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HomeMy WebLinkAbout11.E.1. Text Amendment to the Shakopee City Code Sec. 11.60 Subd. 9 Regarding Tree Management Regulations-Ord. No. 866 General Business 11. E. 1. SHAKOPEE TO: Mayor and City Council Mark McNeill, City Administrator FROM: Jamie Polley DATE: 04/16/2013 SUBJECT: Text Amendment to the Shakopee City Code Sec. 11.60 Subd. 9 Regarding Tree Management Regulations, Ord. No. 866 (B) Action Sought This agenda item seeks approval by the City Council to approve Ordinance No. 866 Fourth Series, An Ordinance Of The City Of Shakopee, Minnesota, Adopting Revisions To City Code Sec. 11.60, Subd. 9 Regarding Tree Management Regulations. Background The proposed text amendments to the Tree Management Regulations were reviewed by the Environmental Advisory Committee on February 13, 2013 and recommended to the Planning Commission. On March 7, 2013 the Planning Commission reviewed the amendments and held a public hearing. One developer was in attendance to comment on the proposed changes. The Planning Commission recommended the approval of the text amendment to Section 11.60, Subd 9 to the City Council. On March 19, 2013 the City Council reviewed the amendments to Section 11.60, Subd 9 as recommended by the Planning Commission. The City Council chose to send the amendments back to the EAC for further discussion on 1. the Right -to -Farm laws, 2. the impact on residents in the R1C (Old Shakopee) zoning area, 3. The number of commercial/industrial lots left to develop under 2.5 acres and 4. increasing the credit of replacement trees for saving one heritage tree. The EAC reviewed these items on April 3, 2013. Discussion The EAC is recommending to the City Council the following additional amendments to Chapter 11.60, Subd. 9 of the City Code: 1. Right -to -Farm The City Attorney reviewed the state laws pertaining to the Right -to -Farm and found that neither the "Metropolitan Agricultural Preserves Program" which applies only to existing farms or the "Right -to- Farm" law which deals only with potential nuisance liability of existing farms are relevant to the tree management ordinance and therefore no reference to the "Right -to- Farm" needs to be included in the ordinance. The email from the City Attorney and a summary from the Minnesota Department of Agriculture regarding the two laws is included for the Council's reference. 2. Impact of residents in the R1C (Old Shakopee) zoning area Councilor Lehman was concerned about the ordinance, both current and revised, negatively impacting the residential lots of the R1 C zoning area or Old Shakopee. He had indicated that previous tree management regulations exempted the RIC zoning area from these requirements. Staff reviewed the ordinance going back to the 2003 revisions and it was not found that the R1 C zoning area was never specifically listed as exempt. The current and revised ordinance requires replacement trees in this area only if three (3) or more six inch (6 ") DBH or greater trees are being removed. Therefore if someone applies for a fence permit and has to remove two (2) trees six inches (6 ") or greater there is no tree replacement requirement. If three (3) six inch (6 ") trees are removed the homeowner would be required to plant one (1) two inch (2 ") tree on their property. A revision has been added giving the applicant the choice to plant the tree or provide a fee of $400.00 per tree to the City for the City's tree replacement fund. This is an option currently given to all developers however it was not stated in the ordinance. An exemption has also been added stating that "Tree replacement is not required if a tree cannot be planted within the boundaries of the project site because either the site is too small or planting is restricted by underground utilities." Applicants who simply do not want a tree put back on the project site would be required then to pay the $400 fee. 3. The number of commercial /industrial lots available for development under 2.5 acres Currently there are 35 vacant commercial /industrial lots available for development. Four (4) of the lots are heavily wooded, seven (7) of the lots have a few trees and twenty -four (24) of the lots do not have a tree. Therefore by implementing the minimum of 2.5 acres as the trigger to require the Woodland Alteration permit the city has the potential of four (4) lots being clear cut without the requirement of a permit. 4. Increasing the credit of replacement trees for saving one Heritage Tree. The credit for saving a Heritage Tree has been increased from two (2) to four (4). Therefore for every one (1) Heritage tree saved a credit of four (4) required replacement trees will be given. This recommendation by the Council was given to increase the value to an applicant for saving a Heritage tree. Attachment A is a revised copy showing new language underlined and deleted language struck out. The additional proposed revisions have also been reviewed by other City staff and the City attorney. Alternatives 1. The City Council, if concur, approve the adoption of Ordinance No. 866 Fourth Series, An Ordinance Of The City Of Shakopee, Minnesota, Adopting Revisions To City Code Sec. 11.60, Subd. 9 Regarding Tree Management Regulations as presented 2. The City Council, if concur, approve the adoption of Ordinance No. 866 Fourth Series, An Ordinance Of The City Of Shakopee, Minnesota, Adopting Revisions To City Code Sec. 11.60, Subd. 9 Regarding Tree Management Regulations with revisions. Staff Recommendation Staff recommends Alternative 1. Relationship to Vision B. Positively manage the challenges and opportunities presented by growth development and change. Requested Action The City Council, if concur, approve the adoption of Ordinance No. 866 Fourth Series, An Ordinance Of The City Of Shakopee, Minnesota, Adopting Revisions To City Code Sec. 11.60, Subd. 9 Regarding Tree Management Regulations as presented or with revisions. Attachments: Ordinance 866 Attorney Email MN DOA Summary ORDINANCE NO. 866, Fourth Series AN ORDINANCE OF THE CITY OF SHAKOPEE AMENDING SHAKOPEE CITY CODE SECTION 11.60, SUBDIVISON 9 DEALING WITH TREE MANAGEMENT THE CITY COUNCIL OF THE CITY OF SHAKOPEE, MINNESOTA, ORDAINS: Section 1. Section 11.60 Subdivision 9 of the Shakopee City Code is amended to read as follows: SEC. 11.60 PERFORMANCE STANDARDS. Subd. 9. Tree Management Regulations. The following requirements and standards shall apply to any Woodland Alteration activity requiring a Woodland Alteration Permit, Development en-any parcel of land containing a tree and for which a preliminary plat, minor subdivision, building permit, conditional use permit, variance, fence permit, or grading permit is required or to any other land use or building permit approval required by the City on any parcel of land containing a Significant Tree. A. Definitions. Applicant means any person submitting an application to the City for Woodland Alteration or Development . Caliper Inch means the measurement of a tree trunk measured at 6 inches above the root ball or according to the method of caliper measurement of a tree trunk as stated by the most recent American Standard for Nursery Stock by the American Nursery & Landscape Association. Development means any activity for which a preliminary plat, minor subdivision, building permit, conditional use permit, variance, fence permit or grading permit is required on land containing a Tree. Diameter at Breast Height, or DBH, means the length of a straight line through the trunk of a tree (in inches) measured at fifty -four (54) inches above the ground from the uphill side of the tree. Dormant Season means the time between leaf drop in the fall and early spring before budbreak. Dripline means an imaginary vertical line that extends from the outermost branches of a tree's canopy to the ground. Forestry Specialist means a tree inspector or forester certified by the State of Minnesota. Growing Season means the time between budbreak in the spring and leaf drop in the fall. Hazard Tree means a tree posing a threat to property or people that has visible hazardous defects such as dead wood, cracks, weak branch unions, decay, cankers, root problems, or poor tree architecture as defined by the United States Department of Agriculture - Forest Service - Northeastern Area's publication How to Recognize Hazardous Defects in Trees (NA- FR- 01 -96). Heritage Tree means a tree that has all of the following characteristics: 1. is a deciduous tree; Is a species not listed as Undesirable in the City's Forestry Specifications Manual. 2. Has a DBH equal to or greater than twenty -four (24) inches (a lesser size tree may be considered to be a Heritage Tree if it is a rare species or can be utilized as a focal point in the project); 3. Has a life expectancy of greater than ten (10) years; and 4. Has structural integrity and shows no visible defects that would cause it to be classified as a Hazard Tree; Natural Resources Corridor Map means the City's most recently adopted Natural Resources Corridor map. This map is incorporated into the City's Comprehensive Plan through the Natural Resource Plan component. Natural Resource Corridor Priority Ranking means the areas identified as Good, Better, Best, or Buffer on the Natural Resources Corridor Map. Replacement Tree means a two (2) Caliper Inch balled and burlapped Tree planted consistent with Section 7.05 and 7.18 of the City Code. Residential Building Permit means any building permit or fence permit required by Section 4.03 of the City Code for property used as a single family dwelling unit. Examples include, but are not limited to, sheds, decks, porches, garages, swimming pools, fences or building additions. Significant Tree means a living specimen of a woody plant species that is either a deciduous tree whose diameter is six (6) inches or greater at DBH, or a coniferous tree whose height is twelve (12) feet or greater. Tree Management Plan is the tree inventory, removal, preservation, and replacement plan for a site where an Applicant proposes to remove a Tree. Tree Protection Fencing means orange snow fencing or polyethylene laminate safety netting placed at the Dripline of Trees to be preserved. Woodland Alteration — Any private or public infrastructure and utility installation, building construction, excavation, grading, clearing, filling or other earth change on any parcel of land, or adjacent parcels of land in common ownership greater than two and one half (2.5) acres in size where any cutting, removal or killing of more than 10% of the significant trees on any such parcel of land will occur. Woodland Alteration Permit — A permit to allow Woodland Alteration. B. Tree Management Plan Requirements. 1. Any Applicant who desires to remove any Significant Tree on any parcel of land or on adjacent parcels of land in common ownership greater than two and one half (2.5) acres in size must submit a Tree Management Plan to the City and must demonstrate that there are no feasible or prudent alternatives to removing any Significant Tree. 2 2. The Tree Management Plan for a Development requiring a preliminary variance or grading permit must be completed by a Forestry Specialist and consist of the following information: a) Tree Inventory Sheet A survey depicting the location of all existing Significant Trees on the property and the Natural Resource Corridor Priority Ranking for each Significant Tree. Each Significant Tree shall be labeled with a unique identification number. b) Tree Removal /Preservation Sheet A scaled drawing depicting the locations of the Significant Trees to be preserved and Significant Tree Protection Fencing. Significant Trees intended for removal shall be clearly distinguishable from those intended for preservation. Proposed lot lines, building pads, driveways, streets, easements, and any areas in which Significant Tree removal is expected shall be shown. c) Tree Inventory Legend Sheet A page providing a matrix or table listing the unique identification number for the Significant Tree(s), the species or common name of the Significant Tree(s), the size in Caliper Inches at DBH, and an indicator as to whether the Significant Tree is intended for removal or preservation. d) Tree Replacement Sheet A scaled drawing depicting the Replacement Tree locations with a legend identifying each Replacement Tree's species and size and the quantity of Replacement Trees to be planted. 3. Applicants for a Residential Building Permit must complete the City's "Tree Management Evaluation and Compliance Form" as their Tree Management Plan. The City must also be provided with a certificate of survey that contains the following information: a) The location of all existing Significant Trees on the property; b) The location of all Significant Trees to be removed; c) The location of all Significant Trees to be preserved; and d) The location and species of all Replacement Trees. 4. No woodland alteration, grading or building permits shall be issued by the City until the applicant has installed any required Tree Protection Fencing and the Tree Protection Fencing has been inspected and approved by the City. 5. Any changes to the Tree Management Plan shall be submitted in writing to the City by the Applicant for approval. If the change includes any additional Significant Tree removal, an additional inspection and approval by the City of the Tree Protection Fencing will be required. 6. All information contained in the Tree Management Plan must not be more 3 than one (1) year old at the time of submittal. 7. Significant Trees required to be removed pursuant to Section 10.70 of the City Code shall be identified as removed on the Tree Management Plan and must be removed. Significant Trees removed consistent with Section 10.70 of the City Code are exempt from the Replacement Tree Requirements of this Section. C. Tree Preservation Requirements. 1. The Applicant must make every effort possible to preserve aAll Heritage Trees r u-st-lae- preserved. Heritage Trees evaluated and concluded to be a Hazard Tree or not suitable as a focal point for the by a Forestry Specialist are exempt from this requirement. 2. The Applicant must preserve all of the Significant Trees identified as Significant Ttrees to be preserved on the Tree Management Plan. 3. For every Heritage Tree saved the applicant will receive credit for four (4) Replacement Trees. 4. For every Heritage Tree removed, three (3) Replacement Trees are required of the same species as the removed Heritage Tree, or a tree that has the same potential value as the removed Heritage Tree. D. Replacement Tree Requirements. 1. The amount of Replacement Trees required will be based on the removed Significant Tree's Natural Resource Corridor Priority Ranking. The Applicant shall replace removed Significant Ttrees according to the following schedule: Significant Tree's Natural Resources Replacement Significant Tree Corridor Priority Ranking: Ratio: Best 1:1 (Remove:Replace) Better 2:1 (Remove:Replace) Good 3:1 (Remove:Replace) Buffer 4:1 (Remove:Replace) 2. Replacement Trees shall not utilize any species presently under disease or insect epidemics without prior written approval from the City. 3. No more than one -third (1/3) of the Replacement Trees may be any one species of trees. 4. The species of Replacement Trees must be hardy under local conditions, must be compatible with the local landscape, must be appropriate for the soil conditions on the property, and must not be less than two (2) Caliper Inches. 5. Any Significant Trees required by the landscaping requirements set forth in Section 11.60 of the City Code for trees will count towards the Tree Replacement Requirements of this Section. 6. If a Significant Tree cannot be located on the Natural Resource Corridor 4 Map, the Significant Tree's Corridor Priority Ranking shall be classified as "good" for purposes of determining the replacement ratio. 7. Replacement Tree quantities shall be rounded up to the nearest whole number. 8. The City may accept other vegetative or environmental alternatives proposed by an Applicant if those alternatives are monetarily or ecologically equivalent to the value of the Replacement Trees required by this Section. 9. All Replacement Trees shall be planted during the ideal planting season for the particular species. The ideal planting season for most tree species is during the Dormant Season. Any Replacement Tree planting not completed during the Dormant Seasons must be completed with caution during the summer months in warm and dry conditions. 10. Replacement Trees shall be planted not more than 18 months from the date of the final approved Tree Replacement Sheet as part of the Tree Management Plan. Extensions may be requested in writing to the City. 11. If the number of replacement trees cannot be met on site the following is required: a. A cash payment of $400.00 per replacement tree shall be provided to the City to complete other vegetative or environmental alternatives, or; b. Trees shall be planted in City owned or managed land as approved by the Parks, Recreation & Natural Resources Director. E. Tree Mitigation Standards. 1. All Development activities must take place in such a manner that no more than one -half (1/2) of the area within the Dripline of any Tree to be preserved is impacted. 2. No grade change, construction activity, or storage of materials shall occur within the Tree Protection Fencing. 3. Structures, driveways, and parking facilities shall be located in such a manner that the maximum number of Significant Trees should be preserved. 4. To control the overland spread of Oak Wilt, the pruning of Oak trees or collateral damage to Oak trees from adjacent tree removal shall be avoided from April 1st thru July 31 which is the most susceptible period of infection. F. Unauthorized Significant Tree Removal. 1. Any person, firm, or corporation who removes or causes the loss of Significant Trees identified to be preserved on an approved Tree Management Plan shall be required to complete one of the following as determined by the City: a) Installation of Replacement Trees according to the DBH of the 5 Significant Tree removed; or i) The Replacement Tree ratio shall be two (2) Caliper Inches for every one (1) DBH inch of Significant Tree removed; ii) All Replacement Trees required by this Section shall be planted within the same development. b) Payment to the City of $500.00 for every one (1) DBH -inch of Significant Trees removed that were unauthorized. Measurement of each tree will be DBH or diameter of the stump, whichever is readily available. This amount may be taken by the City from the financial security posted, if any, by the Applicant for Tree Replacement. A minimum of $9,000 payment will be required if measurements are unavailable. G. Financial Security. 1. In order to ensure that there is compliance with the submitted Tree Management Plan and to ensure replacement of any Replacement Trees that die during the warranty period and the removal of any diseased trees, the Applicant shall provide the City with a cash deposit, a letter of credit or escrow, in favor of the City, in an amount of one hundred and fifty (150) percent of the Tree Replacement Requirement estimate. 2. All Replacement Trees planted must be warranted through two complete Growing Seasons. If a Replacement Tree dies during the warranty period, it must be replaced with a tTree of the same size and species. Prior to the expiration of the warranty period, a Forestry Specialist shall inspect the Replacement Trees. As Replacement Trees are declared healthy by the Forestry Specialist upon inspection, the Applicant may request reductions to the financial security amount provided that adequate funds remain equal to one hundred and fifty (150) percent of the cost to complete the remaining work. 3. Any trees required to be removed per Section 10.70 of the City Code from a site shall be removed and disposed of according to Section 10.70 of the City Code prior to release of the financial security. 4. Residential Building Permit Applicants and the City shall be exempt from the financial security requirement of this Section. 5. The financial security required for the Replacement Trees is due prior to the issuance of the Permit applied for or the release of the development plat for recording. H. Miscellaneous. 1. The removal of diseased Significant Trees per Section 10.70 of the City Code or Hazard Trees is required. No Replacement Trees shall be required for the removal of these trees. 2. Projects involving a Residential Building Permit that requires the removal of two (2) or fewer Significant non e Trees are exempt from the 6 requirements of this Section. 3. If the Applicant disagrees with the City staff decision with respect to the interpretation or enforcement of this Section Subdivision, the Applicant may appeal that decision by following the procedure established in Section 11.90, APPEALS, of this Code. 4. Land previously planted for commercial tree farm purposes shall be subject to tree replacement requirements as determined appropriate by the City with the maximum requirement being the current tree replacement requirements of Paragraph D.1 of this Subdivision. I. Exemptions. The following Developments or Woodland Alterations are exempt from the requirements for a Woodland Alteration Permit: 1. Any private or public infrastructure and utility installation, building construction, excavation, grading, clearing, filling or other earth change on any parcel of land, or adjacent parcels of land in common ownership, less than two and one half (2.5) acres in size. 2. Cutting, removing or killing a total over five (5) years of less than 10% of the Significant Trees on any parcel of land. 3. When the boundaries of the project site on residential properties are too small or planting is restricted by underground utilities. 4. Home gardens or an individual's home landscaping, repairs and maintenance work. 5. Existing agricultural, horticultural or silvicultural operations. 6. Emergency work to prevent or alleviate immediate damages to life, limb, property or natural resources. In such event, if a Woodland Alteration Permit had been required but for emergency, the obligations of this Subdivision shall apply and shall be performed at the earliest reasonable time thereafter. Section 2 — Summary Approved. The City Council hereby determines that the text of the summary ordinance marked "Official Summary of Ordinance No. 866 ", a copy of which is attached hereto, clearly informs the public of the intent and effect of the ordinance. The Council further determines that publication of the title and such summary will clearly inform the public of the intent and effect of the ordinance. Section 3 — Posting and Filing. A copy of this ordinance is filed in the office of the City Clerk and a copy is provided to the Shakopee Library for posting and filing, at which locations a copy is available for inspection by any person during regular office hours. Section 4 — The City Clerk shall publish the title of this ordinance and the official summary in the official newspaper with notice that the printed copy of the ordinance is available for inspection by any person during regular office hours at the office of the City Clerk and Shakopee Library. Section 5 — Effective Date. This ordinance becomes effective from and after its passage and publication. 7 Adopted in adj. regular session of the City Council of the City of Shakopee, Minnesota held this day of April, 2013 Mayor of the City of Shakopee Attest: Julie Linnihan, City Clerk 8 Official Summary of Ordinance No. 866 The following is the official summary of Ordinance No. 866 Fourth Series, Approved by the City Council of the City of Shakopee, Minnesota on April 16, 2013 ORDINANCE NO. 866 FOURTH SERIES AN ORDINANCE OF THE CITY OF SHAKOPEE AMENDING SHAKOPEE CITY CODE SECTION 11.60, SUBDIVISON 9 DEALING WITH TREE MANAGEMENT A. The City Code was revised to trigger the Tree Management Regulations when any Woodland Alteration activity requiring a Woodland Alteration Permit was required. B. The definition of the Applicant was clarified. Heritage Tree can be a deciduous or a coniferous tree, restriction of deciduous only was removed. The definitions for Woodland Alteration and Woodland Alteration Permit were added. C. Corrections pertaining to definition changes were made. D. The Ordinance requires the preservation of high quality Heritage Trees in the City consistent with the Natural Resource Plan element of the Comprehensive Plan. E. A timeline for planting the replacement trees was added. F. The location of the measurements of the unauthorized trees was clarified and a minimum penalty was added. G. A timeline for the payment of the financial security requirement and a timeline for planting the trees for the Replacement Trees were added. A printed copy of the ordinance is available for inspection by any person at the office of the City Clerk and at the Shakopee Library. 9 0 111 111 111 Janmi Polley :jr,olleypri. ;6az,l.aapee.mil.i SHAKOPEE tight to Farm Issue ' homson, James J. <jthomson @ kennedy- graven.com> Wed, Apr 10, 2013 at 10:15 AP o: Jamie Polley <jpolley @ci.shakopee.mn.us> :c: "Sonsalla, Sarah J." <SSonsalla @ kennedy- graven.com> Jamie, Attached is a summary from Minnesota Department of Agriculture regarding two laws dealing with agricultural use of property. The "Metropolitan Agricultural Preserves Program" applies only to certain existing agricultural operations. The amendment to the tree management ordinance exempts existing agricultural operations. The "Right -to- Farm" law deals only with potential nuisance liability of existing farms. Neither of the laws are relevant to the tree management ordinance. Therefore, I do not see any need to reference the "right to farm" issue in the ordinance amendment. I have a technical question regarding the language of the ordinance amendment that you emailed to me. Give me a call to discuss that. Thanks. Jim Jim Thomson Kennedy & Graven 470 U.S. Bank Plaza 200 South Sixth Street Minneapolis, MN 55402 612- 337 -9209 (phone) 612- 337 -9310 (fax) ATTENTION: This message and any attachments are intended only for the recipient(s) named above, and may contain information that is confidential, privileged, attorney work product, or exempt or protected from disclosure under applicable laws and rules. If you are not the intended recipient(s), or an agent responsible for delivering it to an intended recipient, you are notified that the dissemination, distribution, or copying of this message and any attachments is strictly prohibited. If you have received this message in error, please notify the sender immediately at either the e-mail address or the telephone number included herein, delete this message and any of its attachments from your computer and /or network, and destroy any hard copy print -outs. Receipt by anyone other than the named recipient(s) is not a waiver of any attorney - client, work product, or other applicable privilege. This message and any attachments are covered by the Electronic Communication Privacy Act, 18 U.S.C. Sections 2510- 2521. Document3.doc 28K Metropolitan Agricultural Preserves Program (Minn. Stat. Ch. 473H) The Metropolitan Agricultural Preserves Act of 1980 established an agricultural land protection program in the Twin Cities Metropolitan Area. This program provides a package of benefits to enable farmers near urban areas to continue farming on an equal footing with those farmers located outside the metropolitan area without pressures to sell or convert their land to other uses. The intent of the law is to protect important agricultural land in the Twin Cities metropolitan area from competing land uses, protect the local agricultural economy and support businesses, promote orderly and planned growth and development of urban and rural land uses, and allow farmers to make long- term agricultural investments with the assurance that their land can continue in agricultural use without interference from urban pressures. Through the Metropolitan Agricultural Preserves Act, local governments identify areas where agriculture is to be preserved, where non -farm growth will be permitted and what standards apply to each area. Farmers receive property tax credits and additional benefits by placing a restrictive covenant on their qualifying land, limiting its use to agriculture. The Metropolitan Agricultural Preserves statute also contains a provision that local governments may not enact ordinances or regulations that restrict or regulate normal agricultural practices within an agricultural preserve unless the restriction or regulation has a direct relationship to public health and safety. Right -to -Farm Law (Minn. Stat. § 561.19 Nuisance liability of agricultural operations.) Under the Right -To -Farm law an agricultural operation cannot be considered a nuisance if it has been in operation for two years. A nuisance is defined as "anything which is injurious to health, or indecent of offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property..." The Right -To -Farm law protects from most public and private nuisance actions "agricultural operations" that have operated in substantially the same way for two or more years and that continue to operate according to "generally accepted agricultural practices ". Agricultural operations include facilities and its appurtenances for the production of crops, livestock, poultry, dairy products, but not a facility primarily engaged in processing agricultural products. An agricultural operation is not a nuisance if it is operating according to "generally accepted agricultural practices ", located in an agriculturally zoned area, and complies with the provisions of all applicable federal and state statutes and rules or any issued permits for the operation. Some animal operations are exempt from the right -to -farm law protection, such as an animal feedlot facility with a swine capacity of 1,000 or more animal units or a cattle capacity of 2,500 animals or more.