ORDINANCE NO. OR2005-8-85

AN ORDINANCE AMENDING CHAPTER 915 OF THE CODIFIED ORDINANCES OF THE CITY OF HAMILTON, OHIO, RELATIVE TO TREES, AND REPEALING EXISTING CHAPTERS 913 AND 915 THEREOF. 

                WHEREAS, the Codified Ordinances of the City of Hamilton, Ohio, presently includes four chapters relating to trees: (1) Chapter 154 – Hamilton Tree Advisory Board, which established the Board which first convened in September 2000; (2) Chapter 541 – Property Offenses, which in Section 541.06 details the penalties under the Ohio Revised Code for the destruction of trees; (3) Chapter 913 – Trees, which deals with trees in general, but the penalties for destruction of trees are different than those presented in Chapter 541; and (4) Chapter 915 – Comprehensive Tree and Planting Plan, which mirrors much of what is in Chapter 913; and  

                WHEREAS, there are several instances where Chapter 913 differs with Chapter 915 and Chapter 915 differs from both Chapters 541 and 913 with regard to penalties for destruction of trees; and

                 WHEREAS, the Tree Advisory Board is recommending the following changes: (a) repeal Chapter 913 because Chapter 915 is far more detailed and incorporates the substance of Chapter 913 and certain minor differences between the two chapters would be eliminated; and (b) revise Chapter 915 to: (i) update section 915.06 (a)(5) to only allow trimming or removal of a tree without City permission if the tree is storm damaged and trimming or removal is in the interest of public safety, while trees that may require trimming for any other reason, with the exception of utility line pruning, would require the approval of the City Manager’s designee; (ii) add section 915.08 to provide guidelines for removal of trees with the City Manager designee’s permission; (iii) add a new Section 915.081 to outline an appeal process; (iv) add new Section 915.09 to include the penalties already found in Section 541.06 with regard to destruction of trees, thus bringing the new section into compliance with the Ohio Revised Code.  

                WHEREAS, such changes are part of the Tree Advisory Board’s continuing effort to maintain Hamilton’s new status as a Tree City USA; and  

WHEREAS, City Administration recommends that these amendments be made to the Codified Ordinances, thereby insuring improved enforcement of the ordinances;

 NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Hamilton, Ohio:

                 SECTION I:           That Chapter 915, of the Codified Ordinances of the City of Hamilton, Ohio, is hereby amended to be and read as follows: 

CHAPTER 915

Comprehensive Tree and Planting Plan 

915.01           Title and statement of purpose.

915.02           Definitions.

915.03           Administration of plan.

915.04           Standards for planting and maintenance in the public way.

915.05           Responsibility for maintenance of plantings in or overhanging the public way.

915.06           Prohibitions.

915.07           Approved and prohibited plantings in or adjacent to the public way.

915.08                 Guidelines for removal of trees in public right-of-way (curb lawn).

915.081         Appeals

915.09           Destruction of trees, shrubs, or crops.

915.99           Penalty. 

CROSS REFERENCES

Injury to trees - see GEN.  OFF.  541.06

Hamilton Tree Advisory Board – see Ch. 154

915.01   TITLE AND STATEMENT OF PURPOSE.

This chapter shall constitute the Comprehensive Tree and Planting Plan for the City of Hamilton, Ohio. Its purpose is to establish policies and regulations that will promote and protect the urban forest and plantings of Hamilton. The statement of purpose for this chapter shall be as follows:

Ohio is a forest by nature. May we, the people of the City of Hamilton, unite in a collective mission to manage and protect our local urban forest. In doing so let us proceed with the knowledge that a forest is an interaction of living elements that are part of a greater ecological process. When we alter this process or its parts without knowledge and compassion we threaten the health and survivability of the immediate and larger landscape and the communities that live within them.

915.02   DEFINITIONS.

For the purposes of this chapter, the following terms, phrases, words and their derivatives shall have the meaning given herein:

(a)     “Arborist” means a professional person whose certified area of expertise is forestry, horticulture and the selection and maintenance of trees, and other plantings.

(b)     “Basal Clearance” means the distance from the center of a tree to the drip line of the tree at maturity. This distance will not change with time for any given tree, but it will vary from species to species.

(c)     “Canopy” means the cumulative horizontal crown at the widest point of a tree.

(d)     “Conifers” means trees that remain green and do not lose their leaves.

(e)     “Critical Root Zone (hereinafter ‘CRZ’)” means the area surrounding a tree or planting wherein are the major roots of the tree or planting. In some, but not all species, this coincides with the extension of the tree canopy or basal clearance.

(f)       “Curb Lawn” means the area in the public way between the sidewalk and curb or edge of roadway or between the abutting private property lines where there is no sidewalk.

(g)     “Deciduous Trees” means trees that lose their leaves in winter.

(h)     “Ground Operated Equipment” means any utility-related owned and operated devices or access points installed at or near ground level including but not limited to such as pad-mounted transformers, switch boxes, manhole covers, and pull boxes, gas and/or water valves, and fire hydrants.

(i)       “Habitat” means a living environment that supports the survival needs of life, including shelter, water and food. Trees and plantings are a key component of the habitat of most species.

(j)       “Native Trees” means trees that are indigenous and original to a particular geographical area.

(k)     “Ornamental Trees” means deciduous, woody plants having a single, well-defined stem, normally growing to a mature height of less than thirty (30) feet.

(l)       “Person” means any person, firm, partnership, association, corporation, company, or organization of any kind.

(m)   “Plantings” means trees, shrubs, and any other vegetative materials that may exceed three (3) feet in height.

(n)     “Political Subdivision” means a municipal corporation, county, school district, or other body corporate and politic responsible for governmental activities in a geographic area smaller than that of the state.

(o)     “Private Land” means areas located within the City of Hamilton that are owned by a private person and/or entity and that are not owned by any political subdivision.

(p)     “Public Land” means property or areas located within the City of Hamilton that are owned by the City of Hamilton or any other political subdivision, including but not limited to streets, rights-of-way, public ways and parks.

(q)     “Public Nuisance” means any tree or other planting with an infectious disease or insect problem or dead or dying trees or plantings; or a tree or limb(s) or plantings that obstruct the sight triangle of street lights or traffic signs or the free passage of pedestrians or vehicles; or any tree or other planting that obstructs or interferes with public utilities; or a tree or planting that poses a threat to the public health, comfort, safety, and welfare, as determined by the City Manager's designee.

(r)      “Public Way” means any public street, road, highway, public easement, sidewalk, alley, curb lawn, or public waterway, and includes the entire width of any right of way when any part thereof is open to the use of the public, as a matter of right, for purposes of vehicular and pedestrian traffic.

(s)     “Shade Trees” means woody plants having a single, well-defined stem, a more or less definite crown, a height of not less than thirty (30) feet and a trunk diameter at maturity of not less that six (6) inches, planted primarily for the purpose of providing shade.

(t)       “Shrubs” means woody plants generally with no single well-defined stem used as accent, border or foundation plants, which can be maintained at a height of less than three (3) feet.

(u)     “Street Trees” means trees planted in the public way.

(v)      “Tree” includes any tree or other planting on public land or private land, as indicated by subsequent provisions of this chapter.

(w)    “Topped or De-horned Trees” means trees with most or all of the crown removed.

(x)      “Tree Inventory” means a summary of data collected to document the trees in the community using accepted statistical techniques. For purposes of this chapter, a tree inventory shall include the tree count and tree species, size and condition.

(y)      “Tree Size” means:

(1)     Utility Zone Plantings.  Any tree reaching a mature height of less than twenty-five (25) feet.

(2)     Small Tree.   Any tree reaching a mature height of less than thirty (30) feet.

(3)     Medium Tree.   Any tree reaching a mature height of thirty (30) to forty-five (45) feet.

(4)     Large Tree.  Any tree reaching a mature height of over forty-five (45) feet.

(z)      “Urban Forest” means the sum of all trees, shrubs, and plantings found in and around dense human settlement, including all trees, shrubs, and plantings found in parks, cemeteries, public lands, private lands, and public ways.

(aa) “Utility Zone” means the area under, over, and/or adjacent to publicly owned utilities including but not limited to, utility poles, manhole covers, lighting fixtures, transformers, and switch enclosures.

915.03   ADMINISTRATION OF PLAN.

(a)     No person shall cut, trim, mutilate, injure or destroy any tree without first having obtained permission to do so from the owner of such tree or his agent, or from the Director of Public Works in the case of trees standing on City grounds or easements. However, nothing in this section shall be construed to prohibit the trimming or cutting by the City of trees or parts thereof on or extending over any street or other ground belonging to the City when such trimming or cutting is necessary to prevent interference with any City-owned utility, or to remove any dangerous condition, or for any other City purpose.

(b)     The City Manager shall designate an individual to be responsible for the administration of the comprehensive City Tree and Planting Plan. This individual may or may not be an arborist but shall have knowledge of the care and maintenance of urban forests.

(c)     In addition to the authority granted the City Manager, his designee, and the Transportation and Traffic Engineer in this chapter, the Director of Health is hereby authorized to enforce sections 915.04 through and including Section 915.06 of this chapter.

915.04   STANDARDS FOR PLANTING AND MAINTENANCE IN THE PUBLIC WAY.

(a)   All plantings shall be subject to the final approval of the City Manager's designee.

(b)   All plantings shall be in a live, healthy condition.

(c)   Specified varieties of any species shall be specimen-type trees or shrubs and shall be graded according to the applicable American National Standards Institute (ANSI) for Nursery Stock or better and shall be first class representatives of their normal species and varieties.

(d)   The approved and prohibited plantings for planting in or adjacent to the public way are listed in Section 915.07 hereof. In order to maintain consistency with horticultural practices, the list set forth in Section 915.07 may be reviewed by the Tree Advisory Board and may be revised by the Board without further legislative approval. Any such revision to the list of plantings by the Tree Advisory Board shall be effective only upon the written approval of the City Manager’s designee.

(e)   Distances and Clearances.

(1)   Plantings within the public ways that impact traffic safety shall be coordinated with and approved by the City Transportation and Traffic Engineer. The following criteria shall be used as guidelines with regard to plantings that impact traffic safety:

A.     A minimum of thirty-five (35) feet from the nearest street corner measured from the point of the nearest intersecting curbs or curblines.

B.    A minimum of five (5) feet from driveways.

C.    A minimum of twenty (20) feet from alleyways.

D.    A minimum of one and one-half (1-1/2) feet from a curb or sidewalk for a small tree.

E.    A minimum of two (2) feet from a curb or sidewalk for a medium tree.

F.     A minimum of three (3) feet from a curb or sidewalk for a large tree.

G.      In accordance with the following illustration:

  (2)   Plantings within the Utility Zone installed using the following criteria:

A.     Only species listed for use in Utility Zones shall be planted under utility lines or within ten (10) lateral feet of said lines.

B.    A minimum of a ten (10) foot clearance from ground operated equipment.

C.    A minimum of a ten (10) foot clearance shall be maintained from streetlight fixtures to any plantings or portion thereof, which obstructs the path of light.

D.    A minimum of a ten (10) foot distance from fire hydrants.

(3)   Trees within the public ways shall be maintained so that:

A.     Branch clearance above sidewalks shall be eight (8) feet or greater.

B.    Branch clearance above streets shall be fifteen (15) feet or greater.

(4)     The Utilities are under no obligation to safeguard plantings made in the utility zone. However, compliance with these guidelines should minimize the effects of utility operations on subsequent additions to the urban forest.

(f)    Except for plantings planted and maintained by the City or other approved public authority, only the plantings listed in Section 915.07, or any other plantings that may be hereafter approved or prohibited by the Tree Advisory Board and approved in writing by the City Manager's designee, may be planted in the public ways.

(g)   All stumps of street trees being removed shall be removed 6 inches below the ground surface so that the top of the stump shall not project above the surface of the ground.

(h)   Sidewalk street repairs that will potentially endanger street trees shall require prior consultation with the City Manager's designee as to the best way to protect the tree roots where possible in the opinion of the City Manager's designee.

915.05   RESPONSIBILITY FOR MAINTENANCE OF PLANTINGS IN OR OVERHANGING THE PUBLIC WAY.

(a)   Plantings shall be established and maintained in and adjacent to the public ways along streets in accordance with the provisions of this chapter. Plantings not so established and/or maintained are hereby declared to be public nuisances, except that existing plantings that are maintained in accordance with ordinances existing on the effective date of adoption of this chapter shall not be considered public nuisances.

(b)   It shall be the duty of all property owners and occupants to trim or remove plantings in the public ways abutting their property, which are not maintained in accordance with the requirements of this chapter.

(c)   The City Manager's designee or any designated member of his staff shall have the authority to enter upon private land at any and all reasonable times to examine any tree, shrub or other planting located upon or over such private land and to carry out the provisions of this chapter.

(d)   The City Manager's designee under Section 915.03 shall cause written notice to the property owner(s) and occupant(s) to trim or remove any planting within, adjacent to the curb lawn area of the abutting public ways which does not conform with the provisions of this chapter. Such notice shall be sent by certified mail, return receipt requested, to the tax mailing address of the property owner(s) of record with the Butler County, Ohio Auditor and to the occupant(s) at the address of the property. If certified mail is returned unclaimed, notice will be sent by regular mail.

(e)   If the planting is not trimmed or removed within the time period stated in the written notice, not less than ten (10) days from date of receipt of the notice, the City Manager's designee may cause such trimming or removal to be undertaken and the costs thereof shall be the responsibility of the abutting property owner(s) and occupant(s).

(f)    In the event that the property owner(s) and occupant(s) fail to remit such costs to the City within thirty (30) days after written notice of the amount of such costs, the City Manager's designee or the Finance Director may certify such costs to the Butler County Auditor to be entered upon the tax duplicate for the abutting property as a lien and collected as other taxes and returned to the applicable City fund.

(g)   In the event that a planting within the public ways presents imminent danger to public safety, it may be trimmed or removed by the City without written notice to the property owner. The property owner shall be responsible for the costs thereof as provided in subsection (e) hereof.

915.06   PROHIBITIONS.

(a)   No person, firm or corporation shall do any of the following:

(1)   Fail to perform any requirement contained in this chapter or commit any act prohibited in this chapter.

(2)   Fail to trim or remove any planting within or abutting the public ways to the owner's and occupant's property after written notice in accordance with Section 915.05(d).

(3)   Fail to pay the costs of trimming or removing any planting within the abutting curb lawn area of public ways of the owner's and occupant's property.

(4)   Excavate or significantly disturb the earth within a radius of ten feet of any tree within the public way or on public land without first obtaining written permission from the City Manager's designee under this chapter.

(5)   Top, remove or girdle any healthy tree in the public way or other public land without prior written approval from the City Manager or his designee. Trees severely damaged by storms and need to be trimmed or removed in the interest of public safety are exempted from this section. Trees damaged by insects, diseases or certain trees under utility wires or other obstructions may be removed with the approval of the City Manager or his designee. Contractors involved in utility line pruning are exempted from this section; however, line pruning should be done in accordance with the guidelines set forth in the publication Pruning Trees Near Electric Utility Lines: A Field Pocket Guide for Qualified Line-Clearance Tree Workers by Dr. Alex L. Shigo (Copyright 1990).

(6)   Recklessly cause direct or indirect damage to a tree or other planting in the public way or on public land through any of the following means: cutting, carving, transplanting, removing, attaching rope, wire or nails or advertising posters; pouring harmful liquids or gaseous substances or harmful chemicals on the tree or other planting or in or near CRZ; setting fire to or near a tree or other planting; impeding water, air or fertilizer to a tree or other planting.

(b)   This section does not apply to political subdivisions or their agents, employees or subcontractors.

915.07   APPROVED AND PROHIBITED PLANTINGS IN OR ADJACENT TO THE PUBLIC WAY.

(a)   The following are the plant forms approved for planting in and adjacent to the public way:

(1)   Lawn grass, not to exceed 8".

(2)   Ornamental grasses or flowers not to exceed 18".

(3)   Flowering vines, only on mailboxes.

(b)   The following are the species and varieties of deciduous shade trees approved for planting in and adjacent to the public way: