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Tree Ordinance Guidelines
Basic ordinance provisions
(Provisions 1-15)
Basic Ordinance Provisions are typically found in most ordinances, regardless
of their purpose. Most of these are basic structural elements necessary for an
ordinance to function. You should review all of these basic provisions to determine
which should be incorporated into your tree ordinance. The minimum provisions
listed in table below should be included in virtually any tree ordinance. In deciding
whether to include other basic provisions, you should consider whether they would
be appropriate and useful in your community. Municipal legal staff should also
be consulted for an opinion on the legal ramifications of including or omitting
any of these basic provisions.
1. Title
Purpose: To give the ordinance a brief descriptive title.
| This ordinance shall be known as the San Francisco
Urban Forestry Ordinance.
[San Francisco, CA: Public Works
Code Article 16 Section 800]
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2. Findings
Purpose: To set forth the reasons the local government finds it
necessary to adopt an ordinance.
Notes: This section is frequently used to present a list of benefits
provided by trees and justify the local government's interest in protecting
the tree resource. Findings from the evaluation of "what
you have" might also be included in this section.
| Information obtained from a City survey of
trees indicated a decline in the number of certain species of trees located
on private property.
[Carmel-by-the-Sea, CA: Ordinance
No. 89-18]
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3. Purpose and intent
>Purpose: To set forth the goals to be achieved through the ordinance.
Notes: In this section, you should clearly state the goals you hope
to achieve by enacting the ordinance. It is useful to establish goals which
are quantifiable in some way. However, this approach has not been taken in most
existing ordinances. The example text is derived from the goals discussed in
Part 1.
This ordinance establishes policies,
regulations, and standards necessary to ensure that the city will continue
to realize the benefits provided by its urban forest. The provisions of
this ordinance are enacted to:
A. Establish and maintain the maximum
sustainable amount of tree cover on public and private lands in the city;
B. Maintain city trees in a healthy and nonhazardous
condition through good arboricultural practices;
C. Establish and maintain appropriate diversity
in tree species and age classes to provide a stable and sustainable urban
forest.
[Example code by the authors]
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4. Definitions
Purpose: To define key words which are to be used in the ordinance.
Notes: It should become clear which terms require a definition
as the ordinance is drafted. Communities have found it necessary to define
what they mean by such words as "tree", "street tree", "prune", "Director",
"damage", "parkway" and many others. Sometimes a useful technique, illustrated
in the example text, is to include in the definition what is not covered
by the term.
| For the purposes of this chapter, the following
words and phrases shall have the meanings respectively ascribed to them
by this section: "Alter" means to take action by cutting or pruning any
tree, or by filling, surfacing, grading, compacting or changing the drainage
pattern of the soil around any tree in a manner that threatens to diminish
the vigor of the tree; provided that, as used in this chapter, the term
"alter" does not include: 1. Normal seasonal trimming, shaping, thinning
or pruning of a tree necessary to its health and growth;...
[Fairfax, CA: Town Code Section
8.28.020]
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5. Determination of definitions
Purpose: To establish an authority responsible for interpreting
definitions.
Notes: The application of many provisions may hinge on the definitions
of key terms. This provision reduces the chance that ordinance enforcement
could be challenged on the basis of specific definitions.
| In any case, the city forester shall have
the right to determine whether any specific woody plant shall be considered
a tree or a shrub. Such determination shall be final and not subject to
appeal.
[Carmel-By-The-Sea, CA: City Code
Section 12.28.040]
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6. Jurisdiction
Purpose: To set forth the jurisdiction of the local government over
certain groups or classes of trees.
Notes: The example is typical of street tree ordinances. Some
cities claim jurisdiction over trees on private property under certain
situations as well.
| The City of Carpinteria shall have control
of all street trees, shrubs, and other plantings now or hereafter in any
street, park, public right-of-way or easement, or other public place within
the City limits, and shall have the power to plant, care for, maintain,
remove, and replace such trees, shrubs and other plantings.
[Carpinteria, CA: City Code Section
12.28.020]
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7. Policies regarding trees
Purpose: To set guidelines for carrying out ordinance provisions.
Notes: Whereas a goal is a statement of what you hope to achieve,
a policy sets forth guiding principles to be followed in trying to achieve
the goals. Stated policies may be helpful in interpreting and implementing
ordinance provisions.
It shall be the policy of the City to maximize
the planting of trees alongside the streets of the city...
[Alhambra, CA: City Code Section
14.08.004B]
C. It is the policy of the city to line its streets
with trees and to conduct a consistent and adequate program for maintaining
and preserving these trees... D.
It is the policy of the city to encourage new tree planting on public and
private property and to cultivate a flourishing urban forest.
[San Luis Obispo, CA: City Code
Section 12.24.010]
Street tree plantings shall first be considered
from the standpoint of the people using or passing along the streets and
in terms of the broader community benefit. Of secondary consideration is
the benefit, embellishment, or enhancement of the properties abutting the
street.
[Carpinteria, CA: City Code Section
12.28.070]
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8. Local government
disclaims liability
Purpose: To avoid accepting liability for any personal injury or
property damage caused by trees on private property.
Notes: Legal counsel should be consulted for an expert opinion
on the drafting and validity of such clauses. A provision of this nature
is usually included if a local government claims the authority to abate
hazardous trees or regulate tree pruning and removal on private property.
The first example is typical of a provision used in a street tree ordinance.
| Nothing contained in this section shall be
deemed to impose any liability upon the city, its officers or employees,
nor to relieve the owner of any private property from the duty to keep
any tree, shrub or plant upon any street tree area on his property or under
his control in such condition as to prevent it from constituting a hazard
or an impediment to travel or vision upon any street, park, pleasure ground,
boulevard, alley or public place within the city.
[Patterson, CA: City Code Section
12.13.160]
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The second example is found in an ordinance that regulates the removal
of protected trees (native oaks) on private property.
| Nothing in this ordinance or within the Oak
Tree Preservation and Protection Guidelines shall be deemed to impose any
liability for damages or a duty of care and maintenance upon the City or
upon any of its officers or employees. The person in possession of public
property or the owner of any private property shall have a duty to keep
the oak trees upon the property and under their control in a safe, healthy
condition. Except as provided in Section 5-14.04(b), any person who feels
a tree located on property possessed, owned or controlled by them is a
danger to the safety of themselves, others or structural improvements on-site
or off-site shall have an obligation to secure the area around the tree
or support the tree, as appropriate to safeguard both persons and improvements
from harm.
[Thousand Oaks, CA: City Code Section
5-14.07]
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9. Interference
with planting, maintenance, and removal unlawful
Purpose: To prohibit interference with persons involved in tree-related
activities who are acting in their official capacity on behalf of the local
government.
Notes: This provision may be unnecessary if other portions of
code restrict interference with public employees acting in their official
capacities.
| No person, firm or corporation shall interfere
with the director of public works or persons acting under his authority
while engaged in planting, mulching, pruning, ..., or removing any tree,
shrub or plant in any street, ..., or public place within the city ...
[Bakersfield, CA: City Code Section
12.40.070]
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10. Appeals
Purpose: To establish a procedure whereby decisions of the tree
program manager can be appealed.
Key elements:
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Types of decisions subject to appeal
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Procedure for filing appeals
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Time limitations for appeals and responses to appeals
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Requirement to suspend actions during the appeal process
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Hierarchical sequence of appeals
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Rules governing the hearing process, unless provided for elsewhere
Notes: The appeal process provides a check against the authority
of the tree program manager. However, it is important that decisions by
appeal bodies be based on the ordinance and established policies rather
than political pressure.
| Any action of the director of recreation and
parks may be appealed to and heard by the recreation and parks commission.
To be effective, an appeal must be filed within ten (10) days after the
decision of the director. The appeal shall be in writing and shall be filed
with the director for placement on the commission's agenda. The appeal
shall clearly specify the reasons for which a hearing is requested. After
a hearing, the recreation and parks commission shall render its decision,
which shall be final unless appealed to the city council. To be effective,
an appeal to the city council must be in writing, state the reasons for
the appeal, and must be filed with the city clerk within ten (10) days
after notice of the decision of the recreation and parks commission is
mailed to the applicant. The decision of the city council shall be final.
[Santa Maria, CA: City Code Section
27-13]
...Such hearing on appeal shall be de
novo, and the appeals board shall be guided by the criteria and standards,
and shall make findings in relation thereto, as are required for the issuance
of a permit in the first instance...
[Paradise, CA: Municipal Code Section
8.12.110B]
...Action under any permit, the issuance
of which has been appealed, shall be suspended pending final decision of
the city council on the appeal...
[Newark, CA: City Code Section 8.16.060]
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11. Penalty for violation
Purpose: To establish penalties for violating provisions of the
ordinance.
Key elements:
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Legal categorization of violations
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Specific penalties, if not provided for elsewhere
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Legal means for stopping and correcting situations which constitute violations
Notes: Depending on the nature and complexity of the tree ordinance,
penalties for violations may be listed in a single provision or in several different
parts of the ordinance, and the penalties may be simple or complex. A simple
tree ordinance may address one issue (e.g., protection of trees in the public
right of way), so one simple penalty provision may suffice.
(a) Violation of any section of this chapter
shall be a basis for injunctive relief.
(b) Violation of any section of this chapter
shall be an infraction.
[Santa Maria, CA: City Code Section
27-15]
Any person, partnership, firm, corporation,
or other legal entity who violates any provision of this chapter is guilty
of a misdemeanor punishable by a fine of not more than one thousand dollars,
or by imprisonment in the county jail for a period not exceeding six months,
or both such fine and imprisonment. All such violations which are of a
continuing nature shall constitute a separate offense for each day of such
continuance. Any violation of this chapter shall also constitute a public
nuisance and may be enjoined and abated as provided by law.
[Corte Madera, CA: City Code Section
15.50.080]
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A more comprehensive tree ordinance may address a wide variety
of issues, including the care of public trees, protection of designated trees
or forest resources on private property, and planting requirements for new
developments. Different types of penalties may therefore be appropriate for
violations of different sections of the ordinance. In such cases, the penalty
provision may either list all of the penalties that may apply to violations
of various provisions, or may state the basic penalties and indicate that
additional penalties may be listed under specific provisions.
The following penalty provision example from a tree protection
ordinance includes references to replacement standards listed elsewhere in
the ordinance.
| PENALTIES: Any Person who neglects or refuses
to comply with, or assists in the violation of, any of the provisions
of this Chapter, or any order, permit, or notice issued pursuant thereto,
shall be fined not more than $500 for each such violation and shall pay
in addition the cost of replacement as provided in this Section. Each
day any such violation continues shall constitute a separate offense,
and each Tree Removed or Damaged shall also constitute a separate offense.
Any Person who causes a Tree to be Removed or Damaged in violation of
this Chapter, or any order, permit, or notice issued pursuant thereto,
shall repair or replace any such Tree at the violator's sole cost and
expense pursuant to the Tree replacement requirements set forth in Subsection
10-11-4E of this Chapter. The cost of replacement shall be $100 for each
DBH inch of the Removed or Damaged Tree. If the precise DBH cannot be
determined, the cost of replacement shall be determined by the Village
Forester based on the Village Forester's estimate of the DBH of the Removed
or Damaged Tree. The replacement cost shall be paid to the Village by
the Person responsible for the violation. The location, species, and planting
specification for replacement Trees shall be approved prior to replanting
by the Village Forester pursuant to the requirements of Subsection 10-11-4E
of this Chapter.
[Lake Bluff, IL: Village Code Section
10-11-16]
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In general, penalties need to be sufficient to provide deterrent
value. Minor fines or inconsequential penalties may simply be accepted as
the "cost of doing business" and may not provide any real deterrent
value. The withholding of permit approvals needed to complete construction
or conduct business may provide meaningful deterrent value until a project
is completed, but have little deterrent value if violations are discovered
after project completion. The following example includes the possibility of
revoking approvals or permits. If this remedy was used, it would potentially
provide a means for extending the deterrent value of the penalties beyond
the date of project completion.
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Withholding or revocation of city permits.
Failure of any party to follow the procedures as required by this
section shall constitute grounds for withholding or revoking site
plan approval, building permits, occupancy permits or any other appropriate
approvals necessary to continue development. Such extraordinary
sanctions, however, shall be instituted immediately upon the direction
of the city manager and with the ratification of the city commission
at its next regular or special meeting. This ratification shall
be considered a public hearing at which all interested parties shall
have notice and an opportunity to be heard and to be represented by
legal counsel.
[Coral Springs, FL: City Code
Section 212.N.2]
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The following example provides an alternative approach to withholding
permit approvals beyond the time that a project is completed. This approach
would be of value only for developers or landowners that are likely to initiate
other projects within the city.
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The owner or occupant of any property on which
a violation of the provisions of this Chapter was committed, if such
violation was committed by the owner or a lawful occupant thereof, or
committed with the permission or approval of either such person, shall
be denied, for a period of two years from the date of the City's discovery
of such violation, any approval or permit issued by the City for the
development or further improvement of such property. Prohibited approvals
or permits shall include, but not be limited to, conditional use permits,
variances, and building or demolition permits. The provisions of this
Chapter shall not apply to any approval or permit which is needed or
required to maintain the health or safety of those occupying existing
improvements on the property.
[Santa Rosa, CA: draft ordinance]
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In Maryland, operating a tree care businesses without a state license is designated
as a "must appear" offense, i.e., the perpetrator must appear in court
and cannot simply send in the fine. This additional burden presumably increases
the deterrent value of the penalty. The following example lists a set of specific
remedies required for violation of provisions prohibiting "tree abuse",
which includes topping and a number of other destructive practices (see provision
23). The required remedies generally seek to undo or mitigate the damage
caused by the violation, rather than simply penalizing the violator. It also
sets a time limit for the completion of remedial actions.
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Remedial actions required.
(1) In the event a person abuses a tree in violation of this section,
the violator, in addition to being subject to the penalties found in
section 1-15 of the City Code, shall be responsible to undertake pruning
and other remedial actions that the city determines are reasonably necessary
to protect public safety and property, and to help the tree survive
the tree abuse damage.
(2) If the natural habit of growth
of the tree is destroyed, the violator shall remove the abused tree
and install a replacement tree.
(3)Tree replacement criteria shall be consistent with that established
in section 16-172(f).
(4)Replacement trees shall be installed on-site. In the event the site
cannot accommodate all required replacement trees, the remaining replacement
trees shall be installed on public lands if approved by the city. If
no suitable public lands are located, the violator shall pay a replacement
contribution into the reforestation account. The replacement contribution
will be determined using a schedule for current value of replacement
trees plus installation and maintenance as established by the city.
(5)Remedial actions and replacement required under this section shall
be completed within sixty (60) days of notice from the city that such
actions are required. The city may require the violator to immediately
undertake remedial actions in the event the abused tree is an immediate
threat to the public or property.
[Sunrise, FL: City Code Section
16-173c]
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The responsibility for enforcement of the ordinance should be designated as
described in provisions 12 (Enforcement) and/or
15 (Designate administrative
responsibilities).
12. Enforcement
Purpose: To designate the position responsible for enforcing the
ordinance.
Notes: The authority designated to enforce the ordinance should
always be indicated. However, a separate enforcement provision may not
be necessary if the responsibility for ordinance enforcement is specified
under provision 15 (Designate
administrative responsibilities). It is normally preferable to vest
enforcement authority with the tree program manager.
| The Public Works Administrator is hereby charged
with the responsibility for the enforcement of this ordinance and may serve
notice to any person in violation thereof or institute legal proceedings
as may be required, and the City Attorney is hereby authorized to institute
appropriate proceedings to that end.
[Lemoore, CA: Ordinance 8610 Section
10-1.12]
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13.
Performance evaluation of ordinance
Purpose: To provide for evaluation of the success of ordinance provisions.
Key elements:
Notes: Perfection is seldom achieved on the first attempt. As noted
in Part 1, the management planning process is incomplete without review,
evaluation, and revision. One way to ensure that evaluation does occur
is by including a provision that mandates a periodic performance evaluation
of the ordinance. In addition to evaluation, this provision should establish
a mechanism for revision of the ordinance if goals are not being achieved.
When we wrote the original Guidelines in 1991, we provided the
following example because we could not find examples of this type of provision
in use:
| The tree program manager shall collect and
maintain all records and data necessary to objectively evaluate whether
progress is being made toward the stated goals of this ordinance. An annual
summary and analysis of the evaluation, and recommendations for action
shall be prepared at the direction of the tree program manager and presented
to the City Council. The City Council shall consider the report and recommendations
and take all actions deemed necessary to accomplish the goals of this ordinance.
These actions may include, but are not limited to, revision or amendment
of this ordinance or the adoption of other resolutions or ordinances.
[Example code by the authors]
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The following code shows how the above example was adapted by one community
in their tree ordinance:
| The director or his/her designee shall collect
and maintain all records and data necessary to objectively evaluate whether
progress is being made toward the intent, purpose and objectives of this
chapter. The director shall prepare an annual report. The park board shall
consider the report recommendations and take all necessary action to accomplish
the goals and objectives of this chapter.
[Everett, WA: Municipal code 8.40.050
(Ord. 1948-93 § 5, 1993) ]
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Complex tree management issues, such as those dealing with the
conservation of existing tree and forest resources (see provision 31
and 32),
clearly require close monitoring. The outcome of tree and woodland conservation
provisions must be monitored on an ongoing basis to determine whether the
strategies used have been successful. In addition, monitoring data is needed
to show how the resource changes over time and whether new issues have arisen
since the original implementation of the ordinance. The following example
code is part of the Maryland Forest Conservation Act, which is discussed in
detail under provision
32.
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Annual report. On or before
July 1 of each year, the Department shall submit... a statewide report,
compiled from local authorities' reports to the Department, on:
(1) The number, location, and
type of projects subject to the provisions of this subtitle;
(2) The amount and location of
acres cleared, conserved, and planted, including any areas which utilize
forest mitigation bank credits, in connection with a development project;
(3) The amount of reforestation
and afforestation fees and noncompliance penalties collected and expended;
(4) The costs of implementing
the forest conservation program; and
(5) The size, location, and protection
of any local forest mitigation banks which are created under a local
or State program.
[Annotated Code of Maryland Sec
5-1613]
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14. Severability
Purpose: To prevent the whole ordinance from becoming invalid if
any part of it is declared invalid by the courts.
Notes: This provision is included in many ordinances as a matter
of course. It is probably unnecessary to include in very short ordinances.
| Should any part or provision of this ordinance
be declared by a court of competent jurisdiction to be invalid, the same
shall not affect the validity of the ordinance as a whole or any part thereof
other than the part held to be invalid.
[Atherton, CA: Ordinance 444 Section
7]
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15. Designate
administrative responsibilities
Purpose: To assign responsibility and authority for implementation
and enforcement of the ordinance.
Key elements:
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Position(s) responsible for implementing provisions of the ordinance
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Responsibilities assigned to each position
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Confirmation of authority necessary to carry out specified duties
Notes: A provision to designate responsibility for ordinance implementation
is a basic requirement of any tree ordinance. This provision can also be
used to help accomplish any of the specific urban forestry management goals,
since it assigns the responsibility and authority for management activities.
Although it is preferable to centralize tree management under the tree
program manager, other municipal departments or a citizen tree advisory
board may have complementary responsibilities. Listing the responsibilities
of all parties involved in the tree management program in one section makes
it easier to avoid conflicting or overlapping responsibilities.
Tree program manager. As the lead position for the management
of municipal tree resources, the tree program manager should be vested
with the authority necessary to carry out his or her many responsibilities.
The actual list of responsibilities will vary with each community, but
may include:
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developing and updating the comprehensive management plan;
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implementing a monitoring program to evaluate whether goals are being met;
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directing municipal tree care operations, including planting, maintenance,
and removal;
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preparing the municipal tree care budget;
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seeking funding from state, federal, or other granting agencies;
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evaluating and approving permits for activities that may affect trees;
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conducting community outreach and education programs;
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enforcing ordinance provisions.
The tree program manager should have the expertise necessary to carry out
the many complex duties of the position. Minimum qualifications for this
position can also be specified in this section.
In the first example, the Director of Public Works serves as the community
forester. In this example, responsibility may exceed authority to some
degree.
The director of public works shall, by use
of city employees or private contractors, plant, maintain and otherwise
care for, or if necessary remove trees in any public place in the city.
The responsibilities of the director of public works shall include but
not be limited to, the following:
1. Prepare an annual program for tree
planting and tree care in public places of the City;
2. Recommend to the board of directors changes
or additions to the Master Street Tree Plan;
3. Develop maintenance standards as they relate
to street trees in public places;
4. Inspect the planting, maintenance and removal
of all trees in public places;
5. Make determination of tree removals in
public places;
6. Review all landscaping plans as they affect
trees in public places; and
7. Act as advisor to the Design Committee
of the City.
[Pasadena, CA: Ordinance 5454 Chapter
8.52.030]
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A more specific link between responsibility and authority is seen in the
second example.
The Director of Planning and Community Development,
under the general supervision of the City Manager, shall have the authority
and responsibility to do the following:
1. Administer and enforce the provisions
of this Chapter...
[Ceres, CA: Municipal Code Section
12.16.100]
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In the third example, responsibilities for monitoring and reporting on
the tree program are clearly stated.
| The Park Superintendent shall prepare and
maintain all necessary maps, plans, and records relating to the various
functions carried on under this chapter.
The Park Superintendent shall report to the
Council annually on the work and activities carried on under the provisions
of this Chapter...
[San Buenaventura, CA: City Code
Section 8413]
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The example provision below expressly gives the tree program manager the
authority to promulgate the additional rules and regulations necessary
to implement the tree ordinance. This provides flexibility and helps avoid
burdening the tree ordinance with excessive amounts of technical detail.
| In conjunction with the director of planning
and community development and public works, the parks director is authorized
to promulgate rules, regulations and policies including the public tree
policy to administer and implement the provisions of this chapter.
[Everett, WA: City code 8.40.080
(Ord. 1948-93 § 8, 1993)]
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We have tried to emphasize throughout this site that a well-informed
and supportive populace is of critical importance to the community forestry
program. The responsibility for conducting a public education program may
be assigned either to the tree program manager or the tree commission.
In either case, the provision should state the overall goals of the education/outreach
program, as in this example.
| Public Education. The Division shall undertake an
ongoing program of public outreach and education in order to promote public
understanding of the City's urban forest and public adherence to the standards
and procedures established under this ordinance.
[San Francisco, CA: Public Works
Code Section 804h]
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Tree advisory board. In many communities, the tree advisory board
or commission is instrumental in evaluating needs, setting goals, and establishing
policy for the community forestry program. The tree advisory board may
also hear appeals of decisions made by the tree program manager.
The urban forestry tree committee:
A. develops, renews, and updates the
vegetation management plan and the arboricultural manual and submits them
to the park board and city council for approval and adoption;
B. reviews City plans and policies which contain
matters relating to urban forestry, community values, arboriculture, and
horticulture;
C. recommends legislation regarding the urban
forest;
D. adopts rules of operation and schedule
of meetings;
E. provides the park board with an analysis
of the annual urban forestry budget request;
F. develops a program for identifying and
maintaining trees in the city which have significant historical, cultural,
environmental or public significance and makes recommendations to the park
board and city council on adopting such a program;
G. coordinates the City's Arbor Day programs,
grants, and other similar programs;
H. provides information regarding the selection,
planting and maintenance of trees on public and private property.
[Spokane, WA: City Code Section
4.28.050]
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In small communities, the tree advisory board may act in lieu of a tree
program manager, performing many of the administrative functions listed
above. However, as an appointed body, the tree board is not normally in
a position to enforce the tree ordinance on a day-to-day basis. In such
situations, enforcement responsibility should be assigned to a municipal
staff position (see provision 12, Enforcement).
| The duties of the Tree Committee shall be
as follows:
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