1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 SUBCHAPTER 17 CONSERVATION AND LANDSCAPING REQUIREMENTS 35.17.1 Definitions and Terms Building Pad: The actual foundation area of the primary building and a 10-foot clear area around the foundation necessary for construction and grade transitions. Calculated DBH: The DBH of the Tree to be removed multiplied by the appropriate Tree classification ratio as described Subsections 35.17.3.I.4 of this subchapter. Conservation Easement: A voluntary and permanent deed restriction which limits the development and/or subdivision of property for the purposes of protecting tree conservation in the land. The easement is a recorded restriction, applies to and binds all subsequent owners, and may be held by either a non-profit entity or organization that manages open space, such as a land trust or other qualified entity, pursuant to Section 170(h) of the Internal Revenue Code, as amended, or a governmental entity. The conservation easement shall contain the prescribed minimum preservation amount, included a stand of trees and understory, and shall be the greater of 10% of the property or 5,000 square feet. Critical Root Zone (CRZ): Is the area of soil extending from the tree trunk where roots required for future tree health and survival are located. This area can also be defined as a circle with a minimum radius of 1 for every 1 in trunk diameter at 4.5 above ground. Dead or Unhealthy Tree: Shall mean any tree certified by a ISA certified arborist, an ASCA registered arborist, a SAF certified forester, or a registered landscape architect to be dead or significantly diseased, injured, or hazardous and in danger of falling or dying. Developed Floodplain. Area within the FEMA 1% Annual Chance Floodplain (a.k.a. 100-year floodplain) for which the natural stream has been redesigned and no longer exhibits characteristics of a natural channel and/or its floodplain has been significantly modified, graded, filled, or otherwise disturbed. Development Impact Area: Shall mean and include any man-made change to improved or unimproved real estate, including but not limited to, accessory buildings or other structures, paving, drainage or utilities. Development activities include: subdivision of land; construction or alteration of structures, roads, parking, fences, pools, signs, temporary uses, utilities, and other facilities; installation of septic systems; grading; excavation, mining or drilling operations; deposit of refuse, debris, or fill materials; and clearing of natural vegetative cover (with the exception of agricultural activities as defined and as permitted). Environmental Sensitive Areas (ESA), Conservation Easements, and Preserved Habitat are excluded from the Development Impact Area. Diameter at Breast Height (DBH): The tree trunk diameter measured in inches at a height of 4.5 feet above ground level. For multi-trunk trees, combine the diameter of the largest stem or trunk with onehalf (0.5) of the diameter of each additional stem or trunk, all measured at four and one-half 4.5 feet above ground level. Dripline: The outermost circumference of a tree canopy. Heritage Trees: All Quality trees with a dbh greater than 18 inches and all Post Oaks with a dbh of six inches or greater. Conservation & Landscape 3/1/2019 4:14 PM 1
39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 Landmark Trees: A healthy tree that is designated by the property owner on the Texas Big Tree Registry regardless if the tree is protected or a non-protected tree; or a tree designated as a Historic Tree where an event of historic significance occurred that had local, regional, or national importance; or at the home of a citizen who is famous on a local, regional, or national basis; or that has taken on a legendary stature in the community, is mention in literature or documents of historic value, or is considered unusual due to size, age, or other landmark status. Historic Trees shall be designated following the Historic Landmark Designation procedure. Mitigation DBH: The total number of diameter inches of trees removed that must be mitigated by either replanting or alternative means as described in subsection 35.17.3.I of this subchapter. This total is determined by subtracting credits granted for preserved trees from the Preliminary Mitigation DBH. Non-Protected Tree: The following are considered Non-Protected Trees: a. Diseased or Dead Trees; b. Tree that poses an imminent or immediate threat to persons or property; c. Crepe Myrtles; d. Mesquite unless part of a Preserved Habitat or Conservation Easement; e. Honey Locust, unless part of a Preserved Habitat or Conservation Easement; or f. Any tree listed on the Texas Department of Agriculture Noxious and Invasive Plant List. Nuisance. Physical or environmental conditions resulting in regular and/or continuous problems affecting the health, safety, and quality of life of citizens. Preliminary Mitigation DBH: The total determined by calculating 50% of the total Calculated DBH of trees to be removed before applying any credits for preserved trees to determine the Mitigation DBH. Preserved Habitat: Areas considered outside the development impact area or ESA where vegetation is retained to preserve natural ecological conditions and protect wildlife. Preserved Habitats may be dedicated as a Conservation Easement, and if not dedicated as a Conservation Easement must otherwise be restricted on a plat. Preserved Habitat shall contain the prescribed minimum preservation amount, contain a stand of trees and understory, and shall be the greater of 10% of the property or 5,000 square feet. Protected Trees: Landmark, Heritage, Quality, or Secondary Trees. Quality Trees: All healthy non-secondary trees, except Post Oaks that measures between six inches and up to 18 inches at dbh. Replacement Inches: The total combined inches at DBH of all Protected Trees that are proposed to be removed and that are located within the Development Impact Area. Riparian Buffer. Areas within one hundred (100) feet, measured from both sides of the stream centerline, with drainage areas greater than one (1) square mile, and fifty (50) feet from both sides of any streams centerline that drain areas of one (1) square mile or less. This also applies to the outer edges of surface water bodies. Secondary Trees: A healthy Bois D' Arc, Hackberry, or Cottonwood with a dbh greater than six inches. Conservation & Landscape 3/1/2019 4:14 PM 2
77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 Stream. Linear geographic feature that conveys flowing waters. Headwater streams are the uppermost, low-order streams of a watershed and comprise the majority of streams in the United States, both in terms of number and length. Streams can be perennial, intermittent or ephemeral. Surface Water Body. Term to include streams, ponds, lakes, and freshwater wetlands. Tree Protection Zone (TPZ): is an area where construction activities are prohibited or restricted to prevent injury to preserved trees, especially during pre-construction and construction, and includes the Critical Root Zone and/or beyond. Undeveloped Floodplain. Areas within the FEMA 1% Annual Chance Floodplain (a.k.a. 100-year floodplain), that are undeveloped and in their natural state. Cross Timbers Upland Habitat. Contiguous areas ten acres or larger of Cross Timbers habitat. Valley Storage. Water storage capacity of a stream expressed as a volume that is measured below the base flood elevation. Water Related Habitat. Areas designated as wetlands, and trees and understory vegetation containing fifty (50) percent or more of predominately native bottomland hardwood. Bottomland hardwoods occur on the first terrace of floodplains and flats along channels. Periodic inundation prevents establishment of upland species and maintains the functioning of this type of vegetation. Wetland. Area that is inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Includes adjacent and isolated wetlands. Conservation & Landscape 3/1/2019 4:14 PM 3
97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 35.17.2 Environmentally Sensitive Areas (ESAs) A. Purpose. This Section is intended to achieve the following goals: 1. Manage and protect environmentally sensitive areas within the City. 2. Protect the natural and ecological resources that are essential elements of the City's health and community character and which provide irreplaceable plant and wildlife habitat; 3. Establish a development framework for the City that respects private property rights, while encouraging them to be used responsibly for the benefit of the entire community; 4. Preserve and enhance the City's distinctive community character and quality of life by ensuring that its natural and built environments are consistent with the community vision and values embodied in The Denton Plan. 5. Establish regulations that conform to the requirements of the state and federal government regarding air quality, water quality and environmental protection. 6. This Subchapter is adopted pursuant to authority vested under the City's charter, and Texas Local Government Code, Chapters 211, 212, and 551. B. Applicability. 1. The standards of this Subchapter shall apply to all land and all development within the corporate limits of the City, except as otherwise specifically provided for in this Subchapter. 2. The floodplain standards of this Subchapter shall apply to all land and all development within the extraterritorial jurisdiction (ETJ) of the City. 3. The type of regulation applicable to the land depends upon the classification in which the land is placed, as provided in the Denton Development Code. If those regulations conflict with other regulations of this Subchapter, the more stringent of the two regulations shall apply. 4. Exemptions: a. Property that does not contain any Environmentally Sensitive Areas as depicted on the City's Environmentally Sensitive Areas Map. b. Grading, filling, cutting or other earth-moving activity on any lot involving less than twenty-five (25) cubic yards for residential projects or fifty (50) cubic yards for nonresidential projects. c. Existing platted lots with single-family and duplex dwellings. d. The applicant can demonstrate through an Environmentally Sensitive Area field assessment application the subject property contains no Environmentally Sensitive Areas or their location is not as depicted on the ESA map. C. Official Map. 1. Environmentally Sensitive Areas Map. The official map that identifies areas designated as Environmentally Sensitive Areas (ESAs). Conservation & Landscape 3/1/2019 4:14 PM 4
134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 2. Environmentally Sensitive Areas Map Amendments. a. The map may be updated administratively when an ESA field assessment is conducted for a property and approved by the Director of Development Services. b. When the FEMA 1% Annual Chance Floodplain maps are revised or amended, the City s Floodplain ESAs boundary maps will be readjusted accordingly. c. Substantial amendments of the map shall follow the Zoning Amendment Procedure detailed in Subchapter 3. Substantial amendment is defined as changes impacting the whole city, excepting changes caused by the publication of new flood insurance rate maps (FIRMs) by FEMA. 3. Environmentally Sensitive Areas Field Assessments. Field assessments are required prior to platting of property when there is reasonable evidence that Environmentally Sensitive Areas, as depicted on the official ESA Map, may not be accurate. ESA field assessments that require map adjustments, which shall be done in accordance with Section C.2, shall supersede the official ESA Map in determining what areas are subject to the requirements of this Subchapter as applied to a proposed development. a. Information Required. i. Information as required on the Environmentally Sensitive Area Assessment application and checklist must be provided. Additional information deemed appropriate and necessary to process the application may be required. b. Expiration. i. An Environmentally Sensitive Areas field assessment shall expire after two (2) years of its approval, or if the natural conditions of the ESA have been significantly altered. c. Appeals. i. Appeals to staff determinations shall follow the Zoning Amendment Procedure detailed in Section 35.3.4. 4. Text Applicability. The text of this Subchapter, including definitions, describes and regulates the protected ESAs shown on the City's Environmentally Sensitive Areas Map. In the case of any discrepancy the text of Section 35.17.2 shall control. D. Environmentally Sensitive Areas Criteria Manual. In addition to meeting the requirements expressly established in this Subchapter, all environmentally sensitive areas shall comply with the Environmentally Sensitive Areas Criteria Manual. Where there is conflict between a provision set forth in this Subchapter and a provision of the Environmentally Sensitive Areas Criteria Manual, the provisions of this Subchapter shall apply. E. Criteria for Approval. 1. Review Required. Conservation & Landscape 3/1/2019 4:14 PM 5
171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 Environmentally Sensitive Area compliance review for residential or non-residential development must be performed as part of a final plat application, site plan application, clearing and grading permit, or any other applicable permission to commence land-clearing activity.. 2. Information Required. Information as required on the applicable checklist must be provided. Additional information deemed appropriate and necessary to process the application may also be required. 3. Criteria for Approval. The requirements of an Environmentally Sensitive Areas review shall be deemed met when the applicant demonstrates: a. The land development activity complies with the requirements of this Subchapter for floodplains, Riparian Buffers, Water Related Habitat, and Upland Habitat and all other federal, state or local laws as part of the final plat or site plan. b. The land disturbing activity will not cause damage to Environmentally Sensitive Areas adjacent to the areas to be disturbed. c. The land disturbing activity complies with the requirements of Subchapter 18. d. Protective fencing as specified in the Environmentally Sensitive Areas Criteria Manual has been established at the perimeter of the ESA. Protective fencing shall clearly mark and delineate all ESAs to be protected and preserved for the duration of the land disturbing activities on the property. e. A wetland delineation by a trained scientist has been performed if encroachments into U.S. Army Corp of Engineers jurisdictional wetlands are proposed, and a Section 404 Nationwide Permit or a Letter of Permission from the U.S. Army Corps of Engineers has been obtained. f. An alternative Environmentally Sensitive Area plan has been approved for the subject development. 4. Expiration. The Environmentally Sensitive Area review shall expire when the final plat for residential development approval expires, or when the site plan approval for a non-residential development expires. 5. Credit. Any Environmentally Sensitive Area that is preserved may be used towards meeting: a. Parkland dedication in accordance with the Parkland Dedication Ordinance. b. Drainage standards in accordance with Subchapter 19. F. Floodplain Development Standards. Upon field verification, areas designated as FEMA 1% Annual Chance Floodplain would be classified according to the existing conditions as Developed or Undeveloped floodplains. 1. Developed Floodplain. Conservation & Landscape 3/1/2019 4:14 PM 6
208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 a. Development within the Developed Floodplains shall comply with Subchapter 35.19 Drainage Standards. b. Section 35.17.2.G applies when Riparian buffers and Water-related habitats are nested, partially or wholly, inside Developed floodplain ESAs. c. Gas well drilling and production within developed floodplains shall comply with Subchapter 35.22 (Gas Well Drilling and Production). 2. Undeveloped Floodplain. The following uses and activities are regulated in the Undeveloped Floodplain. a. Permitted Uses and Activities. The following permitted uses and activities are allowed if compliant with the Subchapter 19 Drainage Standards and Chapter 30 of the Code of Ordinances: i. The planting of any new trees or vegetation. ii. Restoration or enhancement of floodplains, riparian buffers, water related habitats, upland habitats, wetlands and streams as required by federal and state standards. iii. The placement of public or private utility facilities such as sewer, storm water, water, electricity, gas, or other utilities as long as the disturbed area is restored to minimized erosion and promote the recovery of the Environmentally Sensitive Areas, and when adequately flood proofed. iv. Measures to remove or abate nuisances, the removal of invasive plant species, or any other violation of federal, state or local law, with the approval of the Department of Environmental Services. v. Parking lots, subject to the limitations on fill as specified in Section 35.17.2.F.2.c and constructed of pervious materials. vi. Parks, open space, recreational uses, trails, walkways and bike paths. vii. Storm water quality controls. viii. Construction of roadways identified on the Mobility Plan as long as the disturbed areas are restored to minimize erosion and promote the recovery of the Environmentally Sensitive Area subject to the Director of Environmental Services approval. ix. Routine repair and maintenance of existing structures, roadways, driveways, utilities, and accessory uses. x. Agricultural activity permitted through Nationwide Permit 40 (NWP 40), Agricultural Activities pursuant Section 404 of the Clean Water Act or any other federal permits. xi. Any action taken by federal, state, or local officials in an emergency to mitigate an existing or potential hazard. Conservation & Landscape 3/1/2019 4:14 PM 7
245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 xii. The construction of a private driveway, as long as the disturbed areas are restored to minimize erosion and promote the recovery of the Environmentally Sensitive Area subject to the Department of Environmental Services approval. xiii. Gas well drilling and production shall comply with Subchapter 35.22 Gas Well Drilling and Production. xiv. Fill activities subject to limitations as outlined in Section 35.17.2.F.2.c. xv. Culverts and bridges as long as the disturbed areas are restored to minimize erosion and promote the recovery of the Environmentally Sensitive Area subject to the Department of Environmental Services approval. Culverts and bridges are exempt from the limitations in fill set in Section 35.17.2.F.2.c. b. Prohibited Uses and Activities. The following prohibited uses and activities are not allowed in Undeveloped Floodplains: i. Placement, handling, processing areas, and/or storage of hazardous waste. Hazardous waste and solid waste landfills. ii. Land disturbing activity not authorized by a U.S. Army Corps of Engineers Section 404 Permit or Letter of Permission. iii. Any new structures or additions, including garages and carports, and storage sheds located within the area mapped as Undeveloped Floodplain. iv. Tree and understory vegetation removal, except as allowed by Subsection 35.22.9 and 35.19.4.E.2. v. Septic tanks, septic tank drain fields, and other forms of on-site wastewater treatment. c. Standards for fill in Undeveloped Floodplains. The following are standards for fill in the Undeveloped floodplain: i. Filling of any floodplain of a stream that drains more than one (1) square mile is prohibited unless the fill on any lot is less than fifty (50) cubic yards or three hundred (300) cubic feet per acre, whichever is greater. ii. Up to fifteen (15) percent of the floodplain valley storage may be filled if the stream drains less than one (1) square mile. iii. In addition to meeting the requirement for fill set above, all fill activities in the Undeveloped floodplain shall comply with the Environmental Sensitive Area Criteria Manual, Subchapter 19 Drainage Standards, and federal law. G. Riparian Buffer and Water Related Habitat Development Standards. The following uses and activities are regulated in the Riparian Buffers and Water Related Habitats and are in addition to the regulations for development in this Subchapter. 1. Permitted Uses and Activities. Conservation & Landscape 3/1/2019 4:14 PM 8
282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 a. Placement of private residential yard amenities, including but not limited to: gardens, yards, trails, and clearings, that would result in disturbing up to ten (10) percent of the area, but in no instance shall the protective buffer width be decreased below twentyfive (25) feet measured each direction from the centerline of the existing channel or the outer edge of surface water bodies. No disturbance is permitted in delineated wetlands. b. Riparian buffers nested, partially or wholly, inside Developed floodplains may be disturbed up to ten (10) percent of the area but in no instance shall the protective buffer width be decreased below twenty-five (25) feet measured each direction from the centerline of the existing channel or the outer edge of surface water bodies. No disturbance is permitted in delineated wetlands. c. Repair, replacement or improvement of public utility facilities where the disturbed portion of the Environmentally Sensitive Area is restored, and vegetation listed as invasive is removed and replaced with vegetation from the City s Native Plant List in the Site Design Criteria Manual. d. Additions, alterations, rehabilitation, or replacement of existing structures that do not increase the existing structural footprint in the Riparian Buffer or Water Related Habitat. Any disturbed areas must be restored using native vegetative cover. e. Stream, wetland, riparian and upland enhancement or restoration projects. f. Agricultural activity, including buildings and structures, permitted through Nationwide Permit 40 (NWP 40), Agricultural Activities pursuant Section 404 of the Clean Water Act or any other federal permit. g. Routine repair and maintenance of existing structures, roadways, driveways, utility facilities, accessory uses and other development. h. Construction of roadways identified on the City Mobility Plan as long as the disturbed areas are restored to minimize erosion and promote the recovery of the Environmentally Sensitive Area and subject to the Director of Environmental Services approval. i. Measures to remove or abate nuisances, or any other violation of state statute, administrative rule, or City Code of Ordinances. j. Any action taken by the City in an emergency to mitigate an existing or potential hazard. k. Gas well drilling and production within riparian buffers and water related habitats shall comply with Subchapter 35.22 Gas Well Drilling and Production. 2. Prohibited Uses and Activities. The following uses and activities are not allowed in Riparian Buffers and Water Related Habitats: a. Land disturbing activity not authorized by a US Army Corps of Engineers Section 404 Permit Letter of Permission. b. Tree and understory vegetation removal, except as allowed by Subsection 35.19.4.E.2. c. Placement, handling, processing, or storage of hazardous waste. d. Any structures, including storage sheds, garages and carports. e. Septic tanks, septic tank drain fields, and other forms of onsite wastewater treatment. Conservation & Landscape 3/1/2019 4:14 PM 9
322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 H. Cross Timbers Upland Habitat Development Standards. The following uses and activities are regulated in the Upland Habitat and are in addition to the restrictions for development within this Subchapter. 1. Permitted Uses and Activities. a. Residential development shall be designed to retain a contiguous fifty (50) percent tree canopy, which shall remain predominantly in its natural state. Preservation of upland habitat contiguous to forested areas on adjacent properties or parcels is strongly encouraged. Trees removed shall be considered part of the Development Impact Area of a site and will be subject to tree preservation and landscape requirements. b. Non-residential development shall be designed to retain thirty (30) percent tree canopy which shall remain predominantly in its natural state. Preservation of upland habitat contiguous to forested areas on adjacent properties or parcels is strongly encouraged. Trees removed shall be considered part of the Development Impact Area of a site and will be subject to tree preservation and landscape requirements. c. Selective pruning conducted by or under the supervision of an International Society of Arboriculture (ISA) certified arborist is allowed to remove up to one-quarter of the canopy for the purposes of tree health. d. Enhancement or restoration projects as approved by the Department of Environmental Services. Funds expended on an approved enhancement or restoration project may be credited against required replacement in Section 32.17.2.I. 2. Prohibited Uses and Activities. a. Septic tanks, septic tank drain fields, and other forms of on-site wastewater treatment are prohibited in areas set aside for required preservation. I. Subdivision Clustering Design Standards. Clustering of development shall be utilized to minimize impact to the natural environment. Clustering shall be designed to maintain a contiguous forested area. J. Alternative Environmentally Sensitive Area Plans. 1. Approval Process. The Alternative Environmentally Sensitive Area Plan provides the option to address the regulations through a flexible discretionary process utilizing the Zoning Amendment Procedure outlined in Subchapter 35.3.4. 2. Development Impact Area If an Alternative Environmentally Sensitive Area Plan is approved, any areas of the ESA in which encroachment is permitted are considered part of the Development Impact Area of a site and are subject to tree preservation and landscape requirements. Areas of ESA that are to be left undisturbed will be excluded from the Development Impact Area. Additionally, areas restored or provided as mitigation as part of an approved Alternative ESA plan will be excluded from the Development Impact Area. Conservation & Landscape 3/1/2019 4:14 PM 10
360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 3. Criteria for Approval. City Council may approve the alternative plan with conditions necessary to mitigate the impacts of the proposed development upon considering the factors and goals noted in this section. a. Mitigation goals are obtained by creating, expanding, and/or improving environmentally sensitive areas. b. Mitigation goals are obtained by preserving environmentally sensitive areas above the minimum requirements, exchanges between different types of ESAs, installing pollution prevention controls, and/or implementing best management practices or any other approaches that result in the improvement of the environment being impacted. c. Areas offered as mitigation are linked to existing or planned open space or conserved areas to provide an overall open space system. d. Development is arranged for maximizing access and utilization of the environmentally sensitive areas by citizens. e. Areas offered as mitigation are placed either in a lot or lots that incorporate a permanent conservation easement, preserved habitat, restrictive covenants, or such other legal mechanism to allow for the long term conservation of said areas. Such legal mechanism shall limit any future land disturbing activity or construction within the environmentally sensitive areas and shall run with the land and be binding upon all successors and assigns of the current owner. f. The Alternative Environmentally Sensitive Area Plan shall demonstrate that the property owner's alternative proposal results in a high quality development meeting the intent of the standards in the Denton Development Code. 4. Information Required. Information as required on the alternative environmentally sensitive areas plan checklist must be provided. Additional information deemed appropriate and necessary to process the application may also be required. 35.17.3 Tree Preservation A. PURPOSE AND INTENT. 1. Purpose. The Denton Plan identifies the importance of environmental management, while allowing reasonable and responsible development of land within the City. Towards this end, the purpose of these regulations is to promote the preservation and expansion of tree canopy, facilitate site design and construction that contributes to the long term viability of existing trees, and to establish a process to manage the removal of tree canopy. Further, this Subchapter is intended to accomplish the following public purposes: a. Protect trees and promote the ecological, environmental, and aesthetic values of the City; b. Maintain and enhance a positive image of the City through the preservation, mitigation, and planting of trees; c. Prevent the untimely and indiscriminate removal or destruction of trees and clearcutting of land; d. Provide for a permitting and enforcement procedure; e. Preserve the public health, safety, and general welfare of citizens; Conservation & Landscape 3/1/2019 4:14 PM 11
402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 f. Encourage the protection of healthy trees and provide for the replacement of trees that are necessarily removed during construction, development, or redevelopment; g. Provide for the preservation and protection of larger native and established trees, which provide a valuable amenity to the urban environment and which, once destroyed, can only be replaced after generations, if at all; h. Enhance and preserve established tree stands adjacent to Environmental Sensitive Areas in order to further protect wildlife habitats and reduce impacts from new developments; i. Provide for shade, windbreaks and the cooling of air; thereby, reducing dependence upon air conditioning and its drain upon nonrenewable energy sources; j. Provide for open space and more efficient drainage of land; thereby, reducing the effects of soil erosion and the need for additional drainage facilities. B. EXCEPTIONS The requirements of 35.17.3 shall not apply to the following circumstances: 1. Agricultural operations under Tex. Agric. Code Sec. 251.002(1; 2. Property on which a single-family or two-family residential dwelling unit(s) exists. 3. Any tree determined to be diseased, dying, dead, creating a public nuisance or damaging a foundation by a qualified professional. 4. Any tree determined to be causing a danger or be in hazardous condition as a result of a natural event such as tornado, storm, flood or other act of God that endangers the public health, welfare or safety and requires immediate removal. 5. Any tree listed on the Texas Department of Agriculture Noxious and Invasive Plant List 6. Clearing of understory necessary to perform soil borings, boundary surveying of real property or to conduct tree surveys or inventories As long as the clearing for surveying shall not exceed a width of two (2) feet for general survey (i.e. of easement boundary, etc.) and eight (8) feet for survey of property boundary lines and any Protected Tree having a ten (10) inch dbh or greater shall not be removed under this exemption. 7. Preliminary or Final Plat applications or a Building Permit application deemed complete as of the effective date of this Subchapter. C. TREE REMOVAL PERMIT 1. New Development/Construction. In the event it becomes necessary to remove a Tree for development or construction, a Tree Removal Permit shall be required. No protected tree may be removed for development or construction until the final plat has been approved and the Building Official or designee has properly issued a Tree Removal Permit for that purpose. In instances where a final plat is not required, proposed removal of protected trees shall be reviewed with the site plan for a development. a. All areas within the public rights-of-way, utility easements or drainage easements, as shown on an approved Plat, and areas designated as cut/fill on the related drainage plan approved by the City Engineer, shall be subject to the requirements of this Subchapter. 2. Municipal/Public Property. Property owned by the City of Denton, State of Texas, a political subdivision of the State of Texas, or any public school, pubic school district, or nonprofit charter school shall be subject to requirements of Section 35.17.3. 3. Tree Removal Permit Required Conservation & Landscape 3/1/2019 4:14 PM 12
448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 a. No Protected Trees may be removed or transported until authorized by a Tree Removal Permit. It shall be an affirmative defense to prosecution that permitting is exempted by 35.17.3.C.3.b or 35.17.3.C.4. b. Exemptions: A tree removal permit is not required for individual single-family and duplex uses unless the tree to be removed was previously designated for preservation on an approved Tree Preservation Plan or Final Plat, or the tree is greater than 10 inches at dbh. 4. Tree Removal Permit Review and Approval Process. a. Applicant submits a complete application, along with the applicable fees. b. A Tree Survey and Tree Preservation Plan is required for all new development, in accordance with subsection 35.17.3.F. c. A Tree Removal Permit is valid for one hundred eighty (180) days, or for the duration of a Building Permit, Clearing and Grading Permit, or Clearing and Grubbing Permit issued in conjunction with the Tree Removal Permit, whichever is longer. d. d. Protected trees shall not be removed until: i. Proper mitigation or replacement requirements have been determined and approved for the lot or site on an approved Tree Survey and Preservation Plan; and ii. A preconstruction meeting has been held with proper city staff authorizing grading and construction activities to begin on the lot or site; and/or iii. A tree removal permit has been issued for the lot or site. 5. Standard for Relocating Heritage and Quality Trees. All permitted tree relocations shall comply with applicable Texas Association of Nurserymen Grades and Standards. 6. Permits Issued for Public Need, Danger, or Calamity a. The Director or designee may issue a permit for the removal of a Protected Tree, provided that it: i. is determined to be in a hazardous or dangerous condition so as to endanger the public health, welfare, or safety; ii. hinders or obstructs the construction, maintenance, repair, and/or replacement of City streets, water and sewer lines, and drainage and storm sewer; iii. is located in any right-of-way required for the Mobility/Thoroughfare plan dedicated to and accepted by the City. This does not include trees being removed for proposed driveways, right and left turn lanes, and/or median openings required or warranted by a development. Trees removed in these instances shall be replaced per Section G; iv. hinders or obstructs the construction, repair, maintenance, and/or replacement of public improvement projects including, but not limited to, major collection lines for sanitary sewer, distribution lines for water, collection and management of storm water runoff and thoroughfares pursuant to the City s Capital Improvement Project, Water and Sanitary Distribution Line Maps, or Mobility/Thoroughfare Plan; v. is damaged or killed by a tornado, ice or wind storms, flooding, or other acts of nature; or vi. is otherwise required by statute. Conservation & Landscape 3/1/2019 4:14 PM 13
496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 D. TREE PROTECTION REQUIREMENTS DURING CONSTRUCTION Property owners shall adhere to the following tree protection measures on all construction sites. See also Figure 17-1. 1. Prior to grading, brush removal, or construction, the developer shall clearly tag or mark all trees to be preserved. 2. The developer shall erect an orange plastic mesh fence, or other approved fencing material, a minimum of 4 feet in height around each tree or group of trees to prevent the placement of debris, equipment, or fill within the dripline or critical root zone. The fence shall be installed prior to the release of any permit. If the protection fence is found removed, down, or altered at any time during construction prior to final inspection or landscape installation, a stop work order may be issued by the Building Official. 3. During the construction phase of development, the developer shall prohibit cleaning, parking, or storage of equipment or materials under the canopy of any tree or group of trees being preserved. The developer shall not allow the disposal of any waste material such as, but not limited to, paint, oil, solvents, asphalt, concrete, mortar, etc. in the dripline area. 4. No attachments or wires of any kind, other than those of a protective nature or to identify a protected tree shall be attached to any tree. 5. No fill or excavation may occur within the drip line of a tree to be preserved unless there is a specific approved plan for use of tree wells or retaining walls. Major changes of grade (4 inches or greater) will require additional measures to maintain proper oxygen and water exchange with the roots. In addition, the developer should adhere to the following guidelines to protect the trees to be preserved: a. With grade changes, a reinforced retaining wall or tree well of a design approved by the city should be constructed around the tree no closer than half the distance between the trunk and the drip line. The retaining wall should be constructed so as to maintain the existing grades around a tree or group of trees. b. ii. At no time should a wall, pavement, or porous pavement be placed closer than 5 feet or one foot for every 2 inches in caliper, whichever is greater, to the trunk of the tree. Conservation & Landscape 3/1/2019 4:14 PM 14
542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 c. iii. Root pruning may be necessary when the critical root zone is to be disturbed. See Figure 17-2. d. iv. If a patio, sidewalk, drive, parking lot, or other paved surface must be placed within the drip line of an existing tree, material such as a porous pavement or other approved construction methods that will allow the passage of water and oxygen may be required. E. ENFORCEMENT. 1. The Building Official or designee shall have the authority to place a Stop Work Order on any activity involving the removal of Protected Tree(s)) or that may otherwise endanger trees contrary to the provisions of this Subsection and applicable Criteria Manuals. The Building Official may deny all Permits and Certificates of Occupancy for any site which is not in compliance with this Subsection and applicable Criteria Manuals. 2. A person is criminally responsible for a violation of this subsection if the person removes, assists in the removal or causes the removal of a tree without complying with the requirements of this subsection or owns part or all of the land where the violation occurs. 3. Each tree removed in violation of this Subsection shall constitute a distinct and separate offense. 4. Each tree preserved or planted under this Subsection that is removed, destroyed or dies within three (3) years of approval shall constitute a distinct and separate offense, unless otherwise exempt. 5. It shall be an affirmative defense that trees are injured or destroyed by natural causes, natural disasters, including but not limited to tornadoes, straight-line winds, ice storms, fire, floods, hail, or lightning strikes, or through the independent unauthorized actions of third parties. 6. The enforcement and penalty provisions of Subsection 35.1.10.4 shall apply to this Subsection. F. TREE SURVEY AND PRESERVATION PLAN 1. Tree Survey and Preservation Plan is required for the Development Impact Ares and must accompany the initial application for a site plan, preliminary plat, replat, gas well site plan, or a clear and grade permit regardless of the number of trees present on a property. 2. A Tree Survey and Preservation Plan may be required to accompany a zoning application, Specific Use Permit, or planned development amendment where tree and landscaping requirements are relevant to the requested zoning or development amendment, as determined by the Director. 3. Each Tree Survey and Preservation Plan shall contain, but not be limited to, the following required elements: a. The locations of all Protected Trees to be preserved and removed on the subject site. b. A table containing the following information for all trees: (1) Tree number; (2) Common name of each tree; (3) DBH of each tree; (4) General health and condition of each Protected Tree; (5) Average canopy spread; and (6) Mitigation worksheet as shown in Table I.1, as applicable. 4. The Tree Survey and Preservation Plan shall be prepared by or under the supervision of an ISA or ASCA certified arborist, a SAF certified forester, botanist, professional land surveyor that has documented completion of at least 8 hours of training in Texas tree identification, or a registered landscape architect. Conservation & Landscape 3/1/2019 4:14 PM 15
590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 5. Phased Residential Subdivisions. Residential subdivisions that are to be developed in phases must provide a plan that complies with the preservation requirements at full buildout as approved on the preliminary plat or general development plan. 6. Any subsequent redevelopment of property must preserve the minimum percentage of square footage of the predevelopment tree canopy as indicated by the initial Tree Survey and Preservation Plan. 7. A notation must be placed on the Preliminary Plat, Final Plat, Site Plan, and Building Permit identifying the dbh of trees to be preserved and the location of the lots that contain Preserved Trees. The notation shall limit any future unauthorized land disturbing activity or construction that would impact and/or damage the tree(s) preserved. 8. A tree survey and preservation plan shall be approved if the minimum preservation and replacement requirements are met. G. ALTERNATE TREE PRESERVATION PLAN 1. The Alternative Tree Preservation Plan provides the option to further the purpose and intent of these regulations through a flexible process reviewed and approved by the Director for one of the following purposes: a. To allow trees less than the minimum DBH to be counted for Protected Trees when: i. The allowance would result in the preservation of a greater number of Post Oak trees regardless of DBH; or ii. The preservation of a Protected Trees would cause a substantial burden but smaller DBH non-secondary trees are located in such a way that the trees can be incorporated into the site design such as the parking lot, buffer, or front yard landscaping. b. To allow Secondary Trees to count towards the minimum required preservation instead of Quality Trees. 2. Criteria for Approval. a. The proposed Alternative Tree Preservation Plan adequately achieves, or is an improvement on, the intent of the requirements of this Subsection; and b. The proposed site design has minimized the loss of Protected Trees to the greatest extent possible or has maintained existing tree stands. 3. Replacement Trees. Required replacement and mitigation contained in subsections H and I shall be required for those alternatives 1.a and 1.b above. H. MINIMUM PRESERVATION REQUIREMENTS 1. Landmark Trees 100% of all Landmark trees must be preserved. 2. Heritage and Quality Trees - A minimum of 30% of the total dbh must be preserved within the Development Impact Area. Removed trees shall be replaced in accordance with subsection I and subsection J if applicable. a. The 30% minimum preservation requirement may be reduced to 20% if: i. The 20% preserved dbh is in either a dedicated Conservation Easement or in a Preserved Habitat. All Protected and Non-Protected trees, unless dead or diseased, that are greater than six inches (6 ) dbh may be counted toward meeting the 20% requirement. ii. All other trees remaining in the Development Impact Area but removed shall be replaced in accordance with subsection I and J, if applicable. Conservation & Landscape 3/1/2019 4:14 PM 16
638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 b. Properties without a Preserved Habitat or Conservation Easement, may reduce the 30% minimum to 20% provided: i. The 10% reduced is mitigated at the rates described below: 1) Heritage Tree(s) Two and three-quarter (2.75) inches for every inch removed; and 2) Quality Tree(s) Two and one-quarter (2.25) inches for every inch removed. ii. All other trees remaining in the Development Impact Area but removed shall be replaced in accordance with subsection I and J, if applicable. 3. Secondary Trees There is no minimum preservation required. Mitigation shall be four (4) inches for every tree removed, or two (2) replacement trees. Secondary trees preserved shall be credited in accordance with subsection I. 4. Preservation Relief City Council may approve relief of the Preservation Requirements in accordance with Section 35.3.11 Tree Preservation Relief Provisions. I. TREE REPLACEMENT 1. In the event that it is necessary to remove a Protected Tree(s) as allowed in this chapter, the applicant shall be required to replace the tree(s) being removed with healthy trees or pay a mitigation fee as explained hereafter. a. If it is determined that tree replacement is required, a tree replacement plan must be approved prior approval of a final plat or replat and a note shall be placed on that plat referencing the approved tree replacement plan. b. If platting is not required, the tree replacement plan shall be included as part of a site plan approval or tree removal permit. 2. In accordance with Texas Local Government Code, Section 212.905, as amended, replacement trees must be: a. planted on property in which they were removed; or b. at a location mutually agreed upon by the city and the property owner; and c. be a minimum of two inches (2 ) in diameter, four and one-half feet above ground when planted. 3. In order to ensure biodiversity and protect against tree disease, if twenty (20) or more trees are planted no one species of tree may exceed thirty percent (30%) of the total new trees on the site. 4. To determine the Replacement Inches required by this section, the applicant shall inventory and combine the total inches of DBH of all protected trees that are to be removed and that are located within the Development Impact Area. 5. This inventory shall be separated into inches of DBH removed per protected tree classification as calculated using the following replacement rates or the rates in Section H.2.a.ii or H.3.a, if applicable: a. Heritage Tree Three (3) inches for every inch removed; b. Quality Tree Two (2) inches for every inch removed; and c. Secondary Tree Four (4) inches for every tree removed. 6. The total of the required inventories represents the Replacement Inches that shall be replaced through new tree plantings or preservation of existing trees. a. New Trees required to satisfy the landscaping provisions of this chapter shall be counted towards satisfying this requirement. Conservation & Landscape 3/1/2019 4:14 PM 17
684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 7. Once each Tree on the site is inventoried, tree mitigation shall be calculated as follows and as shown in Table I.1: a. The Calculated DBH of each Tree shall be the DBH of the Tree multiplied by the appropriate classification ratio as described section I.4 above. The Total Calculated DBH shall be the sum of all these Trees. 8. In accordance with Texas Local Government Code Section 212.905, as amended a credit of fifty percent (50%) shall automatically be given to the Total Calculated DBH for all residential development and forty percent (40%) for non-residential development. The Preliminary Mitigation DBH is 50% of the Total Calculated DBH for all residential or 40% for nonresidential. Mixed Use developments shall be credited the residential rate of 50%. 9. Tree Preservation Credit. Additional Credit shall be given for all protected trees that are preserved. Preserved Credits shall be the sum of: a. A four (4) inch credit against mitigation for each one inch of Preliminary Mitigation DBH shall be authorized for the preservation of any Landmark Tree or any trees preserved within a Conservation Easement or Preserved Habitat; b. A three (3) inch credit against mitigation for each one inch of Preliminary Mitigation DBH shall be authorized for the preservation of any other Heritage Tree. c. A two (2) inch credit against mitigation for each one-inch Preliminary Mitigation DBH shall be authorized for the preservation of any other Quality Tree. 705 Conservation & Landscape 3/1/2019 4:14 PM 18