APPENDIX
‘A’ –
BY-LAW
2008-XXX
PRIVATE TREE
PRESERVATION BY-LAW
TO REGULATE OR PROHIBIT
THE INJURY OR DESTRUCTION OF TREES
ON PRIVATE
PROPERTY WITHIN THE TOWN OF
WHEREAS
the Council of The Corporation of the Town of Markham (hereinafter the “Town”)
is authorized by subsection 11(1), paragraph 11(2) 5, subsections 135(1) and
(7), and sections 429, 431 and 444 of
the Municipal Act, 2001, S.O. 2001,
c. 25, as amended, to pass by-laws to sustain and promote environmental and
social benefits to the community as a whole through the preservation and
planting of trees throughout the municipality, to regulate or prohibit the
injury or destruction of trees, to require a permit for the removal of trees,
to impose conditions on permits and to provide for a system of fines and other
enforcement orders;
AND
WHEREAS the Regional Municipality of York, pursuant to the Municipal Act, 2001, S.O. 2001, c. 25,
as amended, at subsections 11(2) and (10), enacted the Forest Conservation
By-law No.TR-0004-2005-036 to protect trees in all woodlands of 1.0 ha or more
in area and in woodlots with an area of 0.2 ha up to 1.0 ha, pursuant to
delegated authority authorized by Town of Markham By-law No. 2005-84;
AND
WHEREAS trees on municipal public lands are regulated under existing Town
of
AND WHEREAS the Council of the Town has determined
that it is desirable to enact a by-law to protect, prohibit and regulate the
injury or destruction of trees on private property and in woodlots with an area
of less than 0.2 ha, and to encourage the preservation and planting of trees
throughout the municipality;
NOW THEREFORE THE
COUNCIL OF THE CORPORATION OF THE TOWN OF
SECTION 1.0: BY-LAW
TITLE
1.1 This By-law may be cited as the
"Private Tree Preservation By-law".
SECTION 2.0: DEFINITIONS
2.1 For the purpose of
this By-law:
(a)
“Act” means the Municipal Act, 2001, S.O. 2001, c. 25, as amended;
(b)
“Administrator” means the Tree
Preservation By-law Technical Coordinator employed by the Town of
(c)
“Building Permit” means a building
permit issued under the Building Code
Act,1992, S.O. 1992, c. 23, as amended, or any successor thereto;
(d)
“Business Day” means any day falling
on or between Monday and Friday of each week, excluding statutory holidays;
(e)
“Clerk“ means the Clerk of The
Corporation of the Town of
(f)
"Council" means the
Council of The Corporation of the Town of
(g)
“DBH” (“Diameter at Breast Height”)
means the diameter, measured outside the bark, of the stem or trunk of a tree,
and shall be measured at a point 1.37 metres above the existing grade of the
ground adjoining its base or, where there are multiple stems to a tree, means
the total of the diameters of the three (3) largest stems measured at a point
1.37 metres above the existing grade of the ground adjoining its base;
(h)
“Destruction” means the removal,
ruin or harm of a tree by cutting, burning, girding of the tree or roots,
interfering with roots or uprooting, interfering with water supply, chemical
application, compaction or re-grading within the drip line of a tree, or by
other means including irreversible injury to a tree, which may result from
neglect, accident or design, but does not include pruning or removal of branches for maintenance
purposes provided any such pruning is limited to the appropriate removal of no
more than one-third of the live branches or limbs of a tree, and “destroy”, “destroyed”,
“destroying” and similar words have the same meaning;
(i)
“Director” means the Director of
Operations and Asset Management, Community Services Commission of The
Corporation of the Town of
(j)
“Emergency Work” means any work
necessary to protect lives or property and includes utility repairs and
structural repairs to a building;
(k)
“Good Arboricultural Practice” means
the proper implementation of removal, renewal and maintenance activities known
to be appropriate for individual trees in and around urban areas to minimize
detrimental impacts on urban forest values, and includes pruning of trees to
remove dead limbs, maintain structural stability and balance, or to encourage
their natural form, provided that such pruning is limited to the appropriate
removal of not more than one-third of the live branches or limbs of a tree, but
does not include pruning to specifically increase light or space;
(l)
“Hazard Tree” means a tree that is
severely damaged to the extent that it is or poses an immediate safety threat
to persons or property;
(m)
“Injury” means lasting damage to a
tree which has or may have the effect of inhibiting or terminating its growth,
but does not include pruning or removing branches for maintenance purposes,
provided that any such pruning or branch removal is limited to the removal, as
appropriate, of not more than one-third of the live branches or limbs of a
tree, and “injure” “injured”,
“injuring” and similar words have the same meaning;
(n)
“Local Board” means a municipal service board,
public cemetery board, public library board, transportation commission, board
of health, police services board, or any other board, commission, committee,
body or local authority established or exercising any power under any Act with
respect to the affairs or purposes of one or more municipalities, but does not
include a school board and a conservation authority;
(o)
"Maintenance" includes all
work or operations related to trimming, pruning, spraying, injecting,
fertilizing, treating, cabling and bracing a tree in accordance with Good
Arboricultural Practice;
(p)
“Nursery” means lands or property on
which or where the principal business carried on is the propagation and selling
of plants, shrubs or trees, but does not include any excess lands or property
owned by a nursery which are not devoted to the growth of plants, shrubs or
trees intended for sale;
(q)
“Officer” means a person designated
by The Corporation of the Town of Markham for the enforcement of this By-law
and includes but is not limited to the Tree Preservation By-law Technical
Coordinator, any duly appointed Municipal Law Enforcement Officer, any police
officer or any other person authorized to enforce or perform inspections
pursuant to this by-law;
(r)
“Owner” means a person having any
right, title, interest or equity in land or property, or any such person’s
authorized representative, and includes an occupant, tenant or lessor;
(s)
“Permit” means permission or
authorization given in writing by the Administrator to injure, destroy or
remove a tree, or for a tree management plan issued by the Town under section
7.0 of this by-law;
(t)
“Person” includes an individual, a
sole proprietorship, a partnership, a corporation, a not for profit
corporation, a registered charity and their respective heirs, executors,
administrators, assigns or other duly appointed representatives;
(u)
“Pruning” means the removal, as
appropriate, of not more than one-third of the live branches or limbs of a tree
in accordance with Good Arboricultural Practice;
(v)
“Qualified Tree Expert” means a
person who has graduated from an accredited college or university with a
diploma or degree in Urban Forestry, Arboriculture or the equivalent and
satisfies at least one of the following requirements:
(i)
is certified either by the Ontario
Training and Adjustment Board or the International Society of Arboriculture;
(ii)
is currently accepted as a
consulting arborist with the American Society of Consulting Arborists;
(iii)
is a Registered Professional
Forester (R.P.F.), as defined in the
(iv)
has comparable qualifications to
those set out under clauses (i) to (iii) above and is approved by the Director;
(w)
“Town” means The Corporation of the
Town of
(x)
"Tree" means any species
of woody perennial plant, including its root system, which has reached or can
reach a height of at least 4.5 metres at maturity, provided that where multiple
stems grow from the same root system, the number of trees shall be the number
of stems that can be counted at a point of measurement 1.37 metres from the
ground;
(y)
“
(i) 1000 trees, of any size, per hectare;
(ii) 750 trees measuring over five (5) centimetres
DBH per hectare;
(iii) 500 trees measuring over twelve (12)
centimetres DBH per hectare; or
(iv) 250 trees measuring over twenty (20)
centimetres DBH per hectare;
but does not include a
nursery, a cultivated fruit or nut orchard, or a plantation established for the
purpose of producing Christmas trees or nursery stock;
(z) “Woodlot” means land at least 0.2
hectares up to 1 hectare in area and with at least:
(i) 200 trees, of any size, per 0.2 to 0.99
hectares;
(ii) 150 trees, measuring over five (5)
centimetres DBH, per 0.2 to 0.99 hectares;
(iii) 100 trees, measuring over twelve (12)
centimetres DBH, per 0.2 to 0.99 hectares; or
(iv) 50 trees, measuring over twenty (20)
centimetres DBH, per 0.2 to 0.99 hectares;
but does not include a
nursery, a cultivated fruit or nut orchard, or a plantation established for the
purpose of producing Christmas trees or nursery stock;
(aa) “Zoning By-law”
means a by-law of the Town regulating land use within the Town and passed
pursuant to the Planning Act, R.S.O. 1990, c.P.13, as amended.
SECTION
3.0: APPLICATION OF THE
BY-LAW
3.1
Except as otherwise provided in this
By-law, the provisions of this By-law shall apply to any tree located within
the Town with a DBH of 20 cm or greater.
3.2
Despite subsection 3.1, the
provisions of this By-law do not apply to any woodland with an area of 1.0 ha
or more or to any woodlot with an area of 0.2 ha up to 1.0 ha within the Town,
in accordance with Regional Municipality of York Forest Conservation By-law No.TR-0004-2005-036
and the authority provided to the Region of York to pass By-law No.
TR-0004-2005-036 by Town of
SECTION
4.0: EXEMPTIONS FROM THE
BY-LAW
4.1
The provisions of this by-law do not
apply to:
(a)
activities or matters or the
injuring or destruction of any tree exempted pursuant to subsection 135(12) of
the Act;
(b)
the injuring or destruction of any
tree located within a waste disposal site as defined in Part V of the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended;
(c)
the injuring or destruction, or
maintenance, of any tree that:
(i) is a Hazard Tree, as
defined in this by-law;
(ii)
is required as a result of Emergency
Work, as defined in this by-law;
(iii)
is required under a Property
Standards By-law order ;
(iv)
relates to pruning, maintenance or
removal of branches or limbs of any tree where the branches or limbs interfere
with existing utility conductors, buildings or structures, provided such
activities shall be carried out in accordance with Good Arboricultural
Practice;
(v)
is a tree on a rooftop garden, on a
raised podium, in an indoor courtyard or in a solarium;
(vi)
is a tree in a nursery, provided
that it is a tree devoted to the nursery business and maintained for sale or
propagation of trees for sale;
(vii)
is removed, injured or destroyed for
the construction of a building, where the removal, injury or destruction is
authorized or required under a municipal building permit;
(d)
the pruning or maintenance of any
tree carried out in accordance with Good Arboricultural Practice.
4.2 Persons owning larger tracts of land used
for cemeteries, golf courses, and like commercial or institutional uses, may
file a tree management plan, prepared by a Qualified Tree Expert, which
itemizes the existing number, species and location of trees on the lands, and
the proposed pruning, maintenance, destruction and removal requirements for a
period of ten (10) years, and in circumstances where such a tree management
plan has been approved by the Administrator of this by-law and a permit has
been issued for the tree management plan, a permit for the injury or
destruction of individual trees shall not be required.
4.3 In all other
circumstances, prior to the injury or destruction of any tree, a permit shall
first be obtained from the Town in accordance with section 7.0 of this by-law.
SECTION
5.0: ADMINISTRATION AND
ENFORCEMENT
5.1 The Administrator
of this by-law is responsible for the administration of this by-law and is
hereby delegated the authority to review applications for permits, issue
permits, refuse permits, and include conditions of permits.
5.2 The Administrator may
delegate any of his/her duties under this by-law to an officer.
5.3 For the purposes of conducting an inspection
to determine compliance with this by-law, an order, a permit and a condition of
a permit, the Administrator or officer may, upon producing the appropriate
identification, at any reasonable time, enter and inspect any lands or property,
to determine whether the provisions of this by-law, an Order issued under this
by-law or a condition of a permit issued under this by-law, have been complied
with.
5.4 No
person shall obstruct the Administrator or an officer who is carring out an
inspection pursuant to this by-law. Any
person who obstructs the Administrator or a municipal law enforcement officer
is guilty of an offence.
SECTION
6.0: GENERAL PROHIBITIONS
6.1 Except as provided in Section 4.0 of this
By-law, no person, through his or her own actions or through the actions of an
agent or another, shall:
(a)
injure or destroy any tree within
the Town of
(b)
injure or destroy any tree within
the Town of
(c)
fail to comply with any condition or
term of a permit issued under this by-law;
(d)
fail to comply with any Order issued
under this by-law or remove or deface any Order issued under this By-law,
without obtaining the prior consent of the Administrator;
(e)
obstruct or attempt to obstruct the
Administrator or any Officer or person acting under the Administrator’s
instructions in the exercise of a
power under this by-law; or
(f)
contravene any other provision of this By-law.
SECTION 7.0: PERMITS
7.1 PERMIT APPLICATION REQUIREMENTS
Except where otherwise stated
in this by-law:
(a)
an owner who intends to injure or
destroy a tree, where a permit to do so is required, shall submit a Permit
Application in the form as provided by the Town;
(b)
a report by a Qualified Tree Expert
in support of a Permit Application may be required by the Administrator as a
condition of approval, but is not required as part of the initial Permit
Application;
(c)
where any part of a tree is located
on an adjacent property, a Permit Application shall include the written
permission of the adjacent property owner;
(d)
an owner of lands used for a cemetery, golf
course, and like commercial or institutional uses, may file an application for
a permit for a tree management plan and in support of such a Permit Application
shall submit a tree management plan, prepared by a Qualified Tree Expert, in
accordance with Good Arboricultural Practice, which at a minimum shall itemize
the existing number, species and location of all trees on the lands and the
proposed schedule for pruning, maintenance, destruction and removal
requirements for a period of ten (10) years;
(e)
a Permit Application may be
submitted in person or sent by pre-paid first class mail to the Clerk and must
be received by the Clerk at least thirty (30) days prior to the planned
injuring or destruction of any tree; and
(f)
all Permit Applications shall be
accompanied by the prescribed, non-refundable fee set out in the Town’s Fees
By-law No. 2002-276, as
amended, from time to time, or any successor thereto.
7.2
ISSUANCE
OF A PERMIT
The following provisions
apply to the issuance of permits:
(a)
Following receipt of a Permit
Application, the Administrator, or any person acting under the Administrator’s
instructions, may inspect the lands and tree(s) to determine whether or not a
Permit should be issued;
(b)
The Administrator may issue a permit
for a tree management plan sought under clause 7.1 (d) where the Administrator
is satisfied that:
(i)
the Permit Application relates to
the contemplated commercial or institutional uses;
(ii)
the proposed schedule for the injury
or destruction of trees set out in the plan represents Good Arboricultural
Practice;
(iii)
the proposed schedule for the injury
or destruction of trees set out in the plan does not contravene the general
intent and purpose of this by-law.
(c)
The Administrator may issue a permit
to injure or destroy a tree where the Administrator is satisfied that:
(i)
the tree is considered dead or
sufficiently diseased or damaged, as certified by an Officer or a Qualified
Tree Expert, to warrant the destruction of the tree;
(ii)
the injury or destruction of the
tree is required to permit the establishment or extension of a use of a
building or structure and there is no reasonable alternative to the destruction
or injury of the tree;
(iii)
the tree is causing structural damage
to load bearing structures, drains or buildings; or
(iv)
the injury or destruction of the
tree does not contravene the general intent and purpose of this by-law.
(d)
The Administrator may refuse to
issue a permit to injure or destroy a tree or may refuse to issue a permit for
a tree management plan, sought under clause 7.1 (d), where any one or more of
the following applies:
(i)
the Permit Application form has not
been submitted in full, is considered incomplete by the Officer, or the Officer
requires a report by a Qualified Tree Expert in support of the Permit
Application and the report has not been provided;
(ii)
an application for rezoning, a
consent, a minor variance, a plan of subdivision or a site plan related to the
land on which the tree is located has been submitted to the Town or Region but
has not received approval;
(iii)
the tree is an endangered species as
defined in the Endangered Species Act, R.S.O.
1990, c.E.15, as amended, or the tree is a nationally rare species as defined
in the Species at Risk Act, 2002,
S.O. 2002, c. 24, or successor legislation;
(iv)
the tree is healthy species;
(v)
no adequate provisions for
replacement of the tree have been included in the Permit Application where the
lot size and conditions would accommodate such replacement;
(vi)
the tree management plan does not
apply to lands with the contemplated appropriate uses, such as cemetery lands
or golf course lands, the plan does not contain all the required information or
the plan does not represent Good Arboricultural Practice; or
(vii)
the injury or
destruction of the tree or the tree management plan contravenes the general
intent and purpose of this By-law.
(e)
Any Permit issued pursuant to this
By-law shall be issued in the name of the owner and shall expire ninety (90)
calendar days after the date of issuance, unless a written request for an
extension is received by the Clerk on or before the Permit expiration date and
is approved by the Administrator.
(f)
The Administrator may impose
conditions on a Permit to injure or destroy a tree, including but not limited
to the following conditions:
(i)
the manner and timing in which the
injuring or destruction of the tree is to be carried out;
(ii)
the qualifications of the persons
authorized to injure or destroy the tree;
(iii)
replacement trees or plantings,
including the species, size, number, location and timing of replacement trees
or plantings;
(iv)
where replacement trees or plantings
are not physically possible on the site, requiring replacement trees or
plantings at another suitable location;
(v)
measures to be implemented by the
owner to mitigate the direct and indirect effects of the removal of the tree on
other nearby trees, properties, waterbodies or natural areas.
(g)
Any request for a Permit extension
which is received by the Clerk after the permit expiration date will require
the submission of a new Permit Application.
SECTION
8.0: ORDERS TO DISCONTINUE
ACTIVITIES
8.1 Where the Administrator or an officer is
satisfied a contravention of this by-law or a permit issued under this by-law has
occurred, the Administrator or officer may make an Order setting out the
particulars of the contravention and requiring the owner or any other person to
stop the injuring, destruction or removal of a tree or requiring work to be
done to correct the contravention.
8.2 The Order shall set out:
(a) the name of the owner, the municipal
address and the legal description of the land or property that is the subject
of the contravention;
(b) reasonable particulars of the
contravention;
(c) what the owner or any other person must
do to rectify the contravention;
(d) a statement that if the work is not done
in compliance with the Order within a specified time period, the Town may have
the work done at the expense of the owner or other person;
(e) the date and time by which the Order must
be compliance with;
(f) information
regarding the Town’s contact person.
8.3 An Order issued under section 8.1 may be
served personally or by sending it by prepaid registered mail
to the last known address of the owner and, if known, to the last known address
of any other person responsible for the injury, destruction or removal of a
tree.
8.4 Where service of an Order under section
8.1 is made by mail, it shall be deemed to have been effected on the fifth day
after the date the Order is mailed.
8.5 In the event that
service cannot be carried out under subsection 8.3 of this by-law, the
Administrator shall place a placard containing the terms of the Order in a
conspicuous place on the property where the tree or trees are situate and
placement of the placard will be deemed sufficient service of the Order on the
owner and any other person to whom the Order is directed.
8.6 Wherever
this by-law or a permit issued under this by-law directs or requires any matter
or thing to be done by any person, applicant or owner, in default of its being
done its by the person directed or required to do it, the matter or thing may
be done by the Town under the direction of the Administrator at the owner’s
expense, the Town may enter upon the land at any reasonable time for this
purpose and the Town may recover the costs incurred by action or by adding the
costs to the tax roll and collecting them in the same manner as taxes.
SECTION 9.0: APPEALS
9.1 Where the Administrator refuses to issue a permit an applicant
may within fifteen (15) days of the date of refusal of the permit appeal to the
Licensing Committee of Council by submitting a written request to the
Administrator that the appeal of the permit application be heard by Licensing
Committee.
9.2 Where an applicant
has filed an appeal:
(a) the Administrator shall prepare and
forward a report on the appeal of the refusal of the permit to the next
Licensing Committee meeting, setting out the grounds for refusal of the permit;
(b) prior to reporting
to the Licensing Committee, the Administrator shall notify the Ward Councillor,
any abutting property owners and any other persons who have expressed interest
by written request in the application of the date the appeal of the refusal of
the permit will be considered by the Licensing Committee;
(c) after holding a
hearing on the appeal of the refusal of the permit, the Licensing Committee
shall make a recommendation to Council;
(d) Upon consideration
of the recommendation of the Licensing Committee, Council may:
(i) direct the Administrator to refuse the permit; or
(ii) direct the
Administrator to issue a permit on such conditions as the Council considers
appropriate.
SECTION
10.0: PENALTIES
10.1
Any person who contravenes any
provision of this by-law or an Order issued pursuant to Section 8 of this
By-law is guilty of an offence.
10.2
All contraventions of any provision
of this by-law or an Order issued under Section 8 of this by-law are designated
as multiple offences and continuing offences, pursuant to subsection 429(2) of
the Act. A multiple offence is an offence in respect of two or more acts
or omissions each of which separately constitutes an offence and is a
contravention of the same provision of a by-law and, for greater certainty,
when multiple trees are injured or destroyed the injury or destruction of each
tree is a separate offence.
10.3
Upon conviction of an offence under
this by-law, a person is liable to a fine in accordance with section 429 of the
Act as follows:
(a) The
minimum fine for an offence is $500.00 and the maximum fine for an offence is $100,000.00;
(b) In
the case of a continuing offence, for each day or part of a day that the
offence continues, the minimum fine shall be $500.00 and the maximum fine shall
be $10,000.00, and the total of all daily fines for the offence is not limited
to $100,000.00;
(c) In
the case of a multiple offence, for each offence included in the multiple
offence, the minimum fine shall be $500.00 and the maximum fine shall be
$10,000.00, and the total of all fines for each included offence is not limited
to $100,000.00;
(d) A
special fine may be imposed, in addition to a fine under clause (a) to (c)
above, in circumstances where there is an economic advantage or gain from the
contravention of this by-law or an order under section 8.1 of this by-law, and
the maximum amount of the special fine may exceed $100,000.
10.4 Upon conviction of an offence under this by-law, in addition to any
other remedy or penalty, the Town may further request the court in which the
conviction is entered and any court of competent jurisdiction thereafter to
make an order:
(a) prohibiting the continuation or
repetition of the offence by the person convicted; and
(b) requiring the person convicted to
correct the contravention in the manner and within the period the court may
consider appropriate, which may include a request for an order for:
(i) the
planting or replanting of any tree or trees injured, removed or destroyed in a
specified location and within a specified period of time; and
(ii) the application of any silvicultural treatment that may be
necessary to re-establish the tree or trees.
SECTION 11.0:
SEVERABILITY
11.1 If a court or
tribunal of competent jurisdiction declares any provision, provisions or part
of a provision of this by-law to be illegal or unenforceable for any reason,
such provision, provisions or part of a provision shall be severed and all
other provisions of this by-law shall be deemed to be separate and independent
therefrom and shall be valid and enforceable to the fullest extent permitted by
law.
SECTION 12.0: IN
FORCE
12.1 This By-law
shall come into force and take effect on the 1st day of September,
2008.
READ A FIRST,
SECOND, AND THIRD TIME AND PASSED THIS
DAY OF ,
2008.
SHEILA
BIRRELL, TOWN CLERK FRANK
SCARPITTI, MAYOR