ALP

*Cross references—Health and sanitation, ch. 19; nuisances and offensive conditions, § 19-49 et seq.; parks and recreation, ch. 27; streets and sidewalks, ch. 38.

ARTICLE I. IN GENERAL

Sec. 42-1. Definitions.

The following words, terms, and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Parking strip means the area along the public streets and avenues between the curbline and the sidewalk line.

Street means any type of motor vehicle transportation system including but not limited to: street, avenue, road, drive, circle, court, lane, trail, place, or alley.

Street tree or tree means a tree in any parking strip, boulevard, or other public place, except where otherwise indicated.

Topping is the indiscriminate cutting of tree branches to stubs or lateral branches that are not large enough to assume the terminal role.

(1957 Rev. Ords., § 11.901; Ord. No. 11-77, § 2, 2-14-77; Ord. No. 94-08, § 1, 7-21-08)

Secs. 42-2—42-16. Reserved.

ARTICLE II. VEGETATION NUISANCE*

Sec. 42-17. Nuisance declared.

All actively growing plants declared to be state- wide noxious weeds by the state weed and pest control commission, all actively growing weeds declared by the county to be locally noxious, and all other non-woody plants growing in the city to a greater height than eight inches, are noxious, dangerous and unhealthful, and are hereby declared to be a nuisance. This does not apply to vegetation which is being grown as a crop, livestock pasture, wildflower display garden or has been designated by the director as a natural area or native planting.

Dead or diseased trees identified by the director shall also be declared dangerous and a nuisance.

(1957 Rev. Ords., § 11.1101; Ord. No. 106-82, 10-4-82; Ord. No. 72-03, § 1, 8-11-03; Ord. No. 94-08, § 2, 7-21-08)

Sec. 42-18. Duty to correct.

The occupant, person in charge, or owner of any lot or parcel of land in the city shall keep such lot, to include any abutting city right-of-way, commonly known as the "parking strip," free of such vegetation nuisance by cutting, spraying, or removal, as may be appropriate.

(1957 Rev. Ords., § 11.1102; Ord. No. 106-82, 10-4-82; Ord. No. 94-08, § 3, 7-21-08)

Sec. 42-19. Notice to correct.

(a) The director is responsible for requiring compliance with this article on all property, and has the authority to require compliance. The director shall cause public notice to be given requiring all lots or parcels of land in the city to be kept free from all vegetation declared by section 42-17 to be a nuisance.

(b) The notice shall provide that all vegetation determined to be a nuisance and left uncorrected shall be cut, sprayed or removed by the city, and the cost thereof shall be billed to the property owner. If the bill is left unpaid the cost will be assessed against that property, to include the cost of levying such special assessment.

*State law references—Authority to require removal of weeds, SDCL 9-30-5; weed control generally, SDCL ch. 38-22.

(c) The notice shall be by general public notice, published in the official newspaper once a week for two consecutive weeks, and shall be deemed sufficient to allow those actions authorized by sections 42-20 and 42-21.

(d) The occupant, person in charge, or owner of any lot or parcel of land shall cut, spray or remove any vegetation which constitutes a nuisance as declared by section 42-17.

(1957 Rev. Ords., § 11.1103; Ord. No. 106-82, 10-4-82; Ord. No. 94-08, § 4, 7-21-08)

Sec. 42-20. Correction by city.

(a) If the occupant, person in charge, or owner of any lot or parcel of land fails to correct any such vegetation nuisance as required, the director shall cause such vegetation to be cut, sprayed or removed, and for such purpose the person to do the work shall be allowed to enter upon any lot or parcel of land.

(b) No person shall intentionally interfere or attempt to interfere with the cutting, spraying or removal of such vegetation.

(1957 Rev. Ords., § 11.1104; Ord. No. 106-82, 10-4-82; Ord. No. 94-08, § 5, 7-21-08)

Sec. 42-21. Special assessment.

(a) The director shall cause an account to be kept, against each lot or parcel, of the cost to the city for the correction and control of vegetation nuisance during the growing season of each year, and the cost shall be certified to the city finance director on or before September 1 of each year.

(b) The finance director shall prepare an estimate of the assessment against each lot or parcel, for the correction and control of vegetation nuisance for the preceding growing season, including therein the expense of levying such special assessment against each lot or parcel. Such estimates shall be submitted to the city council.

(c) Upon the filing of the assessment roll with the finance director, the city council shall fix a time and place of hearing upon the assessment, not less than 20 days from the date of filing thereof. The finance director shall thereupon publish a notice of the time and place of hearing in the official newspaper, one week prior to the date set for the hearing. The notice shall in general terms describe the improvement for which the special assessment is levied, the date of filing of the assessment roll, the time and place of the hearing thereon, and that the roll will be open for public inspection at the office of the city finance director, and shall refer to the special assessment roll for further particulars.

(d) In addition to the publication of the notice of hearing, the finance director shall mail a copy of the notice, by first class mail, addressed to the owner of any property to be assessed for the improvements, at the address as shown by the records of the finance director. The mailings shall be at least one week prior to the date set for the hearing.

(e) The owner of any lot or parcel of land against which a special assessment is to be so levied, or its occupant or person in charge, may appear before the council at such meeting to protest such assessment and to give reasons why such assessment should not be levied.

(f) Upon the day so named, the council shall meet, and if they find the estimate correct and the actions of the director resulting in the estimate to be in accordance with the provisions of this article, they shall approve the assessment by resolution and file such assessment roll with the finance director; or, if not correct, they shall correct or modify the estimate, and approve the assessment as corrected or modified, and file such assessment roll with the finance director; or, if not in accordance with the provisions of this article, shall disapprove such assessment.

(g) From the date of the approval and filing of such assessment roll with the finance director, the assessment shall be and become a special lien against the various pieces of property described in the assessment roll and shall be collected in a like manner as special assessments for public improvements.

(1957 Rev. Ords., § 11.1105; Ord. No. 106-82, 10-4-82; Ord. No. 94-08, § 6, 7-21-08)

Sec. 42-22. Vegetation nuisance removal fund.

The city council may provide in the annual appropriation ordinance for a fund, to be expended under the direction of the director for the correction and control of vegetation nuisances, as provided for in this article. All monies collected for expense of correction and control of vegetation nuisance pursuant to the provisions of this article shall be credited to such fund.

(1957 Rev. Ords., § 11.1106; Ord. No. 106-82, 10-4-82; Ord. No. 94-08, § 7, 7-21-08)

Secs. 42-23—42-32. Reserved.

ARTICLE III. VEGETATION IN PUBLIC PLACES

Sec. 42-33. General supervision.

The director shall have exclusive jurisdiction and supervision over all trees, other plants, and grassy areas planted or growing in public places.

(1957 Rev. Ords., § 11.902; Ord. No. 11-77, § 3, 2-14-77; Ord. No. 94-08, § 8, 7-21-08)

Sec. 42-34. Director's authority generally.

The director shall have authority to regulate and control the planting, trimming, spraying, preservation, and removal of trees, other plants, and grassy areas in public places to ensure safety or preserve the symmetry and beauty of such public places.

(1957 Rev. Ords., § 11.902; Ord. No. 11-77, § 4, 2-14-77; Ord. No. 94-08, § 9, 7-21-08)

Sec. 42-35. Control on private property.

The director shall have the authority to regulate and control vegetation upon private property only when such action is demonstrably necessary for public safety or to prevent the spread of disease or insects to public trees and places.

(1957 Rev. Ords., § 11.902; Ord. No. 11-77, § 5, 2-14-77; Ord. No. 94-08, § 10, 7-21-08)

Sec. 42-36. Supervision of work.

The director shall regulate, control, and supervise all work done under a permit issued in accordance with the terms of this article.

(1957 Rev. Ords., § 11.902; Ord. No. 11-77, § 6, 2-14-77; Ord. No. 94-08, § 11, 7-21-08)

Sec. 42-37. Rules and regulations; permit fees.

The director shall adopt and enforce rules and regulations to carry out the purposes of this article. Such rules and regulations shall set forth the amount to be charged for the various permits required under this article.

(1957 Rev. Ords., § 11.902; Ord. No. 11-77, § 7, 2-14-77; Ord. No. 94-08, § 12, 7-21-08)

Sec. 42-38. Disposition of fees.

All fees collected under the provisions of this article shall be turned over to the finance department.

(1957 Rev. Ords., § 11.903; Ord. No. 11-77, § 8, 2-14-77; Ord. No. 94-08, § 13, 7-21-08)

Sec. 42-39. Permit to remove—Required.

No person shall remove trees in public places without first procuring a permit from the director.

(1957 Rev. Ords., § 11.903; Ord. No. 11-77, § 9, 2-14-77; Ord. No. 94-08, § 14, 7-21-08)

Sec. 42-40. Same—Application data.

The permit to remove a tree in public places in the city shall state the number and species of trees to be removed; and such other information as the director shall find reasonably necessary to a fair determination of whether a permit should be issued under this article.

(1957 Rev. Ords., § 11.903; Ord. No. 11-77, § 10, 2-14-77; Ord. No. 94-08, § 15, 7-21-08)

Secs. 42-41—42-46. Reserved.

Sec. 42-47. Street trees permitted.

(b) The director may approve species other than from the approved list when the planting of such species is of equal or greater benefit to the city.

(1957 Rev. Ords., § 11.903; Ord. No. 11-77, § 15, 2-14-77; Ord. No. 94-08, § 18, 7-21-08)

Sec. 42-48. Planting in public right-of-ways.

The director shall establish rules and regulations for the planting of trees on any public right-of-way.

Sec. 42-49. Injury to trees by moving; trimming.

No person, whether licensed or not, shall move any building or other structure in such a manner as to interfere with or injure any tree in any public area, except as provided in this section. If in moving any building or structure it is necessary to trim or move any tree, all such work shall be done under the supervision and control of the director and at the expense of the person moving such building or structure. Should injury or death result to any tree because of such trimming or moving, the person moving such building or structure shall, upon direction of the director replace the tree at the expense of the person moving such building or structure.

An arborist licensed by the city is required for any tree trimming that may be necessary to move a building or structure in any public area. In addition, any tree trimming above the established height of branches above a street as established in section 42-50 shall require written permission from the abutting property owner of said tree(s). Such permission will be attached to the building moving application. If permission from the abutting property owner is denied, the moving route will not be approved by the city.

(1957 Rev. Ords., § 11.906; Ord. No. 11-77, § 1, 2-14-77; Ord. No. 94-08, § 20, 7-21-08)

Sec. 42-50. Duties of private owners.

Any person growing a tree within the parking strip or other public place or responsible for trees growing on property abutting on public places supporting trees or plants shall:

(1) Trim tree so as not to cause a hazard to public places or interfere with the proper lighting of public streets by the streetlights or interfere with the visibility of any traffic sign. All trees shall be trimmed to allow free passage of pedestrians and vehicular traffic and in such manner so as to allow 10 feet clearance over sidewalks and 12 feet clearance over all streets; provided, however, that trees along arterial or collector streets shall be trimmed to allow a clearance of 16 feet.

(2) Treat or remove any tree or plant so diseased or insect ridden as to constitute a hazard to public safety or other trees or plants in public places.

(1957 Rev. Ords., § 11.904; Ord. No. 46-00, § 1, 5-15-00; Ord. No. 94-08, § 21, 7-21-08)

Sec. 42-51. Order to remove—Procedure.

When the director determines that the trimming or removal of trees or plants upon private property or in parking strips or other public areas is necessary to preserve public health and safety, protect the health of the urban forest or plantings not in accordance with section 42-47, the director may serve a written order to correct the dangerous condition upon the owner, operator, occupant or other person responsible for its existence.

(1957 Rev. Ords., § 11.905; Ord. No. 11-77, § 17, 2-14-77; Ord. No. 94-08, § 22, 7-21-08)

Sec. 42-52. Same—Time for compliance.

The order to remove trees or plants shall set forth a time limit for compliance, dependent upon the hazard and danger created by the violation. In cases of extreme danger to persons or public property, the director may require compliance immediately upon service of the order.

(1957 Rev. Ords., § 11.905; Ord. No. 11-77, § 18, 2-14-77; Ord. No. 94-08, §23, 7-21-08)

Sec. 42-53. Same—Appeal of order.

A person to whom an order to remove trees or plants is directed may, within three days of the service of such order, appeal to the board who shall set a day for hearing thereon and give notice thereof to the person appealing. Upon such hearing and review the board may affirm, modify or revoke the order of the director. Unless the order is revoked or modified it shall remain in full force and be obeyed by the person to whom directed. No person to whom an order is directed shall fail to comply with such order within five days after an appeal shall have been determined.

(1957 Rev. Ords., § 11.905; Ord. No. 11-77, § 19, 2-14-77; Ord. No. 94-08, § 24, 7-21-08)

Sec. 42-54. Same—Failure to comply.

When a person to whom an order to remove trees or plants is directed fails to comply within the specified time, the director shall remedy the condition or contract with others for such purpose and charge the cost thereof to the person to whom the order is directed. The person remedying a condition under a contract made under this section may enter the premises for that purpose.

(1957 Rev. Ords., § 11.905; Ord. No. 11-77, § 20, 2-14-77; Ord. No. 94-08, § 25, 7-21-08)

Sec. 42-55. Same—Special assessment.

If the cost of remedying a condition for which an order to remove trees or plants was issued is not paid within 30 days after receipt of a statement therefor from the director, such cost may be levied against the property benefited or upon which the condition existed as a special assessment. The levying of such special assessment shall not affect the liability of the person to whom the order is directed to fine and imprisonment for the violation of this article.

(1957 Rev. Ords., § 11.905; Ord. No. 11-77, § 21, 2-14-77; Ord. No. 94-08, § 26, 7-21-08)

Sec. 42-56. Assessment for maintenance.

The city council may, at the time of making its annual tax levy for other purposes, levy for the purpose of maintaining, repairing, planting, and otherwise improving and caring for boulevards a special front foot assessment.

Sec. 42-57. Abuse or mutilation of trees.

Secs. 42-58—42-64. Reserved.

ARTICLE IV. ARBORIST'S LICENSE*

Sec. 42-65. Required.

No person for hire or for other valuable consideration may perform tree maintenance or remove trees within the city unless such person can provide proof of general liability insurance and holds a valid arborist's license granted by the director.

(1957 Rev. Ords., § 11.908; Ord. No. 11-77, § 23, 2-14-77; Ord. No. 94-08, § 30, 7-21-08)

Sec. 42-66. Chapter 23 applicable.

The provisions of chapter 23, insofar as the provisions may be applicable and not in conflict, shall apply to and govern the issuance of any license under the provisions of this article.

Sec. 42-67. Application.

Each applicant for an arborist's license shall make a verified application upon blanks supplied by the parks and recreation department.

(1957 Rev. Ords., § 11.909; Ord. No. 11-77, § 24, 2-14-77; Ord. No. 94-08, § 31, 7-21-08)

Sec. 42-68. Examination required.

Every applicant for an arborist's license may be subject to an examination to be given by the director. Each applicant must obtain a score of at least 70 percent correct in order to be entitled to such license. The director may waive the examination if an applicant is currently certified by either the South Dakota Arborist Association or the International Society of Arboriculture.

(1957 Rev. Ords., § 11.909; Ord. No. 11-77, § 25, 2-14-77; Ord. No. 94-08, § 32, 7-21-08)

Sec. 42-69. Reexamination.

Any applicant for an arborist's license who fails to pass the required examination shall be required to wait at least 24 hours before again making application of such license. The applicant shall pay the same fee as for the original examination.

Sec. 42-70. Expiration.

Each license issued under the provisions of this article shall expire on December 31 for the year it was issued.

Sec. 42-71. Reexamination upon failure to renew.

If any license issued under this article is not renewed within six months from the date of expiration, a new application and reexamination shall be required.

Sec. 42-72. Revocation.

The director may revoke the license of any arborist for violation of any provision of this chapter or the rules and regulations of the parks and recreation department.

(1957 Rev. Ords., § 11.909; Ord. No. 11-77, § 26, 2-14-77; Ord. No. 94-08, § 34, 7-21-08)

Sec. 42-73. Appeals.

When any person has made application for an arborist's license and such application has been denied or refused by the director or when any license has been revoked or when renewal of any license has been refused by the director or when any person believes himself otherwise injured or wronged by the director or any members of his staff, such applicant or other person whose license has been refused or revoked or such other person mentioned in this section may appeal from such action of the director or his staff to the board for a review of such denial, revocation or other ruling or order. Upon such review the board may affirm, modify or reverse the action of the director or his staff.

(1957 Rev. Ords., § 11.910; Ord. No. 11-77, § 27, 2-14-77; Ord. No. 94-08, § 35, 7-21-08)

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Chapter 42 VEGETATION*