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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.
 
 
 
Number Provision Minimum
1.  Title
2.  Findings
3.  Purpose and intent yes
4.  Definitions yes
5.  Determination of definitions
6.  Jurisdiction
7.  Policies regarding trees
8.  Local government disclaims liability
9.  Interference with planting, maintenance, and removal unlawful
10.  Appeals yes
11.  Penalty for violation yes
12.  Enforcement yes
13.  Performance evaluation of ordinance yes
14.  Severability yes
15.  Designate administrative responsibilities yes


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] 

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] 

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]

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]

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]

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] 

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] 

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] 
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] 

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] 

10. Appeals

Purpose: To establish a procedure whereby decisions of the tree program manager can be appealed.

Key elements:

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]

11. Penalty for violation

Purpose: To establish penalties for violating provisions of the ordinance.

Key elements:

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] 

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] 

 

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.

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]

 

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.

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 consent 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 which otherwise might have been 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 section 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: City Code Section 17-24.140]

 

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.

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] 

 

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]

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]

 

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) ]

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.

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]

 

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] 

15. Designate administrative responsibilities

Purpose: To assign responsibility and authority for implementation and enforcement of the ordinance.

Key elements:

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:

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] 
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]
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] 
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)] 

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]
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] 

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:
    1. To study the problems and determine the needs of the City in connection with its tree program.
    2. To recommend to the City Council the type and kind of trees to be planted upon such City streets or parts of City streets, parks, or public places. 
    3. To assist the properly constituted officials of the City, as well as the Council and citizens of the City, in the dissemination of news and information regarding the protection, maintenance, removal, and planting of trees on public lands, and to make such recommendations from time to time to the City Council as to desirable legislation concerning the tree program and activities for the City. 
    [La Palma, CA: City Ordinance No. 89-07 Section 4B]

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