Municipal Property Tree By-law 2004-173 (Consolidated) — full text

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THE CORPORATION OF THE CITY OF NIAGARA FALLS A CONSOLIDATED BY-LAW Being By-law No. 2004-173 as amended by By-law 2013-69, By-law 2015-58 A by-law to prohibit or regulate the destruction, injury and planting of trees on municipalproperty within the City of Niagara Falls. WHEREAS section 135 of the Municipal Act, 2001, S.O. 2001, c.25, as amended, provides that the Council of a local municipality may pass by-laws to prohibit or regulate the destruction or injury of trees, and to require persons to obtain permits for the injuring or destruction of tees; AND WHEREAS subsection 135(11) of the Municipal Act, 2001 provides that the Council of a local municipality may delegate the authority to issue permits and impose conditions to permits to an appointed officer; AND WHEREAS section 252 of the Municipal Act, 2001 authorizes the Council of a local municipality to provide for a committee of Council to hear interested parties in place of the Council; AND WHEREAS the Council of the Corporation of the City of Niagara Falls recognizes the ecological and aesthetic value of trees and deems it expedient to regulate or prohibit certain acts relating to trees within the City of Niagara Falls. NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE CITY OF NIAGARA FALLS HEREBY ENACTS AS FOLLOWS: Definitions 1. In this By-law, a. "City" means The Corporation of the City of Niagara Falls; b. "Council" means the Council of The Corporation of the City of Niagara Falls; c. "dead" means a tree that has no living tissue; d. "Director" means the Director of Municipal Works for the Corporation of the City of Niagara Falls, or his or her designate;" e. "dying" means a tree that is infected by a lethal pathogen, or where 70% or more of its crown is dead; f. "emergency work" means the work necessary to terminate an immediate threat to life or property; g. "Forestry Supervisor" means any person designated from time to time by resolution of Council for purposes of carrying out the provisions of this By-law; h. "hazard" means a tree that is a potential hazard to property or life, but not an immediate threat; i. "highway" means a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, and part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof; j. "injure or destroy a tree" means the injury or destruction of a tree by removal, cutting,girdling of the tree or roots, interfering with the water supply, application of chemicals,compaction and regrading within the drip line of the tree, or by other means including irreversible injury which may result from neglect, accident or design; k. "Permit" means a permit issued pursuant to this By-law; l. "person" shall include the Regional Municipality of Niagara, a company, corporation or partnership, as is applicable; m. "public property" means land vested in, controlled or owned by The Corporation of the City of Niagara Falls; n. "public tree" any tree which has greater than, or equal to, fifty (50) per cent of the truck diameter on public property. o. "Region" means The Regional Municipality of Niagara; p. "site" means the lands which are the subject of an application for a Permit pursuant to this By-law; q. "tree" means any species of woody plant which has reached or can reach a height of at least 4.5 metres (14.8 feet) at physiological maturity; r. "tree lawn" means the land within which a tree is planted or is to be planted. Application of By-law No person shall: 2 a. injure or destroy a tree growing on public property; or b. plant any tree or any part of a tree on public property,without first having obtained a Permit issued by the Forestry Supervisor pursuant to this By- law. Notwithstanding section 2, a Permit is not required: 3 a. if the injury or destruction of a tree is required as a consequence of any activities or matters undertaken by the City, Region, a School Board for the development of a school, or any other government authority or utility corporation; or b. for emergency work. Notwithstanding section 3, no compensation shall be payable by the City to any 4 person performing any of the acts set out in the said section 3 upon a tree located on public property. Prohibited Acts No person shall: 5 a. mark, cut, break, debark, deface, damage, tie, wire, rope, prune or trim a tree growing on public property; b. remove a tree growing on public property; c. tack, paste or attach a bill or note or any other thing or object to a tree growing on public property, or to a stake, post, guard or other object supporting such tree; or d. deposit, place, store or maintain any stone, brick, sand, soil, concrete, vehicle, equipment or other matter or material that may impede the free passage of water, air or nutrients to the roots of a tree growing on public property. Permit Application A person applying for a Permit shall submit the following to the Forestry 6 Supervisor: a. a complete application in the form attached hereto as Schedule "A", which form may be amended from time to time by the Director; b. a plan, sketch or drawing showing the location of the site, and clearly illustrating which tree(s) are to be injured or destroyed, and the location of any proposed planting; and c. where the applicant is not the owner of the lands adjacent to the site of the proposed injury, destruction or planting, the written authorization of the owner consenting to the application. Issuance of Permit - Injury or Destruction The Forestry Supervisor shall review all completed applications and shall issue 7 a Permit for the injury or destruction of a tree on public property where: a. the tree location conflicts with any proposed building permit plans that comply with the City's Zoning By-law; b. there will be no negative impact on flood or erosion control, or slope stability, as the case may be; or c. the injury or destruction of the tree is otherwise acceptable to the Forestry Supervisor. Issuance of Permit - Planting The Forestry Supervisor shall review all completed applications and shall issue 8 a Permit for the planting of a tree on public property where the tree is in a location, and is of a species satisfactory to the Forestry Supervisor. A person who receives a Permit to plant a tree on public property pursuant to 9 this By-law shall comply with all directions and requirements of the Forestry Supervisor, and shall comply with the following conditions, unless varied in writing by the Forestry Supervisor: a. The Forestry Supervisor shall approve the selection of an acceptable species and planting location of the tree, as set out in Schedule "B" to this By-law; b. Based on a 40-year cycle, a tree which will attain a trunk diameter greater than 30.48 cm to 36.1 cm (12 to 15 inches) shall not be planted in a tree lawn less than 1.83 m (6 feet) in width. Where overhead wires or a building set-back present a special problem in tree lawns less than 1.83 m (6 feet) in width, the selection of the site and species of tree shall be determined by the Forestry Supervisor. c. All trees shall be planted a minimum of 15.24m (50 feet) from a highway intersection, and if the tree is small upon reaching maturity it shall be planted a minimum of 1.52m (5 feet) from all driveways, otherwise it shall be planted a minimum of 4.57m (15 feet) from all driveways. d. The spacing of a tree shall be determined by the Forestry Supervisor according to the species to be used, mature height, spread and form, the local surrounding environment,and any other matter the Forestry Supervisor determines is relevant. e. An applicant proposing to plant a tree on an unpaved street without a curb shall require the approval of the Forestry Supervisor who will then determine the tree location so the tree will not be injured or destroyed when the street is paved. Refusal to Issue Permit Revocation of Permit Where the Forestry Supervisor recommends that a Permit not be issued, he 10 shall advise the applicant forthwith. Within 30 days of receiving notice of the Forestry Supervisor's recommendation 11 to refuse the application, the applicant may request to appear before The Park in the City Committee to make representations regarding the Forestry Supervisor's recommendation. The Park in the City Committee may, after reviewing the Forestry Supervisor's 12 report, and hearing the applicant's representations, if any, uphold the refusal, or issue the Permit subject to any conditions the Committee deems appropriate. The decision of The Park in the City Committee shall be final in all respects. The Forestry Supervisor may revoke a Permit issued pursuant to this By-law if it 13 was issued because of mistaken, false or incorrect information provided by the applicant, or the applicant's agent or designate. Terms and Conditions The Forestry Supervisor may impose terms and conditions upon the issuance 14 of any Permit,including a condition that any person to whom a Permit is issued pursuant to this By-law for the injury or destruction of a tree be required to plant two (2) replacement trees meeting the City's street tree specifications in the vicinity of the injured or destroyed tree, and in a location otherwise acceptable to the Forestry Supervisor. If, in the opinion of the Forestry Supervisor acting reasonably, the planting of two (2) replacement trees is not possible, one (1) replacement tree shall be planted in accordance with the foregoing provisions, and the Permit holder shall be required to pay to the City, by cash or certified cheque, that sum set out in the City's Fee Schedule, as amended from time to time, in lieu of the second, unplanted tree. If, in the opinion of the Forestry Supervisor acting reasonably, the planting of any replacement tree(s) is not possible, the Permit holder shall be required to pay to the City, by cash or certified cheque, that sum set out in the City's Fee Schedule, as amended from time to time, in lieu of the two (2) unplanted trees. Compliance with Plans and Conditions, Applicable Law Where a Permit has been issued pursuant to this By-law, no person shall injure 15 or destroy any tree on public property, or plant any tree, or part of any tree on public property except in accordance with the plans, documents and any other information on the basis of which the Permit was issued, and in compliance with any terms, conditions and design guidelines imposed by the Forestry Supervisor. Notwithstanding the issuance of a Permit pursuant to this By-law, an applicant 16 and/or owner shall comply in all respects with all other applicable federal, provincial and municipal laws, by-laws and ordinances. Request for Inspection An applicant for a Permit, or his or her authorized agent, shall, where a Permit 17 has been issued pursuant to this By-law, request the Forestry Supervisor to make inspections at the commencement and at the conclusion of the work which is the subject of the Permit, and shall request such further inspection as may be required by the Forestry Supervisor. Time Limit for Permits A Permit issued pursuant to this By-law shall be valid for a period of six (6) 18 months from the date of issuance, but shall expire three (3) months from the date of issuance if work has not been commenced by that date. A Permit which is no longer valid or which has expired pursuant to this section may be renewed within a six (6) month period following the date of expiration upon written application to the Director, provided that the proposed work which was the subject of the Permit has not been revised in any way. Enforcement of By-law The administration and enforcement of this By-law shall be performed by the 19 Director, his or her designates, and those persons designated from time to time by Council as Forestry Supervisors under this By-law. The Director, his or her designates, and any duly designated Forestry Supervisor shall have all powers necessary to carry out the administration and enforcement of this By-law. Where a person has injured or destroyed any tree, or planted any tree in 20 contravention of a Permit issued pursuant to this By-law, without a Permit where a Permit is required under this By-law, or contrary to any other provision of this By-law, the Director may make an Order directing the person to do any or all of the following: a. comply with the conditions of the Permit and this By-law; b. cease the work which is the subject of the contravention; and/or c. require work to be done to correct the contravention to the satisfaction of the Director,and within the time specified in the Order. The Order issued by the Director pursuant to section 20 shall set out: 21 a. the municipal address or location of the land; b. reasonable particulars of the contravention; and c. the period within which there must be compliance with the Order. Where a person has failed to correct any such contravention to the satisfaction 22 of the Director within the time specified in an Order issued pursuant to this By- law, the City, in addition to all other remedies it may have, may take all necessary steps to bring the lands into compliance with the terms of this By- law. The City may recover those costs incurred by it under the preceding section, 23 plus interest accrued to the date payment is made at the rate of fifteen percent (15%) per annum, from the owner of the land by action or in like manner as municipal taxes. Exemption from By-law The provisions of this By-law do not apply to: 24 a. activities or matters undertaken under a licence issued under the Crown Forest Sustainability Act, 1994; b. the injuring or destruction of trees by a person licensed under the Surveyors Act to engage in the practice of cadastral surveying or his or her agent, while making a survey; c. the injuring or destruction of trees imposed after December 31, 2002 as a condition to the approval of a site plan, a plan of subdivision or a consent under section 41, 51 or 53, respectively, of the Planning Act, or as a requirement of a site plan agreement or subdivision agreement entered into under those sections; d. the injuring or destruction of trees imposed after December 31, 2002 as a condition to a development permit authorized by regulation made under section 70.2 of the Planning Act, or as a requirement of an agreement entered into under the regulation; e. the injuring or destruction of trees by a transmitter or distributor, as those terms are defined in section 2 of the Electricity Act, 1998, for the purpose of constructing and maintaining a transmission system or a distribution system, as those terms are defined in that section; f. the injuring or destruction of trees undertaken on land described in a licence for a pit or quarry or a permit for a wayside pit or wayside quarry issued under the Aggregate Resources Act; or g. the injuring or destruction of trees undertaken on land in order to lawfully establish and operate or any large any pit or quarry on land that has not been designated under the Aggregate Resources Act, or a predecessor of that Act, and on which a pit or quarry is a permitted land use under a by-law passed under section 34 of the Planning Act. Offence and Penalty Every person who contravenes any provision of this By-law, or an Order issued 25 hereunder, is guilty of an offence and is liable to a fine of not more than $10,000.00 or $1,000.00 per tree, whichever is greater, on a first conviction, and not more than $25,000.00 or $1,000.00 per tree, whichever is greater, on any subsequent conviction, as provided in subsection 138(1) of the Municipal Act, 2001, S.O. 2001, c.25, as amended. Every corporation that contravenes any provision of this By-law, or an Order 26 issued hereunder, is guilty of an offence and is liable to a fine of not more than $50,000.00 or $5,000.00 per tree, whichever is greater, on a first conviction, and not more than $100,000.00 or $10,000.00 per tree, whichever is greater, on any subsequent conviction, as provided in subsection 138(1.1) of the Municipal Act, 2001, S.O. 2001, c.25, as amended. If a person is convicted of an offence for contravening the provisions of this By- 27 law, or an Order issued pursuant to this By-law, the Court in which the conviction has been entered, and any Court of competent jurisdiction thereafter, may order the person to rehabilitate the land or to plant or replant such tree(s) in such manner and within such time period as the Court considers appropriate, including any silvicultural treatment necessary to re-establish the tree(s). Severability In the event that any provision or part of this By-law is found to be invalid or 28 unenforceable for any reason whatsoever, then the particular provision or part thereof shall be deemed to be severed from the remainder of the By-law and all other provisions or parts thereof shall remain in full force and shall be valid and enforceable to the fullest extent permitted by law. Short Title The short title of this By-law is the City of Niagara Falls Municipal Property Tree 29 By-law. Passed this twentieth day of September, 2004. (Original Bylaw Passed September 20, 2004) "DEAN IORFIDA" "R. TED SALCI" DEAN IORFIDA, CITY CLERK R. T. (TED) SALCI, MAYOR\ First Reading: September 20, 2004. Second Reading: September 20, 2004. Third Reading: September 20, 2004. CITY OF NIAGARA FALLS By-law No. 2013- SCHEDULE "A" APPLICATION FOR PERMIT TO INJURE, DESTROY OR PLANT TREES ON PUBLIC PROPERTY Registered Owner of Affected Property: 1 Mailing Address of Owner: 2 Postal Code: Phone Number: (H) (W) Email: Legal Description of Affected Property: Plan Number: 3 Lot Number: Street Address (location of tree if different from above) 4 Existing Land Uses(s): 5 Present Land Use Designation: Existing Zoning: 6 Purpose of Proposed Tree Activity: 7 Commencement/Completion Dates: 8 Description of Proposed Activity (if necessary, attach addendum): 9 Contractor (if different from owner): 10 Include a plan of affected area drawn to scale, accurately delineating the 11 following: a. property boundaries, buildings and structures; b. existing topography (including contour intervals); c. location/dimensions of proposed tree cutting, planting or removal activities (including the location of access roads or other associated works); d. photographs Signature of Owner or Authorized Agent Date: (day/month/year) For Office Use Only: Comments: Estimated Cost of Work: Approved: Not Approved: Director's Signature: Schedule "B" Botanical Name Common Name Description Native Form Size Soil Type/ Conditions Urban Tolerant For Use Under Hydro Picture Additional Notes Acer ginnala Amur Maple Can occur as a multi-stemmed shrub or as a small tree. Rounded shape. 5 meters in height, occasionally up to 8 meters No Rounded Ornamental Tolerates wind, dry soil and drought Yes Yes Easy to transplant. Adaptable. Can be planted in full sun or partial shade. It can withstand heavy pruning Amelanchier canadensis Serviceberry Small tree: height of 5m by 4 m spread Native to Canada Rounded Ornamental N/A Yes` Yes N/A Cornus florida Flowering dogwood 20' in height, with spread equaling or greater than that. Growth up to 30-40ft in height Native to Canada Rounded Ornamental acid, well drained soil, in partial shade, although sun is acceptable Yes Yes Fruit which is poisonous to humans, dyingout in wild due to fungus Crataegus crus galli var.inermis. Thornless Cockspur Hawthorn (Crusader Hamthorn) 15-20 ft in height & spread Thornless Cultivars of native species Rounded Ornamental loam, clay Yes Yes N/A Malus spp. Flowering & Domestic Crab Apple 15-25 in height No Rounded/ Spreading Ornamental Heavy Loam N/A Yes Flowering period of April- late May/early June. Prunus spp. Kkwanzan (Shubert cherry) 7-10m height, 5-7m spread Varies Rounded/ Vase Ornamental Infertile, dry solis. N/A Yes Somewhat short lived, 20 years.Leaves emerge green and mature purple. Botanical Name Common Name Description Native Form Size Soil Type/ Conditions Urban Tolerant For Use Under Hydro Picture Additional Notes Syringa reticulata Japanese Lilac Tree (Ivory Silk) 20-30 ft height, 15-25 in spread No Rounded Ornamental Loose, well drained, slightly acidic N/A Yes N/A Acer nigrum Black Maple 60-75 ft Native to Canada Oval Large Loam, Silt-Loam Yes Yes Black maple is often found in mixed hardwood forest setting in nature. Acer platanoides spp. Norway Maple Cultivars (Crimson King, Globe Maple) 40' to 50', but growth up to as much as 90'. Width of 35' to 45', rounded symmetrical crown No Rounded /Columnar Medium Sand, Clay Yes N/A Has ability to outshade native species and outcompete them in habitat Acer rubrum Red Maple (Fremani, Autumn Blaze) Medium sized tree, 13 - 20 m, occasionally to 33 m or more, with ascending branches. Irregular or rounded crown. Native to Canada Oval/ Rounded Medium Sand, Loam N/A N/A Grows in moderately moist sites, likes sandy loam but often found on rocky uplands. Transplant balled and burlapped. Does not tolerate city conditions as well as the Norway Maple Cultivars. Acer saccharum Sugar Maple 17m x 12 m in height, growth up to 35m in height at maturity Native to Canada Oval/ Rounded Large Loam, Clay N/A N/A Does not do well in a restricted root zone location.Moderate pollution tolerance and leaf scorch can develop with drought. Celtis occidentalis Common Hackberry Medium sized tree 12-25m height & 30-60cm round. Trunk divides into several arching branches. Native to Canada Vase Large Loam, Clay Yes N/A Fast growing and tolerant of species. Fruit of this tree is sought after by a variety of birds and small mammals. Botanical Name Common Name Description Native Form Size Soil Type/ Conditions Urban Tolerant For Use Under Hydro Picture Additional Notes Fagus sylvatica European Beech (Rivers Beech, Purple Beech, Tri-colour Beech (not as big) 17-20m x 12-15m Non-native Oval/ Rounded Large Moist, slightly acidic N/A N/A Does not make for good street tree, but withstandss heavy pruning and is useful in hedge material Ginkgo biloba Maidenhair tree 50-80 ft height, variable spread of 30-40 ft No Pyramidal Spreading Large Sandy, Deep, Moderately moist Yes N/A Excellent city tree. Does not fruit until 20-50 years of age. Gleditsia triacanthos Varieties inermis Thornless Honeylocust (Shademaster, Skyline, Sunburst) 30-70 ft in height with similar spread Thornless cultivars of native species Spreading Medium Moist bottomland, limstone origin Yes N/A Very salt tolerant, drought tolerant as well. Gymnocladus dioicus Kentucky coffeetree 18-25m, spread of15-22m. Native to Canada Oval Large Deep, rich, moist soils Yes N/A First tree to lose leaves in fall, and last to leaf out in spring. Liriodendron tulipifera Tuliptree 22-30m in height, branch spread caries depending on open space or in wooded areas. Native to Canada Rounded Large Most, fertile, well drained loam. Slightly acidic and full sun N/A N/A Ontarios tallest native tree species Pyrus calleryana Callery Pear (Chanticleer) 35 ft high and 16ft wide in maturity No Pyramidal Medium Loam Soil Yes N/A Hardens early and susceptable to early freezes Botanical Name Common Name Description Native Form Size Soil Type/ Conditions Urban Tolerant For Use Under Hydro Picture Additional Notes Quercus macrocarpa Bur Oak 22-30m in height, spread of20- 30 m. Grown in open space, trunk is short with stout, horizontal widespread branch Native to Canada Rounded Large Sandy, dry clay soils Yes N/A Can live up to 300 years, and resist salt and pollution in urban areas for survival Quercus alba White Oak 50-80 ft height Native to Canada Rounded Large Best in deep, moist, well drained soils. N/A N/A Beautiful tree year round Quercus robur 'Fastigata' Fastigate English Oak 50-60 ft in height, only 10-15 width No Columnar Large Sand, sandy-loam Yes N/A N/A Quercus robur English Oak 75-100' height&spread No Rounded Large Sandy loam, in full sun Yes N/A Good tree for parks and other large spaces. Seed requires no pretreatment. Quercus rubra Red Oak 20-27m tall, 15-22m spread. Often rounded when young and mature Native to Canada Rounded Large Sandy-loam Yes N/A Acceptable street tree, saught after for furniture and floor manufacturing. Tilia cordata Littleleaf Linden (Glenleven, Greenspire, Greenglobe) 12-15 m height and 8-10m spread. Densley branched No Pyramidal Medium Moist, well drained, fertile soil. Yes N/A Quite pollutant tolerant Botanical Name Common Name Description Native Form Size Soil Type/ Conditions Urban Tolerant For Use Under Hydro Picture Additional Notes Liquidambar styriciflua Sweet Gum 60-70 ft with 45 ft spread No, Carolinian Spreading Large Loam Yes N/A N/A Nyssa sylvatica Black Gum 30-50 ft height, 20-30 ft spread Yes Pyramidal at young age Medium Prefer moist and deep solis, but also found in dry mountain ridges N/A N/A Responds well to water and fertilization, Zelkova serrata Japanese zelkova 50-80 ft in height with lesser spread. No Vase Shaped Large Moist, deep soil Yes N/A Reasonable pollution tolerance Quercus ellipsoidalis Northern Pin Oak (Hills Oak) 50-60 ft high Yes Rounded Crown Large Dry, Sandy, acid soils N/A N/A N/A Quercus bicolor Swamp white oak 50-60 ft tallm with equal or greater spread Yes Open, round top Large Acid soil N/A N/A Excellent drought resistence, numerious short branches from secondary branches. Quercus palustris Pin oak 60-70 ft in height, 25-40ft spread Yes Strongly pyramidal Large Clay (in wild). Moist, rich acid, & drained soils Yes N/A N/A Botanical Name Common Name Description Native Form Size Soil Type/ Conditions Urban Tolerant For Use Under Hydro Picture Additional Notes Tilia americana Basswood 60-80ft in height, with spread of 30-40ft Yes Rounded Crown Large Drier heavier soils, rocky. Full sun, partial shade. N/A N/A Limited to landscape due to size. Tough inner bark used to make some ropes. References: Websites: City of Toronto: Urban Foresty, City of Hamilton Forestry, City of St.Catharines, Ontario Trees and Shrubs Books: Manual of Woody Landscape Plants