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HomeMy WebLinkAboutAgenda - City Council - 01/03/2017 AGENDA SOUTH BURLINGTON CITY COUNCIL City Hall Conference Room 575 Dorset Street SOUTH BURLINGTON, VERMONT Regular Session 6:30 P.M. Tuesday, January 3, 2017 1. Pledge of Allegiance (6:30 – 6:31 PM) 2. Agenda Review: Additions, deletions or changes in order of agenda items. (6:31 – 6:32 PM) 3. Recognition of resident Barbara Bull, and her contributions to the community. (6:32 – 6:42 PM) 4. Comments and questions from the public not related to the agenda. (6:42 – 6:52 PM) 5. Announcements and City Manager’s Report. (6:52 – 7:12 PM) 6. Consent Agenda: (7:12 – 7:15 PM) A. *** Sign Disbursement B. *** Approve Minutes for December 19th. C. *** Award of Construction Contract for Market Street Culvert Replacement Project 7. *** Public Hearing, second reading and possible approval of ordinance amendments - Andrew Bolduc, Jim Barlow (Warned for 7:15 PM) (7:15 PM – 7:35 PM) (Alarm, Dog, Tree) 8. Consider and possibly grant authority to release affordability covenants for Lily Lane/Kirby Cottage properties – Andrew Bolduc (7:35 – 7:45 PM) 9. Discussion with City Assessor concerning assessment values & commercial reappraisal ­ Todd Leblanc (7:45 – 8:05 PM) 10. ***Presentation from Actuary on FY16 Pension Valuation- Tracy Braun, Erik Schait (8:05 – 8:30 PM) 11. Review schedule & initial discussion for FY18 Budget Presentations ­ Tom Hubbard (8:30 – 8:45 PM) 12. Update on BIA noise – related issues – Kevin Dorn (8:45 – 9:00 PM) 13. Consider convening as the South Burlington Liquor Control Board to consider the following applications: (9:00 – 9:10 PM) *** Tavern II (first class license and outside consumption permit) 14. Other Business: (9:10 – 9:15 PM) A. Items held from the Consent Agenda 15. Adjourn (9:15 PM) Respectfully Submitted: Kevin Dorn Kevin Dorn, City Manager *** Attachments Included Issues raised by Councilors or the public that have not been on a prior meeting agenda: 1. Policy regarding landscaping City-owned land and request from Hadley Road. 2. Cost of development/cost of open space. 3. Airport noise survey. 4. Evaluate water billing and rate structure. 5. Citizen participation in democratic process. 6. Adoption of a building code. Issues that have been discussed by the Council where further action is pending: 1. East Terrace Neighborhood Forum and conversion of housing into rental units. 2. Street light policy. 3. Crosswalk issues generally and on Kennedy Drive and Williston Road. 4. Committee reorganization. 5. Encouraging litter removal by businesses and the public. 6. Wastewater plant capacity and allocation. 7. Sanctuary City designation. South Burlington City Council Meeting Participation Guidelines City Council meetings are the only time we have to discuss and decide on City matters. We want to be as open and informal as possible; but Council meetings are not town meetings. In an effort to conduct orderly and efficient meetings, we kindly request your cooperation and compliance with the following guidelines. 1. Please be respectful of each other (Council members, staff, and the public). 2. Please raise your hand to be recognized by the Chair. Once recognized please state your name and address. 3. Please address the Chair and not other members of the public, staff, or presenters. 4. Please abide by any time limits that have been set. Time limits will be used to insure everyone is heard and there is sufficient time for the Council to conduct all the business on the agenda. 5. The Chair will make a reasonable effort to allow everyone to speak once before speakers address the Council a second time. 6. The Chair may ask that discussion be limited to the Councilors once the public input has been heard. 7. Please do not interrupt when others are speaking. 8. Please do not repeat the points made by others, except to briefly say whether you agree or disagree with others views. 9. Please use the outside hallway for side conversations. It is difficult to hear speaker remarks when there are other conversations occurring. Published by ClerkBase ©2019 by Clerkbase. No Claim to Original Government Works. Memo To: South Burlington City Council From: Tom DiPietro, Deputy Director of Public Works CC: Justin Rabidoux, Director of Public Works Date: December 16, 2016 Re: Award of Construction Contract for Market Street Culvert Replacement Project On Friday December 9, 2016 the City of South Burlington held a bid opening for the Market Street Culvert Replacement Project. This project includes replacement of the existing, undersized, 114 foot long, 48 inch diameter corrugated metal pipe culvert with a 64 foot long, 12 foot wide, 5 foot tall precast concrete arch structure. This work is being completed separate from, but in anticipation of, the City’s larger effort to reconstruct Market Street. We received proposals from 10 contractors to complete this work (Table 1). The low bid for this project was submitted by J. Hutchins, Inc. for an amount of $662,756.00. This cost is below the amount approved in the Stormwater Utility’s budget for this project. The project engineer and I have reviewed the bid package and determined that all required materials and bonds were included, all contract addenda were received by the contractor, and all necessary documents had been signed. Table 1. Summary of Bids Received for the Market Street Culvert Replacement Project Contractor Total Bid Price Parent Construction, Inc. $ 1,047,042.00 Dirt Tech Company, LLC $ 844,936.35 S.D. Ireland $ 837,032.50 Dale E. Percy, Inc. $ 836,794.79 Griffin & Griffin Excavating, Inc. $ 812,449.00 All Season's Excavating and Landscaping, Inc. $ 793,361.00 Munson Earth Moving Corporation $ 792,352.50 Engineers Construction, Inc. $ 757,469.00 Don Weston Excavating, Inc. $ 679,972.00 J. Hutchins, Inc. $ 662,756.00 Based on this, I am requesting that City Council authorize the South Burlington Department of Public Works to award the Market Street Culvert Replacement Project to J. Hutchins. If you would like additional information on this project or the bid results, please contact Tom DiPietro, Deputy Director of Public Works, at (802) 658-7961 x6108. MEMORANDUM TO: South Burlington City Council CC: Thomas Hubbard, Deputy City Manager and Andrew Bolduc, City Attorney FROM: Atty. Jim Barlow DATE: January 3, 2017 RE: Ordinance Codification Project - Second Reading of Proposed Amendments to the Security Alarm Ordinance and Consideration of the Resolution Enacting Registration Regulations and Fees for the Security Alarm Ordinance Background The South Burlington Security Alarm Ordinance regulates installation, registration, and operation of security alarms. Fees for registering security alarms and reimbursement of expenses incurred by the City in responding to false alarms are set in the Resolution Enacting Registration Regulations and Fees for the Security Alarm Ordinance. The Security Alarm Ordinance was adopted on September 15, 1975. It was amended May 17, 1993, and October 16, 2006. The Resolution was adopted on October 16, 2006. The current Security Alarm Ordinance and Resolution are available on the City’s website. Proposed Amendments As part of the City’s ordinance codification project, several amendments to the Security Alarm Ordinance and the Resolution are proposed. Most of these amendments are technical in nature and intended to accomplish the following:  Update penalties for violation of the Ordinance and align the enforcement provisions of the Ordinance with applicable statutes.  Authorize dismissal of a municipal complaint (i.e. ticket) upon the successful completion of a restorative justice program through the South Burlington Restorative Justice Center.  Standardize the Ordinance’s organization, formatting, and font.  Add a severability clause to the Ordinance. Proposed amendments to Section 2 of the Ordinance clarify that the Ordinance does not apply to car alarms or fire alarms. Fire alarms are regulated under the City’s Fire Prevention and Fire Safety Ordinance. Car alarms are not regulated by the City. A definition for the term “Answering Service” is deleted. The term is not used in the Ordinance. Under proposed Section 7 of the Ordinance, Elevator Car Emergency Signaling Devices that automatically dial directly to the Police Department are prohibited unless approved in writing by the Police Chief. A definition for Elevator Car Emergency Signaling Devices has been added. Section 10 (B) has been moved to the Ordinance from the Resolution. Proposed deletions are indicated with strikethrough. Additions are indicated with underline. Non-substantive changes to the organization, grammar, spelling, capitalization, and section titles are not specifically indicated. Copies of the Ordinance and the Resolution with the proposed amendments are attached. Recommendation After conducting a public hearing, the City Council is requested to pass the proposed amendments to the Security Alarm Ordinance and the Resolution. Clean copies of the Ordinance and Resolution will be available for Council members’ signatures at the meeting. Security Alarm Ordinance SECURITY ALARM ORDINANCE 2 City of South Burlington Ordinance Second Reading Draft 1.3.17 Table of Contents 1. Purpose and Authority ...................................................................................................................... 3 2. General Definitions ........................................................................................................................... 3 3. Registration of Security Alarm Systems ............................................................................................ 4 4. Responsibility to Prevent False Alarms ............................................................................................. 5 5. Reporting False Alarms; Appeals and Fees ....................................................................................... 5 6. Prohibited Security Alarm Systems ................................................................................................... 6 7. Elevator Car Emergency Signaling Devices ....................................................................................... 6 8. Enforcement ..................................................................................................................................... 6 9. Civil Penalty; Waiver Fee ................................................................................................................. 76 10. Other Relief ..................................................................................................................................... 87 11. Severability ...................................................................................................................................... 87 SECURITY ALARM ORDINANCE 3 City of South Burlington Ordinance Second Reading Draft 1.3.17 The Council of the City of South Burlington hereby ordains: The City of South Burlington Security Alarm Ordinance first adopted on September 15, 1975 and amended in its entirety on May 17, 1993 is hereby amended in its entirety as follows: 1. Purpose and Authority Recent years have witnessed an increase in the use of security alarm systems within businesses and residences in the City of South Burlington. When appropriate alarm systems are properly installed and maintained, and their presence is made known to designated officials, they provide valuable assistance to local law enforcement and emergency service personnel in the performance of their duties and deter criminal activity in the community. The installation of such systems and their frequent activation for other than their intended purpose significantly interferes with the efficient provision of law enforcement and emergency services in the community and for this reason jeopardizes the public health, safety and welfare. This Ordinance is adopted by the City Council of South Burlington under authority conferred by 24 V.S.A. § 2291(14) and Section 103 of the City Charter. It is the express The purpose of this Ordinance is to einsure that all sSecurity Alarm Systems installed in the City of South Burlington are disclosed to appropriate officials and are properly maintained and used so that such systems will promote the public health, safety and welfare. This Ordinance shall constitute a civil ordinance within the meaning of 24 V.S.A. Chapter 59. 2. General Definitions For purposes of this ordinance, the following words and/or phrases shall applyThe following words, terms and phrases, when used in this Ordinance, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Security Alarm System Any assembly of equipment, mechanical, electrical, or battery operated, arranged to signal the occurrence of an emergency requiring immediate attention and to which the Police Department is expected to respond. Security Alarm Systems do not include car alarms or fire alarms intended to emit sound and/or transmit signals or messages when activated because of smoke, heat, fire, or sprinkler water flow. Alarm System Coordinator A person employed within the Police Department who is designated by the Chief of Police and is responsible for discharging duties as specified in this Ordinance. Answering Service A service with trained employees, in attendance at all times, who receive alarm notifications or prerecorded voice messages from automatic dialing devices reporting an emergency at a stated location, and who have the duty to relay immediately by live voice any such emergency message over a phone line to the Police or Fire Department. Audible Alarm Any device, bell, horn, or siren which is attached to the interior and/or exterior of a building, structure, or facility and emits a warning signal which is audible outside the building, structure, or facility and is designed to attract attention when activated by a criminal act or other emergency requiring Police Department response. Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Not Bold Formatted: Font: Bold Formatted: Font: 11 pt Formatted: Font: (Default) +Body (Calibri) SECURITY ALARM ORDINANCE 4 City of South Burlington Ordinance Second Reading Draft 1.3.17 Automatic Dialing Device A device which is connected to a telephone line and is programmed to transmit a signal by a voice coded message that indicates that an emergency condition exists and the need for an emergency response is required. Central Station A protective system or group of such systems operated privately for customers by a person, firm, or corporation which accepts recorded messages from Automatic Dialing Devices at a central location having operators and guards in attendance at all times who have the duty to take appropriate action upon receipt of a signal or message, including the relaying of messages to the communications center of the Police or Fire Department. Elevator Car Emergency Signaling Device A device installed in an elevator car that, upon activation of a push button, initiates a call for help and establishes two-way communications. False Alarm An alarm activated in the absence of an emergency, whether willfully or by inadvertence, negligence, or an unintentional act, including the malfunction or unannounced testing of the Security Alarm System, to which the Police Department responds. The intentional activation of a Holdup Alarm for other than its intended purpose is also a False Alarm. Multiple alarms received by the Police Department within a reasonable period of time before the system can be deactivated shall be considered a single alarm. Alarms that occur for the following reasons are excluded from this definition: testing or repairing of telephone or electrical lines or equipment outside the premises; natural disasters such as an earthquake, major flood, or other severe weather event; an attempted illegal entry of which there is visible evidence; a crime in progress; or, in the case of an actual medical emergency the activation of an intrusion detection alarm to summon any emergency response personnel. Alarms that occur within thirty (30) days of an initial Security Alarm System registration are also excluded. Holdup Alarm An alarm generated by the manual activation of a device intended to signal a robbery or other crime in progress. Owner A person who owns real property as identified in the City land records. Tenant A person who leases or occupies real property with the consent of the Owner. 3. Registration of Security Alarm Systems (A) No person shall install or use a sSecurity Alarm System in any property in the City unless the Owner of such property has filed a properly completed Security Alarm System registration form with the Police Department. An Security Alarm System registration shall be valid from the date of filing through March 31st of each year. (B) On or before March 31st of each year, the Owner of any property in the City in which there is a Security Alarm System shall file a properly completed Security Alarm System registration form with the Police Department. Formatted: Font: Bold Formatted: Font: Bold Formatted: Font: Not Bold Formatted: Font: Bold SECURITY ALARM ORDINANCE 5 City of South Burlington Ordinance Second Reading Draft 1.3.17 (C) The Owner of any property in which an Security Alarm System is in use shall be responsible for providing the Police Department information to enable immediate contact of the Owner or other person designated by the Owner in the event the Department receives an alarm from the Owner’s property. (D) An Owner may authorize a Tenant to register and use an Security Alarm System under the provisions of this Ordinance by executing and filing with the Department an Owner authorization form. The Owner shall provide the Tenant a copy of the authorization. An Owner authorization form filed with the Department shall remain in effect until the Owner withdraws it or conveys the property to a new Owner. Except as otherwise provided herein, once an Owner files an Owner’s authorization form with the Department and provides a copy of the authorization to a Tenant: (1) The Owner’s Tenant(s) shall be responsible for compliance with this Ordinance; and (2) The Owner shall not be responsible for a Tenant’s non-compliance with this Ordinance. (E) Security Alarm System registration forms shall be confidential records and shall only be disclosed to law enforcement and public safety personnel needing access to such forms. (F) The City Council shall by resolution establish reasonable fees and regulations for the registration of Security Alarm Systems. (G) The City’s registration of Security Alarm Systems under this Ordinance shall not constitute a representation or affirmative commitment by the City that it will be better able to respond to emergency situations on the premises of any property Owner. Nor does any such registration constitute a representation by the City that the Security Alarm Systems selected and installed by the property Owner are suitable or appropriate for the intended purpose. 4. Owner/User Responsibilityies to Prevent False Alarms (A) An Owner of property in which an Security Alarm System is installed shall be responsible for maintaining the system in proper operating condition. The Owner shall notify the Department prior to performing any system maintenance or tests that could result in False Alarms. (B) Users of property in which Security Alarm Systems are installed shall be responsible for taking those actions that are required to prevent the occurrence of False Alarms when they are present at the property. They shall not intentionally or negligently activate or trigger any Security Alarm System on the property or allow the activation of said system except for its intended purpose. Any person who activates any Security Alarm System or allows its activation for other than its intended purpose, shall promptly notify the Department by calling 658-1050. (C) Owners and users of property in which Security Alarm Systems are installed shall promptly notify the Police Department if they believe that a False Alarm has occurred. 5. Reporting False Alarms,; Appeals and Fees (A) If a Police Officer responding to an alarm at a property in which an Security Alarm System is installed determines that the alarm is a False Alarm, he/she shall notify the Alarm System Coordinator of such determination, in writing or by completing an incident report.. SECURITY ALARM ORDINANCE 6 City of South Burlington Ordinance Second Reading Draft 1.3.17 (B) Within seven (7) days of receipt of a report of False Alarm, the Alarm System Coordinator shall mail, by first class mail, to the Owner of the property written notice of the False Alarm, along with a statement of any fee due the City for responding to the False Alarm. (C) An Owner who receives notice of a False Alarm may appeal the Police Officer’s determination to the Police Chief by filing a written notice of appeal with the Alarm System Coordinator within seven (7) days of the date of mailing of the notice of False Alarm. The notice of appeal must set forth specific facts establishing that the alarm was not a False Alarm. If requested in the notice of appeal, the Police Chief will meet with the Owner before rendering a decision. The Police Chief shall, within fifteen (15) days of receipt of a notice of appeal, issue a written decision and mail a copy to the Owner by first class mail. (D) An Owner who disagrees with the decision of the Police Chief may appeal the Police Chief’s decision to the City Manager by filing a written notice of appeal with the City Manager within seven (7) days of the date of mailing of the Police Chief’s decision. The notice of appeal must set forth specific points of disagreement with the Police Chief’s decision. If requested in the notice of appeal, the City Manager will meet with the Owner before rendering a decision. The City Manager shall, within fifteen (15) days of receipt of a notice of appeal, issue a written decision and mail a copy to the Owner by first class mail. The City Manager’s decision shall be final. (E) The City Council shall, by resolution, establish a schedule of fees to be paid to reimburse the City for responses to False Alarms. 6. Prohibited Security Alarm Systems (A) No person shall install or use an Security Alarm System that has an internal Audible Alarm that is not equipped with a timing mechanism that disengages the Audible Alarm after a maximum of ten (10) minutes. (B) No person shall install or use an Security Alarm System that has an external Audible Alarm. (C) No person shall install or use an Security Alarm System that uses an Automatic Dialing Device to transmit recorded messages directly to the Police Department unless approved in writing by the Police Chief for special or extraordinary circumstances. 7. Elevator Car Emergency Signaling Devices No person shall install an Elevator Car Emergency Signaling Device that automatically dials directly to the Police Department to establish two-way communication unless approved in writing by the Police Chief for special or extraordinary circumstances. 8. Enforcement and Penalties (A) This Ordinance shall constitute a civil ordinance. (B) The following shall constitute violations of this Ordinance: (1) Failure to register an Security Alarm System as required by Section 3; (2) Failure to maintain an Security Alarm System in proper working order as required by Section 4; Formatted: Heading 2,Section Heading Formatted: Font: 11 pt, Not Bold Formatted: Space After: 0 pt Formatted: Indent: Left: 0", Hanging: 0.5", Space After: 0pt SECURITY ALARM ORDINANCE 7 City of South Burlington Ordinance Second Reading Draft 1.3.17 (3) Failure to take actions necessary to prevent the occurrence of False Alarms on a frequent basis as required by Section 4; (4) Failure to pay False Alarm fees imposed under Section 5; and (5) Installation of a prohibited Security Alarm System as set forth in Section 6. (B) Any person who violates a provision of this Ordinance shall be subject to a civil penalty of up to $800 per day for each day that such violation continues. Police Officers of the City of South Burlington shall be authorized to act as Issuing Municipal Officials to issue and pursue before the Judicial Bureau a municipal complaint. Each day the violation continues shall constitute a separate violation. A municipal complaint may, at the discretion of the Issuing Municipal Official, be dismissed upon the successful completion of a restorative justice program through the South Burlington Community Justice Center. 9. Civil Penalty; Waiver Fee An Issuing Municipal Official is authorized to recover civil penalties in the following amounts for each violation: First offense $100 Second offense $200 Third offense $400 Fourth offense $600 Fifth and subsequent offenses $800 An Issuing Municipal Official is authorized to recover a waiver fee, in lieu of a civil penalty, in the following amount, for any person who declines to contest a municipal complaint and pays the waiver fee: First offense $50 Second offense $150 Third offense $300 Fourth offense $500 Fifth and subsequent offenses $700 (D) Waiver fees An Issuing Municipal Official is authorized to recover a waiver fee, in lieu of a civil penalty, in the following amount, for any person who declines to contest a municipal complaint and pays the waiver fee: First Offense $50 Second Offense $125 Third Offense $200 Fourth Offense $275 Fifth and Subsequent Offense $350 Offenses will be counted on an annual basis in conjunction with the registration periods. Formatted: Space After: 0 pt SECURITY ALARM ORDINANCE 8 City of South Burlington Ordinance Second Reading Draft 1.3.17 (E) Civil penalties First Offense $100 Second Offense $200 Third Offense $300 Fourth Offense $400 Fifth and Subsequent Offenses $500 10. Other Relief (A) In addition to recovery of civil penalties provided for above enforcement procedures available before the Judicial Bureau, the City Manager may seek to enforce this Ordinance by an appropriate action is authorized to commence a civil action to obtain for injunctive and other appropriate relief, including, without limitation, deactivation or removal of an Security Alarm System. (B) The City may discontinue response to a property for failure to comply with, or to pay any fees or charges due the City under this Ordinance. If reasonably possible, prior to any discontinuation of response services, the City will provide the Owner written notice of said discontinuation by mailing notice to the address which appears on the most current registration, at least ten (10) days prior to the date of discontinuation. Owner shall hold the City harmless from any and all damage or injury resulting from the discontinuance of response service arising from failure to comply with, or to pay any fees or charges due the City under this Ordinance. In addition, Owner agrees to indemnify and hold City harmless from any and all damage or injury resulting from the failure to respond or delayed response for alarm activations. 11. Severability In the event that any section, subsection or portion of this Ordinance shall be declared by any competent court to be invalid for any reason, such decision shall not be deemed to affect the validity of any other section, subsection or portion of this Ordinance. Adopted at South Burlington, Vermont this _____ day of __________________, 2017, and to be effective upon adoption. SOUTH BURLINGTON CITY COUNCIL _________________________________ Helen Riehle, Chair _________________________________ Meaghan Emery, Vice-Chair SECURITY ALARM ORDINANCE 9 City of South Burlington Ordinance Second Reading Draft 1.3.17 _________________________________ Tim Barritt, Clerk _________________________________ Thomas Chittenden _________________________________ Pat Nowak Received and recorded this ______ day of _____________________, 2017. _________________________________ Donna Kinville, City Clerk Security Alarm Ordinance SECURITY ALARM ORDINANCE 2 City of South Burlington Ordinance Table of Contents 1. Purpose and Authority ...................................................................................................................... 3 2. General Definitions ........................................................................................................................... 3 3. Registration of Security Alarm Systems ............................................................................................ 4 4. Responsibility to Prevent False Alarms ............................................................................................. 5 5. Reporting False Alarms; Appeals and Fees ....................................................................................... 5 6. Prohibited Security Alarm Systems ................................................................................................... 5 7. Elevator Car Emergency Signaling Devices ....................................................................................... 6 8. Enforcement ..................................................................................................................................... 6 9. Civil Penalty; Waiver Fee ................................................................................................................... 6 10. Other Relief ....................................................................................................................................... 7 11. Severability ........................................................................................................................................ 7 SECURITY ALARM ORDINANCE 3 City of South Burlington Ordinance The Council of the City of South Burlington hereby ordains: 1. Purpose and Authority When appropriate alarm systems are properly installed and maintained, and their presence is made known to designated officials, they provide valuable assistance to local law enforcement and emergency service personnel in the performance of their duties and deter criminal activity in the community. The installation of such systems and their frequent activation for other than their intended purpose significantly interferes with the efficient provision of law enforcement and emergency services in the community and for this reason jeopardizes the public health, safety, and welfare. This Ordinance is adopted by the City Council of South Burlington under authority conferred by 24 V.S.A. § 2291(14) and Section 103 of the City Charter. The purpose of this Ordinance is to ensure that all Security Alarm Systems installed in the City of South Burlington are disclosed to appropriate officials and are properly maintained and used so that such systems will promote the public health, safety, and welfare. This Ordinance shall constitute a civil ordinance within the meaning of 24 V.S.A. Chapter 59. 2. General Definitions The following words, terms, and phrases, when used in this Ordinance, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Security Alarm System Any assembly of equipment, mechanical, electrical, or battery operated, arranged to signal the occurrence of an emergency requiring immediate attention and to which the Police Department is expected to respond. Security Alarm Systems do not include car alarms or fire alarms intended to emit sound and/or transmit signals or messages when activated because of smoke, heat, fire, or sprinkler water flow. Alarm System Coordinator A person employed within the Police Department who is designated by the Chief of Police and is responsible for discharging duties as specified in this Ordinance. Audible Alarm Any device, bell, horn, or siren which is attached to the interior and/or exterior of a building, structure, or facility and emits a warning signal which is audible outside the building, structure, or facility and is designed to attract attention when activated by a criminal act or other emergency requiring Police Department response. Automatic Dialing Device A device which is connected to a telephone line and is programmed to transmit a signal by a voice coded message that indicates that an emergency condition exists and the need for an emergency response is required. Elevator Car Emergency Signaling Device A device installed in an elevator car that, upon activation of a push button, initiates a call for help and establishes two-way communications. False Alarm An alarm activated in the absence of an emergency, whether willfully or by inadvertence, negligence, or an unintentional act, including the malfunction or unannounced testing of the Security Alarm System, to which the Police Department responds. The intentional activation of a Holdup Alarm for other than its intended purpose is also a False Alarm. Multiple alarms received by the Police Department within a reasonable period of time before the system can be deactivated shall be considered a single alarm. SECURITY ALARM ORDINANCE 4 City of South Burlington Ordinance Alarms that occur for the following reasons are excluded from this definition: testing or repairing of telephone or electrical lines or equipment outside the premises; natural disasters such as an earthquake, major flood, or other severe weather event; an attempted illegal entry of which there is visible evidence; a crime in progress; or, in the case of an actual medical emergency the activation of an intrusion detection alarm to summon any emergency response personnel. Alarms that occur within thirty (30) days of an initial Security Alarm System registration are also excluded. Holdup Alarm An alarm generated by the manual activation of a device intended to signal a robbery or other crime in progress. Owner A person who owns real property as identified in the City land records. Tenant A person who leases or occupies real property with the consent of the Owner. 3. Registration of Security Alarm Systems (A) No person shall install or use a Security Alarm System in any property in the City unless the Owner of such property has filed a properly completed Security Alarm System registration form with the Police Department. A Security Alarm System registration shall be valid from the date of filing through March 31st of each year. (B) On or before March 31st of each , the Owner of any property in the City in which there is a Security Alarm System shall file a properly completed Security Alarm System registration form with the Police Department. (C) The Owner of any property in which a Security Alarm System is in use shall be responsible for providing the Police Department information to enable immediate contact of the Owner or other person designated by the Owner in the event the Department receives an alarm from the Owner’s property. (D) An Owner may authorize a Tenant to register and use a Security Alarm System under the provisions of this Ordinance by executing and filing with the Department an Owner authorization form. The Owner shall provide the Tenant a copy of the authorization. An Owner authorization form filed with the Department shall remain in effect until the Owner withdraws it or conveys the property to a new Owner. Except as otherwise provided herein, once an Owner files an Owner’s authorization form with the Department and provides a copy of the authorization to a Tenant: (1) The Owner’s Tenant(s) shall be responsible for compliance with this Ordinance; and (2) The Owner shall not be responsible for a Tenant’s non-compliance with this Ordinance. (E) Security Alarm System registration forms shall be confidential records and shall only be disclosed to law enforcement and public safety personnel needing access to such forms. (F) The City Council shall by resolution establish reasonable fees and regulations for the registration of Security Alarm Systems. (G) The City’s registration of Security Alarm Systems under this Ordinance shall not constitute a representation or affirmative commitment by the City that it will respond to emergency situations on the premises of any property Owner. Nor does any such registration constitute a representation by the City that the Security Alarm Systems selected and installed by the property Owner are suitable or appropriate for the intended purpose. SECURITY ALARM ORDINANCE 5 City of South Burlington Ordinance 4. Responsibility to Prevent False Alarms (A) An Owner of property in which a Security Alarm System is installed shall be responsible for maintaining the system in proper operating condition. The Owner shall notify the Department prior to performing any system maintenance or tests that could result in False Alarms. (B) Users of property in which Security Alarm Systems are installed shall be responsible for taking those actions that are required to prevent the occurrence of False Alarms when they are present at the property. They shall not intentionally or negligently activate or trigger any Security Alarm System on the property or allow the activation of said system except for its intended purpose. Any person who activates any Security Alarm System or allows its activation for other than its intended purpose, shall promptly notify the Department by calling 658-1050. (C) Owners and users of property in which Security Alarm Systems are installed shall promptly notify the Police Department if they believe that a False Alarm has occurred. 5. Reporting False Alarms; Appeals and Fees (A) If a Police Officer responding to an alarm at a property in which a Security Alarm System is installed determines that the alarm is a False Alarm, he/she shall notify the Alarm System Coordinator of such determination, in writing or by completing an incident report. (B) Within seven (7) days of receipt of a report of False Alarm, the Alarm System Coordinator shall mail, by first-class mail, to the Owner of the property written notice of the False Alarm, along with a statement of any fee due the City for responding to the False Alarm. (C) An Owner who receives notice of a False Alarm may appeal the Police Officer’s determination to the Police Chief by filing a written notice of appeal with the Alarm System Coordinator within seven (7) days of the date of mailing of the notice of False Alarm. The notice of appeal must set forth specific facts establishing that the alarm was not a False Alarm. If requested in the notice of appeal, the Police Chief will meet with the Owner before rendering a decision. The Police Chief shall, within fifteen (15) days of receipt of a notice of appeal, issue a written decision and mail a copy to the Owner by first class mail. (D) An Owner who disagrees with the decision of the Police Chief may appeal the Police Chief’s decision to the City Manager by filing a written notice of appeal with the City Manager within seven (7) days of the date of mailing of the Police Chief’s decision. The notice of appeal must set forth specific points of disagreement with the Police Chief’s decision. If requested in the notice of appeal, the City Manager will meet with the Owner before rendering a decision. The City Manager shall, within fifteen (15) days of receipt of a notice of appeal, issue a written decision and mail a copy to the Owner by first class mail. The City Manager’s decision shall be final. (E) The City Council shall, by resolution, establish a schedule of fees to be paid to reimburse the City for responses to False Alarms. 6. Prohibited Security Alarm Systems (A) No person shall install or use a Security Alarm System that has an internal Audible Alarm that is not equipped with a timing mechanism that disengages the Audible Alarm after a maximum of ten (10) minutes. (B) No person shall install or use a Security Alarm System that has an external Audible Alarm. SECURITY ALARM ORDINANCE 6 City of South Burlington Ordinance (C) No person shall install or use a Security Alarm System that uses an Automatic Dialing Device to transmit recorded messages directly to the Police Department unless approved in writing by the Police Chief for special or extraordinary circumstances. 7. Elevator Car Emergency Signaling Devices No person shall install an Elevator Car Emergency Signaling Device that automatically dials directly to the Police Department to establish two-way communication unless approved in writing by the Police Chief for special or extraordinary circumstances. 8. Enforcement (A) The following shall constitute violations of this Ordinance: (1) Failure to register a Security Alarm System as required by Section 3; (2) Failure to maintain a Security Alarm System in proper working order as required by Section 4; (3) Failure to take actions necessary to prevent the occurrence of False Alarms as required by Section 4; (4) Failure to pay False Alarm fees imposed under Section 5; and (5) Installation of a prohibited Security Alarm System as set forth in Section 6. (B) Any person who violates a provision of this Ordinance shall be subject to a civil penalty of up to $800 per day for each day that such violation continues. Police Officers of the City of South Burlington shall be authorized to act as Issuing Municipal Officials to issue and pursue before the Judicial Bureau a municipal complaint. Each day the violation continues shall constitute a separate violation. A municipal complaint may, at the discretion of the Issuing Municipal Official, be dismissed upon the successful completion of a restorative justice program through the South Burlington Community Justice Center. 9. Civil Penalty; Waiver Fee An Issuing Municipal Official is authorized to recover civil penalties in the following amounts for each violation: First offense $100 Second offense $200 Third offense $400 Fourth offense $600 Fifth and subsequent offenses $800 An Issuing Municipal Official is authorized to recover a waiver fee, in lieu of a civil penalty, in the following amount, for any person who declines to contest a municipal complaint and pays the waiver fee: First offense $50 Second offense $150 Third offense $300 Fourth offense $500 Fifth and subsequent offenses $700 SECURITY ALARM ORDINANCE 7 City of South Burlington Ordinance 10. Other Relief (A) In addition to enforcement procedures available before the Judicial Bureau, the City Manager is authorized to commence a civil action to obtain injunctive and other appropriate relief, including, without limitation, deactivation or removal of a Security Alarm System. (B) The City may discontinue response to a property for failure to comply with, or to pay any fees or charges due the City under this Ordinance. If reasonably possible, prior to any discontinuation of response services, the City will provide the Owner written notice of said discontinuation by mailing notice to the address which appears on the most current registration at least ten (10) days prior to the date of discontinuation. The Owner shall hold the City harmless from any and all damage or injury resulting from the discontinuance of response service arising from failure to comply with, or to pay any fees or charges due the City, under this Ordinance. In addition, Owner agrees to indemnify and hold City harmless from any and all damage or injury resulting from the failure to respond or delayed response for alarm activations. 11. Severability In the event that any section, subsection or portion of this Ordinance shall be declared by any competent court to be invalid for any reason, such decision shall not be deemed to affect the validity of any other section, subsection or portion of this Ordinance. Adopted at South Burlington, Vermont this _____ day of __________________, 2017, and to be effective upon adoption. SOUTH BURLINGTON CITY COUNCIL _________________________________ Helen Riehle, Chair _________________________________ Meaghan Emery, Vice-Chair _________________________________ Tim Barritt, Clerk _________________________________ Thomas Chittenden _________________________________ Pat Nowak SECURITY ALARM ORDINANCE 8 City of South Burlington Ordinance Received and recorded this ______ day of _____________________, 2017. _________________________________ Donna Kinville, City Clerk CITY OF SOUTH BURLINGTON POLICE DEPARTMENT RESOLUTION ENACTING REGISTRATION REGULATIONS AND FEES FOR THE SECURITY ALARM ORDINANCE 1. Owners, or Tenant if appropriate authorization is in place, shall complete all supplied registration/permit paperwork as deemed appropriate by the Police Department. 2. Owners, or Tenant if appropriate authorization is in place, shall promptly notify the South Burlington Police Department of any change in the information contained in the permit application form on file with the Police Department. 3. Pursuant to Section 3(F) of the South Burlington Security Alarm Ordinance Owners, or Tenant if appropriate authorization is in place, shall be responsible for an initial registration fee based upon the following schedule: (A) First- time registration shall be in the amount of $45.00. The initial registration period will cover the months remaining in the current year. (B) Every year after the initial year, Owners shall be responsible for an annual registration fee of $30.00 to cover administrative fees for the maintenance of alarm records. (C) Registration fees will cover the registration period between April 1 and March 31 of each year. 4. Pursuant to Section 5(E) of the South Burlington Security Alarm Ordinance, Owners shall reimburse the City for its response to any False Alarms in accordance with the following schedule: (a) The first two (2) False Alarms within a registration period – warning/no charge. (b) Three (3) – five (5) False Alarms within a registration period - $30 per False Alarm. (c) Six (6) – eight (8) False Alarms within a registration period - $50 per False Alarm, plus a written explanation of cause to the Alarm System Coordinator. (d) Nine (9) or more False Alarms shall be billed at $100 per False Alarm during the registration period. In addition, pursuant to Section 10(B) of the South Burlington Security Alarm Ordinance notice shall be served to the Owner and Tenant, by first class mail, that the City intends to discontinue response for repeated False Alarms until such time that the Owner and/or Tenant submit, in writing, to the Chief of Police that problems with the alarm have been rectified. 5. City reserves the right to discontinue responding services to Owner’s property for Owner’s failure to comply with, or to pay any charges due the City pursuant to, these rules. City further reserves the right to discontinue responding services when in its discretion it is appropriate and necessary to discontinue services. If reasonably possible, prior to any discontinuation of response service, City agrees to provide Owner written notice of said discontinuation by mailing notice to the address which appears on the most current registration at least ten (10) days prior to the date of discontinuation. 6. Owner agrees to indemnify and hold City harmless from any and all damage or injury resulting from the discontinuance of response service. In addition, Owner agrees to indemnify and hold City Formatted: No underline, Underline color: Auto harmless from any and all damage or injury resulting from the failure to respond or delayed response for alarm activations. 7. City may change these rules at any time provided that City shall, ten (10) days prior to such change, send Owner a copy of the changed rules by first class mail to the address appearing on the most recent registration filed with the City. Adopted at South Burlington, Vermont this _____ day of __________________, 2017, and to be effective upon adoption. SOUTH BURLINGTON CITY COUNCIL _________________________________ Helen Riehle, Chair _________________________________ Meaghan Emery, Vice-Chair _________________________________ Tim Barritt, Clerk _________________________________ Thomas Chittenden _________________________________ Pat Nowak Received and recorded this ______ day of _____________________, 2017. _________________________________ Donna Kinville, City Clerk CITY OF SOUTH BURLINGTON POLICE DEPARTMENT RESOLUTION ENACTING REGISTRATION REGULATIONS AND FEES FOR THE SECURITY ALARM ORDINANCE 1. Owners, or Tenant if appropriate authorization is in place, shall complete all supplied registration/permit paperwork as deemed appropriate by the Police Department. 2. Owners, or Tenant if appropriate authorization is in place, shall promptly notify the South Burlington Police Department of any change in the information contained in the permit application form on file with the Police Department. 3. Pursuant to Section 3(F) of the South Burlington Security Alarm Ordinance, Owners, or Tenant if appropriate authorization is in place, shall be responsible for an initial registration fee based upon the following schedule: (A) First-time registration shall be in the amount of $45.00. The initial registration period will cover the months remaining in the current year. (B) Every year after the initial year, Owners shall be responsible for an annual registration fee of $30.00 to cover administrative fees for the maintenance of alarm records. (C) Registration fees will cover the registration period between April 1 and March 31 of each year. 4. Pursuant to Section 5(E) of the South Burlington Security Alarm Ordinance, Owners shall reimburse the City for its response to any False Alarms in accordance with the following schedule: (a) The first two (2) False Alarms within a registration period – warning/no charge. (b) Three (3) – five (5) False Alarms within a registration period - $30 per False Alarm. (c) Six (6) – eight (8) False Alarms within a registration period - $50 per False Alarm, plus a written explanation of cause to the Alarm System Coordinator. (d) Nine (9) or more False Alarms shall be billed at $100 per False Alarm during the registration period. In addition, pursuant to Section 10(B) of the South Burlington Security Alarm Ordinance, notice shall be served to the Owner and Tenant that the City intends to discontinue response for repeated False Alarms until such time that the Owner and/or Tenant submit, in writing, to the Chief of Police that problems with the alarm have been rectified. RESOLUTION ENACTING REGISTRATION REGULATIONS AND FEES FOR THE SECURITY ALARM ORDINANCE Page 2. Adopted at South Burlington, Vermont this _____ day of __________________, 2017, and to be effective upon adoption. SOUTH BURLINGTON CITY COUNCIL _________________________________ Helen Riehle, Chair _________________________________ Meaghan Emery, Vice-Chair _________________________________ Tim Barritt, Clerk _________________________________ Thomas Chittenden _________________________________ Pat Nowak Received and recorded this ______ day of _____________________, 2017. _________________________________ Donna Kinville, City Clerk MEMORANDUM TO: South Burlington City Council CC: Thomas Hubbard, Deputy City Manager and Andrew Bolduc, City Attorney FROM: Atty. Jim Barlow DATE: January 3, 2017 RE: Ordinance Codification Project - Second Reading of Proposed Amendments to the Care and Control of Dogs and Cats Ordinance Background Ownership, keeping, and licensing of dogs and cats is regulated through the South Burlington Care and Control of Dogs and Cats Ordinance (the “Dog and Cat Ordinance”). The Dog and Cat Ordinance was adopted on May 7, 1963. It was amended June 3, 1968, June 16, 1975, October 2, 1995, September 15, 1997, and June 20, 2011. A copy of the current Dog and Cat Ordinance is available on the City’s website. Proposed Amendments As part of the City’s ordinance codification project, several amendments to the Dog and Cat Ordinance have been proposed. Most of these amendments are technical in nature and intended to accomplish the following:  Update penalties for violation of the Ordinance and align the enforcement provisions of the Ordinance with applicable statutes.  Authorize dismissal of a municipal complaint (i.e. ticket) upon the successful completion of a restorative justice program through the South Burlington Restorative Justice Center.  Standardize the Ordinance’s organization, formatting, and font. Proposed amendments to Section 3 of the Ordinance address working farm dogs. These amendments reflect 2013 changes to Vermont statutes found at 20 V.S.A. §3549. Proposed deletions are indicated with strikethrough. Additions are indicated with underline. Non-substantive changes to organization, grammar, spelling, capitalization, and section titles are not specifically indicated. A copy of the Ordinance with the proposed amendments is attached. Recommendation After conducting a public hearing, the City Council is requested to pass the proposed amendments to the Dog and Cat Ordinance. A clean copy of the Ordinance will be available for Council members’ signatures at the meeting. Care and Control of Dogs and Cats Ordinance CARE AND CONTROL OF DOGS AND CATS ORDINANCE 2 City of South Burlington Ordinance SECOND READING DRAFT 1.3.17 Table of Contents 1. Purpose and Authority ...................................................................................................................... 3 2. General Definitions ........................................................................................................................... 3 3. Disturbances and Nuisances ............................................................................................................. 4 4. Collar and License ............................................................................................................................. 4 5. Humane Care of Dogs and Cats ........................................................................................................ 5 6. Enforcement ..................................................................................................................................... 5 7. Impoundment ................................................................................................................................... 5 8. Notice of Impoundment and Release from Impoundment .............................................................. 6 9. Investigation of Vicious Dogs or Cats ............................................................................................... 6 10. Civil Penalty; Waiver Fee (Sections 3, 4 & 5) .................................................................................... 7 11. Other Relief ...................................................................................................................................... 8 12. Severability ........................................................................................................................................ 8 CARE AND CONTROL OF DOGS AND CATS ORDINANCE 3 City of South Burlington Ordinance SECOND READING DRAFT 1.3.17 The Council of the City of South Burlington hereby ordains: This ordinance replaces The South Burlington Ordinance for the Care and Control of Dogs and Cats adopted May 7, 1963, amended June 3, 1968, June 16, 1975, October 2, 1995 and September 15, 1997. 1. Purpose and Authority This Ordinance is adopted by the City Council of South Burlington under authority of 20 V.S.A. § 3549, 24 V.S.A. §§ 2291 (10) and 2291 (10), (14), & and (15), and 24 V.S.A. Chapter 59, and Section 104 the South Burlington City Charter. It is tThe purpose of this Ordinance is to regulate the keeping of Dogs and Cats, to protect public health and safety, and to protect the residents’ quiet enjoyment of their homes and properties. 2. General Definitions For purposes of this Ordinance, the following words and/or phrases shall apply The following terms and phrases, when used in this Ordinance, shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning: Dog Means aAny member of the canine species and any wolf hybrid as described in 20 V.S.A. § 3541(8). Cat Means aAny member of the feline species. Owner Shall include aAny person or persons, firm association or corporation owning, keeping, or harboring a Dog or Cat. Running at Large Shall mean oOff the premises of the Owner, and not under the control of the Owner, a member of his/her immediate family, or an agent of the Owner, either by leash, cord, chain, or otherwise within control of such person so that at all times the Dog or Cat can be prevented from causing any damage, disturbance, or annoyance. Enforcement Official When used herein shall mean aAny constable, City Police Officer, Animal Control Officer, and or pound keeperor ; it shall also include any other individual specifically person designated by the City Council to enforce the provisions of this Ordinance. Pound Keeper Refers to the person or organization which enters into a Contract with the City. Vicious Dog or Cat Means aA Dog or Cat that attacks any person or causes any person to reasonably fear attack or bodily injury from such animal, unless the person is trespassing on the property of the Owner of the animal. The term shall also mean any animal Dog or Cat that, while Running at Large, attacks another domestic pet or domestic animal, as defined in 20 V.S.A. §§ 3541 (2) and (3). Payment Refers to that all fines and waivers for civil penalties must be paid in cash and a receipt will be immediately issued. Working Farm Dog A Dog that is bred or trained to herd or protect livestock or poultry or to protect crops and that is used for those purposes and that is so registered pursuant to 20 V.S.A. 3541(9). CARE AND CONTROL OF DOGS AND CATS ORDINANCE 4 City of South Burlington Ordinance SECOND READING DRAFT 1.3.17 3. Disturbances and Nuisances An Owner of a Dog or Cat shall not allow, permit, or suffer a Dog or Cat to create a nuisance. The following shall be deemed nuisances: (A) No dog or cat shall Running at Large in the City. (B) No dog or cat shall harass or attack other animals or people unless such animals or people are trespassing on the private property of the owner of the dog or cat. (CB) A female Dog or Cat in heat that is not in heat shall be confined to a building or other secured enclosure, except while under the direct control of the Owner. (DC) No person shall own, keep or harbor aA Dog or Cat which, by frequent or long continued noise, disturbs the quiet, comfort, and repose of others. (ED) A Dog or Cat The person in control of a dog or cat that defecates in any public area or on the private property of another person and whose Owner does not shall immediately remove the fecal material and dispose of it in a sanitary manner. The provisions of this section pertaining to Running at Large and disturbing the quiet, comfort, and repose of others shall not apply to a Working Farm Dog on property being farmed by the person who registered the Working Farm Dog and: (1) the Working Farm Dog is barking in order to herd or protect livestock or poultry or to protect crops; or (2) the Working Farm Dog is Running at Large in order to herd or protect livestock or poultry or to protect crops. 4. Collar and License (A) Each Dog or Cat shall be licensed according to the laws of this State and shall wear a collar or harness with the current license attached. An animal Dog that is visiting from out of state must wear a collar or harness with a current license from its home state attached. (B) A Dog or Cat that is found without a collar or harness and license shall may be immediately impounded. under authority of 20 V.S.A. Chapters 193 and 194 with reference to section § 3806 and shall be managed under the provisions of that statute. (C) A Dog or Cat not licensed or properly inoculated by the due date April 1, may be seized or detained by thean Enforcement Official who is authorized and empowered to enter upon the premises and enter any structure to seize or detain a dog or cat. A Dog or Cat will be kept by the City, at the Owner’s expense, for a period of thirty (30) days to afford the Owner/keeper an opportunity to pay in full all fines, penalties, fees, and costs of what so ever kind, and to obtain a license and/or inoculation. At the end of the thirty (30) days, if payment in full has not been received by the City, the Dog or Cat will be disposed of in a humane way or turned over to the Humane Society. (D) Pursuant to 24 V.S.A. Chapter 13-104(7) the City’s Charter gives the authority to adopt and enforce ordinances for the purpose of regulating and licensing the keeping of dogs or other pets. The fee for each dog license shall be $12.00 above the fee required by state statutes. The fee for each cat license shall be $3.00 above the fee required by state statutes. Under authority granted in Section 104(7) of the South Burlington City Charter, a $12.00 City Dog license fee and a $3.00 City Cat license fee shall be imposed in addition to any license fee imposed by Vermont statute. CARE AND CONTROL OF DOGS AND CATS ORDINANCE 5 City of South Burlington Ordinance SECOND READING DRAFT 1.3.17 (E) Pursuant to 24 V.S.A. Chapter 13-104(7) the City’s Charter gives the authority to adopt and enforce ordinances for the purpose of regulating and licensing the keeping of dogs or other pets. Therefore the City will adopt late fees for those dog and cat owners who fail to register their dog or cat by the state imposed deadline of April 1st. A For Fiscal Year 2012 the late fee will be $10.00 in addition to the licensing fee. Beginning with July 1, 2012 the following late fees in addition to licensing fees, will be in effect: January 1 – April 1 $0 April 2 – April 30 $10 May 1 – December 31 $25 Under authority granted in Section 104(7) of the South Burlington City Charter, a $10.00 late licensing charge shall be imposed for Dogs and Cats licensed from April 2 to April 30. A $25.00 late licensing charge shall be imposed for Dogs and Cats licensed from May 1 to December 31. If a Dog or Cat is being registered due to the actions of thean Enforcement Official there will be a flat $50.00 fee imposed in addition to the licensing fee year round all other licensing fees and charges imposed. 5. Humane Care of Dogs and Cats All Dogs and Cats shall be furnished with clean and safe facilities sufficient to protect the animal and the public health. Any Dog or Cat determined by thean Enforcement Officials to be without such clean and safe facilities may be impounded. 6. Enforcement This is a civil ordinance and shall be enforced by an Enforcement Official in the Vermont Judicial Bureau in accordance with 24 V.S.A. §§ 1974a et seq. Each day the violation continues shall constitute a separate violation. A municipal complaint may, at the discretion of the Enforcement Official, be dismissed upon the successful completion of a restorative justice program through the South Burlington Community Justice Center. 7. Impoundment (A) Any Dog or Cat that is determined by an Enforcement Official to be a Vicious Dog or Cat which presents an imminent danger to people or other animals shall be immediately impounded. (B) Any Dog or Cat that is apprehended for a third or subsequent violation of any provision of this Ordinance shall be impounded. (C) Any Dog or Cat that is apprehended for Running at Large where the Owner cannot be found may be impounded. CARE AND CONTROL OF DOGS AND CATS ORDINANCE 6 City of South Burlington Ordinance SECOND READING DRAFT 1.3.17 8. Notice of Impoundment and Release from Impoundment (A) The officer An Enforcement Official who impounds a Dog or Cat shall, within 48 hours, give notice to the Owner thereof. , either personally, by telephone call, or by written notice at the owner’s dwelling. Such notice shall inform the Owner of the nature of the violations, the location of the animal, and the steps that are necessary to have the animal returned to the Owner. (B) If the Owner of an impounded Dog or Cat cannot be located the Dog or Cat may be released to the Humane Society. (CB) If an impounded Dog or Cat has no license or other identification, the person who impounds Enforcement Official it shall proceed under the provisions of 20 V.S.A. § 3806. A refundable cash bond in the amount of seventy-four dollars ($74) Eighty-Five Dollars ($85.00) may be paid by the Owner in lieu of the license fee which includes late fine if the cCity Cclerk’s office is not open or the animal Dog or Cat needs requires vaccination prior to licensing. This cash bond shall be returned to the Owner upon proper licensing of the animal, after determining the license fee amount and the late fee owed. Failure to license the Dog or Cat within five (5) days shall cause forfeiture of the cash bond and the Owner shall be subject to all penalties provided for by this Ordinance. (DC) An Iimpounded Dog or Cat animals shall be released to the Owner only after payment of all penalties and impoundment fees and after remedial action by the Owner. Remedial action shall include but is not limited to such actions as providing a collar and current license and providing a plan for compliance with the provisions of this Ordinance and with State law. (ED) An “appropriate complaint” shall be deemed to have been made when a person verbally gives the City Police DepartmentEnforcement Official a full description of the Dog or Cat, including breed (if known), size, color, and other distinguishing features which description must be is sufficient for an Enforcement Official to make a proper identification. If such description is insufficient for proper identification, no dog or cat shall be impounded. The person who made such complaint shall file in writing with the Police DepartmentEnforcement Official a form furnished by the City setting forth his/her name, address, phone number, description of the Dog or Cat, and circumstances under which the Dog or Cat was believed to be in violation of this Ordinance. If no written complaint is filed, the City, at its option, may release the dog or cat and charge the complainant with any impoundment fees or boarding fees which may be due. (FE) In addition to the impoundment fees charged herein, there shall be a boarding charge as set by the impoundment facility for a per day charge or fraction thereof during which the Dog or Cat is impounded. A Dog or Cat that is impounded and that is kept overnight shall be charged the per day boarding fee. (GF) The City Council is hereby empowered to increase the impoundment fees provided for in this section by appropriate resolution. The City Council may make such increases in said fees and charges as they deem appropriate and necessary. 9. Investigation of Vicious Dogs or Cats per 20 V.S.A. § 3546 (A) When a Dog or Cat has bitten a person while the Dog or Cat is off the premises of the Owner or keeper, and the person bitten requires medical attention for the attack, such person may file a written complaint with an Enforcement Official or the City’s Health Officialer. The complaint shall contain the CARE AND CONTROL OF DOGS AND CATS ORDINANCE 7 City of South Burlington Ordinance SECOND READING DRAFT 1.3.17 time, date and place where the attack occurred, the name and address of the victim or victims, and any other facts that may assist the legislative body City Council in conducting its investigation. (B) The legislative bodyCity ,Council, within seven (7) days from receipt of the complaint, shall investigate the charges and hold a hearing on the matter. If the Owner of the Dog or Cat which is the subject of the complaint can be ascertained with due diligence, said Owner shall be provided with a written notice of the time, date and place of hearing and the facts of the complaint. (C) If the Dog or Cat is found to have bitten the victim without provocation, the municipal officials City Council shall make such order for the protection of persons as the facts and circumstances of the case may require, including, without limitation, that the Dog or Cat is disposed of in a humane way, muzzled, chained, or confined. The order shall be sent by certified mail, return receipt requested. A person who, after receiving notice, fails to comply with the terms of the order shall be subject to the penalties provided in 20 V.S.A § 3550. (D) The procedures provided in this section shall only apply if the Dog or Cat is not a rabies suspect. If a member of the legislative bodyCity Council or an Enforcement Official determines that the animal is a rabies suspect, the provision of Subchapter 5 of Title 20 Chapter 193, Vermont Statutes Annotated and the rules of the Vermont Department of Health shall apply. 10. Civil Penaltyies; Waiver Fee and Costs (Sections 4, 8 & 103, 4 & 5) An Enforcement Official is authorized to recover civil penalties in the following amounts for each violation of Section 3, 4 or 5: First Offense: $50.00 Second Offense: $100.00 Third Offense: $200.00 Fourth and Subsequent Offenses $300.00 An Enforcement Official is authorized to recover a waiver fee, in lieu of a civil penalty, in the following amount, for any person who declines to contest a municipal complaint and pays the waiver fee: First Offense: $25.00 Second Offense: $50.00 Third Offense: $100.00 Fourth and Subsequent Offenses $200.00 Offenses shall be determined on a rolling twelve (12) month basis. (A) First offense $5025.00 full penalty/$215.00 waiver penalty (B) Second offense $10050.00 full penalty/$5025.00 waiver penalty within a 12 month rolling basis (C) Third offense $200150.00 full penalty/$10075.00 wWaiver penalty within a 12 month rolling basis CARE AND CONTROL OF DOGS AND CATS ORDINANCE 8 City of South Burlington Ordinance SECOND READING DRAFT 1.3.17 (D) Subsequent offense $3200.00 full penalty/$2100.00 waiver penalty within a 12 month rolling basis 11. Other Laws Relief This Ordinance is in addition to all other ordinances of the City of South Burlington and all applicable laws of the State of Vermont. If Vermont statutes change regarding any section of this Ordinance then Statutes rule until this Ordinance can be modified to conform. In addition to impoundment and the enforcement procedures available before the Judicial Bureau, the City Manager is authorized to commence a civil action to obtain injunctive relief and other appropriate relief, or to pursue any other remedy authorized by law. 12. Severability If any section of this Ordinance is held by a court of competent jurisdiction to be invalid, such finding shall not invalidate any other part of this Ordinance. 13. Effective Date This Ordinance shall become effective July 1, 2011. If a petition is filed under 24 V.S.A. § 1973, that statute shall govern the taking effect of this Ordinance. Adopted at South Burlington, Vermont this _____ day of __________________, 2017, and to be effective upon adoption. SOUTH BURLINGTON CITY COUNCIL _________________________________ Helen Riehle, Chair _________________________________ Meaghan Emery, Vice-Chair _________________________________ Tim Barritt, Clerk _________________________________ Thomas Chittenden CARE AND CONTROL OF DOGS AND CATS ORDINANCE 9 City of South Burlington Ordinance SECOND READING DRAFT 1.3.17 _________________________________ Pat Nowak Received and recorded this ______ day of _____________________, 2017. _________________________________ Donna Kinville, City Clerk Care and Control of Dogs and Cats Ordinance CARE AND CONTROL OF DOGS AND CATS ORDINANCE 2 City of South Burlington Ordinance Table of Contents 1. Purpose and Authority ...................................................................................................................... 3 2. General Definitions ........................................................................................................................... 3 3. Disturbances and Nuisances ............................................................................................................. 3 4. Collar and License ............................................................................................................................. 4 5. Humane Care of Dogs and Cats ........................................................................................................ 4 6. Enforcement ..................................................................................................................................... 4 7. Impoundment ................................................................................................................................... 4 8. Notice of Impoundment and Release from Impoundment .............................................................. 5 9. Investigation of Vicious Dogs or Cats ................................................................................................ 5 10. Civil Penalty; Waiver Fee (Sections 3, 4 & 5) ..................................................................................... 6 11. Other Relief ....................................................................................................................................... 6 12. Severability ........................................................................................................................................ 6 CARE AND CONTROL OF DOGS AND CATS ORDINANCE 3 City of South Burlington Ordinance The Council of the City of South Burlington hereby ordains: 1. Purpose and Authority This Ordinance is adopted by the City Council of South Burlington under authority of 20 V.S.A. §3549, 24 V.S.A. §§2291 (10), (14), and (15), 24 V.S.A. Chapter 59, and Section 104 the South Burlington City Charter. The purpose of this Ordinance is to regulate the keeping of Dogs and Cats, to protect public health and safety and to protect the residents’ quiet enjoyment of their homes and properties. 2. General Definitions The following terms and phrases, when used in this Ordinance, shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning: Dog Any member of the canine species and any wolf hybrid as described in 20 V.S.A. §3541(8). Cat Any member of the feline species. Owner Any person or persons, firm, association, or corporation owning, keeping, or harboring a Dog or Cat. Running at Large Off the premises of the Owner and not under the control of the Owner, a member of his/her immediate family, or an agent of the Owner, either by leash, cord, chain, or otherwise within control of such person so that at all times the Dog or Cat can be prevented from causing any damage, disturbance, or annoyance. Enforcement Official Any City Police Officer, Animal Control Officer, or any other person designated by the City Council to enforce the provisions of this Ordinance. Vicious Dog or Cat A Dog or Cat that attacks any person or causes any person to reasonably fear attack or bodily injury from such animal unless the person is trespassing on the property of the Owner. The term shall also mean any Dog or Cat that, while Running at Large, attacks another domestic pet or domestic animal, as defined in 20 V.S.A. §§3541 (2) and (3). Working Farm Dog A Dog that is bred or trained to herd or protect livestock or poultry or to protect crops and that is used for those purposes, and that is so registered pursuant to 20 V.S.A. §3541(9). 3. Disturbances and Nuisances An Owner of a Dog or Cat shall not allow, permit, or suffer a Dog or Cat to create a nuisance. The following shall be deemed nuisances: (A) Running at Large in the City. (B) A female Dog or Cat in heat that is not confined to a building or other secured enclosure, except while under the direct control of the Owner. (C) A Dog or Cat which, by frequent or long continued noise, disturbs the quiet, comfort, and repose of others. (D) A Dog or Cat that defecates in any public area or on the private property of another person and whose Owner does not immediately remove the fecal material and dispose of it in a sanitary manner. CARE AND CONTROL OF DOGS AND CATS ORDINANCE 4 City of South Burlington Ordinance The provisions of this section pertaining to Running at Large and disturbing the quiet, comfort, and repose of others shall not apply to a Working Farm Dog on property being farmed by the person who registered the Working Farm Dog and: (1) the Working Farm Dog is barking in order to herd or protect livestock or poultry or to protect crops; or (2) the Working Farm Dog is Running at Large in order to herd or protect livestock or poultry or to protect crops. 4. Collar and License (A) Each Dog or Cat shall be licensed according to the laws of this State and shall wear a collar or harness with the current license attached. A Dog that is visiting from out of state must wear a collar or harness with a current license from its home state attached. (B) A Dog or Cat that is found without a collar or harness and license may be immediately impounded. (C) A Dog or Cat not licensed by April 1 may be seized or detained by an Enforcement Official. A Dog or Cat will be kept by the City, at the Owner’s expense, for a period of thirty (30) days to afford the Owner an opportunity to pay in full all fines, penalties, fees and costs, of what so ever kind, and to obtain a license and/or inoculation. At the end of the thirty (30) days, if payment in full has not been received by the City, the Dog or Cat will be disposed of in a humane way or turned over to the Humane Society. (D) Under authority granted in Section 104(7) of the South Burlington City Charter, a $12.00 City Dog license fee and a $3.00 City Cat license fee shall be imposed in addition to any license fee imposed by Vermont statute. (E) Under authority granted in Section 104(7) of the South Burlington City Charter, a $10.00 late licensing charge shall be imposed for Dogs and Cats licensed from April 2 to April 30. A $25.00 late licensing charge shall be imposed for Dogs and Cats licensed from May 1 to December 31. If a Dog or Cat is being registered due to the actions of an Enforcement Official, there will be a $50.00 fee imposed in addition to all other licensing fees and charges imposed. 5. Humane Care of Dogs and Cats All Dogs and Cats shall be furnished with clean and safe facilities sufficient to protect the animal and the public health. Any Dog or Cat determined by an Enforcement Official to be without such clean and safe facilities may be impounded. 6. Enforcement This is a civil ordinance and shall be enforced by an Enforcement Official in the Vermont Judicial Bureau in accordance with 24 V.S.A. §§ 1974a et seq. Each day the violation continues shall constitute a separate violation. A municipal complaint may, at the discretion of the Enforcement Official, be dismissed upon the successful completion of a restorative justice program through the South Burlington Community Justice Center. 7. Impoundment (A) Any Dog or Cat that is determined by an Enforcement Official to be a Vicious Dog or Cat which presents an imminent danger to people or other animals shall be immediately impounded. CARE AND CONTROL OF DOGS AND CATS ORDINANCE 5 City of South Burlington Ordinance (B) Any Dog or Cat that is apprehended for a third or subsequent violation of any provision of this Ordinance shall be impounded. (C) Any Dog or Cat that is Running at Large where the Owner cannot be found may be impounded. 8. Notice of Impoundment and Release from Impoundment (A) An Enforcement Official who impounds a Dog or Cat shall, within 48 hours, give notice to the Owner thereof. Such notice shall inform the Owner of the nature of the violation, the location of the animal, and the steps that are necessary to have the animal returned to the Owner. (B) If the Owner of an impounded Dog or Cat cannot be located, the Dog or Cat may be released to the Humane Society. (C) If an impounded Dog or Cat has no license or other identification, the Enforcement Official shall proceed under the provisions of 20 V.S.A. §3806. A refundable cash bond in the amount of Eighty-Five Dollars ($85.00) may be paid by the Owner in lieu of the license fee which includes late fine if the City Clerk’s office is not open or the Dog or Cat requires vaccination prior to licensing. This cash bond shall be returned to the Owner upon proper licensing of the animal, after determining the license fee amount and the late fee owed. Failure to license the Dog or Cat within five (5) days shall cause forfeiture of the cash bond and the Owner shall be subject to all penalties provided for by this Ordinance. (D) An impounded Dog or Cat shall be released to the Owner only after payment of all penalties and impoundment fees and after remedial action by the Owner. Remedial action shall include, but is not limited to, such actions as providing a collar and current license and providing a plan for compliance with the provisions of this Ordinance and with State law. (E) An appropriate complaint shall be deemed to have been made when a person gives the Enforcement Official a full description of the Dog or Cat, including breed (if known), size, color, and other distinguishing features which description is sufficient for an Enforcement Official to make a proper identification. The person who made such complaint shall file in writing with the Enforcement Official a form furnished by the City setting forth his/her name, address, phone number, description of the Dog or Cat, and circumstances under which the Dog or Cat was believed to be in violation of this Ordinance. (F) In addition to the impoundment fees charged herein, there shall be a boarding charge as set by the impoundment facility for a per day charge or fraction thereof during which the Dog or Cat is impounded. A Dog or Cat that is impounded and that is kept overnight shall be charged the per day boarding fee. (G) The City Council is hereby empowered to increase the impoundment fees provided for in this section by appropriate resolution. The City Council may make such increases in said fees and charges as they deem appropriate and necessary. 9. Investigation of Vicious Dogs or Cats (A) When a Dog or Cat has bitten a person while the Dog or Cat is off the premises of the Owner or keeper, and the person bitten requires medical attention for the attack, such person may file a written complaint with an Enforcement Official or the City Health Officer. The complaint shall contain the time, date and place where the attack occurred, the name and address of the victim or victims, and any other facts that may assist the City Council in conducting its investigation. CARE AND CONTROL OF DOGS AND CATS ORDINANCE 6 City of South Burlington Ordinance (B) The City Council, within seven (7) days from receipt of the complaint, shall investigate the charges and hold a hearing on the matter. If the Owner of the Dog or Cat which is the subject of the complaint can be ascertained with due diligence, said Owner shall be provided with a written notice of the time, date, and place of the hearing and the facts of the complaint. (C) If the Dog or Cat is found to have bitten the victim without provocation, the City Council shall make such order for the protection of persons as the facts and circumstances of the case may require, including, without limitation, that the Dog or Cat is disposed of in a humane way, muzzled, chained, or confined. The order shall be sent by certified mail, return receipt requested. A person who, after receiving notice, fails to comply with the terms of the order shall be subject to the penalties provided in 20 V.S.A § 3550. (D) The procedures provided in this section shall only apply if the Dog or Cat is not a rabies suspect. If a member of the City Council or an Enforcement Official determines that the animal is a rabies suspect, the provision of Subchapter 5 of Title 20, Chapter 193, Vermont Statutes Annotated and the rules of the Vermont Department of Health shall apply. 10. Civil Penalty; Waiver Fee (Sections 3, 4 & 5) An Enforcement Official is authorized to recover civil penalties in the following amounts for each violation of Section 3, 4 or 5: First Offense: $50.00 Second Offense: $100.00 Third Offense: $200.00 Fourth and Subsequent Offenses $300.00 An Enforcement Official is authorized to recover a waiver fee, in lieu of a civil penalty, in the following amount, for any person who declines to contest a municipal complaint and pays the waiver fee: First Offense: $25.00 Second Offense: $50.00 Third Offense: $100.00 Fourth and Subsequent Offenses $200.00 Offenses shall be determined on a rolling twelve (12) month basis. 11. Other Relief This Ordinance is in addition to all other ordinances of the City of South Burlington and all applicable laws of the State of Vermont. In addition to impoundment and the enforcement procedures available before the Judicial Bureau, the City Manager is authorized to commence a civil action to obtain injunctive relief and other appropriate relief or to pursue any other remedy authorized by law. 12. Severability If any section of this Ordinance is held by a court of competent jurisdiction to be invalid, such finding shall not invalidate any other part of this Ordinance. CARE AND CONTROL OF DOGS AND CATS ORDINANCE 7 City of South Burlington Ordinance Adopted at South Burlington, Vermont this _____ day of __________________, 2017, and to be effective upon adoption. SOUTH BURLINGTON CITY COUNCIL _________________________________ Helen Riehle, Chair _________________________________ Meaghan Emery, Vice-Chair _________________________________ Tim Barritt, Clerk _________________________________ Thomas Chittenden _________________________________ Pat Nowak Received and recorded this ______ day of _____________________, 2017. _________________________________ Donna Kinville, City Clerk MEMORANDUM TO: South Burlington City Council CC: Thomas Hubbard, Deputy City Manager and Andrew Bolduc, City Attorney FROM: Atty. Jim Barlow DATE: January 3, 2017 RE: Ordinance Codification Project - Second Reading of Proposed Amendments to the Tree Ordinance Background The South Burlington Tree Ordinance regulates planting, maintenance, protection, and removal of trees and shrubs on public streets, parks, and City-owned properties. The Tree Ordinance also establishes the office of City Arborist and provides for the formation of a City Tree Board. The City Council passed the Tree Ordinance on November 17, 2008. A copy of the current Tree Ordinance is available on the City’s website. Proposed Amendments As part of the City’s ordinance codification project, several amendments to the Tree Ordinance are proposed. Most of these amendments are technical in nature and intended to accomplish the following:  Clarify the definition of a City Tree and remove from the definition those trees and shrubs located within City-held easements (e.g., drainage easements) and within state highway rights of way (e.g., Rt. 7 and 116).  Clarify the City’s duty to remove City Trees presenting a risk of bodily injury or property damage.  Update penalties for violation of the Ordinance and align the enforcement provisions of the Ordinance with applicable statutes.  Authorize dismissal of a municipal complaint (i.e. ticket) upon the successful completion of a restorative justice program through the South Burlington Restorative Justice Center.  Standardize the Ordinance’s organization, formatting, and font. Proposed deletions are indicated with strikethrough. Additions are indicated with underline. Non-substantive changes to the organization, grammar, spelling, capitalization, and section titles are not specifically indicated. A copy of the Ordinance with the proposed amendments is attached. Recommendation After conducting a public hearing, the City Council is requested to pass the proposed amendments to the Tree Ordinance. A clean copy of the Ordinance will be available for Council members’ signatures at the meeting. Tree Ordinance TREE ORDINANCE 2 City of South Burlington Ordinance Second Reading Draft 1.3.17 Table of Contents 1. Purpose and Authority ...................................................................................................................... 3 2. General Definitions ........................................................................................................................... 3 3. Functions of City Arborist and City Tree Board ................................................................................. 4 4. Protection of City Trees .................................................................................................................... 4 5. Removal of City Trees ....................................................................................................................... 5 6. Obstruction of Streets and Sidewalks ............................................................................................... 6 7. Dead, Diseased, or Injured Trees on Private Property ...................................................................... 6 8. Appeals .............................................................................................................................................. 7 9. Enforcement ..................................................................................................................................... 7 10. Civil Penalty; Waiver Fee ............................................................................................................... 7 11. Other Relief ................................................................................................................................... 9 12. Severability .................................................................................................................................... 9 TREE ORDINANCE 3 City of South Burlington Ordinance Second Reading Draft 1.3.17 The Council of the City of South Burlington hereby ordains: 1. Purpose and Authority It is the purpose of this Ordinance to promote and protect the public health, safety and general welfare of the citizens of the City of South Burlington (“City”) by providing for the regulation of planting, maintenance, protection, and removal of trees and shrubs on public streets, parks, and City-owned properties. This Ordinance also establishes the office of City Arborist in the Department of Public Works and provides for the formation of a City Tree Board. This Ordinance is enacted by the City Council under the authority of 24 V.S.A. § 2291(3) and Section 104 of the South Burlington City Charter. This Ordinance shall constitute a civil ordinance within the meaning of 24 V.S.A. Chapter 59. 2. General Definitions The following terms shall have the meanings ascribed to them in this section: The following terms and phrases, when used in this Ordinance, shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning: Arboricultural Specifications and Standards of Practice A manual developed and maintained by the City Arborist and the City Tree Board that contains the standards and specifications for the planting, maintenance, protection and removal of all City Trees and shrubs. Caliper The diameter in inches of a tree trunk that is taken six (6) inches above the ground for up to and including four (4) inch caliper size, and twelve (12) inches above the ground for larger sizes. City Tree All trees and shrubs for which any part of the trunk at Diameter Breast Height (DBH) is located in any public street, park, right of way, or easement, or other public place within the City limits, including but not limited to State of Vermont right-of-ways managed or maintained by the City. Any tree or shrub for which any part of the trunk at four feet, six inches (4’6”) from the finished grade at the base of the tree or shrub is located in any City-owned property, City park, or City highway, street or right of way. Trunk Measurement Note: 4’6” = 1.37 meters TREE ORDINANCE 4 City of South Burlington Ordinance Second Reading Draft 1.3.17 Critical Root Zone The area around the trunk of a tree circumscribed by a radius of one (1) foot per inch of DBH. DBH (Diameter Breast Height) Diameter Breast Height (DBH) The diameter of tree trunks measured at a height of four feet, six inches (4’6”) from the finished grade at the base of the tree. Drip Line An imaginary vertical line which extends from the outermost branches of a tree’s canopy to the ground. Property Line The outer edge of a street or highway right of way (ROW). Topping The severe cutting back of limbs to stubs within the tree’s crown to such a degree so as to remove the normal canopy and disfigure the tree. 3. Functions of City Arborist and City Tree Board (A) The office of City Arborist is hereby established in the Department of Public Works. The City Arborist shall have the authority to issue or deny permits for planting, maintenance, removal, pruning, and protection of City Trees, as authorized. It shall also be his/her duty to supervise or inspect all work done under a permit issued in accordance with the terms of this Ordinance. (B) The City Arborist, in consultation with and approval by the City Tree Board, shall have the authority to adopt a manual of Arboricultural Specifications and Standards of Practice. These regulations shall govern specific practices and protocols for the planting, maintenance, removal, pruning, and protection of all City Trees and shall include a list of approved street and park tree species. (C) It shall be a violation of this Ordinance for any person to prevent, delay, or interfere with the City Arborist or his/her agents in the execution or enforcement of any of the provisions of this Ordinance. (D) The purpose of the City Tree Board shall be to work in cooperation with the City Arborist to promote responsible planting, maintenance, and care of trees on public property City Trees and to educate the citizens of South Burlington about the benefits and requirements of the City’s tree resource. Unless the City Council otherwise prescribes, the City Natural Resource Committee shall serve as the City Tree Board. 4. Protection of City Trees (A) Unless specifically authorized in writing by the City Arborist, no person or agency shall do anything reasonably likely to harm a City Tree, including but not limited to the following acts which are prohibited to any part of a City Tree: cutting, carving, transplant, removal, piercing, tying, girdling, Topping, burning, charring, poisoning, painting, marking, contacting with a harmful substance, or attaching any foreign object (such as but not limited to rope, wire, nails, posters). (B) No person shall conduct any land development or construction activity below, at, or above grade within the Critical Root Zone of any City Tree, including but not limited to a prohibition of the following: TREE ORDINANCE 5 City of South Burlington Ordinance Second Reading Draft 1.3.17 placing a structure, excavation, laying a drive, walkway, or impervious surface, laying utility pipes or conduits. (C) All construction, excavation, maintenance, or other site work conducted within five feet (5’) or less of the perimeter of the Critical Root Zone of a City Tree shall require the prior erection of a fence, frame, box, or other like barrier not less than four feet (4’) high around the perimeter of the Critical Root Zone. All activity, equipment, and material shall be kept outside the barrier. (D) No person shall deposit, place, store, or maintain upon the Critical Root Zone of any City Tree any stone, brick, sand, concrete, or other materials which may impede the free passage of water, air, and fertilizer to the roots of said tree. (E) Upon good cause shown, the City Arborist may alter or waive the foregoing restrictions. (F) This Ordinance shall not govern any emergency activity immediately necessary to prevent, treat,or minimize bodily injury or property damage. This Ordinance also shall not prohibit a person from removing a City Tree that obstructs access to such person’s primary residence or business property, provided that actions taken shall be the minimum necessary to afford such access and shall be carried out so as to minimize damage to City Trees. Notice of any such activity affecting a City Tree shall be given to the City Arborist as soon as reasonably practicable, and within three (3) calendar days of commencing such activity at the latest. 5. Removal of City Trees (A) No personal shall plant, spray, fertilize, prune, cut, remove, replace, or otherwise disturb any City Tree without first obtaining a permit from the City Arborist. All work for which such permission is granted shall be performed in accordance with the Arboricultural Specifications and Standards of Practice adopted pursuant to this Ordinance. (B) Permission for removal of City Trees shall require the permittee to provide suitable replacements. The value of existing City Trees is to be calculated on a DBH inch-by-inch replacement basis. Replacements shall be at least 2” Caliper, nursery grown stock. For example, if an 18” DBH City Tree is removed, the City Arborist shall require replacement with nine 2” Caliper trees. The City Arborist may exercise discretion to require larger than 2” Caliper replacements, to reduce the number of required replacements, and to waive the replacement of City Trees required by this provision. Exercise of discretion shall be guided by the characteristics of the tree(s) removed, including: status as ornamental or shade; age and health; location; and species. (C) In cases where replacement is required, the permittee shall either: (1) Arrange for suitable replacements and completion of all necessary work to plant replacements in accordance with the Arboricultural Specifications and Standards of Practice and subject to the City Arborist’s approval of trees, planting methods, and completion of work; or (2) Compensate the City with monetary payment in an amount the City Arborist estimates to equal the cost of replacement including purchase, planting, maintenance, and related expenses. Funds paid to the City under this provision shall be exclusively used to defray the cost of replacement trees or to otherwise further the purpose of this Ordinance. TREE ORDINANCE 6 City of South Burlington Ordinance Second Reading Draft 1.3.17 (D) Replacement trees shall be made available for inspection by the City Arborist prior to planting. A permittee shall warrant the health of all replacement trees for a period of two-years after planting and shall provide further replacements in the event of death or disease. (E) City Trees removed due to being in poor, dead, or diseased condition, which condition must be assessed and validated by the City Arborist, shall not require replacement. (F) The City shall strive to prevent city trees from posing an unreasonable risk of property damage or bodily injury. In assessing and, if appropriate, mitigating such risks, In the consideration of the removal of City Trees, the City Arborist shall exercise his/her judgement and discretion and all decisions by the City Arborist shall be final. Factors to be considered for both assessment and, if appropriate, mitigation should include but not be limited to: relative likelihood and gravity of potential harm property damage or bodily injury; costs of monitoring, assessing, remediation, and removing trees (including allocation of human resources, supplies, and equipment); and environmental impacts. The USDA Forest Service tree risk evaluation form (revised version for New England) shallmay be consulted in assessing potential risk. This provision shall not apply to City Trees located in areas that are primarily in a natural state. (G) Upon good cause shown, including but not limited to protecting City property or public health, the City Arborist may alter or waive the foregoing restrictions. 6. Obstruction of Streets and Sidewalks (A) It shall be the duty of any person owning real property bordering on a public street, sidewalk, recreational path, or other public right of way ROW to ensure the trees, shrubs, and other plantings on that property are maintained in a manner that will not obstruct: street lights from illuminating street level; the passage or visibility of vehicles or pedestrians; vision of traffic signs and signals; or the view of any intersection. (B) Should any person owning real property fail to comply with the above provision, the City Arborist shall order the owner to correct such a violation within twenty-one (21) calendar days of issuance of written notice. The order required herein shall be served by mailing a copy to the last known address of the property owner. (C) To the extent this section is violated by virtue of a portion of a tree, shrub, or other planting which has a Drip Line extending into the City’s right of way, ROW, the City may prune back such portion extending into the right of way .ROW. 7. Dead, Diseased, or Injured Trees on Private Property (A) It shall be the duty of any person owning real property bordering on a public street, sidewalk, recreational path, or other public right of way ROW to ensure trees that are dead, diseased, or injured do not pose an unreasonable risk of property damage or bodily injury occurring within such public right of way. ROW. (B) Should any person owning real property fail to comply with the above provision, the City Arborist shall order the owner to correct such a violation within twenty-one (21) calendar days of issuance of written notice. The order required herein shall be served by mailing a copy to the last known address of the property owner. TREE ORDINANCE 7 City of South Burlington Ordinance Second Reading Draft 1.3.17 (C) The City Arborist, upon advance notice of at least three days, may enter upon land of property owners to take action with regard to insect or disease pest infestations. (D) Trees and shrubs on privately-owned property may be subject to permits and approvals issued under the South Burlington Land Development Regulations. Property owners should refer to the Land Development Regulations, and such permits and approvals, for additional conditions and requirements applicable to these trees and shrubs. 8. Appeals (A) Any person aggrieved by an action or decision of the City Arborist may, within twenty- one (21) calendar days from the date of receipt of notice of such action or decision, deliver to the City Arborist at the Department of Public Works, a request in writing for review by the City Tree Board. The City Tree Board shall offer such person the opportunity to be heard and present evidence and shall issue findings and conclusions. Three (3) members of the City Tree Board must be present to constitute a quorum. By a majority vote of the members present, the City Tree Board shall affirm, modify, or reverse an action appealed. A tie vote shall be an affirmance of the decision from which the appeal is taken. The Board shall give written notice of its decision no later than forty-five (45) days after the date of the hearing. (B) The decision of the City Tree Board shall be final, subject to appeal under V.R.C.P. 74. 9. Administration and Enforcement (A) Any person who violates a provision of this civil Ordinance shall be subject to a civil penalty of up to $5800 per day for each day that such violation continues. The City Arborist shall be authorized to act as Issuing Municipal Official to issue and pursue before the Judicial Bureau a municipal complaint. Each day the violation continues shall constitute a separate violation. A municipal complaint may, at the discretion of the Issuing Municipal Official, be dismissed upon the successful completion of a restorative justice program before the South Burlington Community Justice Center. The City Arborist shall issue a written warning for a violation of this Ordinance before issuing a municipal complaint for a first offense of this Ordinance in any calendar year. 10. Civil Penalty; Waiver Fee An Issuing Municipal Official is authorized to recover civil penalties in the following amounts for each violation: First offense $160 Second offense $320 Third offense $480 Fourth offense $640 Fifth and subsequent offenses $800 An Issuing Municipal Official is authorized to recover a waiver fee, in lieu of a civil penalty, in the following amounts, for any person who declines to contest a municipal complaint and pays the waiver fee: TREE ORDINANCE 8 City of South Burlington Ordinance Second Reading Draft 1.3.17 First offense $100 Second offense $250 Third offense $400 Fourth offense $550 Fifth and subsequent offenses $700 (B) Waiver Fees An Issuing Municipal Official is authorized to recover a waiver fee, in lieu of a civil penalty, in the following amount, for any person who declines to contest a municipal complaint and pay the waiver fee: First Offense $25 Second Offense $50 Third Offense $75 Fourth Offense $100 Fifth Offense $125 Sixth Offense $150 Seventh Offense $175 Eighth Offense $200 Ninth Offense $275 Tenth Offense $350 Offenses shall be counted on a calendar year basis. (C) Civil Enforcement An Issuing Municipal Official is authorized to recover civil penalties in the following amounts for each violation: First Offense $50 Second Offense $100 Third Offense $150 Fourth Offense $200 Fifth Offense $250 Sixth Offense $300 Seventh Offense $350 Eighth Offense $400 Ninth Offense $450 Tenth Offense $500 Offenses shall be counted on a calendar year basis. An Issuing Municipal Official is further authorized to pursue injunctive remedies in the Judicial Bureau as may be provided by statute. (D) Other Procedures TREE ORDINANCE 9 City of South Burlington Ordinance Second Reading Draft 1.3.17 11. Other Relief In addition to the enforcement procedures available before the Judicial Bureau, the City Manager is authorized to commence a civil action in Superior Court to obtain injunctive and other appropriate relief. ,and to pursue any other remedy authorized by law. 102. Severability Should any part or provision of this Ordinance be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of the Ordinance as a whole, or any part thereof, other than the part held to be invalid. Adopted at South Burlington, Vermont this _____ day of __________________, 2017, and to be effective upon adoption. SOUTH BURLINGTON CITY COUNCIL _________________________________ Helen Riehle, Chair _________________________________ Meaghan Emery, Vice-Chair _________________________________ Tim Barritt, Clerk _________________________________ Thomas Chittenden _________________________________ Pat Nowak Received and recorded this ______ day of _____________________, 2017. TREE ORDINANCE 10 City of South Burlington Ordinance Second Reading Draft 1.3.17 _________________________________ Donna Kinville, City Clerk Tree Ordinance TREE ORDINANCE 2 City of South Burlington Ordinance Table of Contents 1. Purpose and Authority ...................................................................................................................... 3 2. General Definitions ........................................................................................................................... 3 3. Functions of City Arborist and City Tree Board ................................................................................. 4 4. Protection of City Trees .................................................................................................................... 4 5. Removal of City Trees ....................................................................................................................... 5 6. Obstruction of Streets and Sidewalks ............................................................................................... 6 7. Dead, Diseased, or Injured Trees on Private Property ...................................................................... 6 8. Appeals .............................................................................................................................................. 6 9. Enforcement ..................................................................................................................................... 7 10. Civil Penalty; Waiver Fee ............................................................................................................... 7 11. Other Relief ................................................................................................................................... 7 12. Severability .................................................................................................................................... 7 TREE ORDINANCE 3 City of South Burlington Ordinance The Council of the City of South Burlington hereby ordains: 1. Purpose and Authority It is the purpose of this Ordinance to promote and protect the public health, safety and general welfare of the citizens of the City of South Burlington (“City”) by providing for the regulation of planting, maintenance, protection, and removal of trees and shrubs on public streets, parks, and City-owned properties. This Ordinance also establishes the office of City Arborist in the Department of Public Works and provides for the formation of a City Tree Board. This Ordinance is enacted by the City Council under the authority of 24 V.S.A. § 2291(3) and Section 104 of the South Burlington City Charter. This Ordinance shall constitute a civil ordinance within the meaning of 24 V.S.A. Chapter 59. 2. General Definitions The following terms and phrases, when used in this Ordinance, shall have the meaning ascribed to them in this section, except where the context clearly indicates a different meaning: Arboricultural Specifications and Standards of Practice A manual developed and maintained by the City Arborist and the City Tree Board that contains the standards and specifications for the planting, maintenance, protection and removal of all City Trees. Caliper The diameter in inches of a tree trunk that is taken six inches (6”) above the ground for up to and including four inch (4”) caliper size, and twelve inches (12”) above the ground for larger sizes. City Tree Any tree or shrub for which any part of the trunk at four feet, six inches (4’6”) from the finished grade at the base of the tree or shrub is located in any City-owned property, City park, or City highway, street or right of way. Trunk Measurement Note: 4’6” = 1.37 meters TREE ORDINANCE 4 City of South Burlington Ordinance Critical Root Zone The area around the trunk of a tree circumscribed by a radius of one foot (1’) per inch of DBH. Diameter Breast Height (DBH) The diameter of tree trunks measured at a height of four feet, six inches (4’6”) from the finished grade at the base of the tree. Drip Line An imaginary vertical line which extends from the outermost branches of a tree’s canopy to the ground. Topping The severe cutting back of limbs to stubs within the tree’s crown to such a degree so as to remove the normal canopy and disfigure the tree. 3. Functions of City Arborist and City Tree Board (A) The office of City Arborist is hereby established in the Department of Public Works. The City Arborist shall have the authority to issue or deny permits for planting, maintenance, removal, pruning, and protection of City Trees, as authorized. It shall also be his/her duty to supervise or inspect all work done under a permit issued in accordance with the terms of this Ordinance. (B) The City Arborist, in consultation with and approval by the City Tree Board, shall have the authority to adopt a manual of Arboricultural Specifications and Standards of Practice. These regulations shall govern specific practices and protocols for the planting, maintenance, removal, pruning, and protection of City Trees and shall include a list of approved street and park tree species. (C) It shall be a violation of this Ordinance for any person to prevent, delay, or interfere with the City Arborist or his/her agents in the execution or enforcement of any of the provisions of this Ordinance. (D) The purpose of the City Tree Board shall be to work in cooperation with the City Arborist to promote responsible planting, maintenance, and care of City Trees and to educate the citizens of South Burlington about the benefits and requirements of the City’s tree resource. Unless the City Council otherwise prescribes, the City Natural Resource Committee shall serve as the City Tree Board. 4. Protection of City Trees (A) Unless specifically authorized in writing by the City Arborist, no person or agency shall do anything reasonably likely to harm a City Tree, including but not limited to the following acts which are prohibited to any part of a City Tree: cutting, carving, transplant, removal, piercing, tying, girdling, Topping, burning, charring, poisoning, painting, marking, contacting with a harmful substance, or attaching any foreign object (such as but not limited to rope, wire, nails, posters). (B) No person shall conduct any land development or construction activity below, at, or above grade within the Critical Root Zone of any City Tree, including but not limited to a prohibition of the following: placing a structure, excavation, laying a drive, walkway, or impervious surface, laying utility pipes or conduits. (C) All construction, excavation, maintenance, or other site work conducted within five feet (5’) or less of the perimeter of the Critical Root Zone of a City Tree shall require the prior erection of a fence, frame, box, or other like barrier not less than four feet (4’) high around the perimeter of the Critical Root Zone. All activity, equipment, and material shall be kept outside the barrier. TREE ORDINANCE 5 City of South Burlington Ordinance (D) No person shall deposit, place, store, or maintain upon the Critical Root Zone of any City Tree any stone, brick, sand, concrete, or other materials which may impede the free passage of water, air, and fertilizer to the roots of said tree. (E) Upon good cause shown, the City Arborist may alter or waive the foregoing restrictions. (F) This Ordinance shall not govern any emergency activity immediately necessary to prevent, treat, or minimize bodily injury or property damage. This Ordinance also shall not prohibit a person from removing a City Tree that obstructs access to such person’s primary residence or business property, provided that actions taken shall be the minimum necessary to afford such access and shall be carried out so as to minimize damage to City Trees. Notice of any such activity affecting a City Tree shall be given to the City Arborist as soon as reasonably practicable, and within three (3) calendar days of commencing such activity at the latest. 5. Removal of City Trees (A) No personal shall plant, spray, fertilize, prune, cut, remove, replace, or otherwise disturb any City Tree without first obtaining a permit from the City Arborist. All work for which such permission is granted shall be performed in accordance with the Arboricultural Specifications and Standards of Practice adopted pursuant to this Ordinance. (B) Permission for removal of City Trees shall require the permittee to provide suitable replacements. The value of existing City Trees is to be calculated on a DBH inch-by-inch replacement basis. Replacements shall be at least 2” Caliper, nursery grown stock. For example, if an 18” DBH City Tree is removed, the City Arborist shall require replacement with nine 2” Caliper trees. The City Arborist may exercise discretion to require larger than 2” Caliper replacements, to reduce the number of required replacements, and to waive the replacement of City Trees required by this provision. Exercise of discretion shall be guided by the characteristics of the tree(s) removed, including: status as ornamental or shade; age and health; location; and species. (C) In cases where replacement is required, the permittee shall either: (1) Arrange for suitable replacements and completion of all necessary work to plant replacements in accordance with the Arboricultural Specifications and Standards of Practice and subject to the City Arborist’s approval of trees, planting methods, and completion of work; or (2) Compensate the City with monetary payment in an amount the City Arborist estimates to equal the cost of replacement including purchase, planting, maintenance, and related expenses. Funds paid to the City under this provision shall be exclusively used to defray the cost of replacement trees or to otherwise further the purpose of this Ordinance. (D) Replacement trees shall be made available for inspection by the City Arborist prior to planting. A permittee shall warrant the health of all replacement trees for a period of two years after planting and shall provide further replacements in the event of death or disease. (E) City Trees removed due to being in poor, dead, or diseased condition, which condition must be assessed and validated by the City Arborist, shall not require replacement. (F) In the consideration of the removal of City Trees, the City Arborist shall exercise his/her judgement and discretion and all decisions by the City Arborist shall be final. Factors to be considered for both assessment and, if appropriate, mitigation should include but not be limited to: relative likelihood TREE ORDINANCE 6 City of South Burlington Ordinance and gravity of potential property damage or bodily injury; costs of monitoring, assessing, remediation, and removing trees (including allocation of human resources, supplies, and equipment); and environmental impacts. The USDA Forest Service tree risk evaluation form (revised version for New England) may be consulted in assessing potential risk. This provision shall not apply to City Trees located in areas that are primarily in a natural state. (G) Upon good cause shown, including but not limited to protecting City property or public health, the City Arborist may alter or waive the foregoing restrictions. 6. Obstruction of Streets and Sidewalks (A) It shall be the duty of any person owning real property bordering on a public street, sidewalk, recreational path, or other public right of way to ensure the trees, shrubs, and other plantings on that property are maintained in a manner that will not obstruct: street lights from illuminating street level; the passage or visibility of vehicles or pedestrians; vision of traffic signs and signals; or the view of any intersection. (B) Should any person owning real property fail to comply with the above provision, the City Arborist shall order the owner to correct such a violation within twenty-one (21) calendar days of issuance of written notice. The order required herein shall be served by mailing a copy to the last known address of the property owner. (C) To the extent this section is violated by virtue of a portion of a tree, shrub, or other planting which has a Drip Line extending into the City’s right of way, the City may prune back such portion extending into the right of way. 7. Dead, Diseased, or Injured Trees on Private Property (A) It shall be the duty of any person owning real property bordering on a public street, sidewalk, recreational path, or other public right of way to ensure trees that are dead, diseased, or injured do not pose an unreasonable risk of property damage or bodily injury occurring within such public right of way. (B) Should any person owning real property fail to comply with the above provision, the City Arborist shall order the owner to correct such a violation within twenty-one (21) calendar days of issuance of written notice. The order required herein shall be served by mailing a copy to the last known address of the property owner. (C) The City Arborist, upon advance notice of at least three days, may enter upon land of property owners to take action with regard to insect or disease pest infestations. (D) Trees and shrubs on privately-owned property may be subject to permits and approvals issued under the South Burlington Land Development Regulations. Property owners should refer to the Land Development Regulations, and such permits and approvals, for additional conditions and requirements applicable to these trees and shrubs. 8. Appeals (A) Any person aggrieved by an action or decision of the City Arborist may, within twenty-one (21) calendar days from the date of receipt of notice of such action or decision, deliver to the City Arborist at the Department of Public Works, a request in writing for review by the City Tree Board. The City Tree TREE ORDINANCE 7 City of South Burlington Ordinance Board shall offer such person the opportunity to be heard and present evidence and shall issue findings and conclusions. Three (3) members of the City Tree Board must be present to constitute a quorum. By a majority vote of the members present, the City Tree Board shall affirm, modify, or reverse an action appealed. A tie vote shall be an affirmance of the decision from which the appeal is taken. The Board shall give written notice of its decision no later than forty-five (45) days after the date of the hearing. (B) The decision of the City Tree Board shall be final, subject to appeal under V.R.C.P. 74. 9. Enforcement Any person who violates a provision of this Ordinance shall be subject to a civil penalty of up to $800 per day for each day that such violation continues. The City Arborist shall be authorized to act as Issuing Municipal Official to issue and pursue before the Judicial Bureau a municipal complaint. Each day the violation continues shall constitute a separate violation. A municipal complaint may, at the discretion of the Issuing Municipal Official, be dismissed upon the successful completion of a restorative justice program before the South Burlington Community Justice Center. 10. Civil Penalty; Waiver Fee An Issuing Municipal Official is authorized to recover civil penalties in the following amounts for each violation: First offense $160 Second offense $320 Third offense $480 Fourth offense $640 Fifth and subsequent offenses $800 An Issuing Municipal Official is authorized to recover a waiver fee, in lieu of a civil penalty, in the following amounts, for any person who declines to contest a municipal complaint and pays the waiver fee: First offense $100 Second offense $250 Third offense $400 Fourth offense $550 Fifth and subsequent offenses $700 11. Other Relief In addition to the enforcement procedures available before the Judicial Bureau, the City Manager is authorized to commence a civil action to obtain injunctive and other appropriate relief, and to pursue any other remedy authorized by law. 12. Severability Should any part or provision of this Ordinance be declared by a court of competent jurisdiction to be invalid, the same shall not affect the validity of the Ordinance as a whole, or any part thereof, other than the part held to be invalid. TREE ORDINANCE 8 City of South Burlington Ordinance Adopted at South Burlington, Vermont this _____ day of __________________, 2017, and to be effective upon adoption. SOUTH BURLINGTON CITY COUNCIL _________________________________ Helen Riehle, Chair _________________________________ Meaghan Emery, Vice-Chair _________________________________ Tim Barritt, Clerk _________________________________ Thomas Chittenden _________________________________ Pat Nowak Received and recorded this ______ day of _____________________, 2017. _________________________________ Donna Kinville, City Clerk