2018-714 ORDINANCE NO. 2018 – 714
An ordinance amending, revising, and updating Janesville's diseased,
infected, and unsafe tree ordinance.
THE COMMON COUNCIL OF THE CITY OF JANESVILLE DO ORDAIN AS
FOLLOWS:
Section I: Chapter 8.20 of the Code of General Ordinances of the City of
Janesville is hereby amended, revised, and updated to read as follows:
CHAPTER 8.20
DUTCH ELM, EMERALD ASH BORER, AND OTHER DISEASED, INFESTED,
INFECTED, DAMAGED, AND/OR UNSAFE TREES
Sections:
8.20.001 Findings—Public policy--Proactive plan.
8.20.010 Declared a public nuisance.
8.20.020 Nuisance--Prohibited.
8.20.030 Entering upon private property–Testing–Removal of tree
samples.
8.20.040 Remediation, removal, and abatement.
8.20.050 Reporting discovery of shade tree pest.
8.20.060 Board of park commissioners' duties--Exercised by
council.
8.20.070 City Forester to inspect when.
8.20.080 Nuisance--Abatement.
8.20.090 Nuisance--Appeal Hearing--Council decision.
8.20.100 Laboratory analysis when.
8.20.110 Dormancy procedure--City Forester's report to
Council--Council action. [Repealed 10/22/2012]
8.20.120 Removal as funds are available.
8.20.130 Spraying--Generally.
8.20.140 Spraying--Within a one-thousand-foot radius.
8.20.150 Nuisance--Abatement and spraying costs—Stump
removal procedure and service charge.
8.20.160 Interference with City Forester prohibited.
8.20.170 Severability.
8.20.180 Violation—Penalty(ies)--Relief.
8.20.001 Findings—Public policy--Proactive plan.
A. Diseased, infected, infested, damaged, and unsafe trees within the
City of Janesville ("City") are a public concern.
B. The health of the trees in the City is threatened by shade tree
pests, and the loss or ill health of trees growing upon public and private property
substantially depreciates the value of property within the city and impairs the
safety, good order, general welfare and convenience of the public.
C. The provisions set forth in this Chapter are adopted as an effort to
control and prevent the spread of these shade tree pests.
D. Proactive actions are an inherent opportunity and privilege of local
government to act before crises overwhelms. It is hereby determined by the
Common Council of the City to be in the best interests and benefit of the City, its
taxpayers, residents, public, and public and private property to take immediate,
proactive steps concerning any and all elm, ash, and other diseased, infected,
infested, or damaged trees of whatever kind or nature so as to minimize the
harmful, damaging, and negative direct and indirect effects caused by such trees,
conditions, events, and foreseeable probable and ultimately actual eventualities.
E. The City contains an estimated thirty thousand (30,000) ash trees,
with about half located upon public property. The City contains numerous other
arc ash trees subject to infestation by the Asian emerald ash borer(EAB).
Wisconsin forests contain more than seven hundred seventy (770) million ash
July 2012.
H. The potential devastation wrought by emerald ash borer upon
Wisconsin's urban and community forests could exceed that of any other forest
pest in the recent past. Ash trees arc common in both rural and urban argas
throughout the state, but EAB will strike cities and villages especially hard.
.. - . - - e - 22- - -- -• ° -- - •- _'
In some Wisconsin communities the proportion of ash is much higher. Ash,
especially green ash, is very common in urban areas because it was a popular
replacement for the American elm.
on public and private property within cities and villages. The loss of these urban
ash trees would cost property owners and taxpayers:
... $1.5 billion for tree replacement
... $776 million for tree removal and disposal
... $13 million per y or in lost tree canopy function to reduce
._ _ •_ -, _ • - _ _ . ooling costs, & absorb storm
J. The EAB is an exotic beetle discovered in southeastern Michigan in
-- . .._ e .. . - - - - - - ' -
damage. The larvae (the immature stage)feed on the inner bark of ash trees,
disrupting the tree's ability to transport water and nutrients. Emerald ash borer
- -- • - - -• - - - •e• - - • • - • • A -- e•-- e •_ .A • - -
moves only short distances by flying, but can survive long distances in transit on
ash nursery stock, ash logs, branches and firewood.
K. The EAB beetle killed tens of millions of ash trees in southeastern
Michigan alone, with tens of millions more lost in Ohio, Illinois, Indiana,
_. . 1 . 1 I' a 1 . • .
L. EAB is nota "business as usual" tree pest. It kills quickly and
thoroughly. It has completely overwhelmed the staff& budget resources of most
M. The loos of ash trees in the City will have a devastating effect on
home values, quality of life, and the environment.
N. The goal of this revised Chapter and other attendant ordinances is
O. The Common Council of the City Janesville legitimately seek to
avoid and/or minimize such negative effects to the greatest extent possible.
P. The City, therefore, shall take an immediate, short term and long
range, proactive approach to spr ad the physical and fiscal costs and harms
(10) year timeframe.
8.20.010 Declared a public nuisance.
A. The Common Council, having previously determined that the health
of elm trees and now that of ash trees, and potentially other trees within the City
have been, is, are, and potentially may be threatened by, and/or suffer one or
more serious fatal diseases, infections, infestations, damage, and/or conditions,
declare that diseased, infected, and/or unsafe elm, ash, and other trees, and
parts thereof, constitute a serious and imminent public health, welfare, and safety
hazard, and that such diseased, infested, damaged, unsafe, and/or dangerous
trees, and parts thereof, are public nuisances. Included in, but not limited to, such
determinations, scope, and applicability of this Chapter are:
1. Any living or standing elm tree or part thereof infected with
the Dutch elm disease fungus or which harbors any of the elm bark beetles
Scolytus multistriatus (Eichh.) or Hylurgopinus rufipes (Marsh);
2. Any living or standing ash tree or part thereof Fraxinus, a
genus of flowering plants in the olive and lilac family, Oleaceae, containing
approximately 45-65 species of usually medium to large trees, mostly deciduous
though a few subtropical species are evergreen.infected with or which harbors
the emerald ash borer;
3. Any dead, infected, or diseased elm, ash, or other tree or
part thereof, including logs, branches, stumps, firewood, or other material from
which the bark and/or other tree parts have not been removed and burned, or
sprayed with an effective elm bark beetle or emerald ash borer, or other insect,
as applicable, destroying insecticide.
B. Jurisdiction. The City shall have control of all street trees, shrubs,
and other plantings now or hereafter in any street, park, public right-of-way or
easement, or other public or private place within the City limits, and shall have
the power to plant, care for, maintain, remove, and replace such trees, shrubs,
and other plantings. The City shall have control to remove such trees, shrubs,
and other plantings on any private place within the City limits.
C. Declaration of a shade tree pest. The Common Council by this
Chapter declare any and all vertebrates or invertebrate animals, plant pathogens,
or plant in the community threatening to cause significant damage to a shade
tree or community forest to be a pest and prescribe control measures to
effectively eradicate, control, and/or manage the shade tree pests, including, but
not limited to, necessary timelines and responsibilities for private property owners
and public powers necessary and convenient for the public good order, health,
welfare, peace, and safety. All of these powers and reasons are incorporated
herein as if fully set verbatim.
8.20.020 Nuisance--Prohibited.
A. No person, firm or corporation shall permit any public nuisance, as
defined in Section 8.20.010 and/or otherwise in this Chapter, to remain on any
premises owned, leased, rented, otherwise possessed, or controlled by such
person within the City. The public nuisance may be remediated, removed, and/or
abated as provided in this Chapter.
B. It shall be unlawful for any owner of any lot or parcel of land in the
city to possess, permit, or maintain on any such lot or parcel of land any ash,
elm, or other species of tree, or parts thereof, which is a public nuisance.
C. It shall be the duty of every real property owner to promptly remove
and properly dispose of any such trees, and parts thereof, constituting a public
nuisance and/or as otherwise prohibited by any provision of this Chapter, and/or
as determined or directed by the City Forester.
D. Every property owner at all times shall fully and timely comply with
all other related county, state, and federal tree laws and regulations.
E. Remediation, removal, and abatement by a private property owner
8.20.030 Entering upon private property—Testing—Removal of tree
samples.
In order to carry out the public health, welfare, and safety purposes, goals,
and plans, of this Chapter and to implement the enforcement thereof, the City
Forester, and/or any person acting in behalf of the City Forester, is hereby
authorized and empowered to enter upon any public or private lot or parcel of
land in the City at all reasonable hours for the purpose of inspecting any ash,
elm, and other trees and/or parts thereof, situated thereon, for purposes of tree
inspection, testing, sampling, sample removal, remediation, removal, abatement,
and all other activities permitted by this Chapter. No additional consent from the
property owner and/or possession is necessary. No person may hinder, obstruct,
or prevent the City Forester or any person acting on behalf of the City Forester
from entering upon, reasonably remaining, testing, sampling, or engaging in
other permitted activities set forth in this Chapter.
8.20.040 Remediation, removal, and abatement.
A. In abating the public nuisance under this Chapter, the organism,
condition, plant, tree, wood, or material identified as injurious to the health of
shade trees shall be removed or effectively treated so as to destroy and prevent
as fully as possible the spread of the shade tree pest.
8.20.050 Reporting discovery of shade tree pest.
Any owner, tenant, lessee, possessor, or occupier of land or property, or
any person engaged in tree trimming or removal, who knows or becomes aware
of the existence of a public nuisance caused by a shade tree pest, infection,
disease, or damage shall report the same to the City Forester. within five (5)
business days of discovery.
8.20.060 Board of park commissioners' duties--Exercised by
council.
Any and all duties and powers provided by law to any commission, board,
committee, officer, or official by Wisconsin law are hereby vested in and may be
exercised by the Common Council of the City.
8.20.070 City Forester -- to inspect when.
A. The City may retain the services of one or more persons and/or
other entities to act in the capacity of the City Forester.
B. The City Forester, and person(s) acting on behalf of the City
Forester, shall inspect or cause to be inspected all outdoor public and private
premises and places within the City at least twice each year commencing
forthwith to determine whether any public nuisance, as defined in Section
8.20.010 and/or otherwise in this Chapter, exists thereon, and shall also inspect
or cause to be inspected any elm, ash, and/or other tree reported or suspected to
be infected with the Dutch elm disease, emerald ash borer, or other disease or
insect, or which is suspected to be dangerous, unsafe, a hazard, or a public
nuisance. Such inspection shall include bark bearing material(s), branches, logs,
and other tree parts.
C. The City Forester, and all person(s) acting on behalf of the City
Forester, shall document each inspection by location, tree, date, time, place,
inspector, all findings and determinations, and all removal and other abatement
actions taken, ordered, or directed.
D. The City Forester and all person(s) acting on behalf of the City
Forester is/are authorized to enforce or cause to be enforced the provisions of
this Chapter, the tasks incident to this Chapter, and incident such any program(s)
adopted by the Council.
8.20.080 Nuisance--Abatement.
A. If the City Forester determines with ordinary certainty that any
public nuisance, as defined in Section 8.20.010 exists in or upon any (A) public
street, alley, park, or other public place, including the terrace strip between curb
and lot line within the City, and/or (B) upon any private property or premises, and
that the removal shall be in the public interest, the City Forester and/or others
acting on behalf of the City Forester shall cause it to be removed in an
expeditious manner, burned, or otherwise properly disposed, and/or otherwise
fully abate public nuisance in such manner as the City Forester determines to be
in the public interest of health, welfare, and safety.
B. The cost of such removal and other abatement activities shall be
paid by the property owner, regardless of tenancy or possession, and shall be a
lien upon such real property until paid and/or disposed as otherwise provided by
law, no further action of the Common Council being necessary in this regard. The
owner of the property upon which a nuisance has been remediated, removed, or
abated by the City Forester shall be personally liable to the City for the cost and
expense to the City of the abatement, including, but not limited to, contracted
services and administrative costs. As soon as the work has been completed and
the cost determined, the City Treasurer shall prepare an invoice for the costs as
they arise and mail it to the owner. Thereupon, the amount shall be immediately
due and payable at the office of the City Clerk-Treasurer. The City Treasurer
shall invoice the property owner prior to placing any unpaid amounts upon the tax
rolls for collection or recovery as a special charge for municipal public services.
C. The City Forester, and others acting on his/her behalf, may, but is
not required to, provide notice(s), directive(s), and/or order(s) to the affected
property owner(s), possessor(s), or other person(s) prior to taking or ordering
removal, abatement, remediation, and/or other actions permitted under this
Chapter.
D. The City Forester may permit the property owner to attempt
remediation, removal, and/or abatement action(s) separate from those
determined, required, and/or ordered by the City Forester or others acting on
her/his behalf, upon such terms, conditions, requirements, standards, time
frame(s), directives, conditions, inspections, costs, fees, and permits as the City
Forester and/or others acting on behalf of the City Forester may from time to time
determine, require, or order. If the agreed upon private remediation, abatement,
removal, or other control measures, conditions, or requirements are not timely,
fully, or otherwise satisfied with by the property owner, the City Forester or
designated person(s) shall have the authority to enter the property and carry out
abatement in accordance with the requirements of the City Forester.
E. Each property owner shall timely and fully comply with any and all
directive(s), requirement(s), and /or orders of the City Forester and others acting
on behalf of the City Forester. Failure, neglect, and/or refusal by any owner to do
so shall constitute a separate violation of this Chapter. Each day's failure,
neglect, and/or refusal to comply shall constitute a separate violation of this
Chapter.
F. All remediation, removal, and abatement activities by a property
owner and/or possessor shall be the sole cost and expense of the property
owner and/or possessor.
G. The City shall not be responsible for, nor shall the City award or
pay to any person, any monies or other reimbursement for the destruction,
diminution, or loss value of the tree(s), wood, or parts thereof removed,
remediated, damaged, or abated, or any other incidental costs or amounts, such
as decline in the fair market value of the property as a result of the City's
directives, requirements, determinations, or orders.
8.20.090 Nuisance---Appeal Hearing--Council Decision.
Notwithstanding any other ordinance or statute to the contrary, only an
affected property owner upon whose real property the affected tree is rooted may
appeal any decision, determination, direction, requirement, and/or order
("Action") of the City Forester or other persons acting on behalf of the City
Forester may appeal such Action, and then only to the Common Council. Such
appeal must be filed within ten (10) days of the Action, shall be in writing, signed
by the property owner, and shall state with particularity the details of the
situation, the relief sought, and the reasons for the relief sought. The City Clerk
shall schedule a hearing on such appeal before the Common Council. A majority
vote of all elected members of the Council shall govern. Tie votes shall constitute
affirmation of the City Forester's Action(s).
8.20.100 Laboratory analysis when.
The City Forester at any time and in her/his sole determination and
discretion City Forester may subject specimens of any tree wood, or part thereof
to competent laboratory analysis.
8.20.110 [Reserved] [Dormancy subsection repealed 10/22/2012]
8.20.120 Removal as funds are available.
Notwithstanding any other provision of this Chapter, removal, remediation,
and/or abatement by the City and/or City Forester and others acting on behalf of
the City Forester and/or City of such nuisance trees, wood, or parts thereof need
only be done as far as practically possible within the limits of funds actually
appropriated and/or borrowed for such purpose(s) by the Common Council of the
City, and actually available.
8.20.130 Spraying--Generally.
The City may chemically treat elm, ash, and other nuisance trees within
the City with one or more elm, ash, and other concentrate(s) and/or substances,
which tree(s) are located upon the terrace strip between the curb and lot line,
upon public property, and upon private property, as well.
8.20.1450 Stump removal procedure and service charge—No
Removal of diseased or infected tree or parts.
A. The property owner shall remove or cause to be removed the tree
stump, the cost of which shall be paid by the property owner.
B. The property owner shall not be required to remove such stump
after the bark has been removed and the stump treated, or the property owner
may remove the stump after the bark has been removed and the stump treated
without reference to the City. The property owner shall, at her/his own sole cost
and expense, remove, haul away, and dispose of the removed tree stump, and
parts thereof. If the owner and/or property possessor fails, neglects, and/or
refuses to timely do so, the City may do so or cause that such work be performed
by others, and invoice the property owner for same, recovering non-payment as
a lien and special charge against the affected real property in the manner(s)
provided by law for recovery by placement upon the property tax roll.
8.20.1560 Interference with City Forester and others acting on
behalf of the City Forester prohibited.
No person, firm, or corporation shall prevent, delay, obstruct, prevent, or
interfere with the City Forester or any of his or her agents, employees, or others
acting on behalf of the City Forester while they are engaged in the performance
of duties imposed by this Chapter.
8.20.1670 Severability.
Should any part or provision of this Chapter be declared by a court of
competent jurisdiction to be invalid, the same shall not affect the validity of the
Chapter as a whole or any part thereof other than the part held to be invalid.
8.20.1780 Violation—Penalty(ies)--Relief.
A. Any person, firm, or corporation who violates any of the provisions
of this Chapter shall, upon conviction thereof, forfeit and pay to the City not less
than one hundred dollars nor more than ten thousand dollars, together with the
costs of prosecution.
B. Each day's continuance, default, failure, neglect, or refusal by a
property owner to fully and timely comply with any provision of this Chapter
and/or any directive, requirement, determination, or order of the City Forester or
anyone acting on behalf of the City Forester constitutes a separate violation.
C. In default of payment of such forfeiture and costs of prosecution,
the violator shall be subject to the remedies provided by law.
D. Any other provisions, payments, invoicing, liens, and costs recovery
set forth in this Chapter are in addition to and not in lieu of enforcement and/or
this subsection, and vice versa.
E. All remedies and relief in this Chapter and at all are cumulative and
not exclusive.
F. The failure or neglect of any officer or employee of the City to
perform any official duty imposed by this Chapter shall not subject the officer or
employee to the penalty imposed for a violation.
G. In addition to any penalties provided for in this section, if any
person, firm, or corporation fails, neglects, or refuses to comply with any
provision set forth in this Chapter or order of the City Forester or any person
acting on behalf of the City Forester, the City Attorney, City Manager, or
Common Council may institute appropriate proceedings at law and/or at equity to
restrain, correct, or abate the violation.
ADOPTED: March 26, 2018 Motion by: Conley
_Second by: Williams
APPROVED: Councilmember Aye Nay Pass Absent
/ Conley X
/kms. !ll����LL Farrell X
Mark A. F eitag, City Manager Gruber X
Jorgensen X
:
ATT ' e , Marklein X
- Williams X
Al/fir // Wolfe X
David T. Godek, City Clerk-Treasurer
APPROVED AS TO FORM:
/2-Wellnitz, City Att. -y
Proposed by: Parks Director
Prepared by: Parks Division
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