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Newburyport City Tree Ordinance

2009 Draft Revision

Submitted by

The Newburyport Tree Committee

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Newburyport Tree Ordinance34

D R A F T O N L Y … … D R A F T O N L Y56

Index of sections:7Sec. 12-171. Purpose.8Sec. 12-172. Definitions.9Sec. 12-173 Permit required.10Sec. 12-174 Application procedure11Sec. 12-175. City plan for care of street, lawn and park trees.12Sec. 12-176. Listing of trees acceptable for planting.13Sec. 12-177. Spacing between street trees.14Sec. 12-178. Plantings near curbs and sidewalks.15Sec. 12-179. Plantings near street corners and fire hydrants.16Sec. 12-180. Plantings near overhead utilities.17Sec. 12-181. Trimming of street trees.18Sec. 12-182. Trimming street trees by utility companies.19Sec. 12-183. Planting, maintenance, and removal.20Sec. 12-184. Topping of trees.21Sec. 12-185. Pruning of privately-owned trees.22Sec. 12-186. Dead and diseased trees removal from private property.23Sec. 12-187. Removal of tree stumps.24Sec. 12-188. Installation of tree lights.25Sec. 12-189. Damage, removal and replacement of City-owned trees.26Sec. 12-190. Protected trees.27Sec. 12-191. Building and development.28Sec. 12-192. Emergencies and exemptions.29Sec. 12-193. Enforcement and penalties.30Sec. 12-194. Severability.31APPENDIX IA and IB. Lists of trees acceptable and NOT acceptable to plant. [To32be added to document]33APPENDIX II. Code of practice for builders/developers/agents.34

35Sec. 12-171-A. Purpose.36

37Believing that the presence of mature trees in the City of Newburyport improves air38quality; creates habitats for wildlife, including various rare and protected species; reduces39noise; provides privacy; protects soil from erosion; and provides an aesthetic appeal that40enhances property values, as well as civic pride and enjoyment; the City of Newburyport41promulgates this ordinance to protect and preserve public trees.42

43The purpose of this article is to promote and protect the public health, safety and general44welfare by providing for the regulation of tree planting, maintenance and removal of45trees, shrubs and other plants on public property and trees on private property that46constitute a hazard to the public in the city right-of-way. This ordinance supplements47Massachusetts General Laws, Chapter 87: Shade Trees.48

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49Sec. 12-171-B. Membership and Terms50The Commission shall consist of not less than five nor more than nine members. The51members of the Tree Commission under this section shall be appointed for terms of such52length and so arranged that the term of at least one member will expire each year, and53their successors shall be appointed for terms of three or five years each as determined by54the City Council. The appointment shall end on first Sunday of January and new55appointments shall begin on Monday, the following day, except when an emergency56appontment must be made to fill an untimely vacancy. The appointments to the Tree57Commission shall be made in accordance with the provisions of the Newburyport58Charter. The members must be residents and registered voters of the city. As the term of59each member expires, their successor shall be appointed for a term of at least three (3)60years. A member may be reappointed for successive terms. A member shall continue to61serve on the Commission until a successor has been approved. By a majority vote of the62members of the Tree Commission, a Chairman of the Tree Commission and a Vice63Chairman shall be elected at the May meeting each year from a list of persons nominated64at the April meeting. The nominees must be present at the time of nomination. The65members of the commission shall serve without compensation. A majority of the voting66members of the commission shall constitute a quorum. The Commission shall convene a67general business meeting once per month for a minimum of ten (10) months per year.68Subcommittees shall meet as needed. Notice of meetings shall be posted with the City69Clerk in accordance with Massachusetts Open Meeting Laws. Any member who fails to70attend three (3) consecutive general business meetings without prior written approval of71the absence by a majority vote of the members shall be considered removed from the72commission. Any member of the Commission may be removed for cause, after a public73hearing, by the mayor, with the approval of the City Council.74

75Sec. 12-172. Definitions.76The meaning of terms used in this article shall be as follows:77

78DBH refers to the Diameter At Breast Height of the main tree trunk measured 4.5 feet79above the ground. The diameter measurement can be based on the widest width of an80ovoid shaped trunk or computed from the circumference using the appropriate81mathematical formula or circumference tape measure especially designed for the purpose82– whichever measurement is larger.83

84Inflation Adjustment refers to the requirement that the monetary amounts of penalties and85fines shall be indexed (adjusted) to reflect the rate of economic inflation since the date of86passage of this ordinance.87

88Lawn Trees refers to trees that have been planted by the City or its representatives on89private property with the permission of the property owner for the purpose of providing90the benefits of public trees to the community. Lawn trees can be protected by91conservation easements and are subject to the same laws for protection as all other city92owned trees93

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Mitigation Plan A document submitted where any Significant and Protected Trees are95proposed to be removed from a lot, stating (i) why any Significant Trees are proposed to96be removed from a lot, (ii) a description of the Replacement Trees proposed to replace97the Significant Trees to be removed or the value of which is proposed to be paid to the98City to be deposited into the Tree Fund, (iii) an estimate from a local nursery for the cost99of purchasing, planting, watering and maintaining said Replacement Trees for a period of100not less than 5 years or the value of which is proposed to be paid to the City to be101deposited into the Tree Fund, and (iv) certification from a certified arborist that the102proposed Replacement Trees and cost estimates for purchasing, planting, watering and103maintaining said Trees are appropriate and reasonable.104

105Offsets and setbacks refer to the distance in feet that a tree is planted to one side of106(offset) or away from (setback) a road right of way, curb, awalk way, aburied utility107service line, a sewer pipe or line, a utility pole or traffic sign post, an overhead wire, or a108surveyed (or Global Positioning Satellite - GPS - determined) land lot line. The purpose109of the offset or setback is to preserve safe sight lines for road traffic and pedestrians,110minimize any potentially damaging interaction of roots and braches with utility lines or111pipes, and allow fire fighting or other large equipment to negotiate corner turns with ease.112

113Park trees refer to trees, shrubs and other woody vegetation in public parks and public114property owned by the City.115

116Protected trees refers to those trees on public land which may not be removed without117the approval of the Tree Commission. See Section 12-190.118

119Public property refers to those City-owned lands other than those managed by the parks120or conservation commissions or successors to those bodies; and to all property within the121right of way.122

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Replacement Trees refers to a tree or trees to be planted on a lot to replace any125Significant Trees to be removed from the lot, or whose equivalent value is proposed to be126paid to the City to be deposited into the Tree Fund instead of planting Replacement127Trees on the lot. The total diameter breast height DBH) of Replacement Trees or128equivalent value, as applicable, shall be equal to or exceed the total DBH of the129Significant Trees to be removed from the lot. Trees being replaced under the terms of the130five year guarantee shall be subject to the replacement criteria set forth herein.131In the event that the trees are no longer present on the site (e.g., not available for132identification due to having been removed or covered over) will result in a presumption133that the most valuable and expensive species was removed.134

135Significant trees refer to trees on public land, which, by virtue of their species, age, size,136or location are considered valuable to the entire community, and may be removed only137after a public hearing before the Tree Commission, and a vote of approval by the majority138of the members of the Commission. Such trees will have one or more of the following139characteristics:140

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a. A diameter at breast height of 32 (thirty-two) inches or greater.141b. A diameter of 8 inches (or of 15 inches or greater for any multiple trunk trees),142

if within 10 feet143 of any property line.144

c. An age of more than 75 years.145d. Any tree of the following species, no matter what its location: Beech;146

Kentucky Coffee; White Oak; Sycamore, Tilia (Linden), American Chestnut,147American Elm, Silver and Red Maples (over 16” DBH.148

149For the purpose of determining the value of Significant Trees no distinction shall be150made among growth patterns of trees (e.g., Forest vs. Street tree conformation) in areas151to which the public has right of access ( e.g., street, park, lawn, cemetery, school,152woodsy-forest areas, etc.).153

154Street trees refer to trees, shrubs and other woody vegetation growing within the public155right of way.156

157Supervision of work on City trees refers to oversight of all City tree work by a158Massachusetts certified arborist working as a City employee, paid consultant, or159volunteer. All work on City trees shall be supervised in the field by such certified160arborist, who shall be responsible for the work performed, and shall maintain regular161contact with the City’s Tree Warden to whom they are accountable.162

163Training and Expertise refers to the requirement that Utility Companies, Real Estate164Developers/contractors, Landscapers, and Tree Services shall be responsible for165ensuring that the bucket operators, tree climbers, and chipper operators are trained and166knowledgeable as to the standards of this Ordinance, the American National Standards167Institute (ANSI) Standard Z-133, and the National Arborist Association (NAA) Pruning168Standards and the Occupational Safety and Health Administration (OSHA).169

170Tree Commission refers to the seven-member Commission appointed by the Mayor with171the approval of the City CouncilCouncil to three (3) year terms, with the authority172bestowed on all such Commissions. The Tree Commission will be responsible for173overseeing the parameters and guidelines for the City’s programs affecting trees. This174will include the responsibility for holding hearings on removals and pruning of all trees175covered under this ordinance.176

177Tree Fund refers to the Tree Fund which shall be administered by the City Auditor and178Tree Warden.. Any payments into the Tree Fund required under this ordinance shall be179deposited in said Fund, and, at the direction of the Tree Commission, shall be used solely180for the purpose of buying trees, tree related equipment and services (including tree181inventory, education and training), planting, and maintaining trees in the City182

183Tree Plan refers to a plan (drawn to scale) showing all existing Significant and Protected184Trees, as well as all trees over 5” diameter breast height (DBH), detailing species and185location, in which the owner / builder / developer shows current and intended plantings,186

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and changes to the grade of the land. The existing canopy spread of the trees shall also be187shown (to scale) and will show changes to spread/density of the overhead tree canopy.188This tree plan must be approved by the Planning Board and the Tree Commission prior to189receipt of all permits which will include building, landscaping, and tree work.190

191Tree topping refers to the severe cutting back of limbs to stubs larger than three (3)192inches in diameter within the tree's crown to such a degree as to remove the normal193canopy and disfigure the tree.194

195Tree Warden shall be a certified arborist; or shall retain the services of a certified arborist196as a consultant available to provide expert supervision as needed.197

198Tree Warden Designee refers to that person or persons designated by the City’s Tree199Warden to carry out duties consistent with those of the Tree Warden.200

201Tree Work Permit refers to a permit obtained by the owner, builder, developer, agent, or202utility doing the work. The permit shall be issued by the Tree Warden prior to starting the203work. See Sec.12-173204

205Tree Worker License: Persons engaged in the business of planting, maintaining, pruning,206trimming, or removing street, park or lawn trees shall obtain a Tree Worker License.207Only those who are approved for a Tree Worker License shall be allowed to do such tree,208tree root, and soil work. The license will be issued by the City’s Tree Warden, based209upon proof of: the applicant’s arboriculture skill, experience, and training; as well as210evidence of each individual’s competence in tree pruning procedures and safety, evidence211of liability insurance in the amount of $1,000,000., to be adjusted for inflation subsequent212to the passage of this ordinance; and evidence of workers’ compensation insurance213coverage. Those pruning City trees are required to have their licenses available at all214times for inspection by the Tree Warden and members of the Tree Commission. Anyone215found pruning without such a license will immediately cease work, and will be subject to216a fine of not less than $500. per day.217

218Applicability219

220Sec. 12-173 Permit required221A valid tree work permit shall be obtained prior to doing any of the following work:222(a.) Trimming of City trees.223(b.) Excavation within or adjacent to the public right-of-way or public property which224may disturb225 roots of City trees, including but not limited to the installation of utilities.226(c.) Removal of City trees.227

228Sec. 12-174 Application procedure229Application for a tree work permit shall be made to the Tree Warden a minimum of 15230business days prior to commencement of the planned work, except in an unforeseen231emergency.232

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(a.)Application for work on conservation lands shall be submitted to the Conservation233Commission.234(b). Reimbursement of Tree Warden’s time: the City shall be reimbursed for the total cost235of the time of the Tree Warden, or his designee, and support staff, for reviewing work on236the City’s trees. Costs shall be assessed through permit application fees or by direct237billing.238(c.) Fees may be waived for work done for the benefit of the City, at the discretion of the239Tree Warden.240

241Sec. 12-175. City Plan for care of street, lawn and park trees.242The Tree Warden shall develop a plan for the care, preservation, pruning, planting,243replanting, removal and disposition of street, lawn and park trees.244

245The plan shall be submitted by February 15th of each year to the Mayor and City Council246via the Director of Public Works. Upon their acceptance and approval the plan shall247constitute the official Tree Plan for the City. The standards and specifications contained248within the plan shall apply to work performed by private individuals, corporations, public249utility companies, and contractors as well as city officials and employees.250

251Sec. 12-176. Listing of trees acceptable for planting.252The Tree Warden, in consultation with the City’s Tree Commission, shall develop and253maintain an up-to-date list of trees acceptable and unacceptable for planting along streets254and the public right of way in the following three size classes based on mature height:255small (under twenty [20] feet tall), medium (twenty [20] to forty [40] feet tall), and large256(more than forty [40] feet tall). This list will be updated periodically, and will be257included in the Tree Warden’s annual Tree Plan. This list will also include trees which258the Tree Warden considers not suitable for planting. The full list will be available259through the Department of Public Works, the Planning Office, and through the City’s260web site. The current list is attached as Appendix I as an example.261

262Sec. 12-177. Spacing between street trees.263Street trees shall be planted with the goal of creating an integrated canopy above the264City’s streets, while bearing in mind restrictions of particular sites.265

266Sec. 12-178. Plantings near curbs and sidewalks.267(a.) Street trees may be planted in accordance with dimensions specified in the City’s268most recently approved Tree Plan. Exceptions may be made for special plantings, if269authorized in writing by the Tree Warden.270(b.) Cutouts for planting in a walk way or a curb shall be sufficient to capture rainwater271for the health of the tree. Where appropriate, trees shall be planted with root barriers272(guide guards) to minimize the development of uplifting and girdling roots.273

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Sec. 12-179. Offset and Setback Location of newly planted trees. These trees shall be276planted no closer than as follows:277

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• Minimum offset of thirty-five (35) feet from the centerline of roads that intersect278the line of traffic that passes in front of the new tree;279

• Minimum offset ten (10) feet from a Fire Hydrant;280• Minimum offset ten (10) feet from a Storm Drain;281• Minimum offset ten (10) feet from a Gas\Water Cover;282• Minimum offset ten (10) feet from telephone pole;283• Minimum offset as needed to preserve, for traffic, useful visibility of traffic signs;284• Minimum offset as needed to allow smooth passage of fire, ambulance, or other285

large municipal vehicles negotiating a turn.286287

No trees shall be planted within twenty-five (25) feet measured from the point of nearest288intersecting curb or curb lines.289

290Sec. 12-180. Plantings near overhead utilities.291Only street trees listed as small trees in section 12-176 of this article shall be planted292under or within ten (10) feet of any overhead utility wire. The measured height of wires293shall be determined by measurement from the point nearest to the planting site that is294directly underneath the wires and 90 degrees perpendicular to them,295

296Sec. 12-181. Trimming of street trees.297It shall be unlawful to trim and prune a City-owned tree on public property without the298written approval of the Tree Warden who may require evaluation by a certified arborist.299The Tree Warden may permit a property owner to do minor trimming so as to keep the300walkway clear.301(a) A Tree Worker license will be required of all those engaged in the business of pruning302street, park or lawn trees. A certified arborist must be present to actively supervise the303pruning of such trees. Such work shall be performed in accordance with accepted304arboricultural standards set forth by the National Arborist Association and American305Nursery Standards Institute. No major limb or a limb with a diameter greater than 15% of306the tree diameter at breast height (DBH) shall be removed unless approved by the Tree307Warden prior to the commencement of trimming. Climbing irons shall not be used on any308tree.309See also 12-191.(e) .310(b) Light or simple trimming. With prior written approval of the Tree Warden, minor311pruning of street trees may be done by the home owner using proper tools and safety312precautions. Such trimming shall be for the purpose of providing pedestrian head room313above the sidewalk and shall be limited to small downward hanging branches. (See also314Sec. 12-185)315(c.) Trees shall be pruned to eight (8) feet above the pedestrian walkway.316

317Sec. 12-182. Trimming street trees by utility companies.318A tree trimming policy shall be developed by each public or private utility company and319approved by the Tree Warden prior to commencement of trimming by the utility320company. A valid Tree Work Permit shall be obtained before starting the work.321Trimming for utility line clearance shall protect the viability and proper shape of a tree,322

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and in no case shall trees be trimmed to provide clearance to wires and cables in excess323of the standards noted below.324Public and private utility companies shall notify the Tree Warden and the Tree325Commission in writing prior to pruning and trimming of street, lawn and park trees for326the purpose of maintaining safe line clearance. In addition, because of the extensive327impact of utility pruning, a certified arborist must be present to actively supervise the328pruning of such trees. Such work shall be performed in accordance with accepted329arboricultural standards set forth by the National Arborist Association and American330Nursery Standards.331

332Sec. 12-183. Planting, maintenance, and removal.333(a.) The City shall have the right to plant, maintain, and remove trees, plants and334shrubs within the public right of way of the City-owned streets, alleys, avenues, lanes,335squares and other public property to ensure public safety and to preserve or enhance the336symmetry and beauty of such public property.337

338(b.) The City’s Tree Warden may remove or order to be removed a tree or shrub, or a339part of a tree or shrub which is in an unsafe condition or by its nature is injurious to340sewers, electric power lines, gas lines or other public improvements, or is affected with341any injurious fungus, insect pest and/or disease, or obstructs lines of sight related to342public safety.343

344(c.) The planting of street trees within the street right-of-way by abutting property345owners is permissible provided that the Tree Warden grants written approval and that the346selection and location of said trees are in accordance with provisions of this article. The347Tree Warden shall determine the correct parameters of the City right of way using348information and technology (such as official City or State maps, deeds, surveys, satellite349positioning) for the purpose of planting or removing trees.350

351(d.) Work on City trees shall be subject to the supervision requirements set forth in352Sec. 12-172 above.353

354Sec. 12-184. Topping of trees.355Unless authorized by the Tree Warden, it shall be unlawful to top a street, lawn or park356tree. Trees severely damaged by storms or other causes, or certain trees under utility357wires or other obstructions where pruning practices are impractical may be exempted358from this article as determined by the Tree Warden. Illegal topping of a tree shall result359in a fine of not less than $500.360

361Sec. 12-185. Pruning of privately-owned trees that may affect public safety.362(a) Owners of dead, diseased or dangerous trees on their own private property shall363remove such trees from their property including broken and decayed limbs which364constitute a hazard to public safety.365

366(b) The Tree Warden may permit the owner of a tree or shrub overhanging a street or367right-of-way within the city to prune the branches so the branches do not obstruct the368

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light from a street lamp and/or obstruct the eight (8) feet above the sidewalk surface.369Professional safety methods shall be followed.370

371(c) The City shall have the right to prune a tree or shrub on private property when it372interferes with proper spread of light along the street from a street light, or interferes with373visibility of a traffic control device, sign and sight distance at intersections. Private374property owners may remove broken and decayed limbs which constitute a hazard to375public safety.376

377Sec. 12-186. Dead and diseased tree removal from private property.378Trees or shrubs located on private property which constitute a hazard to life and property,379and harbor insects and disease constituting a potential threat to other trees or shrubs380within the City shall be removed by the owners at their expense within sixty (60) days381following written notification by the Tree Warden. In the event the owners fail to comply382with such notification, the City shall have the right to remove or cause to have removed383such trees and charge the City’s removal cost to the owners. Any person owning property384in the City and who qualifies on the basis of 125% of the federal poverty guidelines may385petition the Mayor for removal of a diseased tree or one which constitutes a hazard to life386and limb by the City at no charge.387

388Sec. 12-187. Removal of tree stumps.389When practical those tree stumps which cannot be usefully incorporated in the landscape390shall be removed, along with their major roots to improve the safety of the walk way and391to mitigate against the development of sink holes. The party responsible for removing392the tree shall pay for stump removal. Private land owners may apply for prior written393permission from the Tree Warden to have such work safely done at their own expense.394Stumps of street trees shall be removed to a minimum of six (6) inches below the ground395surface so the top of the stump does not project above the ground surface so that cleared396areas can be maintained by mowing, and provide safe passage for pedestrians. Chipping397of brush and cleanup of all stumps, wood and other debris shall be a continuous398operation.399

400Sec. 12-188. Installation of tree lights.401(a.) It shall be unlawful to install decorative lights on street and park trees without402written approval of the Tree Warden. With written approval from the Tree Warden,403decorative lights may be installed in City-owned trees on public property for periods404defined below which will not interfere with the proper growth and maintenance of the405trees and when the occasion for the lights is deemed appropriate.406

407(b.) Decorative lights shall be installed no earlier than November 1st and removed no408later than February 1st. Longer term approvals may be allowed, if approved by the Tree409Warden.410

411(c.) The parties receiving approval shall be responsible for proper installation and412timely removal of decorative lights. See also sec.12-189(a)413

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Sec. 12-189. Damage, removal and replacement of City-owned trees.415(a.) Damage and Removal : It shall be unlawful to: remove City owned trees without416prior written approval of the Tree Warden and/or Tree Commission; damaged street and417park trees, their branches, trunk, root systems, bark and other parts of the tree; attach418signs or other items to parts of trees using nails or other devices which may puncture or419damage the bark. Damage shall be as defined and determined by the Tree Warden in420consultation with the supervising arborist.421

422(b.) Removal Hearing: When the removal of one or more City owned tree is423requested, the party making the request shall demonstrate the necessity of removal and424show how the removal will benefit the City. A hearing shall be held by the Tree425Commission, which shall issue a recommendation to the Tree Warden regarding the426removal of the tree. The party requesting the tree removal shall be responsible for all427costs associated with all public announcements required prior to the hearing of the Tree428Commission.429

430(c.) Approval and Assignment of Costs: Removal may occur only with the prior431written approval of the Tree Commission and the Tree Warden. The requesting party432shall incur the cost of removal, disposal, stump removal, as well as the costs of433replacement, protection and maintenance of new plantings to the Tree Warden's434satisfaction.435

436(d.) Unsafe Trees and Expedited Removal. If, in the opinion of the Tree Warden, a437tree represents a public hazard, that tree may be removed without a hearing of the Tree438Commission. The Tree Warden shall provide to the Tree Commission with a written439explanation of the reason(s) for the tree removal with photo documentation, within 15440days of the date of the removal,441

442(e.) When street trees, park trees, and shrubs are damaged or destroyed by a private443individual, corporation, public utility company or contractor, as determined by the Tree444Warden, the responsible party shall incur the cost of removal, replacement, and445maintenance as stated below.446

447 (f.) Replacement may be accomplished by one of, or a combination of, the following448options. Replacement costs as determined by the Tree Commission shall take into449account the ecological impact of the damage or loss as well as the trunk diameter (DBH)450of the damaged or illegally removed tree(s). Street trees and park trees which are451removed, damaged or destroyed shall be replaced with a nursery-grown, City-approved452tree species in quantity and size equal in value to tree(s) removed as determined and453approved by the Tree Warden. Minimum tree size shall be two-inch caliper DBH. These454trees shall be planted in locations selected by the Tree Warden in consultation with the455Tree Commission. The party responsible for damage to the tree(s) shall be responsible456for A.) the cost and timely replanting to the Tree Warden’s specification and satisfaction,457and/or B.) for providing to the City Tree Fund a dollar amount equal to the cost of the458required selecting, transporting, planting, and 5 year maintenance. The Tree Warden,459

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with the approval of the Tree Commission, shall determine the reparation strategy. (see460also Sec. 12-189(g.) below)461

462Example: A tree with a twenty-four-inch DBH (diameter at breast height), that is463removed shall be replaced with a combination of trees that is equal or greater than464twenty-four (24) inches DBH.465In this example, acceptable combinations for replacement of twenty-four-inch DBH tree466could include:467eight three-inch caliper trees, OR ten 2 1/2-inch caliper trees, OR twelve two-inch caliper468trees.469

470(g.) The Tree Warden shall determine a dollar value for the replacement by471determining the nursery price of the replacement trees in the upcoming planting season as472described in (e) above plus the cost of delivery, planting, 5 years maintenance and 5 years473guarantee based on quotes for such services by a landscape or tree contractor. Said474contractor shall meet the city’s qualifications for contracted service providers and shall475plant trees in accordance with the city’s written specifications. The removing party shall476bear the costs of removal and disposal of the removed tree, the grinding of the stump and477sidewalk/landscape repairs.478

479(h.) Public street, lawn or park shrubs which are removed, damaged or destroyed shall480be replaced with a City approved shrub species of similar value and equal spread or481height. The shrubs shall be replaced at no cost to the City.482

483(i.) All trees and shrubs planted on public lands shall conform to the botanical names484and standards of size, culture and quality adopted by the American Association of485Nurserymen, Inc. in the American Standard for Nursery Stock. See Appendix I.486

487Sec. 12-190. Protected trees.488No tree or shrub on public land within the City may be removed without the prior written489approval of the Tree Commission.490

491Because of its impact on abutters, no tree greater than 8" DBH within the 10-foot set-492back from any property line may be removed without the prior written approval of the493Tree Commission, nor may its root system be damaged in such a way as to harm the494health of the tree.495

496Sec. 12-191. Building and development. (See also Appendix II)497(a.) In the interest of promoting a healthy environment and setting forth standards498consistent with section 12-171, minimum standards for development are set forth below499in Appendix II.500These standards will be applied and enforced by appropriate city officials, including, the501Tree Commission, the Planning Department, Planning Board, Building Inspector, Zoning502Board of Appeals and Conservation Commission.503

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(b.) The Tree Commission shall be consulted as early as possible in the development505approval process by the relevant City Boards, Commissions, and Officers. It is the506obligation of the owner / builder / developer / agent to positively verify that trees to be507trimmed or removed are not growing within the existing or proposed public right-of-way.508All trees which meet the standard of Protected and Significant Trees as set forth in this509ordinance must be protected, unless otherwise approved by the Tree Commission. No510property may be developed or built upon until an application for a building permit has511been filed which includes a detailed Tree Plan and Mitigation Plan approved by the Tree512Commission (as defined in sec. 12-172 above). Commission513

514(c.) No occupancy permit may be issued until the terms and conditions of the515property’s tree plan have been fulfilled and reviewed and approved by the Tree516Commission.517

518(d.) Significant Tree Replacement and Bonding. If Significant and/or Protected Trees519are to be removed from a lot in connection with the development of a project subject to520the provisions of this Ordinance, the owner / builder / developer or agent of lot shall file a521Tree Plan and a Mitigation Plan approved by the Tree Commission (see sec 12-172522above). In addition, the owner of the lot shall, prior to the issuance of a building permit,523post and file a bond with the City Clerk in the amount of the total costs set forth in the524Tree and Mitigation Plans, but in no event less than five thousand dollars ($5,000), with525one or more sureties conditioned to the faithful observance of the terms and conditions of526the Tree Plan, and, if applicable, the Mitigation Plan.527

528(e.) Protection of Existing Trees. Apart from the actual felling of trees on building529sites, other less obvious factors can cause the loss of existing trees including: compaction530of soil particularly by machinery; lowering of the water table due to new hard surfacing;531drainage systems; the onset of disease following bad pruning or physical damage, and532root damage sustained when utilities, road or foundations are laid. Death from these533causes is often not immediate (in the case of semi or near mature trees they may die534gradually over a number of years) and the loss of these can be avoided by discussion535prior to planning application, change of layout and by adhering to the Code of Practice536set out in Appendix II.537

538Sec. 12-192. Emergencies and Exemptions.539Provisions of this ordinance shall not apply to:540

A. Emergency projects necessary for public safety, health and welfare, as541determined by the Tree Commission, the Tree Warden, the Director of Public Services, or542Mayor.543

B. Trees that are hazardous as determined in writing by the Tree Warden.544C. Invasive tree species as identified in the list of Approved and Disapproved545

Trees.546D. Trees identified by the Tree Warden or by the Commonwealth as posing a risk547

of disease or insect infestation.548F. Utility emergencies. The utility company or tree contractor shall notify the Tree549

Warden of the emergency within two business days. In major emergencies, the utility550

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shall notify the Tree Warden as soon as possible after the emergency but not more than55130 days from the date of the event.552

553Sec. 12-193. Enforcement and penalties. (Refer also to the General Laws of554Massachusetts Chapter 242. Section 7 Willful trespass to trees, etc.; damages – regarding555the assessment of single and triple damages.)556

557(a.) Notice of Violations558Any person who violates any provisions of this Ordinance shall be notified by the City559Tree Warden / Arborist of the specific violation by certified or registered mail, return560receipt requested, or by hand delivery. The notice shall set forth the nature of the561violation and a reasonable time period within which compliance must be had.562

563(b.) Stop Work Order564

565(b-1) The Tree Warden may cancel a Tree Work Permit or issue stop work orders without566notice.567

568(b-2) Upon notice from the City Tree Warden, Warden’s Deputy/Arborist, or Warden’s569Tree Commission Designee that work on any lot on which a Significant Tree is located is570being performed contrary to any applicable Mitigation Plan or Tree Protection Plan or571any provision of this Ordinance, such work shall immediately be stopped by the572Department of Inspectional Services. The stop work order with notice shall be in573writing, and shall be given to the owner of the lot involved, or to the owner’s agent, or to574the person doing the work, and shall state the conditions under which work shall be575permitted to resume. For the purpose of this ordinance, notice shall be given by hand or576registered mail.577

578(b-3) Any person who shall continue any work in or about said lot having been served a579stop work order, except such work as that person is directed to perform to remove a580violation or unsafe condition, shall be liable to a fine of not more than $1,000 per each581offense. Each act causing damage to a separate tree shall constitute a separate offence.582Each day during which a violation exists shall constitute a separate offense.583

584(c.) Injunctive Relief585Whenever there exists a reasonable cause to believe that a person is violating any586applicable Mitigation Plan or Tree Protection Plan or any provisions of this Ordinance,587the City may institute a civil action for a mandatory or prohibiting injunction in a court of588competent jurisdiction ordering the defendant to correct the unlawful condition upon or589cease the unlawful use of property.590

591(d.) Failure to Replace Trees or Make Payment592Each failure to replace a Significant Tree or make a payment into the Tree Fund or to593post and maintain a bond in accordance with this ordinance shall constitute a separate594violation of this ordinance for which there shall be a fine in the amount of $500. Each595day such a violation continues shall constitute a separate offense.596

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597(e.) Penalties for Other Offenses598Unless otherwise specified in this ordinance, a private individual, corporation, public599utility company or contractor violating provisions of this article shall be fined not more600than five hundred dollars ($500.00) for each offense, except when the offense results in601removal, death or irreparable damage of the tree or shrub as determined by the Tree602Warden. Each act causing damage to a separate tree shall constitute a separate offence. A603separate offense shall be deemed committed for each day a violation occurs or continues604occur.605

606(f.) In addition, when offense(s) result in removal, death or irreparable damage of a607tree or shrub, as determined by the Tree Warden, the responsible party shall incur the cost608of removal and replacement as stated in section 12-189, in addition to the fine.609

610Sec. 12-194. Severability.611If any provision of this ordinance is held invalid by a court of competent jurisdiction, the612remainder of the chapter shall not be affected thereby. The invalidity of any section or613sections or parts of any section or sections of this ordinance shall not affect the validity of614the remaining sections or parts of sections or the other ordinances of the City of615Newburyport.616

617End of the main sections of the Ordinance618

619620621622623

The follow pages are appendices to the Ordinance …624625

Appendix I-A – Approved Street Trees626Appendix I- B – Prohibited Street Trees627Appendix II - Code of Practice for builders/developers/agents628

629630

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631APPENDIX I:632NOTE: Examples of the current approved tree lists are shown below. In practice, the633following lists will be replaced or amended with updated lists on an annual634basis. The value of including this initial in the body of the ordinance is a point635of discussion.636

637

638APPENDIX IA: City of Newburyport List of Acceptable Trees (As of May, 2007)639

640Small Trees - Mature height: Under thirty (30) feet641Insert table list here642TABLE INSET:643Common Name Botanical NameAmur Maple Acer ginnalaPaperbark Acer griseumServiceberry Amelanchier canadensisAllegheny Shadbush Amelanchier laevisAmerican Hophornbeam Carpinus carolinianaChinese Fringetree Chionanthus retususKousa Dogwood Cirnus kousaCornelian Cherry Cornus masThornless Hawthorn Species Crataegus speciesCarolina silverbell Halesia carolinaAnur Maackia Maackia amurensisCrabapple species Malus speciesStar Magnolia Magnolia stellataSweetbay Magnolia Magnolia virginianaPersian Parrotia Parrotia persicaSargent Cherry Prunus sargentiHally Jaliovette Cherry Prunus subhirtella 'Hally Jaliovette'Japanese Stewardia Stewardia camelliaJapanese Tree Lilac Syringa reticulataJapanese Snowbell Styrax japonicaEastern Redbud Cercis canadensis

644645646647648649650651652

Continued on next page: Medium Trees653

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Medium Trees - Mature height: Thirty (30) to fifty (50) feet654TABLE INSET:655Common Name Botanical Name

Acer campestreAlnus glutinosaBetula nigra 'Heritage'Cladrastus luteaCorylus colurnaFraxinus pennsylvanicaGleditisia tricanthos inermis 'Sunbu'Koelreuteria paniculataMagnolia x loebneriPhellodendron amurenseQuercus acutissimaSorbus alnifoliaSophora japonica 'Regent'Tilia cordata 'Greenspire'

656Tall Trees - Mature height: More than fifty (50) feet657TABLE INSET:658Common Name Botanical NameRed Maple Acer rubrumSycamore Maple Acer pseudoplatanusHorsechestnut Aesculus hippocastanumBottlebrush Buckeye Aesculus parvifloraHackberry Celtis occidentalisKatsura Tree Cercidiphyllum japonicumGinkgo (male only) Ginko bilobaShademaster Honeylocust Gleditsia tricanthos inermis 'Shademaster'Moraine Honeylocust Gleditsia tricanthos inermis 'Moraine'Skyline Honeylocust Gleditsia tricanthos inermis 'Skyline'Kentucky Coffee Tree Gymnocladus dioicusDawn Redwood Metasequoia glyptostroboidesBlack Tupelo Nyssa salvaticaChanticleer Callery Pear Pyrus calleryana 'Chanticleer'Pin Oak Quercus palustrisRed Oak Quercus rubraLacebark Elm Ulmus parvifoliaGreen Vase Zelkova Zelkova serrata 'Green Vase'Village Green Zelkova Zelkova serrata 'village green'

659660661662

Continued on the next page: Prohibited Trees663

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Appendix IB: City of Newburyport List of NOT acceptable trees (As of May, 2007)664665

A list of trees that are unacceptable for planting will also be developed and maintained666current by the Tree Warden.667(Ord. of 6-11-01(1), § 4)668

669Next page: Appendix II Code of Practice670

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APPENDIX II. Code of Practice for builders/developers/agents671

1. Trees to be retained672

Prior to starting work on the site, it is essential that the site contractors be fully briefed by673the Tree Warden or the Tree Warden’s designee on the actions needed to retain and674protect trees, before the commencement of site works, including posting of a copy of the675attached "Protection Notice". This Protection Notice will be prominently displayed on676the site, next to the Building Permit, and will be available for public inspection.677

T r e e P r o t e c t i o n N o t i c e678

The Tree Protection Notice shall include, but not be limited to, the following basic679information:680

• Name of the enforcing authority;681

• Parameters of the tree protection zone;682

• Information/diagram describing/showing which trees are protected;683

• Rules for activities in the tree protection zone;684

• List of names and contact numbers of Tree Warden and two participating Tree685Committee members; may include contact information of other relevant parties;686

• Indication of fines and penalties for violation of the zone, etc. 687

There shall be a meeting with the contractors prior to construction. 688

They and the Tree Warden will sign the notice. The heads of other Departments or689Commissions may sign it.690

691Waterproof copies of the notice shall be attached to each tree that is to be protected on692the site. The Notice shall remain on display for the duration of the project. The Notices693shall be kept in easily readable condition. Damaged or lost Notices shall be replaced with694exact copies as needed.695

The Tree Warden and the Building Inspector shall monitor the display of the Protection696Notice and adherence to the conditions set forth in the Notice. They shall make697replacements as needed.698

2. Fencing of trees. See Fig. 1 and 2 below.699

a. Before the commencement of site works, trees which are to be retained must be700protected by a 4-foot high fence. Fencing shall be stout and solid, of a standard to701withstand impacts of construction equipment and storage piles and debris.702

b. Around trees above 18 inches in diameter, measured 3 feet above ground level,703an area enclosing a radius of not less than 12 feet around the tree;704

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c. Around trees below 18 inches in diameter, measured 3 feet above ground level, an705area enclosing a radius of not less than 6 feet around the tree.706

d. Around an area incorporating a group of trees or shrubs, along a line707approximately under the outer perimeter of the branch spread, but not less than six708feet from the stem in the case of shrubs.709

3. Change of Ground Level See Fig. 3 below.710

Changing the ground level around established trees can be extremely damaging, and shall711be avoided. When grade changes are inevitable, specialist design advice shall be sought712before any work is undertaken. The advice must be in writing and available for review by713the Tree Commission.714

4. Underground Services715

Wherever possible all underground services shall be located outside the normal root areas716of any trees and placed in a common trench. Deep trenches and loss of large roots over7171.5 inches in diameter on one or both sides of a tree will affect its stability. To avoid root718damage, excavations shall not occur within the major root system of any tree which will719be part of the final site plan. Whenever possible, connection of essential site services to720existing mains shall be undertaken away from trees.721

5. Site Trailer Location See Fig. 4 and 5 below.722

Site trailers, huts, temporary buildings or portable toilet stations shall be kept away from723trees. Where this is not possible they shall be raised on blocks, allowing air and water to724safely percolate the covered soil and sustain the underlying tree roots.725

6. Heavy Equipment Routes See Fig. 7 below.726

The goal throughout is to avoid compaction of soil, and allow the tree to receive adequate727nutrients, including water through its feeder roots. Compaction leads to the death of728trees. Heavy equipment shall, wherever possible, be restricted to routes away from trees.729Where movement among trees is essential, obtrusive branches shall be tied back before730damage occurs. Vulnerable trunks shall be corsetted with a protective system (e.g.:731wooden two-by-fours ten feet long) which guards the bark of the tree trunk at a level732where damage from equipment might occur. This is in addition to fencing around the733outer perimeter of the tree, which has been installed to protect the root system. Care shall734be taken not to create gouges from tire or skid treads in the earth near trees.735

7. Cement and Asphalt Disposal736

Cement mixers shall be sited away from trees. Residual cement, asphalt spoil, and/or the737equivalent excess shall be tipped on the sites of paths and paving areas etc., to avoid738

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creating the thick, impermeable layer from accumulating beneath mixers which would739deprive roots beneath them of essential water and air and compact the soil.740

8. Storage of Soil and Gravel741

Excavated and replacement soil and gravel shall not be piled against tree trunks as this742may cause death of areas of bark by keeping them permanently moist. Such materials743shall be piled outside the fenced area, so as to not compact the soil, and to allow access744for the tree to receive adequate rainwater.745

9. Storage of Heavy Objects746

Heavy objects shall not lean against trees as this may cause undue strain to be placed on747the roots thereby affecting the stability of the trees at a later date.748

10. Storage of Building Materials749

Building materials shall not be stacked against or near trees as this may bruise or crush750areas of bark allowing decay to enter and their dead weight may destroy the soil751structures by compaction. Materials shall not be tipped near trees.752

11. Bonfires See Fig. 6 below.753

Any bonfires shall be sited at least 10 feet from the branch tips of any tree and always on754the leeward side of the tree as scorched leaves and branches may initiate insect or fungal755attack and damage to the lower trunk may cause root death. See Fig. 6 below.756

12. Treatment of Liquids See Fig. 4 below.757

Liquids such as paint, oil, fuel, acids and cleaning fluids shall not be allowed to spill near758trees. Their containers shall not be discharged beneath trees as this may kill surface759roots and cause fire risks or danger to children at a later date.760

13. Clean up of brush and wood. Stump clearance.761

See also Sec. 12-187 Removal of tree stumps.762

All wood disposal is the responsibilty of the utility or the contractor, except when763specific direction is given by the Department of Public Works or the Conservation764Commission to deliver to an in-town location.765

14. Weedkillers See Fig. 7 below.766

Areas of ungraded weedy ground may look untidy and it may be necessary to remove767weeds before handing the development over to the occupiers. The easiest and most768effective way of doing this may by means of herbicides. Fortunately, several types of769

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herbicide can be used which are unlikely to affect any trees present, but total weedkillers770such as sodium chlorate, which are very mobile in the soil must be avoided as these may771kill even large trees as well as the weeds. Judicious use of a weedkilling compound772similar to and including Roundup (brand name) are acceptable.773

15. Fences and Walls774

At least 2 feet (two feet) shall be left between new fences and walls and any trees to775allow for basal swelling of the tree.776

16. Trees in Paved Areas777

Where trees are to be retained or planted within paved areas, adequate provision must be778made for water to reach the feeder roots, i.e. an appropriate size surround of open soil or779mulch. 780

17. Trees in Parking Lots781The city will require a developer / builder to provide a Tree Planting Plan for all parking782lots which are reviewed by the Zoning Board of Appeals. The Tree Commission must783approve the Tree Planting Plan, which must provide adequate ratio of trees to parking784spaces.785

78618. Mulch787A tree’s roots need access to air and water. Excess mulching can damage a tree. More788than 2” – 4” of mulch can damage the root system. In particular, it is important to avoid789“tree volcanoes” which involve piling large amounts of mulch in a dome-like formation790against a tree trunk. A area of at least 6” of soil shall be left between the trunk of a tree791and the location of mulch. Wood chip mulch is recommended, rather than bark mulch.792

793