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HomeMy WebLinkAboutPD-31-97DN:TREEBYLW.GPA THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Meeting: Date: Report #: Subject: • ■ • General Purpose and Administration Committee File # = ` -'` ° �'� Monday, March 3, 1997 Res. # - q <Z- 7 PD -31 -97 File #: PLN 17.7.1 By -law # MUNICIPALITY OF CLARINGTON TREE PRESERVATION BY -LAW Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report PD -31 -97 be received; 2. THAT the Municipality of Clarington Tree Preservation By -law, attached to Report PD- 31 -97, be adopted; 3. THAT Staff be authorized to provide Public Notice of the adoption of the Tree Preservation By -law in appropriate newspapers; 4. THAT Staff be further authorized to initiate discussions with the Central Lake Ontario Conservation Authority regarding the appointment of Authority Staff as Officers for the purposes of the Tree Preservation By -law; and 5. THAT all interested parties listed in this report and any delegation be advised of n Council's decision. 1. PURPOSE OF REPORT 1.1 On April 15, 1996, Council directed Staff to examine the feasibility of passing a tree cutting by -law. This report, which forwards a Tree Preservation By -law for Committee and Council's approval, has been prepared in response to Council's direction. 2. BACKGROUND 2.1 Tree cutting in Clarington is currently regulated by the Durham Region Tree Conservation By -law passed by Regional Council in 1991 under the authority of the Trees Act. Only Lipper tier municipalities may pass by -laws to regulate tree cutting under this Act, W W 2.3 gum although the By -law is enforced by the local municipalities. The focus of the Tree Act is to prevent the clear cutting of woodlots and to encourage the management of forests for logging purposes. It is not specifically intended to provide municipalities with the authority to regulate all tree cutting within their boundaries. As a result, the Durham Region Tree Conservation By -law has a number of limitations, as noted below, which restrict the Municipality's ability to regulate tree cutting: the protection of rare or endangered tree species or significant natural areas is not provided for; municipalities cannot prevent tree cutting or stop tree cutting which is already underway; • municipalities cannot require that good forestry practices be employed when logging does occur; • the maximum fine ($5,000.00) is too low to act as an effective deterrent for lands with development potential; ® land owners are permitted to cut trees for their own use, although the term 'own use" is not defined, thus providing a major loophole in the by -law; • the by -law does not apply to "trees planted for the production of Christmas trees ", however there is no requirement that the trees be actively managed and sold as Christmas trees, thus providing another major loophole. The Clarington Official Plan (Section 4.7.5) indicates that the Municipality will pursue a variety of mechanisms to achieve the preservation of woodlots, including the enactment of a Tree Preservation By -law under the Municipal Act. This Act provides local municipalities with significantly greater latitude in the preparation and enforcement of tree preservation by -laws and thus overcomes many of the deficiencies of the Trees Act. Specifically, the Municipal Act provides local municipalities with the authority to pass by- laws to: prohibit or regulate the injury or destruction of trees or any class of trees in any defined area or on any class of land; 644 REPORT NO.: require that a permit be obtained for the injuring or destruction of trees and prescribing fees for the permit; prescribe conditions under which a permit may be issued. The Act also provides for a court to impose significantly greater fines than the Trees Act and to order the replanting of trees. 2.4 Staff previously advised Committee of issues related to the preparation of a Tree Preservation By -law through Report PD- 149 -96, considered by Committee at its November 4, 1996 meeting. That Report noted the most significant issues relating to the By -law include the area to which the by -law would apply, and the administration and enforcement of the By -law. The Report also noted that Clarington is one of the first municipalities in Ontario to prepare a tree preservation by -law under the provisions of the Municipal Act. 2.5 Staff have consulted with a number of agencies in the drafting of the Tree Preservation By -law, including the Central Lake Ontario Conservation Authority and the Ganaraska Region Conservation Authority, and forestry and enforcement staff from other municipalities. Copies of the draft By -law were also provided to Mrs. Libby Racansky, and Mr. Kelvin Whalen, representing the Durham Chapter of the Urban Development Institute. 3. OVERVIEW OF TREE PRESERVATION BY -LAW Intent of By -law 3.1 Most of the difficulties experienced with tree cutting in Clarington have occurred within and near urban areas where wooded areas have been clear cut in expectation of development. As noted earlier, the Region's Tree Conservation By -law has generally not been effective in preventing such activities due to the limitations imposed by the Trees Act. 645 Meam 3.2 In this regard, the proposed Tree Preservation By -law prepared by Staff pursuant to the provisions of the Municipal Act has two main purposes: to protect larger woodlots and trees in significant natural areas in that part of the Municipality most vulnerable to development pressures; to ensure that any tree removal that occurs maintains the ecological integrity of the woodlot and significant natural areas. 3.3 For the purposes of the Trees Preservation By -law, a "woodlot" is defined as any area 0.4 ha (1 acre) or greater which contains a specified number of trees. The definition of woodlot specifically excludes orchards, Christmas tree farms and landscape farms which are being actively managed and harvested for the purposes for which they were planted. Thus, the by -law would not prevent the cutting of Christmas trees or orchard trees, or the sale of nursery stock. 3.4 Staff felt it was neither appropriate nor necessary to extend the application of the d Municipality's Tree Preservation By -law beyond the urban and near -urban areas. Large - scale tree removal has not generally been a problem in the more rural areas of the Municipality. As well, the Region's Tree Conservation By -law will continue to apply to these areas. The Region's by -law, which was passed under the provisions of the Trees Act, is more appropriate for the protection of woodlots which are being managed for logging purposes. However, if considered necessary in the future, it would be possible to expand the area subject of the Municipality's by -law. Area of Application 3.5 The Municipality's Tree Preservation By -law is proposed to apply to the area south of Taunton Road to just east of the urban areas of Newcastle Village and Orono. This area is defined by Schedule "A" of the By -law. Within the area defined on Schedule "A ", the By -law specifically applies to: • all wooded areas which meet the definition of "woodlot" in the By -law; any tree within lands designated "Environmental Protection Area" on Map A of the Clarington Official Plan; and any tree within 120 metres of a wetland identified on Map C of the Official Plan (See Section 3 of By -law). 0 ®vr"iaC- 3.6 Section 7 of the Tree Preservation By -law sets out the conditions under which a permit may or may not be issued for the destruction of trees, as well as the conditions under which a permit is not required for the destruction of trees. It is therefore important to reiterate that the primary intent of the By -law is to prevent large -scale tree removal (clear - cutting) and to ensure that the destruction of trees which occurs does so in accordance with good forestry practices. "Good forestry practices ", as defined by the By -law, permit harvest, renewal, and maintenance activities in a woodlot provided the integrity of the woodlot and its ecological values are protected. 3.7 Section 7.1 of the By -law defines the circumstances under which a permit for the destruction of trees is not required. Staff did not feel it was appropriate to require a permit for limited tree removal or where the owner had already incurred the expense of having a Woodlot Management Plan prepared. As such, a permit is generally not required where the destruction of trees: • occurs in accordance with a Woodlot Management Plan approved by a Professional Forester; • is limited and for the personal use of the owner or for use as part of an active farm operation; is necessary for the construction of a building or the installation of a well or sewage disposal system. 3.8 Section 7.2 sets out the conditions under which a permit for the destruction of trees may be issued. These include: tree removal which would occur in accordance with good forestry practices as certified by a Professional Forester; 647 the clearing of land for agricultural uses, subject to certain conditions as currently provided for in the Clarington Official Plan (Section 4.7.6). The permit fee varies between $25 and $75 and is detailed on Schedule "D" of the By- law. 3.9 Section 7.3 outlines the situations where a tree may not be removed or a permit for the destruction of trees may not be issued. In general, tree removal is not permitted: on lands on which a development application has been submitted but not approved; • where flood or erosion control or a significant natural area will be negatively affected; • where the destruction of trees would not be in accordance with good forestry practices; • where the destruction of trees would reduce the number of trees so that the wooded area would no longer meet the definition of a woodlot. Exemptions 3.10 Section 3 of the Tree Preservation By -law sets out the activities which are exempted from the provisions of the By -law. These generally include activities undertaken by public agencies, including the Municipality, the Region and Conservation Authorities, and activities regulated by provincial statute such as the Aggregate Resources Act or the Environmental Protection Act. Works authorized under a subdivision agreement or a site plan agreement with the Municipality are also exempted as the preservation of trees is addressed through such agreements. Administration of By -law 3.11 The Director of Planning and Development will be responsible for the administration of the Tree Preservation By -law, including the review of applications for the destruction of trees and the issuance of permits. The By -law provides for the Director to confer with 648 the Conservation Authority with respect to an application, whether or not a permit should be issued, and any conditions to be attached to a permit. 3.12 As described in Section 8 of the By -law, an applicant for a permit may appeal to the Ontario Municipal Board if the Director refuses to issue a permit or fails to make a decision within 45 days after receipt of the application. An applicant may also appeal if he objects to a condition on a permit. Enforcement of By-law 3.13 The responsibility for enforcing the provisions of the Tree Preservation By -law is the responsibility of Officers specifically designated and appointed by Schedule "G" to the By -law (see Section 9 of the By -law). An Officer and any person acting under the Officer's instructions may enter and inspect any lands but not buildings to which the By- law applies. 3.14 An Officer has two options if the destruction of trees has occurred in contravention of the By -law or a Permit. An Officer may issue an Order and serve it on the land owner and, if applicable, the tree cutting contractor (see Section 9 of the By -law). The serving of an Order would be appropriate, for example, where tree cutting is still continuing, in which case the Order may require that the destruction of trees be stopped immediately and that the By -law or any Permit be complied with. 3.15 The persons) served with the Order may appeal the terms of the Order to Council within 30 days by filing a notice of appeal with the Clerk (see Section 10 of the By -law). Council shall hear the appeal as soon as is practicable, and may confirm, revoke or alter the Order. An Order becomes final and binding once confirmed or modified by Council, or if no appeal is received. If the Order is not complied with within the specified time, an Officer may charge the person(s) subject of the Order with having committed an offence. The matter would then be dealt with by the courts, where a fine may be REPORT imposed and the trees ordered replanted if the person is found guilty (see Section 11 of the By -law). 3.16 The second option available to an Officer when tree cutting has occurred in contravention of the By -law or a Permit, is to charge a person directly with having committed an offence. This would be appropriate, for example, when all the trees have been removed and the situation would not be remedied by the issuance of an Order. The matter would then be dealt with directly by the courts, where the person charged, if found guilty, could be fined and ordered to replant the trees (see Section 11 of the By- law). 4. APPOINTMENT AND TRAINING OF OFFICERS Appointment 4.1 As noted above, Officers are designated and appointed by the Tree Preservation By -law to enforce the provisions of the By -law. In this regard, enforcement involves both the review of permit applications and the investigation of whether tree cutting is occurring in accordance with the By -law or a permit issued under the By -law. Persons must be appointed as Officers in order to lawfully enter onto property in order to conduct an inspection. The Municipal Act also permits an Officer, when carrying out an inspection, to be accompanied by an assisting person who is not an appointed Officer. 4.2 Schedule "G" to the By -law proposes to appoint the two Municipal Law Enforcement Officers and a member of the Planning Department as Officers for the purposes of enforcing the Tree Preservation By -law. The Planning Department Staff member would be responsible for the review of permit applications, while the Law Enforcement Officers would be responsible for undertaking investigations where a violation of the By -law or a permit issued under the By -law is suspected. A Certificate of Designation would be issued to these Officers upon Council adoption of the Tree Preservation By -law (see Schedule "H" to the By -law). W 4.3 None of the Officers currently proposed to be appointed possess the appropriate forestry expertise, nor is such expertise currently available on Staff. However, the effective enforcement of the Tree Preservation By -law requires persons with forestry expertise to review permit applications and to assist in investigations of unauthorized tree cutting. In this regard, Staff note that the Central Lake Ontario Conservation Authority employs forestry technicians. Staff have requested the Authority to consider the possibility of allowing their forestry technicians to be appointed as Officers for the purposes of the Tree Preservation By -law (see Attachment No. 2). The Authority Board, at their meeting of February 18, 1997, voted to initiate discussions with the Municipality regarding this matter. Staff is seeking similar authorization from Committee and Council through their consideration of this report. Training of Officers 4.4 The Municipal Act requires that the Municipality ensure that each Officer is properly trained to perform the duties prescribed by the By -law. In this regard, the Municipal Law Enforcement Officers already have specific experience with investigation and enforcement techniques through the enforcement of the Region's Tree Cutting By -law. The Planning Department Staff member also proposed to be appointed as an Officer has attended a seminar on the enforcement of tree by -laws. However, until such time as the Conservation Authority forestry technicians receive more specific training in the enforcement of tree by -laws, it would be more appropriate for the technicians to assist appointed Officers in conducting investigations as provided for by the Municipal Act. 4.5 An introductory course to train tree by -law officers is currently being prepared on behalf of the Ministry of Natural Resources. Staff will take advantage of this training course when it is available and will make similar arrangements for the appropriate Conservation Authority staff to also take this course. 5.1 The Tree Preservation By -law does not seek to impose onerous requirements on the X51 REPORT 0 owners of woodlots and sensitive natural areas in the southern portion of the Municipality. Rather, the By -law encourages land owners to have Woodlot Management Plans prepared. In this regard, it is hoped that the Tree Preservation By -law will foster responsible stewardship of the Municipality's woodland resources in the areas most directly subject to urban development pressures. Respectfully submitted, Franklin Wu, M.C.I.P., R.P.P. Director of Planning and Development JAS *DC *FW *df 20 February 1997 Reviewed by, W.H. Stockwell Chief Administrative Officer Attachment No. 1 - Draft Tree Preservation By -law Attachment No. 2 - Letter from Franklin Wu to Central Lake Ontario Conservation Authority Interested parties to be notified of Council and Committee's decision: Mrs. Libby Racansky 3200 Hancock Road Courtice, Ontario L1 E 2M1 Mr. Kelvin Whalen Chair, Durham Chapter Urban Development Institute 2025 Sheppard Avenue East Suite 2208 Willowdale, Ontario M2J 1 V6 652 ATTACHMENT #1 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY -LAW NO. 97 - being a by -law to prohibit or regulate the destruction of trees in the Municipality of Clarington. WHEREAS Section 223.2 of the Municipal Act, R.S.O. 1990, provides Council with the authority to pass by -laws for prohibiting or regulating the injury or destruction of trees or any class of trees specified in the by -law in any defined area or any class of land, and to require that a permit be obtained for the injuring or destruction of trees specified in the by- law and prescribing fees for the permit, and to prescribe conditions under which a permit may be issued; AND WHEREAS Section 4.7.5 of the Municipality of Clarington Official Plan states that the Municipality will pursue a variety of mechanisms to achieve the preservation of woodlots, including the enactment of a Tree Preservation By -law under the Municipal Act; NOW THEREFORE the Council of the Corporation of the Municipality of Clarington enacts as follows: SECTION 1 TITLE OF BY -LAW This By -law may be cited as the "Tree Preservation By -law ". SECTION 2 DEFINITIONS For the purposes of this By -law, the following definitions shall apply: "APPLICANT" shall mean the land owner who submits an Application under this By -law; "APPLICATION" shall mean the application form to destroy trees attached to this By -law as Schedule "B'; "CHRISTMAS TREE FARM" shall mean land where coniferous trees are grown and maintained for sale as Christmas trees; "CLERK" shall mean the Clerk of the Corporation of the Municipality of Clarington; "DBH" shall mean 'diameter breast height', and refers to the diameter of the stem of a tree measured at a point 1.37 metres above ground level; "DESTROY" shall mean the removal, harm or ruin of trees by cutting, burning, uprooting, chemical application or other means; "DIRECTOR" shall mean the Director of Planning and Development for the Municipality of Clarington; "DISEASE" shall mean any disease or injury of a tree that is caused by a vertebrate or invertebrate animal, virus, fungus, bacterium, or other organism, or any combination thereof, "EMERGENCY WORK" shall mean any work necessary to protect lives or property, and may include utility repairs and structural repairs to a building; "FARM OPERATION" shall mean an agricultural or horticultural operation that is carried on in expectation of gain or reward, and includes the cultivation of land, the raising of livestock, the production of agricultural crops and maple syrup production; 653 "GOOD FORESTRY PRACTICE" shall mean the proper implementation of harvest, renewal and maintenance activities known to be appropriate for the woodlot and the environmental conditions under which it is being applied and which minimize detriments to woodlot values, including: significant ecosystems, important fish and wildlife habitat, soil and water quality and quantity, woodlot productivity and health, and the aesthetic and recreational values of the landscape. Good forestry practice includes the clearing and thinning of trees for the purposes of stimulating tree growth and improving the quality of the woodlot without permanently breaking the canopy; the cutting and removal of hazardous, severely damaged, diseased and insect - infested trees in order to prevent injury, damage, contamination or infestation of other trees; and the cutting or removal of trees which no longer contribute to the achievement of woodlot values; "HARVESTING" shall mean the destruction of trees and may be either a single cut or a series of cuts, and shall have the same meaning as logging; "INFESTATION" shall mean an actual or potential infestation or infection by a forest tree pest or pests as defined under the Forest Tree Pest Control Act R.S.O. 1990; "LANDSCAPE FARM" shall mean land where young trees or other plants are grown for transplanting or for sale; "NATURAL AREA" shall mean lands which are intended to remain in their natural state due to the presence of significant or sensitive natural features or functions, and shall include valleylands, ravines and contiguous forested areas, wetlands, and groundwater recharge /discharge areas; "MUNICIPALITY" shall mean the Corporation of the Municipality of Clarington; "OFFICER" shall mean an Officer appointed and designated by Schedule "G" to this By -law; "OFFICIAL PLAN" shall mean the Official Plan of the Municipality of Clarington, as amended; "OWNER" shall mean the person identified in the most recent municipal assessment roll as the owner of the land subject of an application under this By -law, pursuant to subsection 14 (1) of the Assessment Act, R.S.O. 1990; "PERMIT" shall mean the written authorization from the Director to destroy trees as provided in Schedule "E" to this By -law; "PERSON" shall mean an individual, a corporation and the heirs, executors, administrators, or other legal representatives of a person to whom the context can apply according to law; "PERSONAL USE" shall mean the use of destroyed trees by the land owner for such purposes as firewood or lumber, but shall not include the sale of the wood for commercial purposes; "PROFESSIONAL FORESTER" shall mean a person registered under the Ontario Professional Foresters Association Act 1957; "SILVICULTURE" shall mean a tree management process which implements good forestry practices to control the establishment, composition and growth of trees; "TREE" shall mean any species of single - stemmed perennial woody plant, which has reached or can reach a height of at least 6 metres at physiological maturity; "TREE CUTTING CONTRACTOR" shall mean any person who enters into a contract with the Applicant for the purposes of destroying trees; 654 WOODLOT" shall mean an area having not less than: (i) 400 trees of any size in a 0.4 hectare area; (ii) 300 trees measuring more than 5 centimetres dbh in a 0.4 hectare area; (iii) 200 trees measuring more than 12 centimetres dbh in a 0.4 hectare area; or (iv) 100 trees measuring more than 20 centimetres dbh in a 0.4 hectare area; but shall not include: (v) an orchard, as defined pursuant to subsection 19 (9) of the Assessment Act R.S.O. 1990; (vi) a Christmas Tree farm; or (vii) a landscape farm; that is being actively managed and harvested for the purposes for which it was planted. SECTION 3 SCOPE OF BY -LAW 3.1 AREA OF APPLICATION OF BY -LAW The provisions of this By -law shall apply to: (i) all lands defined as "woodlots" by Section 2 of this By -law; (ii) any tree within lands designated "Environmental Protection Area" on Map A of the Official Plan; and (iii) any tree within 120 metres of a wetland as identified on Map C of the Official Plan; located within the area of the Municipality identified on Schedule "A" to this By -law. 3.2 EXEMPTIONS The provisions of this By -law do not apply to: (i) activities or matters undertaken by the provincial or federal government or their agents or Ontario Hydro; (ii) activities or matters authorized under the Crown Forestry Sustainability Act 1994; (iii) activities or matters prescribed by regulation by the Lieutenant Governor in Council; (iv) activities or matters under the Forest Tree Pest Control Act, R.S.O. 1990; (v) activities carried out pursuant to a Certificate issued under the Abandoned Orchard Act, R.S.O. 1990; (vi) activities carried out under the Aggregate Resources Act R.S.O. 1990; (vii) waste disposal sites approved pursuant to Part V of the Environmental Protection Act, R.S.O. 1990; 655 (viii) activities undertaken by a public utility pursuant to the Public Utilities Act R.S.O. 1990; (ix) works undertaken by the Municipality or the Regional Municipality of Durham; (x) works authorized under a subdivision or site plan agreement with the Municipality; (xi) activities undertaken by Conservation Authorities on lands owned by the Authority; or (xii) the destruction of trees due to emergency work authorized by the Chief Building Official or the Director of Public Works, 3.3 COMPLIANCE WITH OTHER STATUTES AND BY -LAWS In the event of any conflict between the provisions of this By -law and the provision of a by -law passed under the Trees Act, R.S.O. 1990, the provision that is the most restrictive of the destruction of trees prevails. 3.4 INTERPRETATION In this By -law, unless the context otherwise requires, words imparting the singular number shall include the plural and words imparting the masculine gender shall include the feminine and vice versa. SECTION 4 GENERAL PROVISIONS 4.1 No land owner shall cause or permit, on any of his lands designated in Section 3.1 of this By -law, the destruction of any tree without a Permit, unless otherwise permitted by this By -law. 4.2 No owner shall cause or permit the unnecessary destruction of trees during harvesting or while conducting renewal or maintenance activities required under good forestry practices. 4.3 No person shall contravene the terms of a Permit issued under this By -law or the conditions attached thereto. 4.4 No person shall fail to comply with an Order issued under this By -law. 4.5 No person shall remove, pull down, or deface any Order in the form set out in Schedule "F" to this By -law after the Officer has caused it to be placed in a prominent position on lands, except with the written consent of the Officer. 4.6 No person shall obstruct an Officer or a person acting under the Officer's instructions who is carrying out an inspection under this By -law. 4.7 Any person who contravenes Section 4.6 is guilty of an offence. SECTION 5 ADMINISTRATION AND ENFORCEMENT 5.1 ADMINISTRATION 5.1.1 The Director is responsible for the administration of this By -law and is hereby delegated the authority to receive applications and the required fees, and to issue permits and to attach conditions thereto in accordance with this By -law. 656 5.2 ENFORCEMENT 5.2.1 The enforcement of this By -law is the responsibility of the Officers appointed and designated by Schedule "G" to this By -law. 5.3 TRAINING AND CERTIFICATION 5.3.1 The Director shall ensure that each Officer is properly trained to perform his duties. 5.3.2 The Director shall issue a Certificate of Designation to every Officer in the form prescribed in Schedule "H" to this By -law. SECTION 6 APPLICATION FOR PERMIT TO DESTROY TREES 6.1 SUBMISSION OF APPLICATION 6.1.1 Every owner who intends to destroy a tree where a Permit to do so is required by this By -law shall first complete the Application as set out on Schedule "B" to this By- law. The completed Application shall be delivered personally or forwarded by pre- paid first class mail to the Director at least forty-five (45) days prior to the destruction of any trees. 6.2 OWNER'S AUTHORIZATION 6.2.1 Where there is more than one owner of the land subject of the Application, only one owner shall be considered the Applicant. The other land owners shall complete the Authorization Form as set out on Schedule "C" to this By -law. The Application shall not be considered completed until such time as Authorization Forms from all owners of the subject land have been submitted. 6.3 FEES 6.3.1 Any Application submitted to the Director shall be accompanied by the prescribed non - refundable fees as set out in Schedule "D" to this By -law. The Application shall not be considered completed until such time as the required fee is submitted to the Director. 6.4 TREE CUTTING CONTRACTOR 6.4.1 Where the work authorized by a Permit is to be undertaken by a Tree Cutting Contractor other than that indicated on the Application, said new Contractor shall sign the Application submitted by the Applicant. 6.5 ADDITIONAL INFORMATION 6.5.1 Where, in the opinion of the Director, additional information is necessary, the Director may require the Applicant to be responsible for submitting a report respecting the health or condition of the tree to be removed. Such report shall be prepared by a Professional Forester. 6.5.2 In the event that a report is required pursuant to Section 6.5.1, the Application shall not be considered completed until such time as the requested report is submitted to the Director. 6.6 CONSULTATION WITH CONSERVATION AUTHORITY 6.6.1 Following receipt of an Application, the Director may confer with the relevant Conservation Authority with respect to the Application, whether or not a Permit should be issued, and any conditions thereto. W 6.7 INSPECTION 6.7.1 Following receipt of an Application, an Officer and any person acting under the Officer's instructions may inspect the lands and shall make his recommendation to the Director whether or not a Permit should be issued having regard to the criteria set out in Sections 7.1, 7.2 and 7.3 and if so, under what conditions, if any, the destruction of any tree may be carried out under the Permit, having regard to Section 7.5 of this By -law. SECTION 7 PERMITS 7.1 PERMIT NOT REQUIRED 7.1.1 A Permit for the destruction of trees shall not be required where: (i) the destruction of trees is on lands covered by a Woodlot Management Plan approved by a Professional Forester, provided that such work is undertaken in accordance with good forestry practices and the Woodlot Management Plan; (ii) the destruction of trees occurs as an integral component of an active farm operation, provided that the destruction of trees is in accordance with good forestry practices as certified by a Professional Forester; (iii) the destruction of trees is necessary to construct a building authorized by a Municipal building permit or to install a domestic well or a sewage disposal system authorized by a certificate of approval issued pursuant to Section 76 of the Environmental Protection Act R.S.O. 1990, provided that the total area from which trees are cleared will not exceed 0.4 hectares; or (iv) the destruction of trees is for the personal use of the land owner, provided that no more than twenty (20) trees are to be destroyed in any 12 month period. 7.1.2 The owner shall provide a copy of the Woodlot Management Plan to the Director if requested in writing to do so by either the Director or an Officer. 7.2 ISSUANCE OF PERMIT 7.2.1 A Permit to destroy a tree may be issued where: (i) the destruction of trees is in accordance with good forestry practices as certified by a Professional Forester; or (ii) the lands to be cleared form part of an active farm operation, the land has Class 1 to 3 soils as defined by the Canada Land Inventory of Soil Capability for Agriculture, agricultural yield or productivity would be increased, and the lands are designated as "Prime Agricultural Area ", "General Agricultural Area ", "Green Space" or "Waterfront Greenway" by the Official Plan. 7.3 PROHIBITIONS 7.3.1 The removal of a tree shall not be permitted and the issuance of a Permit under this By -law shall not be authorized where: (i) an Application required under this By -law has not been submitted in full or the required fee has not been paid; (ii) a report as required by the Director pursuant to Section 6.5.1 of this By -law has not been submitted or, in the opinion of the Director, is not satisfactory; 658 (iii) an application for subdivision approval or consent related to lands on which the tree is located has been submitted to the Regional Municipality of Durham and has not received Draft Approval; (iv) a Rezoning application, an application for Site Plan Approval, and /or an application to amend the Clarington Official Plan or the Durham Region Official Plan related to the lands on which the tree is located has been submitted to the Municipality and /or the Region of Durham, and has not received final approval; (v) the tree is an endangered species as defined in the Endangered Species Act, R.S.O. 1990; (vi) flood or erosion control, or the ecological integrity of a natural area, will be negatively affected as determined by the relevant Conservation Authority; (vii) the destruction of trees will not be in accordance with good forestry practices as determined by a Professional Forester or an Officer designated by Schedule "G" to this By -law; or (viii) the destruction of trees will reduce the number of trees in the woodlot below the minimum number of trees necessary to constitute a woodlot as defined by this By -law. 7.4 DURATION OF PERMIT 7.4.1 Any Permit approved in accordance with this By -law shall be issued in the name of the Applicant and shall expire a maximum of nine (9) months after the date of issuance. 7.5 CONDITIONS OF PERMIT 7.5.1 Conditions may be attached by the Director to the Permit to be issued and may include the following considerations: (i) the species, size, number and location of replacement trees to be planted by the applicant; (ii) the date by which any replacement trees are to be planted; (iii) the maintenance and care of any replacement trees. 7.6 PERMIT EXTENSION 7.6.1 The Director may extend the expiration date of a Permit if a written request for an extension is received by the Director a minimum of three (3) working days before the date the Permit expires. Any request for a Permit extension which is received after this time may require the submission of a new Application. 7.6.2 In considering whether or not to grant a request to extend a Permit, the Director shall take the following matters into account: to what extent the work authorized by the Permit has occurred, and to what extent the conditions of the Permit have been adhered to. In no case however, shall the Director extend a Permit so that the Permit remains in effect for more than one (1) year from the original date of its issuance. 659 7.7 REMOVAL OF ADDITIONAL TREES 7.7.1 When the Applicant wishes to remove additional trees not authorized by a Permit, he shall provide in writing to the Director, the information regarding the additional trees to be removed as required by Paragraphs 2 through 9 inclusive of the Application, at least five (5) working days prior to the commencement of the additional work. The Director may modify the conditions of the existing Permit to allow the destruction of the additional trees or require the Applicant to submit a new Application under this By -law. SECTION 8 APPEAL TO THE ONTARIO MUNICIPAL BOARD 8.1. An Applicant may appeal to the Ontario Municipal Board: (i) if the Director refuses to issue a Permit, within thirty (30) days after the refusal; (ii) if the Director fails to make a decision on an Application, within forty -five (45) days after the completed Application is received by the Director; or (iii) if the Applicant objects to a condition in the Permit, within thirty (30) days after the issuance of the Permit. 8.2 The Ontario Municipal Board may make any decision that the Director who received the Application for a Permit could have made. SECTION 9 NON - COMPLIANCE WITH BY -LAW 9.1 POWERS OF INSPECTION 9.1.1 For the purposes of conducting an inspection to determine compliance with this By- law, an Officer and any person acting under the Officer's instructions may, during daylight hours and upon producing the Certificate of Designation, enter and inspect any lands but not buildings to which this By -law applies. 9.2 ISSUANCE OF ORDER 9.2.1 Where an Officer is satisfied that a contravention of this By -law or a Permit issued under this By -law including any of the conditions attached thereto, has occurred, the Officer may make an Order containing: (i) the name of the person to whom the Order is directed; (ii) the municipal address and /or legal description of the lands; (iii) a statement that the lands have been inspected on a certain date; (iv) reasonable particulars of the contravention of this By -law or a Permit issued under this By -law including conditions attached thereto; (v) a statement that the destruction of trees is ordered stopped forthwith; (vi) a statement that there must be compliance with the By -law or a Permit issued under this By -law, including any conditions thereto; (vii) set out the time period within which there must be compliance with the terms of the Order; (viii) notification to the person to whom the Order is directed that they have the right of appeal to Council in accordance with Section 10.1 of this By -law and advise as to the last date such appeal can be made; I (ix) a statement that, in the event that no appeal is taken, the Order shall be deemed to be confirmed. 9.3 SERVICE OF ORDER 9.3.1 An Order issued under Section 9.2 shall be served personally to the land owner and, if applicable, to the Tree Cutting Contractor. If said Order cannot be served personally, the Order shall be served by sending it by pre -paid registered mail to the last known address of the land owner and, if applicable, the Tree Cutting Contractor. 9.3.2 The Officer shall also place a placard containing the terms of the Order in a conspicuous place on the affected lands. Where service to the land owner and /or the Tree Cutting Contractor cannot reasonably be affected under Section 9.3.1, the placing of the placard on the affected lands in accordance with this section shall be deemed to be sufficient service of the Order on the person to whom the Order is directed. SECTION 10 APPEAL OF ORDER 10.1 APPEAL TO COUNCIL 10.1.1 Where the person to whom the Order is directed has been served in accordance with this By-law is not satisfied with the terms of the Order, the person may appeal to Council by filing notice of appeal by personal service or pre -paid registered mail to the Clerk within 30 days after the date of the Order. 10.2 HEARING BEFORE COUNCIL 10.2.1 Where an appeal has been filed, Council shall hear the appeal as soon as is practicable. 10.3 NOTICE OF HEARING 10.3.1 Before conducting a hearing under Section 10.2, the Clerk shall give notice to such persons or direct that notice be given to such persons as the Clerk considers should receive notice and in the manner directed by the Clerk. 10.4 POWERS OF COUNCIL 10.4.1 After hearing an appeal, Council may confirm, modify or revoke any Order issued under this By -law provided that in the opinion of Council, the general intent and purpose of this By -law and the Official Plan have been maintained. The decision of Council shall be final and binding. 10.4.2 The Order issued under Section 9.2 shall be final and binding: (i) upon the time expiring for appeal to Council and there being no appeal; (ii) in the event there is an appeal to Council and upon Council confirming or modifying the Order, the person upon whom the Order is final and binding shall comply with the terms or conditions of the Order within the time and in the manner specified in the Order. SECTION 11 PENALTIES FOR NON - COMPLIANCE WITH BY -LAW 11.1 Any person who contravenes any provision of this By -law or an Order as confirmed or modified by Council is guilty of an offence and on conviction is liable: (i) on a first conviction, to a fine of not more than $10,000.00, and (ii) on any subsequent conviction, to a fine of not more than $20,000.00. HE 11.2. Where a person is convicted of an offence under this By -law, in addition to any other remedy or any penalty imposed by the By -law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted or any other person. 11.3 Where a person is convicted of an offence under this By -law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may order the person to replant or have replanted such trees in such manner and within such a period of time as the court considers appropriate, including any silvicultural treatment necessary to re- establish the trees or have the trees re- established. SECTION 12 VALIDITY OF BY -LAW 12.1 Where a court of competent jurisdiction declares any section or part of a section of this By -law to be invalid, the remainder of this By -law shall continue in force unless the court makes an order to the contrary. SECTION 13 EFFECTIVE DATE OF BY -LAW 13.1 This By -law shall come into force and take effect on the day of enactment by Council. SECTION 14 SCHEDULES 14.1 Schedules "A", "B ", "C", "D11, "Ell, "F" , "G" and "H" attached hereto shall form part of this By -law. By -law read a first and a second time this day of ,1997 By -law read a third time and finally passed this day of ,1997. MAYOR CLERK SCHEDULE "B" TO BY -LAW NO. 97- APPLICATION TO DESTROY TREES 1. Land Owner (List all owners - Use additional sheets if necessary) Name: Address: Postal Code: Telephone No: Home Business Fax No: 2. Tree Cutting Contractor Name: Address: Postal Code: Telephone No: Fax No.. 3. Description of Land Lot: Concession: Township: Municipal Street Address: 4. Information on Property and Tree/Woodlot Attach proper drawings and survey showing • limits of land owner's property • adjacent roads • man -made features on the property such as fence lines, rail lines, and buildings • natural features such as streams and wetlands • location, extent and size of woodlot where trees are to be destroyed Describe the trees to be destroyed • number • species • size (dbh) • approximate age • location on property Describe the type of woodlot Mixed Wood Conifer Plantation (Red Pine, etc.) Other Describe 664 5. Time Period Expected Starting Date: Expected Completion Date: 6. Has the Ministry of Natural Resources or a Professional Forester marked this tree /woodlot for cutting? No Yes Name: Address: Phone: Fax: 7. Describe the purpose or reason for the tree destruction and the method of destruction (i.e. cutting, burning, etc.) 8. A copy of any report prepared by a Professional Forester respecting the destruction of trees subject of this Application shall accompany this Application. 9. Where the Tree Cutting Contractor is different from the Applicant, a copy of any contract between the Applicant and the Tree Cutting Contractor respecting the destruction of trees subject of this Application shall accompany this Application . 10. AFFIDAVIT OF APPLICANT The Applicant must be the owner of the lands. If there are multiple owners, only one owner shall be considered the applicant and shall complete this Section. Authorization from all other owners of the land regarding this Application, as set out in Schedule "C" to this By -law, shall be attached to this Application. I, of the in the Region/County of being the registered owner of the lands subject of this Application, solemnly declare that all of the above statements contained in this Application are true, and I make this solemn declaration conscientiously believing it to be true, and knowing that it is of the same force and effect as if made under oath, and by virtue of "The Canada Evidence Act ". I agree that the work to destroy trees will be conducted in accordance with the Municipality of Clarington By -law No. 97- , and that I am familiar with the contents and requirements of that By -law and acknowledge having received a copy thereof. I also agree to allow the Municipality of Clarington, its employees and agents to enter upon the subject lands for the purposes of conducting any inspections that may be necessary to this Application. 3• i Declared before me at the in the Region/County of this day of A Commissioner of Oaths Owner To Be Completed by Tree Cutting Contractor (if different from Applicant) I agree that the work to destroy trees on the property owned by and municipally known as 199. will be conducted in accordance with the Municipality of Clarington By -law No. 97- and the Permit issued under that By -law to the owner of the land. I also agree that I am familiar with the contents and requirements of By -law 97- and the Permit issued pursuant to it and acknowledge having received a copy of both the By -law and the Permit. In signing this Application, I also agree that I am acting with the full authority and permission of the land owner and on his/her behalf. Name: Signature: Dated at this day of .19. NOTICE TO APPLICANT You may appeal to the Ontario Municipal Board: 1. If the Director refuses to issue a Permit, within thirty (30) days after the refusal; 2. If the Director fails to make a decision on an Application, within forty-five (45) days after the completed Application is received by the Director; or 3. If a Permit is issued, but you object to a condition in the Permit, within thirty (30) days after the issuance of the Permit. Notice of Appeal should be mailed or delivered to: Ontario Municipal Board Suite 1500 655 Bay Street Toronto, Ontario M5G 1115 The cost of the appeal (presently $125.00 with each related appeal being an additional $25.00) shall be payable by cheque made payable to the MINISTER OF FINANCE and must accompany the Notice of Appeal. '! SCHEDULE "C" TO BY -LAW 97- LAND OWNER'S AUTHORIZATION FORM I, Name of Land Owner (Please print or type) being one of the registered owners of the subject lands, hereby authorize Name of Applicant (Please print or type) to prepare and submit this application on my behalf. Signature day month year ! #M SCHEDULE "D" TO BY -LAW 97- APPLICATION FEES The following fees shall be payable for applications submitted pursuant to Section 6 of By- law 97- 1. The destruction of trees in a woodlot 2 ha in area or less $25.00 2. The destruction of trees in a woodlot greater than 2 ha in area $50.00 3. The destruction of trees on lands designated "Environmental Protection Area" on Map A of the Official Plan, or located within 120 metres of a wetland identified on Map C of the Official Plan $75.00 In the event that more than one fee is applicable, the Applicant shall only pay the greater of the applicable fees. ••t PERMIT NO. _ PERMIT ISSUED TO: Name: Address: Postal Code: Telephone No: Fax No: SCHEDULE "E" TO BY -LAW NO. 97- PERMIT TO DESTROY TREES Home (Applicant) DESCRIPTION OF LAND Lot: Concession: Township: Municipal Street Address: Business DESCRIPTION OF WORK AUTHORIZED BY THIS PERMIT TREE CUTTING CONTRACTOR Name: Address: CONDITIONS 1, The unnecessary destruction of any tree not authorized by this Permit is hereby prohibited. This Permit shall be null and void in the event that the destruction of trees not authorized by this Permit occurs. 2. Upon completion of the removal and/or harvesting of destroyed trees, specified trees shall be replanted in accordance with replanting plans approved by the Director. 3. All requirements of a woodlot management plan, approved by a Professional Forester and as approved by the Director, shall be complied with. 4. The destruction of trees and any required clean -up or re- planting plans authorized or required by this Permit shall be complied with on or before the expiration of this Permit. 5. This Permit shall be null and void if the work or a portion of the work authorized by this Permit is undertaken by a Tree Cutting Contractor other than that indicated on the Application To Destroy Trees. 669 SCHEDULE "F" TO BY -LAW NO. 97- ORDER PURSUANT TO SECTION 9 OF BY -LAW NO. 97- OF THE MUNICIPALITY OF CLARINGTON An inspection of the lands named herein on day /month/year has disclosed that the conditions of Permit No, issued on da /my oath /year by the Director have not been complied with and/or Section of By -law No. 97- has been violated. THEREFORE TAKE NOTICE THAT the destruction of trees on these lands is hereby Ordered stopped forthwith. AND FURTHER TAKE NOTICE that the destruction of trees shall not resume without written approval of an Officer and unless the provisions of this By -law or the conditions attached to Permit No. _ are complied with on or before day /month /year. AND FURTHER TAKE NOTICE that if you are not satisfied with the terms of this Order, you may appeal to Council by sending notice of appeal by personal service or by pre -paid registered mail to the Clerk of the Municipality of Clarington within 30 days of the date on this Order. AND FURTHER TAKE NOTICE that in the event that no appeal is taken the Order shall deemed to have been confirmed. Section 4.5 of By -law No. 97- states: "No person shall remove, pull down, or deface any Order in the form set out in Schedule "F" to this By -law after the Officer has caused it to be placed in a prominent position or any lands except with the consent of the Officer ". Every person who contravenes any portion of this By -law or an Order issued pursuant to this By -law is guilty of an offence or on conviction pursuant to the provisions of subsection 223.3(15) of the Municipal Act R.S.O. 1990, is liable; (a) on a first conviction, to a fine of not more than $10,000.00 and (b) on any subsequent conviction, to a fine of not more than $20,000.00. Date Officer 670 SCHEDULE "G" TO BY -LAW NO. 97- APPOINTMENT AND DESIGNATION OF OFFICERS The following persons are appointed as Officers for the purposes of enforcing Municipality of Clarington By -law No. 97- 1. Mr. Leonard Creamer, Senior Municipal By -law Enforcement Officer, Municipality of Clarington 2. Ms. Teresa Mason, Municipal By -law Enforcement Officer, Municipality of Clarington 3. Ms. Janice Auger Szwarz, Senior Planner, Community Planning Branch, Municipality of Clarington M SCHEDULE "H" TO BY -LAW NO. 97- CERTIFICATION OF OFFICERS DESIGNATED UNDER MUNICIPALITY OF CLARINGTON BY -LAW 97- (Crest) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON CERTIFICATE OF DESIGNATION (Issued pursuant to Section 223.2 (8) of the Municipal Act R.S.O. 1990 THIS CERTIFIES THAT: IS DESIGNATED AN OFFICER UNDER THE MUNICIPALITY OF CLARINGTON BY -LAW NO. 97- TO INSPECT ANY LAND IN THE MUNICIPALITY OF CLARINGTON TO ENFORCE THE AFORESAID BY -LAW AND ITS REGULATIONS RESPECTING THE DESTRUCTION OF TREES IN THE MUNICIPALITY. CERTIFICATE ISSUED THIS DAY OF 199 Director of Planning and Development 672 February 11, 1997 Mr. J.R. Powell Chief Administrative Officer loo Whiting Avenue Oshawa, Ontario Li H 3T3 Dear Sir: 13 MUNICIPALITY OF Iarington ONTARIO ATTACHMENT #2 Re: Munlclpallty of Clarington Tree Preservation By -law The Municipality of Clarington has drafted a Tree Preservation By -law pursuant to Section 223.2 of the Municipal Act. A copy of the draft By -law is enclosed for your information and comments. Section 5 of the By -law provides for the appointment of Officers to enforce the provisions of the By -law. The Municipality intends to appoint its two Municipal By -law Enforcement Officers as Officers for the purposes of enforcing the Tree Preservation By -law. However, the Municipality would also like to appoint Officers with specific forestry experience to enforce the By -law. In this regard, the Municipality would like to explore the possibility of appointing the forestry technicians currently employed by the Conservation Authority as Officers to enforce the Municipality's Tree Preservation By -law. I understand the Authority has entered into similar agreements with the Town of Whitby and the Region of Durham for the enforcement of parking by -laws in the vicinity of the Lynde Shores Conservation Area. It is anticipated that the primary responsibility of the forestry technicians would be to assist the Municipality's By- law Enforcement Officers in the investigation of possible violations of the Tree Preservation By -law. The technicians may also be requested to assist Municipal staff in the review of applications to destroy trees. An appropriate agreement to compensate the Authority for staff time and other costs could be discussed. It would be appreciated if you could discuss this matter with the Conservation Authority Board at the earliest possible opportunity. the pp appointment Authority Staff only seeking the pursuantuto the Tree Preservation By- law. hope to obtain regarding th ppo similar direction from Clarington Council in early March 1997: Should you wish to discuss this matter further, please feel free to call me or Janice Szwarz of my office. Any comments you may have on the By -law would also be welcome. Yours truly, Franklin Wu, M.C.I.P., R.P.P. Director of Planning and Development FW *Jip CC: Mayor Diane Hamre and Members of Council CC: Bill Stockwell, Chief Administrative Officer CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET • BOWMANVILLE -ONTARIO • L C 3A6 • (905) 623 -3379 • FAX 623 -4169 673 RECYCLED PAPER