AN ACT authorizing the town of beech mountain to adopt ordinances regulating trees.

The General Assembly of North Carolina enacts:

SECTION 1.  The Charter of the Town of Beech Mountain, being Chapter 246 of the Session Laws of 1981, as amended, is amended by adding a new Article to read as follows:

ARTICLE XI.

MISCELLANEOUS.

Part 1. Tree Ordinances.

Sec. 11.1. Purpose. The Town may adopt tree ordinances as provided in this Part for the following purposes:

(1)        To preserve the natural beauty of the Town.

(2)        To encourage better care of trees and vegetation within the Town, on both public and private property.

(3)        To develop a viable tree management program.

(4)        To promote cooperation between the public and private sectors to effectively manage urban forests.

(5)        To support and participate in the Tree City USA program.

(6)        To educate the public about the environmental importance and benefits of trees and their health.

Sec. 11.2. Definitions. Unless the context clearly indicates otherwise, the following definitions shall apply in this Part:

(1)        Clear cutting. – The cutting or removal of all trees within an area of 400 square feet or larger.

(2)        Injuring (a tree). – Any cutting, trimming, pruning, or other method of removing any live part of a live tree shall be considered injurious to the tree, and therefore a permit must be obtained as provided in this Part before performing any such act unless the act is exempted under Section 11.9 of this Part; provided, however, removing small branches under 1/2 inch in diameter shall not generally be considered injurious to the tree provided that such act does not remove a substantial portion of the canopy of the tree or otherwise result in a threat to the life or health of the tree.

(3)        Person. – Any individual, partnership, corporation, association, or entity.

(4)        Private property. – All property except public property, as that term is defined in subdivision (5) of this section.

(5)        Public property. – Both of the following:

a.         Any property that the Town owns or leases, or any property over which the Town has an easement.

b.         Any property over which the Town has been authorized to enforce the provisions of this Part pursuant to an agreement between the property owner or property easement holder, such as a highway right‑of‑way.

(6)        Temporary service route. – A route, other than the planned permanent driveway or access route to a residential dwelling, that is created and used during the construction process.

(7)        Tree. – The term means one or more trees.

Sec. 11.3. Tree Board. (a) Establishment. The Town Council may establish a Tree Board which shall assist the Town Manager, or his or her designee, in the (i) creation, updating, monitoring, and management of the Town's tree ordinances and regulations, (ii) preparation of an annual tree replacement, planting, and maintenance program, and (iii) discussion and resolution of all other issues related to the management and care of the Town's forest. The Board shall consist of five members who shall be appointed by the Council. The Town Manager may designate employees of the Town to serve as ex officio members of the Board. Each member of the Board shall serve a term of three years which shall be staggered. Members of the Board shall be paid fifteen dollars ($15.00) per month for attending meetings to conduct Board business, regardless of the number of meetings attended, and the compensation shall be paid on a quarterly basis. No compensation shall be paid for months in which the member did not attend any Board meetings. The Council may increase or decrease the compensation of Board members in its discretion.

(b)        Meetings. – Members of the Board may attend up to one‑half of the Board's regular meetings each calendar year by telephone or video‑telephone. Members and Town employees attending meetings by telephone shall work to ensure that all parties are able to hear and communicate with each other. A member shall give notice to the Board secretary not less than 24 hours prior to a Board meeting of his or her intent to attend by telephone. For purposes of achieving a quorum, a member attending a Board meeting by telephone shall not be considered present but may participate fully in the conduct of the meeting, including voting upon all matters before the Board. Minutes of Board meetings shall indicate the names of members who participated by telephone or video‑telephone.

Sec. 11.4. Permit Required. (a) It shall constitute a violation of this Part to perform or cause to be performed any of the acts listed in subsection (b) of this section without a written permit from the Town. This section applies to any tree located on public property regardless of the size of the tree. For trees located on private property, this subsection applies to any tree in excess of 6 inches in diameter measured 4 feet above the ground at its highest point.

(b)        Acts prohibited without a permit:

(1)        To mutilate, injure, remove, or relocate any live tree located within the Town or injure or misuse any structure or device placed to protect any such tree.

(2)        To whitewash, paint, or, in any other way, discolor the stem base, bole, or root of any tree located within the Town.

(3)        To fasten or attach any sign, wire, or electrical attachment or other device in any manner to any tree located within the Town or to the guard around or about any such tree.

(4)        To, within 3 feet in any direction, close or obstruct any open space around or about the base or root of any tree located within the Town or, in any way, prevent the access of air, water, or fertilizer to the roots of such tree. The attachment of birdhouses or other small ornamental attachments that do not substantially threaten the life of a tree is permissible.

Sec. 11.5. Permits; Standards. The following shall apply to permits issued under this Part:

(1)        The application for a permit shall be on a form provided by the Town and shall be signed by the property owner.

(2)        The Town Manager, or his or her designee, shall consider the following criteria in determining whether a permit shall be issued for the cutting of trees on public property:

a.         The condition of the tree with respect to disease, danger of falling, proximity to existing or proposed structures, and interference with utility services.

b.         The need to remove the tree in order to construct proposed improvements to allow economic development of property adjacent to public property.

c.         The topography of land and the effect of the removal of the tree on erosion, soil retention, and the diversion or increased flow of surface waters and coordination with the Town's drainage patterns.

d.         The number of trees on improved property in the neighborhood. The Town Manager, or his or her designee, shall be guided by the standards established in the neighborhood and the effect of tree removal on property values in the area.

e.         The Town Manager, or his or her designee, may require the relocation or replacement of a tree as a condition of issuing a permit under this Part, on a one‑for‑one basis, with the replacement trees having a caliper of 1 1/2 inch diameter at breast height, which shall be 4 feet above the ground at its highest point.

(3)        The Town Manager, or his or her designee, may issue a permit for the cutting of a live tree or portions of a live tree, such as limbs or branches, on private property if the tree is greater than 6 inches in diameter measured 4 feet above the ground at its highest point if:

a.         The tree or portion of the tree is within 15 feet of the existing main structure or a main structure being constructed on a building site.

b.         The tree or portion of the tree is within 5 feet of an approved septic tank or septic drain field.

c.         The tree or portion of the tree is within 5 feet of a driveway or parking area, the location of which has been approved by the Town Manager or his or her designee.

d.         The tree or portion of the tree poses a hazard to the property owner or other residents.

e.         The cutting of the tree or portion of the tree promotes the growth and development of other trees on the lot.

f.          The tree or portion of the tree is diseased or damaged.

g.         The tree or portion of the tree is within a temporary service route. Approval under this sub‑subdivision shall include a requirement that the owner replaces trees on a one‑for‑one basis as provided in Section 11.6 of this Part.

h.         The removal of the tree or portion of the tree that does meet the provisions of sub‑subdivisions a. through g. of this subdivision may be permitted pursuant to a landscaping plan that improves the property and is acceptable to the Town. The landscaping plan shall be designed to minimize the injury, disturbance, or removal of any trees that are not necessary to achieve the specific objectives of the landscaping plan.

i.          For new construction, no tree or portion of the tree shall be cut pursuant to the criteria provided in sub‑subdivisions a. through c. of this subdivision until the owner is ready to begin construction as evidenced by the issuance of a building permit.

j.          Permits may be issued for trees to be pruned or limbed for view enhancement. To attempt to minimize the detriment to the tree of these practices, the standards provided in American National Standards Institute (ANSI) A300 (Trees, Shrubs, and Other Woody Plant Management, Part 1 – Pruning) shall be followed.

(4)        A permit shall be valid for 90 calendar days and shall be displayed in plain sight on the property where the tree is being cut.

(5)        The owner shall clearly flag and take a photo of any tree to be cut or trimmed pursuant to the permit prior to the cutting or trimming.

(6)        As a condition of issuing a permit, the Town may require the owner to replace trees in accordance with Section 11.6 of this Part.

Sec. 11.6. Replacement of Trees. Unless otherwise provided, if the provisions of this Part require the replacement of a tree, the following shall apply:

(1)        Trees shall be of an appropriate species and type for the location and elevation in which they will be planted. A list of replacement tree types and the locations in which they are appropriate shall be provided by the Town Manager, or his or her designee, upon request.

(2)        Tree caliper at the time of replanting shall be a minimum of 1 1/2 inches at breast height, which shall be 4 feet above the ground at its highest point.

(3)        Tree replacement shall be accomplished at the next growing season in accordance with American National Standards Institute (ANSI) A300 (Part 6 ‑ Transplanting).

Sec. 11.7. Clear Cutting Prohibited. Unless approved by the Town Manager, or his or her designee, and subject to the provisions of sub‑subdivisions a. through h. of subdivision (3) of Section 11.5 of this Part:

(1)        Clear cutting is prohibited on lots having a majority of trees less than 6 inches in diameter at 4 feet above ground level at its highest point.

(2)        More than fifty percent (50%) of the natural vegetation, equally balanced across the entire lot, shall not be cut regardless of the size or diameter of the vegetation.

Sec. 11.8. Penalties. The following penalties apply in this Part:

(1)        The cutting or removal of a tree without a permit as required by Section 11.5 of this Part shall subject the offender to a civil penalty in the amount of one thousand dollars ($1,000) per tree to be recovered by the Town. Upon appeal, the burden of proving that cut trees would have qualified for a permit under Section 11.5 of this Part shall lie with the appellant. Upon a finding that the cut trees would have qualified for a permit, the offender shall be subject to a civil penalty in the amount of one hundred dollars ($100.00) per tree to be recovered by the Town.

(2)        The violation of any provision of this Part, except for Section 11.5, shall subject the offender to a civil penalty in the amount of one hundred dollars ($100.00) as authorized by Section 11.01 of the Town's Book of Ordinances. Each day's continuing violation shall be a separate and distinct violation.

(3)        Notwithstanding any other the provisions of this Part, the provisions of this section may also be enforced by appropriate equitable remedies issuing from a court of competent jurisdiction.

(4)        The violation of any provision of this section shall not be a misdemeanor.

(5)        For any violator of Section 11.5 of this Part on public property, in addition to the penalties prescribed in subdivisions (1) through (3) of this section, the violator shall be required to replace the removed or damaged trees with trees and/or shrubs of the same size. The violator shall be responsible for the full replacement cost of the trees.

(6)        For any violator of Section 11.5 of this Part on private property, the person who actually cut or trimmed the tree shall be deemed the responsible party; provided, however, if the person who cut or trimmed the tree was hired by another for that purpose, the person who hired or arranged for the cutting or trimming shall be deemed the responsible party.

Sec. 11.9. Exemptions. This Part shall not apply to any of the following acts:

(1)        Tree trimming conducted by the Town or persons acting on behalf of the Town as part of normal maintenance provided the trimming does not result in the mutilation, death, or destruction of the tree.

(2)        The removal of a tree by the Town or persons acting on behalf of the Town during a period of emergency or as a result of an act of God to prevent the hinderance of public work to restore order in the Town.

(3)        The removal of a dead tree or dead portions of a tree. The owner of the property on which the tree is located shall have the burden of proving that the tree or portion of the tree was dead at the time of removal.

(4)        The removal or cutting of live trees or portions of live trees, such as limbs or branches, on private property provided that the tree or portion of the tree is less than 6 inches in diameter measured 4 feet above the ground at its highest point. The owner shall comply with the provisions of this Part regulating clear cutting.

Sec. 11.10. Appeals. A person found in violation of this Part may appeal the decision as provided in Section 154.046 of the Town's Book of Ordinances.

SECTION 2.  The establishment of a Tree Board by the Town Council of the Town of Beech Mountain having the powers and authority provided in Section 1 of this act is hereby validated. The current serving members of the Tree Board shall continue to serve until the expiration of their terms. Upon the expiration of each term, the City Council shall appoint a person to fill the vacancy and that person shall serve for a term of three years as provided in Section 1 of this act.

SECTION 3.  This act is effective when it becomes law.