Chapter 13.40
STREET TREES AND OTHER VEGETATION

Sections:

13.40.010    Short title.

13.40.020    Intent and purpose.

13.40.030    Definitions.

13.40.040    Enforcing authority.

13.40.050    Maintenance responsibility.

13.40.060    Street tree permits required.

13.40.070    Removal of trees, plants and shrubs.

13.40.080    Hazardous and obstructive trees.

13.40.090    Treatment and removal of infected or infested trees.

13.40.100    Destroying, defacing, or injuring any tree.

13.40.110    Protection of trees.

13.40.120    Interference with city personnel.

13.40.130    Cooperation between city departments and agencies.

13.40.140    Nonliability of city.

13.40.150    Enforcement.

13.40.160    Severability.

13.40.010 Short title.

This chapter shall be known and may be cited as the tree and vegetation code of the city of Bellingham. [Ord. 10282, 1992].

13.40.020 Intent and purpose.

The intent of this chapter is, through the preservation, protection, and planting of trees, to:

A. Aid in the stabilization of soil by the prevention of erosion and the enhancement of sedimentation;

B. Reduce stormwater runoff and the costs associated therewith and replenish ground water supplies;

C. Aid in the removal of carbon dioxide and generation of oxygen in the atmosphere;

D. Provide a visual buffer and screen against traffic and some buffer against noise pollution;

E. Provide protection against severe weather;

F. Aid in the control of drainage and restoration of denuded soil subsequent to construction or grading;

G. Provide a haven for birds which in turn assist in the control of insects;

H. Protect and increase property values;

I. Conserve and enhance the city’s physical and aesthetic environment; and

J. Generally protect and enhance the quality of life and the general welfare of the city. [Ord. 10282, 1992].

13.40.030 Definitions.

“Directors” shall mean the director of the parks and recreation department and the director of the public works department or their designee.

“Improved right-of-way” shall mean that strip of land dedicated and improved and developed to city standards for public use as a street, sidewalk or alley.

“Major pruning” consists of the trimming or cutting out of branches two inches in diameter or greater; root pruning; or trimming or cutting out of branches and limbs constituting greater than 10 percent of the tree’s foliage bearing area. The work shall retain the natural form of the tree.

“Minor pruning” consists of trimming or cutting out of water sprouts, suckers, twigs, or branches less than two inches in diameter, or which constitutes less than 10 percent of the tree’s foliage bearing area. The work shall retain the natural form of the tree. Removal of dead wood is included within the definition of minor pruning.

“Other vegetation” shall mean trees, bushes, shrubs, grasses, or other plant material on or encroaching upon improved rights-of-way.

“Person” is any public or private individual, group, company, firm, corporation, partnership, association, society, or any other combination of human beings whether legal or natural.

“Planting strip” shall mean that portion of the improved street right-of-way not used for transportation and thus available for the purpose of planting and maintaining trees and other vegetation.

“Right-of-way” shall mean that strip of land dedicated to or over which is built public streets, sidewalks or alleys, or is used for or dedicated to utilities installation; the “right-of-way” is an easement over the land of the adjoining property owner.

“Street tree” shall mean any tree which is located upon property within the improved right-of-way in the city of Bellingham.

“Topping” is defined as the removal of the leader stem of the tree.

“Tree trimmer” shall mean a person licensed by the city to engage in the business or occupation of trimming, pruning, treating, or removing trees.

“Unimproved right-of-way” shall mean that strip of land which has been dedicated, but not developed or improved to city standards for public use as a street, sidewalk, or alley. [Ord. 10282, 1992].

13.40.040 Enforcing authority.

A. The directors shall be charged with the enforcement of this chapter as specifically provided herein.

B. The directors shall have exclusive jurisdiction and supervision over all street trees or other vegetation growing in public rights-of-way unless otherwise provided by chapter.

1. The directors may plant and shall maintain trees and may plant and maintain other plants in the areas listed upon the city maintenance responsibility list to ensure safety or preserve the symmetry and beauty of the same.

2. The directors shall have the authority to supervise all work done under permit issued in accordance with the terms of this chapter.

3. The directors shall have the authority to affix reasonable conditions to the grant of a permit hereunder. [Ord. 10282, 1992].

13.40.050 Maintenance responsibility.

A. By the Parks Department. The parks department shall maintain all street trees located on planting strips adjacent to streets listed on the city maintenance responsibility list contained in the street tree and other vegetation, planting, removal and maintenance policy which shall be developed by the director of the parks department and approved as an official city policy. The parks department shall not be responsible for maintenance or replacement of street trees or other vegetation on streets not on the maintenance responsibility list.

B. By the Abutting Property Owner. The abutting property owner shall maintain street trees and other vegetation located on planting strips adjacent to streets not listed in the city maintenance responsibility list. The abutting property owner is also responsible for the maintenance of vegetation other than street trees which are on the city maintenance responsibility list. The abutting property owner shall maintain trees and other vegetation on unimproved rights-of-way. The public works department shall enforce compliance with this provision as described in BMC 13.40.080(B)(3). [Ord. 10282, 1992].

13.40.060 Street tree permits required.

A. Trimming and Removal of Trees. No person shall perform major pruning or remove trees in planting strips, improved rights-of-way, or other public places, or cause or authorize any person to trim, prune or remove trees in public places, without first filing an application and procuring a street tree permit from the city.

1. Application Data. The application required herein shall state the kind, size and condition of trees to be trimmed or removed; the kind of trimming to be administered; and such other information as the director of parks and recreation department shall find reasonably necessary to a fair determination of whether a permit should issue hereunder.

2. Standards for Issuance. The director of parks and recreation department shall issue the permit provided for herein when he finds that the desired action or treatment is necessary and that the proposed method and workmanship are satisfactory.

3. Major Pruning. The city may require that the pruning be performed by a licensed tree trimmer. This determination will be made as a part of the street tree permit process.

4. Tree topping, as defined in BMC 13.40.030, is unlawful as a normal practice. Trees severely damaged by storms or other causes, or where other pruning practices are impractical may be exempted from this section at the determination of the director of the parks and recreation department.

5. Removal of Trees. The stumps and roots of trees shall be removed to a point at least one foot below the top of the adjacent curb or proposed curb grade.

6. Tree Replacement Location. As a condition to the granting of a tree removal permit, the parks department may require the applicant to relocate or replace trees.

B. Planting of Trees. No person shall plant a tree or other vegetation in improved rights-of-way without first filing an application and procuring a street tree permit from the city. Upon receipt of an application for a permit to plant or set out in excess of 10 trees, the director of parks and recreation department shall have the authority to require from the applicant a detailed declaration of intentions either in form of a planting plan or written statement. All planting plans shall be drawn in ink and submitted in duplicate. One copy of each plan or statement of intention shall when approved by the director of parks and recreation department be returned to the applicant and the other copy shall be kept on file by the director of parks and recreation department. All statements filed in lieu of a planting plan shall contain the same information as required on the plan. All planting plans shall accurately show:

1. The proposed street including pavement, curb, gutter, parking strip and sidewalk areas to a definite indicated scale.

2. The variety and size of each and every tree proposed to be planted and of those already existing within the proposed street lines, either indicated on the plans or referenced with a number to key list.

3. The proposed location of each and every proposed tree together with the location of each existing tree within the proposed street line in scaled relation to the other features of the plan.

4. The distance between trees in any direction.

C. Notice of Completion. A notice of work completion concerning tree planting, removal or major pruning shall be given by the permittee, within five days, to the director of parks and recreation department for his inspection.

D. Department Responsibilities for Coordination of Street Tree Permits.

1. Planning Department.

a. Provide a street tree permit application as requested by the public.

b. Provide handout information including street tree brochure and recommended tree listing.

c. Require street tree permit to be completed for any project requiring street tree installation.

d. Route completed street tree permit application to public works department if application is for planting and to the parks and recreation department if the application is for removal or pruning.

2. Public Works Department.

a. Inspect job site and approve or disapprove based upon impact of tree to right-of-way.

b. Route permit application to parks and recreation department.

3. Parks and Recreation Department.

a. Contact permit applicant and inspect site.

b. Determine if licensed trimmer is required.

c. Approve or disapprove application and notify applicant of decision.

d. Inspect work after completion.

E. Any permit issued pursuant to this chapter shall expire 30 days from date of issuance.

F. Denial of Permit – Appeal Process. A decision denying a request for a street tree permit may be appealed to the hearing examiner. The appeal notice shall be in writing and submitted to the hearing examiner. The notice shall include, at a minimum, the following information: name, address, telephone number of applicant, location of trees involved in the appeal, decision being appealed, reference to any applicable code or ordinance, and a concise statement of the reasons for appeal. [Ord. 2002-10-069 § 27; Ord. 10282, 1992].

13.40.070 Removal of trees, plants and shrubs.

The parks department may authorize removal or may remove trees, plants and shrubs situated in planting strips, whenever:

A. The tree, plant or shrub is actually defective or dangerous, or an obstruction to public travel, or is otherwise in violation of BMC 13.40.080; or

B. Trees damaging or potentially damaging public improvements. Removal is necessary because the installation of, or potential or actual damage to, a sidewalk, parkway, curb, gutter, pavement, sewer line, underground utility, or other municipal improvement. Such removal will not be authorized automatically; consideration shall first be given to construction modifications for the preservation of any trees; or

C. Removal is necessitated by infection or infestation as provided in BMC 13.40.090. [Ord. 10282, 1992].

13.40.080 Hazardous and obstructive trees.

A. Hazard Tree.

1. Definition. Any tree or tree part which poses a high risk of damage to persons or property.

2. Determination. The parks and recreation department will make the determination of a hazard tree.

3. Maintenance Responsibility. The parks and recreation department will remove the hazard tree if the tree is included on the city maintenance responsibility list. The public works department will be responsible for removing the hazard tree if the tree is outside of the city maintenance responsibility list and poses a hazard to the improved right-of-way. The abutting property owner is responsible for removing the hazard tree if the tree is outside of the city maintenance responsibility list and poses a threat to their private property. The abutting property owner is responsible for removing any hazard tree within an unimproved right-of-way.

B. Obstructive Tree.

1. Definition. Any tree or other vegetation which impedes vehicle or pedestrian traffic or obstructs the vision of vehicle drivers or pedestrians of traffic control devices when traveling from one roadway to another.

2. Determination. The public works department will make the determination of an obstructive tree or vegetation.

3. Maintenance Responsibility. The parks and recreation department is responsible for removal of the obstruction if located on the city maintenance responsibility list. If the obstruction is not located on the city maintenance responsibility list, the public works department will notify the abutting property owner through the abatement process to have the obstruction removed. In the event the obstruction poses an imminent threat to public safety, public works, in their discretion, may remove the obstruction. [Ord. 10282, 1992].

13.40.090 Treatment and removal of infected or infested trees.

The following rules shall govern the treatment or removal of infected or infested trees:

A. On Parks Department Maintenance Responsibility List. If any tree, plant or shrub in any planting strip or other public place is infected or infested with disease or pest detrimental to the growth, health or life of such trees, the parks department may remove or control such infection or infestation, but if the infection or infestation cannot be controlled or removed, then such tree, plant or shrub may be removed and destroyed if the director finds that such disposition is in the public interest.

B. On Any Right-of-Way Not Included in the City Maintenance Responsibility List. It shall be the responsibility of any person having trees, plants or shrubs, grass or other vegetation growing on abutting rights-of-way to treat or remove any tree or plant so diseased or insect-infested as to be a hazard to other trees and plants. The parks and recreation director shall have authority to require the abutting property owners to take such action as is necessary to control insects, scales, parasites, fungus, and other injurious pests or diseases that would cause serious injury to trees and other plant material within the city.

The parks and recreation director shall notify the abutting property owner in writing, describing the conditions and stating the control necessary for correction, and establishing a reasonable time within which the required steps should be taken or an appeal filed before the hearing examiner. If the property owner questions the necessity of such action, the parks department director may refer to a qualified plant pathologist for confirmation of his judgment and continue the appeal to a reasonable time after the owner has been provided with the report of said expert. In the event that effective steps are not taken within the time specified, the city may enter the property in question to spray, trim, prune, treat or remove all or any part of the tree, plant or shrub determined to be infested or infected and the costs thereof shall be assessed to the owner. [Ord. 2002-10-069 § 27; Ord. 10282, 1992].

13.40.100 Destroying, defacing, or injuring any tree.

It is unlawful for any person to destroy, injure or deface, by any means, any street tree, including but not limited to the following:

A. Pouring any toxic material on any tree or on the ground near any tree;

B. Attaching any sign, poster, notice, or other object on any tree, or fastening any guy wire, cable, rope, nails, screws, or other device to any tree except as used to support a young or broken tree; and except that the city may tie temporary “no parking” signs to trees when necessary in conjunction with street improvement work, tree maintenance work, or parades; or the city authorizing installation of holiday lighting;

C. Causing or encouraging any fire or burning near or around any tree;

D. Harming a tree by cutting the bark or branches with a knife, hatchet or other similar object. [Ord. 10282, 1992].

13.40.110 Protection of trees.

A. All street trees near any excavation or construction of any building, structure, or street work, shall be sufficiently guarded and protected by those responsible for such work as to minimize potential injury to said trees and to maximize their survival.

B. Stakes or guards may be placed alongside or around any street tree; provided, that such supports are placed as near as practical to the tree for which support is intended, and do not restrict access to or from the street or create any hazard to the public. [Ord. 10282, 1992].

13.40.120 Interference with city personnel.

No person shall prevent, delay, or interfere with the directors, or any of their representatives, in the execution or enforcement of the provisions of this chapter. [Ord. 10282, 1992].

13.40.130 Cooperation between city departments and agencies.

Policies shall be developed to ensure close cooperation between the directors and other city departments and public utilities relating to routing of permit applications and the enforcement of the provisions of this chapter. [Ord. 10282, 1992].

13.40.140 Nonliability of city.

Nothing in this chapter shall be deemed to impose any liability upon the city nor upon any of its officers or employees nor to relieve the owner or occupant of any private property from the duty to keep trees and other vegetation upon private property or property under his control in a safe condition. [Ord. 10282, 1992].

13.40.150 Enforcement.

This chapter may be enforced by one or more of the following:

A. Stop Work Orders. In the case of a violation of any provisions of this chapter, a failure to comply with the terms of a permit, or in the case of removal of trees in violation of this chapter, the parks director may order the work stopped by notice in writing served on any persons engaged in the doing or causing such work to be done, and any such persons shall forthwith stop such work until authorized by the parks director or the hearing examiner to proceed with the work.

B. Injunctive Enforcement. Any violation of the provisions of the chapter is hereby declared to be a public nuisance and may be abated through proceedings for injunctive or similar relief in superior court or other court of competent jurisdiction.

C. Violation – Civil Remedies and Penalty.

1. Any person who removes a tree in violation of the terms of a tree removal permit or in violation of this chapter shall be required to plant replacement trees.

2. The director of parks and recreation shall determine standards for establishing reasonable replacement trees, based on comparable caliper of trees unlawfully removed.

3. The director of parks and recreation shall issue an order to the property owner requiring planting of replacement trees and setting reasonable time limits for compliance.

4. The director of parks and recreation shall require a maintenance bond to ensure compliance with the city’s order guaranteeing replacement and survival of trees for a minimum of two years.

5. Any person aggrieved by a final order of the director of parks and recreation with respect to replacing trees shall have 20 days to appeal to the hearing examiner pursuant to the procedure outlined in BMC 13.40.060(F).

6. In addition to any other sanction or remedial injunctive procedure which may be available at law or equity, any person failing to comply with the final order issued by the parks director or hearing examiner shall be subject to a cumulative civil penalty in an amount not to exceed $100.00 per day from the date set for compliance until such order is complied with. Such civil penalty shall be collected by civil action brought in the name of the city. The parks director shall notify the city attorney in writing of the name of any such person subject to such penalty and the amount thereof; appropriate action shall be taken to collect the same.

D. Violation – Criminal Penalties. Any person violating any provision of this chapter or any terms or conditions of any permit issued hereunder shall be guilty of a misdemeanor and upon conviction may be imprisoned for 90 days, fined a sum not to exceed $1,000, or both imprisoned and fined. In addition to the fine, any person found in violation of this chapter shall be required to pay the replacement value of trees and shrubs as determined in accordance with the latest revision of “Valuation of Landscape Trees, Shrubs and Other Plants,” as published by the International Society of Arboriculture. [Ord. 2013-02-006 § 5; Ord. 2002-10-069 § 27; Ord. 10282, 1992].

13.40.160 Severability.

Should any part or provision of this chapter be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of the chapter as a whole, or any part thereof other than the part declared to be invalid. [Ord. 10282, 1992].