10.137 - 140 Violation, Appeals, Fines, Criminal Responsibility and Defenses to Prosecution

10.137  Violation of This Division

Whenever any work is being done contrary to the provisions of this division, the building official may order the work stopped by notice in writing served on any person engaged in the work or causing the work to be done. A person issued this notice shall stop work immediately until authorized by the building official to proceed with the work.  (Ord. Nos. 22053; 25155)
  • Revise to authorize the building official to use aerial photographs in assessing fines for illegal removals.

10.138  Appeals

In considering an appeal from a decision of the building official made in the enforcement of this division, the sole issue before the board of adjustment shall be whether or not the building official erred in his or her decision.  The board shall consider the same standards that the building official was required to consider in making the decision.  (Ord. Nos. 22053; 25155)

10.139  Fines

A person convicted of violating this division shall be subject to a fine of not less than $2,000.00 per protected tree removed or seriously injured without authorization, and not less than $2,000.00 per day for any other violation of this division.  (Ord. Nos. 22053; 25155)

10.140  Criminal Responsibility and Defenses to Prosecution

(a)     A person is criminally responsible for a violation of this division if the person:

          (1)     removes or seriously injures, or assists in the removal or serious injury of, a protected tree without complying with the requirements of this division; or

          (2)     owns part or all of the land where the violation occurs.

     (b)     It is a defense to prosecution under this section that the act is included in one of the enumerated categories listed in this section.  No approval of a tree removal application is required if the tree:

          (1)     was dead and the death was not caused by an intentional or negligent act of the owner or an agent of the owner;

          (2)     had a disease or injury that threatened the life of the tree and was not caused by an intentional act of the owner or an agent of the owner;

          (3)     was in danger of falling or had partially fallen and the danger or the fall was not due to an intentional act of the owner or an agent of the owner;

          (4)     was in a visibility triangle (unless the owner was legally required to maintain the tree there) or obstructed a traffic sign;

          (5)     interfered with service provided by a public utility within a public right-of-way;

          (6)     threatened public health or safety, as determined by one of the following city officials:
               (A)     the chief of the police department;
               (B)     the chief of the fire department;
               (C)     the director of public works and transportation;
               (D)     the director of street services;
               (E)     the director of sanitation services;
               (F)     the director of code compliance; 
               (G)     the director of park and recreation; or
               (H)     the director of development services;
  • Discussion:  Add the director of aviation.  Aviation has the authority to override Article X landscape requirements near airports.  Logic follows this authorization may apply to the removal of protected trees if they 'threatened public health and safety.' 

          (7)     was designated for removal in a landscape plan approved by the city council, city plan commission, or board of adjustment;

          (8)     interfered with construction or maintenance of a public utility;

          (9)     was removed or seriously injured to allow construction, including the operation of construction equipment in a normal manner, in accordance with infrastructure engineering plans approved under Article V of Chapter 49 (see Attachments below) or Section 51A-8.404;  or

          (10)     was removed or seriously injured to allow construction of improvements in accordance with a building permit.  (Ord. Nos. 22053; 23694; 25047; 25155)

Philip Erwin,
Sep 2, 2011, 2:11 PM
Philip Erwin,
Jul 27, 2011, 1:38 PM
Philip Erwin,
Sep 2, 2011, 2:11 PM