY FOR THE REMOVAL OF SOME CANOPY IN 2008 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby approves a variance from the Tree Preservation and Protection Chapter of the UDC for LSD 12-4215 to allow off-site tree preservation, on and off-site mitigation tree planting and eliminating any further penalty for the removal of some canopy in 2008. PASSED and APPROVED this 6th day of November, 2012. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer a�F ve�vi�le THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENT CORRESPONDENCE ARKANSAS www.accessfayetteville.org CITY COUNCIL AGENDA MEMO To: Mayor Jordan, City Council Thru: Don Marr, Chief of Staff Jeremy Pate, Development Services Director From: Quin Thompson, Current Planner Date: October 1, 2012 Subject: Variance from Chapter 167.04(D) Prior Tree Removal for LSD 12-4215 (585 W WILLOUGHBY ROAD/CULLS II) BACKGROUND Property: The subject property is located at the southwest corner of Willoughby Road, Hwy 156, and McCollum Road. The Property contains 2.69 acres, is zoned I-1, and is used for warehousing. On May 17, 2006, the Planning Division approved a building permit for the construction of a 9,960 square foot industrial use structure with associated parking. The subject property and the two adjacent lots are under common ownership, but development was only proposed on one of the lots less than 1 -acre, so large scale development approval was not required. The applicant submitted a large scale development proposal in October 2006 for two additional structures and associated parking; however, the large scale development application was later withdrawn prior to Planning Commission approval. On January 12, 2009, the Planning Commission approved, with conditions, a Large Scale Development (LSD 08-3167) that was never constructed. On September 24, 2012, the Planning Commission approved, with conditions, LSD 12-4215. Request: The applicant requests a variance from Unified Development Code Chapter 167.04(D), Prior Tree Removal, allowing a combination of as much on-site mitigation as possible, and the planting of an additional 5 mitigation trees on the adjacent parcel to the west. RECOMMENDATION The Planning Commission and Urban Forester recommend a combination of on-site mitigation, off-site mitigation, and off-site tree preservation. DISCUSSION On September 24, 2012, the Planning Commission conditionally approved the LSD, pending City Council determination of a variance to UDC Chapter 167.04(D), Prior Tree Removal, with a vote of 7-1-0. TERMINELLA ENGINEERING CORP. INDUSTRIAL INTEGRATORS September 25, 2012 City Council 113 West Mountain Street Fayetteville, AR 72701 4-30 W N;n I duct-IBY RU FIYE-TTEvuJJ AR 72701 (479) 2002712 �oelelrnineII( Cjniail.com Re: Culls 11 LLC — Tree Preservation Variance Request Dear Members of City Council, 1 have resided in Fayetteville for 38 years. I graduated from Fayetteville High School and was successfully employed for 34 years. 1 now have my own business and am the owner for the project known as Culls II_ I intend to expand my business at 525 West Willoughby Road, by adding a new office and shop building on existing tracts. 1 intend to add 23,862 square feet of additional mixed use office and warehouse space in the future. The property is located in the Industrial Zoning District 1-1. A project, very similar in nature, was approved in January, 2009, by the previous owner. The project was never constructed, and the property was later sold to me. I purchased the property sometime at the beginning of the year. 1 recently hired Clay Grote, P.E., to resubmit the previously approved project after finding that the time had expired on the original plan. During the re -submittal process, it was discovered by aerial photographs, provided by the Urban Forrester, that in 2008, approximately 1850 square feet of tree canopy was removed from the site by the previous owner. This put the subject property in violation of Section D of the Tree Preservation Code, which says that if any tree removal takes place five years prior, the owner will be penalized to provide 15 percent canopy plus an additional 10 percent, which equates to 25 percent canopy to be reforested. According to the calculations required by the Urban Forrester, this equates to 12,423 square feet or 57 trees to be planted. We have been working with the Urban Forrester through the Large Scale Development process to forest the site the best we can. However, once you subtract the right-of- way and utility easements, there is only 1.48 acres of buildable property on this site, We have added 21 trees to the site as required by the Landscaping Code and another 25 trees as mitigation trees for the tree preservation penalty. That is a total of 46 trees that 1 am foresting my site with. I have no other room to add any more trees. Since the 21 trees required by Landscaping does not count toward my 57 required trees to be planted, 1 am told that I still have 32 trees remaining, which equates to $21,600 in fees. I feel that this penalty is too severe and unreasonable, all because the previous owner removed one tree in 2008. I am asking you to consider waiving the fee of $21,600. The amount of money to plant 46 trees is already a $31,050 burden (using the City's calculation of $675 per tree). I do have the option of holding on to this project and resubmitting January 2014 and receiving no penalty. The Urban Forrester set this date based on the fact that the aerials show the trees being removed somewhere between January 2008 and January 2009. I feel as though the City should meet me half way with the date, so I am also requesting the date for tree preservation penalty to be changed from January, 2014, to July, 2013, particularly if you deny my first request. Thank you for your consideration of these two items. Sincerely, 'Joe Temiinella Culls II 2007 Aerial Feet 0 15 30 60 90 120 NORTH Culls II 2008 Aerial Feet 0 15 30 60 90 120 NORTH Culls II 2009 Aerial Feet 0 15 30 60 90 120 NORTH Culls II 2012 Aerial 0 NORTH 15 30 60 90 IFeet 120 OWNER/DEVELOPER CULLS!! Joe Terminella (owner representative)ineccHr.r.l. =lad __ 585 W Wlloughhy Rd I Fayetteville, AR 72701 6n"yi°'vW'"pyFre v" 1-(479)-648-4480 SIDEWALK NOTE: CIVIL ENGINEER ACRES A Clay Grote P E LOT 1 1 67 ACRES 10585 Thunder Rd LOT 2066 ACRES Fayetteville, AR 72701 TOTAL 2 53 01- 1-(479)-409-6406 ZONING I-1 RETAINING WALL NOTE: am wen ur e.n�erv.m.ve�w< .ter. Omen F.wm... mdzsrva.,ms„em� fi CULLS II LLC OFFICE AND MANUFATURING EXPANSION 585 WLLOUGHBY FAYETTE... AMA.. NORTH / L. TREE PRESERVATION REPORT *a, 6'I FEES M 0.5 tint S5 IT 3utl'.tinLr1LC ▪ , 2)552 ro'41.I uV %1r11151E rtCau 6C L . NI', E01 fl .2.x18 .418, t,I.C1G r: LS:a,I O81 29oq'a10 .54 TREE01YESTOPT ASS 65 P SOm STATUS COMMENTS SITE PERCEPT Ma CANOPY P[GU.5E- re'.�HGII I<aE Y RETWNE0 MOP 202A WAGE PENILYI 5 Y.8 SF 05\1.0 I0%A PEW.- 2CE5IR 590 RENOIEO NE STORMDAWGE AO PENALTY 955 SF+616611OL ABOVE IONBG PENALTYI=12121 12 40 31 355585525550531343 REMO. 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'NEAR QUESTED 1-0 PUNT TREES. 0 TITLE UNIFIED DE ELOPMENT CODE C APTER 167 TREE PRESER ATION AND PROTECTION 167.01 PURPOSE 3 167.02 CIT OF FA ETTE ILLE TREE PRESER ATION, PROTECTION, AND LANDSCAPE MANUAL 3 167.03 TREE REGISTR AND URBAN FOREST ANAL SIS 3 167.0 TREE PRESER ATION AND PROTECTION DURING DE ELOPMENT 167.05 TREE PROTECTION MEASURES AND CONSTRUCTION 13 167.06 TREE PLANTING, MAINTENANCE AND REMO AL ON STREET RIG TS OF WA AND OT ER PUBLIC GROUNDS 13 167.07 COMMERCIAL TREE PRUNER SER ICE CERTIFICATE AND INSURANCE REQUIRED 1 167.08 A ARDOUS TREES 1 167.09 LOCAL DISASTER EMERGENC 15 167.10 167.99 RESER ED 15 CD1 67:1 Fayetteville Code of Ordinances CD167:2 TITLE XV UNIFIED DEVELOPMENT CODE C APTER 167 TREE PRESER 167.01 P It is the purpose of this chapter to preserve and protect the health, safety, and general welfare, and preserve and enhance the natural beauty of Fayetteville by providing for regulations of the preservation, planting, maintenance, and removal of trees within the city, in order to accomplish the following objectives: (A) Objectives. (1) To preserve existing tree canopy; (2) To create a healthful environment for Fayetteville residents, businesses, and industries; (3) (4) To buffer noise, air and visual pollution; (5) (6) To reduce storm water runoff and the potential damage it may create; To moderate the harmful effects of sun, wind, and temperature changes; To filter pollutants from the air that assist in the generation of oxygen; (7) (8) (9) To stabilize soil and prevent erosion, with an emphasis on maintaining tree canopy on hillsides defined as canopied slopes in Chapter 151; To provide habitat for birds and other wildlife; To preserve riparian banks and beds, and prevent sedimentation; (10) To screen incompatible land; (11) To promote energy conservation; and (12) To protect and enhance property values. (B) Principles. This chapter shall be enforced according to the following principles: (1) Preservation shall be the first, best, and standard approach. (2) If preservation cannot be achieved, on-site mitigation shall next be pursued. If on-site mitigation cannot be achieved, off- site preservation shall be pursued. (3) (4) If off-site preservation cannot be achieved, off-site forestation shall be pursued. ATION AND PROTECTION CD167:3 (5) If none of the above approaches can be achieved, payment shall be made to the tree escrow account. (Code 1991, §162.01; Ord. No. 3699, §1 4-20-93; Ord. No. 4100, §2 (Ex. A), 6-16-98; Ord. No. 4340, 10-2-01) 167.02C 0 F T P P ,A L M The urban forester, in cooperation with other members of city staff, shall promulgate and periodically revise forms, procedures and regulations to implement this chapter and publish this information in the City of Fayetteville, Tree Preservation, Protection, and Landscape Manual. (A) Copies of the Tree Preservation, Protection, and Landscape Manual are to be made readily available to the public and shall include, but need not be limited to: (1) Specific criteria for gaining city approval of tree preservation plans; (2) The format and content of reports and plans the applicant must submit to the city pursuant to this chapter; (3) Tree protection during construction; (4) A glossary of important terms used in this chapter; (5) Size and species requirements for trees planted for on-site mitigation or off-site forestation; (6) Maintenance of trees (including but not limited to pruning, irrigation, and protection from disease). (B) The Tree and Landscape Advisory Committee shall review and may recommend revisions to the Tree Preservation, Protection, and Landscape Manual at least every three years to reflect changes in arboricultural and horticultural practices, lists of preferred tree species, city policies, or the content of this chapter. (Ord. No. 4340, 10-2-01) 167.03 T R A U F A (A) Tree Registry. Trees and groups of trees which are documented to be of historic merit, of an uncommon or endangered species, or are of extraordinary value due to their age, size, or type, Fayetteville Code of Ordinances may be registered in the City of Fayetteville's tree registry. It shall be the duty of the urban forester to maintain and keep this registry on file in the urban forester's office. (B) Voluntary registration. Registration of trees shall be voluntary and may be done by the owner(s) of the property on which the tree is located. Registration shall not run with the land unless the property owner wishes to use an express trust to transfer a benefit in the tree or groups of trees to the city. Registered tree owners are entitled to consultation with the Tree and Landscape Advisory Committee and/or the urban forester concerning proper care and protection of the tree, as well as an evaluation of the tree's condition. (C) Urban Forest Analysis. The city shall initiate a tree canopy analysis and an Urban Forestry Effects Model study or their current equivalent studies within the current geographical boundaries of the city by December 31, 2012. Thereafter, the city should conduct these studies every ten (10) years. (Ord. No. 4340, 10-02-01; Ord. 5427, 8-2-11) 167.0 T P D D A P (A) Applicability. The provisions of this section shall apply to proposed subdivisions, and large scale developments required by other chapters of the Unified Development Code to go through the city's permitting process. Persons seeking to build one single-family dwelling unit, or duplex, are specifically exempt from the provisions of this section except when the land is located within the Hillside/Hilltop Overlay District; then all the provisions of this ordinance shall apply. Planned Zoning Districts should meet the percent minimum tree canopy based upon their primary use, but may be allowed a lesser tree canopy requirement as part of the overall Master Plan approved by the City Council. (1) Subdivisions and large scale developments. Applicants seeking approval of proposed subdivisions and large scale developments shall submit a site analysis plan, analysis report, and tree preservation plan with the preliminary plat or site plan. There shall be no land disturbance, grading, or tree removal until a tree preservation plan has been submitted and approved, and the tree protection measures at the site inspected and approved. (2) Grading permit. An abbreviated tree preservation plan, as set forth in §167.04(H)(3), shall be submitted with the application for grading permits on projects CD 167:4 that are not required to go through subdivision or large scale development process. There shall be no land disturbance, grading, or tree removal until an abbreviated tree preservation plan has been submitted and approved, and the tree protection measures at the site inspected and approved. (3) Building permits. Tree preservation require- ments apply to all permit applications for nonresidential construction, and the construction of multi -family residential buildings composed of three or more dwelling units. An abbreviated tree preservation plan, as set forth in § 167.04 (H)(3), shall be submitted with the application for building permits on projects that are not required to go through the subdivision or large scale development process. There shall be no land disturbance, grading, or tree removal until an abbreviated tree preservation plan has been submitted and approved, and the tree protection measures at the site inspected and approved. (4) Parking lots. Tree preservation require- ments apply to all permit applications for the construction of parking lots with five or more spaces. An abbreviated tree preservation plan, as set forth in §167.04 (H)(3), shall be submitted with the application for permits on projects that are required to go through the subdivision or large scale development process. There shall be no land disturbance, grading, or tree removal until an abbreviated tree preservation plan has been submitted and approved, and the tree protection measures at the site inspected and approved. (5) Hillside/Hilltop Overlay District. Undeveloped land located within the Hillside/Hilltop Overlay District shall submit a site analysis plan, analysis report, and tree preservation plan with the preliminary plat or site plan. Single and two family residential development shall submit an abbreviated tree preservation and site plan at the time of obtaining a building permit. Structural changes to buildings located in the Hillside/Hilltop Overlay District that do not result in an enlargement of the building footprint or roof dripline shall not require an abbreviated tree preservation plan. There shall be no land disturbance, grading, or tree removal until a tree preservation plan has been submitted and approved, and the tree protection measures at the site inspected and approved. TITLE XV UNIFIED DEVELOPMENT CODE (B) Tree preservation criteria. The urban forester shall consider the following factors, and any other relevant information, when evaluating tree preservation plans: (1) The desirability of preserving a tree or group of trees by reason of age, location, size, or species. (2) Whether the design incorporates the required tree preservation priorities. (3) The extent to which the area would be subject to environmental degradation due to removal of the tree or group of trees. (4) The impact of the reduction in tree cover on adjacent properties, the surrounding neighborhood and the property on which the tree or group of trees is located. (5) Whether alternative construction methods have been proposed to reduce the impact of development on existing trees. (6) Whether the size or shape of the lot reduces the flexibility of the design. (7) The general health and condition of the tree or group of trees, or the presence of any disease, injury, or hazard. (8) The placement of the tree or group of trees in relation to utilities, structures, and the use of the property. The need to remove the tree or group of trees for the purpose of installing, repairing, replacing, or maintaining essential public utilities. (9) (10) Whether roads and utilities are designed in relation to the existing topography, and routed, where possible, to avoid damage to existing canopy. (11) Construction requirements of on-site and off- site drainage. (12) The effects of proposed on-site mitigation or off-site alternatives. (13) The effect other chapters of the UDC, or city policies have on the development design. (14) The extent to which development of the site and the enforcement of this chapter are impacted by state and federal regulations. (15)The impact a substantial modification or rejection of the application would have on the applicant. N --The above items are not presented in any particular order of importance. The weight each is given will depend in large part on the individual characteristics of each project (C) Canopy area. In all new Subdivisions, Large Scale Developments, Industrial and Commercial Developments, and all other improvements listed above, trees shall be preserved as outlined in Table 1 under Percent Minimum Canopy, unless the Applicant has been approved for On -Site Mitigation or Off -Site Alternatives as set forth in subsections I. & J. below. The square foot percentage of canopy area required for preservation in new development is based on the total area of the property for which the Applicant is seeking approval, less the right-of-way and park land dedications. An Applicant shall not be required to plant trees in order to reach the Percent Minimum Canopy requirement on land where less than the minimum exists prior to development, unless trees have been removed. T 1 M C R ZONING DESIGNATIONS PERCENT MINIMUM CANOPY I. R -A, Residential - Agricultural (nonagricultural uses) 25% RSF-.5, Single-family Residential — One Half Unit per Acre 25% RSF-1, Single-family Residential — One Unit per Acre 25% RSF-2, Single-family Residential — Two Units per Acre 20% RSF-4, Single-family Residential — Four Units per Acre 25% RSF-7, Single-family Residential — Seven Units per Acre 20% RSF-8, Single-family Residential — Eight Units per Acre 20% R -O, Residential —Office 20% RT -12, Two and Three-family Residential 20% RMF -6, Multi -family Residential — Six Units per Acre 20% RMF -12, Multi -family Residential — Twelve Units per Acre 20% RMF -18, Multi -family Residential — Eighteen Units per Acre 20% RMF -24, Multi -family Residential — Twenty -Four Units per Acre 20% RMF-40,Multi-family Residential — Forty Units per Acre 20% NS, Nei hborhood Services 20% C-1, Neighborhood Commercial 20% CS, Community Services 20% C-2, Thoroughfare Commercial 15% UT, Urban Thoroughfare 15% C-3, Central Business Commercial 15% CD167:5 Fayetteville Code of Ordinances DC, Downtown Core 10% MSC, Main Street Center 10% DG, Downtown General 10% NC, Neighborhood Conservation 20% I-1, Heavy Commercial and Light Industrial 15% 1-2, General Industrial 15% P-1, Institutional 25% PZD, Planned Zoning District (HHOD) 25% 30% All residential zoning districts and C-1 districts within the Hillside/Hilltop Overlay District shall have their percent minimum canopy requirements increased by 5% to a total requirement of either 30% or 25%. (D) Prior tree removal. (1) If trees have been removed below the required minimum within the five (5) years preceding application for development approval, the site must be forested to meet the Percent Minimum Canopy requirements set forth in Table 1, plus an additional ten percent (10%) of the total area of the property for which the Applicant is seeking approval, less the right-of-way and park land dedications. The number of trees required to be planted shall be calculated using the Base Density for High Priority trees. (2) Waiver. If an applicant is able to demonstrate to the Planning Commission's satisfaction that the trees were removed for a bona fide agricultural purpose, and not with the intent to thwart enforcement of this chapter, the additional 10% reforestation requirement shall be waived. (E) Tree preservation priorities. (1) Percent minimum canopy. Proposed designs must meet the percent minimum canopy requirements for the particular zoning designation, emphasizing the preservation and protection of high priority trees on the site. Trees in utility easements shall not be counted toward the percent minimum canopy requirement, and such utilities shall be routed, wherever possible, to avoid existing canopy. (2) Existing natural features. Each design shall consider the existing natural features of the site, the preservation priorities for the trees, and the impact their proposed removal may have both on and off -site. (3) Preservation priorities. The list of preservation priorities (See: Table 2) shall guide the review of each development's design. The submittal of designs which do not incorporate preservation priorities for the trees on the site shall result in the denial of the tree preservation plan. (4) High priority trees. The preservation and protection of high priority trees shall be enforced most stringently to meet the minimum percentage of canopy preservation. The preservation and protection of lower priority trees shall not be substituted for that of high priority trees, except: (a) When the justification for such a substitution is set forth in the analysis report; and (b) The substitution is approved by the urban forester. T 2 Preservation Priorities P M P L P Canopied slopes Contiguous woodlands Invasive species Floodways and riparian buffers Non-native woodlands Relic orchards Native woodlands Use buffers Less desirable species Significant trees N --Each of the above is listed alphabetically beneath its respective category. They are not presented in any particular order of importance within that category. (F) Tree Preservation Requirements for Proposed Residential and Non -Residential Subdivisions. (1) Residential subdivisions. The Percent Minimum Canopy in residential subdivisions shall be located in areas that have the least possibility of impact as utilities are installed and homes built. The intent is to leave undisturbed as many existing trees as possible for the use and enjoyment of prospective lot owners. Residential Subdivisions requesting tree removal below the Percent Minimum Canopy requirement may choose either Residential On -Site Mitigation, or to contribute to the Tree Escrow Account as set forth in §167.04 J.4.a. Trees in utility easements shall not be counted toward the Percent Minimum Canopy requirement, and such utilities shall be routed to avoid existing canopy. (2) Nonresidential subdivisions. Two options are available for establishing a tree preservation plan for the development of nonresidential subdivisions. The urban forester shall recommend to the Planning CD167:6 TITLE XV UNIFIED DEVELOPMENT CODE Commission the option that will potentially PZD, which would encourage more preserve the largest amount of priority open space and tree preservation areas. canopy based upon the tree preservation In this pattern of development, the tree criteria set forth in § 167.04 (B) above, preservation zone on each lot can be transferred to a larger open space (a) Preservation plan for entire subdivision, instead of being required on the The developer may choose to preserve individual lots. The open space set the percent minimum canopy required aside during cluster development shall for the entire development. With this be placed in a permanent easement or option, the preserved canopy shall be land trust with all future development located in areas that will not be rights removed from the property. impacted by future development of the individual lots. Canopy to be preserved (G) Initial review. shall be noted on the final plat, and shall be protected as set forth in §167.04 (L) (1) Meeting with the urban forester. It is strongly below. Should the entire percent recommended that prospective applicants minimum canopy requirement for the meet with the urban forester for an initial site be so protected, the final plat shall review of the proposed tree preservation include a statement that the individual plan for the site prior to submitting a lots, as represented thereon, shall not preliminary plat, large scale development, or require separate tree preservation site plan to the city. During the initial review, plans. the urban forester shall make recommendations to ensure the proposed (b) Preservation plan for infrastructure only. subdivision or development complies with The developer, in consultation with city the requirements of this chapter. These staff, shall delineate the area required recommendations shall be nonbinding. for the construction of the infrastructure However, applicants proceed at the risk of and improvements for the development, higher costs due to changes required by a This area should include street rights -of- noncompliant submittal should they choose way, and utility and drainage not to have the initial review or to disregard easements. Lot lines, streets, and the recommendations of the urban forester. easements shall be located to avoid placing a disproportionate percentage of (2) Letter of confirmation. The urban forester existing canopy in any one (1) proposed shall document whether the applicant lot. This option shall not allow the participated in the initial review meeting in a removal of trees during the grading of letter of confirmation to the applicant. If the individual lots, unless shown by the applicant chose to attend an initial review developer to be essential to the project's meeting, the letter shall also document any engineering design. The developer will recommendations made. The urban forester be required to compensate for the shall ensure that a copy of the letter canopy removed from this defined area becomes part of the permanent file for the by making the appropriate payment into project. the Tree Escrow Account. On all other areas of the development, the developer (H) Submittal of plans. Applicants should bear in shall protect the existing canopy during mind that all plans will be evaluated according to the construction phase in accordance the tree preservation criteria and percent with §167.05 below. The final plat shall minimum canopy requirements as set forth under include a statement that the individual §167.04 (B) and (C). lots shall required separate Tree Preservation Plans. (1) Site analysis plan. On sites with existing tree canopy, the applicant shall conduct a (3) Hillside/Hilltop Overlay District. Individual site analysis to determine the approximate parcels or lots located within the age, health, size and species distribution of Hillside/Hilltop Overlay District boundary the trees, noting each on a site analysis shall submit an abbreviated tree preservation plan, and clearly showing the locations and plan as set forth in § 167.04 (H)(3) indicating types of all natural features on a site, the location of the structure and the including features 100 feet beyond the preservation of the minimum tree canopy property lines. The site analysis plan shall requirement, also specifically depict the applicable preservation priority level for each tree or (a) Developers shall have the option of group of trees on the site. The plan should doing cluster development, such as a include, but not be limited to, delineation of CD167:7 Fayetteville Code of Ordinances the following features as they exist on the site: (a) The existing topography of the site highlighting slopes of 15% or greater, and indicating the natural drainage patterns; (b) The property line boundaries of the site; (c) Soils identified according to the Unified Soil Classification System; (d) Any significant trees existing on the site, and the location of trunks, spread of the canopy, species, diameter at breast height (DBH), and the overall health of each significant tree; (e) Groupings of trees, delineating the edges of the overall canopy, noting the predominate species, average height, diameter at breast height (DBH), and general health of the trees. (f) All existing utilities and utility easements; (g) All perennial and intermittent streams and creeks that exist on the site or within 100 feet of the site; (h) Floodplains and floodways on the site; (i) All existing rights -of -way within and surrounding the project site, including any designated trails or bike paths; and, (j) Any other factors that may impact the design of the site. (2) Tree preservation plan. The applicant shall indicate all proposed site improvements, and delineate in the tree preservation plan the trees to be retained on -site, and the measures to be implemented for their protection. These measures shall include, but need not be limited to, fencing, limits of root pruning, as well as restrictions on traffic and material storage. The plan shall also clearly depict the limits of soil disturbance to include all areas to be graded both on and off -site, as well as the proposed location of utilities. The applicant should consult the City of Fayetteville Tree Preservation, Protection and Landscape Manual for details, examples and specific checklists. (3) Abbreviated tree preservation plan. Applicants requesting approval of development projects that require building, grading, or parking lot permits, but that do not fall under the requirements for large scale developments or subdivisions, shall prepare and submit an abbreviated tree preservation plan. The information for this plan may be combined with the site plan, plat drawing, or grading plan. The applicant is expected to show the general location of all existing groups of trees, individual significant trees, and to clearly depict the limits of soil disturbance to include all areas to be graded, both on and off -site, as well as the proposed location of utilities. Protective measures such as fencing, limits of root pruning, restriction on traffic and materials storage shall be depicted on the plan. A preliminary site visit with the urban forester is highly recommended before applying for any of the above -mentioned permits. The applicant should consult the City of Fayetteville Tree Preservation, Protection, and Landscape Manual for details, examples and specific checklists. Applicants submitting abbreviated tree preservation plans shall not be required to submit either a site analysis plan or analysis report, nor shall they be required to hire architects, engineers, or landscape architects to prepare the abbreviated tree preservation plan. (4) Analysis report. The applicant shall submit an analysis report detailing the design approaches used to minimize damage to or removal of existing canopy that were considered in arriving at the proposed design. Written justification shall be presented as to why individual trees or canopy must be removed. The report shall also detail proposed on -site mitigation options or off -site alternatives, as detailed below. (5) Grading and utility plans. All subsequent grading and utility plans shall depict the tree preservation areas on the site, to include the preserved trees and the physical limits of all protective measures required during construction. (6) Submittal requirements. The applicant shall submit two (2) copies of a site analysis plan and analysis report to the urban forester, concurrently with their tree preservation plan. Applicants submitting abbreviated tree preservation plans shall not be required to submit either a site analysis plan or analysis report. (7) Conservation requirements. The city shall encourage the use of conservation easements for the added protection of trees preserved or planted to meet percent minimum canopy requirements in those CD167:8 TITLE XV UNIFIED DEVELOPMENT CODE instances where such would be of mutual density of 150, two inch (2") caliper benefit to the applicant and the city. trees per acre removed. (I) Request for on -site mitigation (c) Low priority canopy. When removing low priority canopy below the percent (1) Timing of request for on -site mitigation, minimum required, the canopy square Requests to remove trees below the percent footage removed shall be forested at a minimum canopy requirement must be base density of 100, two inch (2") caliper incorporated with the applicant's tree trees per acre removed. preservation plan. (5) Base Density. Compensating for the (2) Plan requirements. The tree preservation environmental damage caused by removing plan must graphically represent the species tree canopy shall be accomplished by and location for all trees to be planted on- forestation on a per acre basis. The base site. It shall also include a chart clearly density formula used above is based on two stating the following information: inch caliper trees. However, the urban forester may approve the use of trees with (a) The number of trees requested for less than two inch (2") caliper for the planting removal; of smaller tree species required by spatial constraints on the site. In such cases, the (b) The percentage below the percent number of trees to be planted may be minimum canopy requirement they adjusted in accordance with the species represent; and, density table to be found in the City of Fayetteville Tree Preservation, Protection, (c) Tree removal due to the grading work and Landscape Manual, along with done to create tie backs for roads in the examples for using the base density formula. Hillside/Hilltop Overlay District shall be mitigated by reforesting a minimum of (6) Preferred species. All trees to be planted 25% of the tie backs pursuant to the shall be species native to the region, when landscape manual. available, and selected from the list of preferred tree species set forth in the City of (d) Planting trees in non -canopy areas in Fayetteville Tree Preservation, Protection, order to reach the minimum percent and Landscape Manual. Species selection canopy requirements for the site is not shall be based upon the amount of space allowed in the Hillside/Hilltop Overlay available for proper growth on the site, and District, must be approved by the urban forester. (e) The species and number of trees to be (7) Placement of trees. The applicant is planted based on the forestation expected to plant trees in locations on the requirements below, site where the environmental benefits of canopy cover are most likely to offset the (3) Planting details and notes. Planting details impact of development. Trees shall not be and notes shall be included on the tree placed within utility easements, or in other preservation plan as set forth in the City of locations where their future protection cannot Fayetteville Tree Preservation, Protection, be assured. and Landscape Manual. (8) On -site mitigation incentive. If all the (4) Forestation requirements. The number and required trees can be located on -site, the species of trees required for forestation shall Urban forester may approve up to a twenty be based upon the quality of the canopy lost: percent (20%) reduction in the number of trees to be planted. Any incentive reductions (a) High priority canopy. When removing allowed shall be based upon the following high priority canopy below the percent factors: minimum canopy required, the canopy square footage removed shall be (a) The species of the mitigation trees; and, forested at a base density of 200, two inch (2") caliper trees per acre removed. (b) The space needed for the healthy growth of trees. (b) Mid -level priority canopy. When (9) Residential On -Site Mitigation. Applicants removing mid -level priority canopy requesting On -Site Mitigation for Residential required, the canopy square footage Subdivisions shall comply with all the removed shall be forested at a base CD167:9 Fayetteville Code of Ordinances provisions of §167.04 I. 1-7, as well as the following: (a) The Applicant's Mitigation Plan shall meet or exceed the required number of Mitigation Trees based on the Forestation Requirements as set forth at §167.04 I. 4. (b) All Plans requesting Residential On -Site Mitigation shall include a binding three (3) year maintenance and monitoring plan, which shall hold the Applicant responsible for the health of all planted trees. (i) Approval of a Plan requesting Residential On -Site Mitigation shall be contingent upon the Applicant depositing with the City an irrevocable Letter of Credit in an amount equal to the estimated cost of materials and labor for all trees at the time of planting. The irrevocable Letter of Credit must cover the entire three (3) year maintenance and monitoring period. Applicant shall submit cost estimates to the Urban forester for approval. (ii) Upon completion of the three year landscape establishment period, the Urban forester shall inspect the site and determine whether ninety percent (90%) of the trees are healthy and have a reasonable chance of surviving to maturity. Upon such a finding, the City shall release the Letter of Credit. (iii) In the absence of such a finding, the Applicant shall be notified to replace any unhealthy or dead trees, or take other appropriate action as approved by the Urban forester. If the Applicant does not take remedial steps to bring the property into compliance, the City shall use the necessary moneys from the Landscape Establishment Guarantee to do so. (iv) In the event trees are injured or destroyed by natural disasters, including but not limited to, tornadoes, straight-line winds, ice storms, fire, floods, hail, or lightning strikes, or through the independent actions of third parties, the applicant shall be relieved of the responsibility of replanting the tree or trees so affected. (c) The Applicant shall establish a bona fide Property Owners Association with a Bill of Assurance and Protective Covenants sufficient to ensure the continued health and vitality of the mitigation trees within the subdivision. The Bill of Assurance and Protective Covenants shall be filed of record with the Circuit Clerk and Ex - Officio Recorder of Washington County, Arkansas, and file -marked copies thereof shall be provided to the Urban forester prior to Final Plat approval. (d) Developers requesting mitigation trees be planted along the street right of way of a Subdivision shall submit a street tree planting plan that complies with the standards outlined in the City of Fayetteville Tree Preservation, Protection, and Landscape Manual in order to ensure that new trees planted are of the highest quality, require low maintenance, and do not interfere with public safety. The species of trees to be planted shall be selected from the Approved Street Tree Species List, or be otherwise specifically approved by the Urban forester. (i) The Applicant's Mitigation Plan for planting street trees shall describe in detail the method for tracking the development of the individual lots, which shall best ensure that required number and species of Mitigation Trees are planted. (ii) The applicant shall submit an annual schedule of the initial structural pruning for all Mitigation Trees planted along street right of ways with the name and contact information of the International Society of Arboriculture (ISA) Certified Arborist or pruning service performing the work. (J) Request for off -site alternatives. CD167:10 (1) Timing of request for off -site alternatives. Requests for off -site alternatives must be incorporated in, and submitted concurrently with the applicant's tree preservation plan. (2) Off -site preservation. The applicant may seek approval of the urban forester to preserve an equal or greater amount of canopy cover at a site within the city limits or, with the express approval of the City Council by its resolution, within one -quarter mile of the Fayetteville city limits. TITLE XV UNIFIED DEVELOPMENT CODE (3) Off -site forestation. If off -site preservation cannot be achieved, the applicant may seek (i) May be used for canopy mitigation, approval from the urban forester to plant the including planting site identification, required number of trees on another site tree acquisition, planting, and owned by the applicant and located within maintenance, utilizing either City the city limits or, with the express approval of Staff or contract labor; the City Council by its resolution, within one - quarter mile of the Fayetteville city limits. A (ii) Shall not revert to the general fund tree conservation easement must be for ongoing operations. conveyed by the applicant to the city to protect any off -site preservation or (d) If it is not possible to plant trees within forestation. the subdivision, planting locations will be sought in appropriate sites within a one (4) Tree escrow account. Tree preservation on- (1) mile radius of where the original site is always the preferred option, with on- project is located, but if this cannot be site mitigation, off -site preservation and off- achieved, the moneys shall be used to site forestation to be considered in plant the trees in the park quadrant in descending order only if the more preferred which the development took place, or option cannot be fully achieved. If none of pursuant to J (2) and (3). Data these options can completely fulfill a extracted from the Urban Forest developer's obligation under this Tree Analysis should be consulted when Preservation and Protection Chapter, the identifying appropriate locations to plant developer shall pay into the City Tree escrow funded trees. Escrow Account $250.00 for each tree required to meet the Base Density (e) The City of Fayetteville shall refund the requirements which fairly represents the portion of the money contributed under costs of material and labor to plant a tree. this section, including the accrued The developer shall also pay into the Tree interest that has not been expended Escrow Fund the reasonable maintenance seven (7) years from the date of the costs to ensure each tree survives at least contribution. Interest shall be based on three years. Tree planting and maintenance a four percent (4%) annual rate. costs should be adjusted at least every four years to ensure it remains the fair market (f) Refunds shall be paid to the Applicant costs for tree planting and maintenance for who made the original contribution. three years. (g) Notice of the right to a refund, including (a) Residential Subdivisions which cannot the amount of the refund and the achieve the Base Density tree procedure for applying for and receiving requirements through preservation or the refund, shall be sent or served in mitigation shall contribute to the Tree writing to the Applicant no later than Escrow Account. The City shall use the thirty (30) days after the date which the money paid into the Tree Escrow refund becomes due. The sending by Account to plant trees within the regular mail of the notices to the subdivision along rights -of -ways, Applicant shall be sufficient to satisfy the detention ponds, common areas or requirement of notice. other areas where trees can be protected and have a high probability of (h) The refund shall be made on a pro rata survival to a mature tree. This shall be basis, and shall be paid in full no later accomplished once the subdivision is than ninety (90) days after the date built out or as approved by the urban certain upon which the refund becomes forester. due. (b) Money contributed in lieu of On -Site (i) At the time of the contribution to the Tree Mitigation or Off -Site Forestation shall Escrow Account, the Urban forester be paid prior to issuance of a Building shall provide the Applicant with written Permit on all Commercial, Industrial, or notice of those circumstances under Multi -Family Residential buildings and which refunds of such fees will be made. prior to Final Plat acceptance for all Failure to deliver such written notice Residential and Non -Residential shall not invalidate any contribution to Subdivisions. the Tree Escrow Account under this Ordinance. (c) Money contributed under this section: CD167:11 Fayetteville Code of Ordinances (5) Maintenance agreement and landscape establishment guarantee. All plans (2) The form shall also clearly indicate the requesting on -site mitigation or off -site applicant's plan is "APPROVED," forestation shall include a binding three year "DISAPPROVED," or "CONDITIONALLY maintenance and monitoring plan, which APPROVED," and explain the reasoning shall hold the applicant responsible for the therefore. health of all planted trees. (3) A statement shall appear on the form (a) Approval of a plan requesting on -site explaining the process by which a final mitigation or off -site forestation shall be administrative determination may be contingent upon the applicant depositing appealed in accordance with Chapter 155 of with the city either currency, bond the Unified Development Code. irrevocable letter of credit or other (4) The urban forester shall sign and date the surety, in an amount equal to the form, and ensure that a copy becomes part estimated cost of materials and labor of of the permanent file for the project. trees at the time of planting. The bond, irrevocable letter of credit, or other (L) Continuing preservation and protection under surety must cover the entire three year approved tree preservation plans. maintenance and monitoring period. The applicant shall submit cost (1) In order to ensure that an applicant's heirs, estimates to the urban forester. successors, assigns, or any subsequent purchasers of the subject property are put on (b) Upon completion of the three year notice as to the existence and extent of an landscape establishment period, the approved tree preservation plan, tree urban forester shall inspect the site and preservation areas shall be clearly depicted determine whether 90% of the trees are on the easement plats for large scale healthy and have a reasonable chance developments and the final plats for of surviving to maturity. Upon such nonresidential subdivisions. This shall be finding, the city shall release the accompanied by a narrative statement currency, bond, or letter of credit. describing the nature of the protection afforded, and bearing the signature of the (c) In the absence of such a finding, the urban forester. Lots in residential applicant shall be notified to replace any subdivisions are expressly exempt from unhealthy or dead trees, or take other these requirements. If it is impractical to appropriate action as approved by the include the actual depiction of the canopy to urban forester. If the applicant does not be preserved on the easement plat, or final take remedial steps to bring the property plat itself, a note cross referencing an into compliance, the city shall use the accompanying document shall suffice. necessary monies from the landscape establishment guarantee to do so. (2) The geographic extent and location of tree preservation areas, once recorded, may only (d) In the event trees are injured or be modified, or abolished with the express destroyed by natural disasters, including approval of the City Council. Applicants but not limited to, tornadoes, straight- requesting such action shall bear the burden line winds, ice storms, fire, floods, hail, of proving to the City Council's satisfaction or lightning strikes, or through the that such modification or abolition is in the independent actions of third parties, the best interest of the City of Fayetteville. Such applicant shall be relieved of the requests shall be submitted to the urban responsibility of replanting the tree or forester, who shall ask the city clerk to place trees so affected. it on the agenda of the next regularly scheduled City Council meeting. (K) Tree preservation plan review form. The urban forester shall use a standardized form for all (3) Property owners wishing to remove diseased recommendations or administrative or dead trees from within a recorded tree determinations made regarding an applicant's preservation area shall seek prior approval tree preservation plan. from the urban forester, who shall determine if such removal is consistent with sound (1) The form shall clearly indicate whether the arboricultural and horticultural practices, as urban forester is making a final well as the intent of this chapter. Any tree so administrative determination, or a removed shall be replaced with a tree of like recommendation to the Planning or similar species, unless the urban forester Commission or City Council. determines that natural replacements of CD167:12 TITLE XV UNIFIED DEVELOPMENT CODE sufficient health and vigor are already (A) Follow the Tree Preservation, Protection, and present in the tree preservation area. Landscape Manual. All tree planting, maintenance or removal on public grounds shall (Code 1991, §162.10; Ord. No. 2699, §10, 4-20-93; Ord. No. follow the standards, specifications and 3901, §1, 7-5-95; Ord. No. 3963, §6, 4-16-96; Ord. No. 4100, guidelines provided in the City of Fayetteville §2 (Ex. A), 6-16-98; Ord. No. 4340, 10-2-01; Ord. No. 4539 Tree Preservation, Protection, and Landscape 02-03-04; Ord. 4855, 4-18-06; Ord. 4930, 10-03-06; Ord. Manual. 5308, 3-16-10; Ord. 5312, 4-20-10; Ord. 5427; 8-2-11) 167.05 T P M A C (A) Site inspection. A preliminary site inspection followed by periodic inspections will be conducted by the urban forester to ensure compliance with the tree preservation plan. (B) Tree protection. Tree preservation areas shall be protected from construction activity to prevent impingement by or the storage of construction vehicles, materials, debris, spoils or equipment in tree preservation areas. No filling, excavating or other land disturbance shall take place in tree preservation areas. Before commencing any construction activity, the applicant shall construct tree protection barriers on the site along the tree dripline or 10 feet from the trunk, whichever is greater. The applicant shall also post signs at each tree preservation area in accordance with the standards, specifications and guidelines provided in the City of Fayetteville Tree Preservation, Protection, and Landscape Manual. The urban forester may require other protective measures based upon the individual characteristics of the site and the proposed construction methods. Tree protection measures shall also protect any off -site trees the roots of which extend onto the site of the proposed construction. Any applicant damaging or destroying an off -site tree shall be required to mitigate such damage or destruction as prescribed by the urban forester. If the required barriers surrounding the tree preservation areas are not adequately maintained during construction, the urban forester shall prescribe remedial measures, and may issue a stop work order in accordance with § 153.07(C). All remedial measures shall be completed within the specified amount of time and shall be considered prior to granting final plat approval or issuing a certificate of occupancy. (Code 1991, §162.11; Ord. No. 3699, §11, 4-20-93; Ord. No. 3925, §8, 10-3-95; Ord. No. 3901, §1, 7-5-95; Ord. No. 3963, §7, 4-16-96; Ord. No. 4008, §1, 12-17-96; Ord. No. 4100, §2 (Ex. A), 6-16-98; Ord. No. 4340, 10-2-01) 167.06 T P ,M A R Os R OW A O P G (B) Tree planting. Trees may be planted within street rights -of -way or on other public grounds only after notification to the urban forester; and provided the selection and location of said trees are in accordance with the requirements. (C) Tree removal. Trees shall not be removed from a street right-of-way or other public grounds unless approval is received from the urban forester, with the exception that city employees may remove trees when necessary to accomplish emergency repairs to sewer or water systems, or in order to alleviate flooding. (D) Damage to trees. It shall be a violation of this chapter to damage, destroy or mutilate any tree in a public right-of-way or on other public grounds, or attach or place any rope or wire (other than one to support a young or broken tree or limb), sign, poster, handbill or any other thing to any such tree. (E) Top or cutback to stubs. It shall be unlawful for any person to top or cutback to stubs the crown of any tree in street rights -of -way or on other public grounds. (F) Reserved rights. The city reserves the right to plant, preserve, prune, maintain or remove any tree within the street rights -of -way, alleys, squares, and all public grounds when such interferes with the proper spread of light along the street from a street light, or interferes with visibility of any traffic control device or sign, or as may be necessary to preserve or enhance the symmetry and beauty of such public grounds. (G) Line of sight. Trees shall not be planted to conceal a fire hydrant from the street or impede the line of sight on any street. (H) Storm damage. Trees severely damaged by storms, or other accidental causes, where required pruning practices are impractical are exempt from this chapter.. (I) City employees. Before cutting, pruning, removing or trimming any tree, city employees performing tree work on public grounds shall attend an educational workshop on basic tree pruning. A certificate will be issued when an individual has successfully completed the workshop. CD167:13 Fayetteville Code of Ordinances (J) Public utilities. Nothing in this section shall be construed to prohibit public utilities from pruning or removing trees that encroach upon electric, telephone, or cable television transmission lines, or gas, sewer or water pipes. (Code No. 1991, §162.07; Ord. No. 3699, §6, 4-20-93; Ord. No. 3901, §1, 7-5-95; Ord. No. 3963, §5, 4-16-96; Ord. No. 4100, §2 (Ex. A), 6-16-98; Ord. No. 4340, 10-2-01). 167.07 C T P S C Al R (A) Certificate required. Before cutting, pruning, removing, or trimming any tree within the City of Fayetteville, the owner and supervisory personnel of each business performing commercial tree work shall obtain a city issued commercial tree pruner/service certificate. (B) Liability insurance. Each business performing commercial tree work, to include tree surgery, within the City of Fayetteville, shall be required to carry liability insurance in the following minimum amounts: (1) General aggregate: $100,000.00 (2) Personal & advertising: $100,000.00 (3) Each occurrence: $100,000.00 Proof of coverage shall include the name of the insurance company issuing the policy, the name of the insured, the policy number, effective and expiration dates, and the signature of an authorized representative of the insurance company. (C) Workshop. Owners and supervisory personnel shall attend an educational workshop on basic tree science and the proper techniques of tree pruning; or shall demonstrate sufficient knowledge of basic tree science and the proper techniques of tree pruning by scoring 75% or higher on a test provided by the International Society of Arboriculture (I.S.A.). (D) Certificate issuance. A certificate shall be issued when an individual has successfully completed the workshop or scored adequately on the test. (E) Job site. It shall be the responsibility of the business owner to ensure that a copy of the certificate is maintained at each job site. (F) Supervision. All persons engaged in the business of trimming trees shall be under the supervision of a certified tree pruner/service. (G) Worker's compensation. Those individuals performing commercial tree work on public grounds shall comply with all worker's compensation requirements as set forth under Arkansas law and shall hold a city issued commercial tree pruner/service certificate. (H) Licensure. Those individuals performing tree surgery shall comply with licensure requirements as set forth under Arkansas law. (Code 1991, §162.13; Ord. No. 3699, §14, 4-20-93; Ord. No. 4100, §2 (Ex. A), 6-16-98; Ord. No. 4340, 102-01) 167.08 T (A) Pruning. Every owner of any tree overhanging a street or sidewalk within the city is responsible for pruning the branches so that such branches shall not obstruct vehicles or pedestrians. (B) Order or removal. The mayor, or his/her duly authorized representative, is hereby authorized to order the owner of any real property within the city to cause the removal of any dead or diseased trees on their property, and further, to order compliance, when such trees constitute a hazard of life and property, or harbor insects which constitute a potential threat to other trees. Whenever any such condition is found to exist, the mayor, or his/her duly authorized representative, shall send written notice via first class mail to the property owner ordering the performance of such acts within 20 days. If the property owner's identity or whereabouts are unknown, a copy of the written notice shall be posted upon the premises. (C) Noncompliance. It shall be unlawful for any person to fail or refuse to comply with any order and notice given pursuant to this section. (D) Removal by city. If the conditions described in a notice given, as set forth above, are not removed or corrected within 20 days after such notice given, the mayor, or his/her duly authorized representative, is hereby authorized to enter upon the property and do whatever is necessary to correct or remove the conditions described in the notice. The costs of correcting said conditions shall be charged to the owner or owners of the property and the city shall have a lien against such property for the costs. Enforcement of the lien shall be set forth in §95.03 of the Fayetteville Code of Ordinances. Such action shall not be taken if the owner has evidenced a willingness to comply by hiring a qualified tree service before the expiration of the 20 day period. (Code 1991, §162.06; Ord. No. 3699, §6, 4-20-93; Ord. No. 3963, §4, 4-16-96; Ord. No. 4100, §2 (Ex. A), 6-16-98; Ord. No. 4340, 10-2-01) CD167:14 TITLE XV UNIFIED DEVELOPMENT CODE 167.09 L D E If it becomes necessary for the mayor to declare a local disaster emergency pursuant to A.C.A. §12-75- 108(b)(2), the provisions of this chapter may be suspended for up to 30 days, if strict compliance with its provisions would prevent, hinder, or delay actions necessary to cope with the disaster emergency. (Ord. No. 4316, 6-5-01; Ord. No. 4340; 10-2-01) 167.10 167.99 R CD167:15