Tree Protection and Management Bylaw No. 2850, 2016 — full text

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1 THE CORPORATION OF THE CITY OF COURTENAY BYLAW NO. 2850 A bylaw to regulate injury and removal of protected trees and to require trees associated with private developments within the City of Courtenay WHEREAS the City Council may, by Bylaw, exercise certain powers within the City, to require planting of trees, to regulate cutting and removal of trees and to require their replacement; AND WHEREAS trees provide a variety of individual and community wide benefits such as: stormwater and rainwater management, carbon absorption, air quality, heating and cooling benefits, aesthetic, quality of life and health benefits; AND WHEREAS the City considers it in the public interest to provide for the protection, preservation, regulation and replacement of a target density of trees on all properties; AND WHEREAS the City considers it in the public interest to provide for the protection of protected species; NOW THEREFORE the Municipal Council of the City of Courtenay in open meeting assembled enacts as follows: 1. CITATION This Bylaw may be cited for all purposes as "Tree Protection and Management Bylaw No. 2850, 2016" 2. TABLE OF CONTENTS 3. DEFINITIONS .................................................... 2 4. BYLAW PURPOSE ................................................. 6 5. BYLAW APPLICATION ............................................. 6 6. PROHIBITED ACTIVITIES ........................................... 7 7. BYLAW EXEMPTIONS AND TREE CUTTING PERMIT EXEMPTIONS ........... 7 8. TREE REMOVAL, PROTECTION AND MANAGEMENT CONDITIONS ........... 7 9. TREE DENSITY TARGET ............................................ 9 10. REPLACEMENT TREES, SECURITY BONDS AND TREE PLANTING AND REPLACEMENT RESERVE FUNDS ................................... 10 11. TREE PERMIT APPLICATION AND FEES ............................... 11 12. REFUSAL TO ISSUE A TREE CUTTING PERMIT .......................... 13 13. INSPECTIONS, ASSESSMENTS AND ORDERS TO COMPLY ................. 13 14. POST CONSTRUCTION ARBORIST REPORT ........................... 144 15. AUTHORITY .................................................... 14 16. APPLICATION FOR RECONSIDERATION .............................. 155 17. DESIGNATION OF BYLAW ......................................... 15 2 18. OFFENCE ...................................................... 15 19. PENALTY ...................................................... 16 20. GENERAL PROVISIONS .......................................... 166 21. SEVERANCE .................................................... 16 22. EFFECTIVE DATE ............................................... 16 23. REPEAL ....................................................... 16 3. DEFINITIONS "Arborist" means a) a person certified as an arborist by the International Society of Arboriculture (ISA); or b) a person certified as a Tree Care Specialist by the Tree Care Industry Association (TCIA); c) a person certified under subsections (a) and (b) and advising on a hazard tree that is a protected species or is growing within a Riparian Assessment Area or other Environmentally Sensitive Area, who holds the "Certified Tree Risk Assessor Qualification" as defined by the ISA; "Barrier" means a device including a fence, guard, frame or any other conspicuous marker which is placed on, around, or near a tree to indicate that the tree trunk, roots or branches are not to be cut, removed or damaged; "City" means, as the context requires, the Corporation of the City of Courtenay or the area within the boundaries of the City of Courtenay; "Council" means the Council of the Corporation of the City of Courtenay; "Crown" means the foliage bearing section of a tree formed by its branches but does not include the stem or trunk of a tree; "Damage" means to take any action that may impact or result in damaging the health or structural integrity of a tree; "Decline" means a tree that exhibits signs of a lack of vitality such as reduced leaf size, colour or density; "Development" includes the following activities: a) Removal, alteration, disruption, or destruction of vegetation; b) Removal, deposit or disturbance of soils; c) Construction, erection, or alteration of buildings and structures; d) Creation of non-structural impervious or semi-pervious surfaces; e) Preparation for or construction of roads, trails, docks and bridges; f) Provision and maintenance of sewer and water services; g) Development of drainage systems; h) Development of utility corridors; i) Flood protection; and j) Subdivision. 3 "Development application" means an application to the City for approval to conduct any development including but not limited to applications for rezoning, development permit, development variance permit, demolition and building permits; "Diameter at Breast Height (D.B.H.)" means: a) for a single-stemmed tree: i. the diameter of a tree measured at 1.4 meters above the highest point of the natural grade of the ground from the base of a tree; b) for a multi-stemmed tree: i. the D.B.H. is equal to the cumulative total of the D.B.H. of each stem; "Director" means the City's Director of Development Services or Manager of Planning; "Drip line" means the small roots of a tree located within a circle on the ground around a tree directly under the tips of the outermost branches of the canopy of the tree; "Emergency tree removal" means a tree that is dead, diseased, damaged or otherwise constitutes an imminent physical hazard to persons or property; "Environmentally Sensitive Area (ESA)" includes: a) Watercourses including the sea, ponds, lakes, rivers, streams, natural drainage courses and wetlands; b) Riparian and wildlife habitat; c) Significant geographical features outlined in the Environmental Development Permit Areas Map #6 and ESA descriptions contained within the City of Courtenay's Official Community Plan; "Fill" means earth, sand, gravel, rubble, rubbish, garbage or any other material whether similar to or different from any of these materials, originating on the site or elsewhere, used or capable of being used to raise, lower, or in any way affect the contours of the ground; "Grade" means a defined elevation of land that has been established as a result of geologic, hydrologic, or other natural processes or by human alteration; "Greenfield" means undeveloped real property that is greater than 4000 meters in size (approximately 1 acre) and contains vegetation that has been left to evolve naturally; "Hazardous or hazard" means a tree with a structural defect or changed stand conditions, which may result in property damage, personal injury or death; "Infill" means real property that is less than 4000 square meters in size (approximately 1 acre); "Invasive species" means non-native plants, animals and micro-organisms that colonize and take over the habitats of native species; "Maintenance" means the care and maintenance of trees in accordance with sound arboricultural practice and includes planting, inspection, pruning, cabling and bracing, treatments for insect and disease problems, watering and fertilization including mulching; "Native" means a tree species that occurs naturally in the City, and occurred prior to European contact; "Net developable hectare" means the land area, measured in hectares, available for development but does not include public highways, utilities or structures and the allocation of lands for public parks, landscaping and ESAs, and other public works required to service lands; 4 "Photo documentation" means three photos of a tree including a picture of the whole tree, a picture of the defective part, and a picture of the area at a distance, including if possible, any nearby structures; "Protected species" means: a) Garry Oak (Quercus garryana); b) Pacific Dogwood (Cornus nuttallii); c) Western White Pine (Pinus monticola); d) Pacific Yew (Taxus brevifolia); e) Trembling Aspen (Populus tremuloides); f) Arbutus (Arbutus menziesii). "Protected tree" means a) a public tree; b) a tree of any size within a: i. Riparian Assessment Area; or ii. Environmentally Sensitive Area (ESA). c) a tree of any size on sloping terrain having a grade equal to or greater than 30%; d) a tree planted or retained as a requirement of a subdivision application, development permit, development variance permit, building permit demolition permit, or Tree Cutting Permit; e) a protected species over 0.5 meters in height; f) trees protected by a restrictive covenant registered on title pursuant to section 219 of the Land Title Act; "Prune" means the removal of not more than one-third of the live branches or limbs of a tree or not more than one-third of the live branches or limbs on a tree as part of a consistent annual pruning program and in accordance with sound arboricultural practice; "Public tree" means a tree of any size on land owned by or in the possession of the City, including, without limitation, a tree in a park or on a highway, boulevard, road or lane allowance; "Ravine" means a narrow, steep-sided valley that is commonly eroded by running water and has a slope grade greater than 3:1; "Remove" means to entirely sever the main stem of a tree or to fell a tree; "Replacement tree" means a tree planted on a parcel in accordance with section 10 of this bylaw to replace trees cut, removed or damaged on the same parcel or to achieve the tree density target including in instances where there are no or few trees on a parcel "Retained tree" means a tree not to be cut, removed or damaged; "Riparian Assessment Area" means: a) for a stream, the 30 meter strip on both sides of the stream, measured from the riparian area high water mark; b) for a ravine less than 60 meters wide, a strip on both sides of the stream measured from the riparian area high water mark to a point that is 30 meters beyond the top of the ravine bank; and 5 c) for a ravine 60 meters wide or greater, a strip on both sides of the stream measured from the riparian area high water mark to a point that is 10 meters beyond the top of the ravine bank; "Root protection area" means the area of land surrounding the trunk of a tree that contains the bulk of the critical root system of the tree, as defined on a plan prepared by an Arborist approved by the Director; "Sound arboricultural practice" means in accordance with American National Standards Institute (ANSI) Publication, A300-Tree Care Operations and the companion Best Management Practices Series of the International Society of Arboriculture (ISA); "Stream" means any of the following that provides fish habitat: a) a watercourse, whether it contains water or not; b) a pond, lake, river, creek or brook; or c) a ditch, spring or wetland that is connected by surface flow to something referred to in subsection (a) or (b); "Top" or "Topping" means the removal of large portions of the crown of a tree, including, but not limited to the making of horizontal cuts through the stems of a tree; "Tree" means any species of woody perennial plant having one dominant trunk and a mature height greater than five (5) meters; "Tree Cutting Permit" means the written authority granted by the Director pursuant to this Bylaw to cut or remove a tree; "Tree damaging activities" means to take any action that may cause a tree to die or decline, including: a) cutting or damaging the roots of a tree growing inside the root protection area; b) placing fill, building materials, asphalt or a building or structure upon land inside the root protection area of a tree; c) operating or parking vehicles including trucks, backhoes, excavators or other heavy equipment over the roots of a tree growing inside the root protection area; d) denting, defacing, gouging or damaging the trunk of a tree; e) removing bark from a tree; f) depositing concrete washout or other toxins, liquid or chemical substances harmful to the health of a tree on land inside the root protection area of the tree; g) removing soil and/or native understory vegetation from land inside the root protection area of a tree or compacting soil within the root protection area; h) blasting inside the root protection area of a tree or outside the root protection area so as to damage roots or disturb soil inside the root protection area; i) undermining the roots of a tree growing inside the root protection area; j) altering the ground water or surface water level within the root protection area of a tree; k) topping a tree or pruning the crown in excess of one-third of the tree; l) affix or hang materials from a tree that may harm the tree; or m) girdling, ringing, poisoning, or burning a tree. 6 "Tree density target" means 50 trees per net developable hectare; "Tree Planting and Replacement Reserve Fund" means the fund set aside for the purpose of planting trees in locations within the City of Courtenay other than where the lot where the tree has been injured or destroyed by tree damaging activities. 4. BYLAW PURPOSE 4.1 This Bylaw is enacted for the purposes of: a. regulating the cutting and removal of trees; b. regulating the protection of retained trees during development; c. setting forth expectations regarding the treatment of trees that are regulated under this Bylaw; d. requiring that tree retention and/or planting targets (measured as a tree density target) be achieved. 4.2 The Bylaw is not contemplated nor intended, nor does the purpose of this Bylaw extend: a. to the protection of any person from injury or damage to property or economic loss as a result of the cutting or removal of trees; b. to the assumption by the City or any employee of any responsibility or duty of care for ensuring that the cutting of one or more trees will not result in injury to any person or danger to any property from erosion, flooding, landslip or other damage; c. to assuming liability of a property owner for any damage arising from nuisance or negligence arising from tree cutting carried out on the owner's property. 5. BYLAW APPLICATION 5.1 This Bylaw applies to all properties within the City and to all protected trees. 5.2 A Tree Cutting Permit is required to be obtained prior to any tree over 20cm Diameter at Breast Height or protected tree being removed in the following circumstances: a. on any greenfield property; b. on any infill property where the removal of said trees will result in the tree density target not being achieved for that property; 5.3 A Tree Cutting Permit is required to be obtained prior to any limb or branch that is equal to or greater than 10 centimeter diameter being cut from any protected species; 5.4 For emergency tree removal a person must submit an application for a Tree Cutting Permit within 24 hours of the date of removal, or in the case of a removal which takes place on a weekend or statutory holiday, on the next business day after removal, and provide photo documentation of the tree prior to its removal with the application. 5.5 When a Tree Cutting Permit application is submitted in relation to a development application, the Tree Cutting Permit shall not be issued until approval has been obtained from the City for the development application, unless the Director otherwise waives this requirement. 7 6. PROHIBITED ACTIVITIES 6.1 No person shall cut, remove or carry out any tree damaging activities on a protected tree or any tree required to be retained to achieve the tree density target prior to obtaining a Tree Cutting Permit or contrary to the terms and conditions of a Tree Cutting Permit issued under this Bylaw. 6.2 When the City is investigating a bylaw infraction under this Bylaw, no person shall remove the remains of a tree until after the investigation by the City is complete. 7. BYLAW EXEMPTIONS AND TREE CUTTING PERMIT EXEMPTIONS 7.1 This Bylaw does not apply to: a. pruning of trees other than protected species in accordance with good arboricultural practice; b. regular landscape maintenance such as lawn mowing providing such activities are not tree damaging activities; c. where the Director or an Arborist certifies in writing to the City prior to removal that in his or her opinion a tree is impairing, interfering with, or presents a risk or hazard to the operation of sewers, drains, water lines, septic fields, electrical lines, poles or other similar equipment and appurtenances and that the impairment, interference or risk cannot be reduced or removed in any way other than the removal of the tree; d. trees that are part of plantations for the purposes of an orchard, nursery, or tree farm; e. the cutting and removal of trees by a British Columbia Land Surveyor when cutting survey lines of a width of less than 2 meters, unless the tree is a protected tree; f. tree cutting or removal that is undertaken by a utility, on land owned or held by the utility, and done for the purpose of safety, maintenance or operation of the utility's infrastructure; g. land and the trees on it if forestry practices on the land are governed by a tree farm licence, permit, or other authority or tenure under the Forest Act; or h. land and trees on it if section 21 of the Private Managed Forest Land Act applies to the land. 7.2 A Tree Cutting Permit is not required on an infill property when tree removal will not result in the number of trees retained on the property falling below the required tree density target for that property, provided that the trees being removed are not: a. a protected tree; and b. the landowner ensures that retained trees are protected from tree damaging activities. 8. TREE REMOVAL, PROTECTION AND MANAGEMENT CONDITIONS 8.1 A person performing development on lands containing one or more retained trees, where a Tree Cutting Permit is required, shall: a. ensure that no development occurs within the root protection area;b. place and maintain a temporary tree protection barrier around any retained tree or group of retained trees in accordance with Schedule B; 8 c. provide the City with proof of the barrier prior to disturbance occurring around the retained tree in the form of a photo, Arborist statement, or as otherwise stated in a Tree Cutting Permit; d. ensure that no development occurs within the root protection area except in accordance with the terms and conditions of a Tree Cutting Permit; e. display the Tree Cutting Permit in an accessible, visible location on the parcel to which it pertains; f. comply with all other local, provincial and federal laws. 8.2 In connection with the issuance of a Tree Cutting Permit, the Director may impose additional conditions to those listed in Section 8.1, including, without limitation, any or all of the following: a. identify with a flag, paint, survey tape or other adequate means each tree to be removed or retained; b. retain an Arborist to supervise, monitor or report on any development, including site visit requirements: i at critical phases of construction and/or at regular intervals in the construction schedule; ii at the time of tree replacement; iii to monitor tree adaptations to changes in their environment caused by the development; iv to advise on the creation of hazardous conditions; v to advise on maintenance requirements where such a condition is stipulated; and vi to confirm the successful establishment of a replanted tree prior to release of securities held for that tree; c. provide monitoring securities for an Arborist or Registered Professional Biologist as determined by the Director, in the amount of 125% of an estimate or quote of the cost of monitoring works required to ensure that the mitigation conditions of the Tree Cutting Permit are completed; d. ensure that no sediments migrate off site or into watercourses or drainage ditches; e. confirmation that the proposed development is consistent with City bylaws, and provincial and federal laws; f. treat diseased trees and those in decline, in accordance with good arboricultural practice; g. salvage and use small trees as part of a replanting plan, or to achieve the tree density target; h. remove and dispose of invasive species growing on the tree or within the dripline in a responsible manner; i. plant replacement trees in accordance with Schedule A, maintain replacement trees, for a stipulated length of time, and implement maintenance measures such as watering, fertilization, or mulching in accordance with the specified frequency; 9 j. remit a protection security of $1000 per protected species when constructing works that may cause tree damaging activities to a protected species; k. notify adjacent properties of a tree removal; l. provide a written statement from an Arborist stating that the scheduled tree removal is unlikely to create hazardous conditions to adjacent trees, including on adjacent properties; m. submit a post-construction Arborist report following construction activities; n. submit a communication plan to ensure that all parties working on the site are aware of the Tree Cutting Permit requirements; o. restrictions on timing of removal given sensitivities to bird nesting, fish or sediment and erosion control; p. keep stumps and roots of cut trees in place to ensure slope stability or mitigation against erosion where recommended by a geotechnical engineer; q. cut or modify a tree so as to retain wildlife habitat, subject to written confirmation from the Arborist that doing so will not create a hazard; r. where recommended by the Arborist, require that crown clearing occur prior to construction to reduce risk of branch failures and risk to workers. 8.3 The authorization to cut or remove trees shall expire within one year after the date of issuance of a Tree Cutting Permit, after which time a new application must be submitted. 9. TREE DENSITY TARGET 9.1 The tree density target may be achieved: a. for an infill property, i. by counting any tree that is larger than 2 centimeters D.B.H. and 2 meters in height, that is already growing on the infill property and is not an invasive species; ii. by planting a replacement tree; or iii. by paying $300 into the Tree Planting and Replacement Reserve Fund for each tree that is to contribute towards the tree density target; b. for a greenfield property, i. by retaining native trees that are each a minimum of 20 centimeters D.B.H.; or ii. by replanting replacement trees at a ratio of 3:1 for each tree removed below the tree density target of 50 trees per net developable hectare; a. where this subsection applies, up to a maximum of half of the number of trees required to achieve the tree density target may be achieved with replacement trees which may also include retaining naturally growing trees smaller than 20 centimeters D.B.H. provided said trees are not an invasive species, red alder or cottonwood trees; b. where this subsection applies, up to a maximum of half of the replacement trees may be achieved by paying $300 into the Tree 10 Planting and Replacement Reserve Fund for each tree that is to contribute to the tree density target; c. under extenuating circumstances where retention of trees required under this section prevents development to permitted densities, the Director shall have discretion in determining the number of retained and replacement trees. iii. where trees described in subsection (b)(i) do not exist, the tree density target may be achieved by planting replacement trees or retaining naturally growing trees smaller than 20 centimeters D.B.H. provided said trees are not an invasive species, red alder or cottonwood trees; c. retained trees shall be achieved in clusters and/or corridor configurations where practical with consideration given to adjacency to publically owned lands; 9.2 A tree must be in good health and must not be dead, hazardous or in decline in order to be counted towards the tree density target. Red alder and cottonwood trees shall not be counted towards the tree density target. 10. REPLACEMENT TREES, SECURITY BONDS AND TREE PLANTING AND REPLACEMENT RESERVE FUNDS 10.1 Where the Director has issued a Tree Cutting Permit, the following replacement formulas shall be followed, subject to subsections (b) through (d): a. the net developable area shall achieve the tree density target; b. if the tree removed is hazardous, one replacement tree shall be required for every tree removed; c. notwithstanding section 10.1.b, if the tree removed is hazardous and is growing within Environmentally Sensitive Areas, three replacements of native species shall be required for every tree removed; d. for the removal of a protected species three replacements of the same species shall be required for every tree removed, including hazardous trees. 10.2 Subject to section 10.1, where the planting and maintenance of a replacement tree is required pursuant to this Bylaw, the owner shall provide to the City security in the amount of $300 for each tree to be planted and maintained. 10.3 Where the replacement trees are part of the overall private landscaping program required under a development permit, development variance permit, subdivision, or other development agreement, the security is to be in the amount specified in the approved landscape cost estimate associated with said permit, and only that amount. 10.4 The security in section 10.2 may be submitted in the form of cash, cheque or irrevocable letter of credit, bank draft or in a form satisfactory to the Director. 10.5 Replacement trees must be planted in accordance with the condition and planting criteria set out in Schedule A. 10.6 Where a person is required by this Bylaw to plant a replacement tree on a parcel and the parcel has been subdivided since the act giving rise to the requirement was committed or the Tree Cutting Permit was issued, as the case may be, the replacement tree may be planted on either parcel. 11 10.7 Full security for each replacement tree held by the City will, upon application by the owner, be returned to the permit holder one year from the date of planting, upon approval by the Director that each replacement tree remains in a healthy condition and subject to a written report by an Arborist statement to confirm the health of the tree as may be reasonably required from the Director. 10.8 If the owner fails to or refuses to plant the required number, size and type of replacement trees in the specified locations within one year after receiving written direction from the Director to do so or after a planting date as otherwise agreed upon, the City may deposit the securities in the Tree Planting and Replacement Reserve Fund. 10.9 Tree replacement fees paid into the Tree Planting and Replacement Reserve Fund are to be held and used by the City for replanting on other lands to be determined in accordance with City policies. 10.10 Where a protection security is required, the protection security shall not be released until all works that may cause tree damaging activities have ceased and an Arborist confirms in writing that the tree has not experienced any tree damaging activities. 11. TREE PERMIT APPLICATION AND FEES 11.1 An application for a Tree Cutting Permit shall include the following information: a. completed application for Tree Cutting Permit on the form approved by the Director, signed by the registered owner(s) or by the owner's agent who is authorized in writing to act on behalf of the owner in relation to the application; b. written consent from the adjacent property owner where the stem of a tree at ground level is growing over the applicant's property line; c. title search dated no more than five business days prior to the date of the application; d. site plan showing all of the following, where applicable: i. Environmentally Sensitive Areas (ESAs); ii. property lines; iii. location of the tree(s) on site to be removed and retained, including the root protection areas for retained trees; iv. existing and proposed buildings, structures, septic fields, servicing including power poles; v. topographic and hydrological features including drainage patterns; vi. on-site access points for vehicles, including sufficient access for tree removal equipment; vii. vehicle parking area and washout areas for concrete trucks; viii. existing and proposed landscaped areas; ix. existing and proposed utility corridors; e. description of the proposed development and rationale for development, including steps taken to preserve existing trees as part of the overall development plan of the site; f. an Arborist report including the following information: 12 i. statement of number of protected trees and trees over 20 centimeters D.B.H. on the property to be described by outlining the: ii. inventoried number of stems, species and size where there are fewer than 100 trees on the property; or iii. approximate number of stems per hectare and species composition based on ISA accepted standards. iv. statement of number of retained trees on the property following the requested removal; v. narrative describing why the proposed retained trees are selected, and if management actions are required to promote their long term health; vi. confirmation that the retained trees are not hazardous; vii. description of the cutting and/or removal methods to be used, how the site will be accessed and the tree protection measures that shall be used to protect any retained trees; g. statement that topographic, grading and/or hydrological changes will not negatively impact the retained trees with input provided by an appropriate qualified professional; h. a detailed tree survey prepared by a registered BC Land Surveyor to indicate proposed tree retention and replacement areas that require restrictive covenants; and i. application fee as determined by the City of Courtenay Fees and Charges Bylaw No. 1673, 1992. 11.2 In addition to section 11.1, the following information may also be required by the Director: a. for greenfield sites, a statement of the number of retained trees for trees greater than 20 cm DBH following the proposed development; b. for development applications and greenfield sites: i. grading changes including existing topographic elevations and proposed conceptual elevations for major development components; ii. proposed final site grading within 10 meters of all proposed retained trees. c. a proposed replanting plan prepared by a landscape architect or Arborist indicating the location, species, size, and class of trees(s) or vegetation to be planted including any pertinent establishment requirements such as watering, fertilizing, and soil preparation; d. a copy of applicable federal or provincial approval, if required; e. a report by a geotechnical engineer or hydrologist to certify that the proposed cutting or removal will not create an adverse impact on slope stability or the drainage network; f. when removing trees in Environmentally Sensitive Areas, a report from a Registered Professional Biologist may be required to confirm that tree removal activities will not negatively impact the Environmentally Sensitive Area, including wildlife. 11.3 The following conditions apply to the Arborist report provided pursuant to section 11.1(f): a. the report shall be valid for a maximum of one year from the date of authorship; 13 b. a report older than one year will require a covering letter from the original author stating that the conditions and recommendations contained in the original report remain valid; c. in the reasonable discretion of the Director, an existing Arborist report that is less than one year may be required to be reviewed and re-submitted in instances where changes to the trees are deemed significant, including any changes to adjacent land uses, adjacent tree removal, changes in grading or hydrological changes, or any other changes to or around the tree; d. where the original Arborist report submitted to the City is incomplete or inaccurate, the Director may retain the services of an independent Arborist, or other professional to review an Arborist report, or other professional report, and the cost of the independent Arborist report shall be paid by the owner prior to the adoption of the related rezoning, subdivision approval, development permit, development variance permit, demolition or building permit approval or the issuance of the related Tree Cutting Permit, whichever comes first. 12. REFUSAL TO ISSUE A TREE CUTTING PERMIT 12.1 A Tree Cutting Permit shall not be issued by the Director where: a. an application required under this Bylaw has not been submitted in full or the required fee has not been paid; b. information as required by section 11 (Tree Permit Application and Fees) has not been submitted or in the opinion of the Director is not satisfactory; c. the proposed work would adversely affect slope stability; d. the tree density target is not achieved; or e. the proposed tree work would contravene other terms and conditions of a restrictive covenant. 13. INSPECTIONS, ASSESSMENTS AND ORDERS TO COMPLY 13.1 The Director or person authorized by the Director may assess, inspect or cause an inspection to be made of any tree to which this Bylaw applies. 13.2 For the purposes of any inspection or assessment herein the Director may enter onto any land at all reasonable times in accordance with the Community Charter. 13.3 Where the Director is satisfied that a person has contravened any provision of this Bylaw, the Director may serve an Order to Comply requiring the person to stop the tree damaging activities or removal of trees and shall set out the particulars of the contravention including requiring the person to remedy the non-compliance within 30 days or by such other date as deemed reasonable in the circumstances by the Director. 13.4 The Director may revoke a Tree Cutting Permit if the terms and conditions of the Tree Cutting Permit have been breached or the information supplied by the applicant in support of the Tree Cutting Permit is determined to have been inaccurate, incomplete, misleading or erroneous. 14 14. POST CONSTRUCTION ARBORIST REPORT 14.1 The Director may require a post-construction Arborist report following all construction activities in which the following information may be required: a. assessment of damage to retained trees caused by initial site grading and clearing; b. identify and provide a dollar value of the retained trees that have been damaged or removed using an industry standard tree appraisal method; c. propose a replacement plan indicating the proposed number and type of replacement trees of equal or greater dollar value and tree planting locations for the rehabilitation of the disturbed areas. Payment into the Tree Planting and Replacement Reserve Fund may be accepted by the City. No fewer than four replacement trees for every tree removed without a Tree Cutting Permit will be accepted; and d. recommend management methods to care for an injured tree. 14.2 Securities to implement the replacement plan in section 14.1 (c) will be required at 125% of the cost of each replacement tree. 15. AUTHORITY 15.1 The Director may: a. issue, revoke, place conditions upon, and refuse to issue a Tree Cutting Permit in accordance with this Bylaw; b. retain the services of an independent Arborist, or other professional, to review an Arborist report, or other professional report, submitted to the City under the provisions of this Bylaw, in support of an application for a Tree Cutting Permit, in instances where the completeness or accuracy of the report are brought into question through review of the report and field inspection by the Director. c. require security under section 8 of this Bylaw prior to issuing a Tree Cutting Permit; d. exempt an applicant for the Tree Cutting Permit from any the requirements of section 11 (Tree Permit Application and Fees) if the information to be submitted has been otherwise provided to the City; e. require the provision of replacement trees as set forth in section 10 of this Bylaw, and the maintenance of said trees; f. charge and collect those fees prescribed in the City of Courtenay Fees and Charges Bylaw, 1673, 1992 or this Bylaw; g. serve on any person who has not complied with a Tree Cutting Permit or a provision of this Bylaw an Order to Comply; h. enforce this Bylaw and issue penalties in accordance with sections 18 and 19 of this Bylaw; and 15 i. authorize another member of staff to act on their behalf. 16. APPLICATION FOR RECONSIDERATION 16.1 Within 30 days of being notified in writing of the decision of the Director under this Bylaw, the applicant may, at no charge, request Council to reconsider the decision. 16.2 The applicant must give written notice to the Director of Legislative Services and include the following information: a. the applicant's address for receiving correspondence related to the request for reconsideration; b. a copy of the written decision or direction from the Director; c. reasons to explain why the decision should be amended or set aside; and d. a copy of any documents which support the applicant's request for reconsideration by Council. 16.3 The Director of Legislative Services will notify the Director of the request(s) for reconsideration and staff shall, prior to the date of the meeting at which the reconsideration will occur, provide a written report to Council setting out the rationale for the decision. 16.4 The Director of Legislative Services will place the request(s) for reconsideration on the agenda of a meeting of Council to be held as soon as reasonably possible. 16.5 The Director of Legislative Services will notify the applicant of the date of the meeting at which reconsideration will occur. 16.6 Council will review the information provided by the applicant and staff, and either confirm the decision made by staff, vary, or substitute its own decision including terms and conditions as set forth by this Bylaw. 16.7 The decision of Council on reconsideration is final. 17. DESIGNATION OF BYLAW 17.1 This Bylaw is designated under Section 264 of the Community Charter as a bylaw that may be enforced by means of a Municipal Ticket Information in the form prescribed. 18. OFFENCE 18.1 Every person who violates any of the provisions of this Bylaw or who suffers or permits any act or thing to be done or omits to do anything required to be done in contravention or in violation of any of the provisions of this Bylaw, is guilty of an offence against this Bylaw and is liable to the penalties hereby imposed, and each day that a violation is permitted to exist or continues shall constitute a separate offence. 18.2 When more than one tree is cut, removed or damaged by tree damaging activities, or more than one tree is not replaced or maintained in accordance with a Tree Cutting Permit issued pursuant to this Bylaw, a separate offence is committed in respect of each such tree. 16 19. PENALTY 19.1 A person who commits an offence under this Bylaw is liable to pay a fine of: a. up to $1,000 as established per the City's Municipal Ticket Information Bylaw 2435, 2006; b. up to $10,000 as determined by the court pursuant to an Offence Act proceeding. 20. GENERAL PROVISIONS 20.1 All Schedules referred to herein form part of this Bylaw: a. Replacement Tree Stock and Planting Requirements b. Tree Protection Barrier and Signage Specifications c. Erosion and Sediment Control Guidelines 21. SEVERANCE 21.1 If a portion of this Bylaw is held invalid by a Court of competent jurisdiction, then the invalid portion must be severed and the remainder of this Bylaw is deemed to have been adopted without the severed portion. 22. EFFECTIVE DATE 22.1 This Bylaw will come into force on the date of its adoption. 23. REPEAL 23.1 "City of Courtenay Tree Management and Protection Bylaw No. 2461, 2006" and all amendments thereto are hereby repealed. Read a first time this 19th day of September, 2016 Read a second time this 19th day of September, 2016 Read a third time this 1st day of May, 2017 Finally passed and adopted this 15th day of May, 2017 Mayor Director of Legislative Services 17 SCHEDULE A TREE PROTECTION AND MANAGEMENT BYLAW NO. 2850, 2016 REPLACEMENT TREE STOCK AND PLANTING REQUIREMENTS The City maintains a list of acceptable replacement tree species. Where replacement trees are required to be provided pursuant to section 10 of this Bylaw, such replacement trees shall be provided and planted as follows: (a) Replacement trees may be the same or different species, with the exception of protected tree species. (b) At least half of the total number of trees on the property, including existing retained and replacement trees, must be native species, unless the trees being replaced are located within an Environmentally Sensitive Area, in which case all of the replacement trees shall be native. (c) Replacement trees must be of a five gallon pot size with the following exceptions: a. Arbutus (Arbutus menziesii) may be one gallon pot size; b. Garry Oak (Quercus garryana) may be three gallon pot size. (d) Replacement trees shall not be planted: a. within 3 metres of a building foundation wall and within 1 metre of any property line of a lot; b. within 5 metres of an overhead utility line for trees that are a maximum of 5 metres in height, and within 10 metres of an overhead utility line for trees that are a maximum of 12 metres in height; c. within an easement or statutory right of way. (e) Every replacement tree shall be spaced from existing trees and other replacement trees in accordance with good arboriculture practices so as to best ensure survival of the replacement and existing trees. (f) Replacement trees must meet the plant condition and structure requirements set out in the latest edition of the BCSLA/BCLNA "B.C. Landscape Standard" and the CNTA "Canadian Standards for Nursery Stock" to be considered acceptable by the Director. (g) Replacement trees shall be planted and maintained in accordance with the requirements set out in the latest edition of the BCSLA/BCLNA "B.C. Landscape Standard". (h) Tree caging will be required in areas prone to deer browsing until the tree is 6 feet in height. (i) Replacement trees shall be planted during the suitable local planting seasons generally defined as fall (September - November) and spring (February - April). Where planting must occur outside of these time periods, then a strategy for ensuring the trees are watered (in the summer) or protected from cold weather (in the winter) must be included as part of the Tree Cutting Permit application. 18 (j) The following minimum specifications for topsoil or amended organic soil are required for replanting on a property unless otherwise advised against by the Arborist: i. organic matter content of 15% dry weight in planting beds and 8% in turf areas; ii. depth of 300 mm for turf; iii. depth of 450 mm for shrubs/trees; iv. depth of 300 mm around and below the root ball of all trees; v. pH from 6.0 to 8.0 or matching that of the original undisturbed soil; vi. subsoils scarified to a depth of minimum 100 mm with some topsoil being incorporated into the subsoil; and vii. planting beds mulched with a minimum of 50 mm of organic materials. 19 SCHEDULE B TREE PROTECTION AND MANAGEMENT BYLAW NO. 2850, 2016 TREE PROTECTION BARRIER AND SIGNAGE SPECIFICATIONS Barrier structure and material: Tree protection barriers should generally be a minimum of 1.2 meters high, and consist of snow fencing or an equivalent, supported by poles at sufficiently close intervals to ensure the integrity of the fence, or supported by wooden frames. In instances where development is not expected to occur near the root protection area, poles strung with multiple bands of flagging tape may be sufficient, subject to approval by an Arborist and/or the Director. Barrier distance from tree(s): Tree protection barriers must be of a sufficient size to protect the root protection area of the tree. The root protection area refers to the area of land surrounding the trunk of the tree that contains the bulk of the critical root system of the tree, as defined on a plan prepared by an Arborist, that the Director reasonably approves. Barrier protection sign: Where retained trees require protection barriers, a tree protection informational sign in the format provided in this Schedule, must be affixed to the barrier at intervals of every 30 metres unless waived as a requirement by the Director. The sign must able to withstand weather conditions for prolonged periods of time. Barrier duration: The barrier must be in place throughout the entire duration of the development activities that are taking place around the tree and until written approval of its removal is obtained from the City. 20 21 SCHEDULE C TREE PROTECTION AND MANAGEMENT BYLAW NO. 2850, 2016 EROSION AND SEDIMENT CONTROL GUIDELINES Tree Cutting Permit holders are expected to adhere to best management practices (BMPs) including but not limited to the ones outlined below: (a) Retain existing vegetation and ground cover where possible; (b) Construct development site access pads 4.5 meters wide at all accesses to site; (c) Restrict vehicle access and utilize wheel wash pads at access points; (d) Install silt fencing around stockpiles and at the toe of disturbed slopes; (e) Completely cover temporary stockpiles or spoiled material with polyethylene or tarps and surround with silt fence; (f) Install and maintain filter fabric bags around any catch basins, lawn basins, exposed manholes or any other open storm sewer access points collecting runoff from the development site; (g) Divert runoff away from cleared areas by use of low berms; (h) Convey surface runoff through swales designed to minimize flow velocity and erosion while maximizing settling; (i) As a priority, collect runoff into suitable sediment settling facility or facilities prior to discharge off-site; (j) Unless deemed unnecessary by the Director, a sediment pond should be designed, installed and maintained according to the Land Development Guidelines for the Protection of Aquatic Habitat; (k) Keep all sand, gravel, spoiled material and concrete mix off of all hard and paved surfaces; (l) During excavation, holes requiring dewatering should be pumped to a vegetated area or suitable settling facility which will prevent sediment-laden water from accessing the drainage system; (m) Regularly sweep roads; and (n) Re-vegetate, cover or mulch disturbed areas as soon as practically possible.