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HomeMy WebLinkAboutOrdinance - 17-90 - Tree Ordinance - 04/17/1990 Y •,4 ORDINANCE "NO. 17-90 AN ORDINANCE OF THE CITY OF EDEN PRAIRIE, MINNESOTA AMENDING CITY CODE SECTION 11.55 BY AMENDING THE TITLE THEREOF AND SUBDS. 1, 2, 3 AND 5 THEREOF RELATING TO LAND ALTERATION AND ENVIRONMENTAL PRESERVATION REGULATIONS; AND AMENDING CITY CODE SECTION 12. 04, SUBD. 5 . C. RELATING TO APPROVAL OF SUBDIVISIONS; AND, ADOPTING BY REFERENCE CITY CODE CHAPTER 1 AND SECTIONS 11.99 and 12.99 , WHICH AMONG' OTHER THINGS, CONTAIN PENALTY PROVISIONS: THE CITY COUNCIL OF EDEN PRAIRIE, MINNESOTA, ORDAINS: Section 1. City Code Section 11.55 , Subd. 1. is amended by amending the title thereof and amending Subd. 1 to read as follows: "SEC. 11.55 . MINING OPERATION, LAND ALTERATION, AND ENVIRONMENTAL PRESERVATION REGULATIONS. Subd. 1. Declaration of Policy and Purpose. A. Commercial mining dnd land alterations are now being and for some time have been conducted in certain places in the City. Such acts are inherently accompanied by noise and dust, often create hazardous conditions and result in lasting disfigurement of the places where they are carried on and thus tend to inter- fere with the existing land uses in nearby areas, to discourage further permanent development of the surrounding properties, to impair adequate planning or municipal development, and. to dimi- nish the public health, safety and general welfare. It is, therefore, desirable to regulate both existing operations and any further extension of such mining operations and land alterations in the City. B. It is hereby found that tree removal, damage, and destruction are now, and for some time have been, occurring in certain areas within the City. Such acts tend to endanger the natural character of the land from which the trees have been removed and surrounding lands , and to diminish -and impair the public health, safety, and general welfare. The Council desires to protect the integrity of the natural environment and finds that trees do so by providing for better air quality, scenic beauty, protection against wind and water erosion, and natural insulation for energy preservation. Further, the Council finds that trees protect privacy and provide enhancement of property values . It is therefore the further purpose of this Section to provide regulations relating to the cutting, removal or killing of trees , with the consequent damage and destruction of the wooded and forested areas of the the City, to promote the orderly development of such areas and thereby minimize public and private losses; to insure maintenance of the natural vegetation and 1 topography; to encourage protection and preservation of the natural environment and beauty of the City; to encourage a resourceful and prudent approach to urban development of wooded areas which provides for minimal tree loss and mitigation of tree removal resulting from development; to provide an objective method to evaluate a development' s impact on trees and wooded areas and identify whether and how the impact may be reduced; to provide incentive for creative land use and good site design which preserves trees while allowing development in wooded areas with mitigation of tree removal and destruction; and to provide for enforcement and administration thereby promoting and pro- tecting the public health, safety and welfare." Section 2. City Code Section 11.55, Subd. 2. is amended to read as follows: "Subd. 2. Definitions. The following terms, as used in this Section, shall have the meanings stated: A. "Caliper Inches" - The length, in inches, of a straight line measured through the trunk of a tree 12 inches above the ground. B. "Canopy of a Tree" - The horizontal extension of a tree' s branches in all directions from its trunk. C. "Drip Line of a Tree" - An imaginary vertical line which extends from the outermost branches of a tree' s canopy to the • ground. D. "Developer" - The owner of the land or person who is the applicant for alteration of the land. E. "Diameter" - Wherever this term is used in reference to the measurement of a tree it shall mean a tree' s trunk as measured 4.5 feet above the ground. F. "Impounded Waters" - Any water kept on public or private property within the City in such a manner that more than 500 gallons of water are above the natural surface of the surrounding ground. The word "water" or "waters" as used in the preceding sentence shall be deemed to include any and all liquid substances . G. "Land" or "Parcel of Land" shall mean and include an entire lot as defined in Section 11.02 of the Code •on or within the boundaries of which land alteration has occurred, or is to occur. H. "Land Alteration" - Any excavating, grading, clearing, filling or other earth change which may result in the movement of more than 100 cubic yards of earth, or any alteration " of land of 2 more than one foot from the natural contour of the ground on any contiguous 200 square feet of ground, any cutting, removal or killing of more than 10% of the significant , trees on any land within a period of five years, or any destruction or disruption of vegetation covering an area equal to *or greater than 10% of any parcel of land, or any other significant change in the natural character of the land. I. "Mining Operations" - Any artificial excavation of the earth within the limits of the City operated for the. commercial exploitation of earthly. deposits removed therefrom and creating a depression or depressions exceeding in any one place 200 square feet of surface area, the bottom or lowest point of which shall be 2 feet or more below or lower than the level of the adjoining unexcavated land. J. "Root Zone of a Tree" - The area under a tree which is at and within the drip line of a tree's canopy. K. "Significant Tree" - Any deciduous hardwood tree (except Elm, Willow, Boxelder, and Aspen) measuring 12 inches in diameter or greater, or a coniferous tree measuring 8 inches in diameter or greater. L. "Tree Trunk" - The stem portion of a tree from the ground to the first branch thereof. Any term used in this Section and not defined in this Section shall have the meaning as otherwise defined in the Code." Section 3 . City Code Section 11.55 , Subd. 3 is amended to read as follows : "Subd. 3 . Permit Required. It is unlawful for any person to use land for, or to engage directly or indirectly in, land alteration or mining operations unless such person shall first have applied to and obtained from the Council, in the manner hereinafter provided, a permit authorizing the same, provided, however, that no permit shall be required by any person making any excavation in conjunction with a. building ( i) for which there has been issued an appropriate building permit, and (ii) ' which is to be constructed (a) upon land for which a permit for land alteration under this Section has previously been issued, and (b) in accordance with such permit." Section 4. City Code Section 11.55, Subd. 5 is amended to read as follows: "Subd. 5 . Application For Land Alteration Permit, Fees , Council Action, Bond A. Form of Application. Application for a permit for land alteration shall be made in writing to the Council. The applica- 3 tion shall set forth the location and plan for the proposed land alteration. The application shall also include: 1. The name and address of the person applying for the permit. 2. The name and address of the owner of the land subject to the land alteration. 3 . The estimated period of time within which the land alteration will be conducted. 4 . A topographic map of the land on which the proposed land alteration is to occur having a scale of one inch equals 50 feet and showing ground elevation contours at 2 foot intervals. The map shall show: (a) The land as it exists prior to the proposed land alteration and a minimum of 100 feet of land abutting the land. (b) The proposed ground elevation contours at 2 foot intervals of the land when the land alteration is completed. (c) A regrading, drainage, and planting plan, if appropriate for the land. (d) The location and size of building pads. 5 . A statement relating to the proposed use of the land including the type of building or structure situated thereon or contemplated. to be built thereon. 6 . A tree inventory certified by a registered land surveyor, landscape architect or forester depicting: (a) The size, species, condition, and location on the land of all significant trees. On large wooded sites, forest mensuration methods may be used to determine the total diameter inches of trees outside the area of . the proposed land alteration. (b) Significant trees which will be lost due to the proposed land alteration. Significant trees shall be considered lost as a result of: (i) grade change or land alteration, . whether temporary or permanent, of greater than one (1) foot measured vertically, affecting 60% (as measured on a horizontal plane) or more of the tree' s root zone; ( ii) utility construction ( i.e. sewer, water, storm sewer, gas , electric, telephone and cable TV) resulting in the cutting of 60% or more of the tree's roots within the root zone; ( iii) mechanical injury to the trunk 4 of a significant tree causing loss of more than 40% of the bark; or, ( iv) compaction to a depth of 6 inches or more of 60% or more of the surface of the soil within a significant tree' s root zone. (c) The number, type and size of trees required to be replaced pursuant to this Section. (d) The location of the replacement trees. B. Permit Fees for Land Alterations. A fee in an amount determined by the Council and fixed by resolution must be paid at the time of making the application. In the event the application for a permit is denied, the fee shall be returned to the appli- cant. C. Council Action on a Land, Alteration Permit Application. Within a reasonable time after receipt of an application that conforms with the requirements of this Subdivision and payment of the application fee, the Council shall approve or deny issuance of a permit. The Council may approve the permit subject to con- ditions stated on the face of the permit, and in all cases, the time period within which the land alterations are to be completed shall be stated on the face of the permit. Approval, denial, or approval subject to conditions of a permit shall'-be based upon the following factors : 1. Whether, and the extent to which, the land alterations may create any safety risks to surrounding persons or property or exacerbate any existing risk. 2. Whether, and the extent to which, the land alterations may cause any harm to the environment including, but not limited to, noise, dust, erosion, undue destruction of vegetation, and accumulation of waste materials and pollutants . 3 . Whether the physical characteristics of the land, including but not limited to topography, vegetation, suscep- tibility to erosion or siltation, susceptibility to flooding, water storage or retention, are such that the land is not suitable for alteration or the. use contemplated. 4 . Whether the land alteration or proposed use is likely to cause substantial environmental damage. 5 . Whether the land alteration or the proposed use will be detrimental to the health, safety or general welfare of the public. 6 . Whether adequate plans have been made for restoring the land upon completion of the land alteration. 5 7 . Whether there is a substantial likelihood that the applicant will be able to comply with the rules and regulations 40 of Subd. 7 of this Section. 8 . Whether the land proposed for the land alteration is zoned for the use to which the land shall be put after the land alteration is completed. 9 . Approval or the .issuance of a permit for land alteration shall be further subject to and conditioned upon compliance by the Developer with the following: (a) Developer Required to Replace Lost Trees . A Developer shall replace significant live trees lost or reasonably anticipated to be lost as a result of grading, building upon, or any other land alteration of, the land immediately or in the future, by the Developer, his agent, successor in interest, or any other person to whom or by whom all or any part of the land may be sold, graded, built upon, or altered by planting that number of trees ( "replacement trees" ) determined in accordance with the following formula: A = Total Diameter Inches of Significant Trees Lost as a Result of the Land Alteration B = Total Diameter Inches of Significant Trees Situated on the Land. • C = Tree Replacement Constant (1.33) D = Replacement Trees (Number of Caliper Inches) ( (A/B) x C ) x A = D EXAMPLE A = 337 B = 943 C = 1.33 D = 160 ( (337/943) x 1.33 ) x 337 = 160 The trees required to be replaced pursuant to this Section shall be in addition to any other trees required to be planted pursuant to any other provision of the Code. (b) Location of Replacement Trees . Replacement trees shall be planted in one or more of the following areas on the land: 1. Restoration areas including steep slopes . 6 2 . Outlots or common areas. 3 . Buffer zones between different land uses and/or activities . 4 . Project entrance areas . 5 . Any other part of the land except any thereof dedicated or conveyed to the City, unless the City consents thereto. (c) Sizes and Types of Replacement Trees. Replacement trees must be no less than the following sizes : 1. Deciduous Trees - No less than three caliper inches. 2 . Coniferous Trees - No less than 7 ' high. On steep slopes ( i.e. greater than 3 :1) deciduous trees may be 21 caliper inches and coniferous trees may be 6 feet in height. Replacement trees shall be of a species similar to the trees which are lost or removed and shall include those species shown on the following table: Deciduous Trees Norway Maple - Acer platanoides cultivars - 'Cleveland' Red Maple - Acer rubrum cultivars - 'Northwood' , 'Firedance' Silver Queen Maple ( seedless) - Acer saccharinum 'Silver Queen' Sugar Maple - Acer. saccharum cultivars - 'Green Mountain' River Birch - Betula nigra Hackberry - Celtis occidentalis Green Ash - Fraximus pennsylvanica cultivars - 'Kindred' , 'Newport' , 'Bergeson' , 'Marshall's Seedless' , 'Patmore' , 'Summit' Ginkgo - Ginkgo biloba (male only) Honeylocust Glenditsia tricanthos inermis Kentucky Coffeetree - Gymnocladus dioicus Ironwood - Ostrya virginiana Robusta Poplar - Poplus x Robusta Siouxland Cottonwood = Poplus detoides x Siouxland White Oak - Quercus albs Swamp White Oak - Quercus bicolor Pin Oak - Quereus palustris Northern Red Oak - Quercus rubra American Linden - Tilia americana 7 Littleleaf Linden - Tilia cordata cultivars - 'Glenleven' , 'Greenspire' . Redmond Linden - Tilia americana 'Redmond' Coniferous Trees Balsam Fir - Abies balsamea White Fir - Abies concolor European Larch - Larix decidua Black Hills Spruce - Picea glauca 'Densata' Austrian Pine - Pinus nigra Ponderosa Pine - Pinus ponderosa Norway Pine - Pinus resinosa Scotch Pine - Pinus sylvestris White Pine - Pinus strobus Douglas Fir - Pseudotsuga me nziesii Canadian Hemlock - Tsuga canadensis Colorado Spruce - Picea pungens (d) Time to Perform. Replacement trees shall be planted not less than 18 months from the date of issuance of the permit. (e) Missing, Dead or Unhealthy Trees. Any replacement tree which is not alive or healthy one (1) year after the date that the last replacement tree has been planted shall be removed and a new healthy tree of the same size and species shall be planted in place of the removed tree. A new healthy tree of the same size and species shall be planted in place of any replace- ment tree missing one (1) year after such date. Planting shall occur not later than the first fall or spring following such year. (f) Sources of Trees. Replacement trees shall consist of "certified nursery stock" as defined by Minnesota Statutes §18.46 or other trees ( "wilding trees" ) so long as such wilding trees comply with the following standards. A wilding tree measured in caliper inches shall not 'exceed the maximum height as shown in the table below: Caliper Inches Maximum Height (feet) 2 18 2 18 3 20 3 20 4 24 5 28 The lowest branch of a wilding tree shall not be at a height above the surface of the ground more than one-half of the total 8 height of the tree. (Example: a 16 foot tree must have a branch within 8 feet of the surface of the surrounding ground. Trees planted in place of missing, dead, or unhealthy replacement trees shall consist only of "certified nursery stock" as defined by Minnesota Statutes, §18.46. (g) Agreement to Replace Trees-Security. A Developer, prior to the approval of, or issuance of a permit for, any land alteration in connection with which trees are required to be replaced by the provisions of this Section (i) shall enter into such written agreement or agreements with the City in such form and substance as shall be approved by the City Manager whereby the Developer shall undertake to comply with the provisions and conditions imposed by this Section and in connection with any such approval or issuance of a permit and shall further provide that the Developer shall indemnify the City against any loss , cost or expense, including an amount as and for reasonable attor- neys ' fees incurred in enforcing the terms of such agreement or agreements and (ii) shall provide security for the performance of its obligations pursuant to such agreement or agreements . The security may consist of a bond, letter of credit, cash, or escrow deposit, all in such form and substance as shall be- approved by the City Manager. The amount of security shall be 150% of the estimated cost to furnish and plant the replacement trees ( "estimated cost" ) . The estimated cost shall be at least as much as the reasonable amount charged by nurseries for the furnishing and planting of the replacement trees . The estimated cost shall be subject to approval by the City. In the event the estimated cost submitted by the Developer to the City is not approved by the City the City shall have the right in its sole discretion to determine the estimated cost. The security shall be maintained at least for one (1) year after the date that the last replacement tree has been planted. Upon a showing by the Developer and such inspection as may be made by the City, that portion of the security may be released by the City equal- to 150% of the estimated cost of the replacement trees which are alive and healthy at the end of such year. Any portion of the security not entitled to be released at the end of such year shall be maintained and shall secure the Developer' s obligation to remove and replant replacement trees which are not alive or are unhealthy at the end of such year and to replant missing trees . Upon completion of the replanting of such trees the entire security may be released. Notwithstanding the foregoing, no portion of the security shall be released while there is unsatisfied Developer' s obliga- tions to indemnify the City for any expenses incurred in 9 r enforcing the terms of the agreement provided for in this subsec- tion (g) . (h) The provisions of this Subd. 5 . C. 9. shall not apply to the cutting of trees planted and grown by the owner or owner' s predecessor on real estate which on April 17, 1990 was classified as Class 2b property according to Minnesota Statutes 1989 Supplement, Section 273 .13 , Subd. 23(b) because it was as of such date real estate, rural in character, and used exclusively for growing trees for timber, lumber, and wood and wood products as described in clause (1) of said Subd. 23(b) . D. Duty to Obtain Bond or Letter of Credit Prior to Issuance of Land Alteration Permit. The Council may make its approval of the issuance of a land alteration permit contingent upon applicant posting a bond or letter of credit in addition to the security for replacement trees of not less than $25,000.00 in such form and amount as the Council shall determine within ten (10 ) days of said approval and prior to commencement of any land alteration." Section 5 . City Code Section 12. 04, Subd. 5. C. is amended to read as follows: "C. No plan will be approved for a subdivision - (i) which covers an area subject to soil erosion or periodic flooding, or which has poor drainage, unless the subdivider agrees to make improvements which will, in the opinion of the City Engineer, make the area safe for occupancy, and provide ade- quate street and lot drainage, ( ii) unless there has been compliance with Section 11.55 of the Code, or ( iii) if the Council makes any of the following findings : (1) That the proposed subdivision is in conflict with applicable general and specific plans , including but not limited to the City' s Comprehensive Guide Plan and zoning regulations. (2) That the design or improvement of the pro- posed subdivision is in conflict with applicable development plans. (3) That the physical characteristics of the site, including but not limited to topography, vegetation, susceptibility to erosion and siltation, susceptibility to flooding, water storage, and retention, are such that the site is not suitable for the type of development or use contemplated. ( 4) That the site is not physically suitable for the proposed density of development. (5) That the design of the subdivision or the proposed improvements are likely to cause substantial environmen- tal damage. 10 a ( 6) That the design of the subdivision or the type of improvements will be detrimental to the health, safety, or general welfare of the public. (7) That the design of the subdivision or the type of improvements will conflict with easements on record or to easements established by judgment of a court." Section 6 . City Code Chapter 1 entitled "General Provisions and Definitions Applicable to the Entire City Code Including Penalty for Violation" and Sections 11.99 and 12.99 are hereby adopted in their entirety, by reference, as though repeated ver- batim herein. Section 7. This ordinance shall become effective from and after its passage and publication. FIRST READ at a regular meeting of the City Council of the City of Eden Prairie on the 17th day of April , 1990, and finally read and adopted and ordered published at a regular meeting of the City Council of said City on the lst day of May , 1990. ATTEST: • Clerk yor PUBLISHED in the Eden Prairie News on the 17th day of May , 1990. ' 11