This posting is for the final version as passed by the commissioners of Rehoboth Beach

City of Rehoboth Beach

Ordinance No. 2006-

An Ordinance Amending Section 253 Of The Rehoboth Beach Code, By Adding ARTICLE II, Being The Comprehensive Tree Ordinance.

Whereas, the City of Rehoboth Beach has been recognized for its unique wooded coastal environment, which environment is an essential part of the character of the city; and

Whereas, the presence of trees in the City improves, air quality, conserves energy, reduces soil erosion, enhances storm water detention and drainage, and preserves and enhances property values in the City; and

Whereas, over the past several months, the City and its residents have been in process of drafting the Comprehensive Tree Ordinance and has determined that said regulations are necessary and desirable to protect, preserve, and enhance the wooded character and natural resources of the City as described more fully in this ordinance;

Now, therefore, be it Ordained by the City Commissioners of Rehoboth Beach, County of Sussex, State of Delaware, to amend the City Code to read as follows:

Chapter 253: Trees, ARTICLE II COMPREHENSIVE TREE ORDINANCE

SECTION 253-21. FINDINGS

The City Commissioners find that:

The City of Rehoboth Beach adopted the Comprehensive Development Plan in 2003 (certified by the State of Delaware in 2004), which calls for the preservation, protection and conservation of trees within the City;

The City of Rehoboth Beach contains a diversity and abundance of trees that are of economic, recreational, and environmental value to the City and makes it a desirable place for residents and visitors;

The abundance of trees contributes to the City’s unique wooded seaside character and distinguishes the City from many other coastal communities;

The appearance of Rehoboth Beach contributes to the economic prosperity and general welfare of the City;

5. Growth and development in the City of Rehoboth Beach often results in the removal of trees, thereby contributing to their depletion, and

It is necessary to protect and manage trees as valuable assets in order to protect and enhance the health, safety, and welfare of the citizens of Rehoboth Beach.

SECTION 253 – 22. PURPOSE

The City Commissioners declare the intent of this Ordinance is to:

Regulate the protection, planting, removal, and long-term management of trees within the City;

Require a survey of existing trees and a plan for tree preservation prior to development, redevelopment or subdivision of a lot;

Establish a system of permits to assure density, correct maintenance, protection and removal of trees on public and private property; and

Establish remedies and penalties for violations of its provision.

SECTION 253 - 23. APPLICABILITY

The terms and provisions of the Comprehensive Tree Ordinance shall apply to all real property, public or private, lying within the municipal boundaries of the City of Rehoboth Beach, Delaware. It shall apply to the removal of any tree that would lead to the violation of Section 253-26 of this Ordinance, any activity which requires the issuance of a building or demolition permit or the approval of an application for subdivision, and to other actions as specified in this Ordinance. No building or demolition permit or approval of an application for subdivision shall be issued until it is determined that the proposed action is in conformance with the provisions of this Ordinance.

SECTION 253 - 24. DEFINITIONS & WORD USAGE

For the purposes of this Ordinance, certain words or terms used herein shall be interpreted as follows:

Words used in the singular shall include the plural, and the plural the singular; words used in the present tense shall include the future tense.

The word “person” includes individual, firm, corporation, partnership, joint venture, limited liability company, association, principal, trustee, municipal corporation, political subdivision, special district, or other entity, or any agent or representative of any of the foregoing.

The word "shall" is mandatory and not discretionary. The word "may" is permissive.

The phrase "used for" shall include the phrases "arranged for", "designed for", "intended for", and "occupied for".

The word “lot” includes the words “parcel”, “land”, “site”, and any other real property whether or not legally designated as a “lot” for purposes other than this Ordinance, including multiple “lots” that have been or will be merged and all new “lots” that will be created through subdivision.

As used in this Ordinance, the following terms shall have the meaning indicated in this Section. Words not defined herein shall be interpreted so as to give them the meaning they have in common usage and to give this Ordinance its most reasonable application.

ANSI Standards – Tree standards set by the American National Standards Institute

Caliper: The diameter of a tree trunk measured at 6 inches above the ground for trees less than or equal to 4 inches in diameter at 6 inches above the ground. For trees with a diameter greater than 4 inches at 6 inches above ground the caliper shall be measured at 12 inches above ground.

City Arborist: A certified arborist recognized by the International Society of Arboriculture (ISA) employed by the City as an employee or on a contractual basis to perform duties identified in this Ordinance.

City Parks and Shade Tree Commission: The Commission established by the Commissioners of Rehoboth Beach to serve as an advisory body to the City Commissioners, City Manager and City Arborist in the administration of this Ordinance.

Clearing: For the purposes of this Ordinance clearing shall be defined as the removal of a tree or trees of 3” caliper or greater on a lot.

Commercial Property: Commercially zoned property

Crown spread: The average diameter of the drip line.

Demolition: Demolition shall include the destruction of all or part of a structure or the removal of all or part of any structure to any off-site location.

Deciduous Tree: A tree that sheds all of its leaves according to genetically scheduled cycles during the cold season in temperate zones.

Damage: Severe decline, disfigurement, discoloration, defoliation, removal or death of any tree, which is intentionally caused or is the result of recklessness or negligence.

Development: The act, process or state of the erection or demolition of structures, or adding to existing structures, or subdivision of a lot.

Drip Line: A line encircling a tree corresponding to the furthest extension of the branches of a tree which line is used, in turn, to calculate crown spread.

Evergreen Tree: Sometimes also known as a “conifer”, any cone bearing tree or other tree that has its seeds in a structure called a cone.

Grubbing: The removal of a tree or trees from land by means of digging, raking, dragging or otherwise disturbing the roots of trees and the soil in which such roots are located.

Hatracking: To flat cut the top of a tree, severing the leader or leaders; or to trim a tree by stubbing off mature wood larger than three (3) inches in diameter; or to reduce the total circumference of crown spread not in conformance with the current ANSI standards.

Healthy: As that term is defined by the International Society of Arboriculture.

Historic Tree: A tree as defined in Section 253-28.3 of this Ordinance.

Land Clearing: The clearing of all or parts of a parcel of land of its natural and man made elements

Line Tree: Any tree located on a property line.

Native Tree: A particular type or species of tree that is known to grow naturally in Delaware.

Net Buildable Area: 1) In the case of new construction, the land space to be occupied by the principal structure to be built, which cannot exceed legal setback requirements. 2) In the case of an existing building which is the principal structure, the land space occupied by the structure. 3) In the case of an existing structure for which a permit is sought for an addition 500 square feet or over, the total land space to be occupied by the existing structure together with the proposed addition.

Protected tree: Any tree meeting one or more of the following descriptions:

(a) A specimen tree, tree stand or historic tree as defined in Section 253-28 of this Ordinance;

(b) An existing tree of 3 inches caliper or more which is necessary to meet the density requirements of Section 253-26 of this Ordinance;

(d) An existing tree of 3 inches caliper or more that is in the area between the front lot line and the front of an existing residential structure.

Remove or removal: This shall mean:

(a) The actual removal of trees;

(b) Direct or indirect actions capable of resulting in the effective removal of trees through damage or poison; or

(c) Similar actions directly or indirectly capable of resulting in the death of a tree subject to the provisions of this Ordinance.

Residential Property: Residentially zoned property

Small Specimen Tree: A specimen tree that is small, such as dogwoods, hollies, cedars or ornamentals such as Crepe Myrtle, or other trees as determined by the City Parks and Shade Tree Commission

Specimen Tree: A tree as defined in Section 253-28.1 of the Ordinance.

Subdivision: A subdivision of a lot as defined in Chapter 236 of the Code of the City of Rehoboth Beach.

Topping: To trim a tree to prevent the natural upwardly growth of a tree, significantly altering its natural shape.

Tree: A living, woody plant having a well-defined stem, a more or less well-defined crown and which is capable of attaining a height of at least fifteen (15) feet.

Tree stand: A contiguous grouping of two or more trees which has been determined to be of high value by the City Arborist.

Tree survey: An aerial photograph or drawing plotted to scale and prepared by a Delaware registered surveyor, which provides the location, size and common name/and or botanical name of all protected trees located in a given lot or lots.

Trim: To reduce, shorten, diminish or prune a tree or parts of a tree, without substantially altering the existing shape or damaging the tree or shortening its life span.

SECTION 253- 25 CITY PARK AND SHADE TREE COMMISSION

The City Park and Shade Tree Commission shall carry out duties authorized by this Ordinance and other tasks assigned by the Commissioners of the City of Rehoboth Beach.

SECTION 253 – 26 . MINIMUM TREE DENSITY REQUIREMENTS

All residential lots, whether or not they contain a structure, and all residentially-used lots that are commercial lots or mixed-use lots or other lots that are not residential lots, must maintain an average minimum tree density of twenty six (26) trees per acre, subject to adjustments as stated in this subsection. Tree density may be achieved by existing trees or planting of new trees. The specific tree density requirements for each lot are as follows:

Each single family residence lot in a residence district shall have at least three (3) trees on the lot for each 5,000 sq. ft of land, or one (1) tree for each 1,666 sq. ft of land for lots smaller or larger than 5,000 sq. ft. In calculating the minimum tree density required for a lot where dividing the square footage of the lot by 1,666 results in a tree density requirement that contains a fractional number, that fractional number shall be increased to the next highest number if the fractional number is .5 or higher.

Each residence lot in a residence district other than a single family residence lot and each commercial or mixed-use or other lot not in a residence district shall have at least two (2) trees per dwelling unit. Section 253-35.5 may be used to meet the requirements of this paragraph.

In meeting the density requirements set forth in paragraph a or b in subsection 1 above, the following shall apply:

Evergreen, deciduous or small specimen trees may be counted to meet the density requirements, provided that (i) only evergreen or deciduous trees exceeding three inches caliper may be counted; and (ii) only small specimen trees exceeding 2 inches caliper may be counted; (iii) only one small specimen tree may be counted for each 5,000 sq. ft; (iv) no more than one third of trees counted toward the density requirements may be evergreens.

A line tree may not be counted in calculating tree density under Section 253-26.

Existing trees and new trees planted according to the minimum standards in this Ordinance, or a combination of the two, may be counted to meet the density requirements, provided that (i) the location of the trees must provide adequate room for tree growth and health and shall take into account aesthetic appearance; (ii) where one or more trees are planted to meet the density requirements, at least 1 tree, existing or planted, shall be in the front setback area; (iii) where existing trees are used to meet the density requirements, and at least 1 existing tree is in the front setback area, then at least 1 existing tree in that setback area shall be preserved to meet the density requirements.

Lots located within one block of the ocean that do not conform to the tree density requirements in subsection 1 of this section may select salt tolerant tree species from the recommended listing of salt tolerant trees to be specified by the City to meet the tree density requirement.

The density requirements shall be met whether or not a lot had trees prior to the filing of an application for a building or demolition permit or for the approval of a subdivision.

Notwithstanding anything else to the contrary in this section, if a lot does not meet the density requirements in subsection 1 of this section as of its effective date, then such property owner shall not be required to meet such density requirements for such lot unless an application is filed for a building permit for a structure of 500 square feet or larger or demolition permit or for a subdivision of such lot; provided that, in the event that an existing tree on such lot is or becomes dead or significantly diseased, thereby reducing the tree density below the density required by subsection 1 of this section, it shall be removed and replaced by a tree of at least three inches caliper in size which is of a type listed in Appendix A and which shall be planted in a location as near to the removed tree as is reasonably possible; and provided, further, that the density requirements in subsection 1 of this section shall apply upon any conveyance or transfer of such lot.

Whether or not the density requirements in subsection 1 of this section are applicable to a lot, all reasonable efforts must be made to save protected trees on a lot. Reasonable efforts shall include, but not be limited to, alteration of building design; alternate location of building, parking area, water retention or drainage infrastructure; or relocation of utilities. The provisions of Section 253-35.6. shall apply to efforts made under subsection 5 of this section.

No tree removal or land clearing permit will be issued and no tree protection plan will be approved if it will result in a tree density less than that specified in subsection 1 of this section.

SECTION 253- 27. MAINTENANCE OF TREES

Property owners shall maintain all trees on their lots so that they are healthy and present a neat and orderly appearance free of refuse and debris.

SECTION 253 - 28. GENERAL CRITERIA FOR THE DETERMINATION OF SPECIMEN TREES, TREE STANDS, OR HISTORIC TREES

Specimen tree:

(a) Any tree in healthy condition, which equals or exceeds the following diameter size.

i. 24” caliper for deciduous trees such as but not limited to oaks, hickories, yellow poplars, and sweet gums.

ii. 26” caliper for evergreen trees such but not limited to pines

iii. 4” caliper for trees other than deciduous trees and evergreen trees, including but not limited to trees such as dogwoods, hollies, cedars, or ornamentals such as crape myrtle

(b) A specimen tree must also meet all of the following minimum standards:

i. A life expectancy of greater than 15 years

ii. A structurally sound trunk, not hollow and having no extensive decay and less than (20) percent radial trunk dieback.

iii. No more than one major and several minor dead limbs (hardwoods only).

iv. No major insect or pathological problems.

Tree stand – A contiguous grouping of two or more trees which has been determined to be of high value by the City Arborist based upon the following criteria:

(a) A relatively mature, even-aged stand.

(b) A total diameter of 14 inches or greater.

(d) A stand of historical significance.

(e) A stand with exceptional aesthetic quality.

Historic Tree - A tree which has been determined to be of notable historic interest and value to the City because of its location, size, or historic association with the community, and which has been so designated by the City Parks and Shade Tree Commission in the official record books of the City after reasonable notice by certified mail to the lot owner and by reasonable public notice in advance of a public hearing at which the lot owner and the public may be heard.

Section 253 - 29. SUBMISSION OF PLANS WITH APPLICATIONS FOR BUILDING OR DEMOLITION PERMIT, FOR APPROVAL OF A SUBDIVISION, OR FOR TREE REMOVAL PERMIT, OR IN CONNECTION WITH PUBLIC DEVELOPMENT.

When an application for a building or demolition permit or for the approval of a subdivision is required by the Code of the City of Rehoboth Beach, or where an application for a tree removal permit must be filed pursuant to section 10 of this Ordinance, a tree survey/protection/planting plan for each lot will be submitted to the City together with such application and all documents required to be filed in connection with such application; provided, however, in the case of an application for a building permit relating to a residence or the lot on which it is located, such plan must be filed only in connection with an application for improvements greater than 500 sq. feet of space for a residence. Review of such tree survey/protection/planting plan and any approval thereof will proceed in the same manner by the same City officials and/or entity responsible for reviewing and approving the application for building or demolition permit or for approval of a subdivision. The tree survey/protection/planting plan shall also be prepared in connection with any public development.

Tree survey/protection/planting plans shall include the following information for a lot:

(a) Dimensions of the property.

(b) Location, type and size of all existing trees or tree stands, and a notation of whether each such tree or tree stand is to be preserved or removed.

(c) Location of all structures, freestanding signs, parking areas, drives, vehicular use areas, curb cuts, retention/detention areas, other improvements and other features on the lot as may be required in the application for any permit described in subsection 1 of this Section 253-29, and a notation of which and to what extent each of the foregoing as exist shall remain or will be removed from the lot, and which of the foregoing are proposed for creation or installation on the lot.

(d) Location of existing and proposed overhead or underground power lines and other utility lines, such as but not limited to water and sewer, and adjacent rights-of-way.

(e) Location and description of existing native tree communities to be preserved and remain undisturbed;

(f) Location, type, size, and quantity of all trees proposed to be planted.

(g) General notes including mulching requirements, fertilization and planting details, and such other information as needed;

The City may designate, as appropriate, one or more protected areas on any lot meeting the description in Section 253-32 of this Ordinance when it is essential for the limited purpose of protecting the roots and trunk of a tree or trees during or after construction or demolition or other activity for which the application has been filed.

Tree survey/protection/planting plan Review Fee. A non-refundable administrative fee of fifty dollars ($50) to offset the cost of reviewing each plan required by this Section 253-29 will be collected by the City, except when submitting an application to replace a dead or diseased tree, in which case the fee shall be waived.

SECTION 253- 30. TREE REMOVAL AND LAND CLEARING PERMITS

Tree removal and land clearing permits shall be applied for and obtained prior to beginning any activity on a lot which is intended to or may reasonably affect any tree as described below in this section.

Tree Removal. No person shall, directly or indirectly, cut down, substantially alter, destroy, remove, relocate, damage, or authorize any such act involving, a protected tree situated on any land within the City of Rehoboth Beach without first obtaining a tree removal permit. No permit shall be issued to remove any protected tree unless removal is by a licensed tree professional who is certified by the International Society of Arboriculture. All trees to be removed must be clearly marked with paint or other non removable material.

The following permits shall be available upon proper application at the Building Inspector or City Arborist’s office in compliance with this section: tree removal permit and land clearing permit.

(a) Tree removal permit. No tree removal permit shall be issued unless the City finds that at least one of the following criteria is satisfied with respect to each protected tree designated for removal:

i. In the case of an application for a building or demolition permit or for approval of a subdivision, the tree is located within the net buildable area of a given lot as identified on the tree survey/protection/planting plan, provided that alternatives under Subsection 253-35.6 of this Ordinance have been considered;

ii. The tree is located within an existing or proposed public or utility company right-of-way and relocation of such right-of-way or the use thereof is not reasonably practicable;

iii. The tree is located within an existing or proposed public easement, stormwater management tract or facility, provided that only the minimum area reasonably necessary for the public service or use shall be considered for purposes of determining whether there is necessity for tree removal;

iv. The tree is located where it creates or will create a material safety or health hazard or nuisance with respect to existing or proposed structures or vehicles or pedestrian routes, and such hazard or nuisance is not innate to or commonly associated with the existence of trees in general (for example, lightning, wet leaves on the ground during rainstorms);

v. The tree is located where it interferes with the installation, delivery or maintenance of proposed or existing utility services to the lot and relocation of such services is not reasonably practicable, except that a higher degree of necessity must be demonstrated by the applicant in the case of a historic tree.

vi. The tree is determined by the City to be dead, significantly diseased, severely injured or in danger of falling; or

vii. The tree prevents reasonable development of a lot that is otherwise permissible under City Ordinances. However, a tree removal permit shall not be granted where the applicant has failed to design and locate the proposed improvements, demolition or subdivision so as to minimize the removal of trees consistent with the permitted use of the lot and shall be granted only after full consideration of alternatives under Subsection 253-35.of this Ordinance.

(b) Land clearing permit. A land clearing permit does not authorize the damage, removal, relocation or destruction of protected trees. No land clearing permit shall be issued unless the City finds that each of the following criteria is satisfied:

i. The clearing or grubbing is necessary to make those certain site improvements on a lot as authorized by an approved application for a subdivision or by the issuance of a building or demolition permit. Where an approved application for subdivision or a building or demolition permit are not required for an intended use of a site on a lot to be cleared, the proposed clearing may only be for an area which is the minimum necessary for such use.;

ii. The applicant provides a written erosion control plan describing methods to control erosion which may be expected to occur as a result of the proposed clearing or grubbing;

iii. The applicant is complying with all other provisions of this Ordinance and state, county and federal laws, rules and regulations.

2. Exempt activities. The following activities shall be exempt from the requirements of this section:

(a) Trimming of trees when necessary to conduct a survey or site examination for the preparation of subdivision plats, plans or tree surveys.

(b) Routine tree maintenance such as trimming that is not intended to result in the eventual death of the tree but rather in order to maintain a healthy, neat and orderly appearance, or any other activity which is commonly recognized as routine tree maintenance.

(c) Removal or trimming of any tree in an existing utility easement or public right of way, provided such work is done by or under the direct control of the operating utility company and said company has received all necessary licenses or permits to provide utility service within the easement and said company has documented the need for said removal or trimming. However, this exemption shall not apply to the removal or trimming of any specimen tree, tree stand or historic tree.

(d) Removal or trimming of any tree for the purpose of maintaining an existing legally required access to a property.

(e) Removal or replacement of any tree which has been destroyed or damaged beyond saving, from extreme weather conditions, insects, disease or fire, or which constitutes an immediate peril to life or property, in any such case where it has been determined to be such by the City.

3. Display of permit. The applicant shall prominently display on the site the permit issued, on a sign prescribed by the Commission. Such permit shall be displayed continuously while trees are being removed or replaced or work done as authorized by the permit. As a condition for the issuance of a permit, the applicant shall agree in writing to entry onto his lot by representatives of the City as designated by the City Arborist to inspect the permit and activities at any time, and such entry shall be lawful. Failure to allow such entry shall be unlawful and shall constitute failure to display the permit as required under this section.

4. Application. Application for tree removal or land clearing permits shall be made in writing on the form provided by the City. The form shall include but not be limited to the following:

(a) Statement as to the applicant’s ownership interest in the lot;

(b) Legal description of the lot and a boundary survey or accurately scaled drawing thereof;

(c) A tree survey/protection/planting plan for the lot, if required, meeting the standards of Sections 253-29 or 243-32 of this Ordinance.

(d) If land clearing is intended, a plan for compliance with this section.

(e) The application should be submitted and processed concurrently with the application for building or demolition permit or for approval of a subdivision. All items shown shall be properly dimensioned, scaled and referenced to the property lines and set back requirements. Existing and proposed site elevations and major contours should be included in the case of a proposed subdivision.

(f) The filing of an application shall be deemed to extend permission to the City to inspect the property subject to such application, if inspection is found necessary for purposes of evaluating the application.

(g) For those applications that are not being processed concurrently with an application for a building or demolition permit or for approval of a subdivision, in which case longer periods of time may occur, the City shall have a reasonable time following the receipt of a completed application within which to make a determination on whether a permit shall be issued as requested. If the permit is not issued, the City shall state in writing the reasons for denial and advise the applicant of any re-submission requirements or appeal remedies available. Should additional review time be necessary due to complexity of the submission, the City may have a reasonable extension of time within which to complete its review.

(h) Any permit issued hereunder shall remain valid for a term of six (6) months and may be renewed for a second six month period upon request to the City. The City may require re-application and full review in those renewal instances where conditions on a lot have changed from the date of issuance of the initial permit as a result of natural growth of trees or high winds, hurricane, tornado, flooding, fire or other acts of God. If a permit required by this section has been issued concurrently with the building or demolition permit or approval of an application for a subdivision, then such permit shall run concurrently with the building or demolition permit or subdivision approval and may be renewed together therewith.

5. Permit Application Fees

(a) Tree Removal Permit Fee. A non-refundable administrative fee of fifty dollars ($50) to offset the cost of evaluating the application will be collected by the City, except when submitting an application to replace a dead or diseased tree, in which case the fee shall be waived.

(b) Land Clearing Permit Fee. A non-refundable administrative fee is required based on the following:

i. Permit for properties under one half acre will be a flat fee of five hundred dollars ($500).

ii. Permit for properties over one half acre will have a fee calculated at five hundred dollars ($500) per acre and rounded to the closest full acre.

iii. Fee to off set the cost of evaluating the application, erosion control plan and site to be cleared will be collected by the City.

(c) The permitting requirements of this section may be suspended or waived by the City during a period officially declared by the City Manager, such as a storm or other City emergency.

SECTION 253 -31. TREE SURVEY INSPECTION

Following the receipt of the completed application for a tree removal permit, a land clearing permit, or approval of a tree survey/protection/planting plan, the City Arborist shall schedule and conduct an inspection of the proposed development site within such period of time as may reasonably be required to verify the information contained on the application. The applicant or his designee shall be advised as to the date and time of the inspection and given an opportunity to participate. Following inspection, the City Arborist, consistent with the purpose of this Ordinance, shall advise the applicant in writing of any recommended changes in the applicant’s proposed tree removal, protection or replanting plans.

SECTION 253-32. TREE PROTECTION DURING CONSTRUCTION

The City may designate, in special circumstances, a protected area on the site that shall be subject to the following provisions:

1. No person shall encroach or place solvents, material, construction machinery or temporary soil deposits with six (6) feet of the area outside the drip line, as defined herein, of any protected tree or any tree within a tree protection zone.

2. Before development, land clearing, filling or any land alteration, the developer shall be required to erect suitable protective barriers as required by the City Arborist, including tree fences, tree protection signs, and erosion barriers until completion of site work. Authorization to remove the protective devices shall be in writing by the City Arborist or by the issuance of a final Certificate of Occupancy. Inspection of tree protection barriers is required prior to any land disturbance or development. The City Arborist shall be contacted to schedule an inspection time.

3. Materials for active tree protection shall consist of chain link, orange laminated plastic, wooden post and rail fencing or other equivalent restraining material. In addition to fencing, where active tree protection is required, each tree to be saved shall be marked at the base of the trunk with blue colored water-based paint.

4. Materials for passive tree protection shall consist of heavy mil, plastic flagging, a minimum of four (4) inches wide with dark letters reading “Tree Protection Area - Do Not Enter” or equivalent signage on a continuous, durable restraint.

5. All tree protection devices must remain in functioning condition until the Certificate of Occupancy is issued.

6. Any tree designated in the tree protection plan to be saved, which is damaged during construction or as a result of construction, as determined by the City Arborist, shall be treated in accordance with accepted ANSI Standards, or replaced with a tree or trees equal to the caliper value of the tree removed. However, any specimen or historic tree damaged as described above shall be replaced with trees of a total caliper equal to two (2) times the caliper value of the tree removed or damaged; except that, in the case of a specimen tree as described in Section 253-28.1.a (i) or (ii), or in the case of a historic tree, no replacement tree shall be less than 6 inches caliper.

SECTION 253-33. TREE SPECIFICATIONS

Trees planted to meet the tree density requirements of Section 253-26, or the requirements of Section 15 of this Ordinance shall be of species which in Sussex County, Delaware at maturity will have a minimum height of 15 (fifteen) feet.

SECTION 253-34. TREE PLANTING REQUIREMENTS

All trees shall be planted in compliance with the following:

1. In accordance with the approved plan and inspected prior to issuance of the certificate of occupancy, if applicable. Such inspection shall include verification that planting soil meets specified composition and depth requirements. In the event there are any changes to the approved tree plan, such changes must be reviewed and approved by the City and noted on the plan prior to notification for the final inspection for a certificate of occupancy.

2. Trees which are balled and burlapped must be planted according to ANSI standards. If stakes or guy wires are used to support a tree in a dune or windy area, the wire must be covered with protective material where it is in contact with the tree. The stakes or guy wires must be removed after one (1) year.

3. Trees of species whose roots are known to cause damage to public roadways or other public works shall not be planted closer than twelve (12) feet to such public works, unless the tree root system is completely contained within a barrier for which the minimum interior containing dimensions shall be three (3) feet by five (5) feet and five (5) feet deep, and for which the construction requirements shall be six-inch thick concrete with fiber (not wire) mesh or by a root barrier product approved by the City Arborist.

4. To minimize traffic hazards at street intersections, all tree plantings must provide unobstructed views.

5. Prior to the issuance of the certificate of occupancy, the tree planting shall be certified as complete and in conformance to the approved tree plan by submission of a certification letter by a licensed tree professional who is certified by the International Society of Arboriculture (ISA).

SECTION 253-35. TREE PROTECTION AND MITIGATION

1. Prior to the removal or grubbing of protected trees on any lot, the tree protection plan shall demonstrate that reasonable effort was made to site impervious surfaces on the lot so as to protect such trees.

2. Any protected tree, other than those specified in Section 253-28.1.a.(iii) that is at least twenty four (24) inches caliper, shall be preserved and protected in accordance with this section, unless the tree prevents the reasonable development of a lot, or is determined to be a material safety hazard or a cause of material damage to structures or more desirable trees around it and such hazard is not innate to or commonly associated with the existence of trees in general (for example, lightning, wet leaves on the ground during rainstorms), or is infected with significant disease from which it is unlikely to recover. A land clearing applicant shall demonstrate why the tree should not be protected or why it is not feasible to develop without removing the tree.

3. When a protected tree, other than those specified in Section 253-28.1.a.(iii), that is at least twenty four (24) inches caliper is to be removed pursuant to a tree removal permit, such permit shall not be issued unless the City Arborist approves a mitigation plan. Any replacement trees which are the subject of such mitigation shall be planted, relocated, or preserved before issuance of the final development approval or certificate of occupancy.

4. When a tree specified in Section 253-28.1.a(iii) is to be removed pursuant to a tree removal permit, such permit shall not be issued unless the City Arborist approves a mitigation plan. Any replacement trees which are the subject of such mitigation shall be planted, relocated, or preserved before issuance of the final development approval or certificate of occupancy

5. Mitigation shall be required for the loss of any protected tree of at least twenty four (24) inches caliper, or a tree described in Section 352-28.1.a. (iii) that is at least four (4) inches caliper and shall include the following:

(a) The replacement trees, either preserved, relocated or newly planted, shall be of the same or other native species as the tree(s) approved for removal;

(b) The quality and size of the replacement trees shall be at least 12 feet tall and three (3) inches caliper. Any tree which is the subject of a mitigation plan shall be replaced at a ratio of one (1) inch caliper for each inch of caliper removed. Where the loss is due to disease or storm damage to a specimen or historic tree the mitigation to the specimen or historic tree shall be one (1) inch caliper of the replacement to every two (2) inches caliper of the trees lost.

(c) The following mitigation credit shall apply: Trees preserved or relocated on-site, which exceed the minimum requirements of this article shall count as equivalent replacement caliper;

(d) The replanting design shall provide adequate space for root and crown development;

(e) The property owner shall be responsible for maintenance of the mitigation trees, such responsibility to include replacement of unhealthy and dead trees. The property owner shall submit to an on-site inspection of the planted/preserved trees twelve months after the approval of the plan or permit. If it is determined that the planted tree is dead, diseased or otherwise not in compliance with provisions of this code and the original approved mitigation plan, the property owner shall be provided notice and directed to correct any such deficiencies and replace all non-compliant materials within sixty (60) days.

6. Where a property must comply with the tree density requirements or other requirements for tree replacement under this Ordinance and the property is shown clearly not suitable for on-site mitigation, the property owner or permit applicant shall, with City approval, provide for use of a site on City public lands providing that the applicant furnishes all necessary services incidental to such mitigation on public property, including but not limited to funding of tree maintenance and labor.

7. Tree protection as justification for variance. The interest in preserving a specimen or historic tree as defined in Section 253-28 shall be considered prima facie a unique or special condition or circumstance peculiar to the land involved for the purpose of application for a variance from the literal requirements of a land development Ordinance, such as building set backs, parking space requirements, or minor or residential street right-of-way widths, providing adjustments are made elsewhere on the site to preserve the maximum permitted lot coverage and the total minimum number of parking spaces, and provided safety precautions are taken to offset any hazard resulting from decreased right-of-way widths. Any such request shall be heard by the Board of Adjustment.

8. Trimming. Trees may be trimmed as necessary to promote uniform healthy growth, a clean, neat and healthy condition and to allow a tree to attain its natural size. Trees may be trimmed to remove diseased or dying portions in areas where falling limbs may be a hazard to people or property. Lower limbs and suckers may be selectively removed to provide clearance for pedestrians. Property owners are responsible for ensuring that there is eight feet (8’) of clear space above sidewalks and streets and no lateral intrusion into the sidewalk or street area within this 8’ high clear space. Should the property owner fail to maintain such clearance, the City shall have the authority to trim or remove any tree or shrub that infringes vertically or horizontally into the space and charge the property owner for the cost of trimming or removal. Severe cutting back of lateral branches and canopy or topping or hatracking trees is expressly prohibited.

SECTION 253-36. ADMINISTRATIVE APPEALS

Any appeal of a decision involving the grant or denial of an application for a tree removal permit or land clearing permit may be filed with and shall be heard by the City Park and Shade Tree Commission. Any such appeal shall be submitted in writing to the City Manager and forwarded for review to the City Arborist and Park and Shade Tree Commission. Any appeal must be initiated by a written notice filed with the City Arborist within thirty (30) days of the date of the administrative determination which is the subject of such appeal.

1. Fee In-Lieu of Mitigation. A fee in-lieu of mitigation will be acceptable as determined by the City only through the appeals process. The applicant shall demonstrate that that the replacement of trees on the project site is not a viable option for the reasons that meeting the requirements set forth herein would result in undue hardship, that all reasonable alternatives pertinent to protection and mitigation have been exhausted, and that granting a fee in-lieu of mitigation will not adversely impact the intent and purposes of these regulations.

2. Tree Preservation Account. The equivalent monetary value of the tree(s) as well as projected costs for planting and maintenance will be assessed by the City Arborist as part of the appeals process. Moneys received from the property owner as a fee in-lieu of mitigation will be placed in the City’s Tree Preservation Account for planting trees on public property, or as the City declares appropriate to preserve and manage trees for the purpose of protecting the health, safety and welfare of citizens of Rehoboth Beach.

In consideration of appeals and fee in-lieu of mitigation, and the purposes set forth for these regulations, the City Arborist and Park and Shade Tree Commission may impose or require such additional restrictions and standards as may be necessary to protect the health and safety of workers and residents in the community, and to protect the value and use of property in the general neighborhood. Any appeal of a decision made by the City shall be made to the City Commission.

SECTION 253-37 EMERGENCIES

In case of emergencies, such as hurricane, windstorm, ice storm, flood or other disaster, the requirements of these regulations may be waived by the City Arborist or other designated official, upon a finding that such waiver is necessary so that public or private work to restore order in the City will not be impeded. In the event of emergencies that may be an imminent hazard or threat to life an individual owner, without prior approval, may take such action as may be necessary

SECTION 253-38. ENFORCEMENT AND REMEDIES

While any application is pending for an action for which a permit is required under this Ordinance or after the grant of any such application, or while a request for approval of a tree survey/protection/planting plan is pending or after the grant of any such approval, the City may inspect a lot to determine if any activities have occurred in violation of this Ordinance or contrary to an approved tree survey/protection/planting plan. In addition, after a twenty-four (24) month establishment period for tree planting and mitigation the City will inspect the required plantings at least one (1) time a year. Maintenance shall include the replacement of all unhealthy/dead material within thirty (30) days after a notification of violation in conformance with the approved tree plan. Violations of this Ordinance, or failure to maintain all required trees as reflected in the approved tree survey/protection/planting plan, shall be grounds for action by the City Arborist and Park and Shade Tree Commission and any other appropriate City official or entity for appropriate action, including but not limited to postponement of action or denial of a pending application, revocation of any issued building or demolition permit or certificate of occupancy, revocation of any issued permit for tree removal or land clearance, and specific performance or other equitable relief in the Chancery Court. The thirty (30) day rule for compliance may be extended when necessary, by the City Manager to allow for recovery from acts of nature such as a wind damage or drought, or to allow planting during the appropriate planting seasons of spring and fall.

SECTION 253-39. PENALTY

1. Any person, firm or corporation violating any provision of this Ordinance shall be punished as described herein and in addition thereto may be enjoined from continuing the violation. Each tree cut, damaged or poisoned shall constitute a separate offense. Any tree removed without the proper permit will be subject to a fine of five hundred dollars ($500). If said fine is not paid within 7 days the fine will be $500 per day for each day thereafter that the fine is not paid. If said tree is removed by a licensed tree care professional, the tree care company will forfeit its business licenses to work within the City for a period of two- years. Payment of such fines shall be the responsibility of the property owner.

2. In addition to the monetary penalty specified above, violations of this article involving trees of 6 caliper or greater shall be subject to mitigation as follows:

(a) The replacement tree shall be a native species;

(b) The quality and size of the replacement trees shall be at least 12 feel tall and at least three inches caliper. Any tree which is the subject of a mitigation plan shall be replaced at a ratio of at least I inch per caliper for each inch of caliper removed;